Plaintiffs’ Expert Report Stricken as Improper Rebuttal

U.S. District Court for the Northern District of California, March 19, 2021

Plaintiffs Thomas Toy, Jr. and Agnes Toy allege that Mr. Toy developed malignant mesothelioma and later died from exposure to asbestos-containing products or equipment that the defendants manufactured or supplied. The defendants removed this action to federal court, which set forth a case schedule, including deadlines for the close of discovery and expert reports and depositions. The parties failed to comply with the court’s scheduling order, and several defendants filed a motion to strike the plaintiffs’ expert, which is currently pending before the court.

The court reviewed Federal Rule of Evidence 702 and Daubert and the prerequisites they set forth for expert testimony to be admissible. The court further examined the requirement of Federal Rule of Civil Procedure 26 that expert disclosures must be made at the times directed by the court. Both the plaintiffs and the defendants failed to comply with the court’s deadlines regarding the exchange of expert reports. However, the defendants now take issue with a report that was produced by the plaintiffs’ expert, Dr. Staggs, and his anticipated testimony. The defendants argue that Dr. Staggs’ report was untimely and does not constitute proper rebuttal.

While the plaintiffs concede that Dr. Staggs’ report was untimely per the scheduling order, they argue that the court must deny the defendant’s motion to strike, as the defendants were late in producing their own expert’s report. No party sought a court order to extend the court’s deadlines. As such, the court rejected the defendants’ “transparent gamesmanship” in attempting to hold only the plaintiffs accountable for missing the court’s deadlines. The court held that the defendants would not be prejudiced by taking Dr. Staggs’ deposition “out of the sequence established in the scheduling order” and noted that there was currently no trial date in place due to the COVID-19 pandemic. While the court denied this portion of the defendant’s motion to strike, it nevertheless cautioned the parties to abide by all court orders without exception.

The defendants also asserted that the vast majority of Dr. Staggs’ report contains opinions that the plaintiffs failed to include in their case in chief, and that Dr. Staggs’ report was not a proper rebuttal, as only two pages of his 17 page report specifically addressed the defendants’ expert report. Pursuant to Federal Rule of Civil Procedure 26, rebuttal disclosures of expert testimony are “intended solely to contradict or rebut evidence on the same subject matter identified by another party” in its expert disclosures. Rebuttal expert testimony is limited to new unforeseen facts in the opponent’s case.

Therefore, the court held that much of Dr. Staggs’ report is not proper rebuttal, as the plaintiffs’ expert does not generally refute any unforeseen theories. Rather, this report largely focused on the link between asbestos exposure and certain diseases and opined that Mr. Toy developed malignant mesothelioma from asbestos exposure. Because this is a fundamental issue in the plaintiffs’ case, and because the defendants have not indicated that they intend to dispute Mr. Toy’s mesothelioma diagnosis, the court held that that Dr. Staggs ought to have been disclosed as an affirmative expert. The court therefore struck Dr. Staggs’ “rebuttal” report, with the exception of the two paragraphs that specifically referenced and responded to the defendants’ expert report.

Read the full decision here.