United States District Court, D. Minnesota
In re National Hockey League Players’ Concussion Injury Litigation This Document Relates to All Actions
Charles S. Zimmerman, Brian Gudmundson, David Cialkowski, and
Wm Dane DeKrey, Zimmerman Reed, PLLP, Bradley C. Buhrow and
Hart L. Robinovitch, Zimmerman Reed, PLLP, for Plaintiffs
Stephen G. Grygiel, Steven D. Silverman, and William
Sinclair, Silverman, Thompson, Slutkin & White, LLC,for
Jeffrey D. Bores, Bryan L. Bleichner, and Christopher P.
Renz, Chestnut Cambronne PA, for Plaintiffs
D. Arno, Kathleen L. Douglas, Stuart A. Davidson, and Mark J.
Dearman, Robbins, Geller, Rudman & Dowd, LLP, and Leonard
B. Simon, Robbins, Geller, Rudman & Dowd, LLP, for
A. Remele, Jr., Jeffrey D. Klobucar, and J. Scott Andresen,
Bassford Remele, for Plaintiffs
Demetrio, William T. Gibbs, and Katelyn I. Geoffrion, Corboy
& Demetrio, for Plaintiffs
D. Penny, Goldman, Scarlato & Karon PC, and Mark S.
Goldman, Goldman, Scarlato & Karon, PC for Plaintiffs
Vincent J. Esades and James W. Anderson, Heins Mills &
Olson, PLC for Plaintiffs
I. Levine, The Levine Law Firm P.C., for Plaintiffs
E. Gustafson, David A. Goodwin, and Joshua J. Rissman,
Gustafson Gluek, PLLC for Plaintiffs
J. Byrne, Namanny, Byrne, & Owens, APC for Plaintiffs
Michael R. Cashman and Richard M. Hagstrom, Hellmuth &
Johnson, PLLC, for Plaintiffs
K. Shelquist, Lockridge, Grindal, Nauen, PLLP, for Plaintiffs
M. Raiter, Larson King, LLP, for Plaintiffs
Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP for
J. Connolly, Joseph M. Price, Linda S. Svitak, and Aaron D.
Van Oort, Faegre Baker Daniels, LLP, John H. Beisner, Jessica
D. Miller, and Geoffrey M. Wyatt, Skadden, Arps, Slate,
Meagher & Flom LLP, Shepard Goldfein, James A. Keyte,
Matthew M. Martino, and Michael H. Menitove, Skadden, Arps,
Slate, Meagher & Flom LLP, Matthew Stein, Skadden, Arps,
Slate, Meagher & Flom, LLP, Joseph Baumgarten and Adam M.
Lupion, Proskauer Rose LLP, for Defendant
MEMORANDUM OPINION AND ORDER
RICHARD NELSON, United States District Judge.
matter is before the Court on Plaintiffs’ Motion to
Exclude Declarations of Defendant’s Experts for
Purposes of Plaintiffs’ Motion for Class Certification.
(Doc. No. 872, “Plaintiffs’ Motion to
Exclude”.) The Court held a hearing on
Plaintiffs’ Motion to Exclude on July 11, 2017. (Doc.
No. 882, Min. Entry for Formal Status Conf. and Mot.
Hr’g; Doc. No. 887, Tr. of Status Conf. and Mot.
Hr’g.) For the reasons set forth herein,
Plaintiffs’ Motion to Exclude is granted in part and
denied in part.
Motion for Class Certification and Disclosure of
filed their Motion to Certify Class and for Appointment of
Class Representatives and Class Counsel on December 8, 2016.
(Doc. No. 638.) Plaintiffs also filed the declarations of
their experts, Dawn R. Comstock, D’Arcy Jenish, Stephen
T. Casper, Thomas Blaine Hoshizaki, and Robert C. Cantu.
(Doc. Nos. 642–46.) On April 27, 2017, Defendant filed
its Memorandum in Opposition to Plaintiffs’ Motion to
Certify Class and for Appointment of Class Representatives
and Class Counsel. (Doc. No. 787.) The same day, Defendant moved to
exclude all of Plaintiffs’ experts under Rule 702 and
Daubert. (Doc. Nos. 755 (Jenish), 761 (Casper), 767
(Cantu), 772 (Comstock), and 781 (Hoshizaki).) With these
filings, Defendant disclosed a total of nineteen experts
“in support of Defendant NHL’s Opposition To
Plaintiffs’ Motion For Class Certification And For
Appointment Of Class Representatives And Class Counsel and in
support of the NHL’s contemporaneously filed motions to
exclude the testimony of plaintiffs’
Plaintiffs’ Motion to Exclude Expert Declarations for
Purposes of Plaintiffs’ Motion for Class
formal status conference held on May 12, 2017, Plaintiffs
raised concerns about the number of experts Defendant had
disclosed. (Doc. No. 861, Transcript of 5/12/17 Status
Conference 9–12, 26–29.) In particular,
Plaintiffs argued that Defendant’s disclosure of
nineteen experts was disproportionate to their own disclosure
of five, and “the number of experts that were filed in
connection with the class certification motion are cumulative
and duplicative in many respects.” (Id. at
10–11.) After the status conference, the Court issued a
briefing schedule on Plaintiffs’ “motion to
strike expert reports” and set a hearing for July 11,
2017. (Doc. No. 867.) The Court also issued an order
extending the time for Plaintiffs’ responses to the
Defendant’s Daubert motions until September 8,
2017; extending the time for Defendant’s Reply in
support of its Daubert motions until October 6,
2017; extending the time for Plaintiffs’ Reply in
support of their Motion for Class Certification to October 6,
2017; and setting the hearing on these motions for October
11, 2017. (Doc. No. 882.)
timely filed their Motion to Exclude. (Doc. No. 872.)
Plaintiffs argue that an unspecified number of
Defendant’s expert declarations should be excluded
because the Court should not be burdened or inconvenienced
with the task of sorting through nineteen expert reports at
the class certification stage. (Doc. No. 887, Transcript of
7/11/17 Status Conference 14–15.) Framing their
arguments around thirteen class certification
“issues,” Plaintiffs ask the Court to determine
that Defendant’s nineteen expert declarations are
cumulative or not relevant in the context of a motion for
class certification; require Defendant to designate one
expert on each of the thirteen class certification issues;
and exclude such portions of Defendant’s expert
declarations that do not fall within those parameters. (Doc.
No. 873, Pls.’ Mem. in Supp. of Mot. to Excl. 25.)
opposition, Defendant argues that its expert opinions are not
cumulative, but even if they are, Plaintiffs’ motion is
premature because concerns about cumulative evidence relate
to the presentation of evidence to a jury at trial, not to a
court when deciding class certification. (Doc. No. 881,
Def.’s Mem. in Opp. to Pls.’ Mot. to Excl.
1– 2, 5–38.) Defendant also argues
Plaintiffs’ proposed rule that only one expert be
allowed to speak on any issue is both prejudicial and
impracticable because it would mean that Defendant and
Plaintiffs would have to submit new expert declarations.
Moreover, Defendant argues that Plaintiffs themselves offered
multiple experts on a range of issues. (Id. at
2–5, 35, 39, 44–46.) Finally, even if some of
Defendant’s expert opinions relate to merits issues,
Defendant argues this offers no justification to strike
because class and merits issues often overlap for purposes of
the Court’s rigorous class certification analysis.
(Id. at 3, 39–44.)
The Court’s Inherent Authority
courts have “inherent authority and broad discretion to
exclude cumulative expert testimony, if it is not done
‘arbitrarily, or on the basis of mere
numbers.’” Olsen v. Delcore, No.
07-CV-334 TS, 2009 WL 3055408, at *1 (D. Utah Sept. 24, 2009)
(citing Nalder v. West Park Hosp., 254 F.3d 1168,
1173 (10th Cir. 2001)). Rule 403 of the Federal Rules of
Evidence, in conjunction with this inherent authority,
provides “another basis to exclude cumulative or
duplicative expert witnesses.” Id.; Fed. R.
Evid. 403 (“The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger
of . . . needlessly presenting cumulative evidence.”).
The discretion to exclude or strike expert testimony can be
used at any stage of the proceedings, not just at trial.
See, e.g., Aetna Cas. & Sur. Co. v.
Guynes, 713 F.2d 1187, 1193 (5th Cir. 1983) (explaining
that a trial judge “can exercise this discretion before
Court’s consideration of Plaintiffs’ Motion to
Exclude and its exercise of discretion takes into account the
district court’s obligation to undertake a
“rigorous analysis” when it considers class
certification to ensure that the requirements of Rule 23 are
met. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th
Cir. 2011). “Frequently that ‘rigorous
analysis’ will entail some overlap with the merits of
the plaintiff’s underlying claim, and the district
court may resolve disputes going to the factual setting of
the case if necessary to the class certification
analysis.” Id. (citing Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 351 (2011) and Blades
v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005)).
Therefore, “[e]xpert disputes ‘concerning the
factual setting of the case’” must be resolved
“to the extent ‘necessary to determine the nature
of the evidence that would be sufficient, if the
plaintiff’s general allegations were true, to make out
a prima facie case for the class.’” In re
Zurn Pex Plumbing Prods. Liability Litig., 644 F.3d 604,
611 (8th Cir. 2011) (quoting Blades, 400 F.3d at
567). As the Second Circuit has explained,
To avoid the risk that a Rule 23 hearing will extend into a
protracted mini-trial of substantial portions of the
underlying litigation, a district judge must be accorded
considerable discretion to limit both discovery and the
extent of the hearing on Rule 23 requirements.
In re IPO Sec. Litig., 471 F.3d 24, 41 (2d Cir.
2006). Later, when considering class certification, the court
will resolve disputes among the varying expert opinions to
the extent that those disputes are relevant to the