Last Monday Duke won its 5th national championship. Winning never gets old. Whether it’s winning a college basketball national championship or a Daubert ruling in federal court. Yes, that was a lame segue included solely for the purpose of mentioning that Duke won the national championship game. Back to Daubert… Sometimes when an expert is properly excluded (thereby presumably ending the case), a court will bend the rules and allow some limited time to find a replacement expert. But should a court do so? And if so, how much time should it allow the plaintiff to find a suitable expert?

The Eleventh Circuit recently took on those questions in a product liability suit involving a medical device. Payne v. Bard, Inc., 2015 WL 1435314 (11th Cir. Mar. 31, 2015). The plaintiff allegedly suffered from deep-vein thrombosis and had a device called a G2 filter implanted to prevent pulmonary embolisms. Soon thereafter, scans showed that the device had perforated the plaintiff’s vein and he later suffered a pulmonary embolism. The device fractured and doctors were unable to remove it. In support of the claims for design defect and failure to warn, the plaintiff sought to introduce the testimony of an expert witness, Dr. Hetzel, to establish that the G2 Filter implanted was defective and that the warnings and labels were inadequate. The district court ruled that Dr. Hetzel was not qualified to offer those opinions, but gave the plaintiff five days to produce a new expert report. After the plaintiff failed to produce one within the five day dealine, the district court granted summary judgment. The Eleventh Circuit affirmed.

The opinion is noteworthy because the expert was excluded under Daubert for lack of qualifications, which is a somewhat rare holding. Generally, courts stretch to find that an expert is duly qualified. Here, however, the district court ruled that, as an initial matter, Dr. Hetzel could not testify on medical issues because he only had a Ph.D. (in organic chemistry), not an M.D. And as to his opinions on design, the district court concluded he simply lacked any relevant experience with the device to opine on its design, noting that his “sole experience working with [such a device] ‘occurred more than twenty years ago, lasted only three to six months, and was only ‘conceptual.’” In addition, the expert had never designed, tested, or manufactured such a device and authored no articles on the topic. As a result, the district court concluded that plaintiff “failed to establish a sufficient nexus between Dr. Hetzel’s ‘limited and dated’ experience with the device and the opinions he offered in this case.”

After the district court excluded Dr. Hetzel’s testimony, the district court granted the plaintiff’s motion to reopen the deadline for expert disclosures so he could identify a replacement expert witness. The district court granted the motion, but only for the limited purpose of allowing the plaintiff to disclose a new report from a particular witness who had previously been disclosed as a “rebuttal” witness. The district court explained that “it appears that Dr. Asch-who is well-known to Defendants -might be used as an expert in Plaintiffs’ case-in-chief without undue delay of the proceedings or prejudice to Defendants.” The plaintiff was given five days from the date of the district court’s order to complete their disclosure and to notify the court about whether Dr. Asch would testify during the plaintiff’s case-in-chief. But the five days came and went and the plaintiff informed the court that Dr. Asch would not be testifying. The court then granted summary judgment.

The Eleventh Circuit held that the district court did not abuse its discretion in imposing a five-day deadline as the plaintiff could not show both good cause and excusable neglect under Fed. R. Civ. P. 6(b)(1) to warrant an extension beyond the five days. “The district court abused no discretion in granting Plaintiffs an extension that was limited both in time and in scope. The district court had already extended several of its scheduling deadlines, including granting the parties a 60–day extension for the disclosure of expert reports. Allowing [the plaintiff] to identify and to disclose an entirely new expert so late in the proceedings would have likely resulted in substantial delay to the judicial proceedings and in prejudice to Defendants. And, having an expert witness stricken under Daubert, in and of itself, is insufficient to warrant an extension.”

Query whether it was fair to even permit a five day window to cure this expert deficiency, but at the least Florida district court and Eleventh Circuit again put meat on the qualifications bones under Daubert.

Ps Congratulations Duke.