Developments in the Rouviere v. DePuy litigation have already produced two of our blogposts.  Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp.3d 571 (S.D.N.Y. 2020), which we discussed here, produced one of the first major decisions of the COVID-19 pandemic on remote depositions as the “new normal.”  Then, Rouviere v. DePuy Orthopaedics, Inc., 496 F. Supp.3d 811 (S.D.N.Y. 2020), produced one of the most important decisions on so-called “turncoat experts,” as the court rejected the plaintiffs’ attempt to introduce into the litigation an expert witness who had previously worked for – and signed a confidentiality agreement with – the defendant.

Both decisions arose at least in part from the extremely zealous litigation tactics pursued by plaintiffs in the Rouviere matter – which has produced a Westlaw history of no fewer than fourteen separate opinions so far.  Such tactics have become known as “Rambo litigation.”  See, e.g., Allen K. Harris, “The Professionalism Crises − The ‘Z’ Words and Other Rambo Tactics: The Conference of Chief Justices’ Solution,” 53 S.C.L. Rev. 549, 551-52 n.5 (2002).  One thing about Rambo, though, he never goes down without a fight.  Which brings us to Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2021 WL 4255042 (S.D.N.Y. Sept. 17, 2021), reconsideration denied, 2021 WL 5854283 S.D.N.Y. Dec. 9, 2021) (which we’ll call “Rouviere III),” in which summary judgment was granted.  Rouviere III is of interest for both procedural and substantive reasons.

The key factual aspect of the Rouviere litigation to keep in mind is that the plaintiffs’ surgeon constructed the hip implant that allegedly caused the plaintiffs’ injuries from components of two different manufacturers’ products.  Plaintiffs sued both manufacturers.

The interesting procedural aspect of Rouviere III begins with the consequences of the striking of plaintiffs’ last-minute turncoat expert − whom we’ll refer to as “expert #2” − after their first expert “mysteriously withdrew” only three days before the expert deadline.  Id. at *2, 10.  The magistrate judge allowed plaintiffs to find a replacement expert (hereafter “expert #3), but limited plaintiffs’ replacement to the scope of expert #2’s report.  That was important because expert #2 did not opine as to any defects in the moving defendant’s components – targeting only the other manufacturer:

This report opined almost exclusively on [the other defendant’s] components, saying virtually nothing about [the moving defendant]. . . .  [After the magistrate judge] granted [the other defendant’s] motion to disqualify, but he allowed [plaintiffs] additional time to find another replacement engineering expert.  [The magistrate] order specified that this third engineering expert could opine “regarding the same scope of subject areas as were covered by the [disqualified second expert].”

Id. at *2 (record citations omitted).

In reliance on that restriction, the moving defendant sought summary judgment “in large part on the absence of expert testimony about [its] products.”  Id. at *3.  Plaintiffs then ignored that restriction, so that their expert #3 “opin[ed] extensively about [the moving defendant’s] products.”  Id.  The moving defendant then moved to strike those parts of expert #3’s report that violated the magistrate’s order.  The magistrate granted that motion.  Plaintiffs moved to reconsider that order, and when reconsideration was denied, filed an objection with the district judge pursuant to Fed. R. Civ. P. 72(a).  Id.

That led to what appears to be a matter of first impression – “whether the filing of a motion for reconsideration before the magistrate judge affects Rule 72’s 14-day deadline to file an objection before the district judge.”  Id.  Rule 72(a) provides:

A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections. . . .

Rouviere III compared the language of Rule 72(a) to “its closest analogue,” Rule 4, and found a “stark contrast.”

Rule 72 not only requires that the nondispositive matter be addressed “promptly,” but also encourages speedy interlocutory appeals. . . .  The failure to file an objection within 14 days waives the right of a party to assign the magistrate judge decision as error.  The rule thus vests control in the district court judge, and not in the parties or in the magistrate judge, as to the timing of briefing on and a decision with respect to a pretrial nondispositive matter.

Id. at *6.  Thus, “Rule 72 embodies a policy preference for speedy decisions and quick appeals to district courts rather than drawn-out motion practice before the magistrate judge.”  Id.

While nothing precluded a party from moving for reconsideration before a magistrate judge, id. at *5 n.3, “filing of a motion for reconsideration, by the plain terms of Rule 72, has no effect on the 14-day deadline to file an objection before the district court.”  Remember that – no matter which side you are on – a motion for reconsideration filed with a magistrate judge does not extend the deadline for objecting to the same ruling, at least under Rouviere III.

Then what?

The only thing that plaintiffs’ objection in Rouviere III preserved was whether the motion for reconsideration should have been granted.  “In the context of a motion for reconsideration, ‘the order’ is the reconsideration order (which is reviewed very deferentially), not the underlying order which was not timely objected to.”  Id. at *7.  Any other reading “would render meaningless Rule 72’s 14-day deadline.”  Id.

However, “because the Second Circuit has not clearly spoken to the timeliness issue,” Rouviere III also addressed plaintiffs’ objection on its merits.  2021 WL 4255042, at *8.  Before the magistrate, plaintiffs had treated the issue solely as a discovery deadline issue under Fed. R. Civ. P. 16.  Id.  On appeal, plaintiffs sought to recast the magistrate’s order as a sanction under Fed. R. Civ. P. 37(c).  The court refused to entertain the new argument.  Rule 72(a) provided that a magistrate’s opinion on a non-dispositive matter could be overturned only if “clearly erroneous or is contrary to law.”  To allow the losing party to assert a previously un-argued ground in an objection would allow that party, in effect, to “obtain de novo review by asserting a new legal theory to the district court.”  Id. at *8 n.6.

To limit a belated replacement expert to four corners of the previous expert’s report was hardly an abuse of discretion.  Rather, it was “a ‘sensible compromise’ that allowed the replacement of an expert ‘without unfairly surprising [the other party] with unexpected new opinions.”  Id. at *9 (quoting Roberts v. Galen of Virginia, Inc., 325 F.3d 776, 784 (6th Cir. 2003)).  Plaintiffs’ expert #3 plainly exceeded the scope of the predecessor expert’s report.

[Expert #3’s] report opines extensively about [the moving defendant’s] liability, far exceeding the scope of the disqualified expert’s opinions. . . .  The disqualified expert [#2] offered no opinion about the warnings that accompanied [the moving defendant’s] product. . . .  No reasonable reader of [expert #3’s] report can conclude that it covers “the same scope of subject areas as were covered by the [disqualified expert].”  By opining on [the moving defendant’s] liability, [expert #3’s] report contravened [the magistrate’s] order.

2021 WL 4255042,p at *10.  The magistrate judge’s order controlled, regardless of plaintiffs’ “scope of retention” of expert #3.  Id.

While “harsh,” this result was not “unfair,” given plaintiffs’ parade of experts, even after the expert deadline had passed:

The disqualification of their expert gave [plaintiffs] an opening to retroactively plug the holes in their disqualified expert’s report.  [The magistrate judge] rejected that gambit, placing [plaintiffs] in the exact same position that they were in . . . when they timely filed their expert disclosures.

Id.  Rouviere III thus defeated both of plaintiffs’ attempts at sandbagging, allowing them neither belated new expert opinions after the moving party had sought summary judgment, nor allowing them to craft new legal arguments (under Rule 37(c)) on appeal, after the parties and the magistrate judge had addressed plaintiffs’ expert parade only under Rule 16.

Rouviere III went on to grant summary judgment, so at this point we pivot from civil procedure to legal substance.  The easy part was that the lack of expert testimony on design issues, created by the aforementioned procedural discussion, made it impossible for the plaintiffs to establish any design-based claim under New York law (although plaintiffs were Florida residents, they went to New York for the surgery because they “could not find a surgeon” in Florida who “was comfortable operating,” given the underlying medical condition, id. at *1).  No expert meant no case:

In New York, defective-design claims must usually be supported by expert testimony as to the feasibility and efficacy of alternative designs.  [Plaintiffs] make no argument to the contrary, nor do they point to any non-expert evidence that the [the moving defendant’s] products were defectively designed. Indeed, they make no argument at all in defense of their defective-design claims.  Summary judgment is therefore granted . . . on [plaintiffs’] negligence and strict-products-liability claims . . . to the extent they are based on a defective-design theory.

2021 WL 4255042, at *12 (citations omitted).  Plaintiffs likewise abandoned their manufacturing defect and implied warranty claims.  Id. at *12-13.

Rather, plaintiffs in Rouviere III made their last stand on failure to warn.  While we think they received more leeway than they should have – particularly without an expert – they ultimately lost nonetheless.  The first big hurdle was whether the moving defendant had a duty to warn about “foreseeable” uses of its product in connection with a different manufacturer’s product – the one as to which plaintiffs had expert testimony.  Here, Rouviere III cited In re New York City Asbestos Litigation, 59 N.E.3d 458 (N.Y. 2016) (“NYCAL”), which (as we discussed here) rejected the so-called “bare metal defense” and created a limited duty to warn about risks in other manufacturer’s products.  Rouviere III, 2021 WL 4255042, at *13.  NYCAL was inapplicable, since its imposition to warn about another manufacturer’s product was predicated on that other product being “necessary to enable the manufacturer’s product to function.”  Id. at *13 n.7.  That wasn’t the case with these medical implants.

[T]hat exception does not apply here because the [other defendant’s] components are not “necessary” to the use of the [moving defendant’s component].  Indeed, [the moving defendant] makes its own [similar] components and recommends against pairing its [component] with . . . components from other manufacturers.

Id. (emphasis original).

That should have been the end of the case, but it wasn’t.  Instead, Rouviere III held that “because [plaintiffs’] claim is that [the moving defendant] failed to warn of the impingement risk in [its] product, not just [the other defendant’s] product,” a duty to warn could exist.  Id. at *13.

There is no genuine dispute that the [component made by the moving defendant] became dented, which [plaintiffs] attribute to impingement.  Nor is there is a dispute that [the moving defendant] was aware of the risk of impingement − indeed, [it] argues that it warned of impingement.  And even if there is no evidence that the [moving defendant’s component] was defectively designed or manufactured (because [plaintiffs] lack expert testimony on that front) the duty to warn applies even to non-defective products.

Id. at *14.  We think there’s a flaw in this syllogism, because without any expert testimony on defect the plaintiffs had no factual basis for “attributing” the product’s undisputed condition to “impingement.”  That’s a causation issue that would require expert testimony, which due to their procedural defaults, plaintiffs simply didn’t have.

Next, Rouviere III refused to find the moving defendant’s warnings adequate as a matter of law.  Id. at *14-15.  In particular, the decision focused on the defendant’s warning against mixing and matching components:

[The moving defendant] point[s] to the [instructions for use] warning that “[i]mplants and trials components from different manufacturers or implant systems should never be used together.” But this warning does not say why mixing and matching should be avoided, nor does it say that mixing and matching can lead to impingement.  This warning does not preclude a reasonable juror from finding that this warning was too broad and that the IFU did not sufficiently communicate the risk of impingement.

Id. at *15.  Once again, however, we find ourselves responding “says who?”  As we quoted earlier, plaintiffs’ excluded expert “offered no opinion about the warnings that accompanied [the moving defendant’s] product,” id. at *10, so expert #3 couldn’t either.  Rouviere III cites no record evidence in support of its musings about what is, or is not, an adequate warning.  So we find ourselves disagreeing here as well.  Just as an expert witness cannot supplant the judge as an “expert” on the law, a judge should not become an “expert” on the facts.  A “reasonable juror” would have to have some factual basis for evaluating something as far outside ordinary lay experience as why mixing different manufacturers’ components is a bad idea, and that basis is simply absent from this record.

But even given those questionable rulings that let the plaintiffs get this far, they still lost on causation in Rouviere III.  Here is where the favorable part of NYCAL comes into play.  Rouviere III held that there is no heeding presumption under New York law (about which we had a lot to say, here).  Courts have:

rejected the notion that New York has a “heeding presumption” under which a jury may infer, whenever the facts show that a warning is required, that a warning would have been heeded.  Rather, New York permits the trier to infer that a warning would have been heeded and thereby to conclude that the absence of a warning that was reasonably required to be given was a proximate cause of an injury.”  But, as discussed above, [plaintiffs] have proffered no facts that would allow a jury to make that inference without resort to speculation.  This is especially true here, where [plaintiffs] do not proffer a specific warning that [the moving defendant] should have included.

Rouviere III, 2021 WL 4255042, at *16 (citations and quotation marks omitted).

Plaintiffs deposed the implanting surgeon in the Rouviere litigation – twice – and he knew quite well about “impingement” as a risk.  “Indeed, [plaintiffs] do not even dispute that [the surgeon] was aware of the impingement risk at the time of the surgery.”  2021 WL 4255042, at *15.  “To the contrary:  [the surgeon] testified that he planned to continue using the [moving defendant’s product] even knowing what he knows now.”  Id. at *16.  “There is simply no evidence that a warning − if it had been given − would have been so material or important that [the surgeon] would have heeded it or would have done something different.”  Id.  Since plaintiffs bear the burden of proving causation, and they have no evidence that a different warning would have made a difference, they lost.  Id. (“there is no evidence upon which a reasonable juror could conclude that a different warning would have led to a different result”) (citation omitted).

This lack of causation was fatal even to plaintiffs’ last-last-ditch theory, that the surgeon would have given some “additional warning” to his patient, after which (of course) the plaintiff patient would testify that she would never have consented to the surgery.

[Plaintiffs] proffer no evidence as to the second premise − that additional warnings by [the moving defendant] would have led [plaintiffs] surgeon] to give additional warnings to [his patient].  As previously discussed, there is no evidence that additional warnings about impingement would have changed [the surgeon’s] choice of components.  The same lack of evidence applies to [the surgeon’s] choice of warnings.  [Plaintiffs] point to no evidence that additional warnings from [the moving defendant] would have resulted in a different conversation between [the surgeon] and [his patient].

Id. at *17.

Perhaps predictably, plaintiffs sought reconsideration of Rouviere III, which we think gave them more than they were entitled on the warning issue.  They lost again, after once again tried to sandbag their opponent with new arguments. Rouviere v. DePuy Orthopaedics, Inc., 2021 WL 5854283 S.D.N.Y. Dec. 9, 2021).  At some point, either immediately if they can wrangle an order under Fed. R. Civ. P. 54(b), or at the end of the entire case, they will likely appeal.  But in either event, we have to like the defendant’s chances of prevailing.