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Stop us if you have heard us say “stop us if you have heard this before.”  Pelvic mesh cases on remand have often faced the harsh realities of procedural requirements and burdens of proof because transferee judges have treated them like individual cases rather than items in an inventory.  Decisions about the impact of failure to serve proper expert reports that cover the right topics at the right time, as well as the inevitable attempts to backfill, are not limited to pelvic mesh cases on remand.  However, these issues seem to be particularly prevalent in this particular species of lawsuit.  We detailed the trouble one of these, Donalds, had in federal court in the Old Line State.  Depending on the figurative route from the MDL court in West Virginia to its remand destination, Donalds passed a sign urging it to “Please Drive Gently.”  The typically gentle treatment from the MDL did not last and the plaintiff ended up with her sole case-specific causation expert excluded and her case tossed on summary judgment.  (Not to confuse things, but, a few months later, we covered the unsuccessful appeal of a somewhat similar pelvic mesh remand case called Donaldson.)

While some plaintiffs might pack it in or perhaps sue their own counsel, the Donalds plaintiff filed a motion to reconsider and, after that was denied, appealed.  In an unpublished decision, the Fourth Circuit affirmed.  Donalds v. Ethicon, Inc., No. 22-1737, 2023 WL 2446703 (4th Cir. Mar. 10, 2023).  We return to Donalds not only because we realized that we have questioned each of the four experts plaintiff named, but because cases presenting permutations of this same fact pattern are still percolating through the courts.  The facts and pertinent procedural history are fairly simple.  Plaintiff sued in the MDL over alleged injuries from defendant’s stress urinary incontinence sling after it was explanted (and later replaced by another of defendant’s stress urinary incontinence slings), she named experts about a year later, her case was remanded about two years after that, defendant moved for summary judgment, and the court requested briefing on the admissibility of the plaintiff’s only case-specific expert under Fed. R. Evid. 702.  That expert’s report was bare bones—much like many reports produced by a number of plaintiffs’ experts in those MDLs when their signatures were being affixed to ten or more reports on a given day.  Without addressing alternative causes, the report concluded “the complications [plaintiff] endured following implantation . . . were proximately caused by the erosion of the mesh product.”  Id. at *1.  In connection with the Rule 702 briefing more than three years later, plaintiff offered an affidavit from the expert to try to fix the obvious deficiencies in his report.  The court did not consider the affidavit in excluding the expert’s causation opinions and granting summary judgment.

On appeal, plaintiff offered a series of arguments, some of which she had waived along the way.  Up first was whether the expert’s disclosed causation opinion was properly excluded.  Citing Joiner and the Fourth Circuit’s strong decision in Sardis the Donalds panel tagged the expert’s opinion as merely ipse dixit.  The multiple failings included 1) not identifying a defect that allegedly caused the injuries (as required by Maryland law), 2) not addressing other possible causes, and 3) not identifying the reasons or methodology behind his opinion.  Id. at *3.  (The latter also posed an obvious problem under Fed. R. Civ. P. 26(a)(2)(B).)  So, no abuse of discretion in excluding it and, therefore, granting summary judgment.

The affidavit was evaluated as an untimely disclosure, so Fed. R. Civ. P. 37(c)(1) required plaintiff to show the non-compliance was “either justified or harmless.”  It was neither (or, rather, the district court’s conclusion was within its discretion).  It came more than three years after the deadline, even though defendant’s responsive expert pointed out potential alternative causes of plaintiff’s injuries and plaintiff’s expert’s failure to address them.  Plaintiff did not seek leave to supplement and “persistently argued only that presentation of the supplemental report was not a discovery violation at all.”  Id. at *4.  It was also not a timely attempt to supplement an incomplete or incorrect disclosure.  As one of the cited decisions put it, “Courts distinguish ‘true supplementation’ (e.g., correcting inadvertent errors or omissions) from gamesmanship, and have therefore repeatedly rejected attempts to avert summary judgment by ‘supplementing’ an expert report with a ‘new and improved’ expert report.”  Id. at *5 (quoting Gallagher v. Southern Source Packaging, LLC, 568 F. Supp. 2d 624, 631 (E.D.N.C. 2008)).  This should certainly be the line courts draw, regardless of whether the case is or once was in an MDL.

Plaintiff also argued that the trial court should have allowed her to offer expert causation testimony from the explanting physician, thus raising an issue of material fact to defeat summary judgment.  This was the gist of plaintiff’s Rule 59(e) motion for reconsideration.  The court below properly held this argument had been waived because it had not been raised in response to the motion for summary judgment.  Id. at *5.  There was also a clear Rule 26 issue, because the physician had been designated as a non-retained expert (as just about all implanting and explanting physicians were designated by plaintiffs in the pelvic mesh MDLs) but the designation did not mention a causation opinion.  So, there were two good reasons to not allow this end run.

There are possible good reasons to allow an expert to supplement a timely expert report or even name a new expert after the deadline has passed.  It would be nice, however, if what constitutes a good reason did not vary so much depending on whether it is the plaintiff or defendant seeking to supplement and whether the case is or once was pending in a large MDL.