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 DePuy Orthopaedics, Inc. and Howmedica Osteonics Corporation, doing business as Stryker Orthopaedics.

The court previously granted DePuy’s motion to strike or otherwise preclude DePuy-related opinions from the plaintiffs’ alternate engineer expert, John Jarrell, Ph.D. The court had earlier disqualified another engineer expert in connection with Howmedica’s motion because Howmedica had previously retained that expert as a paid consultant in similar litigation. The court allowed the plaintiffs to disclose an alternate engineer expert regarding the same subject areas covered by the prior expert.

The prior engineer’s report, served on September 21, 2020, did not contain opinions about DePuy. Jarrell’s later report, served on November 9, 2020, did include DePuy-related opinions. In its November 24 order, the court found that the plaintiffs had not shown good cause for failing to offer those opinions by the September 21 deadline.

Motion for reconsideration

The plaintiffs moved under Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3 to alter, amend, or set aside the November 24 order. They argued that DePuy’s counsel had misled the court during oral argument by stating that the disqualified expert was not involved in ongoing litigation in which the expert had a role. The plaintiffs submitted a declaration stating that the Rowe litigation remained open and pending within multidistrict litigation involving DePuy’s Pinnacle hip implant.

DePuy submitted declarations responding to the plaintiffs’ argument. DePuy maintained that its counsel’s statements were consistent with the circumstances described during oral argument. DePuy also requested attorneys’ fees and costs, but the court noted that DePuy provided no statutory basis for that request and the court found none.

Legal standard

Under Local Civil Rule 6.3, reconsideration generally requires the moving party to identify an intervening change in controlling law, new evidence, or the need to correct a clear error or prevent manifest injustice. The standard is strict. Rule 59(e) permits a court to alter or amend a judgment to correct a clear legal error or prevent manifest injustice, but the court held that Rule 59(e) did not apply because no judgment had been entered.

Court’s analysis

The court held that the plaintiffs did not meet the strict standard for reconsideration because they did not identify anything the court had overlooked that would change its conclusion about the missed expert-disclosure deadline.

The court found some ambiguity in whether the disqualified expert was engaged in ongoing litigation, because the Rowe case remained open and pending. Considering the declarations and the full context of the oral-argument statements, however, the court concluded that DePuy’s counsel had not misrepresented the situation.

The court further held that the status of the Rowe case did not change the plaintiffs’ failure to seek an extension after receiving the prior engineer’s report on September 21. It also did not change the court’s conclusion that the plaintiffs knew, or should have known, about the prior engineer’s relationship with DePuy when they served that report. The court therefore maintained its prior conclusion that the plaintiffs had not shown good cause for submitting DePuy-related opinions after the deadline.

Disposition

Magistrate Judge Stewart D. Aaron denied the plaintiffs’ motion to alter, amend, or set aside the November 24 order. The opinion does not state that the underlying product-liability case was resolved by this ruling.