Edwards Lifesciences Corporation v. Meril Life Sciences Pvt. Ltd.

Background

Meril Life Sciences Pvt. Ltd. and Meril, Inc. moved to exclude certain opinions in Dr. Nimesh Desai’s amended expert report as untimely under Federal Rules of Civil Procedure 26 and 37. Edwards Lifesciences Corporation and Edwards Lifesciences LLC opposed the motion.

The scheduling order required Edwards to disclose its expert opinions by August 6, 2021. Edwards served Dr. Desai’s initial report on that date. At the time, Meril had objected to Dr. Desai’s access to information designated confidential or highly confidential under the parties’ protective order. Judge Westmore later ruled that Dr. Desai qualified as an independent expert under that order and could access Meril’s highly confidential information. Judge Westmore directed the parties to discuss the time Dr. Desai needed to review that information and whether another deposition was necessary.

Edwards served Dr. Desai’s amended report on December 8, 2021. The amended report was substantially longer than the initial report, spanning 89 pages rather than 11 pages.

Legal standard

Rule 26 requires expert disclosures by the deadlines set by the court. Under Rule 37(c)(1), a party that fails to make a required disclosure generally may not use the information or witness unless the failure was substantially justified or harmless. In evaluating whether an untimely expert disclosure was justified or harmless, the court may consider prejudice or surprise, the ability to cure the prejudice, possible disruption of trial, and bad faith or willfulness.

Court’s analysis

Meril argued that Judge Westmore’s order authorized new opinions only on issues related to previously undisclosed confidential information. Edwards read the order more broadly, arguing that it allowed an amended report addressing Meril’s confidential clinical information, later document productions, and later expert opinions.

The court found that Edwards misread Judge Westmore’s order. The order addressed only the extent to which Edwards’s physician experts could review information covered by the protective order. It did not address the timeliness of Meril’s document productions or the propriety of opinions in Meril’s expert reports. The court therefore concluded that the order did not authorize Edwards to address those matters from the beginning after the August 6 expert-disclosure deadline.

The court held that the order allowed an amended report addressing newly produced documents and materials designated confidential or highly confidential under the protective order. Opinions in the amended report based on documents or information already available to Dr. Desai when he prepared his initial report were untimely. The court also found that the late disclosure, made less than six weeks before the final pretrial conference and eight weeks before trial, prejudiced Meril’s trial preparation by requiring unnecessary time and resources.

Disposition

The court granted Meril’s motion to strike any portions of Dr. Desai’s amended report that did not directly address documents and materials designated confidential or highly confidential under the protective order. The court identified paragraphs 9, 20–49, 51–75, 81–86, 92–168, 170–178, 196–203, 208–210, and 222–272 for counsel to check against specific Bates numbers. Any of those paragraphs that counsel could not directly attribute to newly produced confidential or highly confidential documents and materials were to be stricken.