1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 19-cv-00325-HSG 8 IN RE TOY ASBESTOS ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 STRIKE PLAINTIFFS’ EXPERT DR. BRENT STAGGS 10 Re: Dkt. Nos. 399, 402, 403, 407, 408, 459, 11 520 12 13 Pending before the Court is the motion to strike Plaintiffs Agnes Toy and Thomas Toy, 14 Jr.’s expert, Dr. Brent Staggs. Dkt. No. 399. The Court finds this matter appropriate for 15 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For 16 the reasons detailed below, the Court GRANTS IN PART and DENIES IN PART the motion. 17 I. BACKGROUND 18 Plaintiffs initially filed this action in Alameda Superior Court against over forty 19 Defendants, alleging that Thomas H. Toy, Sr. developed malignant mesothelioma and later died 20 from exposure to asbestos-containing products or equipment that Defendants either manufactured 21 or supplied. See Dkt. No. 1-1. Defendants removed this action to federal court, Dkt. No. 1, and 22 Plaintiffs filed a second amended complaint on July 22, 2019, Dkt. No. 247 (“SAC”). The Court 23 subsequently set a case schedule, in which fact discovery closed on December 13, 2019; opening 24 expert reports were due on February 17, 2020; and rebuttal expert reports were due on March 9, 25 2020. See Dkt. No. 245, 348 (modified case schedule). Defendants then had until April 6, 2020, 26 to depose Plaintiffs’ experts and Plaintiffs had until April 27, 2020, to depose Defendants’ experts. 27 Id. As discussed in more detail below, however, the parties did not comply with the Court’s 1 No. 399. 2 The Court notes that this motion was initially brought by Defendants Ingersoll-Rand 3 Company and Armstrong International, Inc. See Dkt. No. 399. However, Ingersoll-Rand filed a 4 petition for bankruptcy on June 18, 2020. See Dkt. No. 530. Under Section 362 of the 5 Bankruptcy Code, the bankruptcy filing triggered an automatic stay of all claims against Ingersoll- 6 Rand. Id. at 2. Plaintiffs have confirmed that due to the stay they will no longer prosecute the 7 case against Ingersoll-Rand. See Dkt. No. 532 at 2. The Court continues to consider this motion 8 on behalf of Defendant Armstrong and the several other Defendants who joined this motion to 9 strike. See Dkt. Nos. 402, 403, 407, 408, 459, 520; see also Dkt. No. 532 at 2. 10 II. LEGAL STANDARD 11 Federal Rule of Evidence 702 allows a qualified expert to testify “in the form of an opinion 12 or otherwise” where: 13 (a) the expert’s scientific, technical, or other specialized knowledge 14 will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; 15 (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to 16 the facts of the case. 17 Fed. R. Evid. 702. Expert testimony is admissible under Rule 702 if the expert is qualified and if 18 the testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 19 579, 597 (1993); see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th 20 Cir. 2004). Rule 702 “contemplates a broad conception of expert qualifications.” Hangarter, 373 21 F.3d at 1018 (emphasis in original). 22 Courts consider a purported expert’s knowledge, skill, experience, training, and education 23 in the subject matter of his asserted expertise. United States v. Hankey, 203 F.3d 1160, 1168 (9th 24 Cir. 2000); see also Fed. R. Evid. 702. Relevance, in turn “means that the evidence will assist the 25 trier of fact to understand or determine a fact in issue.” Cooper v. Brown, 510 F.3d 870, 942 (9th 26 Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“The requirement that 27 the opinion testimony assist the trier of fact goes primarily to relevance.”) (quotation omitted). 1 knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at 565. To ensure 2 reliability, the Court “assess[es] the [expert’s] reasoning or methodology, using as appropriate 3 such criteria as testability, publication in peer reviewed literature, and general acceptance.” Id. at 4 564. 5 III. DISCUSSION 6 Both Plaintiffs and Defendant Armstrong failed to comply with court-imposed deadlines 7 regarding the exchange of expert reports. Plaintiffs submitted two expert reports by the Court’s 8 February 17, 2020 deadline: the reports of Dr. Carl Brodkin and Dr. Arnold Brody. At the time, 9 Plaintiffs did not serve an expert report from Dr. Staggs. But Dr. Brodkin testified during his 10 March 6, 2020 deposition that he had reviewed and relied on an undisclosed report from Dr. 11 Staggs, dated January 3, 2020. See Dkt. No. 399-4, Ex. B at 13:22–14:17. During the deposition, 12 Defendants noted that they had not received this report and requested a copy. Id.; see also Dkt. 13 No. 399-2 at ¶ 2. 14 On February 27, 2020, ten days after the deadline for opening expert reports, Defendants 15 Ingersoll-Rand and Armstrong served an untimely opening expert report from Dr. Victor L. 16 Roggli. See Dkt. No. 418-2, Ex. 1 (“Roggli Report”). Defendant Armstrong contends that Dr. 17 Roggli had fallen ill, so Defendants Ingersoll-Rand and Armstrong stipulated with Plaintiff that 18 Dr. Roggli’s report could be served after the court-imposed deadline. See Dkt. No. 399-3, Ex. A. 19 In his report, Dr. Roggli opined that Mr. Toy died from lung cancer and not from mesothelioma. 20 See Roggli Report at 2–3. 21 Defendant Armstrong and Plaintiffs met and conferred regarding Dr. Staggs’ expert report 22 and agreed among themselves that Plaintiffs would not rely on his earlier expert report. See Dkt. 23 No. 399-7, Ex. D. Plaintiffs intended instead to produce a report from Dr. Staggs in rebuttal to Dr. 24 Roggli’s report. See Dkt. No. 399-4, Ex. B at 14:12–17. Plaintiffs served this rebuttal report on 25 March 25, 2020. See Dkt. No. 399-8, Ex. E (“Staggs Report”). Defendants now challenge the 26 rebuttal expert report and the anticipated testimony of Dr. Staggs. See Dkt. Nos. 399, 402, 403, 27 407, 459, 520. Defendants assert that Dr. Staggs’ report was untimely and does not constitute 1 A. Timeliness 2 Federal Rule of Civil Procedure 26 provides that expert disclosures must be made at the 3 times directed by the Court. See Fed. R. Civ. P. 26(a)(2)(D). Rule 37, in turn, provides that if a 4 party fails to provide the information required by Rule 26(a), “the party is not allowed to use that 5 information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure 6 was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). The Court has “particularly 7 wide latitude . . . to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor 8 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 19-cv-00325-HSG 8 IN RE TOY ASBESTOS ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 STRIKE PLAINTIFFS’ EXPERT DR. BRENT STAGGS 10 Re: Dkt. Nos. 399, 402, 403, 407, 408, 459, 11 520 12 13 Pending before the Court is the motion to strike Plaintiffs Agnes Toy and Thomas Toy, 14 Jr.’s expert, Dr. Brent Staggs. Dkt. No. 399. The Court finds this matter appropriate for 15 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For 16 the reasons detailed below, the Court GRANTS IN PART and DENIES IN PART the motion. 17 I. BACKGROUND 18 Plaintiffs initially filed this action in Alameda Superior Court against over forty 19 Defendants, alleging that Thomas H. Toy, Sr. developed malignant mesothelioma and later died 20 from exposure to asbestos-containing products or equipment that Defendants either manufactured 21 or supplied. See Dkt. No. 1-1. Defendants removed this action to federal court, Dkt. No. 1, and 22 Plaintiffs filed a second amended complaint on July 22, 2019, Dkt. No. 247 (“SAC”). The Court 23 subsequently set a case schedule, in which fact discovery closed on December 13, 2019; opening 24 expert reports were due on February 17, 2020; and rebuttal expert reports were due on March 9, 25 2020. See Dkt. No. 245, 348 (modified case schedule). Defendants then had until April 6, 2020, 26 to depose Plaintiffs’ experts and Plaintiffs had until April 27, 2020, to depose Defendants’ experts. 27 Id. As discussed in more detail below, however, the parties did not comply with the Court’s 1 No. 399. 2 The Court notes that this motion was initially brought by Defendants Ingersoll-Rand 3 Company and Armstrong International, Inc. See Dkt. No. 399. However, Ingersoll-Rand filed a 4 petition for bankruptcy on June 18, 2020. See Dkt. No. 530. Under Section 362 of the 5 Bankruptcy Code, the bankruptcy filing triggered an automatic stay of all claims against Ingersoll- 6 Rand. Id. at 2. Plaintiffs have confirmed that due to the stay they will no longer prosecute the 7 case against Ingersoll-Rand. See Dkt. No. 532 at 2. The Court continues to consider this motion 8 on behalf of Defendant Armstrong and the several other Defendants who joined this motion to 9 strike. See Dkt. Nos. 402, 403, 407, 408, 459, 520; see also Dkt. No. 532 at 2. 10 II. LEGAL STANDARD 11 Federal Rule of Evidence 702 allows a qualified expert to testify “in the form of an opinion 12 or otherwise” where: 13 (a) the expert’s scientific, technical, or other specialized knowledge 14 will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; 15 (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to 16 the facts of the case. 17 Fed. R. Evid. 702. Expert testimony is admissible under Rule 702 if the expert is qualified and if 18 the testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 19 579, 597 (1993); see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th 20 Cir. 2004). Rule 702 “contemplates a broad conception of expert qualifications.” Hangarter, 373 21 F.3d at 1018 (emphasis in original). 22 Courts consider a purported expert’s knowledge, skill, experience, training, and education 23 in the subject matter of his asserted expertise. United States v. Hankey, 203 F.3d 1160, 1168 (9th 24 Cir. 2000); see also Fed. R. Evid. 702. Relevance, in turn “means that the evidence will assist the 25 trier of fact to understand or determine a fact in issue.” Cooper v. Brown, 510 F.3d 870, 942 (9th 26 Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“The requirement that 27 the opinion testimony assist the trier of fact goes primarily to relevance.”) (quotation omitted). 1 knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at 565. To ensure 2 reliability, the Court “assess[es] the [expert’s] reasoning or methodology, using as appropriate 3 such criteria as testability, publication in peer reviewed literature, and general acceptance.” Id. at 4 564. 5 III. DISCUSSION 6 Both Plaintiffs and Defendant Armstrong failed to comply with court-imposed deadlines 7 regarding the exchange of expert reports. Plaintiffs submitted two expert reports by the Court’s 8 February 17, 2020 deadline: the reports of Dr. Carl Brodkin and Dr. Arnold Brody. At the time, 9 Plaintiffs did not serve an expert report from Dr. Staggs. But Dr. Brodkin testified during his 10 March 6, 2020 deposition that he had reviewed and relied on an undisclosed report from Dr. 11 Staggs, dated January 3, 2020. See Dkt. No. 399-4, Ex. B at 13:22–14:17. During the deposition, 12 Defendants noted that they had not received this report and requested a copy. Id.; see also Dkt. 13 No. 399-2 at ¶ 2. 14 On February 27, 2020, ten days after the deadline for opening expert reports, Defendants 15 Ingersoll-Rand and Armstrong served an untimely opening expert report from Dr. Victor L. 16 Roggli. See Dkt. No. 418-2, Ex. 1 (“Roggli Report”). Defendant Armstrong contends that Dr. 17 Roggli had fallen ill, so Defendants Ingersoll-Rand and Armstrong stipulated with Plaintiff that 18 Dr. Roggli’s report could be served after the court-imposed deadline. See Dkt. No. 399-3, Ex. A. 19 In his report, Dr. Roggli opined that Mr. Toy died from lung cancer and not from mesothelioma. 20 See Roggli Report at 2–3. 21 Defendant Armstrong and Plaintiffs met and conferred regarding Dr. Staggs’ expert report 22 and agreed among themselves that Plaintiffs would not rely on his earlier expert report. See Dkt. 23 No. 399-7, Ex. D. Plaintiffs intended instead to produce a report from Dr. Staggs in rebuttal to Dr. 24 Roggli’s report. See Dkt. No. 399-4, Ex. B at 14:12–17. Plaintiffs served this rebuttal report on 25 March 25, 2020. See Dkt. No. 399-8, Ex. E (“Staggs Report”). Defendants now challenge the 26 rebuttal expert report and the anticipated testimony of Dr. Staggs. See Dkt. Nos. 399, 402, 403, 27 407, 459, 520. Defendants assert that Dr. Staggs’ report was untimely and does not constitute 1 A. Timeliness 2 Federal Rule of Civil Procedure 26 provides that expert disclosures must be made at the 3 times directed by the Court. See Fed. R. Civ. P. 26(a)(2)(D). Rule 37, in turn, provides that if a 4 party fails to provide the information required by Rule 26(a), “the party is not allowed to use that 5 information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure 6 was substantially justified or harmless.” Fed. R. Civ. P. 37(c)(1). The Court has “particularly 7 wide latitude . . . to issue sanctions under Rule 37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor 8 Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). 9 Under the scheduling order, the deadline for opening expert reports was February 17, 10 2020, and the deadline for rebuttal expert reports was 21 days later, on March 9, 2020. See Dkt. 11 No. 348. Defendants ask the Court to strike Dr. Staggs’ report for failure to abide by the 12 scheduling order because Plaintiffs served Dr. Staggs’ rebuttal report over 21 days after Dr. 13 Roggli’s report. See Dkt. No. 399 at 9. Plaintiffs concede—as they must—that Dr. Staggs’ expert 14 report was untimely under the Court’s scheduling order. See Dkt. No. 418 at 2. They served the 15 report weeks after the March 9 deadline. But Dr. Roggli’s report was similarly untimely. Neither 16 Plaintiffs nor Defendants sought a court order to extend the case deadlines. To the extent 17 Defendants suggest that the Court should hold only Plaintiffs accountable for missing the case 18 deadlines, the Court declines to credit such transparent gamesmanship. 19 Defendants suggest that their agreement with Plaintiffs to extend the deadline to serve Dr. 20 Roggli’s expert report somehow excuses their own delay. Defendants further urge that the 21 “[s]equencing of expert report discovery by party stipulation does not require the Court to alter the 22 dates established by the pre-trial orders in this case,” and thus does not require a court order. See 23 Dkt. No. 455 at 3. Defendants are mistaken. The parties are not free to disregard Court orders, 24 whether they agree among themselves or not. The Court’s scheduling order in this case 25 specifically stated that “[t]hese dates may only be altered by order of the Court and only upon a 26 showing of good cause.” See Dkt. No. 348. The parties’ current dispute highlights the problems 27 that arise when parties attempt to revise case schedules on their own. First, the parties did not 1 the Court’s scheduling order required the parties to serve rebuttal reports within 21 days, Federal 2 Rule of Civil Procedure 26(a)(2)(D)(ii) permits rebuttal reports within 30 days of the other party’s 3 disclosure. See Fed. R. Civ. P. 26(a)(2)(D)(ii). There is therefore an ambiguity inherent in the 4 parties’ agreement. Second, not all Defendants in this case were a party to the agreement. As 5 their joinders indicate, however, at least some of them believe their rights are implicated by the 6 timing and substance of Dr. Roggli’s and Dr. Staggs’ expert reports. See, e.g., Dkt. Nos. 402, 403, 7 407, 408, 459, 520. 8 Still, the Court declines to hold Plaintiffs exclusively responsible for what was a mutual 9 error. Moreover, due to the COVID-19 pandemic, the original trial date in this case was vacated, 10 and the Court has not yet set a new date. See Dkt. No. 525. Consequently, permitting these late 11 expert reports will not unduly delay the case schedule. Defendants argue that they will be 12 prejudiced because Dr. Staggs’ deposition will be taken “out of the sequence established in the 13 scheduling order.” Dkt. No. 399 at 7–8. But Defendants fail to provide any concrete reasons why 14 tracking that sequence is critical to their defense. The Court finds this assertion particularly 15 disingenuous given Defendants’ own failure to follow the scheduling order. The Court therefore 16 declines to strike Dr. Staggs’ expert report as untimely. The Court nevertheless cautions the 17 parties to scrupulously abide by all Court orders without exception, and will consider imposing 18 sanctions for any future noncompliance. 19 B. Substance 20 Defendants next assert that the vast majority of Dr. Staggs’ report contains opinions that 21 Plaintiffs should have included in their case-in-chief. See Dkt. No. 399 at 5–7. Specifically, 22 Defendants point out that the Dr. Staggs’ expert report opines that Mr. Toy died of mesothelioma, 23 and that only two pages of the 17-page report specifically address Dr. Roggli’s opening report. Id. 24 Federal Rule of Civil Procedure 26 states that rebuttal disclosures of expert testimony are 25 “intended solely to contradict or rebut evidence on the same subject matter identified by another 26 party” in its expert disclosures. See Fed. R. Civ. P. 26(a)(2)(D)(ii). Courts have explored the 27 contours and limits of rebuttal evidence. As relevant here: If the purpose of expert testimony is to contradict an expected and 1 anticipated portion of the other party’s case-in-chief, then the witness is not a rebuttal witness or anything analogous to one. Rather, rebuttal 2 expert testimony is limited to new unforeseen facts brought out in the other side’s case. 3 4 See R & O Construction Company v. Rox Pro International Group, LTD, No. 2:09–cv–017490– 5 LRH–LRL, 2011 WL 2923703 (D. Nev. July 18, 2011) (collecting cases) (quotations omitted); see 6 also Daly v. Fesco Agencies NA Inc., 108 F. App’x 476, 479 (9th Cir. 2004) (upholding exclusion 7 of expert whose rebuttal testimony “related to issues that were the subject of the plaintiff’s case- 8 in-chief”).1 9 Much of Dr. Staggs’ report is not proper rebuttal. Despite Plaintiffs’ urging, see Dkt. No. 10 418 at 5, Dr. Staggs generally does not refute any unforeseen theories. Rather, he opines that Mr. 11 Toy developed malignant mesothelioma from asbestos exposure. See Staggs Report at 16–17. He 12 explains: (1) the link between asbestos and cancer; (2) mechanisms of asbestos-related cancer 13 development; (3) the dose-response relationship between asbestos exposure and the risk of 14 developing asbestos diseases; (4) the effect of low-dose asbestos exposures; (5) the relationship 15 between mesothelioma and asbestos exposure; (6) the risk of developing lung cancer from 16 asbestos exposure; and (7) genetic susceptibility. See id. at 2–10. 17 In this case, Plaintiffs allege that Mr. Toy developed and later died from mesothelioma as a 18 result of exposure to asbestos from Defendants’ products. See generally SAC. Establishing that 19 Mr. Toy developed mesothelioma from asbestos is thus a fundamental issue in Plaintiffs’ case. 20 Plaintiffs state that “Defendants had never given any indication they intended to dispute [Mr. 21 Toy’s] mesothelioma diagnosis.” See Dkt. No. 418 at 5. But Plaintiffs bear the burden of 22 establishing that exposure to Defendants’ products was a substantial factor causing his illness. See 23 Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 982 (Cal. 1997), as modified on denial of reh’g 24 (Oct. 22, 1997). An expert report is not proper rebuttal if “the report speaks directly to an issue on 25 which [the offering party] bear the burden of proof.” See Clear-View Techs., Inc. v. Rasnick, No. 26 13-CV-02744-BLF, 2015 WL 3509384, at *3 (N.D. Cal. June 3, 2015). Here, Plaintiffs simply 27 1 waited to see how Defendants’ experts would challenge Plaintiffs’ case, and they took that risk at 2 their own peril. 3 The deadline for Plaintiffs to disclose their affirmative experts on “all issues on which 4 [they] bear[] the burden of proof” passed on February 17, 2020. See Clear-View Techs., 2015 WL 5 3509384, at *3. Yet Plaintiffs failed to disclose Dr. Staggs. Plaintiffs’ tactic ignored the crucial 6 significance of the sequencing of expert disclosures. By waiting for Defendants’ own expert to 7 offer testimony about Mr. Toy’s diagnosis before producing Dr. Staggs’ report, Plaintiffs 8 prevented all Defendants from designating informed experts who could rebut Dr. Staggs’ 9 opinions. Plaintiffs have not offered any credible reason for the delay. Dr. Staggs’ review of 10 medical records and his own pathological analysis all could have been done prior to the disclosure 11 of Dr. Roggli’s report. In fact, much of Dr. Staggs’ “rebuttal” report tracks—almost verbatim— 12 his undisclosed report from January 3, 2020. Compare Staggs Report with Dkt. No. 399-6. Dr. 13 Staggs thus should have been disclosed as an affirmative expert. Plaintiffs should not be allowed 14 to manufacture a tactical advantage by waiting to disclose critical information about their case. 15 Plaintiffs’ “actions evince the intent to play fast-and-loose with Rule 26’s requirements to the 16 detriment of [Defendants], which the Court will not countenance.” See Clear-View Techs., 2015 17 WL 3509384, at *3 18 In concluding that Mr. Toy had lung cancer, Dr. Roggli reviewed certain pathology 19 materials and performed his own immunohistochemical stains on one of the specimens. See 20 Roggli Report at 2–3. This analysis formed the entire basis of Dr. Roggli’s opinion. Dr. Staggs’ 21 report only briefly references and responds to Dr. Roggli’s expert report. See Staggs Report at 15– 22 16 (titled “Expert Reports” and “Analysis”). The Court finds that only these limited two 23 paragraphs are proper rebuttal. The Court therefore GRANTS IN PART Defendants’ motion, 24 striking the remainder of Dr. Staggs’ rebuttal report. And because Dr. Staggs is designated solely 25 as a rebuttal expert, his testimony at trial is limited. Dr. Staggs will not be allowed to testify in 26 Plaintiffs’ case-in-chief, and he will not be allowed to testify unless and until Dr. Roggli testifies 27 as to his opinions—based on his immunohistochemical staining review—that Mr. Toy had lung 1 IV. CONCLUSION 2 Accordingly, the Court GRANTS IN PART and DENIES IN PART the motion to strike. 3 To the extent Defendants have not yet deposed Dr. Staggs and would like to do so based on these 4 || limited rebuttal opinions, the Court DIRECTS the parties to coordinate a mutually agreeable date 5 and time, no later than April 16, 2021. For the avoidance of doubt, if the parties require an 6 || extension of time, they must file a stipulation and proposed order with the Court. This terminates 7 || Dkt. Nos. 402, 403, 407, 408, 459, 520. 8 IT IS SO ORDERED. 9 || Dated: 3/19/2021 10 Aspurd 5 HAYWOOD S. GILLIAM, JR. United States District Judge 12
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