United States District Court, S.D. West Virginia, Charleston Division
IN RE C. R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION
C. R. Bard, Inc. Civil Action No. 2:16-cv-06318 THIS DOCUMENT RELATES TO Bess, et al.
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the defendant, C.R. Bard, Inc.'s,
Motion to Strike and Request for Emergency Hearing. [ECF No.
39]. In this motion, the defendant asks the court to: (1)
strike Dr. Ostergard's supplemental reports, (2) hold Dr.
Ostergard's deposition in abeyance, and (3) hold an
emergency hearing on the matter. [ECF No. 39]. The plaintiffs
filed a Consolidated Response, [ECF No. 41] and the
defendants filed a Reply. [ECF No. 42]. For the reasons
detailed below, the defendant's motion is
defendant filed identical motions in 14 individual cases in
this MDL. All plaintiffs at issue are in Wave 4 and Wave 5.
Pursuant to Pretrial Order # 236, Wave 4 plaintiffs were
required to disclose their experts by May 12, 2017. Pursuant
to Pretrial Order # 244, Wave 5 plaintiffs were required to
disclose their experts by June 12, 2017. The plaintiffs
disclosed urogynecologist Donald Ostergard, M.D., as both a
general causation expert and as a case-specific expert before
the dates required. They also timely served Dr.
Ostergard's reports disclosing his opinions and the bases
thereof. Dr. Ostergard's deposition was originally
scheduled to occur from July 26-28, 2017. The deposition was
rescheduled for Aug. 29-31, 2017, and then later re-scheduled
again for August 29-31, 2017 to accommodate a health issue
Dr. Ostergard was experiencing.
Thursday, August 24, 2017, five days before Dr.
Ostergard's deposition was scheduled to take place,
plaintiffs' counsel informed defense counsel that Dr.
Ostergard was preparing a supplemental report which would be
sent over later in the day. A few hours later,
plaintiffs' counsel served fourteen supplemental reports
to defense counsel. The supplemental reports were
substantially similar to the original reports served, but had
additional information including: (1) new depositions that
Dr. Ostergard was relying on and summaries of the deposition
information he was relying on; (2) additional facts regarding
plaintiffs' symptoms and treatment; and (3) additional
opinions regarding causation. After the plaintiffs'
counsel sent the supplemental reports to the defendant, but
before the defendant filed this motion, plaintiffs'
counsel and defense counsel agreed to move Dr.
Ostergard's deposition to October 20-22, 2017 to give
defense counsel more time to prepare.
defendant argues that the supplemental reports are not proper
supplements under Federal Rules of Civil Procedure Rule
26(e), and instead are entirely new reports that are
untimely. The defendant moved to strike the reports as
untimely, and requested an emergency hearing to discuss the
matter. The defendant further requested that Dr.
Ostergard's deposition be held in abeyance until the
court ruled on the motion.
Federal Rules of Civil Procedure require that a party
“disclose to the other parties the identity of any
witness it may use at trial.” Fed.R.Civ.P. 26(a)(2)(A).
“Unless otherwise stipulated or ordered by the court,
this disclosure must be accompanied by a written
report-prepared and signed by the witness-if the witness is
one retained or specially employed to provide expert
testimony in the case.” Fed.R.Civ.P. 26(a)(2)(B).
Disclosures of expert testimony are to be made “at the
times and in the sequence that the court orders.”
Fed.R.Civ.P. 26(a)(2)(D). Parties who make a disclosure under
must supplement or correct its disclosure or response: (A) in
a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing; or (B) as ordered by the
Fed. R. Civ. P. 26(e)(1). Rule 37 of the Federal Rules of
Civil Procedures provides for sanctions in the event a party
fails to properly disclose or supplement a disclosure.
distinguish true supplementation (e.g., correcting
inadvertent errors or omissions) from gamesmanship, and have
therefore repeatedly rejected attempts to avert summary
judgment by supplementing an expert report with a new and
improved expert report.” Kanawha-Gauley Coal &
Coke Co. v. Pittston Minerals Group, Inc., No.
2:09-cv-01278, 2011 WL 320909, at *2 (S.D. W.Va. Jan. 28,
2011) (quoting Gallagher v. S. Source Packaging,
LLC, 568 F.Supp.2d 624, 631 (E.D. N.C. 2008)). Thus, the
first question is whether the plaintiffs' supplemental
reports are true supplementation or gamesmanship and delay.
defendant's supplemental disclosures are true
supplementation then they are timely. If the reports are not
true supplementation, then the plaintiff may not use the new
information in the reports on a motion, at a hearing, or at
trial, unless the failure was substantially justified or is
harmless. Fed.R.Civ.P. 37(c)(1); Pittston Minerals Group,
Inc., No. 2:09-cv-01278, 2011 WL 320909, at *2 (citing
S. States Rack and Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 695-96 (4th Cir. 2003)). “The
court has ‘broad discretion' to determine whether
an untimely disclosure is substantially justified or
harmless.” Mullins et al. v. Ethicon, Inc.,
No. 2:12-cv-02952, 2017 WL 455938, at *2 (S.D. W.Va. Feb. 2,
2017) (quoting Gallagher, 568 F.Supp.2d at 631). The
Fourth Circuit has held that:
in exercising its broad discretion to determine whether a
nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion analysis,
a district court should be guided by the following factors:
(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 ...