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J.F. v. Abbott Laboratories, Inc.

United States District Court, S.D. Illinois

March 17, 2017

J.F., a minor by BEATRICE SIFUENTES individually as next friend of J.F., Plaintiff,
v.
ABBOTT LABORATORIES, INC., Defendant.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge

         Pending 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[1], Dotegowski, Pyszkowski, and Bonner.)

         Sifuentes 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.”)[2] (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).

         There 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).

         The 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).

         The 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).

         Courts 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 the Court.

         Plaintiff 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.[3] 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.

         Besides 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.

         While 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[4] 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.

         Furthermore, 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).

         Even if 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. ...


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