United States District Court, S.D. West Virginia, Charleston Division
IN RE C. R. BARD, INC., PELVIC REPAIR SYSTEM PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: CAROLYN D. CUFFEE, ET AL No. 2:14-CV-02528
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Plaintiffs' Motion for Leave to Serve
Plaintiffs' Supplemental Report of Dr. Bruce Rosenzweig
("Pl.'s Mot. Leave") [ECF No. 29]. The
defendant filed a Response [ECF No. 30], and the plaintiffs
filed a Reply [ECF No. 31]. For the reasons detailed below,
the plaintiffs' motion is GRANTED.
12, 2017, the last day scheduled to serve expert reports, the
plaintiffs served on the defendants the expert report of
Bruce Rosenzweig, M.D. Pl.'s Mot. Leave 1. On August 2,
2017, the plaintiffs filed this motion to supplement Dr.
Rosenzweig's report. Id. The supplemental report
adds the fact that Dr. Rosenzweig reviewed the deposition
transcripts of Dr. William K. Rand and Dr. John L. Crockford
when drawing his conclusions. Id. Dr.
Rosenzweig's supplemental report expresses this by
listing "Rand, III, M.D., William K. - dated
06/29/2017" and "Crockford, M.D., Jon L. - dated
06/09/2017" under the "deposition transcript"
section of the reliance list in his report. Id. Dr.
Crockford was deposed on June 9, 2017. Id. at 2. The
final draft of the transcript of his deposition became
available on June 15, 2017. Def's Opp'n to Pl.'s
Mot. 3 ("Def's Opp'n") [ECF No. 30]. Dr.
Rand was deposed on June 29, 2017, and the final draft of the
transcript of his deposition became available on July 10,
2017. Mat 2-3.
Rosenzweig "has no wish to alter the opinions within his
report, " as he believes that his opinions are still
fully supported. Id. at 2. Instead, he only wishes
to supplement the list of materials he relied on.
Id. The plaintiffs argue that this supplementation
is proper under Federal Rules of Civil Procedure 26(e).
Pl.'s Reply to Def's Opp'n to Pl.'s Mot. 2
("Pl.'s Reply") [ECF No. 31].
defendant argues that "[t]he purpose of Rule 26 would
not be served by permitting [the plaintiff] to now serve a
supplemental report, adding new bases for an expert's
opinions, at the close of discovery when the expert has
already been deposed regarding his opinions of this
case." Def's Opp'n 3. Discovery closed on August
11, 2017. Pretrial Order # 259 [ECF No. 28]. Additionally,
the defendant argues that if Dr. Rosenzweig was going to rely
on these depositions, then he should have been prepared to
discuss them at his deposition on July 9, 2017. Def's
Opp'n 4-5. Lastly, the defendant requests that, if the
court allows the supplementation, the defendant "be
permitted additional time to depose Dr. Rosenweig on the
newly added bases for his opinions." Id. at 5.
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).
R. Civ. P. 26(e) does not grant a license to supplement a
previously filed expert report because a party wants to, but
instead imposes an obligation to supplement the report when a
party discovers the information it has disclosed is
incomplete or incorrect." Coles v. Perry, 217
F.R.D. 1, 4 (D.C. 2003); Bresler v. Wilmington Trust
Co., 855 F.3d 178, 212 (4th Cir. 2017) (citing
Mineba Co., LTD v. Papst, et al., 231 F.R.D. 3,
(D.C. 2005)) ("Rule 26(e) 'permits supplemental
reports only for the narrow purpose of correcting
inaccuracies or adding information that was not available at
the time of the initial report.'"). "When
considering supplemental information provided under Rule
26(e) the issues are (1) does the supplemental information
correspond to a prior Rule 26(a) disclosure, and (2) was the
supplemental information available at the time set for the
initial disclosure." Carrillo v. B&J Andrews
Enters., LLC, No. 2:11-cv-01450-rcj-cwh, 2013 WL 420401,
at *4 (D. Nev. Jan. 31, 2013).
need not be made as each new item of information is learned
but should be made at appropriate intervals during the
discovery period, and with special promptness as the trial
date approaches." EQT Gathering, LLC v. Marker,
No. 2:13-cv-08059, 2015 WL 9165960, at *6 (S.D. W.Va. Dec.
16, 2015) (citing Fed.R.Civ.P. 26(e) advisory committee's
note to 1993 amendment.). "The timing of supplementation
is best ...