Rouviere v. Depuy Orthopaedics, Inc.
- Gregory Woods
- 1:18-cv-04814
- U.S. District Court · Southern District of New York
- 18
In Rouviere v. Depuy Orthopaedics, Judge Aaron granted the motion in part and denied it in part, allowing two supplemental expert reports but denying sanctions.
The ruling affected the plaintiffs’ expert-discovery options, HOC’s potential responsibility for discovery-related expenses, and DePuy’s ability to oppose late engineering expert opinions. It allowed supplemental reports from Dr. Gannon and Dr. Bobst but not from the Prior Engineer Expert or Dr. John Jarrell.
What happened
In Rouviere v. Depuy Orthopaedics, the plaintiffs asked to change the expert-discovery schedule and sanction Howmedica Osteonics Corporation (HOC). They said HOC obtained three replacement tissue slides from Baptist Hospital but did not disclose them, so their experts prepared reports without reviewing them.
The court allowed Dr. Gannon and Dr. Bobst to submit supplemental reports after reviewing the slides. It did not allow the two engineering experts, the Prior Engineer Expert and Dr. John Jarrell, to supplement their reports because the plaintiffs had not shown sufficient diligence and reopening engineering discovery would especially harm DePuy.
Judge Aaron also declined to impose sanctions on HOC. The court found that HOC should have disclosed the slides but treated its failure as an innocent error of judgment. The plaintiffs’ motion was therefore granted in part and denied in part.
The detailed version
- Rouviere v. Depuy Orthopaedics, Inc. · No. 1:18-cv-04814
- Gregory Woods
- Apr. 29, 2021
Background
This medical-device product-liability case concerns injuries allegedly sustained by Jodi Rouviere after receiving a hip implant containing components manufactured by Howmedica Osteonics Corporation (HOC), doing business as Stryker Orthopaedics, and DePuy Orthopaedics, Inc. The motion concerned three replacement tissue slides that HOC obtained from Baptist Hospital in November 2019 using an authorization provided to DePuy’s counsel. HOC did not dispute that it failed to tell the plaintiffs or DePuy that it had requested, obtained, or possessed the slides.
The plaintiffs said they learned of the slides in January 2021. Dr. Gannon examined them in March 2021 and reported finding materially different evidence of metal wear debris. The plaintiffs said Dr. Gannon, Dr. Bobst, the Prior Engineer Expert, and Dr. John Jarrell believed their opinions would be affected and that supplemental reports were warranted. The defendants opposed changing the schedule.
Scheduling-Order Request
Under Rule 16(b) of the Federal Rules of Civil Procedure, a scheduling order may be changed for “good cause.” The court focused primarily on the plaintiffs’ diligence and also considered the importance of the evidence, prejudice, the opportunity for discovery, and the timing of trial.
The court found good cause to permit Dr. Gannon to supplement his report. Although the plaintiffs could have requested the slides directly from Baptist Hospital, they had provided an authorization subject to receiving materials collected under it, served discovery requests broad enough to cover the slides, and requested records of third-party requests from Baptist Hospital. The court found that these steps should have revealed HOC’s possession of the slides and that HOC’s failure to disclose them deprived the plaintiffs of a meaningful opportunity to analyze them before the expert deadline. The plaintiffs also moved promptly after learning of the slides, and no trial date had been set.
The court allowed Dr. Bobst to submit a supplemental report for essentially the same reasons. Dr. Bobst had relied on Dr. Gannon’s pathology report in preparing his original report, so the court concluded that the plaintiffs’ diligence would likely have led Dr. Bobst to consider Dr. Gannon’s analysis of the slides if HOC had disclosed them.
The court denied permission for both engineering experts to submit supplemental reports. First, the plaintiffs did not show that those experts had reviewed the original slides or Dr. Gannon’s original report when preparing their initial reports. The court therefore found no basis to conclude that they would have considered the replacement slides or an analysis of them if the materials had been timely disclosed. Second, allowing the engineering experts to supplement would have substantially prejudiced DePuy, which had already briefed a summary-judgment motion based on the plaintiffs’ lack of engineering expert testimony concerning defects in DePuy’s components. The court viewed reopening that discovery as giving the plaintiffs another untimely opportunity to support their claims against DePuy. It also noted that HOC, not DePuy, was the party alleged to have failed to meet the disclosure obligation.
Sanctions Request
The plaintiffs also sought expenses and attorney’s fees under Rule 37(c)(1), which permits sanctions when a party fails to provide required discovery information unless the failure was substantially justified or harmless. The court declined to impose sanctions. It agreed that HOC should have disclosed the slides, but accepted HOC’s assertion that it had not analyzed the slides before the plaintiffs found them. The court also found credible HOC’s belief that disclosure was unnecessary because replacement slides from the same tissue block generally would not materially differ from the original slides.
Disposition
The court granted the plaintiffs’ motion in part and denied it in part. The plaintiffs could serve supplemental reports from Dr. Gannon and Dr. Bobst by May 14, 2021. The parties were directed to confer and submit a proposed schedule for rebuttal reports and depositions by May 17, 2021. The court did not permit supplemental reports from the Prior Engineer Expert or Dr. Jarrell and declined to impose sanctions on HOC.
Read the full 18-page opinion on CourtListener, the free public archive maintained by the Free Law Project.