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Berman v. Stryker Corporation

United States District Court, Seventh Circuit

September 24, 2013

RONALD BERMAN, et al., Plaintiffs,
STRYKER CORPORATION, et al., Defendants.


WILLIAM T. HART, District Judge.

Plaintiff Ronald Berman[1] received an artificial knee system implant manufactured by defendant Howmedica Osteonics Corp.[2] Problems occurred and it had to be replaced. Plaintiff alleges strict liability and negligence in the manufacture of the device. Presently pending is defendant's motion to exclude the potential testimony of plaintiff's biomedical engineering expert, Valentina Ngai, Ph.D., P.Eng., as not meeting the requirements for admissible expert testimony. Defendant also brings a related motion to strike Ngai's supplemental report and an affidavit provided with plaintiff's answer brief as being untimely additions to Ngai's original report. Based on Ngai's testimony being inadmissible, defendant also moves for summary judgment on the merits in that there will be insufficient evidence to support plaintiff's claims. Plaintiff does not dispute that the summary judgment motion should be granted if Ngai's testimony is excluded. The first issue to resolve is whether the supplemental report and affidavit should be considered in determining whether Ngai has admissible testimony.

By agreement of the parties and approved by the court, plaintiff's expert report was to be disclosed and the expert deposed before defendant provided its expert disclosures. Ngai's May 23, 2012 report was disclosed that day and she was subsequently deposed on June 21, 2012. The expert report of defendant's biomedical engineer, Steven Kurtz, Ph.D., was dated and disclosed on July 24, 2012. After extensions of the discovery period and rescheduling, Kurtz's deposition was completed on November 29, 2012. After a further extension of the discovery period, the deposition of William Cymbaluk was taken on January 23, 2013. Cymbaluk is a non-retained expert from whom no expert report was required. He is defendant's Vice-President of Regulatory Affairs, Quality Assurance, and Clinical Research. In defendant's Rule 26(a)(2) disclosure, it was stated Cymbaluk would testify about regulatory issues regarding adverse incidents and FDA warning letters and "the expert report and/or deposition of" Ngai.

The deadline for defendant's dispositive motion initially coincided with the deadline for deposing Cymbaluk, but after extensions, the motion was due on February 7, 2013. On February 6, 2013, plaintiff provided defendant with a supplement to Ngai's report which responds to and seeks to rebut Kurtz's criticisms of Ngai's initial report. Plaintiff represents that, in addition to waiting to prepare this report until after Kurtz's late November 2012 deposition, final preparation awaited Cymbaluk's deposition to determine what criticisms of Ngai's report he might have. After Cymbaluk's deposition, it was determined that no response to his testimony was necessary. Counsel for plaintiff did not advise defendant, which had a dispositive motion due, that Ngai was in the process of preparing a supplement. On February 7, defendant filed its summary judgment motion and motion to exclude Ngai's testimony. A week later, it filed its motion to strike plaintiff's supplemental report, still contending that Ngai's testimony should be excluded even if the supplement is considered. With plaintiff's April 11, 2013 response to defendant's motions, plaintiff provided an affidavit from Ngai addressing criticisms of her opinions. In its reply, defendant argues Ngai's opinion testimony should be excluded even if the supplemental report and new affidavit are considered. After the motions were fully briefed, the parties mediated their dispute, but were unable to resolve it. Defendant's pending motions are now ripe for resolution.

It is unnecessary to consider whether the supplemental report is an appropriate rebuttal report served within 30 days after both of defendant's possible opposing experts were deposed. See generally Fed.R.Civ.P. 26(a)(2)(D)-(E), 26(e)(2); Bowman v. Int'l Bus. Mach. Corp. , 2013 WL 1857192 *3-4 (S.D. Ind. May 2, 2013). Even if plaintiff had failed to timely disclose an opinion of Ngai, it will not be excluded if the delayed disclosure is harmless.[3] Fed.R.Civ.P. 37(c)(1); Tribble v. Evangelides , 670 F.3d 753, 760-61 (7th Cir. 2012); Greybill v. Zimmer, Inc. , 2013 WL 593460 *5-6 (N.D. Ill. Feb. 14, 2013); Stuhlmacher v. Home Depot USA, Inc. , 2012 WL 5866297 *2 (N.D. Ind. Nov. 19, 2012); U.S. Gypsum Co. v. LaFarge N. Am., Inc. , 508 F.Supp.2d 601, 615 n.3 (N.D. Ill.2007). Factors to consider in determining harmlessness include: "(1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date." Tribble , 670 F.3d at 760 (quoting David v. Caterpillar, Inc. , 324 F.3d 851, 857 (7th Cir. 2003)). While plaintiff should have advised defendant that he intended to submit and rely on a supplemental report, it should have come as little surprise that one was being prepared since Kurtz had criticized Ngai's opinions and the reasoning of Ngai's opinion is the central issue on which defendant's summary judgment motion is based. There is no prejudice to defendant since the opinions have been disclosed well ahead of any trial date and, through its reply, defendant has had a full opportunity to address the supplement and affidavit regarding the pending motions. Cf. Greybill , 2013 WL 593460 at *6; Gypsum , 508 F.Supp.2d at 615 n.3. Since defendant continues to press for exclusion and summary judgment, late disclosure did not even cause defendant to incur expense for a motion it would not have otherwise brought. Plaintiff has a reasonable explanation for why he was waiting to complete the supplemental report-the depositions of Kurtz and Cymbaluk-so there is no basis for inferring willfulness. The motion to strike will be denied. The opinions expressed in Ngai's initial report, supplemental report, deposition, and affidavit will all be considered in determining whether Ngai's testimony should be excluded.

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Defendant does not question Ngai's qualifications. Defendant's contention is that Ngai's conclusions are not reliable because not adequately reasoned and not based on acceptable methodologies. "[E]xperts' work is admissible only to the extent that it is reasoned, uses the methods of the discipline, and is founded on data. Talking off the cuff-deploying neither data nor analysis-is not an acceptable methodology." Naeem v. McKesson Drug Co. 444 F.3d 593, 608 (7th Cir. 2006) (quoting Lang v. Kohl's Food Stores, Inc. , 217 F.3d 919, 924 (7th Cir. 2000)). "The court's focus must be solely on the principles and methodology the expert used and not on the conclusions generated." State Farm Fire & Cas. Co. v. Electrolux Home Prods., Inc. , 2013 WL 3013531 *12 (N.D. Ind. June 17, 2013). Still, "[i]t is not the trial court's role to decide whether an expert's opinion is correct, ' but it is instead limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound.' Smith [v. Ford Motor Co.] , 215 F.3d [713, ] 719 [(7th Cir. 2000)]. Indeed, [t]he question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based.' Id. (citing Walker [v. Soo Line R. Co.] , 208 F.3d [581, ] 589-90 [(7th Cir. 2000)]). This is because soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact.' Id. at 718." Peoples State Bank v. Stifel, Nicolaus & Co. , 2013 WL 1024917 *4 (S.D. Ind. March 14, 2013). The burden is on plaintiff to establish that Ngai's testimony would satisfy the applicable standards. Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009).

Ngai reached the following conclusions regarding plaintiff's implant being defective:

1. The Stryker Triathlon PS total knee device implanted into Berman's right knee on 10 July 2008 was defective due to dimensional mismatching between the tibial ...

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