Opinion
Case No. 03-0647-CV-W-FJG.
August 19, 2004
ORDER
Currently pending before the Court are the following motions: 1) Defendant's Motion to Strike Plaintiff's Expert Witnesses (Docs. # 16, 32); 2) Defendant's Motion for Summary Judgment (Doc. # 22); 3) Plaintiff's Motion to Remove From Federal Court (Doc. # 27) and 4)Defendant's Motion for Extension of Time to Complete Pre-Trial Filings (Doc. # 29).
I. BACKGROUND
This products liability action involves a knee prosthesis which was implanted into plaintiff's right knee. On June 24, 2003, plaintiff filed a two count petition in state court, alleging strict liability and negligence. Plaintiff alleged that the device was "unreasonably dangerous to plaintiff and other consumers or users by reason of the defects in the design, manufacture and assembly of the device so as to cause and allow the device to crack, fracture and separate into two pieces when used normally. Defendant failed to give adequate warnings to Plaintiff and other consumers or users of the defective nature of the device." (Petition, ¶ 8).
On July 30, 2003, defendants removed the case to federal court on diversity jurisdiction. On September 26, 2003, the Court entered a Scheduling and Trial Order, directing plaintiff to submit his expert report on or before December 8, 2003. The Scheduling Order stated that the expert affidavits were required by Fed.R.Civ.P 26(a)(2)(B) and that the affidavit requirement was subject to the provisions of Rule 26(b)(4). The Scheduling Order stated that any expert affidavit to be submitted under this section must also be filed with the Court.
Plaintiff failed to submit an expert report by the deadline, prompting defendant Zimmer to file its first motion to exclude plaintiff's expert witnesses. Defendant stated that during discovery plaintiff referenced a consulting report from Garry Crabtree. However, defendant noted that this report from Mr. Crabtree did not contain any information detailing his qualifications, publications, compensation or experience. Defendant argued that the failure of plaintiff to provide an expert affidavit for Mr. Crabtree is treated as a failure to disclose under the rules and thus plaintiff should not be entitled to use this report. Plaintiff did not respond to the motion to strike.
Defendant then filed its motion for summary judgment arguing that in complicated medical product liability cases, expert medical testimony is required. Defendant argued that it was entitled to summary judgment because plaintiff had failed to provide any evidence of defect or causation. In response to the motion for summary judgment, plaintiff argued that the Court lacks jurisdiction over this case as the amount in controversy does not exceed $75,000.00. Plaintiff also stated that he had provided a copy of Mr. Crabtree's report to defendant on two different occasions, once prior to the case being filed and again on September 11, 2003, in response to defendant's request for production of documents. Plaintiff argues that this report is expert testimony which is admissible at trial and will provide a basis for the fact finder to determine whether or not defendant is liable for the failure of the product.
Plaintiff also filed a Motion to Remove from Federal Court on the same day that he filed his Suggestions in Opposition to Defendant's Motion for Summary Judgment.
In reply, defendant states that plaintiff's post-removal assertion that the case is now worth less than $75,000 does not divest the court of jurisdiction. Defendant also notes that although plaintiff previously provided Mr. Crabtree's report to Zimmer, the report was not timely filed with the Court and does not meet the requirements of Fed.R.Civ.P. 26(a)(2)(B), because it did not disclose Mr. Crabtree's experience, qualifications, his publications, compensation rate or previous testimony.
II. STANDARD
A moving party is entitled to summary judgment on a claim only if there is a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party meets this requirement, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), the Court emphasized that the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts" in order to establish a genuine issue of fact sufficient to warrant trial. "Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it." Kinnaman v. Ford Motor Co., 79 F. Supp.2d 1096, 1098 (E.D.Mo. 2000), citing,Anderson, 477 U.S. 242, 249 and Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence.Matsushita, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
III. DISCUSSION
A. Motion to Strike Expert Witnesses
The Court will address the Motion to Strike plaintiff's expert first as this necessarily impacts the motion for summary judgment.
Fed.R.Civ.P. 26(a)(2)(B) states:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
As noted above, plaintiff's expert affidavit was due on or before December 8, 2003. Plaintiff did not file any expert affidavit by the deadline. Plaintiff also failed to respond to defendant's first motion to exclude plaintiff's expert witnesses. It was not until April 28, 2004, almost five months past the deadline and after defendant had filed its motion for summary judgment, that plaintiff even filed his expert witness designation identifying who his expert witnesses were. However, the designation states only that Mr. Crabtree's report is attached, provides the amount of his compensation and indicates that Crabtree's report has been provided to defendants. Plaintiff also lists a second expert, Dr. Ron Smith. Plaintiff's counsel states that Dr. Smith has not provided an expert report but is in the process of preparing one.
In Trost v. Trek Bicycle Corp., 162 F.3d 1004 (8th Cir. 1998), the defendant moved for summary judgment on the basis that plaintiff had not produced competent evidence to support his claims. The district court granted the motion finding that plaintiff's expert report was untimely, inadequate and based upon insufficient expertise. The Eighth Circuit affirmed stating:
There is no question that the expert evidence was late. October 1, 1997 was the deadline for expert discovery, and Engel's [plaintiff's expert's] November 13 affidavit and November 25 letter were submitted well beyond that date. `A party that . . . fails to disclose information required by Rule 26(a) . . . shall not be permitted to use [the nondisclosed information] as evidence at a trial, at a hearing, or on a motion' `unless such failure is harmless' or there was `substantial justification' for the failure. Fed.R.Civ.P. 37(c)(1). Rule 16 gives the district court the authority to set management deadlines and to impose sanctions for their violation. Fed.R.Civ.P. 16(b), (c)(5)-(7), (f). The rules thus permit a court to exclude untimely evidence unless the failure to disclose was either harmless or substantially justified. The district court specifically found that [plaintiff's] failure to disclose the evidence on a timely basis was not substantially justified and also implied that it was not harmless.Id. at 1008. Similarly, in Omaha Public Power Dist. v. Siemens Aktiengesellschaft, No. 8:99CV352, 2002 WL 826830 (D. Neb. Jan. 15, 2002), the Court considered whether to strike a supplemental expert affidavit which was filed after the summary judgment deadline. The supplemental affidavit included a new opinion which had not been previously disclosed. The Court found that the defendant offered no justification for its failure to comply with the disclosure requirements and had not given any explanation for its late disclosure of the Affidavit. The Court also found that the cross-claim defendant was prejudiced because the expert's new opinions were disclosed just a few weeks before the final pretrial conference and less than three months before trial. The Court also presumed that the cross-claim defendant moved for summary judgment based in part on the fact that there was no expert testimony implicating its product. The Court determined that because the defendant had no justification for his late disclosure and because the other party was prejudiced, Rule 37 required the Court to exclude the new opinions of the expert witness. Id. at *5.
In the instant case, in analyzing whether plaintiff's failure to timely provide an expert report was either justified or harmless, plaintiff's only response is that Crabtree's report was provided to Zimmer on two different occasions. The first time was before suit was filed on June 12, 2003 and the second time was on September 11, 2003. Plaintiff also states that he forwarded Crabtree's curriculum vitae to Zimmer on April 27, 2004 and that he has provided all information he has in conjunction with the requirements of Fed.R.Civ.P. 26(a)(2)(B). With regard to his second expert witness, Dr. Ron Smith, plaintiff states that he received a letter dated April 28, 2004, outlining Dr. Smith's testimony and this letter has been forwarded to Zimmer's counsel.
The Court does not find that plaintiff was substantially justified in filing his expert witness disclosures five months after the court imposed deadline. In fact, plaintiff's counsel offers no reason that he could not have timely filed the report of Mr. Crabtree. However, as noted above, even if plaintiff had timely filed the report, it still did not provide all of the information requested by Fed.R.Civ.P. 26(a)(2)(B). Additionally, as both the Court in Troost and Omaha Public Power recognized, when the opposing party has prepared its summary judgment suggestions based on the fact that there is no expert testimony, the opposing party would be prejudiced if plaintiff were allowed to rely upon the expert's report at this late date. Therefore, because the Court finds that plaintiff's failure to file the expert affidavits in a timely fashion was neither substantially justified nor harmless, the Court hereby GRANTS defendant Zimmer's Motions to Strike Plaintiff's Expert Witnesses (Docs. # 16, 32).
B. Motion for Summary Judgment
Defendant's motion is premised on the fact that in complex product liability cases, expert testimony is required. Based on the fact that plaintiff had not filed any expert witness affidavits when defendant filed its motion for summary judgment, defendant argued that plaintiff had no evidence to support his claim and thus summary judgment was proper.
Plaintiff responds that because his damages are not over $75,000, the court does not have jurisdiction over this action. Plaintiff also states that he has provided "ample evidence that the knee system manufactured by Defendant Zimmer failed, and that failure was a result of the defective nature of the product. As there is a difference in opinion between experts of Plaintiff and Defendant, there exists a question of fact, which must be determined by the fact finder." (Plaintiff's Suggestions in Opposition, p. 3). Plaintiff also states that he has provided the report of Mr. Crabtree which shows that the knee system was the result of the product being defective. Plaintiff also states that Mr. Crabtree's report is expert testimony which is admissible at trial and will provide a basis for the fact finder to determine whether or not defendant is liable for the failure of the product.
In Robinson v. Hager, 292 F.3d 560 (8th Cir. 2002), the court stated,
When an injury is sophisticated, proof of causation generally must be established by expert testimony. See Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000) ("`[A] causal connection between an event and an injury may be inferred in cases in which a visible injury or a sudden onset of injury occurs. However, when the injury is a `sophisticated' one, i.e., requiring surgical intervention or other highly scientific technique for diagnosis, proof of causation is not within the realm of lay understanding and must be established through expert testimony.'") (citations omitted).Id. at 564. Similarly, in Eppler v. Ciba-Geigy Corp., 860 F. Supp. 1391 (W.D.Mo. 1994), the Court noted that "Missouri law holds that unless the injury involves a `sudden onset, visible injury, or an injury that as a matter of common knowledge follows the act . . . some expert medical testimony combined with other evidence tending to show with a reasonable certainty that the accident caused the injury is necessary [to prove causation].'"Id. at 1395 n. 3 (quoting, Harris v. Washington, 654 S.W.2d 303, 306 (Mo.Ct.App. 1983)).
In the instant case, as the Court has now struck plaintiff's expert witnesses, plaintiff has no evidence of causation. Therefore, the Court hereby GRANTS defendant's Motion for Summary Judgment
C. Plaintiff's Motion to Remand
On the same day that plaintiff filed his Suggestions in Opposition to defendant's motion for summary judgment, he also filed a Motion to Remove from Federal Court to State Court (Doc. # 27). In his motion, plaintiff states that he filed his suit in Henry County on June 24, 2003 and that in his petition he did not request damages in excess of $75,000. Therefore, plaintiff states that the case should be returned to Henry County. Defendant states that the case was properly removed and there is ample evidence that the amount in controversy exceeds $75,000.00. Defendant states that it removed the case to federal court on July 30, 2003 and that plaintiff did not move to remand the case until April 28, 2004. Defendant states that there was a good faith belief that the amount in controversy exceeded $75,000, because plaintiff alleged in his Petition that he "endured unnecessary pain, suffering and physical therapy." Plaintiff also alleged permanent impairment, past and future medical expenses and lost wages and earning capacity. Additionally, defendant states that in a demand letter sent shortly before suit was filed, plaintiff requested $100,000.00 to settle the case. Defendant states that the amount in controversy is determined at the time the action is removed and plaintiff may not defeat federal jurisdiction by reducing his claim to less than the jurisdictional amount.
Cases are removed from state court to federal court. When a plaintiff wishes to return to state court, the proper procedure is to file a motion to remand the case to state court.
The Court agrees. As stated in Hollenbeck v. Outboard Marine Corp., 201 F. Supp.2d 990 (E.D.Mo. 2001):
The amount in controversy is determined as of the time the action is commenced in federal court and subsequent events cannot destroy the court's jurisdiction once it has been acquired. Bank IV Salina N.A. v. Aetna Casualty Surety Co., 783 F. Supp. 1315 (D.Kan. 1992). The plaintiff cannot, after removal, deprive the district court of jurisdiction by stipulation, affidavit or by amendment of his pleadings. St. Paul [Mercury Indem., Co. v. Red Cab Co.], 303 U.S. 283, 292 (1938), 58 S.Ct. 586.
Id. at 993. See also, Glazer Associates, P.C. v. Teleport, Inc., No. Civ. 01-1080-ST, 2001 WL 3401792, (D.Ore. Sept. 13, 2001) ("[P]ermitting a plaintiff to defeat jurisdiction by post-removal pleading manipulation would undermine a defendant's statutory right of removal."); Munoz v. Sesame Place, Inc. Anheuser Busch Inc., No. 97 CIV 5055 (SAS), 1998 WL 150495 (S.D.N.Y. Mar. 30, 1998) ("It is well established, however, that satisfaction of the amount in controversy requirement is determined with reference to the time the action was commenced . . . and that a subsequent reduction of requested damages therefore does not derive the federal courts of jurisdiction.").
If plaintiff seriously believed that his damages did not exceed the jurisdictional amount, the appropriate time to file a motion to remand was shortly after the case had been removed, not eight months later. The late filing of the motion coupled with the fact that plaintiff failed to timley file his expert witness disclosures, demonstrates that the Motion to Remand is simply an attempt to avoid an adverse judgment in federal court. Accordingly, plaintiff's Motion to Remove to State Court is hereby DENIED.
IV. CONCLUSION
For the reasons stated above, the Court hereby GRANTS defendant's Motions to Strike Plaintiff's Expert Witnesses (Docs. # 16, 32); GRANTS defendant's Motion for Summary Judgment (Doc. # 22); DENIES plaintiff's Motion to Remand (Doc. # 27) and DENIES AS MOOT defendant's Motion for Extension of Time to Make Pre-Trial Deadlines (Doc. # 29).JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came before the Court. The issues have been determined and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that
defendant's Motions to Strike Plaintiff's Expert Witnesses (Docs. # 16, 32) are granted; defendant's Motion for Summary Judgment (Doc. # 22) is granted; plaintiff's Motion to Remand (Doc. # 27) is denied; and defendant's Motion for Extension of Time to Make Pre-Trial Deadlines (Doc. # 29) is denied as moot.