Rouviere v. Depuy Orthopaedics, Inc.

Background

This product-liability case concerns injuries allegedly sustained by Plaintiff Jodi Rouviere after receiving a hip implant containing components manufactured by DePuy Orthopaedics, Inc. and Howmedica Osteonics Corporation, doing business as Stryker Orthopaedics. The motion addressed only the admissibility of opinions concerning DePuy by Plaintiffs’ alternate engineer expert, John Jarrell, Ph.D.

The Court had set September 21, 2020, as the deadline for Plaintiffs’ expert disclosures. Plaintiffs timely served a report from a prior engineer expert, but that report offered opinions regarding Howmedica and did not offer opinions regarding DePuy or DePuy’s alleged failure to warn. Howmedica later obtained an order disqualifying that expert because Howmedica had previously retained him as a consulting expert in other litigation.

In the disqualification order, the Court allowed Plaintiffs to serve an alternate engineer expert disclosure by November 9, 2020, addressing the same scope of subject areas covered by the prior engineer expert. Plaintiffs then served Jarrell’s report on November 9. Jarrell’s report included opinions that DePuy failed to warn about product defects. DePuy moved to strike or otherwise preclude those opinions.

Legal standard

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may be modified only for good cause and with the judge’s consent. The good-cause inquiry primarily considers the party’s diligence in complying with the schedule and the reasons offered for changing it. The party seeking the change bears the burden of showing good cause.

Judge Aaron also explained that a magistrate judge may exercise discretion over whether to allow a late expert report. He treated the decision to admit or exclude expert testimony as a non-dispositive pretrial matter.

Analysis

The Court found that Plaintiffs did not serve an expert disclosure addressing design-defect and failure-to-warn issues as to DePuy by the September 21 deadline. Plaintiffs first offered failure-to-warn opinions concerning DePuy in Jarrell’s November 9 report. The Court found that Plaintiffs had not shown good cause for failing to offer those opinions by the deadline.

The Court rejected Plaintiffs’ argument that Jarrell’s opinions fell within the same scope of subject areas covered by the prior engineer expert. During oral argument, Plaintiffs conceded that the opinions challenged by DePuy concerned DePuy’s failure to warn and that the prior expert had expressed no opinion on that issue. The Court concluded that allowing Jarrell to add opinions about DePuy would improperly expand the scope of a substitute expert’s report.

The Court also rejected Plaintiffs’ argument concerning possible bias by the prior engineer expert. The Court stated that Plaintiffs knew, or should have known, about the expert’s prior relationships with DePuy when they served his report. The Court noted that Plaintiffs could have sought relief from the September 21 deadline if they believed the report was insufficient, but did not do so.

Disposition

Judge Stewart D. Aaron granted DePuy’s motion to strike the DePuy-related opinions offered by Jarrell. The opinion did not resolve the underlying product-liability claims or state a disposition of DePuy’s separate motion for summary judgment.