The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
ORDER REGARDING PLAINTIFF'S MOTIONS IN LIMINE
In this order, the Court rules on plaintiff's motions in limine.
1. The Lane fentanyl gel experiment
Plaintiff has moved to preclude defendants from offering in evidence, via their expert Dr. Jonathan Hadgraft or otherwise, evidence regarding a study about absorption of fentanyl gel conducted by Dr. Majella Lane in the United Kingdom. The Court concludes that this evidence should be excluded as a sanction for the failure to produce requested evidence (primarily lab notebooks) regarding the study.
Plaintiff contends that defendants, via their lawyers or otherwise, were involved in the procurement and/or design of the Lane study. The Court is not persuaded that Watson or its counsel did anything more than provide fentanyl patches for use in the study, which is insufficient without more to give rise to an obligation on defendants' part to produce documents underlying the study.
It is indisputably true that Dr. Hadgraft, a retained defense expert, was involved in conceiving the idea for the study. That, however, likely would not be enough, without more, to give rise to an obligation on the part of defendants or Dr. Hadgraft to produce lab notebooks or other information underlying the study.
There is more than this, however. Though defendants note that Dr. Hadgraft has testified that he was not involved in designing or conducting the study, he is listed as a co-author of the published study results. In addition, and significantly, Dr. Hadgraft repeatedly testified under oath in an earlier Watson fentanyl patch trial (the Standing case, which was tried in California state court) to the effect that "we" -- a term that in context plainly includes Dr. Hadgraft himself -- decided to try to do a study regarding gel from a Watson patch; "we" used two subjects and five replications; "we" obtained certain results; and "we" felt the data correlated appropriately. See Pl.'s Mots. In Limine at 7-8 (quoting Standing trial transcript). In addition, Dr. Hadgraft testified during his deposition in the present case that he believed Dr. Lane would give him the lab notebooks if he asked her to do so.
In advance of Dr. Hadgraft's deposition in this case, plaintiff served defense counsel (who had retained Dr. Hadgraft as an expert) a request for documents that specifically sought the lab notebooks and other documents regarding the Lane fentanyl gel study. Defense counsel have advised the Court that these documents were not produced because defendants contended that they and Dr. Hadgraft had no obligation to produce them. Defendants rely primarily on the fact that Dr. Hadgraft does not have the documents and that they belong to and are in the custody of Dr. Lane. The Court rejects this argument. A party or subpoenaed witness is required to produce not just documents that are in his possession or custody, but also documents that are in his control. See Fed. R. Civ. P. 30(b)(2) (deposition notice may include request for documents, cross-referencing Fed. R. Civ. P. 34); id. 34(a)(1) ("possession, custody, or control"); id.45(a)(1)(A)(iii) (same).
Based on the record, the Court finds that the documents in question were in Dr. Hadgraft's control. See, e.g., Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 517 (D. Kan. 2007) (person has control over documents if, among other things, he has the practical ability to obtain them from another). His testimony at the Standing trial tends to show that he was involved in setting up and performing the Lane study, and the Court is unpersuaded by defense counsel's argument at the motion hearing that this was simply "not careful" testimony on Dr. Hadgraft's part. Second, the fact that Dr. Hadgraft was a listed co-author of the study tends to show that he was involved enough to get credit in the scientific community and thus that he had ready access to the lab notebooks. Third, Dr. Hadgraft specifically testified that he believed Dr. Lane would provide him with the notebooks if he asked. These facts together establish that the documents underlying the study were in Dr. Hadgraft's control. That being the case, he and defendants were obligated to produce the documents in response to plaintiff's request for them in conjunction with his deposition.
The failure to produce these documents was neither justified nor harmless. First, it was not harmless because the non-production effectively deprived plaintiff from being able to inquire about the conduct of the study. In this regard, defendants' contention that they were willing to make Dr. Lane available for a deposition is of no consequence. Discovery had closed at the time, and plaintiff was not required to acquiesce to a reopening of discovery at the late date in question in order to allow defendant and Dr. Hadgraft to cure their noncompliance with the document request. Second, the non-production was not justified because the evidence clearly shows that the documents in question were within Dr. Hadgraft's control.
The appropriate sanction is to preclude reference to the Lane study at the trial in this case. No other sanction would appropriately cure the misconduct.
2. "New opinions" by Dr. Milroy
Plaintiff seeks to preclude defendants from eliciting from defense expert Dr. Christopher Milroy any opinions regarding cause of death that were not contained in his Rule 26(a)(2) report. Shortly before plaintiff deposed Dr. Milroy, defendants disclosed additional materials he had just recently reviewed, including certain histology slides. Plaintiff asked the Court to direct defendants to provide a supplemental Rule 26(a)(2) disclosure. At the hearing on the motion, defense counsel expressly represented that Dr. Milroy had no new or additional opinions not disclosed in his original Rule 26(a)(2) disclosure. In reliance on this representation, the Court declined to order a supplemental disclosure.
In his original report, Dr. Milroy stated that the cause of Mr. Acree's death could not be determined. He also opined that fentanyl overdose was not the cause of Mr. Acree's death. The Court agrees with defendants that there is no basis to ...