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Ethicon, INC., Pelvic Repair System Products Liability Litigation

United States District Court, S.D. West Virginia, Charleston Division

March 28, 2017




         Pending 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. 2880]. Ethicon filed its Response [ECF No. 3018]. The plaintiffs' Motion requests exclusion of Dr. Thames's two supplemental reports but also requests the court to, 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 A.[1]

         I. Background

         Pursuant to the Fourth Amended Wave 1 Docket Control Order [ECF No. 2314] (“Docket Control Order”), Ethicon was required to disclose its experts (and their opinions) on or before March 2, 2016. Docket Control Order 1. Discovery closed on April 1, 2016. Id. Further, all Daubert briefing was to be completed by May 16, 2016. Id. Ethicon timely disclosed Dr. Thames as an expert, along with his initial expert report. In the plaintiffs' Daubert motion on Dr. Thames, they questioned the reliability 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. 2880-1] (“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. 2880-2] (“Second Supplemental Report”). Both reports were served after the disclosure deadline, briefing deadline, and close of discovery.

         The plaintiffs argue for exclusion under Rule 37(c) on the grounds that the supplemental reports were untimely served.[2] Mot. Strike 2-3. Ethicon 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 genera ly Resp.

         II. Analysis

         Pursuant 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.

According to the Fourth Circuit, the appropriate factors to consider in determining whether to sanction a party under Rule 37(c) are the following:

(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.

         I am 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 appropriate.

         The 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.

         I 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 ...

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