United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: Cases identified in Exhibit A attached hereto No. 2:12-cv-01323
R. GOODWIN, UNITED STATES DISTRICT JUDGE
before the court is the plaintiffs' Motion to Strike the
Dr. Shelby F. Thames's Supplemental Reports or, in the
Alternative, for Leave to File a Daubert Motion [ECF
No. 2882]. Ethicon filed its Response [ECF No. 3020]. The
plaintiffs' Motion requests exclusion of Dr. Thames's
two supplemental reports but also requests that the court, in
the alternative, allow them additional time to depose Dr.
Thames. For the reasons detailed below, the plaintiffs'
Motion is GRANTED as to the cases in Exhibit
to the Fourth Amended Wave 2 Docket Control Order [ECF No.
1790] (“Docket Control Order”), Ethicon was
required to disclose its experts (and their opinions) on or
before June 3, 2016. Docket Control Order 1. Discovery closed
on July I, 2016. Id. Further, all Daubert
briefing was to be completed by August 18, 2016, with
Daubert motions due July 21, 2017. Id.
Ethicon timely disclosed Dr. Thames as an expert, along with
his initial expert report. In the plaintiffs' Wave 1
Daubert motion on Dr. Thames, they questioned the
reliability of Dr. Thames's explant cleaning protocol.
Mem. Supp. Mot. Exclude Ops. Dr. Thames 8-10 [ECF No. 2042].
It was this argument that prompted the design and execution
of a new experiment to test the reliability of his cleaning
protocol, to buttress the strength and reliability of his
prior opinion. Mot. Strike Ex. B, at 1 [ECF No. 2882-2]
(“First Supplemental Report”). Ethicon then
served the First Supplemental Report with the preliminary
conclusions of this experiment on August 8, 2016, and the
Second Supplemental Report with the formal conclusions on
September 28, 2016. See Id. at 1; Mot. Strike Ex. C,
at 1 [ECF No. 2882-3] (“Second Supplemental
Report”). Both reports were served after the disclosure
deadline, motion deadline, and close of discovery.
plaintiffs argue for exclusion under Rule 37(c) on the
grounds that the supplemental reports were untimely served.
Mot. Strike 2-3. Ethicon does not dispute that the reports
were untimely served and responds that its delayed
disclosures were justified and harmless. Ethicon focuses its
attention on the five-factor test from Hoyle v.
Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011).
See generally Resp.
to Rule 37(c) of the Federal Rules of Civil Procedure,
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), 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.
to the Fourth Circuit, the appropriate factors to consider in
determining whether to sanction a party under Rule 37(c) are
(1) the surprise to the party against whom the witness was to
have testified; (2) the ability of the party to cure that
surprise; (3) the extent to which allowing the testimony
would disrupt the trial; (4) the explanation for the
party's failure to name the witness before trial; and (5)
the importance of the testimony.
Hoyle, 650 F.3d at 329.
simply unable to find that Ethicon's late disclosures of
Dr. Thames's supplemental expert reports were
substantially justified. Dr. Thames has a longstanding
relationship with Ethicon, and Ethicon has provided no reason
why this testing could not have been done prior to the
disclosure of the initial expert report. Essentially, because
the plaintiffs questioned the reliability of Dr. Thames's
protocol, Ethicon decided to bolster its case by having Dr.
Thames perform more testing of the testing. In essence, the
supplemental expert reports are atonement for initial
inadequacies or incomplete preparation. However, I must also
evaluate whether the late disclosures were nevertheless
harmless before I can determine whether sanctions are
plaintiffs' arguments support a finding of surprise.
Although the plaintiff attacked the adequacy of Dr.
Thames's cleaning protocol in their Daubert
motion, they had no reason to suspect that an entirely new
test would be performed to rebut their argument of
reliability and then disclosed after the discovery deadline
had closed. However, both parties have agreed to allow
additional time for Daubert briefing should the
reports not be excluded. Thus, the ability to cure the
surprise weighs in favor of permitting the reports.
recognize that a trial date has not been set in this case,
and I also recognize that any harm to the plaintiffs
regarding this matter may be easily remedied by allowing them
to have additional time to depose Dr. Thames. However, I must
be particularly cognizant of the realities of multidistrict
litigation and the unique problems an MDL judge faces.
Specifically, when handling seven MDLs, each containing
thousands of individual cases, case management becomes of
utmost importance. See In re Phenylpropanolamine Prods.
Liab. Litig., 460 F.3d 1217, 1231 (9th Cir. 2006)
(emphasizing the “enormous” task of an MDL court
in “figur[ing] out a way to move thousands of cases
toward resolution on the merits while at the same time
respecting their individuality”). I must define rules
for discovery and then strictly adhere to those rules, with
the purpose of ensuring that pretrial litigation flows as
smoothly and efficiently as possible. See Id. at
1232 (“[T]he district judge must establish schedules
with firm cutoff dates if the coordinated cases are to move
in a diligent fashion toward resolution by motion,
settlement, or trial.”); see also Fed. R. Civ.
P. 1 (stating that the Federal Rules of Civil Procedure
“should be construed and administered to secure the
just, speedy, and inexpensive determination of every action
and proceeding”). In turn, counsel must collaborate
with the court “in fashioning workable programmatic
procedures” and cooperate with these procedures
thereafter. In re Phenylpropanolamine, 460 F.3d at
1231-32. Pretrial orders-and the parties' compliance with
those orders and the deadlines set forth therein-“are
the engine that drives disposition on the merits.”
Id. at 1232. A “willingness to resort to
sanctions” in the event of ...