Kelly et al v. Ethicon, Inc. et al, No. 6:2020cv02036 - Document 91 (N.D. Iowa 2020)
Court Description: ORDER granting Plaintiffs' 74 Motion to Strike Defendants' Experts. See text of Order. Signed by Magistrate Judge Mark A Roberts on 10/7/2020. (jjh)
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Kelly et al v. Ethicon, Inc. et al Doc. 91 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION SUSAN KELLY and TIMOTHY KELLY, No. 20-CV-2036-CJW-MAR Plaintiffs, ORDER vs. ETHICON, INC. and JOHNSON & JOHNSON, Defendants. ____________________ Before the Court is P‘aintiffs M“ti“n t“ Strike Defendants Ex”erts that Exceed the Five (5) Expert Limit Set Forth by Pre-Tria‘ Order #328 and t“ Li’it Defendants Employees from Offering Expert Opinions, filed on June 10, 2020. (Doc. 74.) Defendants filed a timely Resistance. (Doc. 76.) Plaintiffs filed a timely reply. (Doc. 79.) No oral argument is necessary. I. BACKGROUND On February 4, 2019, the Honorable Joseph R. Goodwin entered Pretrial Order ( PTO ) #328, which limited the parties to this multi-district ‘itigati“n t“ n“ ’“re than five ex”erts ”er case (exc‘usive “f treating ”hysicians). (D“c. 15 at 4.) On June 2, 2020, Judge Goodwin transferred this case to the Northern District of Iowa for trial. (Doc. 62.) II. THE PARTIES’ CONTENTIONS Plaintiffs contend that Defendants have violated PTO #328 by designating more than five experts. (Doc. 74-1.) Plaintiffs further contend that allowing Defendants to have more than five experts violates Federal Rule of Evidence 403 because of the 1 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 1 of 14 Dockets.Justia.com disparity of resources between the parties and the undue burden placed on Plaintiffs in discovering their opinions and attempting to counter them. Plaintiffs also contend the additional experts Defendants have designated will be cumulative and mislead the jury with the superior number of experts rather than the substance of their testimony. Plaintiffs further assert if Defendants are permitted additional experts, these experts will not have provided timely expert reports as required by Federal Rule of Civil Procedure 26(a)(2) and the MDL discovery deadline. P‘aintiffs fina‘‘y c“ntend that Defendants employees should be prohibited from offering expert opinions under Federal Rule of Evidence 701. Plaintiffs argue Defendants additional experts should be stricken. Defendants contend that PTO #328 should not be interpreted to exclude percipient witness testimony. Defendants further contend it was unnecessary for them to produce expert reports under Federal Rule of Civil Procedure 26 because their witnesses do not regularly testify as experts. Finally, Defendants disagree with Judge G““dwin s decision to limit expert witnesses and do not believe they should have to choose between retained experts and percipient witness testimony of their own employees. III. A. ANALYSIS The Applicable Rules. This dispute is largely governed by Federal Rules of Civil Procedure ( FRCP ) 26 and 37 and Federal Rules of Evidence ( FRE ) 403 and 701. FRCP 26 provides, in pertinent part: (2) Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Witnesses 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 2 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 2 of 14 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; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. FRCP 37 provides, in pertinent part: (a) (c) Motion for an Order Compelling Disclosure or Discovery. (3) Specific Motions. (A) To Compel Disclosure. If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. (4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond. Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. FRE 403 provides: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair 3 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 3 of 14 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. FRE 701 provides: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. B. Whether Defendants’ experts that exceed the five (5) expert limit set forth by PTO #328 should be stricken. 1. Whether there has been a significant change of circumstances. PTO #328 ”r“vides the ”‘aintiffs and each defendant are ‘i’ited t“ n“ ’“re than five ex”erts ”er case (exc‘usive “f treating ”hysicians). (D“c. 15 at 4.) Defendants have listed 16 non-retained experts (Doc. 74-3) and argue these experts should not be c“unted t“wards the ex”ert ‘i’it because the testi’“ny they intend t“ “ffer is ”erci”ient in nature based u”“n their r“‘e in their j“bs. (D“c. 76 at 4.) H“wever, PTO #328 d“es not include any exception for experts who offer percipient testimony. (Doc. 15.) In fact, PTO #328 only allows Plaintiffs and Defendants t“ exceed the ex”ert ‘i’it f“r treating ”hysicians. (D“c. 15 at 4.) T“ expand the scope of allowable expert testimony would undermine a principal purpose of the MDL process. See 28 U.S.C. § 1407 ( [T]ransfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient c“nduct “f such acti“ns. ); 15 Arthur R. Mi‘‘er, Federal Practice and Procedure § 3862 (4th ed. 2020) ( The objective of [Section 1407] was to provide centralized management under court supervision of pretrial proceedings in multidistrict litigation to assure the just and efficient conduct of such actions . . . . ). If the MDL 4 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 4 of 14 judge s ”retria‘ “rders can be circumvented by parties who do not wish to abide by them, much of the benefit derived from the MDL process is lost. The Northern District of Illinois faced a similar issue in IX Concentrate Blood Products Litigation. 169 F.R.D. 632 (N.D. Ill. 1996). The plaintiffs in IX Concentrate requested an order limiting the number of expert witnesses the defendants could present. Id. at 635-36. The defendants contended that the MDL court lacked the authority under Section 1407 to limit the number of expert witnesses and that the trial judge, upon remand, was the only one who could make such an order. Id. at 636. The court disagreed, noting that the pretrial and trial stage are part of a continuum that results in resolution of the case, and the relationship between them is intimate. Pretria‘ ”r“ceedings are conducted to prepare for trial. A judge who has no power to impose limits as to what will happen at trial is obviously a judge who has little ability to manage pretrial proceedings in a meaningful way, since there would be no assurance that the judge s efforts are directed toward what is likely to happen at trial. That it is essentia‘ f“r the ”retria‘ judge t“ have the authority to enter orders that will be binding as to the conduct of the trial is recognized by Rule 16(c)(2)(D), (13), (14) and (15), of the Federal Rules of Civil Procedure, which gives the judge conducting pretrial conferences authority to enter a variety of orders that will shape the conduct of the trial, including authority to limit the number of expert witnesses and to establish time limits for presenting evidence at trial. Rule 16 conferences are not necessarily conducted by the same district judge who will ultimately try the case; and some district judges routinely refer Rule 16 conferences to magistrate judges who, in the absence of consent by the parties, would not even be authorized to try the case. Id. The c“urt then reas“ned if the MDL judge d“es n“t have the auth“rity t“ enter pretrial orders that will govern the conduct of the trial, there would be little prospect that the c““rdinated “r c“ns“‘idated ”retria‘ ”r“ceedings . . . w“u‘d ”r“’“te the just and efficient c“nduct “f such acti“ns. Id. at 636-37 (quoting 28 U.S.C. § 1407). The MDL ”r“cess can “n‘y serve Secti“n 1407 s ‘egis‘ative ”ur”“se if the MDL judge has the 5 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 5 of 14 sa’e auth“rity that any ”retria‘ judge has t“ enter “rders. Id. at 637. The court then held that the MDL judge has the authority to limit the number of expert witnesses. Id. Other rulings are consistent with the IX Concentrate ana‘ysis. As a genera‘ matter, the transferor court is bound, upon remand, by the orders entered by the transferee court during the coordinated or consolidated pretrial proceedings. Those decisi“ns are c“nsidered ‘aw “f the case. In re Welding Fume Prod. Liab. Litig., No. 1:03-CV-17000, 2010 WL 7699456, at *2 (N.D. Ohio June 4, 2010) (quotation omitted); see also David F. Herr, Multidistrict Litigation Manual § 10:5 (2020) ( The transfer“r court (court to which the actions are remanded) receives the cases in the condition they are in at the time of remand. Decisions that have been made in the case continue to apply unless circumstances change warranting their modification. The decisions made by the transferee c“urt are c“nsidered ‘aw “f the case. ); id. § 10:17 ( The assigned judge in [the transfer“r c“urt] bec“’es a success“r judge t“ the transferee judge. The rulings made in the case to that date re’ain in effect and binding u”“n the ”arties. ). The general rule is that a successor judge must give deference to the decisions reached by the MDL judge, and [t]his is ”articu‘ar‘y true f“r ru‘ings which the transferee court could have itself modified. Id. The ”“int, “f c“urse, is n“t a ’atter “f trying t“ tie the hands “f the tria‘ judge. Rather, the ‘aw “f the case d“ctrine . . . ensures that the transferor judge is not asked to re-plow ground already prepared by the MDL court for the efficient harvest “f a verdict at tria‘. In re Welding Fume Prod. Liab. Litig., No. 1:03-CV-17000, at *2 (quoting IX Concentrate Blood Products Litigation, 169 F.R.D at 637). Some courts and commentators have concluded that transferor judges cannot vacate the transferee judge s ru‘ings. See, e.g., In re Food Lion, Inc., Fair Labor Standards Act Effective Scheduling Litig., 73 F.3d 528, 531 (4th Cir. 1996); Stanley A. Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 577 (1978) ( It would be improper to permit a transferor judge 6 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 6 of 14 to overturn orders of a transferee judge even though error in the latter might result in reversal of the final judgment of the transferor court. ). As ’enti“ned ab“ve th“ugh, the better ru‘e is c“nsidered t“ be the ru‘e that the transfer“r judge can vacate “r ’“dify ru‘ings ’ade by the transferee judge when there has been circu’stances. a significant change “f Herr, supra, § 10:17 (quoting Manual for Complex Litigation § 20.133, at 226 (4th ed. 2004)). Defendants d“ n“t argue that there has been any significant change “f circu’stances since this case was re’anded fr“’ the S“uthern District “f West Virginia. Instead, Defendants essentially seek to have this Court address the same issues decided by Judge Goodwin and reach a contrary result. (Doc. 76 at 4.) Defendants seek to relitigate the issue because the MDL c“urt did n“t undertake a th“r“ugh ana‘ysis “r appreciate the full impact of its decision to include Ethicon employees as expert witnesses for purposes of the five-ex”ert ‘i’ited. (Id. at 3.) I dec‘ine the invitati“n t“ revisit Judge G““dwin s decisi“n. Judge Goodwin stated that [i]n ‘ight “f the ”r“ducts inv“‘ved in this Wave, the ‘ike‘ih““d “f “ver‘a” in ex”ert opinion from one case to another (except as to specific causation) and the need to streamline discovery in these cases, the plaintiffs and each defendant are limited to no ’“re than five ex”erts ”er case (exc‘usive “f treating ”hysicians). (D“c. 15 at 4.) This statement shows that Judge Goodwin considered the principles Section 1407 seeks to promote: justice and efficiency. See 28 U.S.C. § 1407. Regardless, I will not disturb Judge G““dwin s “rder as there is n“ evidence that circu’stances have changed in the time that has elapsed since PTO #328 was filed on February 4, 2019. (Doc. 15.) As n“ted ab“ve, the C“urt a‘s“ “wes Judge G““dwin s “rder c“nsiderab‘e deference because, inter alia, he had a chance t“ ’“dify his “rder when he ru‘ed “n P‘aintiffs M“ti“n t“ Strike Defendant s N“n-Retained Experts on January 12, 2017. (Doc. 74-6.); Herr, 7 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 7 of 14 supra, § 10:17. For those reasons, I conclude there has been no significant change of circu’stances and thus P‘aintiffs ’“ti“n wi‘‘ be granted. 2. Defendants’ non-retained experts violate FRE 403. Defendants designation of 16 non-retained experts also violates FRE 403 as the probative value of the testimony is substantially outweighed by the dangers of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, and needlessly presenting cumulative evidence. As shown below, the probative value of the non-retained ex”erts testimony is minimal at best. The non-retained ex”erts testi’“ny appears repetitive and does not go bey“nd what Defendants retained ex”erts will say. Compare (D“c. 79 at 46) (sh“wing retained ex”ert Dr. W““ds stating that TVT is safe and effective ), with (Doc. 74-3 at 18) (showing non-retained expert Dr. Kirkemo stating that TVT is safe and effective ). Defendants argue that the disparity in the nu’ber “f ex”erts testifying is n“t as great as P‘aintiffs argue and certain‘y d“es n“t create undue ”rejudice under [FRE 403] because Plaintiffs have also designated ten treating physicians as experts. (Doc. 76 at 6 n.4.) However, Defendants have had the advantage in knowing that since PTO #328 was filed Plaintiffs were able to designate treating physicians as experts in excess of the limitation. Plaintiffs, on the other hand, have been preparing for trial with the expectation that Defendants would not be allowed more than five experts. To change course now and allow Defendants to include 16 non-retained expert witnesses would disrupt the orderly preparation for trial and require them to spend considerable resources to prepare a rebuttal for these experts. Allowing Defendants to exceed the limitation on expert witnesses also presents a considerable risk of confusing the issues and misleading the jury. Defendants themselves note that their non-retained ex”erts ”“ssess scientific, technica‘ and/“r ’edica‘ training and ex”ertise and are ’edica‘ d“ct“rs, ”rec‘inica‘ s”ecia‘ists, Ph.D.s and/“r engineers 8 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 8 of 14 that wi‘‘ testify based “n their scientific/s”ecia‘ized kn“w‘edge gained during the c“urse of their e’”‘“y’ent. (Id. at 4.) Having these 16 non-retained experts testify along with the five retained experts will require the jury to hear multiple experts testify using terminology and technical concepts that are generally “utside the ‘ay”ers“n s kn“w‘edge. F“r exa’”‘e, Defendants ex”ect Dr. Arnaud t“ “”ine that ’id-urethral slings with either a retropubic or transobturator pass, including TVT and TVT-O are the standard of care f“r SUI. (D“c. 74-3 at 13.) Requiring the jury to listen to 21 defense experts use similar technical language poses a high risk for confusing the issues and misleading the jury at trial.1 It also poses the risk that the jury will be overwhelmed by the quantity of evidence, rather than be persuaded by the quality of it. Most i’”“rtant‘y, Defendants 16 n“n-retained experts presents a high danger of causing undue delay, wasting time, and needlessly presenting cumulative evidence. Judge G““dwin n“ted these very dangers when he stated that the ‘ike‘ih““d “f “ver‘a” in ex”ert opini“n fr“’ “ne case t“ an“ther necessitated ‘i’iting the ”arties ex”erts t“ n“ ’“re than five. (Doc. 15 at 4); (Doc. 48 at 1) ( U”“n transfer, I urge the receiving c“urt t“ immediately set these cases for trial without reopening discovery. Further discovery will only result in unjust delay. Extensive development of these cases over a period of years has ’ade such further acti“n c“’”‘ete‘y unnecessary. ). P‘aintiffs i‘‘ustrate the cumulative nature of the non-retained ex”erts testi’“ny in their re”‘y brief. See (Doc. 79 at 5-7). Essentially, Defendants non-retained experts will be repeatedly testifying that the benefits of TVT far outweigh the risks, mesh is not the problem, incontinence affects a w“’an s qua‘ity “f ‘ife, and traditional procedures were much more problematic. See (Doc. 74-3); (id. at 4) ( M“re s”ecifica‘‘y, [Dr. Hin“u‘ wi‘‘ testify] inc“ntinence is a ”reva‘ent c“nditi“n that can severe‘y affect a w“’en s qua‘ity “f ‘ife. ); This risk ’ay even be understated, as Defendants n“n-retained expert disclosures are summaries prepared by counsel and not Rule 26 written reports. (Doc. 74-3.) 1 9 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 9 of 14 (id. at 11) ( [Dr. Arnaud] wi‘‘ testify that incontinence is a prevalent condition that can severe‘y affect a w“’an s qua‘ity “f ‘ife. ); (id. at 15) ( [Dr. R“bins“n] wi‘‘ testify that inc“ntinence is a ”reva‘ent c“nditi“n that can severe‘y affect a w“’an s qua‘ity “f ‘ife. ). For these reasons, I conclude that Defendants designati“n “f n“n-retained experts also violates FRE 403. 3. Defendants’ non-retained experts have not provided written reports as required by Rule 26. Defendants n“n-retained expert witnesses have also not provided written reports under FRCP 26. FRCP 26(a)(2)(B) states: 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. In Greenhaw v. City of Cedar Rapids, Iowa, this Court addressed the issue of when a written report is required by FRCP 26(a)(2)(B). 255 F.R.D. 484 (N.D. Iowa 2009). As written, [FRCP] 26(a)(2)(B) “n‘y requires a written re”“rt t“ acc“’”any the identificati“n “f an ex”ert witness if the witness is retained “r s”ecia‘‘y e’”‘“yed t“ ”r“vide ex”ert testi’“ny, “r is “ne wh“se duties as the ”arty s e’”‘“yee regu‘ar‘y inv“‘ve giving ex”ert testi’“ny. Id. at 488 (adopting the view of Navajo Nation v. Norris, 189 F.R.D. 610 (E.D. Wash. 1999)). This Court did not reach the issue of when an employee s duties qua‘ify as “ne that regu‘ar‘y inv“‘ves giving ex”ert testi’“ny, however. See id. Navajo Nation, the case expressly adopted by this Court, stated th“se employees who do not regularly testify for the employer but are doing so in a particular case need n“t ”r“vide the [written] re”“rt. 189 F.R.D. 610, 612. In Phillip M. Adams & Associates, L.L.C. v. Fujitsu Ltd., the District Court of Utah was tasked with deter’ining whether the ”‘aintiff s e’”‘“yee s duties inv“‘ved 10 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 10 of 14 regularly giving expert testimony as the employee had testified as an expert in other cases. See 1:05-CV-64 TS, 2010 WL 2640264, at *3 (D. Utah June 25, 2010). The plaintiff argued that the employee was not required to submit a written report under FRCP 26(a)(2)(B) because of the seven separate cases the employee had testified as an expert in, only two were arguably on behalf of the plaintiff. Id. at *1, *3. The court read FRCP 26(a)(2)(B) t“ require an ex”ert re”“rt fr“’ an e’”‘“yee-expert only when the witness is the functional equivalent of a hired professional expert. Id. at *3. The court then concluded that an employee-expert that has only arguably testified on behalf of their employer in two cases is not the functional equivalent of a hired professional expert and is not required to submit a written report. See id. ( The ru‘e is n“t ’eant t“ e’brace [the employee-expert] who has testified twice for his employer and several times for “thers “n re‘ated issues. ). Defendants argue these non-retained experts were not required to submit a written re”“rt because they be‘ieve P‘aintiffs have n“t sh“wn that these witnesses regu‘ar‘y provide expert testimony as part of their employment. (D“c. 76 at 8.) Defendants own non-retained expert disclosures refute this argument and show that these experts do regularly give expert testimony. See (Doc. 74-3.) These non-retained experts are identified for all cases involving the TVT device and Defendants are unwilling to assert that these witnesses do not regularly provide expert testimony. (Id.); see (Doc. 76 at 8.); see also Greenhaw, 255 F.R.D. at 486 (N.D. Iowa 2009) (finding that the defendant s expert did not have to provide a written report because the defendant asserted the expert d“es n“t regu‘ar‘y give ex”ert testi’“ny and this ”“int was undis”uted). This also is not a close call as seen in Fujitsu where the ”‘aintiff s e’”loyee-expert had arguably only testified in two cases for the employer. 2010 WL 2640264, at *3. These employeeexperts are designated in all MDL cases involving the TVT device. (Doc. 74-3.) Acc“rding‘y, I find that Defendants n“n-retained experts have not provided expert 11 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 11 of 14 reports as required by FRCP 26(a)(2)(B) and must be stricken. Fed. R. Civ. P. 37(c)(1) ( If a ”arty fai‘s t“ ”r“vide inf“r’ati“n . . . as required by [FRCP] 26(a) . . . the ”arty is not allowed to use that information or witness to supply evidence on a motion, at a hearing, “r at a tria‘, un‘ess the fai‘ure was substantia‘‘y justified “r is har’‘ess. ). C. There is no due process violation. Defendants argue that the limitation on expert witnesses vi“‘ates their federa‘ due process right t“ ”resent a defense and “ffer rebutta‘ testi’“ny in this case. (D“c. 76 at 7.) In support of their position, Defendants cite a number of cases where courts have addressed a ”arty s due ”r“cess rights in the c“ntext “f civi‘ ”r“ceedings. None of those cases are particularly on point. Consolidation Coal Co. v. Local Union No. 1784, United Mine Workers of Am. supports the unquestionable principal that parties in every judicial ”r“ceeding are entit‘ed t“ proper notice and an impartial hearing with an opportunity to present a defense. 514 F.2d 763, 765 (6th Cir. 1975). Londoner v. City & County of Denver, 210 U.S.373, 386 (1908) supports the conclusion that a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument, however brief: and, if need be, by proof, however inf“r’a‘. These cases do not, however, provide much substance regarding the more particular issue at hand; that is, whether limiting the number of expert witnesses a party can call violates due process. I respectfully disagree with Defendants c“nc‘usi“n there is any due process violation inherent in the order limiting witnesses in this case. Parties ”resentati“n “f evidence at trial is constrained in many ways that serve to ensure their right to due process is protected. For example, the Federal Rules of Evidence limit the admission of evidence to eliminate unjustifiable expense and delay, unfair prejudice, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 102, 403. Concomitantly, the Federal Ru‘es “f Civi‘ Pr“cedure are t“ be c“nstrued, ad’inistered, and e’”‘“yed by the c“urt 12 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 12 of 14 and the parties to secure the just, speedy, and inexpensive determination of every action and ”r“ceeding. Fed. R. Civ. P. 1. The ‘i’itati“ns i’”“sed by Judge G““dwin s “rder promote all of these goals. Defendants can still present a defense and offer rebuttal testimony. The fact that Defendants are limited in the number of expert witnesses they may call does not result in a violation of their due process rights. Rather, failing to impose reasonable limits on the number of experts called would pose an undue burden on the parties in discovery and the Court at trial, as well as undermining the MDL process. For these reasons, I find the Defendants right t“ due ”r“cess has n“t been vi“‘ated. D. Defendants’ employees may still testify as lay witnesses. Defendants e’”‘“yees are not wholly prohibited from testifying. Defendants employees are still permitted to testify as lay witnesses but are limited to testimony that is rati“na‘‘y based “n the witness s ”erce”ti“n, he‘”fu‘ t“ c‘ear‘y understanding the witness s testi’“ny “r t“ deter’ining a fact in issue, and n“t based on scientific, technica‘, “r “ther s”ecia‘ized kn“w‘edge within the sc“”e “f Ru‘e 702. Fed. R. Evid. 701; see also United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003) ( The general application of Rule 701 indicates that a lay witness may testify about facts within his or her range of generalized knowledge, experience, and perception. ). H“wever, the e’”‘“yees testi’“ny as ‘ay witnesses ’ay sti‘‘ be exc‘uded if its ”r“bative va‘ue is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly ”resenting cu’u‘ative evidence. Fed. R. Evid. 403. 13 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 13 of 14 IV. CONCLUSION P‘aintiffs M“ti“n t“ Strike Defendants Ex”erts that Exceed the Five (5) Expert Limit Set Forth by Pre-Tria‘ Order #328 and t“ Li’it Defendants E’”‘“yees fr“’ Offering Expert Opinion (Doc. 74) is GRANTED. IT IS SO ORDERED this 7th day of October, 2020. 14 Case 6:20-cv-02036-CJW-MAR Document 91 Filed 10/07/20 Page 14 of 14
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