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.

            In Grote, the plaintiff sued over an allegedly defective hip prosthesis and served apparently typical reports from frequent flyer liability experts.  Because these experts had been deposed before in other cases and the reports did not disclose anything new—aside from mentions of the plaintiff—the parties agreed not to depose the liability experts.  The defendant even informed the court of the agreement in an uncontested motion to extend the discovery and dispositive motions deadlines.  On the last day of discovery, when it was surely apparent that the defendant manufacturer would soon be filing Daubert motions and a motion for summary judgment, the plaintiff served supplemental reports from two of these experts, Fred Hetzel and Mari Truman.  This triggered a flurry of filings over the following two months, include a motion to strike the supplemental reports, Daubert motions on Hetzel and a Dr. Bal, a summary judgment motion, and a motion to strike affidavits from all three experts submitted with the “Resistance” to the summary judgment motion.  After the court denied the first motion to strike, the defendant converted its second motion to strike into a request to depose all the experts on their affidavits.  Somewhat shamelessly, the plaintiff took the position that the court should consider the affidavits on summary judgment and the experts should be allowed to testify to the full scope of their affidavits and supplemental reports at trial without defendant getting to depose them at all.  Given this stance, Plaintiff’s hip may not be the only impediment to an even gait.

            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?

            We understand that defendant dropped its request to strike the affidavits.  So, the court’s consideration of exclusion must have been sua sponte, just like its discussion about imposing costs.  Rule 37 clearly authorizes courts to take these actions without a motion.  When it comes to precluding a party from relying on something it failed to disclose, though, 37(c) does not even appear to give the court any discretion.

     (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 

               failure;

               (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)

               (2)(A)(i)–(vi).

Defendant got the relief it requested—depositions of the experts on the new information in their affidavits—although the depositions were by telephone (as plaintiff requested) instead of live (as defendant requested).  And defendant was invited to file a motion for expenses and attorney’s fees, which the court “will entertain.” These seem to be the discretionary relief (“may”) authorized in the second sentence of 37(c)(1)—the court also determined that defendant showed good cause to modify the scheduling order under Rule 16(b)(4)—but the exclusion of the new material in the affidavits was required once the court determined the plaintiff’s failure was neither justified nor harmless.  The first sentence in of 37(c)(1) seems mandatory to us. The apparent reason for not excluding the new material in the affidavits was “the prior dealings between the parties and their statements that they did not need to depose each others’ expert witnesses.”  Id. at *16.  We do not really see that as a reason.  Maybe whatever caused the court to deny the first motion to strike was the reason.  Or maybe the denial of the first motion to strike just meant the court was not going to undo its decision later.

            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.