We have lost track of how many times we have written on pelvic mesh cases as they have gone through a number of district courts on remand and occasionally up on appeal to circuit courts. One theme we have seen play out over and over is that plaintiff lawyers who took on more cases than they could possibly handle employed experts who treated expert reports like assembly lines as depicted in old cartoons, using veritable oversized stamps to affix their “opinions” to report after report. While these antics and the inevitable requests for leniency may have worked in the MDLs, the remand courts have been far less forgiving. In other words, they have tended to follow the Federal Rules of Civil Procedure and Federal Rules of Evidence, kicking cases without viable expert opinions on issues on which the plaintiffs bore the burden of proof. A few months ago, we discussed the Fourth Circuit’s affirmance of the dismissal of just such a case. The same pattern has been seen in cases filed directly in district courts after the MDLs shut down.
A few compound words might be applied to how plaintiffs like the one whose case the Eighth Circuit addressed in Cantrell v. Coloplast Corp., No. 22-2731, — F.4th –, 2023 WL 5114940 (8th Cir. Aug. 10, 2023). Gaslighting comes to mind. When challenged, they tend to misrepresent the history of the case in the hopes that the court will take pity on them. Backfilling also comes to mind. They often try to “supplement” an expert report that will never pass muster under Rule 26 or Rule 702 with a report or affidavit that offers what should have been offered in the first place. Much like someone who claims recent experience shows not only that they are proficient in doing some task but that they have been great at doing it all along—all facts to the contrary—some of these plaintiffs combine gaslighting with backfilling. Most savvy audiences do not fall for such antics and neither did the District of Minnesota or the Eighth Circuit. What are we talking about?
The Cantrell plaintiff’s gynecology expert’s timely report included a “three-sentence specific causation analysis” that—wait for it—implicated the defendant’s device as the cause of all of plaintiff’s alleged injuries. In opposing the exclusion of this opinion, plaintiff offered “a supplemental declaration [from the expert] that included a lengthy specific causation analysis, including a differential diagnosis.” The district court did not consider the supplement, concluded the initial report did not comply with Rule 26, and struck it. This cleared the way for summary judgment. (We know the district court also addressed other experts, but none of them tried to provide the key opinions and they were not addressed on appeal.)
The Eighth Circuit likewise rejected plaintiff’s pleas for special treatment. The supplemental declaration submitted seven months after the deadline for plaintiff’s expert reports was untimely without any valid excuse. 2023 WL 5114940, *1. Plaintiff argued that Fed. R. Civ. P. 26(e) allowed her to serve a late report until thirty days before trial as long as she labeled it a “supplement.” However, 26(e) provides that court orders trump this default deadline and the trial court’s scheduling order did just that. Id. It was within the trial court’s discretion to elect not to consider the declaration to help backfill the gynecologist’s expert report. While conceding that the declaration was not based on information that was unknown or unavailable at the time of the expert report, plaintiff claimed it “merely clarified the methodology” the expert had used. The gaslighting did not work because the actual report did not mention or describe any methodology. Id. at *2.
Plaintiff took two more shots at avoiding the consequences of her (in)actions. Her failure to serve an expert report containing the sort of detailed discussion in the declaration was not harmless because new expert discovery would need to occur if the declaration counted. The trial court also did not have to consider a remedy short of exclusion because plaintiff never filed a motion asking for relief. In the absence of a motion, the language of Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”) makes exclusion automatic. With the expert’s bare-bones report excluded, the plaintiff could not establish a causal relationship between the device and her alleged injuries. That means summary judgment was appropriate.
When recounting the Eighth Circuit’s analysis, it is hard to imagine a different outcome. Conclusory expert reports should not satisfy Fed. R. Civ. P. 26(a)(2)(B). Trying to replace that kind of report with a real one months later because exclusion is imminent should not work absent really good reasons presented in a timely manner. A plaintiff without an expert to opine on specific causation should lose summary judgment. Yet, we have seen far too often that plaintiffs in pelvic mesh litigation and other mass torts are afforded the opportunity to backfill if not completely redo expert reports to keep their cases alive.