We aren’t pulling any punches.  We think Taylor v. Mentor Worldwide LLC, — F.3d –, 2019 WL 4941936 (11th Cir. Oct. 8, 2019) is a candidate to be one of this year’s DDL Blog bottom ten cases.  Not only was plaintiff’s expert allowed to change his opinion at trial, plaintiff was allowed to prevail without demonstrating a threshold level of exposure.  Both issues should have sent this case back for a new trial.  Instead, we get a lousy 2-1 decision on key expert issues.

Plaintiff’s case was selected as a bellwether trial in the In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation.  She alleged that defendants mesh tape was defective because of its small pore size and its alleged propensity to degrade.  Id. at *1.  Plaintiff’s specific causation expert witness authored a report attributing plaintiff’s injuries to defendant’s product’s small pore size and its “tightening/contraction” process.  Id. at *2.  Plaintiff’s expert’s report also stated that he was able to rule out other causes of plaintiff’s chronic inflammation injury.

At deposition, plaintiff’s expert conceded that none of plaintiff’s medical records showed any erosion of her mesh tape, that there may be other causes of plaintiff’s injury, that he could not say to a reasonable degree of medical certainty that the defendant’s product was the cause of injury, and he “expressed skepticism” about plaintiff’s other expert’s degradation theory.  Id. at *3.  Sounds like it was a good day for the defense.  Certainly makes us wonder why the case got to trial, but that’s water under the bridge.

After that change of heart, plaintiff’s expert apparently underwent a second about-face before trial.  At trial, plaintiff’s expert’s theory became that the mesh tape had “caused a thinning of [plaintiff’s] urethral tissue.”  Id. at *4.  This opinion was not previously expressed in either the expert’s report or in his deposition.  Not surprisingly, defendant moved to strike the testimony under Federal Rule of Civil Procedure 37 – which provides:

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 … 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).

In its trial motion, defendant included an alternative request that should the court not strike the testimony, it be afforded an overnight continuance to prepare to cross-examine the expert on his new opinions.  The court chose door #2 and gave defendant an evening to prepare.  Despite what both the district court and the Eleventh Circuit believe was a superb cross examination, defendant again renewed its request to strike the testimony.  However, the district court concluded “that [defendant] had done a fine job in that cross-examination such that it was clear . . . there was no prejudice.”  Id.  Kudos to defense counsel for doing a great job, but prejudice isn’t the standard and hard work isn’t the cure.

The Eleventh Circuit starts with a sound premise that should have been its conclusion too:  “Dr. Porter’s Rule 26 report should have been supplemented to flesh out his ‘evolved’ opinion.”  Id. at *7.   It should have been and it was not.  In other words, plaintiff sandbagged the defendant and the court let them get away with it.  The Eleventh Circuit concluded that the district court did not abuse its discretion in finding the non-disclosure “harmless” because defendant was given extra time to prepare.

Honestly, we could copy and paste the entire dissenting opinion right here.  It pretty much sums up exactly what we think – the majority opinion has “serious legal errors.”  Not the least of which is “neutering” Rule 37(c)(1)’s exclusion sanction and green-lighting “ambush tactics.”  Id. at *19.  For a non-disclosure to be “harmless” it must be a mistake and information already known to the other party.  This was neither.  Plaintiff’s expert “evolved” his opinion after plaintiff’s attorneys questioned him post-deposition.  Id. at *21.  It certainly wasn’t a surprise to plaintiff’s counsel and it was not already known to defendant.  What defendant knew was what was in the expert’s report and deposition.   At trial, defendant was essentially facing “a brand new expert witness whose identity [plaintiff] had not disclosed.”  Id.  And, whose report defendant had not had an opportunity to rebut and whose opinions defendant had not had an opportunity to explore through deposition.

This is precisely the situation for which Rule 37(c)(1)’s exclusion sanction was created.  The Rule provides alternatives to exclusion where exclusion would not be a deterrent, such as nondisclosure of unfavorable information.  Non-disclosure of newly formed, favorable opinions is not such a case.  For this, exclusion is the proper and sanctioned incentive.

Even if extra time to prepare for cross-examination cured one of the harms of non-disclosure, it could not cure the harm defendant suffered of being denied an opportunity to obtain discovery of the underlying bases for the expert’s opinions.  The majority, like the district court, seems to be content that defendant conducted a strong cross-examination and therefore, there was no need for anything else.  But, as the dissent points out, given the expert’s “complete about-face,” defendant was also entitled to discovery concerning the reasons for that “last-minute reversal.”  Id. at *23.  Because it appears that reversal may have been fraudulent.  Plaintiff’s counsel stated at trial that after his deposition, they asked the expert to “thoroughly review the records and answer some of counsel’s questions.”  Id. at *28n.8(dissent).  So plaintiff’s counsel knew that defendant was relying on the previously disclosed opinions, they induced the expert to formulate new opinions, and they didn’t disclose them.  Id. at *23, *28n.7(dissent).  Given these acknowledged circumstances, defendant should have been given the chance to discover the nature of the communications between counsel and their expert.  Id. at *23.  This wasn’t something that could be remedied by an overnight continuance.  Defendant should have been afforded an opportunity to learn how the new opinions were formed, an opportunity it was denied by plaintiff’s intentional non-disclosure.

Another consequence of the Eleventh Circuit ruling is that it strips the court of its Daubert gatekeeping function.  The court has a duty “to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”  Id. at *26 (quoting Daubert).

But when an expert witness changes his theory from one in his report to another at trial, he is effectively able to bypass this gatekeeping function. . . .   As a result, counsel can introduce new theories at trial—even when that move is deliberate and intended to mislead the opposing party, because apparently intent no longer matters—that would not have passed evidentiary muster at an earlier stage.

Id. There’s more good stuff in the dissent and we recommend you give it a read.

As for the concurring opinion, it seems more focused on not upsetting the apple cart.  It expresses the same concern as the others that this type of non-disclosure of an “evolving” expert opinion is problematic.  Id. at *14.  The concurrence, however, wraps itself even more tightly in defendant’s request for a continuance.  It finds that the trial court didn’t abuse its discretion because defendant asked for one of two remedies and the court awarded one of those requests.  The concurrence notes that the trial court wasn’t privy at the time of its ruling to all of the briefing that has now been done, finding that to be a factor in the court’s favor.  The concurrence also then notes that defendant during trial didn’t argue that Rule 37 mandated exclusion, but holds that against defendant.  Id. at *17.  It is okay for the court to make an on the fly decision, but counsel better not make an on the fly argument.  More telling is the concurring judge’s reference to this issue arising “in the middle of a lengthy and complex trial.”  Id.  In other words, this was an MDL bellwether and the court is under considerable pressure to affirm or waste a lot of time and effort.  What good is a bellwether mistrial in moving the litigation along?

We wholeheartedly share the dissent’s concern that this sends a horrible message to anyone who wants to conduct a trial by ambush – especially in complex cases where expert testimony is essential.  And we don’t think the concurrence’s suggestion that the dissent be read along with the majority to put parties on notice.  The ruling is the ruling.  Leaving “for another day a more dispositive ruling,” id. at *18, is not good enough.  Sometimes you have to bruise a few apples to make a good pie.

But that might not be the worst part of the decision.  That honor may go to the majority’s Daubert ruling.  Plaintiff also offered the testimony of a general causation expert on the issue of degradation and the shedding of polypropylene particles in the body.  The presence of the particles, said the expert, causes the body to release hydrogen peroxide which in turn causes tissue inflammation, erosion of tissue, and in some cases infection.  Id. at *2.  This is a substance toxicity opinion, therefore, the expert needed to also opine on the “dose-response relationship.”  How much of the shed substance needed to be released into the body to cause the described reaction.  Id. at *8.  He did not.

Defendant’s argument relied largely on McClain v. Metabolife International, Inc., 401 F.3d 1233 (11th Cir. 2005).  That case involved the effect of ephedrine and caffeine in defendant’s product and held that “a plaintiff must demonstrate both the level of exposure to the allegedly harmful chemical . . . and the amount of the chemical to which the plaintiff was exposed.”  Taylor, at *9 (citing McClain).  The court distinguishes McClain and other cases as toxic torts, not medical devices.  But, if we are talking about the release of particles from an implanted device, we see that as a distinction without merit.  Rather than follow McClain, the court allows proof of causation by what amounts to an asbestos-style “no threshold” exposure level.  But even most asbestos cases don’t go that far.  Science typically does not support a “one-hit” or any trivial exposure theory of causation.  Exposure does not equal causation, but that is what this decision seems to be suggesting.  No need to counter with low-levels or even with alternative causes.  One molecule gets plaintiff over the hump.   We’re a little surprised the Eleventh Circuit bought into this.  We have considered the Eleventh Circuit on of the better Daubert circuits, but this causation opinion is extremely damaging.

The opinion also contains a discussion of the Florida punitive damages statute and how to determine what constitutes “specific intent.”  But that part of the opinion isn’t as interesting or nearly as bad as the rest, so we note just in case the issue is of interest to you.

Watch for Bexis’ scathing review at the end of the year.  We’re sure he has a few more choice words.