United States District Court, E.D. Missouri, Eastern Division
SCOTT D. MCCLURG, et al., Plaintiffs,
MALLINCKRODT, INC.,, Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' motion (ECF No.
608) to supplement three of their common-issues expert
reports, in order to correct the experts' opinions as to
Defendant Cotter Corporation's releases of radiation.
Plaintiffs wish to alter the calculations the experts
performed because those calculations were imprecise, having
been based on mere assumptions about the dryer system used by
Cotter to dry the radioactive material at issue. During
Defendants' deposition of one of Plaintiffs' experts,
Nicholas P. Cheremisinoff, Ph.D., Cotter produced the actual
specifications of the dryer system, which Plaintiffs assert
will allow their experts to offer precise
calculations. For the reasons set forth below, the Court
will grant Plaintiffs' motion in part.
state that Dr. Cheremisinoff did not have access to the
actual specifications of the dryer system either at the time
he disclosed his original expert report, in accordance with
the Case Management Order (“CMO”), on January 20,
2017, or at the time of his first supplemental report on
April 28, 2017. Dr. Cheremisinoff instead relied on
“reasonable assumptions” regarding the
specifications to perform his calculations regarding
releases. Two of Plaintiffs' other common-issues experts,
air modeler Camille Sears, and toxicologist James Clark,
Ph.D., relied on Dr. Cheremisinoff's calculations to
perform their own calculations regarding radiation release
and Plaintiffs' exposure thereto. Plaintiffs requested
the actual specifications from Cotter in discovery, but
Cotter did not produce the specifications until the
deposition of Dr. Cheremisinoff. Plaintiffs argue that Cotter
was required to disclose the specifications earlier, in
response to Plaintiffs' discovery requests. Therefore,
Plaintiffs also argue that Cotter should pay the “costs
and fees associated with any re-deposition of Plaintiffs'
experts.” ECF No. 608 at 7.
Cheremisinoff and Sears have already been deposed by
Defendants, and Dr. Clark's deposition has been scheduled
for July 25, 2017. Dr. Cheremisinoff attests that “the
source terms [for his calculations] can be reassembled within
a few days to a week using the identical methodology applied
to prepare the estimates published in [his original] Jan.
2017 report.” ECF No. 608-2 at 3. Therefore, Plaintiffs
state that Dr. Cheremisinoff will be able to issue a revised
report in less than two weeks. Plaintiffs do not indicate how
long Sears and Dr. Clark will need to revise their reports,
but at a July 10, 2017 status conference with the Court,
Plaintiffs indicated that these experts, too, would rely on
the same methodology they previously used but would simply
substitute certain inputs in their respective calculations.
opposition to Plaintiffs' motion, Cotter argues that it
was not required to produce the specifications earlier
because the specifications were obtained by its expert, and
under the CMO, Cotter is not required to disclose its experts
or the facts or data considered by its experts, until
September 15, 2017. Cotter argues that, until its expert is
designated as a trial expert, any research the expert has
conducted is and was protected work product.
Cotter does not state the precise date on which it obtained
copies of the specifications, Cotter contends that its expert
did not obtain the specifications until after Dr.
Cheremisinoff issued his original expert report on January
20, 2017. Further, Cotter argues that Dr. Cheremisinoff knew
the model number of the dryer used by Cotter before he issued
his January 20th expert report, and that Dr. Cheremisinoff
could have obtained the specifications on his own, by
conducting internet research and contacting the manufacturer,
as Cotter's expert did.
Mallinckrodt, Inc., also opposes Plaintiffs' motion.
Mallinckrodt argues that Plaintiffs have already supplemented
Dr. Cheremisinoff's expert report once, and should not be
able to do so again, in order to incorporate “publicly
available” information about the dryer system that
Plaintiffs' experts could have located on their own.
Mallinckrodt also states that “[a]lthough
Plaintiffs' motion represents that Plaintiffs only seek
leave to amend the dryer emission source term calculations by
Cheremisinoff (which will then also lead to amended reports
by Sears and Clark), Mallinckrodt anticipates Plaintiffs will
change other admitted mistakes in Cheremisinoff's
calculations that were brought to light during
deposition.” ECF No. 612 at 4.
both Defendants argue that allowing supplementation now would
prejudice Defendants because it would delay the litigation
further and may require some adjustment to Defendants'
experts' reports, which are currently due on September
Federal Rule of Civil Procedure 26(a)(2)(B), an expert
witnesses must provide a written report containing, among
other things, “a complete statement of all opinions the
witness will express and the basis and reasons for
them.” Rule 26(a)(2)(D) requires that such reports be
disclosed “at the times and in the sequence that the
court orders.” Fed.R.Civ.P. 26(a)(2)(D). This Rule
“prevents experts from ‘lying in wait' to
express new opinions at the last minute, thereby denying the
opposing party the opportunity to depose the expert on the
new information or closely examine the expert's new
testimony.” Minebea Co. v. Papst, 231 F.R.D.
3, 6 (D.D.C. 2005).
26(e)(1) provides that “[a] party who has made a
disclosure under Rule 26(a) . . . must supplement or correct
its disclosure. . . in a timely manner if the party learns
that in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing.”
Fed.R.Civ.P. 26(e)(1)(A). For an expert witness, “the
party's duty to supplement extends both to information
included in the report and to information given during the
expert's deposition, ” and “[a]ny additions
or changes to this information must be disclosed by the time
the party's pretrial disclosures under Rule 26(a)(3) are
due.” Fed.R.Civ.P. 26(e)(2).
duty to supplement arises when the expert subsequently learns
of information that was previously unknown or unavailable,
and the new information renders the earlier report incomplete
or inaccurate.” Coene v. 3M Co., 303
F.R.D. 32, 42 (W.D.N.Y. 2014) (citations omitted); see
also Wilson v. Sundstrand Corp., No. 99 C 6944, 2003 WL
22012673, at *7 (N.D. Ill. Aug. 25, 2003) (holding that a
party need not first obtain leave of court to supplement an
expert report under Rule 26(e)(1); rather, that rule
“imposes an obligation to supplement an expert
disclosure ‘if the party learns that in some material
respect the information disclosed is incomplete or
incorrect'”). However, a supplementation under Rule
26(e) should not be used as an opportunity to disclose
“new opinions.” See Coene, 303 F.R.D. at
42 (citing cases).
light of Plaintiffs' assertion that the newly-obtained
specifications render the previously disclosed expert reports
incomplete or inaccurate, the Court believes that Plaintiffs
are entitled to correct the reports under Rule 26(e)(1).
Whether the specifications were previously unavailable to
Plaintiffs is a close question, in light of the fact that Dr.
Cheremisinoff had the correct model number and perhaps could
have obtained the specifications from the manufacturer on his
own, as Cotter's expert ultimately did. But it is
likewise a close question whether Cotter should have produced
the specifications earlier, given that they were responsive
to Plaintiffs' discovery requests. See, e.g.,
Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins.
Co., 255 F.R.D. 645, 652 (N.D. Iowa 2009) ...