Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Avendt v. Covidien Inc.

United States District Court, E.D. Michigan, Southern Division

December 20, 2014

ROBERT AND KAROL AVENDT, Plaintiffs,
v.
COVIDIEN INC., Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO STRIKE [87]

MONA K. MAJZOUB, Magistrate Judge.

This matter comes before the Court on Defendant Covidien Inc.'s Motion to Strike Plaintiffs' Second Supplemental Expert Disclosure and the Supplemental Expert Report of Dr. Guy Voeller. (Docket no. 87.) Plaintiffs Robert and Karol Avendt responded to Defendant's Motion (docket no. 91), and Defendant replied to Plaintiffs' Response (docket no. 92). The Motion has been referred to the undersigned for consideration. (Docket no. 88.) The parties have fully briefed the Motion; the undersigned has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. ยง 636(b)(1)(A).

I. Background

Plaintiffs filed this action against Defendant on November 21, 2011 in the Genesee County Circuit Court. (Docket no. 1, ex. A.) Defendant removed the action to this Court on December 19, 2011. (Docket no. 1.) The Complaint raises claims of Products Liability (Count I) and Loss of Consortium (Count II) for injuries that allegedly resulted from the implantation of Permacol surgical mesh during an abdominal wall surgery. ( See docket no. 1, ex. A.) In the parties' January 23, 2012 joint Discovery Plan, they agreed that Plaintiffs' expert disclosures would be due on October 15, 2012, and that Defendant's expert disclosures would be due on November 15, 2012. (Docket no. 6 at 2.) Through multiple extensions of the deadlines in the Court's Scheduling Order, Plaintiffs' and Defendant's expert disclosure deadlines were extended to June 17, 2013, and July 17, 2013, respectively. (Docket no. 32.)

On June 17, 2013, Plaintiffs identified two economic damages experts, Dr. Robert Ancell and David Hammel, and exchanged expert reports. (Docket no. 42-4.) Defendant then filed a motion for summary judgment, arguing for dismissal on the grounds that Plaintiffs failed to identify any expert on the issues of product defect and causation. (Docket no. 35). On July 17, 2013, Plaintiffs served a copy of a supplemental expert disclosure identifying Dr. Michael J. Rosen, one of Plaintiffs' treating physicians, as an expert. (Docket no. 42-5.) Plaintiffs served another supplemental expert disclosure identifying Dr. Guy Voeller as an expert on July 29, 2013. (Docket no. 42-6.) Defendant then filed a motion to strike Plaintiffs' supplemental expert disclosures as untimely and improper. (Docket no. 42.) The Court denied Defendant's motion, finding that Plaintiffs' failure to meet the expert disclosure deadline was substantially justified, and modified the Scheduling Order, extending the deadline for Plaintiffs' supplemental expert reports to February 21, 2014. (Docket no. 75.)

Plaintiffs submitted supplemental expert disclosures for Drs. Rosen and Voeller on February 21, 2014. (Docket nos. 87-3 and 87-4.) On April 9, 2014, Defendant filed the instant Motion to Strike Plaintiffs' Second Supplemental Expert Disclosure and the Supplemental Expert Report of Dr. Guy Voeller for failure to comply with Federal Rule of Civil Procedure 26. (Docket no. 87.) Alternatively, Defendant "requests that the Court limit Dr. Rosen's opinions to those related to and formed during his treatment and care of Plaintiff, and preclude Dr. Voeller from offering any opinions relying on materials he had not reviewed at the time he drafted and submitted his report, or regarding the use of Permacol in a bridging technique." ( Id. at 3.) Plaintiffs served Defendant with another supplemental expert report of Dr. Voeller on April 23, 2014 (docket no. 91-2) and then responded to Defendant's Motion to Strike on April 24, 2014 (docket no. 91). Defendant replied to Plaintiffs' Response on May 1, 2014. (Docket no. 92.) In its reply, Defendant maintains its position regarding Plaintiffs' February 2014 supplemental expert disclosures and asserts that Dr. Voeller's April 2014 supplemental expert report should also be stricken. ( See id. )

II. Governing Law

Rule 26(a)(2) governs the disclosure of expert testimony. Experts and their expert testimony can fall under one of two subsections of Rule 26(a)(2) - those experts that are retained or employed specially to provide testimony (subsection B) and those experts that are not (subsection C). Fed.R.Civ.P. 26(a)(2). Depending upon which subsection an expert falls within, a specifically detailed report must be provided to the opposing party. The subsections are as follows:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.