Court: United States District Court for the Southern District of New York

Plaintiff Brian Joseph Gref alleged that his use of talcum-powder products caused his diagnosis of peritoneal mesothelioma. 

During the course of discovery, the court ordered that plaintiff’s medical reports were to be served on defendants by December 15, 2021. Plaintiff served Dr. Jacqueline Moline’s expert report, dated October 28, 2021, by the court-ordered deadline. Defendants then deposed Dr. Moline on July 6, 2022, and September 23, 2022.

On the first day of her deposition, Dr. Moline testified she had not conducted any defendant-specific dose calculations. Prior to the second day, Dr. Moline did conduct a dose-estimate calculation. Plaintiff did not disclose these calculations to defendants prior to the second deposition. As such, defendants moved to preclude plaintiff’s supplemental expert disclosures.

Federal Rule of Civil Procedure 26(a)(2) governs expert disclosures. It states, “an expert witness must provide a written report that includes, among other things, ‘a complete statement of opinions the witness will express and the basis and reasons for them,’ and ‘the facts or date considered by the witness in forming them.” Fed. R. Civ. Pro. 26(a)(2)(B)(i)-(ii). Moreover, all expert witness disclosures must be made “at the times and in the sequence that the court orders” and “in a timely manner.”  Fed. R. Civ. P. 26(a)(2)(D), Fed. R. Civ. P. 26(e)(1)(A). 

In analyzing the defendants’ motion, the court considered the four Outley factors:

(1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the expert testimony; and (4) the possibility of a continuance.

Softel, Inc. v. Dragon Med. & Sci. Commc’ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997) (citing Outley v. New York, 837 F.2d 587, 590-91 (2d Cir. 1988)).

The Moline report concerning her findings was published in January 2023. Dr. Moline admitted she did not include her dose initial report, since she performed the calculations only after the conclusion of the first day of her deposition. Yet the court noted, “[a] party’s violation is ‘substantially justified’ if a ‘reasonable person’ would believe that ‘parties could differ’ as to whether the conduct violated the discovery rules.”  Kunstler v. City of New York, 242 F.R.D. 261, 264-65 (S.D.N.Y. 2007).

Nevertheless, the court determined that “[n]o reasonable person would believe that Dr. Moline’s supplemental report and declaration were timely filed.”  Likewise, it found the plaintiff offered no justification for the failure to timely supplement Dr. Moline’s expert report.  Despite these determinations, the court ruled plaintiff’s untimely disclosure was harmless and did not merit the “extreme” sanction of preclusion.The court noted that “Dr. Moline’s reliance on her 2023 article and dose estimates were both disclosed before the close of discovery in this case.” The court also set forth that the defendants could remedy the any prejudice by reopening Dr. Moline’s deposition. 

Finally, the court concluded the defendants also summarily requested that it preclude plaintiff’s reliance on the new disclosures of the remaining experts, Drs. Krekeler, Longo, and Brody. The court found the defendants failed to identify what portions of said reports constituted new opinion evidence. Moreover, defendants did not explain how the new evidence would prejudice them. Subsequently, the court denied defendants’ motion to preclude the disclosure of these four expert opinions.

Read the full decision here.