Opinion
Civil Action No. 20-431 (FLW)(DEA)
2022-01-12
Rebecca DANDY, Plaintiff, v. ETHICON WOMEN'S HEALTH AND UROLOGY, et al., Defendants.
Benny C. Martin, Martin Baughman PLLC, Dallas, TX, J. Bradley McDermott, Laura A. Feldman, Feldman & Pinto, Philadelphia, PA, for Plaintiff. Diana Katz Gerstel, Kelly S. Crawford, Maha Munayyer Kabbash, Pauline M. Tarife, Riker Danzig Scherer Hyland & Perretti LLP, Morristown, NJ, for Defendants Ethicon Inc., Johnson & Johnson.
Benny C. Martin, Martin Baughman PLLC, Dallas, TX, J. Bradley McDermott, Laura A. Feldman, Feldman & Pinto, Philadelphia, PA, for Plaintiff.
Diana Katz Gerstel, Kelly S. Crawford, Maha Munayyer Kabbash, Pauline M. Tarife, Riker Danzig Scherer Hyland & Perretti LLP, Morristown, NJ, for Defendants Ethicon Inc., Johnson & Johnson.
MEMORANDUM & ORDER
DOUGLAS E. ARPERT, United States Magistrate Judge
This matter comes before the Court on a motion by Defendants Ethicon, Inc. and Johnson & Johnson (together "Defendants") to strike the supplemental report of Plaintiff's expert, Dr. Jimmy Mays. The Court held oral argument October 27, 2021. For the reasons below, Defendants’ motion is granted.
I. Background
This matter was originally part of the Ethicon MDL in Southern District of West Virginia, U.S. District Judge Joseph R. Goodwin presiding. On August 7, 2018, by agreement of the parties, Defendants were dismissed from that action without prejudice. Plaintiffs refiled this action on June 6, 2019, in the Eastern District of Pennsylvania, and it was later transferred to this District.
Under the applicable scheduling order in this case, Plaintiff's expert reports were to be served by March 19, 2021. ECF No. 51. Plaintiff timely served her disclosures, adopting the MDL expert reports of Dr. Mays. Defendants timely served their responsive expert disclosures and reports on April 30, 2021. Plaintiff thereafter served "supplemental" expert disclosures on June 9, 2021, purportedly in accordance with Rule 26(e). This motion followed.
Defendants argue that Dr. Mays’ "supplement" is not a permissible supplement under Rule 26(e), but rather it is a new expert report that was served late. They contend that the report contains new opinions based on information available to Dr. Mays at the time of his original report. According to Defendants, these new opinions are designed to address the deficiencies in Dr. Mays’ original report that were identified by Defendants.
Specifically, Defendants maintain that Dr. Mays’ late report includes three new opinions. First, they note that Dr. Mays addresses additional scientific literature bolstering his original opinions about polypropylene as a permanent implant. Second, Dr. Mays opines on dozens of internal Ethicon documents about the in vivo properties of polypropylene. Those documents were produced in the MDL between 2011-2017, years before Plaintiff's original expert disclosure deadline. Third, Dr. Mays identifies "polyethylene and PVDF [as] safer alternatives to polypropylene as a choice of material for permanent pelvic implant," but Defendants contend that all of the sources cited in support of this opinion were available years, if not decades, before Plaintiff's March 2021 expert deadline.
Defendants further argue that Plaintiff cannot show substantial justification or harmlessness for the late opinions as required under Rule 37. Factors that Defendant contend weigh in favor of striking the report are: (1) Plaintiff did not seek leave of court or consult Defendants about the late opinions; (2) there is prejudice to Defendants that is not easily mitigated; (3) allowing the supplement would disrupt the order and efficiency of the case; (4) Plaintiff has failed to justify the delayed disclosure; and (5) the importance of the testimony is not critical--exclusion will not terminate the case.
In response, Plaintiff contends Dr. Mays’ report was timely supplemented pursuant to Rule 26(e). As to timeliness, Plaintiff notes that the Rule requires that any supplement to an expert report must be served "by the time the party's pretrial disclosures under Rule 26(a)(3) are due", which is at least 30 days before trial. As Plaintiff points out, no trial date has been set in this matter.
According to Plaintiff, Dr. Mays’ report was "incomplete" prior to his supplementation, in that it did not specifically reference a proposed safer alternative material--polyvinylidene fluoride--to the polypropylene utilized in the product at issue in this case. Plaintiff asserts that Dr. Mays’ supplemental report serves to specifically address New Jersey state law regarding products liability. Also, Plaintiff states that Dr. Mays took into account new information in coming to his safer alternative design conclusions, specifically referring to a 2019 article by V. H. Eisenberg, which was not published until after Dr. Mays completed his original report for the MDL in 2017.
In their summary judgment motion (filed after the instant motion), Defendants argue that Michigan law applies. Which state law applies, however, is not substantially relevant to the instant decision.
If the Court were to find the supplementation untimely, Plaintiff argues that the Court should find that the untimely supplement was substantially justified and harmless under Rule 37. Plaintiff contends that "a minor supplement" to an expert's report cannot be said to be prejudicial or disruptive to the proceedings where there is no trial date and no surprise. Plaintiff maintains that the supplemental report is not being offered in bad faith, but in a good faith effort to provide critical evidence necessary to prepare Plaintiff's case for trial in compliance with New Jersey law.
Last, Plaintiff asks, in the alternative, for leave to supplement her expert report. Plaintiff states that she would agree to an extension of the expert discovery deadline and would make Dr. Mays available for deposition (at Plaintiff's sole cost) to accommodate this leave, so that Defendants would not be prejudiced by this supplementation.
In reply to Plaintiff's argument that Dr. Mays's supplement was necessary for this case because of recent, unique New Jersey law, Defendants note that "the law Plaintiff cites is neither recent nor unique to New Jersey." In fact, Defendants note that the report does not refer to New Jersey law and the same "supplemental" report by Dr. Mays was first served in an Ohio case (Olszeski v. Ethicon , No. 19-01787 (N.D. Ohio)) on April 15, 2021, and then served in cases in other states: Oxendine v. Ethicon, No. 20-529 (M.D.N.C.) and Robinson v. Ethicon , No. 20-3760 (S.D. Tex.).
After the briefing for this motion was completed, the Court in Robinson issued a decision striking Dr. Mays’ supplemental report. That decision is discussed infra.
Defendants argue that the Court's scheduling order required Plaintiff to disclose all expert opinions by March 19, 2021. Plaintiff chose to serve the general causation reports Dr. Mays prepared in the MDL instead of serving the reports including the opinions she now alleges New Jersey law requires. Defendants contend that there is no excuse for Dr. Mays's omission in his original report of any opinions he might have held about safer alternative designs or Ethicon documents that had been produced to Plaintiff.
Defendants also point out that Dr. Mays could have included safer alternative design opinions in his original MDL reports and could have included them in the report served in March 2021. Indeed, Dr. Mays's supplemental report cites over thirty-five articles for this new alternative design opinion, all but one of which predates his original 2017 report. The single post-2017 article is cited once in his later 18-page report--in a string cite with a 2015 article. Defendants further note that Plaintiff offers no justification for Dr. Mays's new reliance on previously produced Ethicon documents about the in vivo properties of polypropylene.
Finally, Defendants argue that Plaintiff fails to justify her delay or to establish that it was harmless under Rule 37 and has not established that good cause exists to grant Plaintiff leave to file a supplemental expert report.
II. Legal Standards
Under Federal Rule of Civil Procedure 26(a)(2), expert reports must contain "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B). The Rule, however, also allows parties to "supplement these disclosures when required under Rule 26(e)." Fed. R. Civ. P. 26(a)(2)(E).
Rule 26(e) requires parties to supplement disclosures "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." Fed. R. Civ. P. 26(e)(1)(A). Under Rule 26(e), the "party's duty to supplement [an expert report] extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due." Fed. R. Civ. P. 26(e)(2). The pretrial disclosures under Rule 26(a)(3) are due, unless otherwise ordered by the Court, thirty days before trial. Fed. R. Civ. P. 26(a)(3)(B).
"Courts have repeatedly emphasized the limited scope of supplementation permitted by Rule 26(e) ; such supplementation is proper only for the narrow purpose of correcting inaccuracies or adding information that was not available at the time of the initial report." Ezaki Glico Kabushiki Kaisha v. Lotte Int'l Am. Corp. , No. 15-5477, 2019 WL 581544, at *3 (D.N.J. Feb. 13, 2019) " Rule 26(e) is not an avenue to correct failures of omission because the expert did an inadequate or incomplete preparation, add new opinions, or deepen or strengthen existing opinions." Id.
Under Rule 37(c)(1), if "a party fails to provide information 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 trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). The Court may, in addition to or instead of this sanction, order payment of expenses and fees, inform the jury of the party's failure, or impose any other appropriate sanctions. Id.
The Third Circuit has identified several factors for district courts to weigh when considering whether to strike an untimely or improper expert disclosure: (1) the surprise or prejudice to the moving party; (2) the ability of the moving party to cure any such prejudice; (3) the extent to which allowing the testimony would disrupt the order and efficiency of trial; (4) bad faith or willfulness in failing to comply with the court's order; and (5) the importance of the testimony sought to be excluded. See Nicholas v. Pa. State Univ. , 227 F.3d 133, 148 (3d Cir. 2000) ; Konstantopoulos v. Westvaco Corp. , 112 F.3d 710, 719 (3d Cir. 1997).
III. Analysis
After this motion was completely briefed, Defendants provided the Court with a copy of a decision in the matter of Robinson v. Ethicon 20-3760 (S.D. Tex.), which addressed virtually the same issues raised in the instant motion. At issue in Robinson were two supplemental expert reports, one of which was Dr. Mays’ supplemental report. The arguments presented to the Robinson court were similar to the arguments here.
The Robinson court first examined whether the reports were timely and proper supplements. As to timeliness, the court rejected Robinson's argument that the supplements were timely because they were made before pretrial disclosures were due. While recognizing that under Rule 26(e)(2) supplements must be filed before the pretrial disclosures are due, the court stated, however, that the Rule "applies to additions or changes to the original opinions, not entirely new opinions." Robinson at 8. Turning to whether the report was a proper supplement, the court examined Robinson's argument that she was providing a general overview in the expert reports in the MDL and that it was necessary to supplement with opinions related to state-specific law when the case was sent to a Texas court. The court rejected this argument. First, the court noted that the MDL judge sent the case back within the direction that the case was ready for trial "immediately" and "without reopening discovery".
Second, the court stated that the MDL scheduling order does not indicate that the expert deadline applies only to general opinions and that state-specific opinions should be reserved until later. The court was "unconvinced that the procedures in the MDL court required Robinson to wait to file expert opinions relating to state specific claims," noting that "[t]hese opinions were subject to the same expert report deadline as the general expert opinions." Id.
Third, to the extent Robinson did not anticipate at the time she filed the original reports that the case would be returned to Texas and her experts might need to address Texas law, the Court found that she should have. The Court found that if the case had remained with the MDL Court, it is almost certain that Texas law would have been applied.
The Robinson court also was not persuaded by Robinson's arguments that Dr. Mays’ supplemental report relied on new information that was unavailable at the time of the earlier report. This "new" information is the same 2019 study cited by Plaintiff here. The court noted that "the fact that the 2019 study is not the only study supporting the statement for which it is cited calls into question how ‘new’ the information for which Dr. Mays cites the 2019 study really is; so does the fact that the ‘new’ study was published in 2019 and it is now 2021." The Court found that "[i]f the 2019 study indeed provided new scientific information that had a[n] impact on Mays's and Galloway's opinions, then waiting two years to provide this information to the opposing party is more akin to gamesmanship than timely supplementation."
Finally, the court rejected the implication by Robinson that the Texas law requirement that requires a showing of alternative designs rather than alternative procedures is "new", finding instead that the law was well established. In conclusion, the court found that Robinson's supplemental opinions were not proper supplemental opinions and were provided outside of the deadline set by the scheduling order.
The Robinson court then turned to the question of whether the delay was substantially justified and harmless. The court examined the applicable factors and found while the witnesses were important to the Plaintiff, the balance of the remaining factors weighed against Plaintiff. The court pointed to the following: (1) the purpose of an MDL is to increase efficiency and Robinson's strategy of holding these opinions until discovery was complete and the case was remanded is contrary to that purpose; (2) Defendants will be prejudiced if the court allows the late supplement because they have already relied on the original expert reports to file the motion for partial summary judgment, twice, and moreover, it is unfair to delay the case after the case was remanded as being ready for trial; (3) the MDL judge remanded the case with a warning not to reopen discovery, and allowing these new opinions would result in additional discovery and additional delay. Ultimately, the court concluded that Robinson's failure to provide these opinions in the first instance was not substantially justified and harmless.
While the Robinson case is in somewhat of a different procedural posture, it is instructive here. The first question is whether Plaintiff's "supplement" was proper and timely. It appears that it is neither. This Court finds, like the Robinson court, that the report offers "new" opinions and not simply changes to previous ones. As such, although under Rule 26(e)(2) supplements must be filed before the pretrial disclosures are due, that Rule would not be applicable here.
This Court also finds, again consistent with the Robinson court, that the "new" report is also not a proper supplemental opinion, as much of it is based on authority that was available prior to Plaintiff's March 2021 disclosure deadline. Despite calling the June 9, 2021 report a "supplement" and implying that it is based on new information, it appears to be neither. The report offers three new opinions, citing materials that were all available prior to the March 2021 deadline in this case. The first, which addresses additional scientific literature bolstering Dr. Mays’ original opinions about polypropylene as a permanent vaginal implant, primarily relies on a publication from 2020. The second opines on dozens of internal Ethicon documents which were produced to Plaintiff in the MDL between 2011 and 2017. The third identifies "polyethylene and PVDF [as] safer alternatives to polypropylene as a choice of material for permanent pelvic implant," and each source cited was available years before Plaintiff's March 2021 expert deadline.
Plaintiff points to a 2019 study which she says was not available when Dr. Mays’ original report was prepared for the MDL (in 2017). There are two flaws with this. First, Plaintiff's expert deadline in this case was March 2021; that Plaintiff chose to rely on a much earlier-prepared report does not open the door to supplementation with material prior to the expert deadline in this case. Second, as the Robinson Court noted, "[i]f the 2019 study indeed provided new scientific information that had a[n] impact on Mays's ... opinions, then waiting two years to provide this information to the opposing party is more akin to gamesmanship than timely supplementation."
Plaintiff's argument that it was necessary to supplement with opinions related to New Jersey-specific law are also rejected. Indeed, the scheduling order here did not provide for a two-tier expert disclosure (i.e. , general then state specific). There is nothing about this case that would dictate that the purported state-specific opinions should not have been subject to the same expert report deadline.
Further, as in Robinson , to the extent that Plaintiff did not anticipate at the time she served the original reports that her expert might need to address the particulars of New Jersey law, Plaintiff should have. It appears that New Jersey has long required proof of a safer alternative design of the product to maintain a design defect claim. See , e.g. , Cavanaugh v. Skil Corp. , 164 N.J. 1, 6, 751 A.2d 518 (2000) (a plaintiff asserting a design defect claim must show, as part of her prima facie case, the availability of "a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff's harm.").
Finding that the "supplement" is improper and untimely, the Court must determine whether to exclude the report. The relevant factors are: (1) the surprise or prejudice to the moving party; (2) the ability of the moving party to cure any such prejudice; (3) the extent to which allowing the testimony would disrupt the order and efficiency of trial; (4) bad faith or willfulness in failing to comply with the Court's order; and (5) the importance of the testimony sought to be excluded.
As to the first three factors, there would be prejudice to Defendants in that Defendants experts have already reviewed and responded to the original report. Allowing these new opinions would result in expired deadlines being reopened, additional discovery, and delay. Further, Defendants have already relied upon the original expert reports in filing a motion for summary judgment, which is presently pending.
As to the fourth factor, while perhaps not rising to the level of bad faith, Plaintiff has provided little to no justification for failing to comply with the scheduling order. The expert deadline was March 19, 2021, and Plaintiff served Dr. Mays’ original report that day. The "supplemental" report was signed and dated March 20, 2021. Plaintiff must have known on March 19, 2021 that the supplement was forthcoming, but did not request an extension, did not ask leave of Court to supplement, and waited until June 2021 to serve it.
The fifth factor may weigh somewhat in favor of Plaintiff, but not significantly enough to outweigh the other factors. Overall, the Court finds that the motion to strike the expert report should be granted. Further, to the extent that Plaintiff has requested leave to supplement their expert report, Plaintiff has not established good cause to do so.
IV. Conclusion and Order
This matter comes before the Court a motion by Defendants to strike the supplemental report of Plaintiff's expert, Dr. Jimmy Mays. The Court has carefully considered the parties’ submissions and the argument of counsel. For the reasons above,
IT IS on this 12th day of January 2021
ORDERED that Plaintiff's motion to strike the supplemental expert report of Dr. Jimmy Mays [ECF No. 63] is GRANTED.