Ingram v. Novartis Pharmaceuticals Corp.

282 F.R.D. 563, 2012 U.S. Dist. LEXIS 150258, 2012 WL 2354451
CourtDistrict Court, W.D. Oklahoma
DecidedJune 19, 2012
DocketNo. CIV-05-913-L
StatusPublished
Cited by6 cases

This text of 282 F.R.D. 563 (Ingram v. Novartis Pharmaceuticals Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ingram v. Novartis Pharmaceuticals Corp., 282 F.R.D. 563, 2012 U.S. Dist. LEXIS 150258, 2012 WL 2354451 (W.D. Okla. 2012).

Opinion

ORDER

TIM LEONARD, District Judge.

This matter is before the court on Defendant’s Motion to Compel Disclosure of Expert Witnesses [Doc. No. 69]. Defendant asserts that plaintiffs March 15, 2012 disclosures are deficient because they fail to identify with specificity the opinions to be offered in this case. Plaintiff filed its Opposition to the motion, which the court has carefully considered. Based upon the court’s review of plaintiffs designation of expert witnesses and the provisions of Fed. R. Civ.P. 26(a)(2) concerning the disclosure of expert testimony, the court concludes that defendant’s motion must be granted.

Rule 26(a)(2)(B)(i) provides:

(a)(2) Disclosure of Expert Testimony.
* * *
(B) Witness Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;____

Defendant does not generally object to plaintiff incorporating by reference the expert reports that were previously filed during the time that this lawsuit, and many others, were proceeding in a multi-district litigation (“MDL”) in the Middle District of Tennessee. However, defendant does object in that Plaintiffs Designation of Expert Witnesses filed in this case [Doc. No. 63] goes beyond the expert reports served in the MDL.

In addition to the previous expert report served in the MDL, plaintiff’s designation attempts to include for Dr. Marx “his multiple depositions in the MDL, his reports in this case, his deposition in this case and his trial testimony in other Aredia and/or Zome-ta cases.” For Dr. Parisian, plaintiffs designation adds to the expert reports served in the MDL by including “her multiple depositions in the MDL, in Daubert hearing testimony in other Aredia and/or Zometa cases and her trial testimony in other Aredia and/or Zometa cases.” For Dr. Ray, plaintiffs designation states that his “expected testimony is set forth in the reports served in the MDL and/or New Jersey Mass Tort proceeding, his depositions in the MDL, his de bene esse deposition in Fussman v. Novartis Pharms. Corp. and his trial testimony in other Aredia and/or Zometa eases.”

As for Mr. Ingram’s treating physicians, Drs. Miner, Fay, Harlan, and Hussein, plaintiffs designation provides that each is expected to testify “in accordance with” his or her medical records and deposition in this case. No further statement of the expected testimony is provided. Defendant argues that the disclosures of these non-retained experts are inadequate because they do not adequately identify what testimony will be offered at the trial in this case.

While the court agrees that there may be some logical and practical appeal to plaintiffs mere incorporation of these experts’ previous reports or testimony in other venues, the court ultimately concludes that this practice fails to comply with Rule 26’s clear terms requiring written disclosures of expert testimony. For retained experts, the written report itself must contain, among other things, a complete statement of all opinions the witness will express and the [565]*565basis and reasons for them. The court finds that reference to other testimony, without providing the complete statement of opinions and basis therefor in a self-contained document is not only insufficient under Rule 26, but is unworkable. The court is not aware of any local practice that would replace this clear requirement of a written report for retained experts, particularly over another party’s objection. In considering this matter, the court agrees with defendant that to allow such a broad designation would require not only the defendant, but also potentially the court, to review and evaluate the previous trial, deposition, and hearing transcripts involving these witnesses in an attempt to learn the basis of the testimony of the named witnesses to see if it conforms to their testimony in this case.1 However, the burden of designation is on the plaintiff, not the defendant or the court.

Regarding the non-retained experts, Rule 26(a)(2)(C) provides expert witnesses who are not required to give written reports must nevertheless provide disclosures which must include the subject matter on which the witness is expected to present evidence. The disclosure must also state a summary of the facts and opinions to which the witness is expected to testify. Again, mere reference to unspecified testimony is insufficient under this standard. Therefore, the court also finds that it would be appropriate for plaintiff to provide a proper disclosure of the expected testimony, in this case, of Mr. Ingram’s treating doctors, dentists or oral surgeons.

Accordingly, Defendant’s Motion to Compel Disclosure of Expert Witnesses [Doc. No. 69] should be and is hereby GRANTED. Plaintiff is ordered to submit updated retained expert reports in compliance with Rule 26(a)(2)(B). Plaintiff is also ordered to submit a disclosure regarding the expected subject matter of each of the non-retained expert’s testimony in this ease and a summary of the facts and opinions to which the witness is expected to testify in compliance with Rule 26(a)(2)(C). Plaintiffs amended designations shall be filed no later than July 3, 2012.

ORDER ON RECONSIDERATION

This matter is before the court on Plaintiffs Motion to Reconsider or Clarify Order (Doc. 103) and for Additional Relief [Doc. No. Ill] (the “Motion”) and defendant Novartis’ opposition thereto. The subject of the Motion is the court’s June 19,2012 order (the “Order”) which granted defendant’s Motion to Compel Disclosure of Expert Witnesses and, as more fully stated in the Order, required plaintiff to prepare and provide expert witness designations and written reports, in this case, in compliance with Fed.R.Civ.P. 26(a)(2). The court has also reviewed plaintiffs reply brief.

Initially, the court notes that the plaintiff does not seek reconsideration or clarification of the Order as it relates to her non-retained experts. Plaintiff does however request an extension until July 6, 2012 to comply, which request will be granted.

As for plaintiffs request for reconsideration or clarification of the Order with regard to plaintiffs retained experts, the court finds that plaintiffs motion is based on an overly-expansive interpretation of the rather limited and fairly straightforward terms of the Order itself. The court does not see how the Order could reasonably be interpreted as a “command to issue new case wide reports” in the multi-district litigation (“MDL”) court, as stated in the Motion. The court’s Order clearly pertains to this case,

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Bluebook (online)
282 F.R.D. 563, 2012 U.S. Dist. LEXIS 150258, 2012 WL 2354451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ingram-v-novartis-pharmaceuticals-corp-okwd-2012.