In our recent post on the Onglyza affirmance, we mentioned that the Sixth Circuit rejected the plaintiffs’ attempt at a do-over after the expert they chose to ride into battle with was unhorsed by Rule 702.  The MDL plaintiffs flunked both “good cause” grounds for modifying the existing expert scheduling orders.  First, plaintiffs were not “diligent” as they could “not explain why they have failed to identify other, reliable, general causation experts − despite years of expert discovery.”  In re Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin & Metformin) Products Liability Litigation, ___ F.4th ___, 2024 WL 577372, at *7 (6th Cir. Feb. 13, 2024).  Second, restarting expert discovery “would delay the MDL’s resolution for years − just consider that plaintiffs requested three months to simply identify an expert.”  Id. at *8.  The attempted do-over would thus have prejudiced the defendants by “impos[ing] significant costs on defendants . . . and years of delay.  Id.

That’s hardly the first time that plaintiffs, having hired presumably the best experts their money could buy, have gone whining back to courts for do-overs after their first choices were excluded.  Searching the Blog’s posts for “do-over,” we most recently speculated that plaintiffs would pull the same stunt after their experts were found wanting in the Acetaminophen MDL.  Sure enough, that’s precisely what happened. Claiming they were not bound by the MDL-wide Rule 702 order, In re Acetaminophen ASD-ADHD Products Liability Litigation, ___ F. Supp. 3d ___, 2023 WL 8711617 (S.D.N.Y. Dec. 18, 2023), some late-arrival plaintiffs in that litigation sought a do-over, which is now being litigated.  Also, similarly to their federal counterparts, The Onglyza state-court plaintiffs sought their own do-over and lost. Onglyza Product Cases, 307 Cal. Rptr.3d 480, 495 (Cal. App. 2023) (denying do-over not an abuse of discretion; “allowing plaintiffs to designate a new expert would prejudice defendants”).

On the other hand, we also discussed the notorious expert do-over in the Zoloft MDL.  After the plaintiffs’ causation expert was hoist with her own petard in the initial Rule 702 decision, In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, 26 F. Supp.2d 449 (E.D. Pa. 2014), the MDL court let plaintiffs try again.  In re Zoloft Products Liability Litigation, 2015 WL 115486 (E.D. Pa. Jan. 7, 2015).  The new expert was ultimately excluded as well.  In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, 2015 WL 7776911 (E.D. Pa. Dec. 2, 2015).  However, that do-over took a year and cost the defendant who knows how much money, headaches and heartburn.

In the middle was In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices. & Products Liability Litigation, which we discussed here, where:

Over Defendant’s strenuous objections, the Court reopened discovery to allow Plaintiffs’ experts to serve supplemental reports. . . .  However, the Court agreed not to allow Plaintiffs “an entire Daubert do over.”  The Court limited the experts to data and studies cited in the experts’ prior reports or cited to the Court in the parties’ supplemental briefing.

174 F. Supp.3d 911, 932 (D.S.C. 2016) (citation omitted).  Nonetheless, plaintiffs filed a supplemental report that amounted to a “complete do over,” thereby failing to comply with the court’s order.  Id. at 933.  That report was excluded.  Id. at 933-34.

So we decided to take a broader look, seeking support for the proposition that plaintiffs, having taken presumably their best shot, are not entitled to expert do-overs.  We start with the Supreme Court.  Given the saliency of Rule 702:

[i]t is implausible to suggest . . . that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail. . . .  [A]lthough [plaintiff] was on notice every step of the way that [defendant] was challenging his experts, he made no attempt to add or substitute other evidence.

Weisgram v. Marley Co., 528 U.S. 440, 455-56 (2000).  Plaintiffs will not be heard to argue that they “could have shored up their cases by other means had they known their expert testimony would be found inadmissible.”  Id.

A plaintiff seeking to replace an excluded expert likewise drew back a nub in Winters v. Fru-Con Inc., 498 F.3d 734 (7th Cir. 2007).  Rule 702 “does not include a dress rehearsal or practice run for the parties.”  Id. at 743 (citation and quotation marks omitted).

[Plaintiff] had ample time to develop his case and conduct his testing . . . during the discovery period.  His inability to produce admissible expert testimony is due to his own actions, namely the failure of his proposed experts to test their alternatives.  The district court was not required to give [plaintiff] a “do over” and therefore we find that the district court did not abuse its discretion.

Id. Right on.

On analogous facts, Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244 (6th Cir. 2001), recognized that “fairness does not require that a plaintiff, whose expert witness testimony has been found inadmissible . . ., be afforded a second chance to marshal other expert opinions and shore up his case before the court may consider a defendant’s motion for summary judgment.”  Id. at 249-50.  Nelson thus made it “ clear that [an expert’s] purported unavailability does not give [plaintiff] the right to a ‘do-over’ as to the district court’s unfavorable Daubert ruling.”  Allied Erecting & Dismantling Co. v. United States Steel Corp., 2023 WL 5322213, at *6 (6th Cir. Aug. 18, 2023).  Likewise, Lippe v. Bairnco Corp., 99 F. Appx. 274 (2d Cir. 2004), held that “plaintiffs had a full and fair opportunity to develop and defend their choice of experts.  That they failed in that endeavor does not entitle them to begin anew.”  Id. at 280.  A Vaccine Act case similarly held that “parties are expected to put their best case forward in the first instance.”  Piscopo v. Secretary of HHS, 66 Fed. Cl. 49, 55 (2005).

In Rimbert v. Eli Lilly & Co., 2009 WL 10672150 (D.N.M. Nov. 16, 2009), which the blog discussed here, the plaintiff in a pharmaceutical product liability case, after having his chosen expert excluded, blithely claimed that “he can easily designate a new expert,” but did “not provide[] the Court with any indication of who this witness might be or what the basis for the witness’s testimony would be.”  Id. at *3.  Because “the Court has nothing more to go on than Plaintiff’s assurances that his new expert would succeed where his initial choice failed,” id., there was no good cause for allowing the plaintiff a second bite at the apple:

That Plaintiff initially chose an expert whose methodology the Court deemed unreliable does not constitute “good cause” to modify the scheduling order.  This is especially true in this instance where the case is ripe for dismissal and where Plaintiff had adequate notice early on of the flaws in [the expert’s] report, flaws that the Court ultimately found precluded her testimony, and Plaintiff made no attempt to fix these flaws or to offer a substitute expert until it was too late.

Id. (citations omitted).  The plaintiff in Rimbert had more than enough “notice and opportunity” to “shore up” the flaws in the report “or to name a new expert” before the court ruled, but did not.  Id. at *4.  Since “[h]e did not do so, [plaintiff] cannot, at this stage, seek a ‘do-over.’”  Id. (footnote omitted).

[A] core principle . . . guides determination of this matter − the Rules of Civil Procedure simply do not automatically afford a party a second chance to find a new expert after its initial expert’s testimony has been found inadmissible.

Id. at *4 n.4.

Last month’s decision in Martins v. Sherwin-Williams Co., 2024 WL 641383 (E.D.N.Y. Jan. 10, 2024), was also music to our ears.  The expert whose testimony the Martins plaintiffs purchased turned out to be a bozo.  Id. at *1 (“plaintiff’s counsel picked the wrong expert”; his opinion “met none of the Daubert criteria”).  Could plaintiff get a do-over?  Martins responded with a resounding “no.” 

Plaintiff was not diligent in obtaining reliable expert discovery before that deadline.  Plaintiff is charged with notice that each of his expert witnesses . . . would have to meet the well-established standards. . . .  [P]laintiff cannot shift the blame to [his expert search firm] or [the excluded “expert”].  They are not lawyers.  Plaintiff’s counsel had to make the call under Rule 702 . . . as to whether the proffered expert was qualified and could give an admissible opinion.

The Federal Rules of Civil Procedure do not guarantee plaintiff a do-over just because his expert witness was disqualified.  That would not be fair to defendants.

Id. at *1-2.

In holding that the rules “do not alow plaintiff a second bite at the apple,” Martins relied on several earlier decisions:  Lippe v. Bairnco Corp., 249 F. Supp. 2d 357, 386 (S.D.N.Y. March 14, 2003), recognized that replacing an excluded expert “is not the way the Federal Rules of Civil Procedure work.  Plaintiffs do not get a ‘do-over.’”

[I]t is more than just delay and additional work and expense.  Rather, it would be fundamentally unfair to require defendants to go through the process again, to delay the final resolution of this very difficult and burdensome case, solely because plaintiffs made some ill-advised tactical choices and refused to adjust when it was apparent that they should.  When a party loses . . ., it does not get to do it again.

Id.  Accord Exist, Inc. v. Tokyo Marine American Insurance Co., 2023 WL 7117369, at *3-4 (S.D.N.Y. Oct. 5, 2023) (no good cause without “concrete information suggesting that [a second expert] would be successful”; no new report submitted); Bermudez v. City of New York, 2018 WL 6727537, at *7 (E.D.N.Y. Dec. 21, 2018) (no “good cause as to why [plaintiff] should be permitted a second chance to fulfill his obligations under” the rules);

In Bank of America, N.A. v. Jericho Baptist Church Ministries, Inc., 2020 WL 128455, at *1 (D. Md. Jan. 10, 2020), aff’d, 2022 WL 11112695 (4th Cir. Oct. 19, 2022), a party − the defendant, this time − “chose to designate [the excluded expert] as its sole standard-of-care expert and vigorously persisted in” supporting that expert only.  Once excluded, “the Court will not allow [defendant] a ‘do-over.’”).  Similarly, Brown v. China Integrated Energy, Inc., 2014 WL 12577131, at *3-4 (C.D. Cal. Nov. 21, 2014), held that “[p]laintiffs are not entitled to a ‘do-over’ after their expert witness is disqualified”) (collecting cases).  See also Syneron Medical Ltd. v. Invasix, Inc., 2018 WL 4696969, at *1 n.1 (Mag. C.D. Cal. Aug. 27, 2018) (an expert “do-over would be unjust to [defendant], unless [plaintiff] agrees to reimburse [it] for the considerable fees and costs that it will be incurred in connection with such a do-over”), adopted, 2018 WL 11351325 (C.D. Cal. Sept. 28, 2018); In re M/V MSC Flaminia, 2017 WL 3208598, at *5 (S.D.N.Y. July 28, 2017) (“the disclosure obligations . . . do not provide for a “do over” . . ., what is done is done”);

No do-overs was also the theme in a couple of bankruptcy cases. In re HHE Choices Health Plan, LLC, 2019 WL 6112679, at *8 (Bankr. S.D.N.Y. Nov. 15, 2019), held that

Giving parties a ‘do-over’ if and when their [expert] reports are found to be unreliable would just encourage parties and experts to cut corners and to submit sub-standard work in the first go-round.  It would also force innocent adversaries to incur additional and unnecessary expense and inconvenience.

Id. at *8.  The same result occurred in In re H & M Oil & Gas, LLC, 511 B.R. 408 (Bankr. N.D. Tex. 2014), where the trustee requested that shoddy expert preparation “not be held against” him.  Id. at 421.  That amounted to a request for a “do-over” and was denied:

[C]ounsel is asking for a “do-over” of the Daubert Hearing − i.e., by (1) attempting to supplement the evidentiary record after the close of evidence . . .; and (2) suggesting that the Defendants can cross-examine [the expert] about this at trial.  Not surprisingly, the Defendants object to any “do-over.”  There will be no “do-over” here.  The Daubert Motions were timely filed by the Defendants[, and] . . . [t]he case law is clear that the proponent of the expert evidence − here the Trustee − had the burden of proof.

Id.

There’s probably even more out there.  All we did was search for Rule 702 and “do-over” and follow wherever the cases we found led us.  But we’re confident that the basic legal proposition is sound – parties are expected to take their best shot with experts the first time around, and when they lose, they don’t get do-overs.