Brian Joseph Gref v. American International Industries

Background

Brian Joseph Gref alleged that lifelong use of defendants’ talcum-powder products exposed him to asbestos and caused peritoneal mesothelioma. The defendants jointly moved to preclude, meaning exclude from use in the case, Gref’s supplemental expert disclosures.

The court had ordered Gref to serve his medical expert reports by December 15, 2021. Gref timely served an October 2021 report from Dr. Jaqueline Moline. During her first deposition in July 2022, Moline testified that she had not performed defendant-specific dose calculations and was not offering a dose opinion. Before her second deposition in September 2022, she performed dose calculations, but Gref’s counsel did not disclose them before that deposition. Counsel elicited testimony about the calculations during redirect examination.

In January 2023, Moline coauthored an article that Gref later disclosed she intended to rely on. After a July 2023 conference, the court directed Gref to supplement his expert disclosures under Federal Rule of Civil Procedure 26(e). Gref then served Moline’s supplemental report containing a dose assessment and a declaration identifying the 2023 article. He also served supplemental disclosures from Dr. William Longo, Dr. Arnold Brody, and Dr. Mark Krekeler.

Legal standard

Rule 26 requires parties to disclose expert opinions and the facts or data supporting them at the times set by the court. It also requires timely supplementation when an earlier disclosure is materially incomplete or incorrect. Under Rule 37(c)(1), information that was not properly disclosed generally cannot be used unless the failure was substantially justified or harmless.

The court applied four factors when considering whether to exclude the information: the explanation for the delay, the importance of the evidence, the prejudice to the opposing party, and the possibility of a continuance. Because excluding expert evidence is a severe sanction, the court explained that it should be used cautiously and only after considering less severe responses.

Analysis

The court concluded that Gref’s supplemental disclosures concerning Moline were untimely. Gref did not identify a justification for failing to disclose the 2023 article and dose calculations earlier, and the court found that no reasonable person could regard the supplemental report and declaration as timely.

The court nevertheless found the delay harmless. The disclosures occurred before discovery ended, no schedule for dispositive motions had been set, and no trial date had been established. Any prejudice could be addressed by continuing or reopening Moline’s deposition. The information underlying the dose calculations had previously been disclosed, defendants had questioned Moline about the 2023 article in other matters, and Moline’s ultimate opinion had not changed. The court also noted that the article was only one of numerous materials supporting her opinion.

As to Longo, Krekeler, and Brody, defendants did not identify which portions of their disclosures contained new opinion evidence or explain how defendants would be prejudiced if the disclosures were allowed. The court also stated that defendants appeared to have learned about the Longo and Krekeler reports through litigation in other matters.

Ruling

Judge Valerie Figueredo denied defendants’ joint motion to preclude Gref’s supplemental disclosures. The court stated that it would schedule a conference concerning the continuation of Moline’s deposition and any other relief warranted by the supplemental disclosures.