The hip implant litigation, Rouviere v. DePuy, has already given us one of the classic opinions on the COVID-19 “new normal” in litigation practices. See Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2020 WL 3967665 (S.D.N.Y. July 11, 2020) (blogged about here). That decision was prompted largely by the plaintiff’s unreasonable litigation overreach (plaintiffs’ counsel appears to have more unfettered discretion than most, probably because he is apparently one of the plaintiffs). Now it’s happened again, with the Rouviere litigation generating a second to-be-published decision on a relatively esoteric subject – this time, exclusion of turncoat experts. Our immediate reaction to Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2020 WL 6265659 (S.D.N.Y. Oct. 25, 2020), is “you had to know you can’t do that.”
We’ve only blogged about the “turncoat expert” problem in prescription medical product liability litigation once before. But it does recur. Here’s what happened, but if you want to know that names of the offending parties, you’ll have to find them yourself. While we’re happy to report on the other side’s misconduct, we don’t usually name names.
Before this particular litigation started, the defendant had retained “Expert X” to undertake “considerable consulting work in connection with other litigations for which his employers received substantial compensation.” 2020 WL 6265659, at *1. In connection with this prior employment, the defendant took the reasonable precaution of having Expert X sign a confidentiality agreement before having access to the defendant’s proprietary information. 2020 WL 6265659, at *2. Don’t ever think for a minute that these sorts of confidentiality agreements aren’t worth the bother.
Once Expert X showed up at the eleventh-and-a-half hour (after “several extensions” and the denial of yet another extension, id. at *1) as the plaintiffs’ designated expert, it filed a well-supported motion to disqualify:
[Defendant] filed the motion . . . seeking to disqualify . . . [Expert X] on the ground that [it] previously had retained him as a paid consultant to conduct confidential review, testing and analysis of other hip implant products in the defense of [its] Litigations where issues were raised, which are “in vital ways similar to those raised in the present litigation.”
6265659, at *2 (citation omitted). Plaintiffs responded with a hail of excuses, chiefly:
- Expert X “was not directly retained by” defendant.
- Expert X “has not done any work for [defendant] since 2017.”
- [T]he products at issue in this case are different from the products at issue in the case where [Expert X] performed work for” defendant.
Plaintiffs’ excuses were all for naught. First, defendant’s expectations of confidentiality were “objectively reasonable. Foremost was the existence of the original confidentiality agreement. Id. Beyond that, Expert X was also party to a confidentiality order in the prior litigations, and those litigations, while stayed, had not been “finally determined.” Id.
Second, Expert X had been privy to quite a bit of confidential information. “He received tens of thousands of pages of confidential . . . documents pertaining to the design and development of. . . hip devices, the materials used in those devices and the regulatory approval process.” Id. at *3. Expert X had also “met with . . . defense attorneys on numerous occasions in connection with the [earlier] Litigations” and knew about defendant’s “litigation and trial defense strategies.” Id.
Third, “there is significant overlap between issues involved in the [earlier] Litigations and the issues involved in this case.” Id. Thus, it “would be unfair and would subvert the integrity of the judicial process to permit [Expert X] to switch sides as he is seeking to do here.” Id.
Finally, defendant’s motion had been brought in a prompt fashion, minimizing “prejudice” to plaintiffs, who “only had worked with [Expert X] for a few days prior to the issuance of his report.
In the end, the only thing plaintiffs in Rouviere achieved by suborning defendant’s prior expert was to obtain yet another extension of their expert disclosure obligations (from September 21 until December 9, 2020). The rest of us got the Rouviere opinion’s road map on how to deal with a turncoat expert.