United States District Court, S.D. West Virginia, Charleston Division
IN RE ETHICON, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO Wave 3 s identified in Exhibit A attached hereto
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. 2883]. Ethicon filed its Response [ECF No. 3022]. The
plaintiffs' Motion requests exclusion of Dr. Thames's
second supplemental report 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 in part and the second supplemental report
is STRICKEN as to the cases in Exhibit A.Insofar as the
plaintiffs request additional time for Daubert
briefing, the Motion is DENIED.
to the Wave 3 Docket Control Order [ECF No. 1824]
(“Docket Control Order”), Ethicon was required to
disclose its experts (and their opinions) on or before August
2, 2016. The parties agreed to extend this disclosure
deadline to August 8, 2016. Docket Control Order 1; Mot.
Strike 1 n.1 [ECF No. 2883]. Discovery closed on August 30,
2016. Id. Further, all Daubert briefing was
to be completed by October 17, 2016, with Daubert
motions due September 19, 2016. Id. 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. C, at 1 [ECF No. 2883-3] (“First Supplemental
Report”). Ethicon timely disclosed Dr. Thames as an
expert, along with his initial expert report and First
Supplemental Report on August 8, 2016. Ethicon served the
Second Supplemental Report with the formal conclusions on
September 28, 2016. See Mot. Strike Ex. D, at 1 [ECF
No. 2883-4] (“Second Supplemental Report”). The
Second Supplemental Report was served after the disclosure
deadline, motion deadline, and close of discovery.
plaintiffs argue for exclusion under Rule 37(c) on the
grounds that the Second Supplemental Report was untimely
served. Mot. Strike 2-3. Ethicon does not dispute that the
report was untimely served and responds that its delayed
disclosure was 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.
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 disclosure of
Dr. Thames's Second Supplemental Report was 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 First
and Second Supplemental Reports are atonement for initial
inadequacies or incomplete preparation. However, I must also
evaluate whether the late disclosure of the Second
Supplemental Report was nevertheless harmless before I can
determine whether sanctions are appropriate.
plaintiffs' arguments do not support a finding of
surprise. Although the plaintiff attacked the adequacy of Dr.
Thames's cleaning protocol in their Daubert
motion, they had reason to suspect that the Second
Supplemental Report would arrive late because the First
Supplemental Report put plaintiffs on notice. See
First Supplemental Report at 12 (“[T]hat data will be
reported when complete.”). Nevertheless, both parties
have agreed to allow additional time for Daubert
briefing should the reports not be excluded. Thus, the
ability to cure any surprise weighs in favor of permitting
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 noncompliance can ensure
that the engine remains in tune, resulting in better
administration of the vehicle of multidistrict litigation.
Id.; see also Freeman v. Wyeth, 764 F.3d
806, 810 (8th Cir. 2014) (“The MDL judge must be given
‘greater discretion' to create and enforce
deadlines in order to administrate the litigation
effectively. This necessarily includes the power to dismiss
cases where litigants do not follow the court's
fourth factor, importance of the testimony, also weighs in
favor of striking the reports. The Second Supplemental Report
is twelve pages long, whereas the original report is 132
pages long. The testimony contained in the reports does not
go to the heart of the case, but instead serves only to
enforce the reliability of Dr. Thames's cleaning