Free Opening Brief in Support - District Court of Delaware - Delaware

Case1:04-cv-00876-GIVIS D0cument217-5 Filed 08/11/2006 Page1 0f4
Exhibit D

Case 1:04-cv—00876-Gl\/IS Document 217-5 Filed 08/11/2006 Page 2 of 4
Not Reported in F.Supp.2d Page 1
Not Reported in F.Supp.2d, 2005 WL 675809 (D.Neb.)
(Cite as: Not Reported in F.Supp.2d)
H and 42). Plaintiffs made Rule 26 expert witness
Biigirs and giiici Rglaggd Documgiiis disclosures for seven expert witnesses on March l,
Only the Westlaw crtatieh is currently ayaiiahie. 2002, (Filing Ne, 51), Amnng the nthers, Plaintiffs
United States District Court,D. Nebraska. identified Kaye Kilburn, MD, and Harriett
Cami MARMQ’ ct alw plaintiffs: Ammann, Ph.D., as expert witnesses.
v.
1]3p:1NQ_:D€f€ndani_ Because IBP had not had sufficient time to depose
N0_ 8:00 CV 527, 8:00 CV 529, 8:00 CV 530, 8:00 the Plaintiffs, collect all the medical records, and
CV 531, 8:00 CV S32, 8:00 CV 533, 8:00 CV 534, conduct independent medical examinations on the
8:00 CV 535, 8:00 CV 536, 8:00 CV 537, 8:01 CV Plaintiffs, they sought and were given extensions of
27, 8:01 CV 28:8:02 CV 2g3_ time to disclose their expert witnesses on various
dates between August 30, 2002, and November 22,
]_Z·`€b_ 3: 2005 2002. (Filing Nos. 55, 100, 108). Plaintiffs filed a
motion for an extension of deadlines, including
"Plaintiffs' rebuttal expert deadline," (Filing No. 91),
Michael D. Goodstein, Stacey H. Myers, Deanna J. whieh the Cnurt granted, and the deadline fer
Chang, Resolution Law Group? p_C_: Washington, disclosure of rebuttal experts was extended to
DC, Richard A. Dewitt, Scott D. Jochim, David J. Septemher 27, 2002, (Filing Ne, 92), then tn January
Skalka, creirer, Huck Law Firm, Omaha, NE, Robert 17, 2003, (Filing N6, 100), then te May 2, 2003
s. Lannin, shiyeiy Law Offices, Lincoln, Nu, (Filing Ne, 131), then tn lune 2, 2003 (Filing Ne,
Thomas A. Jehh, Hunsucker, Geedstem Law pirm, 146) then tn July 11, 2003, (Filing N6, 159) then tn
iiidiaiiapoiis: 1N: for piaimiiefg August ll, 2003 (Filing No. 166), then to September
james W_ Mizeaia: john M_ Rushing: giigiii, A_ 12, 2003 (Filing No. 172), then to October 13, 2003
Knutson, Stephen V. Beyer, Sidley, Austin Law (Filing Nd 177), then td Deeemher 12, 2003 (Filing
Firm, Chicago, rr, Kelly R. Dahl, Steven D. Ne- 136), then tn February 12, 2004 (Filing Ns, 190),
Davidson, Baird, Holm Law Firm, Omaha, NE, ter and hnally te April 14, 2004 (Filing N6 197),
Defendant.
On or about April 14, 2004, Plaintiffs disclosed
MEMQRANDUM AND GRDER several rebuttal experts, including Dr. Meggs, who is
the subject of this motion. On November 24, 2004,
CAMR1 the Plaintiffs sought the Courts permission to re-
*1 This matter is before the Court in these daalgllata fha axlaad witnesses that they had
consolidated cases on the Plaintiffs Motion for Leave Pfavldualy diselesed as "re1>uttal aXPal‘1$” tn llldicata
to (jail Wiiiiam 1 1(/[eggs: M_D_’ as 3 Subsiimm that they could be called in Plaintiffs' cases—in-chief
Expert eh Specific catrsatrch m i>1amtinrs· Cases-in- (eiueting Plaintiffs Mntinn at Filing Ne, 294), The
Chief (See, €_g_, 8;QQC\/527, piiiiig NQ 393) and Magistrate Judge denied this motion and on appeal
supporting briefs (see, eg., Filing Nos. 394, 4()7)_ i°r0m his Order, I affirmed the denial. (Filing Nos.
IBP opposes the motion. (See, ag., Filing No. 396). 313, and 362),
The issue has been presented te this Court m various On Deeemher 3, 2004, in respenset<>1l3P's metinn in
permutations, hat the reieyaht facts are these. In this lirnine, the Plaintiffs withdrew their prepesed expert
case, as in all cases, the parties are required to medieal witnesses, KaY€ Kllbdflk MD- (Filing Nd
comply with a court-imposed deadline to disclose 304), Then, nn January 26, 2004, the Cnurt ruled that
their expert witnesses. In the Court's amended the Plaintiffs enly remaining expert witness en
pregressieh order arid correction thereto, the deadline seientitie er medieal eausatien ef persnnal injuries,
for the Plaintiff to disclose her expert witnesses was Halllad Ammallll, Ph-De a texieelngist Wild is 110i a
March 1, 2002; the Defendants deadline was June 3, medieal dneter, weuld he prevented frnm asserting
2002; and "if necessary to refute the disclosed any PXPGYT dlaillldll abdllt the medieal Call$a df the
opinions of any expert witness er HH opponent, a Plaintiffs persenal injuries under
party [Was permitted to disciosci addiiioiiai expert and Daubert v. Merrell Dow P/mrmaceuticals, Inc.,
witnesses no later than July 1, 2002.” (Filing Nos. 35
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Case 1:04-cv—00876-Gl\/IS Document 217-5 Filed 08/11/2006 Page 3 of 4
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2005 WL 675809 (D.Neb.)
(Cite as: Not Reported in F.Supp.2d)
11993). Because the Plaintiffs had no medical expert 120 S.Ct. 1534, 146 L.Ed.2d 348 g2000; .... The
testimony available to use in their cases-in-chief to primary measure of Rule l6's "good cause" standard
establish medical causation, the Court recently is the moving party's diligence in attempting to meet
granted IBP's motion for partial summary judgment the case management order's requirements. Johnson
on the Plaintiffs' permanent personal injury claims. v. Mammoth Recreations, Inc., 975 F.2d 604, 609
(Filing No. 385) g9th Cir.l992f. "[T]he existence or degree of
prejudice to the party opposing the modification" and
*2 Plaintiffs rely on a Tenth Circuit Court of Appeals other factors may also affect the decision. Id.
case that found reversible error in a district court's Bradford v. DANA Corg., 249 F.3d 807, 809 (8th
decision not to allow the plaintiff to substitute an Cir.200l)(imposition of summary judgment response
expert witness. See Summers v. Missouri Pacific R.R. deadline).
Svstem, 132 F.3d 599, 604 (10"` Cir.l997). The Tenth
Circuit stated that: The Plaintiffs contend that "lj]ustice requires that the
[The] determination turns on four factors: (1) the Plaintiffs be allowed to designate a new expert on the
prejudice or surprise in fact of the party against question of specific causation." (Filing No. 394 at p.
whom the excluded witnesses would have testified, 2). Plaintiffs insist that there will be no prejudice to
(2) the ability of that party to cure the prejudice, (3) IBP if they are allowed to call a single, medical
the extent to which waiver of the rule against calling expert, Dr. Meggs, to provide his opinion regarding
unlisted witnesses would disrupt the orderly and the extent and cause of the Plaintiffs' personal
efficient trial of the case or of other cases in court, injuries. Plaintiffs state that Dr. Meggs was disclosed
and (4) bad faith or willfulness in failing to comply "in full compliance” with the Court's progression
with the court's order. Burks, 81 F.3d at 979 (quoting orders. I understand that Dr. Meggs’s report was
Smith v. Ford Motor Co., 626 F.2d 784, 797 {10th delivered to IBP on April 14, 2004, and he has been
Cir.1980l)." deposed at length by IBP.
[dw Here is what the Eighth Circuit Court of The Court has not been provided with an explanation
Appeals has said about progression orders: for why the Plaintiffs voluntarily withdrew their
medical expert Kaye Kilburn, M.D., so late in the
case. The Court has not been provided with a reason
QN; The Eighth Circuit Court of Appeals why Dr. Meggs was not identified as an expert
has cited Summers on at least one occasion witness for the Plaintiffs' cases-in-chief on March 1,
in an unpublished opinion for the 2002. The Court has not been provided with a reason
proposition that where there is no prejudice, justifying the Plaintiffs' delay in seeking to add Dr.
no surprise and no bad faith in failing to Meggs as an expert in the cases—in—chief during the
comply with a court's scheduling order, then months between March 1, 2002, and November 24,
there is good cause to modify the scheduling 2004, when Plaintiffs first sought the redesignation of
order to allow for a summary judgment experts just two and a half months before the first
motion to be filed five days out of time. See trial was to commence. For these reasons, I conclude
Ruston v. Rasmussen, 208 F.3d 218 {Table). that the Plaintiffs have not shown “good cause" under
2000 WL 227987 atl (8th Cir.2000l. Rule 16 to modify the progression orders given the
circumstances of this case.
As regards case management orders, however, the
Federal Rules set a less forgiving standard. Federal *3 I suspect the Defendant’s Motion in Limine to
Rule of Civil Procedure 16tb) specifies that such an exclude the testimony of Kaye Kilburn, M.D., and
order "shall not be modified except upon a showing the evidence IBP offered in support of the motion had
of good cause and by leave of the district judge." something to do with the Plaintiffs decision to
Thus, a moving party must first make the requisite withdraw Dr. Kilburn, particularly because notice of
showing. Even then the district court retains the withdrawal came from the Plaintiffs in response
discretion as to whether to grant the motion. As a to that motion. I observe that if the Plaintiffs did not
vehicle designed to streamline the flow of litigation secure the medical evidence needed to demonstrate
through our crowded dockets, we do not take case medical causation for the Plaintiffs alleged injuries
management orders lightly, and will enforce them. Q until they received Dr. Meggs’s report in April 2004-
re Milk Prods. Antitrust Litig, 195 F.3d 430, 437 {8th more than three and a half years after the case was
Cir.l999f, cert. denied sub nom. Rainy Lake One filed, then it is the firm belief of this Court that the
Stog, Inc. v. Marigold Foods, Inc., 529 U.S. 1038, Defendants should not be forced to incur additional
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Case 1:04-cv—00876-Gl\/IS Document 217-5 Filed 08/11/2006 Page 4 of 4
Not Reported in F.Supp.2d Page 3
Not Reported in F.Supp.2d, 2005 WL 675809 (D.Neb.)
(Cite as: Not Reported in F.Supp.2d)
costs in time and money to allow the Plaintiffs to *4 IT IS ORDERED:
cure this deficiency.
The Plaintiffs' Motion for Leave to Call William J.
While Plaintiffs insist that there would be no Meggs, M.D., as a Substitute Expert on Specific
prejudice to IBP, I strongly disagree. In complex Causation in Plaintiffs' Cases~in—Chief is denied.
cases such as these, where several cases have been (8:00CV527, Filing No. 393; 8:00CV529, Filing No.
consolidated for discovery purposes, and where the 368; 8:00CV530, Filing No. 350; 8:00CV531, Filing
Court is vigilant about progressing the case at No. 354; 8:00CV532, Filing No. 351; 8:00CV533,
appropriate intervals, the parties' compliance with Filing No. 358; 8:00CV534, Filing No. 356;
progression orders is crucial. The Plaintiffs argue that 8:00CV535, Filing No. 354; 8:00CV536, Filing No.
Dr. Meggs was disclosed "in full compliance" with 349; 8:00CV537, Filing No. 352; 8:01CV27, Filing
the Court`s progression order, and that is true. No. 364; 8:0lCV28, Filing No. 341; and 8:02CV293,
However, Plaintiffs ignore that Dr. Meggs was Filing No. 281).
disclosed by them to rebut opinions of IBP’s
disclosed experts. In their own motions, the Plaintiffs D.Neb.,2005.
have referred to these witnesses as "rebuttal expe1ts" Marmo v. IBP, Inc.
and their reports as "rebuttal reports." (See, ag., Not Reported in F.Supp.2d, 2005 WL 675809
8:00cv527, Filing Nos. 201, 294). It is not accurate or (D.Neb.)
fair to state that Dr. Meggs was "branded" as a
rebuttal expert by Magistrate Judge Gossett. (Filing Briefs and Other Related Documents (Back to top)
407, p. 3).
· 2005 WL 3636444 (Trial Motion, Memorandum
Plaintiffs also ignore the prejudice to IBP due to and Affidavit) Plaintiffs' Brief in Opposition to IBP's
Plaintiffs` delay in taking action. Based on the record, Motion in Limine as to Dr. Jana Milford and Dr. John
it appears that Dr. Meggs`s report was provided to Warmerdam. (Dec. 8, 2005) Original Image of this
IBP nearly 17 months after IBP’s last expert Document (PDF)
disclosure was made. (Filing No. 201.) While it is · 2005 WL 3778608 (Trial Motion, Memorandum
true that there is no unfair surprise to IBP since IBP and Affidavit) Brief in Support of Motion to
has had time to review Dr. Meggs's report and to Reconsider and Motion for Leave (Jul. 21, 2005)
depose him relative to his opinions in this case, the Original Image of this Document (PDF)
Court wholeheartedly rejects the Plaintiffs' argument • 2005 WL 3628294 (Trial Motion, Memorandum
that there would be no unfair prejudice to IBP if the and Affidavit) Reply Brief in Support of Motion to
Court allowed Dr. Meggs to testify in the Plaintiffs' Certify Certain Orders for Interlocutory Appeal (Apr.
cases—in—chief. 27, 2005) Original Image of this Document (PDF)
• 2005 WL 3628300 (Trial Motion, Memorandum
The Defendant disclosed its experts only after and Affidavit) Reply Brief in Support of Motion to
reviewing the Plaintiffs' Rule 26 disclosures on its Certify Certain Orders for Interlocutory Appeal (Apr.
experts and deposing those experts. Only then did 27, 2005) Original Image of this Document (PDF)
IBP have the information necessary to select the · 2005 WL 3628306 (Trial Motion, Memorandum
experts that it believed could counter the Plaintiffs' and Affidavit) Reply Brief in Support of Motion to
experts' opinions. IBP has the right to defend itself Certify Certain Orders for Interlocutory Appeal (Apr.
against the Plaintiffs' claims, and it would be 27, 2005) Original Image of this Document (PDF)
prevented from doing so if the Court were to allow • 2005 WL 3628314 (Trial Motion, Memorandum
Dr. Meggs’s opinions to be offered during the and Affidavit) Reply Brief in Support of Motion to
Plaintiffs' cases—in—chief. To enable IBP to cure the Certify Certain Orders for Interlocutory Appeal (Apr.
unfair prejudice that would result from Dr. Meggs 27, 2005) Original Image of this Document (PDF)
being permitted to testify in the Plaintiffs' cases-in- · 2005 WL 3628320 (Trial Motion, Memorandum
chief would require this case to be re-progressed, to and Affidavit) Reply Brief in Support of Motion to
allow IBP to re·designate its experts and to permit the Certify Certain Orders for Interlocutory Appeal (Apr.
attendant depositions and motion practice that might 27, 2005) Original Image of this Document (PDF)
follow. This Court, particularly given its current • 2005 WL 3628326 (Trial Motion, Memorandum
caseload and the limitation of judicial resources in and Affidavit) Reply Brief in Support of Motion to
this District, is not willing to make such an Certify Certain Orders for Interlocutory Appeal (Apr.
accommodation in a four—year—old case. 27, 2005) Original Image of this Document (PDF)
· 2005 WL 3628349 (Trial Motion, Memorandum
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