As lawyers who usually represent defendants in serial product liability litigation, we like rules. We like deadlines. We like thorough expert discovery. While we have been known to seek some discovery extensions and have slogged through cases in jurisdictions where expert discovery just means that the parties exchange reports, we tend to think that our plaintiffs prefer no rules and deadlines for experts—or having rules and deadlines that are not enforced. In serial litigation, where you can see the same expert show up with an “insert plaintiff name here” approach to reports and testimony, there can be a temptation to abbreviate expert discovery. After all, sometimes clients prefer to save money and lawyers prefer not to waste time. Grote v. Wright Med. Group, Inc., 12-CV-2002-LRR, 2013 U.S. Dist. LEXIS 124693 (N.D. Iowa Aug. 30, 2013), seems to us like a case where the plaintiff tried to take advantage of these preferences and got called on it, at least somewhat. It also may be the first time we have read a decision this long—21 of those Lexis * pages—that only cites a single case. It definitely taught us that a response to a motion is referred to as a “Resistance” in some courts.
The rules being flaunted here are well known. Rule 26(a)(2)(B) requires disclosure of “all opinions the [expert] will express and the basis and reasons for them” at the time directed by the court and Rule 26(e)(1) requires expert and other disclosures to be supplemented when the party learns they are materially incomplete and not otherwise disclosed. In addition, Rule 37(c)(1) provides that witnesses whose disclosures were not properly made or supplemented should be excluded or limited unless “the failure was substantially justified or is harmless”; it also authorizes the imposition of costs as a sanction “[i]n addition to or instead of” the exclusion/limitation. The court held that the each of the three affidavits disclosed new information, including new claims of qualifications for Truman. The court also held that the plaintiff failed to timely supplement the reports as to all the new information, noting that “[a]llowing a party to supplement its expert reports after the discovery deadline, without recourse, would be unfair to the opposing party and create an undue burden on the court.” Id. at *15. This is hardly a surprising conclusion for supplementation that occurred with a response to a summary judgment motion. The court also found that late disclosures were also not harmless, rejecting the general argument that defendant could just cross on the full range of opinions at trial and the specific argument that Truman could expand her claims of qualifications for her opinions because defendant had not moved to exclude those opinions in prior cases. So, of course, the court ruled that it would consider all the untimely disclosed information from the three affidavits in ruling on Daubert motions and motions for summary judgment. Huh?
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a
witness 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 a trial, unless the failure was
substantially justified or is harmless. In addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)
If the plaintiff was pulling a bait-and-switch by inducing an agreement not to depose experts who had undisclosed opinions and then disclosing those opinions later, then there is no reason to reward the plaintiff’s game. If the plaintiff only realized that the original expert reports were lacking on the last day of discovery and when responding to summary judgment motions, then he could avoid exclusion by showing that his actions were justified—something the court here found was not the case. Summary judgment is predicated on an absence of disputes of material facts after a full opportunity for relevant discovery, which is why summary judgment motions are due after expert discovery closes and Rule 56(d) provides a mechanism for further discovery under special circumstances. We suspect that what went on here was your basic baby splitting. The baby splitting went right down to allowing the depositions of the experts to be by telephone only, certainly less than defendant was entitled to if the experts’ full opinions had been disclosed on time. Presumably the decision to consider the affidavits will mean the court will also consider the deposition testimony on them. Hopefully, the leniency with plaintiff thus far is just a step toward granting summary judgment. Or that defendants’ costs motions will be sufficient to deter plaintiffs from playing fast and loose with the expert deadlines next time.