Higgins v. Boston Scientific Corporation

Background

The court considered Steven Higgins’s motion to substitute Dr. Lawrence Mayer for expert witness Casper Uldricks or, alternatively, to rule that Dr. Mayer could serve as a rebuttal expert. Higgins had identified four experts by the August 30, 2019 deadline, then withdrew Uldricks on October 5, 2019. Boston Scientific did not agree to the proposed substitution.

The scheduling order required affirmative expert disclosures by August 30, 2019, written reports by October 18, 2019, rebuttal-expert disclosures by November 11, 2019, and rebuttal reports by December 6, 2019. Each side was limited to four expert witnesses and four expert depositions.

Analysis

The court held that Higgins could remove Uldricks without permission from the court or Boston Scientific. The remaining issue was whether Higgins could use that open expert slot for a new affirmative expert or only for a rebuttal expert.

Under Federal Rule of Civil Procedure 16(b)(4), a scheduling deadline may be changed only for good cause and with the court’s permission. The court found that Higgins had not shown diligence in meeting the deadline for identifying Dr. Mayer as an affirmative expert. The court noted that Higgins’s explanation relied significantly on Boston Scientific’s expert disclosures and concluded that Higgins could not review those disclosures and then redo his affirmative expert designations. Because diligence was absent, the court did not need to analyze prejudice to Boston Scientific.

The court concluded that Higgins had one open expert-witness slot that could be used for a rebuttal expert, whether Dr. Mayer or someone else. But the court declined to issue an advance or advisory ruling on whether Dr. Mayer would be an appropriate rebuttal expert because the testimony had not yet been prepared in response to expert reports that had not yet been provided.

The court also denied Boston Scientific’s request for a fifth expert deposition aimed at James O’Reilly. Although O’Reilly was cited as an expert in Higgins’s Second Amended Complaint, Higgins had not identified him as a testifying expert. The court therefore treated him as a non-testifying expert, for whom discovery is heavily restricted under Rule 26(b)(4)(D).

Disposition

The court denied Higgins’s Motion for Leave to Substitute Expert or, Alternatively, for Ruling that Expert is Acceptable as Rebuttal Expert. It also denied Boston Scientific’s request for a fifth expert deposition of O’Reilly. Judge Tony N. Leung signed the order.