1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Anthon y Canning, ) No. CV-19-04565-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Medtronic Incorporated, et al., ) 12 ) 13 Defendants. ) ) 14 )
15 Before the Court is Plaintiff Anthony Canning’s (“Plaintiff”) Motion to Exclude 16 (Doc. 137) and Motion for Leave (Doc. 124). In the Motion to Exclude, Plaintiff seeks to 17 exclude the expert opinions of Michael Seger, M.D., and Jorge Ochoa, Ph.D. Plaintiff’s 18 Motion for Leave, on the other hand, seeks leave to permit the late disclosure and testimony 19 of Plaintiff’s purported rebuttal expert, Karl Leinsing. Plaintiff asserts that Mr. Leinsing’s 20 testimony is only necessary in the event this Court denies Plaintiff’s Motion to Exclude 21 and permits the testimony of Dr. Seger and Dr. Ochoa. Both of Plaintiff’s motions are fully 22 briefed and ready for review. (Docs. 137, 143 & 144; Docs. 124, 131 & 133). After 23 reviewing the parties’ briefing, the Court rules as follows. 24 I. BACKGROUND 25 This is a products liability case arising from the use of a medical stapler gun during 26 a surgical procedure performed on Plaintiff. (Doc. 13 at 2). The procedure—a robotic total 27 gastrectomy during which Plaintiff’s stomach was surgically removed—took place on 28 December 14, 2017 at Mayo Clinic Hospital (“Mayo”) in Phoenix, Arizona. (Id.). The 1 stapler was an EEAXL2535 model stapler1 (a single-use device) that was designed and 2 manufactured by Defendant. (Id.). After Plaintiff’s stomach was removed, the Mayo 3 surgeons inserted the stapler into Plaintiff’s esophagus to create an “anastomosis”2 between 4 his esophagus and his intestinal tract. (Id. at 3). The surgeons fired the stapler, but it failed 5 to deploy staples. (Id.). As a result, Plaintiff’s esophagus was torn, and the anastomosis had 6 to be completed by hand. (Id. at 4). Plaintiff suffered extended stays in the ICU, in the 7 hospital, and in rehabilitation. (Id.). His pain was continuous and magnified by any 8 attempts to swallow or breathe, and he will continue to suffer deterioration in his ability to 9 intake adequate nutrition. (Id.). 10 Following the surgery, the stapler was sent back to Defendant for inspection. (Id. 11 at 3). Defendant inspected the stapler and found that it had been fired, and that it contained 12 no staples. (Id.). Defendant installed staples, fired the stapler, and reported that it 13 functioned properly. (Id.). Plaintiff now alleges that the stapler was delivered by Defendant 14 to Mayo without staples, and that it was therefore defective. (Id.). 15 On May 24, 2019, Plaintiff filed a Complaint against Defendant in the Superior 16 Court of the State of Arizona. (Doc. 1-3 at 8). On June 26, 2019, Defendant removed the 17 case to this Court. (Doc. 1 at 1). On July 23, 2019, Plaintiff filed an Amended Complaint 18 containing two counts. (Doc. 13). Count I (“Negligence”) can be distilled to three claims: 19 negligent design, negligent manufacture, and negligent failure to warn. (Id. at 5). Count II 20 (“Strict Liability/Breach of Implied Warranty/Defect of Manufacture and Design”) can 21 also be narrowed to three claims: strict-liability design defect, strict-liability manufacture 22 defect, and breach of implied warranty. (Id.). 23 /// 24
25 1 In their Joint Rule 26(f) Case Management Report, the parties more specifically identified the stapler as a DST Series™ EEA™ XL 25mm Single Use Stapler with 3.5 26 staples (reorder code EEAXL2535). (Doc. 20 at 2). 27 2 Plaintiff explains that an anastomosis “is a surgically created connection between 28 two structures that are not normally connected.” (Doc. 137 at 3, n.3). 1 II. DISCUSSION 2 Plaintiff’s theory of the case is that the stapler was delivered by Defendant to Mayo 3 without staples and that it was therefore defective. Defendant contends that there were 4 staples in the stapler or, at the least, that Plaintiff lacks evidence to prove the absence of 5 staples. Plaintiff first seeks to exclude the opinions of two defense experts: Dr. Seger and 6 Dr. Ochoa. If the Court denies that request and permits their testimony, Plaintiff 7 alternatively requests that this Court grant him leave to permit the late disclosure and 8 testimony of his purported rebuttal expert, Mr. Leinsing. The Court will address each 9 motion in turn. 10 A. Plaintiff’s Motion to Exclude Defendant’s Experts 11 Plaintiff requests that this Court exclude the opinions of Dr. Seger and Dr. Ochoa 12 under Federal Rule of Evidence (“FRE”) 402 because their testimony is irrelevant and 13 because Defendant’s disclosure of them was in violation of certain state laws. Specifically, 14 Plaintiff argues that how the stapler was used during Plaintiff’s procedure is not at issue in 15 this case and that the stapler’s use is therefore irrelevant under FRE 401. (Docs. 137 at 2 16 & 144 at 3). Plaintiff also asserts that (i) Dr. Seger and Dr. Ochoa are not qualified under 17 Arizona law to opine as to the care provided by the Mayo surgeons and (ii) their opinions 18 place fault on Mayo and its surgeons, which violates the “nonparty-at-fault” deadline and 19 prejudices Plaintiff. (Doc. 137 at 6). 20 First, the Court rejects Plaintiff’s contention that the opinions of Dr. Seger and Dr. 21 Ochoa are irrelevant. FRE 401 provides that evidence is relevant if “it has any tendency to 22 make a fact more or less probable than it would be without the evidence” and “the fact is 23 of consequence in determining the action.” Fed. R. Evid. 401. Likewise, FRE 702 requires 24 that “expert testimony . . . be both relevant and reliable.” Messick v. Novartis Pharms. 25 Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (citations omitted). “The relevancy bar is low, 26 demanding only that the evidence ‘logically advances a material aspect of the proposing 27 party’s case.’” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th 28 Cir. 1995)). “Relevancy depends on the particular law at issue because ‘[e]xpert opinion 1 testimony is relevant if the knowledge underlying it has a valid connection to the pertinent 2 inquiry.’” Id. (citing Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010)). 3 Here, Plaintiff argues that Dr. Seger’s and Dr. Ochoa’s testimony is “only relevant 4 and admissible if the Mayo surgeons’ acts, omissions, and/or fault is at issue for trial.” 5 (Doc. 137 at 9). This argument implies that their testimony is concerned only with the 6 conduct and liability of the surgeons, and not with anything else. At best, the Court finds 7 Plaintiff’s argument to oversimplify their testimony; at worse, it misrepresents their 8 testimony entirely. Dr. Seger’s and Dr. Ochoa’s testimony offers more than just opinions 9 about the surgeons’ “acts, omissions, and/or fault.” For instance, Dr. Seger also opines 10 about what to expect when a stapler is fired without staples. (Doc. 137-1 at 5). And Dr. 11 Ochoa opines about the “six steps” in Defendant’s manufacture of the stapler where the 12 presence of staples is checked. (Doc. 137-2 at 20). This testimony is clearly relevant to the 13 issue of whether the stapler had staples in it—the pertinent inquiry in this product defect 14 case. Even setting those examples aside, this Court finds no instance—in expert reports or 15 in deposition testimony—where Defendant’s experts opine that the surgeons were at fault 16 or otherwise measured their acts and omissions against any standard of care. Instead, their 17 opinions focus on how the stapler was used and how it functioned during the procedure, 18 and whether that usage provides any indication as to the presence of staples in the stapler. 19 In sum, Plaintiff’s manufacture defect claim relies entirely on the “no-staples” theory; the 20 opinions of Dr. Seger and Dr. Ochoa are focused on that theory’s viability rather than on 21 the conduct of the surgeons. Therefore, the Court finds their testimony to easily pass the 22 “low bar” for evidentiary relevancy. 23 The Court turns now to Plaintiff’s primary argument for exclusion, that the 24 testimony of Dr. Seger and Dr. Ochoa—and Defendant’s disclosure of that testimony— 25 violates certain statutes. According to Plaintiff, Defendant’s experts opine that the Mayo 26 surgeons—nonparties in this action—failed to act in accordance with their standard of care 27 during Plaintiff’s procedure and are at fault for Plaintiff’s injuries. (Doc. 137 at 5–6). 28 Plaintiff cites to three statutory provisions and one rule which he argues were violated by 1 Defendant’s disclosure of their testimony: A.R.S. §§ 12-2603, 12-2604, 12-2506, and 2 Arizona Rule of Civil Procedure 26(b)(5). 3 Under Rule 26(b)(5), a party must serve on all other parties, and file with the court, 4 “a notice disclosing any person: (A) not currently or formerly named as a party in the 5 action; and (B) whom the party alleges was wholly or partly at fault under A.R.S. § 12- 6 2506(B).” Ariz. R. Civ. P. 26(b)(5); see also LyphoMed, Inc. v. Sup. Ct. in & for Cnty. of 7 Maricopa, 172 Ariz. 423, 425–26 (Ct. App. 1992) (“Rule 26(b)(5) of the Arizona Rules of 8 Civil Procedure was adopted to implement [§ 12-2506].”). This notice of nonparty at fault 9 must be served and filed within 150 days after the party files its answer. Ariz. R. Civ. P. 10 26(b)(5). Here, the nonparty-at-fault deadline was January 3, 2020. (Doc. 137 at 5). 11 According to Plaintiff, Defendant did not disclose its intention to argue nonparty fault until 12 it disclosed of Dr. Seger’s and Dr. Ochoa’s expert opinions on August 23, 2021—more 13 than 20 months after the deadline. (Id.). 14 Sections 12-2603 and 12-2604 set out certain requirements for experts offering 15 testimony on the standard of care in healthcare-related suits. Specifically, § 12-2603 16 requires a party who designates a healthcare professional as a nonparty-at-fault to file and 17 serve a written certification that states “whether or not expert opinion testimony is 18 necessary to prove the healthcare professional’s standard of care.” A.R.S. § 12-2603(A). 19 The statute sets forth other requirements and procedures, such as requiring the service of a 20 “preliminary expert opinion affidavit” within sixty days after filing the designation and 21 providing a method of disputing another parties’ designation that no expert testimony is 22 necessary. Id. Section 12-2604, on the other hand, prohibits a witness from providing 23 expert testimony on the appropriate standard of practice or care unless the witness is a 24 licensed health professional and the witness has at least equivalent specialties and board 25 certifications with the person against whom or on whose behalf the witness will testify. 26 § 12-2604(A). The statute further provides other criteria for standard of care testimony. Id. 27 Here, Plaintiff argues that Defendant failed to comply with § 12-2603 by not designating 28 the Mayo surgeons as nonparties at fault and by not serving a written certification stating 1 whether expert opinion testimony would be necessary to prove the surgeons’ standard of 2 care. (Doc. 137 at 6–13). Further, Plaintiff argues that Dr. Seger and Dr. Ochoa—as 3 compared to the Mayo surgeons against whom they would testify—lack the requisite 4 specialties and board certifications to opine as to the standard of care in this case. (Id.). 5 The Court finds the above statutes and rule inapplicable because Defendant does not 6 intend to argue that Mayo or its surgeons are nonparties-at-fault and because Defendant’s 7 experts do not opine as to any standard of care or to any fault of nonparties. Therefore, 8 Defendant was not required to comply with Rule 26(b)(5)’s 150-day notice requirement by 9 disclosing the Mayo surgeons as nonparties at fault. Nor was Defendant required to comply 10 with § 12-2603—that is, Defendant was not required to file a nonparty-at-fault designation 11 nor a certification indicating whether it intended to use expert testimony. Section 12-2604’s 12 specialty and board certification requirements are also inapplicable because Defendant’s 13 experts do not testify as to the appropriate standard of care or practice. 14 Plaintiff’s argument is that Defendant’s experts critique the surgeons’ use of the 15 stapler during the procedure and thereby allocate fault to the surgeons. (Doc. 137 at 6, 10– 16 13). By opining as to how the surgeons “misused” the stapler, Plaintiff asserts that the 17 experts are substantively opining as to the standard of care, even if they fail to actually use 18 the words “standard of care.” (Doc. 144 at 1–2). As examples, Plaintiff points to “several 19 pages” of Dr. Seger’s report where he “posit[ed] the different ways that the three Mayo 20 doctors . . . may have mis-used the staple gun.” (Doc. 137 at 5 (citing Doc. 137-1 at 5–7)). 21 Similarly, Plaintiff refers to certain pages of Dr. Ochoa’s report where he, “like Seger, also 22 tries to point the finger at the Mayo doctors by critiquing their use of the staple gun.” (Id. 23 (citing Doc. 137-2 at 35–37, 43)). 24 The Court recognizes that an expert’s opinion may substantively amount to 25 standard-of-care testimony even if the expert avoids using the words “standard of care.” 26 Such is not the case here, however. There is a difference between testimony that alleges 27 product misuse amounting to fault or negligence, and testimony that merely explains how 28 the product was used and functioned during a procedure. The former may amount to 1 standard-of-care or “fault” testimony; the latter does not. Here, Dr. Seger’s and Dr. Ochoa’s 2 testimony describes Plaintiff’s procedure—specifically, how the stapler was used and how 3 it functioned—without necessarily assigning any fault to Mayo or its surgeons. Their 4 theory is that the stapler was loaded with staples, and that the failed anastomosis was caused 5 by the anvil and stapler head separating prior to the stapler’s firing (“separation theory”). 6 While they speculate as to why the separation occurred, they do not opine that the surgeons 7 are necessarily at fault for Plaintiff’s injuries because of it. Nor do they opine that the 8 surgeons—by using the stapler in a manner that allowed the separation to occur—failed to 9 act in accordance with some standard of care. 10 Indeed, this Court’s review of the relevant expert reports and deposition testimony3 11 reveals that Dr. Seger and Dr. Ochoa are careful not to speculate as to any “standard of 12 care.” While the experts do not shy away from discussing the details of the procedure and 13 speculating as to how the stapler was used, they never “point the finger at” or directly 14 criticize the surgeons. (See, e.g., Docs. 137-1 at 3–5 & 137-2 at 7–10). They never speak 15 of the surgeons’ conduct in terms of negligence. They never state that what the surgeons 16 did—specifically, how they used the stapler—was right or wrong in any way. While they 17 opine that the stapler did have staples and that the failed anastomosis resulted from the 18 anvil and stapler head separating prior to firing, they stop short of directly blaming the 19 surgeons. In this way, it remains at least plausible that fault remains elsewhere, such as 20 with Defendant and its product. 21 The closest either expert comes to faulting the surgeons is when Dr. Ochoa notes 22 that the instruction-for-use provide that one must hold the “black twist knob” firmly when 23 attaching the anvil to the instrument; Dr. Ochoa immediately follows this up by stating that 24 both of Dr. Stucky’s hands were accounted for and that neither was holding the black knob. 25 3 Specifically, this Court reviewed Dr. Seger’s report (Doc. 137-1), Dr. Ochoa’s 26 report (Doc. 137-2), and Dr. Ochoa’s deposition testimony (Doc. 137-12). The parties did 27 not provide a transcript of deposition testimony for Dr. Seger. The Court is unaware of any deposition being taken of Dr. Seger and only has his report (Doc. 137-1) available for 28 review. 1 (Doc. 137-2 at 35–36). By starting with the instructions and then stating that Dr. Stucky 2 did not follow them, Dr. Ochoa appears to place fault on Dr. Stucky. However, this still 3 falls short of accusing Dr. Stucky of negligence or of failing to meet a standard of care. As 4 Dr. Ochoa explains in his deposition, the instructions-for-use are not intended to tell the 5 surgeons how to practice medicine, but rather to provide them with “technical and 6 performance information about the device.” (Doc. 137-12 at 9). The surgeon then uses that 7 information in combination with “their education, training and experience” to make patient 8 treatment decisions. (Id. at 9, 11–12). Thus, by noting that Dr. Stucky did not follow the 9 instructions-for-use, Dr. Ochoa is not opining that Dr. Stucky fell above or below any 10 standard in the practice of medicine. Rather, he is understanding and explaining how the 11 stapler was functioning in the environment in which it was used and what that means, from 12 an engineering perspective, as to whether the stapler had staples in it. (Id. at 15, 21). 13 All told, the reports of Dr. Seger and Dr. Ochoa focus less on the conduct of the 14 surgeons and more on the device, and only consider the former to the extent it informs 15 about the latter. Both experts focus on the central issue: whether the stapler used on Plaintiff 16 contained staples and, if so, how the failed anastomosis occurred anyway. Their 17 conclusions are not that the surgeons were to blame, but rather that the evidence indicates 18 the stapler had staples in it. (Docs. 137-1 at 7 & 137-2 at 15). Reaching this conclusion of 19 course involves consideration of the surgeons’ conduct during the procedure, but as Dr. 20 Ochoa explains, this is just one factor in assessing a medical device. (See Doc. 137-12 at 21 17–18 (explaining that “three pillars” of assessing a medical device are surgical factors, 22 patient factors, and device factors)). In fact, Dr. Ochoa was specifically asked at his 23 deposition whether he was concluding that the surgeons engaged in any wrongdoing: 24 Q: Dr. Ochoa, are you claiming that any of [Plaintiff]’s surgeons did anything wrong? 25 A: No, I am not offering any opinions on that. I would defer to 26 a physician to address those questions. 27 Q: Are you claiming that any of [Plaintiff]’s surgeons violated the standard of care? 28 A: No, not at all. 1 Q: Are you claiming that any of [Plaintiff]’s surgeons were at 2 fault for what they did? 3 A: No, I could not offer an opinion on that and I don’t. 4 (Id. at 35–36). Moreover, the Court finds Plaintiff’s request—to entirely exclude Dr. Seger 5 and Dr. Ochoa—unreasonable. Plaintiff asserts that Defendant should not be allowed “to 6 introduce any evidence (including expert opinion evidence) as to how members of the 7 Mayo surgical team handled, used, manipulated, or otherwise employed the single-use 8 staple gun.” (Doc. 137 at 7 (emphasis added)). As Defendant put it, Plaintiff is “boldly 9 asking” that jurors not hear any evidence from Defendant concerning what occurred during 10 the surgery or how the stapler was used. (Doc. 143 at 3). Instead, Plaintiff wants the jury 11 hearing “only his version of the events.” Id. The Court agrees with Defendant. 12 A few things are certain in this case. First, we will never definitively know whether 13 the stapler had staples in it. Second, the answer to this question is critical to Plaintiff’s 14 defect claim—in fact, it is determinative, given that “no staples” is Plaintiff’s only defect 15 theory. Third, this question is a fact question that will be left for the jury and the jury alone. 16 These certainties underline the importance of Dr. Seger’s and Dr. Ochoa’s testimony. 17 Excluding their testimony would leave the jury with only half the story on a central fact 18 question of this case. As noted above, Dr. Seger’s and Dr. Ochoa’s opinions offer more 19 than just the separation theory. They explain how the stapler functions, what can be 20 expected when it is fired with and without staples, and details of Defendant’s 21 manufacturing process including the steps that are in place to ensure the presence of staples 22 and overall quality control. (Docs. 137-1 at 3, 5 & 137-2 at 7–8, 19–29). These are just a 23 few examples of testimony offered by Defendant’s experts that is not only relevant and 24 valuable to the jury, but that also has nothing to do with the surgeons’ standard of care or 25 whether fault lies with them. To do as Plaintiff requests and entirely exclude the testimony 26 of Dr. Seger and Dr. Ochoa, this Court would unjustifiably handicap Defendant’s ability 27 to defend itself and would withhold from the jury probative evidence on a determinative 28 1 fact question—things this Court is unwilling to do under these circumstances. 2 The Court concludes that, so long as Dr. Seger and Dr. Ochoa’s testimony merely 3 describes how the stapler was used—without characterizing that use as “misuse” or outright 4 blaming the stapler’s failure on the surgeons—their testimony does not constitute “standard 5 of care” or “fault” opinion. For example, in describing the separation theory, the experts 6 may be able to testify as to the fact itself, i.e., “the anvil and stapler separated and did not 7 fully compress together.” However, they may not be able to testify that “the surgeons failed 8 to fully compress the anvil and stapler together.” The Court recognizes that the difference 9 between the two is subtle and that it may sometimes be difficult to make the distinction. 10 But this Court simply cannot grant Plaintiff the relief requested on this Motion—that is, 11 wholesale exclusion of Dr. Seger and Dr. Ochoa. To the extent that Plaintiff believes 12 specific excerpts of their testimony should be excluded, Plaintiff may file an appropriate 13 motion in limine prior to trial. This Court will not, however, wholly exclude the opinions 14 of Defendant’s experts, and Plaintiff’s Motion to Exclude is therefore denied. 15 B. Plaintiff’s Motion for Leave 16 Given that Dr. Seger and Dr. Ochoa will not be excluded, the Court must now rule 17 on Plaintiff’s Motion for Leave (Doc. 124).4 Before addressing the Motion’s merits, the 18 Court will first review some of the relevant procedural background. Plaintiff filed this 19 lawsuit in state court on May 24, 2019. (Doc. 1-3 at 8). The case was removed to federal 20 court the following month, and Defendant filed its answer on August 6, 2019. (Docs. 1 & 21 14). Under Rule 26(b)(5), Defendant then had 150 days—until January 3, 2020—to 22 disclose any nonparty whom Defendant sought to allege was wholly or partly at fault. That 23 deadline passed and Defendant failed to disclose any nonparty at fault. 24 Over the course of 2020 and 2021, this Court granted the parties a series of 25
26 4 Had this Court excluded the opinions of Dr. Seger and Dr. Ochoa, it would not 27 have had to consider Plaintiff’s Motion for Leave. (See Doc. 137 at 2 (“In the event this Court does not exclude [Dr. Seger’s and Dr. Ochoa’s] opinions, [Plaintiff] submits that he 28 should be permitted to disclose and use the expert opinions of Karl Leinsing.”)). 1 extensions to their expert and rebuttal expert disclosure deadlines. (Docs. 22, 28, 30, 74, 2 96, 102, 107, 110, 113 & 117). The parties and this Court ultimately settled on the 3 following deadlines: March 8, 2021 as the deadline for Plaintiff’s expert disclosures; 4 August 23, 2021 as the deadline for Defendant’s expert disclosures; and September 27, 5 2021 as the deadline for the parties’ rebuttal expert disclosures. (Doc. 117 at 1–2). On 6 August 23, 2021, Defendant disclosed Dr. Seger and Dr. Ochoa as expert witnesses. (Doc. 7 120). Plaintiff failed to disclose a rebuttal expert prior to the September 27, 2021 deadline. 8 As discussed above with respect to Plaintiff’s Motion to Exclude, Plaintiff argued that 9 Defendant’s experts placed fault on the surgeons by asserting they misused the stapler. And 10 because the surgeons are nonparties in this matter, Plaintiff argued that Defendant should 11 have disclosed them as “nonparties at fault” prior to the January 3, 2020 deadline. Plaintiff 12 moved to exclude their testimony. After finding that their testimony did not place fault 13 upon the surgeons, this Court now denies the Motion to Exclude. See supra pt. II, sec. A. 14 On November 11, 2021, Plaintiff filed this Motion for Leave, requesting leave—in 15 the event this Court denied the Motion to Exclude—to permit the late disclosure of Mr. 16 Leinsing, Plaintiff’s purported rebuttal witness. The request came 248 days after Plaintiff’s 17 expert disclosure deadline and 45 days after the rebuttal expert disclosure deadline. 18 Plaintiff argues that his failure to timely disclose of Mr. Leinsing’s testimony is both 19 substantially justified and harmless, and that it should therefore be excused. (Doc. 124 at 20 4). In response, Defendant argues that Mr. Leinsing’s testimony is not rebuttal testimony 21 at all, and that it instead represents a new theory that Plaintiff is trying to introduce. (Doc. 22 131 at 2, 4–6). Defendant also argues that Mr. Leinsing’s late disclosure is neither 23 substantially justified nor harmless, and that it should therefore be denied. (Id. at 2, 6–11). 24 The Court first addresses whether Mr. Leinsing’s testimony constitutes “rebuttal” 25 testimony at all. Under Federal Rule of Civil Procedure 26(a)(2)(D)(ii), a “rebuttal” 26 opinion is defined as one “intended solely to contradict or rebut evidence on the same 27 subject matter identified by another party.” In other words, “[t]he function of rebuttal 28 testimony is to explain, repel, counteract or disprove evidence of the adverse party.” Armer 1 v. CSAA Gen. Ins. Co., No. CV-19-04402-PHX-DWL, 2020 WL 3078353, at *5 (D. Ariz. 2 June 10, 2020) (citing Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 3 2006)). These definitions align with this Court’s September 2019 Case Management Order, 4 which stated that “[r]ebuttal experts shall be limited to responding to opinions stated by 5 initial experts.” (Doc. 22 at 3 (emphasis added)). Here, the opinions asserted by Mr. 6 Leinsing do not constitute rebuttal opinions; instead, they are opinions that Plaintiff was 7 required to disclose by the initial expert disclosure deadline of March 8, 2021. 8 Dr. Seger and Dr. Ochoa opine that the stapler had staples in it, and that the failed 9 anastomosis was more likely caused by separation of the anvil and stapler. See supra pt. II, 10 sec. A. A proper rebuttal opinion would thus seek to “explain, repel, counteract or 11 disprove” Dr. Seger’s and Dr. Ochoa’s opinions. Armer, 2020 WL 3078353, at *5. Here, 12 one would expect a rebuttal expert to argue that the stapler did not have staples, or that the 13 failed anastomosis was not caused by a separation of the anvil and stapler. Instead, Mr. 14 Leinsing’s testimony accepts Dr. Ochoa’s opinion as true and goes on to conclude that the 15 stapler could have feasibly been designed with a safety feature that would have prevented 16 it from firing until the anvil and stapler were fully mated together. (Doc. 135-6 at 6). 17 Plaintiff does not even dispute this characterization of Mr. Leinsing’s testimony, 18 stating that Mr. Leinsing’s report “indicates that if, indeed, the [Defendant’s] experts are 19 correct and there was misuse of the product, active safety measures in the stapler were 20 feasible and should have been installed.” (Doc. 124 at 4). In other words—and as 21 Defendant argues—Plaintiff appears to be using Mr. Leinsing’s testimony not to rebut the 22 opinions of Defendant’s experts, but rather to offer a brand-new design defect theory, 23 something that is clearly prohibited by the law. See Facciola v. Greenberg Traurig LLP, 24 No. CV-10-1025-PHX-FJM, 2012 WL 1242382, at *1 (D. Ariz. Apr. 11, 2012) (“Rebuttal 25 reports cannot be used to introduce new theories or to correct oversights in the plaintiffs’ 26 case in chief.”); Huawei Techs., Co., Ltd. v. Samsung Elecs. Co., Ltd., 340 F. Supp. 3d 934, 27 995 (N.D. Cal. 2018) (“Rebuttal testimony cannot be used to advance new arguments or 28 new evidence. . . . The test of whether an expert’s opinion constitutes rebuttal or a new 1 opinion [is] . . . whether a rebuttal attempts to put forward new theories outside the scope 2 of the report it claims to rebut.” (citations and internal quotations omitted)). 3 The Court finds Defendant’s citation to Armer v. CSAA General Insurance Co. 4 persuasive. In that case, the defendant insurance company’s expert opined that the 5 plaintiff’s pelvis was fractured prior to the car accident at issue. Armer, 2020 WL 3078353, 6 at *3. This contradicted the plaintiff’s theory that the fracture was caused by the accident. 7 Id. at *2. After the plaintiff’s expert disclosure deadline—but before the rebuttal expert 8 disclosure deadline—the plaintiff sought to introduce the testimony of her own purported 9 rebuttal expert. Id. at *4. The new expert would testify that the plaintiff indeed had a pre- 10 existing pelvic fracture at the time of the accident, but that the accident exacerbated the 11 injury. Id. at *4–6. The court found that the new expert’s exacerbation theory was not 12 rebuttal testimony because—instead of contradicting or rebutting the defendant’s expert— 13 the new expert sought to adopt that expert’s theory and then “utilize [it] as the springboard 14 for an entirely new theory of causation.” Id. at *6. The court held that “[w]hatever the scope 15 of rebuttal, it cannot be so expansive as to allow a party to discard its initial theory of 16 causation and adopt a new, contradictory theory that would be introduced during its case- 17 in-chief.” Id. (citations omitted). 18 Here, the Court finds that Plaintiff is attempting to do the same thing. Plaintiff’s 19 theory of the case is that the stapler lacked staples when it was delivered to Mayo, and that 20 it therefore had a manufacture defect. Defendant’s experts opine that the evidence suggests 21 the presence of staples, and that the cause of the failed anastomosis was instead a separation 22 of the anvil and stapler. Now, well after all expert disclosure deadlines, Plaintiff seeks to 23 introduce Mr. Leinsing’s opinion that, first, accepts Dr. Ochoa’s conclusion as true, and 24 second, uses that conclusion “as the springboard” for his own theory that the stapler’s 25 failure could have been prevented with an alternative, feasible design—a design that would 26 have prevented the stapler from firing until the anvil and stapler were fully compressed 27 together. (Doc. 135-6 at 6). In other words, Mr. Leinsing’s testimony would introduce a 28 1 new theory altogether, that the stapler had a design defect.5 Thus, Mr. Leinsing’s expert 2 opinion is not a rebuttal opinion at all and it should have been disclosed by Plaintiff’s 3 March 8, 2021 initial expert disclosure deadline. 4 Regardless of whether Mr. Leinsing’s testimony is considered rebuttal or not, 5 Plaintiff’s disclosure of his testimony is untimely. Rule 37(c)(1) provides that, if a party 6 fails to timely disclose of a witness, that party is not allowed to use that witness at trial, 7 unless the failure was substantially justified or is harmless. Fed. R. Civ. P. 37(c)(1). 8 Plaintiff, of course, argues that his late disclosure is both substantially justified and 9 harmless, while Defendant argues the opposite. 10 Plaintiff’s substantial justification argument relies on his characterization of 11 Defendant’s expert testimony as untimely, nonparty-fault opinion. According to Plaintiff, 12 he “did not anticipate rebutting expert testimony directed at nonparties” because Defendant 13 failed to timely designate any nonparties at fault. (Doc. 124 at 4). Thus, Plaintiff believes 14 that he became “substantially justified” in using Mr. Leinsing’s testimony as soon as 15 Defendant disclosed Dr. Seger and Dr. Ochoa, because their testimony—according to 16 Plaintiff—placed fault on the surgeons by alleging their misuse of the stapler. Id. The Court 17 is unpersuaded by this argument because, as this Court found above, neither of Defendant’s 18 experts nor Defendant itself intend to argue that the surgeons are at fault in this case. See 19 supra pt. II, sec. A. Moreover, even if Defendant’s experts were to opine that the surgeons 20 were at fault, that would not “substantially justify” the disclosure of Mr. Leinsing because 21 his opinion does not rebut Defendant’s experts at all but rather adopts their conclusion to 22
23 5 That Plaintiff intends to use Mr. Leinsing’s testimony as the basis for his design defect claim—rather than as rebuttal testimony only—is further underscored by the 24 argument Plaintiff makes in opposition to Defendant’s Motion for Summary Judgment. In 25 response to Defendant’s argument that Plaintiff lacked any working theory for his design defect claim, Plaintiff points to Mr. Leinsing’s testimony as being the basis of the claim. 26 (Doc. 134 at 5–6). Thus, on one hand, Plaintiff is arguing that Mr. Leinsing is merely a 27 rebuttal expert whose testimony is only needed in the event Defendant’s experts are permitted to testify. On the other hand, Plaintiff is arguing that Mr. Leinsing’s testimony 28 serves as the very foundation of his design defect claim. 1 “springboard” a new design defect theory. 2 As to harmlessness, Plaintiff argues that a trial date has not been set and plenty of 3 time remains for Defendant to depose Mr. Leinsing. (Doc. 124 at 4). Plaintiff asserts that 4 he will be the one most significantly harmed if Mr. Leinsing is not permitted to testify. (Id. 5 at 4–5). Defendant responds that permitting Mr. Leinsing’s testimony—which would 6 introduce an entirely new design defect theory—would require the re-opening of discovery, 7 the re-doing of expert work-ups, reports, and depositions, and the re-setting of dispositive 8 motion deadlines. (Doc. 131 at 9). According to Defendant, such disruption would delay 9 this case further and result in increased costs and fees. (Id.). The Court agrees with 10 Defendant and finds that permitting the late disclosure of Mr. Leinsing would not be 11 harmless. This Court has been generous with the parties’ expert disclosure deadlines to this 12 point, having already extended them several times. (See Docs. 22, 28, 30, 74, 96, 102, 107, 13 110, 113 & 117). Moreover, this case is well beyond the two-year anniversary of its filing, 14 and this Court has previously warned the parties that it will not continue to grant extensions, 15 particularly those that would affect the dispositive motion deadline. (See, e.g., Doc. 113 16 at 1). Permitting Mr. Leinsing’s late disclosure would undoubtedly lead to further delays 17 in this case. At the very least, Defendant would need an opportunity to depose Mr. Leinsing 18 and would likely seek a withdraw of its pending Motion for Summary Judgment so that it 19 could refile with arguments accounting for Mr. Leinsing’s testimony. And given that Mr. 20 Leinsing’s testimony offers a new defect theory altogether, Defendant would need an 21 opportunity to rebut the new theory with expert testimony of its own and to conduct 22 additional written discovery and depositions. 23 All told, this Court finds that Mr. Leinsing’s testimony does not constitute “rebuttal” 24 opinion and instead introduces a new theory altogether. Moreover, the untimely nature of 25 Plaintiff’s disclosure is neither substantially justified nor harmless. Therefore, this Court 26 denies Plaintiff’s Motion for Leave. 27 /// 28 /// 1 It. CONCLUSION 2 In conclusion, this Court finds that Defendant’s experts, Dr. Seger and Dr. Ochoa, do not offer “standard of care” or “fault” opinions. Thus, their testimony does not run afoul 4| of Arizona law and the Court denies Plaintiff's request to exclude them. Additionally, this 5 | Court finds that Mr. Leinsing is not a “rebuttal” expert and that Plaintiff's untimely 6 | disclosure of him was neither substantially justified nor harmless. 7 Accordingly, 8 IT IS ORDERED that Plaintiff's Motion to Exclude (Doc. 137) is denied. 9 IT IS FURTHER ORDERED that Plaintiff's Motion for Leave (Doc. 124) is denied. 11 Dated this 11th day of April, 2022. 12 DK A 4 13 Honorable reven P. Légan 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28