United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Ethicon, Inc. and Johnson and Johnson (collectively
“Ethicon”) seek to preclude supplemental opinions
of plaintiffs Barbara and Anton Kaiser's expert, Bruce
Rosenzweig, M.D., claiming their disclosure was tardy. [DE
196] The supplemental opinions are not new. Indeed, the
Kaisers tell me that Dr. Rosenzweig knew about them long ago.
Yet the Kaisers have not provided me any explanation for
their dilatory disclosure. Dr. Rosenzweig's supplemental
opinions will, therefore, be barred from this case.
start with some background. This action was filed on March
28, 2012 and was part of a MDL in the Southern District of
West Virginia. [DE 1.] The MDL Court transferred the case to
this Court on February 22, 2017 after discovery and
dispositive and Daubert motion practice were
complete. [DE 157.] On August 8, 2017, the Kaisers filed with
the Court a Supplemental Case Specific Rule 26 Expert Report
of Bruce Rosenzweig, M.D. [DE 194.] As a matter of course,
discovery, including expert reports, is not to be filed with
the Court, but perhaps the Kaisers chose to do so in
anticipation of the conflict to come.
transfer to this Court, the MDL Court imposed a deadline of
February 1, 2016 for Plaintiffs to disclose their experts.
Plaintiffs disclosed the case-specific report of Dr.
Rosenzweig a week late but no one seems to have squawked
about it. On March 11, 2016, Ethicon took the deposition of
Dr. Rosenzweig, and on April 1, 2016, discovery closed.
Daubert motions were filed twenty days later. The
Plaintiffs do not challenge this timeline. On August 8, 2017,
approximately a year and a half after the MDL Court's
deadline, the Kaisers filed a supplemental case-specific
report of Dr. Rosenzweig. The parties agree that the
supplemental report is identical to Dr. Rosenzweig's
original report except that it sets forth a number of
additional opinions about “safe alternative
moves to strike the supplemental report as untimely,
unjustified, and prejudicial to Ethicon. [DE 197.] The
Kaisers have three responses. First, they tell me the
opinions were already disclosed because Dr. Rosenzweig
generally adopted the opinions of another expert, Dr. Daniel
Elliot. Second, they say there's no harm here because Dr.
Rosenzweig's opinion on safer alternative designs was
disclosed in two different Prolift cases. In other
words, according to the Kaisers, Ethicon was well aware of
the opinions. [DE 201 at 3-9.] Finally, the Kaisers argue
that the supplemental report should be allowed because
Federal Rule of Civil Procedure 26 permits this kind of
supplementation in a “timely manner.”
[Id. at 9-11.]
reports are governed by Federal Rule of Civil Procedure 26,
which requires that a party disclose the identity of any
expert witness it intends to use at trial and to submit a
written report prepared and signed by that expert.
NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776,
785 (7th Cir. 2000). This disclosure must be made at the time
the court orders or as stipulated to by the parties.
Fed.R.Civ.P. 26(a)(2)(D). The written expert report must
contain, in relevant part: “(i) a complete statement of
all opinions the witness will express and the basis and
reasons for them; (ii) facts or data considered by the
witness in forming them; [and] (iii) any exhibits that will
be used to summarize or support them.” Fed.R.Civ.P.
26(a)(2)(B)(i-iii). A party who has disclosed such an expert
report “must supplement or correct its disclosure . . .
in a timely manner if the party learns that in some material
respect the disclosure . . . is incomplete or
incorrect.” Fed.R.Civ.P. 26(e)(1)(A). These rules are
primarily designed to remove surprise from the process and to
allow for adequate trial preparation. Spearman Indus.,
Inc. v. St. Paul Fire & Marine Ins. Co., 138
F.Supp.2d 1088, 1093-94 (N.D. Ill. 2001) (citing Sherrod
v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)).
is enforced through Rule 37 which provides that a failure to
abide by Rule 26 prevents use of the information at trial,
“unless the failure was substantially justified or is
harmless.” Fed.R.Civ.P. 37(c)(1). The determination of
whether the failure to disclose new expert opinions is
“harmless or justified is left to the broad discretion
of the district court.” Westefer v. Snyder,
422 F.3d 570, 584 n.21 (7th Cir. 2005). While the Court need
not make explicit findings when determining if the failure
was substantially justified or harmless, the Court is guided
by four factors: “(1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability
of the party to cure the prejudice; (3) the likelihood of
disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier
date.” Tribble v. Evangelides, 670 F.3d 753,
670 (7th Cir. 2012).
start by noting that in the Kaisers' response to
Ethicon's motion, they provide absolutely no explanation
as to why they neglected to notify Ethicon of Dr.
Rosenzweig's new opinions before the expert disclosure
deadline set by the MDL Court and before Ethicon deposed Dr.
Rosenzweig. In fact, two of the arguments that the Kaisers
make in their response brief actually highlight the fact that
the supplement was not made in a timely matter and indicate
their potential willfulness in not disclosing the evidence at
an earlier date. Specifically, they demonstrate that, at the
time he filed his initial report, Dr. Rosenzweig had the
relevant information regarding safer alternative designs and
could have proffered his “new” opinions. However,
for some reason, he neglected to do so, and then waited a
year and a half after the expert disclosure deadline to
attempt to remedy his error. Perhaps this delay was out of
fear that the MDL Court would not allow expert reports to be
supplemented and in hopes that given my fresh perspective on
the case, I might be more lax. Regardless, given that Dr.
Rosenzweig had the relevant information a year and a half
prior to attempting to supplement his report, his
supplementation certainly was not done in a “timely
manner” pursuant to Rule 26.
Kaisers make several arguments as to why Dr. Rosenzweig's
failure to comply with the requirements of Rule 26 was either
justified or harmless. First, they argue that because, in his
initial report, Dr. Rosenzweig stated the he “reviewed,
relied upon and independently verified the MDL Prolift Expert
Report of Dr. Daniel Elliot, ” a general causation
expert, the supplemental disclosure simply gives Ethicon
notice of more specific opinions by Dr. Rosenzweig. [DE 201
at 3-7.] Dr. Rosenzweig, however, did not assert that he was
adopting Dr. Elliot's opinions; nor could he.
But that is of no matter because if Dr. Rosenzweig reviewed
Dr. Elliot's opinions on feasible alternative designs and
believed that they applied to Mrs. Kaiser's specific
case, he could have specifically included them in his initial
report back when it was first filed. Clearly he knew about
Dr. Elliot's opinions regarding feasible alternative
designs. But for whatever reason he did not include those
opinions in his report. This leads me to believe Dr.
Rosenzweig's decision not to include these opinions about
safer alternative design in his initial report was a
conscious one, thus making the later tardy disclosure, at
least in part, willful.
Kaisers also argue that Ethicon was on notice of Dr.
Rosenzweig's opinions on safer alternative design before
the supplemental report was filed because Dr. Rosenzweig
offered them in a January 2017 report in another case and
gave deposition testimony regarding them in July 2015 in yet
another case. This strikes me as a rather expansive reading
of what constitutes adequate disclosure. Surely not all
Prolift cases are alike. Safer design alternatives may be
pertinent in one case; not in another. In all events, what
this tells me is that Dr. Rosenzweig could have
included these opinions in his February 8, 2016 report in
this action but, for whatever reason, chose not to. It seems
disingenuous to argue that Ethicon was on notice of these
opinions because they were asserted in the past in other
actions, when Dr. Rosenzweig did not include them in his
report in this action and put Ethicon on notice when
he clearly was able to do so. Again, the omission appears to
be willful. And even if the omission was, at least initially,
accidental, surely the Kaisers and Dr. Rosenzweig could have
attempted to remedy it at a much earlier date instead of a
year and a half later, when the case is only months away from
more, Ethicon would be prejudiced if Dr. Rosenzweig is
permitted to supplement his opinion at this late date in the
action, more than eighteen months after the expert disclosure
deadline and more than sixteen months after the close of
discovery, with the February 26, 2018 trial date rapidly
approaching. Ethicon did not have an opportunity to address
these new opinions with Dr. Rosenzweig during his deposition,
respond to these opinions through disclosures of
Ethicon's experts, or to challenge these opinions in a
Daubert motion. If I were to permit supplementation
of Dr. Rosenzweig's report, Ethicon would need to be
permitted to depose Dr. Rosenzweig, amend its expert reports
to respond to the new evidence, file an additional
Daubert motion, and potentially be required to
produce their experts to be deposed again. This would almost
assuredly jeopardize the trial date.
summary, the MDL Court set very clear expert disclosure and
discovery deadlines and the Kaisers' own response brief
highlights the fact that Dr. Rosenzweig could have offered
his opinions on safer alternative designs before those
deadlines, yet failed to do so. Furthermore, the Kaisers
neglected to move to supplement Dr. Rosenzweig's report
while this case was before the MDL Court. Rather, they now
ask me to ignore the law of the case as established by the
MDL Court and allow them to supplement with information that
was known prior to the initial deadlines. They have failed to
give me an adequate reason to do so. Dr. Rosenzweig's
supplemental report was filed in violation of the deadline
for expert disclosures, his attempt at supplementation was
not done in a timely manner pursuant to Rule 26, and his
violation of Rule 26 is not harmless or substantially
justified. As such, the supplemental report is stricken.
Ethicon, Inc. and Johnson and Johnson's Motion to Strike
Supplemental Case Specific Rule 26 Expert Report of Bruce
Rosenzweig, M.D., DE 196, is GRANTED and Dr.