303 F.R.D. 32
W.D.N.Y.2014Background
- Plaintiff Robert Coene alleges occupational exposure to silica (via 3M respirators supplied to Kodak) caused silicosis; he retained Dr. William Meggs as an exposure expert. 3M retained Dr. John Whysner as a rebuttal toxicology expert.
- Court deadlines: Coene’s expert disclosures due March 4, 2013; 3M’s experts due June 20, 2013; fact and expert discovery finished October 15, 2013.
- Meggs’ initial disclosure (March 4, 2013) implicated silica formed during laser sintering; Meggs’ full report was produced March 28, 2013.
- After receiving 3M materials (including the Root affidavit during Whysner’s deposition in August 2013), Meggs submitted a supplemental/second report (Sept. 17, 2013) adding opinions that nylon/resin dust contributed to interstitial fibrosis. 3M moved to strike that second report as untimely.
- Coene moved to preclude Whysner (arguing he is unqualified and his methodology doesn’t fit the facts). The court also addressed several unauthorized sur-replies and a request to extend deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Meggs’ Second Report (new nylon/resin causation opinion) is a permissible supplement under Rule 26(e) or an untimely new opinion under Rule 26(a)(2) | Meggs’ new opinions were prompted by previously undisclosed Root affidavit (3M’s industrial hygienist affidavit) and thus properly supplemented | The new opinions introduce new causes available before the original report; Root’s affidavit was functionally disclosed earlier and Meggs could have included the opinions timely | Second Meggs Report is a new, untimely opinion (not a proper supplement); but preclusion is too harsh — reopen limited discovery and shift expert fees to Coene |
| Whether preclusion or lesser sanctions under Rule 37(c)(1) are appropriate for the untimely expert disclosure | Preclusion is unnecessary; discovery was not closed and the report is important to plaintiff’s case | Untimely disclosure is prejudicial; 3M relied on original theory and lost chance to depose on new theory | Preclusion denied; factors (importance of evidence, lack of bad faith, ability to cure) support reopening discovery; Coene must pay 3M’s expert fees/costs for additional discovery |
| Whether 3M violated Rule 26(e) by failing to timely supplement initial disclosures to identify Root and by delaying production of Root affidavit | 3M concealed Root and delayed production; prejudice to Coene (missed chance to depose) warrants sanctions | 3M sufficiently made Root’s opinions known via Whysner’s report and later produced affidavit; any technical violation was harmless | 3M violated Rule 26(e) by delaying disclosure but the violation was harmless; no sanctions for Coene; timing was remediable within remaining discovery period |
| Whether Whysner should be precluded under Daubert/Rule 702 (unqualified; unreliable methodology; factual fit) | Whysner lacks qualification to diagnose and his methods (temperature assumptions, reliance on unpublished student work/brochures) don’t fit facts (heated/devitrified fiberglass) | Whysner is a qualified toxicologist; he used accepted causal methodology (Bradford Hill), reviewed literature and temperatures, and his perceived gaps go to weight, not admissibility | Whysner may testify as a toxicologist about causation and exposure methodology but may not offer a medical diagnosis or opine on plaintiff’s diagnosis (i.e., may not testify that plaintiff has sarcoidosis) |
Key Cases Cited
- Lewis v. FMC Corp., 786 F. Supp. 2d 690 (S.D.N.Y. 2011) (supplementation duty arises when new information renders earlier report incomplete; late addition of opinions not a mere supplement)
- Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147 (S.D.N.Y. 2012) (Rule 37 preclusion purpose is to prevent sandbagging; courts consider lesser sanctions)
- Outley v. City of New York, 837 F.2d 587 (2d Cir. 1988) (district court should consider less drastic responses before imposing preclusion)
- Design Strategy, Inc. v. Davis, 469 F.3d 284 (2d Cir. 2006) (preclusion within district court’s discretion; court may consider party’s bad faith)
- Hunt v. CNH Am. LLC, 857 F. Supp. 2d 320 (W.D.N.Y. 2012) (courts should consider lesser sanctions before precluding late expert opinions)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (trial court’s gatekeeping role under Rule 702; reliability and relevance required)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert gatekeeping applies to all expert testimony; methodology focus)