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Pritchard v. Dow Agro Sciences

November 12, 2009

ROBERT T. PRITCHARD AND ELIZABETH ANN PRITCHARD, PLAINTIFFS,
v.
DOW AGRO SCIENCES, A DIVISION OF DOW CHEMICAL COMPANY, SOUTHERN MILL CREEK PRODUCTS OF OHIO, AND RESIDEX PRODUCTS, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court are several motions related to Plaintiffs Robert T. Pritchard and Elizabeth Ann Pritchard's proffer of expert testimony by Dr. Bennet Omalu and Defendants Dow Agro Sciences ("Dow") and Southern Mill Creek Products of Ohio's ("Southern Mill") Daubert motion challenging same. Specifically, this Memorandum will address the following motions: (1) Defendants' Motion to Strike the Declaration of Dr. Bennet I. Omalu (Docket No. 137); (2) Dow's Motion to Compel Supplemental Responses to Requests for Production of Documents Two and Three (Docket No. 140); and (3) Plaintiffs' Motion for Leave to Amend Discovery Responses Nunc Pro Tunc (Docket No. 143). The Court heard oral argument from counsel regarding Defendants' motion to strike and Plaintiffs' response (Docket No. 139) thereto, as well as brief argument on the other motions at a hearing on September 22, 2009 (Docket Nos. 141, 142). After the hearing, the parties submitted supplemental briefing on the motions, which are now fully briefed and ripe for disposition. For the following reasons, and in accordance with the Order of Court issued on October 29, 2009, Defendants' Motion to Strike [137] is DENIED, Dow's Motion to Compel [140] is DENIED, and Plaintiffs' Motion for Leave [143] is GRANTED.

II. BACKGROUND*fn1

The instant lawsuit is a toxic tort case in which Mr. Pritchard and his wife assert that chemicals manufactured and sold by Defendants Dow and Southern Mill caused Mr. Pritchard to develop Non-Hodgkins Lymphoma. (Docket No. 23 at ¶¶ 7-10, 20). Plaintiffs, through their former counsel, initially identified Dr. Emilio Navarro as a potential expert witness as to medical causation in this matter. The parties then engaged in written discovery with Dow serving Plaintiffs with requests for production of documents and requests for admissions on June 18, 2008. Pritchard, 255 F.R.D. at 168-69. Plaintiffs' former counsel and defense counsel agreed to an extension of time, until August 20, 2008, for Plaintiffs to respond to said discovery. Id. Plaintiffs' former counsel missed the deadline and served responses to the written discovery on August 25, 2008.*fn2 Id.

Dow's requests and Plaintiffs' responses to same included the following:

Request No. 2: All reports, draft reports, affidavits and/or statements prepared by any expert witnesses that will testify in the trial of this matter and a copy of the most recent curriculum vitae for each such expert.

Response: All pertinent documents within the possession of the Plaintiffs and/or the Plaintiffs' attorneys have been provided or have been provided in the Plaintiffs' initial disclosures. See reports and documentation provided by Doctor Emilio Navarro. If additional documents applicable to the above request are obtained in the future by Plaintiffs and/or Plaintiffs' Attorneys, said documents will be provided.

Request No. 3: Each Document relied upon, provided to and/or prepared by Plaintiffs' testifying experts, including but not limited to statements, reports, draft reports, summaries, letters or other items, pertaining to the allegations in the Second Amended Complaint.

Response: All pertinent documents within the possession of the Plaintiffs and/or the Plaintiffs' attorneys have been provided or have been provided in the Plaintiffs' initial disclosures. If additional documents applicable to the above request are obtained in the future by Plaintiffs and/or Plaintiffs' Attorneys, said documents will be provided. (Docket No. 140 at 2-3). Neither Dow's requests nor Plaintiffs' responses have been amended since Plaintiffs' submissions on August 25, 2008. Numerous extensions of time were granted to Plaintiffs to both complete expert discovery as to medical causation including finding a new expert witness and substitute counsel as Plaintiffs' former counsel had sought to withdraw. Plaintiffs' current counsel, David Rodes, Esquire, and his firm, Goldberg, Persky & White, P.C., entered an appearance on April 30, 2009. (Docket No. 115). The Court then entered its Fourth Amended Case Management Order on May 8, 2009, setting forth an expedited discovery schedule due to the numerous delays in this case. That Order provides, in pertinent part:

6. Defendants shall file any Daubert motion related to Plaintiffs' medical causation expert(s) on or before July 22, 2009. Said motion may include affidavits of Defendants' medical expert witnesses. To the extent that Defendants rely on any such affidavits, Defendants shall make such witnesses available for deposition, at Plaintiffs' expense, between August 3, 2009 and August 19, 2009.

7. Plaintiffs shall file their response to any Daubert motion on or before August 21, 2009.

8. Defendants shall file any reply to Plaintiffs' response on or before September 4, 2009.

9. The Court will hear oral argument as to any Daubert motion on September 16, 2009 at 1:00 p.m.*fn3 (Docket No. 120).

Pursuant to this Order, Plaintiffs identified Dr. Bennet Omalu as their expert on medical causation and submitted his expert report to Defendants on June 1, 2009. (Docket No. 138-2). Thereafter, the parties engaged in correspondence regarding a dispute pertaining to the disclosures made by Dr. Omalu which resulted in Plaintiffs providing Defendants with a series of articles upon which Dr. Omalu relied in preparing his expert report. Dr. Omalu was then deposed on June 26, 2009. (Docket No. 128-3).

On July 22, 2009, Defendants filed their Motion To Exclude the Expert Causation Testimony of Dr. Omalu (Docket No. 127), along with their Brief in Support of said Motion. (Docket No. 128). Defendants maintain that Dr. Omalu is not qualified to render the opinions in his report. (Id.). They also argue that Dr. Omalu's opinions regarding both general causation and specific causation do not meet the reliability standards set forth in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and incorporated into Federal Rule of Evidence 702. In support of their motion, Defendants attached voluminous exhibits including the expert reports of Marshall A. Lichtman, M.D., Seymour Grufferman, M.D. and Michael Greenberg, M.D. (Docket Nos. 128-4, 128-5, 128-6).

In response to Defendant's Motion to Exclude, Plaintiffs filed their Brief in Opposition on August 28, 2009. (Docket No. 135). Plaintiffs argue that each of Defendants' objections are lacking in merit and that Dr. Omalu's testimony should be admitted in this action. (Docket No. 135 at 3). Plaintiffs also attached the "Declaration of Bennet I. Omalu, MD, MBA, MPH" in support of their response. (Id.).

Defense counsel than contacted the Court and intimated that they intended to file a motion to strike the affidavit of Dr. Omalu. The Court issued an order and briefing schedule regarding same on September 3, 2009. (Docket No. 136). Defendants filed their Motion to Strike the Declaration of Dr. Bennet I. Omalu (Docket No. 137), and their Brief in Support of said Motion, on September 9, 2009. (Docket No. 138). Plaintiffs filed a brief in opposition to same on September 18, 2009. (Docket No. 139). Also on September 18, 2009, Defendants filed the pending Motion to Compel. (Docket No. 140).

The Court heard oral argument regarding Defendants' Motion to Strike on September 22, 2009 and briefly addressed the Dow's Motion to Compel. During the hearing, Plaintiffs made an oral motion to amend their responses to Defendants' requests for production of documents. (Docket No. 142). At the conclusion of the hearing, the Court ordered that Plaintiffs file a brief in support of their motion to amend and granted Dow leave to file a response to same. (Docket No. 141). In this regard, Plaintiffs' Motion to Amend (Docket No. 143) and Brief in Support (Docket No. 144) were filed on September 30, 2009. Thereafter, Dow filed their Reply Brief on October 7, 2009. (Docket No. 146).

The Court will first address the Defendants' Motion to Strike and then the related Dow's Motion to Compel and Plaintiffs' Motion for Leave to Amend.

III. MOTION TO STRIKE

In Defendants' Motion to Strike, they contend that the declaration of Dr. Omalu violates Rule 26(a)(2) of the Federal Rules of Civil Procedure as it contains opinions that were not expressed in his initial expert report. (Docket No. 138). Rule 26(a)(2) provides that:

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:

(I) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the data or other information considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

FED.R.CIV.P. 26(a)(2). A party is required to supplement expert disclosures made under Rule 26(a)(2) pursuant to Rule 26(e)(2). FED.R.CIV.P. 26(e). Failure to abide by the disclosure requirements in these provisions is governed by Rule 37(c)(1), which provides that "[i]f a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1). Defendants contend that the sanctions imposed pursuant to Rule 37(c)(1) are "automatic."*fn4 (Docket No. 138). However, prior to excluding evidence, the United States Court of Appeals for the Third Circuit has held that a district court must consider:

(1) the prejudice or surprise of the party against whom the excluded evidence would have been admitted;

(2) the ability of the party to cure that prejudice;

(3) the extent to which allowing the evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and

(4) bad faith or willfulness in failing to comply with a court order or discovery obligation.

Nicholas v. Pennsylvania State University, 227 F.3d 133, 148 (3d Cir. 2000). In addition, "'the importance of the excluded testimony' should be considered." Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997)(quoting Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904 (3d Cir. 1977)); see also Hurd v. Yaeger, Civ. A. No. 3:06-1927, 2009 WL 2516934, at *2-5 (M.D.Pa. Aug. 13, ...


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