In re Toy Asbestos Litigation

Background

Agnes Toy and Thomas H. Toy, Jr. filed an asbestos lawsuit in state court that was later removed to federal court. Their second amended complaint alleged that decedent Thomas Toy was exposed to asbestos and asbestos-containing products during his life, beginning in 1953 while serving in the United States Army and as a civil service employee for the United States government. They alleged that he developed and died from malignant mesothelioma. Honeywell International Inc. was one of 42 defendants and was identified as a supplier of asbestos-containing brakes.

The court had set deadlines for expert reports, expert depositions, and dispositive motions. The scheduling orders stated that the deadlines could be changed only upon a showing of good cause. Honeywell asked to modify the schedule in two ways: to allow Dr. Anil Vachani, its pulmonology expert, to submit a supplemental report, and to permit his deposition after the April 27, 2020 deadline.

Legal standard

Federal Rule of Civil Procedure 16(b)(4) allows a scheduling order to be changed only for good cause and with the judge’s consent. Good cause primarily concerns the diligence of the party seeking the change. Rule 26(e), which addresses supplementation of expert disclosures, creates a duty to supplement or correct information later acquired, but does not create an unrestricted right to submit new or revised opinions after the court’s deadline.

Court’s analysis

The court denied the request to supplement Dr. Vachani’s report. Honeywell relied on a supplemental report from its pathologist, Dr. Allen Gibbs, which followed an untimely report by a co-defendant’s pathology expert. The reports addressed whether Thomas Toy died from lung cancer rather than mesothelioma. Honeywell did not explain why Dr. Gibbs could not have offered his opinion in his opening report, why preparing the supplemental report took two months, or why Honeywell did not seek an extension when that report was served.

The court also concluded that Honeywell appeared to have coordinated its experts only near the close of expert discovery. It held that Rule 26(e) could not be used to create a continuing, rolling exchange of expert reports or to avoid the scheduling order. Allowing Dr. Vachani’s supplemental report would have required reopening discovery and would have given the plaintiffs an opportunity to investigate the new opinions and prepare a rebuttal after dispositive motions had already been filed.

The court granted the request to extend the deposition deadline. Dr. Vachani had been caring for COVID-19 patients since mid-March and was unavailable for his noticed deposition. The court found good cause to allow the plaintiffs to depose him after the expert-discovery deadline.

Disposition

Judge Haywood S. Gilliam, Jr. granted in part and denied in part Honeywell’s motion to modify the case schedule. Honeywell could not supplement Dr. Vachani’s expert report, but the plaintiffs could depose him after the expert-discovery deadline. The parties were directed to meet and confer and submit a stipulation and proposed order within seven days addressing the deposition date, the deadline for filing a Daubert motion concerning Dr. Vachani, and the related hearing. The court stated that other case deadlines remained in effect unless it ordered otherwise, except that the trial date would be vacated consistent with General Order No. 72-3.