City of Huntington, West Virginia v. AmerisourceBergen Drug Corporation et al
MEMORANDUM OPINION AND ORDER denying Defendants' 1051 SEALED MOTION to exclude Dr. Rahul Gupta; Defendants' 1055 MOTION to Exclude Undisclosed Expert Testimony from Non-Retained Expert Witnesses is GRANTED as to Christina Mullins, Dr. M ichael Kilkenny, Dr. Kevin Yingling, Dr. Todd Davies, Dr. David Chaffin, Dr. Lynn OConnell, and Dr. Stephen Petrany and DENIED as to Dr. Gupta. Signed by Senior Judge David A. Faber on 3/11/2021. (cc: counsel of record who have registered to receive an electronic NEF) (jsa)
Case 3:17-cv-01362 Document 1234 Filed 03/11/21 Page 1 of 13 PageID #: 42595
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
THE CITY OF HUNTINGTON,
CIVIL ACTION NO. 3:17-01362
CORPORATION, et al.,
CABELL COUNTY COMMISSION,
CIVIL ACTION NO. 3:17-01665
CORPORATION, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court are defendants’ motions: (1) to
exclude the testimony of Dr. Rahul Gupta; and (2) to exclude
undisclosed expert testimony.
See ECF Nos. 1051 and 1055.
motions are fully briefed and they were argued before the court
on January 6, 2021.
Dr. Rahul Gupta served as the West Virginia Department of
Health and Human Resources Health Commissioner from 2015 to 2018.
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From 2009 to 2014, Dr. Gupta was the Executive Director of the
Kanawha-Charleston Health Department.
On August 3, 2020, plaintiffs disclosed Dr. Gupta as a nonretained expert.
On September 11, 2020, Dr. Gupta was deposed.
Almost two months later, on October 30, 2020, plaintiffs provided
supplemental disclosures required by Federal Rule of Evidence
Plaintiffs have never provided an expert report
pursuant to Rule 26(a)(2)(B).
Defendants move to exclude Dr. Gupta from providing expert
testimony because plaintiffs did not provide an expert report.
Plaintiffs maintain they were not required to provide an expert
report because Dr. Gupta was not a retained expert in this case.
Rule 26(a)(2)(B) provides that an expert witness must be
identified and provide a written report if he or she “is one
retained or specially employed to provide expert testimony in the
case or one whose duties as the party's employee regularly
involve giving expert testimony.”
Fed. R. Civ. P. 26(a)(2)(B).
In 2010, Rule 26 was amended to add subsection (C), which states:
(C) Witnesses Who Do Not Provide a Written Report.
Unless otherwise stipulated or ordered by the court, if
the witness is not required to provide a written
report, this disclosure must state: (i) the subject
matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or
705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.
Fed. R. Civ. P. 26(a)(2)(C).
According to the Advisory Committee
Notes, this amendment was enacted to “resolve[ ] a tension that
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has sometimes prompted courts to require reports under Rule
26(a)(2)(B) even from witnesses exempted from the report
Fed. R. Civ. P. 26 advisory committee's notes.
“Frequent examples include physicians or other health care
professionals and employees of a party who do not regularly
provide expert testimony.”
According to one court, the
Advisory Committee Notes suggest that “Rule 26(a)(2)(C) is meant
to apply only to so-called hybrid witnesses, i.e., fact witnesses
who can also provide expert testimony under Federal Rules of
Evidence 702, 703, or 705.”
Call v. City of Riverside, No. 3:13-
cv-133, 2014 WL 2048194, *3 (S.D. Ohio May 19, 2014).
Of the difference between retained and non-retained experts,
one court summarized:
A retained or specialty expert is “an expert who
without prior knowledge of the facts giving rise to
litigation is recruited to provide expert testimony.”
Downey v. Bob’s Disc. Furniture Holdings, 633 F.3d 1, 6
(1st Cir. 2011). A non-retained expert is one whose
testimony arises from his or her involvement in events
giving rise to the litigation.
Compass Bank v. Eager Road Associates, LLC, No. 4:12CV1059JCH,
2013 WL 5786634, *4 (E.D. Mo. Oct. 28, 2013).
The Downey court
goes on to note that in “[i]nterpreting the words ‘retained or
specially employed’ in a common-sense manner, consistent with
their plain meaning, we conclude that as long as an expert was
not retained or specially employed in connection with the
litigation, and his opinion about causation is premised on
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personal knowledge and observations made in the course of
treatment, no report is required under the terms of Rule
633 F.3d at 7.
At his deposition on September 11, 2020, Dr. Gupta testified
that he had been retained by the Fitzsimmons Law Firm as an
expert consultant in the West Virginia Mass Litigation Panel
Attorneys from the Fitzsimmons Law Group,
Mark Colantonio and Bob Fitzsimmons appeared as counsel for Dr.
Gupta at his deposition.
Previously, on July 14, 2020, Mr.
Colantonio had entered an appearance “as counsel for Plaintiffs”
in these cases.
See ECF No. 729.
When defendants passed Dr. Gupta as a witness for
questioning by plaintiffs’ counsel, Mr. Colantonio asked a number
of questions of Dr. Gupta.
Counsel for McKesson and Cardinal
Health objected to Mr. Colantonio’s questioning of Dr. Gupta
because Dr. Gupta was “not a party, so he’s not entitled to be
run through a direct examination by his personal counsel.”
Deposition of Dr. Rahul Gupta, September 11, 2020, at 117 (found
at Appendix to Defendants’ Motion).
Whereupon, Mr. Colantonio
took the position that he was questioning Dr. Gupta in his
capacity as Dr. Gupta’s attorney as well as in his role as
counsel for plaintiffs.
See id. at 117-18.
Later in the
deposition, after he had asked a number of questions of Dr.
Gupta, Mr. Colantonio backtracked and stated that he was
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appearing at the deposition solely as counsel for Dr. Gupta and
not on behalf of plaintiffs.
A few things are clear.
See id. at 185-87.
First, while not expressly
prohibited, Mr. Colantonio’s questioning of Dr. Gupta was highly
unusual and not permitted by the Federal Rules of Civil
Federal Rule of Civil Procedure 30(c)(1) mandates
that “[t]he examination and cross-examination of a deponent
proceed as they would at trial under the Federal Rules of
Evidence . . . .”
And nonparty attorneys do not ask witnesses
questions at trial.
Second, contrary to plaintiffs’ assertions,
defendants did object to Mr. Colantonio’s questions.
finally, notwithstanding the foregoing, Dr. Gupta is not a
retained expert in these cases.
Therefore, by the plain language of the Rule, Dr. Gupta is
not a retained expert required to provide an expert report.
hold otherwise, requires rewriting Rule 26(a)(2)(B) to provide
that an expert witness must provide a written report if he is
“retained or specially employed to provide expert testimony in
the case [or in another case that is very similar and/or overlaps
with the case or where the attorney for the expert witness is
also counsel in this case].” (alterations in italics).
court declines to do.
Therefore, the motion seeking to exclude
Dr. Gupta because he did not provide an expert report is DENIED.
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That does not end the court’s inquiry with respect to Dr.
Gupta or the other seven witnesses plaintiffs have designated as
Christina Mullins; Dr. Michael Kilkenny;
Dr. Kevin Yingling; Dr. Todd Davies; Dr. David Chaffin; Dr. Lynn
O’Connell; and Dr. Stephen Petrany.
As noted above, even though non-retained experts do not have
to provide an expert report, they nevertheless must provide a
disclosure on “(i) the subject matter on which the witness is
expected to present evidence under Federal Rule of Evidence 702,
703, or 705; and (ii) a summary of the facts and opinions to
which the witness is expected to testify.”
Fed. R. Civ. P.
Plaintiffs maintain that their disclosures of August 3, 2020
satisfied Rule 26(a)(2)(C).
They did not.
This conclusion is
borne out by the supplemental disclosures provided on October 30,
2020, which were far more extensive and relied almost exclusively
on the deposition testimony of the non-retained experts.
Furthermore, all eight of these individuals were deposed prior to
October 30, 2020, the date the supplemental 26(a)(2)(C)
disclosures were provided.
With the exception of Drs. Gupta and
Petrany, the individuals were deposed even before their August 3,
2020 designation as non-retained experts.
So, in other words,
defendants had to wing it in those depositions.
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Federal Rule of Civil Procedure 37(c)(1) governs the failure
to make disclosures.
If a party provides untimely or inadequate
expert disclosures, Rule 37(c)(1) states that “the party is not
allowed to use that information or witness to supply evidence on
a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”
Fed. R. Civ. P.
On motion, the Court may choose to additionally or
alternatively “(A) . . . order payment of the reasonable
expenses, including attorney's fees, caused by the failure; (B) .
. . inform the jury of the party's failure; and (C) . . . impose
other appropriate sanctions, including any of the orders listed
in Rule 37(b)(2)(A)(i)-(vi).”
Fed. R. Civ. P. 37 (c)(1)(A)-(C).
The Fourth Circuit has held that district courts have broad
discretion and should consider the following factors when
determining whether the nondisclosure of evidence is
substantially justified or harmless under Rule 37(c)(1):
(1) the surprise to the party against whom the evidence
would be offered; (2) the ability of that party to cure
the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of
the evidence; and (5) the nondisclosing party's
explanation for its failure to disclose the evidence.
Southern States Rack and Fixture, Inc. v. Sherwin-Williams Co.,
318 F.3d 592, 597 (4th Cir. 2003).
The purpose of Rule 37(c)(1)
is to prevent “surprise and prejudice to the opposing party.”
Id. at 596.
Hence, the Fourth Circuit's test “does not require a
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finding of bad faith or callous disregard of the discovery
Plaintiffs bear the burden of demonstrating that the
Southern States factors weigh against excluding the evidence.
See Wilkins v. Montgomery, 751 F.3d 214, 222 (4th Cir. 2014)
(“The burden of establishing these [Southern States] factors lies
with the non-disclosing party. . . .”).
According to plaintiffs, “the combination of the written
disclosures and the incorporated deposition testimony
sufficiently disclosed the subject matter and opinion of the nonretained experts.”
ECF No. 1146 at 6.
They further assert “[a]s
the witnesses had either been deposed or were in the process of
being deposed the depositions served as a summary of the facts
and opinions to which each witness was expected to testify.
Plaintiffs’ disclosure alerted Defendants to the fact that any
fact that any expert opinions that would be offered were
encompassed in the deposition.
No more was required.”
Id. at 7.
The court disagrees.
The timing of expert disclosures is important.
Significantly, they are meant to aid the parties in taking a
deposition, not the other way around.
As one court explained:
[D]eposition testimony, standing alone, is not
automatically a substitute for expert disclosures. . .
Given the inherently sophisticated nature of
expert opinion and testimony, deposing an expert
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witness may or may not provide the deposing party with
sufficient information about the expert’s opinion to
enable adequate preparation for trial. Without the
prior disclosure of a written report or summary,
deposing counsel may focus on unimportant details or
otherwise fail to engage in an inquiry that reveals the
opinion or opinions, and the underlying bases, that the
expert will offer at trial—a possibility clearly
contemplated by the Federal Rules, which prohibit the
deposition of an expert subject to Rule 26(a)(2)(B)
until after disclosure of the expert’s report. . . .
Alternatively, an expert deposition may reveal a
multiplicity of opinions and an accompanying volume of
information that makes it difficult or impossible for
deposing counsel to accurately predict which opinions
or theories the expert will present at trial. Without
a disclosed report or summary to narrow his focus,
diligent counsel would be forced to prepare for all
possible opinions and theories, a prospect which
greatly increases the potential that short shrift will
be given to the opinion or theory that is actually
presented at trial.
Either extreme—the deposition reveals too much, or
the one that reveals too little—could result in the
opponent being surprised, and therefore prejudiced, by
an opinion not disclosed in accordance with Rule 26.
Turner v. Speedway LLC, Civil Action No. 2:14-9185, 2015 WL
4392398, *5 (S.D.W. Va. July 15, 2015) (Copenhaver, J.); see also
Securities and Exchange Commission v. Nutmeg Group, LLC, No. 09 C
1775, 2017 WL 4925503, *5 (N.D. Ill. Oct. 31, 2017) (“An afterthe-fact deposition is not a substitute for what Rule 26(a)(2)(C)
requires before-the-fact as far as an expert witness is
The Rule requires a party to provide its opponent
with a summary of what the expert will say and a summary of the
main facts related to the expert’s opinions.
The receiving party
can then take the proposed expert’s deposition, if it chooses to
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do so, and probe the matters about which the disclosure put it on
notice.”) (emphasis added).
Plaintiffs’ position herein – that
the deposition testimony itself is the Rule 26(a)(2) disclosure would “defeat the purpose of Rule 26(a)(2)(C).”
United Airlines, Inc., 320 F.R.D. 451, 454 (E.D. Mich. 2017)
(“allowing parties to obviate the need to provide Rule 26(a)(2)
disclosures and reports by simply making their experts available
to be deposed would render the Rule meaningless”) (quoting Rangel
v. Anderson, 202 F. Supp.3d 1361, 1367 (S.D. Ga. 2016)); see also
State Automobile Mut. Ins. Co. v. Freehold Management, Inc.,
Civil Action No. 3:16-CV-2255-L, 2019 WL 1436659, *25 (N.D. Tex.
Mar. 31, 2019) (“To accept Defendants’ argument that inadequate,
untimely, and last-minute disclosures are harmless whenever the
opposing party has the opportunity to later depose the expert
defeats the purpose of the rule and turns it on its head by
shifting the burden to the opposing party to discover the
expert’s opinions and the bases for those opinions and allowing
conclusion-only expert disclosures and reports . . . to be gapfilled via deposition.”).
In this case, with the exception of Dr. Gupta, the Southern
States factors weigh in favor of striking the expert opinions of
the non-retained experts.
First, while defendants may no longer
be surprised by the proposed expert testimony, the only way to
cure that surprise would be to reopen depositions to allow
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defendants to delve into those expert opinions.
closeness of the trial date, the significant time and expense
involved in conducting seven supplemental disclosures would
certainly disrupt the trial.
The fourth and fifth Southern
States factors lead the court to conclude as much.
Significantly, with respect to these seven witnesses, plaintiffs
have not even attempted to show why their expert testimony is
Nor have plaintiffs adequately explained their
failure to make the disclosures in a timely manner.
With respect to Dr. Gupta, after weighing the Southern
States factors, the court concludes that his expert opinions
should not be excluded.
First, plaintiffs have shown the
importance of Dr. Gupta’s testimony.
Second, any surprise can be
cured by allowing defendants the opportunity to reopen Dr.
Gupta’s deposition and allowing one targeted deposition will not
disrupt the trial.
See Wiseman v. Wal-Mart Stores, Inc., Civil
Case No. 1:16-cv-04030-SAG, 2017 WL 4162238, *5 (D. Md. Sept. 19,
2017) (extending discovery for deposition of one witness but
declining to do so for additional twelve witnesses because of
Plaintiffs are instructed to make Dr.
Gupta available as soon as possible for a deposition.
do so may result in exclusion of any expert testimony.
the court is allowing Dr. Gupta’s deposition, it declines to
strike the portions of his prior testimony based upon questions
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asked by Mr. Colantonio.
If warranted, defendants are free to
argue that such testimony is beyond the scope of his status as a
non-retained expert witness.
Cf. Hoover v. United States, No.
01C2372, 2002 WL 1949734, *7 (N.D. Ill. Aug. 22, 2002) (“We also
recognize that a treating physician sometimes may be asked to
offer opinions that go beyond information acquired or opinion
reached as a result of the treating relationship.
situation, the case law establishes that the treating physician
may become the kind of ‘expert’ who is required to submit a
report pursuant to Rule 26(a)(2)(B).”).
Finally, as to defendants’ concerns at the hearing that
reopening depositions might require supplementation of their own
experts’ reports or designation of an additional expert, the
court will review any requests for additional discovery after Dr.
Gupta’s deposition is taken in order to evaluate the necessity of
Defendants’ motion to exclude Dr. Rahul Gupta (ECF No. 1051)
Defendants’ motion to exclude undisclosed expert
testimony (ECF No. 1055) is GRANTED as to Christina Mullins, Dr.
Michael Kilkenny, Dr. Kevin Yingling, Dr. Todd Davies, Dr. David
Chaffin, Dr. Lynn O’Connell, and Dr. Stephen Petrany and DENIED
as to Dr. Gupta.
The non-retained experts are not prohibited
from testifying about facts and opinions that are within the
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permissible scope of lay testimony under the Federal Rules of
The court is mindful of the need “to be alert to
efforts to smuggle expert testimony into the case . . . by
characterizing it as lay testimony.”
8A Charles A. Wright,
Arthur R. Miller, and Richard L. Marcus, Fed. Prac. & Proc. Civ.
§ 2031.1 (3d ed. 2020).
Furthermore, because he is a non-
retained expert, Dr. Gupta’s testimony in these cases is limited
to his involvement in the events giving rise to this litigation.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record who have registered to
receive an electronic NEF.
IT IS SO ORDERED this 11th day of March, 2021.
David A. Faber
Senior United States District Judge
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