Pamela Sutherland v. DCC Litig. Facility, 16-2397

Both Kathy Gatza and Pamela Sutherland opted out of the Dow Corning settlement and litigated claims alleging silicone breast implants caused health harms; their cases proceeded against DCC (Dow’s litigation vehicle).
The district courts set expert-disclosure deadlines. Neither plaintiff disclosed Dr. Arthur Brawer as an expert before those deadlines; each later sought to amend the scheduling order to add him.
District courts denied the motions to amend the scheduling orders, finding the plaintiffs lacked "good cause" under Fed. R. Civ. P. 16(b)(4) because prior counsel had been able to meet the original deadlines and Brawer was a known expert.
DCC successfully moved to exclude plaintiffs’ causation experts in both cases; without expert proof of causation, summary judgment was granted (Gatza’s summary judgment also rested on Wisconsin’s statute of limitations, which the Sixth Circuit treated as moot given the exclusion of causation evidence).
Plaintiffs raised Rule 37(c)(1) (sanctions/harmlessness) for the first time on appeal; the Sixth Circuit declined to address it as forfeited.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs showed "good cause" to amend scheduling orders under Fed. R. Civ. P. 16(b)(4) to disclose Dr. Brawer after the deadline	Plaintiffs argued new evidence/articles and the need to disclose Brawer justified amending the deadlines	DCC argued plaintiffs were not diligent, Brawer was known/available earlier, and prior counsel met deadlines	Court held plaintiffs failed to show good cause; denial affirmed
Whether nondisclosure of Brawer was "harmless" under Fed. R. Civ. P. 37(c)(1) such that exclusion was improper	Plaintiffs contended exclusion was too harsh and the omission was harmless	DCC relied on Rule 37 and prejudice from late disclosure; district court excluded expert	Court declined to reach Rule 37 issue on appeal as forfeited (plaintiffs raised it first on appeal)

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824 (6th Cir. 2005) (abuse-of-discretion review for scheduling-order amendments)
Baker Hughes Inc. v. S&S Chem., LLC, 836 F.3d 554 (6th Cir. 2016) (same standard for sanctions review)
Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003) (diligence requirement for "good cause")
Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011) (factors for assessing diligence under Rule 16)
Dowling v. Cleveland Clinic Found., 593 F.3d 472 (6th Cir. 2010) (centrality of diligence in good-cause inquiry)
Inge v. Rock Fin. Corp., 281 F.3d 613 (6th Cir. 2002) (consideration of prejudice in scheduling-order modifications)
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546 (6th Cir. 2008) (issues not raised below are waived on appeal except in exceptional circumstances)
Foster v. Barilow, 6 F.3d 405 (6th Cir. 1993) (plain miscarriage of justice exception to waiver rule)
Lindsey v. O’Brien (In re Dow Corning Corp.), 86 F.3d 482 (6th Cir. 1996) (background on Dow Corning mass-tort bankruptcy)
Sutherland v. DCC Litig. Facility, Inc. (In re Dow Corning Corp.), 778 F.3d 545 (6th Cir. 2015) (background on post-bankruptcy litigation procedure)
Ezra v. DCC Litig. Facility, Inc., 667 F. App’x 538 (6th Cir. 2016) (plan of reorganization procedures allowing individual litigation)