Rouviere v. Depuy Orthopaedics, Inc.

Background

This medical-device product-liability case concerns injuries allegedly sustained by Jodi Rouviere after receiving a purportedly defective hip implant containing components manufactured by Howmedica Osteonics Corporation, doing business as Stryker Orthopaedics, and DePuy Orthopaedics, Inc. The motion concerned an engineer whom Plaintiffs retained as a testifying expert shortly before the expert-disclosure deadline.

Howmedica previously used the engineer as a paid consultant in two ongoing groups of hip-implant lawsuits. According to the opinion, the engineer reviewed confidential Howmedica documents concerning the design and development of hip devices, the materials used in those devices, and the regulatory-approval process. He also met with Howmedica’s defense attorneys and learned about their litigation and trial strategies.

Plaintiffs entered into a retainer agreement with the engineer on September 18, 2020, and served his expert report on September 21, 2020. Howmedica moved to disqualify him, arguing that it had previously retained him for confidential work involving issues relevant to this case. Plaintiffs argued, among other things, that the engineer was not directly retained by Howmedica, had not worked for Howmedica since 2017, and had worked on different products.

Legal standard

The court explained that it has inherent authority to disqualify an expert witness. When a party seeks to disqualify an expert previously retained by another party, the moving party must show both that it was objectively reasonable to believe a confidential relationship existed and that confidential information was actually disclosed to the expert. Disqualification is a drastic remedy that should be used rarely.

Analysis

The court held that Howmedica met both requirements. First, it was objectively reasonable for Howmedica to believe it had a confidential relationship with the engineer. Howmedica’s outside counsel had retained the engineer’s employer under an agreement requiring confidentiality, and the engineer had separately agreed to confidentiality obligations under a protective order. The court also found no reason for Howmedica to believe that the relationship ended merely because the earlier lawsuits had been stayed rather than finally resolved.

Second, the court found that the engineer had received Howmedica’s confidential information. The opinion states that he received tens of thousands of pages of confidential documents and was exposed to Howmedica’s defense strategies. The court also found significant overlap between the issues in the earlier Howmedica lawsuits and the issues in this case. Allowing the engineer to switch sides, the court concluded, would be unfair and would undermine the integrity of the judicial process.

The court found that Plaintiffs would not be prejudiced because they had worked with the engineer for only a few days before his report was issued. It therefore allowed Plaintiffs time to retain an alternate engineer expert.

Disposition

Magistrate Judge Stewart D. Aaron granted Howmedica’s motion to disqualify the engineer expert. The court denied Howmedica’s motion to stay related discovery as moot. Plaintiffs were permitted to serve a disclosure for an alternate engineer expert by November 9, 2020, covering the same subject areas. The order also set deadlines for depositions and for any responsive expert disclosure by Howmedica.