City and County of San Francisco v. Purdue Pharma L.P.

Background

The defendants moved to strike portions of rebuttal reports prepared by the plaintiff’s experts, Dr. Keyes and Dr. Waldman. They argued that the challenged portions presented new analyses and opinions that were not proper rebuttal testimony. The plaintiff opposed the motion. The court granted the motion.

Dr. Keyes’s rebuttal report

In her opening report, Dr. Keyes offered opinions connecting increasing opioid prescriptions with opioid-related harms. She stated, among other things, that the defendants’ aggressive opioid marketing caused an oversupply of opioids that led to harms in San Francisco.

The defendants’ experts criticized Dr. Keyes for not defining “oversupply” and for not performing a quantitative analysis showing that the defendants’ allegedly misleading marketing caused an oversupply. In response, Dr. Keyes’s rebuttal report included a new analysis purporting to calculate how much opioid prescriptions in San Francisco exceeded medical need in each year from 1997 through 2017.

The court held that this was not proper rebuttal testimony. Instead of explaining, countering, or disproving new evidence from the opposing side, Dr. Keyes was responding to a criticism of an omission in her opening report by adding a new model and methodology. The court noted that Dr. Keyes testified that she could have included the analysis in her opening report.

Under Federal Rule of Civil Procedure 26, expert disclosures must be made at the required time, and under Rule 37(c), an untimely disclosure may be excluded when it is neither substantially justified nor harmless. The court found that the plaintiff had not adequately explained the delay and that the delay prejudiced the defendants by preventing them from conducting related fact discovery and addressing the opinion through their own experts. The court therefore granted the motion to exclude the new analysis in Section II of Dr. Keyes’s rebuttal report.

Dr. Waldman’s rebuttal report

Dr. Waldman did not prepare an opening report but did prepare a rebuttal report that purported to respond to opinions by the defendants’ expert, Dr. Singh. The court found that the challenged opinions did not respond to Dr. Singh’s report. At his deposition, Dr. Waldman testified that the opinions identified in the order did not respond to opinions expressed by Dr. Singh.

For the same reasons discussed in connection with Dr. Keyes’s report, the court found that the late disclosure of opinions that did not respond to the defendants’ experts was neither substantially justified nor harmless. The court granted the defendants’ motion to exclude the challenged opinions in Dr. Waldman’s rebuttal report.

Disposition

The court granted the defendants’ motion to strike the challenged portions of both rebuttal reports. This was an evidentiary and expert-disclosure ruling; the order did not decide the underlying claims about opioid marketing or opioid-related harms.