United States District Court, D. Minnesota
United States of America and the State of California, ex rel. Steven Higgins, Plaintiffs,
Boston Scientific Corporation, Defendant.
N. Leung United States Magistrate Judge
matter is before the Court on Relator's Motion for Leave
to Substitute Expert or, Alternatively, for Ruling that
Expert is Acceptable as Rebuttal Expert. (ECF No. 301).
Following another ruling of the Court, the parties were
invited to submit a joint letter regarding the impact of
developments in this case on the present motion. (ECF Nos.
315, 316). Based on the record before the Court, including
the parties' submissions, the motion is denied.
Court's Third Amended Pretrial Scheduling Order sets the
relevant deadlines: expert witnesses must be identified by
August 30, 2019; expert witness written reports are due
October 18, 2019; rebuttal expert witnesses must be disclosed
by November 11, 2019; rebuttal expert reports are due
December 6, 2019; and all expert witness discovery is due
December 27, 2019. (ECF No. 278, at 1-2). All post-October
16, 2019 deadlines were extended at least 60 days. (ECF No.
313, at 30 n.15). The parties are each limited to four expert
witnesses and four expert witness depositions. (ECF No. 278,
identified four expert witnesses on August 30, 2019. (ECF No.
309-2). On October 5, 2019, Relator withdrew one expert
witness, Casper Uldricks, and wishes to replace him with
another expert, Dr. Lawrence Mayer. Relator sought
Defendant's approval for the substitution but consent was
is the “master of [his] own case and can designate or
de-designate experts for trial.” Wreal LLC v.
Amazon.com, Inc., 2015 WL 1281042, at *4 (S.D. Fla. Mar.
20, 2015). As such, Relator can de-designate Uldricks without
leave of the Court or Defendant. The question that remains is
whether Relator can now use his open expert witness slot for
a new affirmative expert witness or only for a rebuttal
set by a pretrial scheduling order may be modified only for
good cause and the court's leave. Fed.R.Civ.P. 16(b)(4).
“The primary measure of Rule 16's ‘good
cause' standard is the moving party's diligence in
attempting to meet the case management order's
requirements.” Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001). The next inquiry is the
prejudice to the nonmoving party. Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607 (8th Cir. 1992).
Courts are afforded “broad discretion in establishing
and enforcing deadlines and in maintaining compliance with
discovery and pretrial orders.” In re Baycol Prod.
Litig., 596 F.3d 884, 888 (8th Cir. 2010).
the pretrial scheduling order sets a very specific timeline
for expert witness disclosures, reports, and rebuttal
disclosures and reports. Relator missed the deadline to
identify Dr. Mayer as an affirmative expert witness. The
Court sees no diligence in Relator trying to meet that
deadline. In fact, Relator's proffered reasoning
“is based, in significant part, on the expert
disclosures made by Defendant.” (ECF No. 301 ¶ 3).
Relator cannot look at Defendant's disclosures and then
opt for a re-do on his affirmative expert
disclosures. Because the Court does not find diligence
in meeting the deadline with respect to identification of Dr.
Mayer as an expert, it need not consider any prejudice to
Relator has de-designated Ulricks as an expert he now has one
open expert witness slot to use for a rebuttal expert, be
that Dr. Mayer or someone else. The parties both improperly
ask the Court to weigh in on whether Dr. Mayer is an
appropriate rebuttal expert witness. There is no basis for
the Court, at this time, to prevent Dr. Mayer from being
identified as Relator's rebuttal expert witness. The
Court will not provide the parties with an anticipatory or
advisory ruling on testimony that has not yet been generated
in response to expert reports that have not been provided.
last matter warrants comment. Defendant requests, in response
to Relator's motion, the ability to depose James
O'Reilly. O'Reilly was cited in Relator's Second
Amended Complaint as an expert. Relator has not identified
O'Reilly as an expert witness, however, so he qualifies
as a non-testifying expert and any discovery related to him
is heavily restricted by Rule 26(b)(4)(D). See Court v.
LLB GYM, LLC, 2018 WL 3156800, at *2 (E.D. Pa. June 28,
2018) (explaining the difference between testifying and
non-testifying experts). Thus, Defendant's request for a
fifth expert deposition aimed at O'Reilly is denied.
based on the foregoing, IT IS HEREBY ORDERED
that Relator's Motion for Leave to Substitute Expert or,
Alternatively, for Ruling that Expert is Acceptable as
Rebuttal Expert, (ECF No. 301), is DENIED.