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Ironically, today’s post is running a little late—because life’s not perfect and sometimes despite the best of intentions, you need a bit more time.  But, if you are going to ask for more time to meet a court ordered deadline to submit evidence that is critical to your case, you better ask in advance and you better be able to show that you really tried to make the deadline.  Otherwise, as the plaintiff in Eichen v. Ethicon Endo Surgery, Inc., learned, too little, too late can be too real.  2024 U.S. Dist. LEXIS 193526 (D.S.C. Oct. 24, 2024).

Plaintiff underwent removal of a portion of his colon which required the remaining portions to be reconnected. His surgeon used defendant’s surgical stapler to accomplish the reconnection.  Several days later, a revision surgery was required to repair a small hole at the point of the reconnection.  Plaintiff alleges that a defect in the stapler caused the hole and brought his lawsuit alleging strict liability design defect, manufacturing defect, failure to warn, and negligence.

The deadline for expert reports was first set for June 8, 2022, and was then extended by the court four times until March 15, 2024.  That deadline came and went with no motion to extend and no expert reports by plaintiff. So, defendant moved for summary judgment on several grounds, chief among them plaintiff’s lack of expert evidence.  A week later, plaintiff filed a motion to extend the expert report deadline.

Plaintiff argued that the court should extend the expert deadline because defendant’s discovery responses were deficient and a motion to compel would be forthcoming.  While plaintiff tried to invoke Federal Rule of Civil Procedure 37’s “substantially justified” or “harmless” standard, that applies to the admission of evidence that a party seeks to introduce despite failing to properly disclose.  But plaintiff did not even attempt to proffer an expert.  Instead, the rules that apply to determine whether to extend an expert deadline after the deadline has passed are Rule 6(b)(1)(B) and 16(b)(4).  The first gives the court discretion to extend the deadline on a showing of “good cause” where the failure to act was because of “excusable neglect.”  Rule 16 likewise requires a showing of good cause and notably it “does not focus on the prejudice to the non-movant or bad faith of the moving party, but rather on the moving party’s diligence.”  Id. at *14 (emphasis added).

Plaintiff could not demonstrate that he acted diligently.  Despite claiming he could not get an expert due to defendant’s deficient discovery responses, plaintiff admitted that product identification occurred four months before his expert reports were due and he took no action to either secure an expert or move to extend the deadline before it expired.  Plaintiff also failed to file a motion to compel, the deadline for which has also passed. Plaintiff also failed to initiate the court-required telephone conference to resolve discovery disputes.  Having taken no action at all, plaintiff’s motion to extend the scheduling order was denied.

Turning then to defendant’s motion for summary judgment, the court began with South Carolina’s general rule that “where the subject is beyond the common knowledge of the jury expert testimony is required.”  Id. at *19-20.  Because the question of “common knowledge” is fact specific, whether expert testimony is required is left to the discretion of the trial judge.  There was really no dispute that whether defendant’s surgical stapler contained a design defect is a complex issue requiring expert testimony. Id. at *20-22.  Nor could plaintiff establish causation without expert evidence. Whether defendant adequately warned about the risks associated with its surgical stapler:

turns on the knowledge, training, and experience of physicians, and it is precisely the type of information that is the subject of expert testimony.

Id. at *23. 

Plaintiff made two arguments in opposition to summary judgment.  First, he argued he did not need expert evidence to prove his manufacturing defect claim.  While some manufacturing claims may not require expert testimony, that is not the case here due to the “complexity and technical nature” of the surgical stapler, which plaintiff conceded by his belated request for more time to retain an expert.  Id. at *25. 

Second, plaintiff argued that because his surgeons testified that they could not state to a reasonable degree of medical certainty that the stapler caused the hole, there remains a question of material fact that prevents summary judgment.  The court found plaintiff “misused and misapplied” his surgeon’s testimony. Plaintiff also overlooked that both his surgeons testified that the complication plaintiff experienced is a known risk that can occur absent any product defect or wrongdoing.  Id. at *26.  To meet his burden of proof, plaintiff was required to produce affirmative evidence stated to a reasonable degree of medical certainty that a defect in the stapler caused his injury.  The fact that plaintiff’s surgeons could not offer such an opinion establishes just the opposite—that plaintiff failed to meet his burden of proof and defendant is entitled to summary judgment.  Id. at *26-27.