Those of us who have ever been involved in selecting expert witnesses, preparing them to testify at trial, and defending their scientific opinions in Daubert proceedings know how much effort goes into the process and how critical it is to properly develop an expert to meet Daubert admissibility standards. Failing to get an expert’s testimony admitted can mean a loss on a major issue or even on the whole case. While parties are typically held to agreed-upon or court-imposed deadlines with respect to expert issues, sometimes courts use their discretion to allow parties to present new experts after the expert deadline. In other words, sometimes courts can allow parties a “Daubert do-over” for good cause. One MDL judge has recently done just that. The case is In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL No. 2342, 2015 WL 115486 (E.D.P.A. January 7, 2015).

Plaintiffs in the Zoloft litigation allege that the antidepressant, when taken during pregnancy, causes birth defects in the children born to exposed mothers. Pursuant to the relevant scheduling orders in the case, the Plaintiffs’ Steering Committee (PSC) offered four general causation experts, all of whose opinions were excluded or limited after extensive Daubert proceedings that took place last year. In light of this, the PSC recently moved to introduce expert testimony by a fifth expert opining that in utero exposure to Zoloft can cause congenital heart defects, based on studies that were relied upon during the original Daubert proceedings, as well as various scientific studies that were not available at the time one of the previously excluded experts was preparing her report. The PSC argued that its request could be granted under FRCP 16(4)(b)(4), which allows a scheduling order to be modified for “good cause” and “with the judge’s consent”. The PSC argued in the alternative that if the court denied them an opportunity to present the fifth expert, this would constitute a discovery sanction under FRCP 37(b)(2)(B). Unsurprisingly, Defendant Pfizer objected to the PSC’s motion.

In considering the PSC’s motion, the court noted that it has considerable discretion in determining whether to allow a new expert, and that it is guided by the following five factors set out by Third Circuit case law: (1) prejudice or surprise to the opposing party; (2) the ability of the opposing party to cure the prejudice; (3) the disruption of the orderly and efficient trial of the case; (4) bad faith or willfulness; and (5) the importance of the evidence.

The court began by acknowledging that a district court is not required to “provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until [the] plaintiff ‘gets it right,'” citing a 2000 Third Circuit case, In re TMI Litig., 199 F.3d 158 (3d Cir. 2000), amending, 193 F.3d 613 (3d Cir. 2000). The court also noted, however, that district courts have “an independent responsibility for the proper management of complex litigation” and that plaintiffs need an “opportunity to be heard” on “critical issues of admissibility of expert testimony.” In other words, the court addressed the need to balance two competing concerns: efficiency and fairness, particularly in the complex landscape of a multidistrict litigation. The court cited another Third Circuit case in its reasoning: “[A] sprawling multidistrict matter such as this presents a special situation, in which the district judge must be given wide latitude with regard to case management in order to effectively achieve the goals set forth by the legislation that created the Judicial Panel on Multidistrict Litigation. . . .At the same time, efficiency must not be achieved at the expense of preventing meritorious claims from going forward.”

In considering the various factors to be weighed in balancing efficiency and fairness, the court found that although Pfizer would be prejudiced in incurring additional expense to litigate the admissibility of the new expert’s proposed testimony, that prejudice was not sufficient to outweigh the importance of the potential testimony for the PSC’s case. The court also noted that even if the expert will not ultimately be admissible under Daubert in the current litigation, he might be presented as an expert witness in other cases that might be filed in the future, so Pfizer would likely have to address his expert testimony at some point.

In granting the PSC’s motion to offer the fifth expert witness, the court was careful to note that a “Daubert do-over” would be inappropriate in situations where a party failed to present all expert witnesses in a timely fashion due to some litigation strategy. But here, the court found no bad faith on the part of the PSC. The court also noted that it might not have ruled in favor of allowing the fifth expert to be presented had the issue arisen in a context outside an MDL. This is an important point potentially limiting the scope of such discretionary allowances in the future.