Rolandson v. Ethicon, Inc.

Background

Janet Rolandson alleged that two pelvic mesh devices marketed by Ethicon, Inc. and Johnson & Johnson caused serious injury and significant pain. The case was transferred to multidistrict litigation in the Southern District of West Virginia and later returned to the District of Minnesota.

During the multidistrict litigation, the court set expert-disclosure deadlines and limited each side to five experts, excluding treating physicians. Rolandson timely disclosed five experts, including Dr. Geoffrey Towers. After the case returned to Minnesota, this court entered a scheduling order concerning limited remaining discovery, including medical examinations and depositions. The order did not reopen or change the earlier expert-disclosure deadlines.

Rolandson later disclosed a new general expert report by Dr. Daniel Elliott, stating that the report had been inadvertently omitted during the multidistrict litigation. She then disclosed general and case-specific reports by Dr. Michael Margolis, along with a supplemental report by Dr. Towers. The new reports were served more than a year after the applicable expert-disclosure deadline and increased Rolandson’s disclosed experts beyond the five allowed by the multidistrict court’s order.

Dr. Margolis’s report described an examination during which he observed a small area of exposed mesh. Dr. Towers later reported that he removed mesh during an examination and that it might have been Prolift mesh, one of the devices Rolandson had received. Towers did not preserve the removed mesh, despite a multidistrict-litigation preservation protocol requiring preservation of excised mesh and tissue samples. Defendants sought to strike the new reports and the portions of Towers’s supplemental report concerning the mesh exposure and removal.

Court’s analysis

The court applied Federal Rule of Civil Procedure 26, which requires parties to disclose expert witnesses and reports according to court-ordered deadlines. It also relied on Rules 16 and 37, which permit courts to enforce scheduling and discovery orders and to exclude information when an untimely disclosure is neither substantially justified nor harmless.

The court held that the Elliott and Margolis reports were disclosed after the deadline and that the late disclosures were neither substantially justified nor harmless. The court rejected the argument that its later Minnesota scheduling order had reopened expert disclosures. That order addressed only limited remaining discovery and did not expressly modify the already expired expert deadlines.

The court found prejudice because the late disclosures deprived Defendants of the opportunity to make strategic decisions about their responding experts. Allowing the new experts also would have left Rolandson with seven experts while Defendants had five and could have required reopening discovery. The court further emphasized the effect on the multidistrict litigation process, which depended on parties and courts being able to rely on completed coordinated discovery.

The court excluded both of Margolis’s reports in their entirety and barred Rolandson from calling Margolis at trial or any hearing. It also excluded Elliott’s report in its entirety and barred Rolandson from calling Elliott. The court noted, however, that excluding Elliott would not leave Rolandson without expert support for her Prolift claims because Defendants had agreed that she could rely on previously disclosed opinions by Dr. Rosenzweig concerning Prolift.

As to Towers, the court excluded all portions of his supplemental case-specific report concerning his October 22, 2019 treatment of Rolandson, including his observation of mesh exposure, his excision of mesh, and his purported identification of the mesh’s manufacturer from the removed specimen. Towers could not testify about those matters. The court found that Defendants were prejudiced because they could not examine the excised material themselves. Rolandson’s counsel did not oppose striking those portions.

Sanctions and disposition

The court also imposed a monetary sanction under Rule 16. It found that counsel’s conduct involved more than an accidental discovery error: counsel failed to comply with the expert-disclosure order, did not promptly address the problem, and was not candid with Defendants and the court about the late disclosures and the failure to preserve the mesh.

The court granted Defendants’ Motion to Strike. It excluded the specified expert reports and testimony, and ordered Plaintiff’s counsel—not Plaintiff—to pay Defendants $14,231.62 within 30 days. The amount represented reasonable expenses, including attorney’s fees, incurred in bringing the motion.