United States District Court, S.D. Illinois
J.F., a minor by BEATRICE SIFUENTES individually as next friend of J.F., Plaintiff,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge
before the Court is Plaintiff's Motion to Substitute Dr.
David Kessler for designated expert Dr. Cheryl D. Blume.
(Doc. 563). Dr. Cheryl Blume has been Plaintiff's
declared regulatory expert since at least 2014. (Doc. 576, at
p. 2). In addition to the Sifuentes case, Dr. Blume
was and is the declared regulatory expert in other Depakote
cases in this mass action. See e.g. 576-4 (excerpts
from the Kaleta trial held before this Court in
March 2015); (Case No. 12-cv-52, Doc. 847, at p. 8) (noting
Dr. Blume's participation in Sifuentes,
Dotegowski, Pyszkowski, and
was originally selected as bellwether trial, along with the
Kaleta and Pyszkowski cases, on July 25,
2014. (Doc. 1). The Court issued a Scheduling Order on August
14, 2014, which set the deadline for Plaintiff to provide her
Rule 26(a)(2) expert disclosures on October 1, 2014. (Doc.
15). Defendant asserts that on October 1, 2014, Dr. Blume was
designated as the regulatory expert for all three bellwether
trials. (Doc. 576, at p. 3). Prior to her deposition in
Sifuentes, Plaintiff provided a billing summary for
the work conducted by Pharmaceutical Development Group, Inc.
(“PDG.”) (Doc. 576-1, at p. 2). The billing summary
only provides two values: the year in which work was
conducted (starting in 2011 through November 20, 2014), along
with a dollar amount charged for each year. Id. The
total amount charged was $917, 331.97. Id. There is
no further breakdown provided in the document. Id.
During Dr. Blume's deposition, Defendant asked questions
concerning her billings in the Depakote case. See
e.g., (Doc. 89-8, at p. 4).
is no indication in the record that Dr. Blume is unavailable
to serve as an expert witness in this or any other case.
Instead, Plaintiff's motion rests upon the perceived
prejudice resulting from Defendant's cross examination of
Dr. Blume concerning the fees she was paid in this and other
Depakote cases. (Doc. 563, at p. 2). Plaintiff justifies the
substitution as follows:
Abbott has routinely made Dr. Blume's fees in other
cases a focal point of its cross-examination at trial.
In fact, Plaintiff anticipates that Abbott will vehemently
oppose this motion precisely because they intend to engage in
this type of cross-examination and present Dr. Blume's
total fees to impugn her credibility in this case, which
would be unfairly prejudicial to J.F.
(Doc. 563, at p. 2). Defendant counters by noting that
experts are customarily cross-examined on the fees they were
paid to testify and that nevertheless, Plaintiffs have never
filed a motion in limine concerning the subject in
any prior case. (Doc. 576).
Federal Rules of Civil Procedure do not expressly delineate
the process or standard a court should utilize when faced
with a motion to substitute an expert. When faced with such a
motion, district courts in the Seventh Circuit take one of
two approaches. Certain courts view the motion as a request
to reopen the deadlines imposed in the scheduling order under
Federal Rule of Civil Procedure 16(b)(4). See e.g.,
Lincoln Nat. Life Ins. Co. v. Transamerica Fin. Life Ins.
Co., No. 1:04-cv-396, 2010 WL 3892860, at *2 (N.D. Ind.
Sept. 30, 2010). Other courts utilize Rule 26(a)(2)(D) and
37(c)(1) to analyze whether the replacement expert should be
excluded as a discovery violation. See e.g., Assaf v.
Cottrell, Inc., No. 10-cv-0085, 2012 WL 245196, at *2
(N.D. Ill. Jan. 26, 2012).
analysis under Rule 16(b)(4) requires the Court to assess
whether the party's request demonstrates good cause. When
considering whether good cause exists, “the primary
consideration for district courts is the diligence of the
party seeking amendment.” Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011). Rule 37(c)(1)
requires the Court to assess whether there is a substantial
justification or harm associated with the failure to
disclosure the expert. Fed.R.Civ.P. 37(c)(1); Tribble v.
Evangelides, 670 F.3d 753, 758 (7th Cir. 2012). In
making a Rule 37(c)(1) determination, the Court is to
consider: (1) the prejudice or surprise in fact of the party
against whom the excluded witnesses would have testified; (2)
the ability of that party to cure the prejudice; (3) the
extent to which waiver of the rule against calling unlisted
witnesses would disrupt the orderly and efficient trial of
the case or of other cases in the court; (4) bad faith or
willfulness in failing to comply with the court's order.
Spray-Rite Service Corp. v. Monsanto Co,
684 F.2d 1226, 1245 (7th Cir. 1982).
faced with a similar motion to substitute an expert witness
have found the two standards “coexistent.”
See e.g. Fid. Nat. Fin., Inc. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, Pa, 308 F.R.D. 649, 652 (S.D.
Cal. 2015); but see Carlson v. Fewins, No.
1:08-cv-991, 2016 WL 7971764, at *1 (W.D. Mich. Oct. 19,
2016) (finding different burdens imposed by the two rules).
This Court need not determine whether the distinctions
between Rule 16(b)(4) and Rule 37(c)(1) are ones of semantics
or substance because neither rule is met by the facts before
has failed to demonstrate any meaningful diligence in moving
to substitute her regulatory expert. Dr. Blume was first
disclosed to Abbott late in 2014, and questioning her on the
fees she was paid has been a known Abbott trial strategy
since the Kaleta trial in March 2015, if not
earlier. Plaintiff's counsel designated Dr.
Kessler as the regulatory expert for other Depakote trials in
January 2016. (Doc. 563, at p. 1). Following the January 2016
disclosure date, Sifuentes was reset for a June 2016
trial date, and although the trial was later vacated,
Plaintiff did not seek to substitute Dr. Blume in favor of
Dr. Kessler at that time. Certainly this Court is aware that
the floating nature of the trial dates for the cases in que
lowers the impetus to file relevant motions. It cannot be
overlooked, however, that Abbott's cross examination
strategy has remained virtually unchanged through multiple
trials after Dr. Blume's designation in this
case, and Plaintiff was prepared to go to trial with Dr.
Blume as the regulatory expert even despite the disclosure of
Dr. Kessler months prior.
a lack of demonstrated diligence by Plaintiff, the reason
alleged in support of the substitution-i.e., prejudice
created through cross examination on the fees Dr. Blume was
paid in this “and other cases”-is not a
substantial justification or basis to establish good cause.
Although not subject to a bright-line rule, courts routinely
find good cause when unexpected circumstances, outside of the
moving party's control, prevent a declared expert from
testifying. See, e.g., McCann v. Cullinan, No.
11-cv-50125, 2015 WL 4254226, *1 (N.D. Ill. July 14, 2015)
(Describing good cause as being present when there are
“illness, mishaps, electronic discovery snags, true
emergencies and the recalcitrance of non-party individuals
and corporations.”); Assaf v. Cottrell, Inc.,
No. 10-cv-0085, 2012 WL 245196 (N.D. Ill. Jan. 26, 2012)
(Granting substitution when Plaintiff's expert witness
had previously testified for Defendant and signed a
confidentiality agreement with them, creating a conflict of
interest.); Lincoln Nat. Life Ins. Co. v. Transamerica
Financial Life Ins. Co., No. 1:04-cv-396, 1:06-cv-317,
2010 WL 3892860, *3 (S.D. Ind. Sept. 30, 2010) (Allowing the
defense to substitute an expert after discovering that he
would be “incarcerated in federal prison and, needless
to say, unavailable to testify at the trial.”)
Plaintiff has provided no evidence that Dr. Blume is unable
to testify, and the fees paid to Dr. Blume are not an
unexpected circumstance outside of Plaintiff's control.
the Court has very little information concerning the fee
arrangement or employment parameters of Dr. Blume, this issue
was at a minimum influenced by Plaintiff's own choices.
Whether Dr. Blume was exceedingly inefficient in preparing
her report or was engaged to prepare reports for all
or some of the other Plaintiffs, the information presented to
Abbott included a very vague billable summary with only two
values-year and dollar amount. If this is the most detailed
breakdown Dr. Blume provided concerning her payment, then
there can be no surprise when Abbott exploits a $900, 000
listed fee payment.
Dr. Blume testified in the Kaleta trail on
direct examination that the Depakote
“project” required roughly “6,
000…person hours” to complete. (Doc. 331, at p.
67). This was a clear effort by counsel to bolster the
credibility of Dr. Blume in the Kaleta trial by
demonstrating how thorough she and her company were in
developing her opinion. Whether true or not, the impression
provided to the jury was that she and her team spent 6, 000
hours working on the Kaleta case. It is axiomatic
then that Abbott would ask how much she and her team were
paid for those 6, 000 hours of work. See e.g., (Doc.
346, at p. 64).
Dr. Blume provided an itemized list breaking down her work
for each individual Plaintiff, the substitution of Dr.
Kessler would not alter the “unfair prejudice”
alleged by Plaintiff. Dr. Kessler charges double the fee for
his litigation consultation services as Dr. Blume.
Compare (Doc. 346, at p. 64) (where Dr. Blume
testifies that she charges $400-$500 per hour); with
(Doc. 563-3, at p. 10) (where Dr. Kessler testifies that he
charges $1, 000 per hour). Also, for at least one Plaintiff,
Dr. Kessler indicated that he “guessed” his
billings up to the point of the deposition were approximately
250 hours of time. (Doc. 563-3, at p. 7). These two points,
coupled with the implication that Dr. Kessler was designated
as the expert in at least three cases quickly demonstrates
that Dr. ...