Higgins v. Boston Scientific Corporation

Background

The court reviewed Steven Higgins’s objections to United States Magistrate Judge Tony N. Leung’s April 28, 2021 order granting Boston Scientific Corp.’s motion to strike and exclude the testimony of Dr. Lawrence Mayer.

Boston Scientific offered Dr. Kenneth Ellenbogen as an expert witness. Dr. Ellenbogen opined, based on his clinical experience, that the Version 1 medical devices involved in the case were safe and effective. Higgins offered Dr. Mayer, an epidemiologist and biostatistician, whose statistical analysis concluded that patients with Version 1 devices had a higher mortality rate than patients with Version 2 devices.

Higgins moved to substitute Dr. Mayer for one of his experts after the deadline for disclosing expert witnesses had passed. Judge Leung denied that motion because Higgins had not been diligent in meeting the deadline. Higgins then tried to present Dr. Mayer’s testimony as rebuttal, meaning evidence offered to respond to the opposing party’s evidence. Judge Leung concluded that the testimony was not proper rebuttal because it compared the relative safety of Version 1 and Version 2 devices, while Dr. Ellenbogen’s report addressed the safety and effectiveness of Version 1 devices alone. Judge Leung found that the failure to disclose Dr. Mayer timely was neither justified nor harmless and excluded the testimony under Federal Rules of Civil Procedure 26(a)(2)(A) and 37(c)(1).

Objections and analysis

Higgins argued that Judge Leung’s order was contrary to law because it noted that Dr. Mayer could have been offered as an affirmative, or case-in-chief, witness. The district court explained that testimony may still be proper rebuttal even if it also could have been offered in the case-in-chief. But Judge Leung did not exclude the testimony merely because it could have been offered earlier. Instead, he found that it did not respond to Dr. Ellenbogen’s testimony. The district court determined that this analysis was legally proper.

Higgins also argued that Judge Leung omitted part of the legal standard for rebuttal evidence, including whether the evidence challenges an opponent’s evidence or theory. The district court rejected that argument, noting that Judge Leung had quoted and applied the relevant standard. The district court concluded that the problem was not an incomplete statement of the law, but that Dr. Mayer’s testimony did not contradict or rebut Dr. Ellenbogen’s evidence.

Higgins further argued that rebuttal witnesses may use new testing or methods and that Dr. Ellenbogen had performed a basic statistical analysis based on his personal experience. The district court stated that the issue was not simply the use of a different method. Rather, Dr. Mayer introduced a new theory about a mortality-rate difference between Version 1 and Version 2 devices and did not reach a conclusion about the safety of Version 1 devices. The court also rejected the argument that Dr. Lawrence Rosenthal’s use of Dr. Mayer’s analysis transformed it into proper rebuttal evidence.

Ruling

Under Federal Rule of Civil Procedure 72(a), the district court could modify or set aside the magistrate judge’s order only if it was clearly erroneous or contrary to law. Judge Joan N. Ericksen concluded that Judge Leung’s reasoning met that standard and did not clearly err by evaluating Dr. Mayer’s proposed testimony on its own terms.

The order therefore states: (1) Higgins’s objections to Judge Leung’s April 28, 2021 order are OVERRULED; and (2) Judge Leung’s order is AFFIRMED.