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In re National Hockey League Players’ Concussion Injury Litigation

United States District Court, D. Minnesota

July 25, 2017

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 Plaintiffs

          Jeffrey D. Bores, Bryan L. Bleichner, and Christopher P. Renz, Chestnut Cambronne PA, for Plaintiffs

          Janine 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 Plaintiffs

          Lewis A. Remele, Jr., Jeffrey D. Klobucar, and J. Scott Andresen, Bassford Remele, for Plaintiffs

          Thomas Demetrio, William T. Gibbs, and Katelyn I. Geoffrion, Corboy & Demetrio, for Plaintiffs

          Brian 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

          David I. Levine, The Levine Law Firm P.C., for Plaintiffs

          Daniel E. Gustafson, David A. Goodwin, and Joshua J. Rissman, Gustafson Gluek, PLLC for Plaintiffs

          Thomas J. Byrne, Namanny, Byrne, & Owens, APC for Plaintiffs

          Michael R. Cashman and Richard M. Hagstrom, Hellmuth & Johnson, PLLC, for Plaintiffs

          Robert K. Shelquist, Lockridge, Grindal, Nauen, PLLP, for Plaintiffs

          Shawn M. Raiter, Larson King, LLP, for Plaintiffs

          Charles J. LaDuca, Cuneo, Gilbert & LaDuca, LLP for Plaintiffs

          Daniel 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

          SUSAN RICHARD NELSON, United States District Judge.

         This 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.

         I. Background

         A. Motion for Class Certification and Disclosure of Experts[1]

         Plaintiffs 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.)[2] 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’ experts.”[3]

         B. Plaintiffs’ Motion to Exclude Expert Declarations for Purposes of Plaintiffs’ Motion for Class Certification

         At a 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.)

         Plaintiffs 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.)

         In 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.)

         II. Discussion

         A. The Court’s Inherent Authority

         Trial 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 trial”).

         The 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 ...


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