This post is from the non-Dechert side of the blog.
Today we offer another in our series of travel misadventures. Last weekend, we had the pleasure of visiting the Drug and Device Law Rock Climber (and seeing Lin-Manuel Miranda’s improvisational hip-hop show) in New York City. We took the train to Philadelphia then to the regional station closest to our home. Here we pause for some backstory. Our train station, from which we commute to work daily, used to be user-friendly. Riders could wait in the warm building until the horn heralded the train’s arrival then walk outside to the track, a few steps away. But a recent, massive construction project changed all that. Getting on the train, or back to the parking area, now involves long flights of steps and several extra minutes. No one waiting in the station until the train approaches will make it to the platform before the train departs.
There are also elevators, for those unable or unwilling to traverse the steps. When we arrived on the platform after our New York trip, we had a suitcase in tow, so we took the elevator. As the door closed, we reached for the button. With the hand that held our car keys. You know what comes next – cue the slow motion as our keys slip from our hand and fall into the elevator shaft, landing, audibly, far below. At midnight. At a deserted train station. Luckily, this is the era of Uber. We arrived home, found the hidden spare key, and got in through the back door of our house. Shaking our head all the while.
Today’s case also involves a “back door,” if only figuratively. In Africano v. Atrium Med. Corp., 2019 U.S. Dist. LEXIS 176602 (N. D. Ill. Oct. 10, 2019), the plaintiff tried, and failed, to get untimely affirmative expert opinions in through the “back door” in the guise of rebuttal. The plaintiff had sued the defendant hernia mesh manufacturer, asserting the usual product liability claims. He submitted his expert’s report, naturally opining that the product was defective, in the normal course. In response, the defendant submitted the report of its expert. The plaintiff informed the court that he intended to submit reports of rebuttal experts. The court issued an order emphasizing that the rebuttal experts must “restrict themselves to the expert opinions offered by [the defendant], Africano, 2019 U.S. Dist. LEXIS at *2, and that the defendant could move to exclude the new opinions if the plaintiff did not comply. Of course, one of the plaintiff’s new experts offered opinions that were not “rebuttal,” and the defendant moved to exclude the opinions.
The court explained that, under Fed. R. Civ. P. 26(a)(2)(D)(ii), rebuttal expert reports “must be intended solely to contradict or rebut evidence on the same subject matter identified by another party.” Id. at *3 (internal punctuation and citation omitted). “Evidence that is only offered as additional support of a party’s argument and that does not contradict any evidence introduced by the opposing party is not proper rebuttal.” Id. (citations omitted). The defendant argued that the plaintiff’s expert’s “rebuttal” report was not rebuttal at all, “but rather an untimely causation report intended to bolster and expand upon” the plaintiff’s original expert’s opinions. Id. at *3-4.
The plaintiff argued that it was not improper for the “rebuttal” report to “touch on the same matter” as his original expert’s report, so long as it contradicted the opinions of the defendant’s expert. The court disagreed, stating that “[t]he measure of proper rebuttal is not whether if offers support for arguments that could have been raised in the case-in-chief, but whether it directly refutes arguments offered by the opposition.” Id. at *5. The court continued, “A party may not offer testimony under the guise of ‘rebuttal only to provide additional support for his case in chief.” Id. (internal punctuation and citation omitted). In this case, the court held, the defendant had demonstrated that the so-called rebuttal report “[s]erved primarily to shore up [the plaintiff’s] case in chief, mentioning the defendant’s expert’s report only twice and then only to point out undisputed facts, “not any matters in contention.” Id. Moreover, the plaintiff did not attempt to argue that the violation of the court’s order was substantially justified or that it was harmless, as Fed. R. Civ. P. 37(c) requires. And so the court granted the defendant’s motion to strike the report.
We have lost this exact chess game against a plaintiff who missed an expert disclosure deadline and submitted an entire affirmative expert report in the guise of “rebuttal.” We love this opinion, and we’ll keep you posted on similar developments.