City and County of San Francisco v. Purdue Pharma L.P.

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 CITY AND COUNTY OF SAN Case No. 18-cv-07591-CRB FRANCISCO, et al., 10

Plaintiffs, ORDER GRANTING MOTION TO 11 STRIKE KEYES AND WALDMAN v. REBUTTAL REPORTS 12 PURDUE PHARMA L.P., et al., 13 Defendants. 14

15 Defendants move to strike sections of the rebuttal reports of Plaintiff’s experts Dr. 16 Keyes and Dr. Waldman. Defendants argue that the relevant sections of the reports offer 17 new analyses and new opinions that are improper for rebuttal reports. See generally 18 Motion to Strike (“Mot.”) (dkt. 984–2). Plaintiff opposes the motion. See Opposition 19 (“Opp.”) (dkt. 1072–2). For the reasons discussed below, the motion is granted. 20 A. Dr. Keyes 21 In her opening report, Dr. Keyes offers several opinions regarding the connection 22 between increasing numbers of opioid prescriptions and opioid related harms. See Keyes 23 Report (dkt. 977–4) at 3–5, 13–25, 29–41. Among her opinions, Dr. Keyes states that 24 evidence shows that Defendants’ aggressive marketing of opioids resulted in an 25 oversupply of opioids causing numerous harms in San Francisco. See, e.g., id. at 14. 26 In their response reports, Defendants’ experts criticize Dr. Keyes for failing to 27 define the term “oversupply” and for failing to perform any quantitative analysis to show 1 that Defendants’ allegedly misleading marketing resulted in an oversupply of opioids in 2 San Francisco. See, e.g., McCrary Report (dkt. 984–11) at 31–32 (“Dr. Keyes makes no 3 effort to quantify the appropriate level of prescribing, determine whether that level could 4 have been increasing over time, or quantify the level of inappropriate prescribing that 5 would constitute ‘oversupply.’”). 6 In her rebuttal report, Dr. Keyes presents an entirely new analysis that is not part of 7 her opening report. See Keyes Rebuttal Report (dkt. 972–8) at 3–10. In the new analysis, 8 Dr. Keyes purports to calculate the extent to which opioid prescriptions in San Francisco 9 exceeded the medical need for every year between 1997 and 2017. Id. In other words, the 10 analysis purports to quantify the extent to which Defendants’ alleged misconduct caused 11 an oversupply of opioids in San Francisco. Id. 12 Responding to an identified omission with new analysis is not proper rebuttal 13 opinion. For example, in Chrysler, defendant’s expert criticized plaintiff’s expert for 14 failing to perform an analysis in his opening report. Matthew Enter., Inc. v. Chrysler Grp. 15 LLC, No. 13-CV-04236-BLF, 2016 WL 4272430, at *3 (N.D. Cal. Aug. 15, 2016) 16 (“Neither Stevens Creek nor Stockton had performed the exercise of proposing but-for 17 objectives.”) (cleaned up). In his rebuttal report, plaintiff’s expert performed the analysis 18 that defendant’s expert criticized him for not performing in his opening report. Id. The 19 court excluded the new analysis because it was “improperly offered to provide but-for 20 objectives that Mr. Stockton failed to provide in his first report. Offering new argument 21 based on new evidence in a rebuttal report is contrary to Rule 26’s requirements.” Id. 22 Like the expert in Chrysler, Dr. Keyes is responding to an identified omission in her 23 report by performing a new analysis in an attempt to fill the hole that Defendants’ experts 24 identified. This is not proper rebuttal testimony—Dr. Keyes is not attempting to “explain, 25 repel, counteract or disprove evidence of the adverse party.” Clear-View Techs., Inc. v. 26 Rasnick, No. 13-CV-02744-BLF, 2015 WL 3509384, at *2 (N.D. Cal. June 3, 2015). She 27 is offering a new model based on a new methodology in response to a criticism of her 1 Plaintiff offers no explanation as to why Dr. Keyes did not perform the analysis in 2 her opening report. To the contrary, Dr. Keyes testified that she could have included the 3 analysis in her opening report. Keyes Depo (dkt. 984–15) at 177:19–178:1. Using a 4 rebuttal report as a backdoor to introduce analysis that could have been included in the 5 opening report is squarely foreclosed by Rule 26. See Century Indem. Co. v. Marine 6 Group, LLC, No. 3:08-CV-1375-AC, 2015 WL 5521986, at *3 (D. Or. Sept. 16, 2015) 7 (Rebuttal testimony “is limited to new unforeseen facts brought out in the other side’s 8 case”); Clear-View Techs., 2015 WL 3509384, at *4 (“Permitting parties to backdoor 9 affirmative expert testimony under the guise of ‘rebuttal’ testimony would render Rule 10 26’s limits generally meaningless.”) (cleaned up). Defendants cannot fairly respond to a 11 new analysis disclosed for the first time in rebuttal. 12 The failure to timely disclose the new analysis is neither substantially justified nor 13 harmless. Fed. R. Civ. P. 37(c). The contention that Defendants’ fraudulent marketing 14 practices caused an oversupply of opioids has been a cornerstone of Plaintiff’s case since 15 day one. Plaintiff has not adequately explained why an opinion that relates directly to that 16 theory was not developed until well after the expert disclosure deadlines, despite Dr. 17 Keye’s admission that the opinion could have been included in her opening report. Nor is 18 the late disclosure harmless. Among other forms of prejudice, the late disclosure deprived 19 Defendants of the ability to serve fact discovery related to the opinion and to address the 20 opinion with their own experts. Abdo v. Fitzsimmons, No. 17-CV-00851-TSH, 2020 WL 21 4051299, at *4 (N.D. Cal. July 20, 2020) (“Further, the late disclosure is not harmless 22 because it deprived Plaintiffs of the opportunity to submit an expert report to rebut the 23 Rebuttal Report.”). Accordingly, the motion to exclude the new analysis set forth in 24 Section II of Dr. Keyes’ rebuttal report is granted. 25 B. Dr. Waldman 26 While he did not disclose an opening report, Dr. Waldman did prepare a rebuttal 27 report that purports to respond to the opinions of Defendants’ expert Dr. Singh. However, 1 || not respond to Dr. Singh’s report. And at his deposition, Dr. Waldman in fact testified that 2 || opinions | through 8 do not respond to Dr. Singh’s report. Waldman Depo (dkt. □□□□□□□ 3 || at 232:11—-235:19 (“Q: Does this opinion respond to one that Dr. Singh expresses in her 4 || report? A: No. Q: Does this opinion respond to one that Dr. Singh expresses in her report? 5 || A: It does not respond to an opinion she expressed in her report.”). For the same reasons 6 || discussed above, the belated disclosure of “rebuttal” opinions that are not responsive to 7 || Defendants’ experts is neither substantially justified nor harmless. Thus, Defendants’ 8 |} motion to exclude opinions | through 8 in Dr. Waldman’s rebuttal report is granted. 9 10 IT IS SO ORDERED. : kK Dated: April 22, 2022 2 CHARLES R. BREYER United States District Judge 13 15

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