The puppies are here!  We are delighted to follow up on our last post, wherein we announced that the mother of our standard-poodle-puppy-to-be was in the middle of giving birth.  We are thrilled to report that the final tally includes eight beautiful, healthy pups – four boys and four girls, three white and five blue (a beautiful steel-gray color when mature, though blue puppies are born black).  We are beyond excited and can’t wait to meet the babies and find out which will be ours.  (E-mail us if you want to see a picture!)

Today’s case discussion also follows up on a previous post. Back in 2018, we reported, with pleasure, about a smart (and favorable) express and implied preemption decision.  Today, in Gravitt v. Mentor Worldwide, LLC, — F. Supp. 3d. —, 2022 WL 3584620 (N.D. Ill. Aug. 22, 2022), the court deals – equally wisely – with the admissibility of the rebuttal reports of three of the plaintiff’s experts. 

Here is the background.  Gravitt involves the plaintiff’s claim that she was injured by the defendant’s silicone breast implants.  Per the case management order, the plaintiff served her initial expert disclosures and reports in February of this year, and the defendant served its disclosures and reports in April.  The deadline for the plaintiff to serve rebuttal reports was July 15.  On July 12, the plaintiff requested – and the defendant granted – an extension of the deadline, to July 18 at 9:00 a.m.  The appointed time came and went with no reports from the plaintiff.  A bit later in the day, the plaintiff’s attorney asked defense counsel for an additional two-week extension.  Defense counsel denied the request but gave the plaintiff until the end of the day to serve her rebuttal reports.   Later in the day, the plaintiff served a disclosure that identified three experts, but she included reports from only two of them. The third expert did not complete his report until July 31, and the plaintiff served it that day or shortly thereafter.  Not until August 2, two days after the expert completed his report and fully two weeks after the extended July 18 deadline, did the plaintiff move for an extension of that deadline. The defendant opposed the retroactive extension request and moved, on two different grounds, to exclude the other two experts’ rebuttal reports.

The court dealt first with the expert whose report was late.  As the court explained, the plaintiff argued that the lateness should be excused because the expert “experienced a ‘flare up’ of a certain medical condition on June 1, causing him to become confused about the report’s due date . . . .”  Gravitt, 2022 WL 3584620 at *1.   Specifically, “although Plaintiff’s counsel told him on June 2 that the due date was July 15, [the expert] avers that he mistakenly assumed from that conversation that it was July 31.”  Id. (citation omitted, smirk and eye-roll assumed).  The court explained that it was bound by precedent defining “excusable neglect,” emphasizing, “If the moving party fails to demonstrate genuine ambiguity or confusion about the scope or application of the rules or some other good reason for missing the deadline, she cannot establish excusable neglect regardless of how short the delay was or how little it prejudiced the opposing party.  Id. at *2 (internal punctuation and citations omitted).

In this case, the court held, the plaintiff failed, in two different respects, to demonstrate excusable neglect.  First, the delay in serving the report was inexcusable because, though plaintiff’s counsel “checked in” with the expert on June 23 because he had not responded to an earlier call, she did not “do what prudence demanded under the circumstances, which was to confirm the July 15 deadline.”  Id.   Second, plaintiff’s counsel did not seek an extension until two weeks after the deadline had passed, though she had known for weeks about the expert’s supposed “confusion.”   The court also pointed out that, although this analysis did not require a showing of prejudice, allowing the expert to serve his report two weeks after the extended deadline would “prejudice [the defendant] and materially impact the proceedings by requiring the court to push back” the deadlines for dispositive motions and motions to exclude experts.  The court concluded, “. . . Plaintiffs’ delay was not harmless, nor were they justified in failing to serve [the expert’s] rebuttal report, or to seek relief from the deadline, before the deadline passed.”  Id.

The court next addressed the defendant’s motion to exclude the plaintiff’s regulatory rebuttal expert as unqualified to offer the opinions in his report.  The defendant argued that the expert “ha[d] no experience in regulatory compliance for the medical device industry, and any remotely relevant experience he had ended in 1989,”  The court held that it did not even need to reach the merits of this argument because the plaintiff provided “no detail concerning [the expert’s] experience with or knowledge of the FDA,” when “left” – get this – a position in the “Bureau of Radiation and Medical Devices in Canada’s Department of Health and Welfare.” Id. at *3.  That’s right, an FDA “expert” who did not work at the FDA. Thus, plaintiff “failed to counter [the defendant’s] contention that [the expert] in unqualified to offer the opinions in his rebuttal report.”  As such, the plaintiff “forfeited any argument that [the expert] is qualified to offer the opinions in his rebuttal report.”  Id. Just for good measure, the court added the comment that, “[f]orfeiture aside, [the expert] is unqualified to offer the opinions set forth in his rebuttal report,” because his experience was “at best, tangential” to the issues on which he sought to testify.

Finally, the court considered the defendant’s motion to exclude the so-called “rebuttal report” of one of the plaintiff’s causation experts.  The defendant argued, and the court agreed, that the expert’s report was not rebuttal at all.  Because the so-called “rebuttal” opinions pertained directly to the causation element of the plaintiff’s claims – to the issue of whether the defendant’s product caused the plaintiff’s injuries – they belonged in the expert’s opening report.   Nor did the expert’s “few references to the defendant’s experts” suffice to make the report a proper rebuttal, particularly when the expert “sandbag[ged the defendant] with new citations to which its experts [had] no opportunity to respond.”  Id. at *4.

Beyond the correctness of Gravitt’s conclusions, we love this decision for the judge’s obvious impatience with the plaintiff’s lawyers and his intolerance for their cavalier sloppiness.  The plaintiff’s counsel flouted court-ordered deadlines, federal evidence rules, and the framework of the report sequence, and the judge wasn’t having it.  We’ll watch for future opinions in this case, as we never tire of fearless, no-nonsense jurists.  We thank Dustin Rawlin and Monee Hanna, of Nelson Mullins, whose victory this is, for letting us know. And we’ll keep you posted on the puppies!  In the meantime, stay safe out there.