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Africano v. Atrium Medical Corp.

United States District Court, N.D. Illinois, Eastern Division

October 10, 2019

RANDY J. AFRICANO, Plaintiff,
v.
ATRIUM MEDICAL CORPORATION, a Delaware Corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          YOUNG B. KIM, UNITED STATES MAGISTRATE JUDGE

         Before the court is Defendant Atrium Medical Corporation's (“Atrium”) motion to strike the report and exclude the opinions of Plaintiff Randy J. Africano's expert witness, Scott Guelcher, Ph.D. For the following reasons, the motion is granted:

         Background

         Africano is suing Atrium claiming strict liability, negligence, and failure to warn in connection with its ProLite mesh, which is a medical product made of polypropylene mesh that is used in hernia repairs. During discovery, Africano submitted an initial expert report authored by Duane Priddy, Ph.D. Dr. Priddy asserts in his report that polypropylene mesh, such as that used in ProLite, is inherently unstable and readily oxidizes and is therefore inappropriate to implant in the human body for long-term use. (R. 193, Def.'s Mot. Ex. C at 2.) Atrium produced its own expert, Stephen Spiegelberg, Ph.D., who opines that polypropylene mesh is a safe biomaterial.[1] (R. 204, Def.'s Reply at 3.)

         On July 12, 2019, Africano reported to the court that he intends to offer expert opinions to rebut Atrium's expert opinions. (R. 180.) Specifically, Africano advised the court that he intends to retain Scott Guelcher, Ph.D., to “testify to the adverse effects caused by degradation of polypropylene mesh in vivo” in rebuttal to “a new issue” Dr. Spiegelberg raised in his report. (Id. at 2.) On July 13, 2019, this court ordered Africano to disclose his rebuttal experts. (R. 181.) The order also required that Africano's “experts must restrict themselves to the expert opinions offered by [Atrium].” (Id.) In response, Atrium asked this court to reconsider its order because it feared that Africano would misuse Dr. Guelcher's opinions to merely support his evidence on a central issue rather than to actually rebut the opinions of Dr. Spiegelberg. (R. 182.) This court denied Atrium's motion but reiterated that Africano's “experts must restrict themselves to the expert opinions offered by [Atrium].” (R. 185.) This court further explained that if Africano “fails to comply with this order, [Atrium] may seek to have the new opinions excluded.” (Id.) Following that order, Africano produced three rebuttal expert reports prepared respectively by Dr. Priddy, Dr. Guelcher, and Dr. Pamela B. Sylvestre. (R. 193, Def.'s Mot. at 3.) Atrium then filed the current motion to strike Dr. Guelcher's report.

         Analysis

         This court has discretion over discovery determinations, including whether to exclude improper expert reports. See Karum Holdings LLC v. Lowe's Companies, Inc., 895 F.3d 944, 950 (7th Cir. 2018). Under Federal Rule of Civil Procedure 26(a)(2)(D)(ii), rebuttal expert reports must be “intended solely to contradict or rebut evidence on the same subject matter identified by another party.” Accordingly, proper rebuttal evidence should be used to “contradict, impeach, or defuse the impact of the evidence offered by an adverse party.” Frerck v. Pearson Educ., Inc., No. 11 CV 5319, 2014 WL 477419, at *2 (N.D. Ill. Feb. 6, 2014) (quoting Peals v. Terre Haute Police Dep't, 535 F.3d 621, 680 (7th Cir. 2008)). Evidence that is only offered as additional support of a party's argument and that does not contradict any evidence introduced by the opposing party is not proper rebuttal. Noffsinger v. The Valspar Corp., No. 09 CV 916, 2011 WL 9795 at *6 (N.D. Ill. Jan. 3, 2011) (“[A] party may submit an expert rebuttal witness who is limited to contradicting or rebutting evidence on the same subject matter identified by another party in its expert disclosures.” (internal quotations omitted)).

         In moving to strike Dr. Guelcher's opinions Atrium argues that his report is improper rebuttal for two reasons. First, Atrium argues that Dr. Guelcher's report does not actually refute Dr. Spiegelberg's opinions and is not a true rebuttal, but rather an untimely causation report intended to bolster and expand upon Dr. Priddy's original report. (R. 193, Def.'s Mot. at 2.) Second, it asserts that Dr. Guelcher's opinions are not rebuttal opinions because his report “focuses on central elements of Plaintiff's claims that either were, or should have been, addressed in Plaintiff's initial expert reports.” (Id.) In response, Africano contends that it is of no concern that Dr. Guelcher's report touches on the same matter as Dr. Priddy's report, so long as Dr. Guelcher's report contradicts Dr. Spiegelberg's opinions. (R. 199, Pl.'s Resp. at 5.) According to Africano, Dr. Guelcher's report does just that.

         As to Atrium's first argument, rebuttal should be the result of a winnowing process, not an expansion of a party's original expert report, with a narrower focus than the initial expert opinion. McCann v. Cullinan, No. 11 CV 50125, 2016 WL 4593835, at *2 (N.D. Ill. Sept. 2, 2016), report and recommendation adopted sub nom, McCann v. Ogle Cty., 2016 WL 5807922 (N.D. Ill. Oct. 5, 2016). The court in McCann offers the following example of proper rebuttal:

[A] plaintiff's initial (sometimes referred to as “affirmative”) expert report may identify opinions #1, #2, and #3. Subsequently, a defendant's expert report (sometimes referred to as “response reports”) may rebut opinions #1, #2, and #3, but also add opinions #4, #5, and #6. That defendant's expert report is a proper rebuttal in that it contradicts the first three opinions. But that defendant's expert report may also be an appropriate initial expert report by presenting opinions #4, #5, and #6. Under these circumstances, Rule 26(a)(2)(D)(ii) envisions that the plaintiff be given the opportunity to provide- if it chooses-a rebuttal expert to contradict opinions #4, #5, and #6. But what is not permissible is allowing plaintiff to now-by way of a “rebuttal”-offer opinions #7, #8, and #9.

2016 WL 4593835, at *2.

         Furthermore, the measure of proper rebuttal is not whether it offers support for arguments that could have been raised in the case-in-chief, but whether it directly refutes arguments offered by the opposition. Pantaleo v. Hayes, No. 08 CV 6419, 2011 WL 2517265, at *1 (N.D. Ill. June 23, 2011). A “party may not offer testimony under the guise of ‘rebuttal' only to provide additional support for his case in chief.” Noffsinger, 2011 WL 9795, at *6. Rather, the rebuttal report must address issues raised by the opposition's expert instead of simply bolstering support for issues for which the party already bears the burden of proof. Stanfield v. Dart, No. 10 CV 6569, 2013 WL 589222, at *3-*4 (N.D. Ill. Feb. 14, 2013) (striking the expert's report for failing to address the defendant's expert's conclusions or methodology and instead attempting to bolster the prima facie case); Butler v. Sears Roebuck & Co., No. 06 CV 7023, 2010 WL 2697601, at *1 (N.D. Ill. July 7, 2010) (“Rebuttal reports should be limited to contradict[ing] or rebut[ting] evidence on the same subject matter identified by another party in its expert disclosures.” (internal quotations omitted)). Accordingly, this court may strike an expert report that does not conform to the requirements for proper rebuttal. Stanfield, 2013 WL 589222, at *4.

         Here Atrium has demonstrated that rather than contradicting or impeaching its expert's report, Dr. Guelcher's report serves primarily to shore up Africano's casein-chief. In his report, Dr. Guelcher references Dr. Spiegelberg's report in only two places, with both references pointing out undisputed facts rather than any matters in contention. (R. 193, Def.'s Mot. Ex. A at 1 n.1 (identifying the mesh's composition) & 13 n.39 (noting the name of a chemical compound in the mesh).) Beyond these two references, Dr. Guelcher's report does not address Dr. Spiegelberg's opinions. Recognizing that defect, Africano argues that the entirety of Dr. Guelcher's report rebuts Dr. Spiegelberg's broad thesis that polypropylene mesh is safe, regardless of whether it directly references any of Dr. Spiegelberg's opinions.

         This court agrees with Atrium that not only does Dr. Guelcher's report fail to contribute any new perspective rebutting Dr. Spiegelberg's opinions, but his opinions simply reiterate the same arguments Dr. Priddy made in the initial expert report. Dr. Priddy's initial report focuses on polypropylene's oxidative degradation following implantation-the same thesis Dr. Guelcher offers. (Id. at 6.) Rather than questioning the conclusions or methodology Dr. Spiegelberg offers, Dr. Guelcher repeats the points raised by Dr. Priddy. Dr. Priddy's initial report opines that polypropylene is “inherently prone to oxidative degradation and loss of strength in vivo.” (Id. Ex. C at 3.) Similarly, Dr. Guelcher opines that “[a]fter implantation [i.e. in vivo], the surface of the polypropylene mesh reacts with reactive oxygen species that are secreted by inflammatory cells, causing it to oxidize and degrade.” (Id. Ex. A at 3.) Dr. Priddy states that, as the mesh fibers “rapidly degrade and become brittle, ” the mesh integrity weakens and the “brittle surface layer flakes off the fibers causing inflammation/infection of the surrounding tissue.” (Id. Ex. C at 3.) Likewise, Dr. Guelcher states that “[t]he dynamic environment where the ProLite device is implanted coupled with the foreign body reaction leads to oxidation, chain scission, reduction in molecular weight, embrittlement, degradation, flaking, pitting, and cracking.” (Id. Ex. A at 3.) Both Drs. Priddy and Guelcher focus on the ...


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