McCoy v. DePuy Orthopaedics, Inc. et al, No. 3:2022cv02075 - Document 103 (S.D. Cal. 2023)
Court Description: ORDER Granting 44 Defendants' Motion to Disqualify Expert Stephen Li. Signed by Judge Janis L. Sammartino on 7/14/23. (aas)
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McCoy v. DePuy Orthopaedics, Inc. et al Doc. 103 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 22-CV-2075 JLS (SBC) BARBARA MCCOY, Plaintiff, 12 13 v. 14 DEPUY ORTHOPAEDICS, INC.; DEPUY PRODUCTS, INC.; DEPUY SYNTHES, INC.; JOHNSON & JOHNSON; JOHNSON & JOHNSON SERVICES, INC.; and JOHNSON & JOHNSON INTERNATIONAL, 15 16 17 18 ORDER GRANTING DEFENDANTS’ MOTION TO DISQUALIFY PLAINTIFF’S EXPERT STEPHEN LI (ECF No. 44) Defendants. 19 20 21 Presently before the Court are Defendants DePuy Orthopaedics, Inc.; DePuy 22 Products, Inc.; DePuy Synthes, Inc.; Johnson & Johnson; Johnson & Johnson Services, 23 Inc.; and Johnson & Johnson International’s (collectively, “Defendants”) Motion to 24 Disqualify Plaintiffs’ Experts Dana Medlin and Stephen Li (“Mot.,” ECF No. 44),1 Plaintiff 25 26 27 28 1 This individual case was remanded to the Southern District of California from the multidistrict litigation (“MDL”) In re: DePuy Orthopaedics, Inc. Pinnacle Hip Implant Product Liability Litigation (MDL No. 2244), which was centralized in the Northern District of Texas before the Honorable Ed Kinkeade. The instant Motion originally was filed during the MDL proceedings in multiple individual cases, including the present one, and seeks the disqualification of two expert witnesses. Only one of the two experts, Dr. 1 22-CV-2075 JLS (SBC) Dockets.Justia.com 1 Barbara McCoy’s Opposition thereto (“Opp’n,” ECF No. 69), and Defendants’ Reply in 2 support thereof (“Reply,” ECF No. 82). Also before the Court are Plaintiff’s Notice of 3 Supplemental Authority in support of her Opposition (ECF No. 78); Defendants’ in camera 4 submission of documents supporting the Motion; Defendants’ reply in support of their 5 motion to lodge documents in camera, which appends materials from other individual cases 6 remanded from the MDL relevant to the instant Motion (ECF No. 89); Defendants’ Notice 7 of Supplemental Authority in support of their Motion (ECF No. 96) (sealed); and Plaintiff’s 8 Notice of Filing Expert Report of Dr. Stephen Li (ECF No. 101). The Court held oral 9 argument on the Motion on June 22, 2023. See ECF No. 100. Having carefully considered 10 the Parties’ arguments, both in their briefing and during oral argument; the evidence; and 11 the law, the Court GRANTS Defendants’ Motion for the reasons set forth below. 12 13 BACKGROUND I. General Factual and Procedural Background 14 In 2008, Plaintiff “underwent a left total hip arthroplasty procedure and was 15 implanted with a DePuy Pinnacle hip implant device with a metal-on-metal [(“MoM”)] 16 Ultamet liner” (the “Pinnacle Device”), but subsequent pain and inflammation required her 17 to undergo revision surgery in 2009. ECF No. 30 (“Am. Compl.”) ¶¶ 1, 49. Plaintiff brings 18 this action against Defendants, who “designed, manufactured, marketed, and sold” the 19 Pinnacle Device, alleging that her injuries were the result of the Pinnacle Device’s 20 defective and unsafe design and Defendants’ failure to adequately warn her and/or her 21 physicians about the same. Id. ¶¶ 13, 50. 22 On May 24, 2011, the United States Judicial Panel on Multidistrict Litigation issued 23 a Transfer Order centralizing pretrial proceedings of all actions involving the purportedly 24 defective design and/or manufacture of Pinnacle Devices in the Northern District of Texas 25 before Judge Kinkeade. See generally 3:11-md-02244-K (N.D. Tex.), ECF No. 1, 26 27 28 Li, has been designated in this case, so this Order addresses only the portion of the Motion concerning Dr. Li. 2 22-CV-2075 JLS (SBC) 1 available 2 2244_1.pdf. On June 29, 2011, Judge Kinkeade issued Case Management Order (“CMO”) 3 #1, which authorized plaintiffs whose cases would be subject to transfer to directly file in 4 the Northern District of Texas. See 3:11-md-02244-K (N.D. Tex.), ECF No. 20 ¶ 13, 5 available 6 2244_20.pdf. On November 18, 2011, Plaintiff directly filed her action within the Northern 7 District of Texas for inclusion in the MDL. See 3:11-cv-03206-K (N.D. Tex.), ECF No. 1; 8 see also 22-CV-2075 JLS (SBC) (S.D. Cal.), ECF No. 1. Defendants filed the instant 9 Motion on December 16, 2022, while this action was still part of the MDL. See generally 10 Mot. Shortly thereafter, this case was transferred to this District and assigned to this Court, 11 see ECF Nos. 53, 55–57, and this Court set a deadline for Plaintiff’s Opposition and a 12 hearing date for the Motion, see ECF No. 67. 13 II. at at https://www.txnd.uscourts.gov/sites/default/files/documents/311-md- https://www.txnd.uscourts.gov/sites/default/files/documents/311-md- The Motion to Disqualify 14 Plaintiff has “designated Dr. Li as a biomedical expert, including as an expert in 15 general and specific causation.” Opp’n at 2 (footnote omitted).2 Defendants, however, 16 contend that Dr. Li must be disqualified because he has “‘switched sides’ in the exact same 17 litigation.” Mot. at 2. 18 The instant Motion, to the extent it concerns Dr. Li, was filed on December 16, 2022, 19 in this and seven other individual cases then pending in the MDL. See generally id. Other 20 plaintiffs in the MDL served expert reports authored by Dr. Li on Defendants in August 21 2021. Opp’n at 3. Plaintiff served her expert report authored by Dr. Li on Defendants in 22 July 2022, which “offer[ed] substantially similar opinions to the previous reports he had 23 authored, all involving the same DePuy products.” Id.3 However, “Defendants did not 24 inform Plaintiff of [Dr. Li’s potential conflict of interest] until the eve the motion to strike 25 26 27 28 2 In citing to the briefs in this matter, the Court refers to the blue numbers stamped in the upper righthand corner of each page by the District’s Case Management/Electronic Case Filing system. 3 Elsewhere, Plaintiff states that she served an expert report authored by Dr. Li in May 2022 and disclosed him again as an expert on October 28, 2022. See ECF No. 60 at 4. 3 22-CV-2075 JLS (SBC) 1 was filed.” Id. at 4.4 Defendants contend that “[t]hese cases were dormant and stayed until 2 the September 16, 2022 scheduling order,” and accordingly “there was no reason for DePuy 3 to assess plaintiffs’ expert designations until recently.” Mot. at 10 n.6. 4 A. 5 In support of their Motion, Defendants initially submitted only the declaration of 6 Kenneth H. Inskeep, retired Of Counsel at Barnes & Thornburg LLP, one of the firms 7 representing Defendants in this matter, who was one of DePuy’s5 national counsel for 8 litigation from the early 1990s until his retirement on December 31, 2020. Declaration of 9 Kenneth H. Inskeep (“Inskeep Decl.,” ECF No. 44-1 at 4) ¶ 2. Mr. Inskeep “had a 10 leadership role in defending the litigation against DePuy and affiliated companies 11 involving the Pinnacle Cup System.” Id. Mr. Inskeep declares that, “[i]n the early 1990s, 12 Barnes & Thornburg engaged Dr. Li on behalf of DePuy as an expert in cases involving 13 various hip devices, including the ACS and Duraloc cup systems as both a consulting and 14 testifying expert.” Id. ¶ 4. “From the 1990s until at least 2015, Dr. Li was one of DePuy’s 15 principal outside consulting and testifying experts, particularly on cases involving 16 polyethylene performance.” Id. Accordingly, “when significant litigation emerged in 2010 17 involving DePuy’s metal-on-metal (“MoM”) hip replacement options, [Mr. Inskeep] 18 contacted Dr. Li to see if he was willing and available to consult with DePuy.” Id. ¶ 6. Defendants’ Initial Support 19 Mr. Inskeep declares that, on October 27 and 28, 2010, he met with Dr. Li in Florida 20 “to discuss [other] litigation specifically, but also MoM hips more generally, as [he] 21 anticipated [Defendants] might also want to use him as an expert in the litigation involving 22 the DePuy Pinnacle MoM device.” Id. ¶ 8. Before the meeting, “[Mr. Inskeep] supplied 23 Dr. Li with certain medical and scientific journal articles [he] considered important and 24 25 4 26 In the Joint Status Report, Plaintiff says that the first time the issue of Dr. Li’s purported conflict was raised was on December 1, 2022. See ECF No. 60 at 4. 27 5 28 As the Court noted in its June 5, 2023 Order granting Defendants’ motion for permission to lodge documents for in camera review, the instant Motion generally refers to “DePuy” rather than specific DePuy entities. This Order will do the same. 4 22-CV-2075 JLS (SBC) 1 key regulatory documents.” Id. Mr. Inskeep declares that they discussed “MoM devices 2 generally, including the DePuy Pinnacle device (not just the ASR), and [Mr. Inskeep’s] 3 mental impressions and potential strategies for defending MoM cases.” Id. After this 4 meeting, “it was decided that the Pinnacle defense team would continue to consult with Dr. 5 Li, and that the ASR defense team would consult with different experts.” Id. ¶ 9. 6 According to Mr. Inskeep, “[he] was the lawyer principally responsible for dealings 7 with Dr. Li on the Pinnacle litigation,” and “[he] had periodic discussions with Dr. Li in 8 2011, following up on various issues from [the October 27 & 28,] 2010 meeting, but 9 focusing on their applicability to the Pinnacle litigation and other matters specific to the 10 Pinnacle litigation.” Id. ¶ 10. Mr. Inskeep declares that, “[i]n April 2011, [he] sent Dr. Li 11 materials, including x-rays, on a specific Pinnacle case for which [Defendants] sought his 12 analysis.” Id. Mr. Inskeep declares that other topics of conversation with Dr. Li “included 13 our respective analysis of new developments and journal articles, the theories of attack by 14 Plaintiffs, refining defense themes and strategies and similar matters.” Id. Mr. Inskeep 15 declares that “[he] shared [his] mental impressions and other confidential and privileged 16 information about defense strategies, the strengths and weaknesses of each side’s 17 respective cases, DePuy’s product design and use, and the characteristics and 18 complications associated with polyethylene, metal and ceramic bearing surfaces available 19 in the DePuy Pinnacle cup system” during these discussions, and “Dr. Li assisted [him] in 20 evaluating the parties’ respective liability positions and developing DePuy’s defenses 21 based on his experience and expertise in this field and his review of the confidential 22 information [Mr. Inskeep] provided about the relevant issues in addition to what was 23 publicly available.” Id. ¶ 11. 24 Mr. Inskeep declares that he and his colleague Barbara Meier “had a lengthy meeting 25 with Dr. Li in Indianapolis” in August 2011 “to focus on understanding and developing 26 defenses to issues being raised by Plaintiffs.” Id. ¶ 12. Dr. Inskeep declares that, “[i]n 27 advance of that meeting, [he] sent Dr. Li a package of materials that [he] thought were 28 important to consider.” Id. Mr. Inskeep declares that, during the meeting, “[they] 5 22-CV-2075 JLS (SBC) 1 discussed in detail defense strategies . . . relating to the Pinnacle cup system,” as well as 2 “the defense of Pinnacle MoM and the larger class of MoM devices,” “defensive litigation 3 strategies to respond to the evolving scientific and medical literature regarding MoM 4 devices, evaluation of likely Plaintiff experts and expert opinions that would be critical of 5 metal-on-metal, and lines of attack against Plaintiff’s allegations and case themes.” Id. 6 Mr. Inskeep also declares that he, his colleague David Brooks, and Dr. Li were 7 scheduled to meet on October 24, 2013, and while Mr. Inskeep was unable to attend due to 8 a conflict, Mr. Brooks did attend and “reported to [Mr. Inskeep] that the meeting was very 9 helpful,” although Mr. Inskeep “ha[s] not found a memo summarizing this meeting among 10 [his] files.” Id. ¶ 13. 11 Dr. Li did not communicate frequently with Mr. Inskeep during the 2013 through 12 2015 time period, when Dr. Li was experiencing health issues; nonetheless, “[Mr. Inskeep] 13 continued to view Dr. Li as a key resource in developing the Defendants’ defenses, and 14 continued to consult with him as developments warranted.” Id. ¶ 14. 15 In August 2015, plaintiffs in the MDL disclosed that Al Burstein, Ph.D., would be 16 one of their testifying product defect experts in the next bellwether trial. Id. ¶ 15. Mr. 17 Inskeep asked Dr. Li “if he would be willing to review and critique Dr. Burstein’s report 18 to continue to assist [Defendants] in defending the Pinnacle litigation.” Id. “[G]iven [Dr. 19 Li’s] long personal, professional and financial relationships with Dr. Burstein, [Dr. Li 20 conveyed that] he simply was not comfortable” doing so. Id. Accordingly, at that time, 21 Defendants “suspend[ed] consulting with Dr. Li in the Pinnacle litigation,” although 22 “[n]either Dr. Li nor [Mr. Inskeep] formally terminated his consultancy for Defendants and 23 [Mr. Inskeep] understood he continued to be available to consult as an expert in Pinnacle 24 or other matters provided Dr. Burstein was not involved as an opposing expert.” Id. 25 Mr. Inskeep declares that, “[b]ecause of our long and trusted relationship, and given 26 [Mr. Inskeep] had concluded Dr. Li was unlikely to be a testifying expert, during [their] 27 work together on Pinnacle metal-on-metal cases [Mr. Inskeep] was unusually candid and 28 detailed in [his] discussions with [Dr. Li].” Id. ¶ 16. Mr. Inskeep indicates that “Dr. Li 6 22-CV-2075 JLS (SBC) 1 collaborated with [him] on developing defense themes and evidence associated with nearly 2 all of the points included in Dr. Li’s key points summary [in his expert report in this case] 3 and much of the detail in the balance of his report.” Id. “Accordingly, prior to rendering 4 expert opinions for Plaintiff[], Dr. Li had already received, contributed to, and helped 5 formulate the defense positions and strategies that relate to the very points and opinions he 6 now renders for Plaintiff[] in this litigation.” Id. Mr. Inskeep declares that a review of 7 billing information in his possession indicates that Dr. Li was paid $23,500 for 47 hours of 8 work “for his expert services relating to metal-on-metal Pinnacle cases.” Id. ¶ 17. 9 B. Plaintiff’s Opposition 10 In support of her Opposition, Plaintiff offers an affidavit (“Li Aff.,” ECF No. 69-2) 11 and declaration (“Li Decl.,” ECF No. 69-3) from Dr. Li to counter Mr. Inskeep’s assertions. 12 Dr. Li notes that he served on an FDA advisory panel concerning the safety classification 13 of metal-on-metal hip implants in 2001, and that he stated during these public meetings 14 “[his] opposition to the down classification of safety requirements for metal-on-metal total 15 hip implants due to safety concerns from the first generation of metal-on-metal total hips 16 and the lack of new testing data.” Li Decl. ¶¶ 4–6; see also ECF No. 65 (partial transcript 17 of the FDA’s August 8, 2001 Orthopaedics and Rehabilitation Devices Advisory Panel 18 Open Discussion) at 3–15. Dr. Li declares that the opinions he disclosed at that time “have 19 never changed.” Li Decl. ¶ 7. Dr. Li admits that, “[i]n the 1990s and early 2000s, [he] had 20 worked with Depuy as a consulting polymer chemist.” Id. ¶ 9. “[Dr. Li] was first 21 approached by plaintiffs[’] counsel in ASR metal-on-metal litigation in 2010, likely due to 22 [his] publicly expressed opinions against metal-on-metal.” Id. ¶ 10. “[Dr. Li] relayed to 23 Mr. Inskeep that [he] had discussed [his] opinions of metal-on-metal with plaintiffs’ 24 counsel; however, [Dr. Li] was not formally retained by any plaintiffs[’] counsel until early 25 2021.” Id. 26 Dr. Li declares “that sometime in 2010, Mr. Inskeep notified me that he was in town, 27 and [Dr. Li] met him for dinner and drinks at or near the airport.” Id. ¶ 11. As best he 28 recalls, “[they] discussed various topics over the meal, and to the small extent metal-on7 22-CV-2075 JLS (SBC) 1 metal was brought up, [Dr. Li] reiterated the position [he] had since 2011.” Id. And while 2 Dr. Li affirms that he met with Mr. Inskeep and Ms. Meier in August 2011, “it is [his] 3 recollection that the only discussions [he] ha[s] ever had with Barbara Mei[e]r were related 4 to metal-on-polyethylene products.” Id. ¶ 12. 5 As to the October 24, 2013 meeting with Mr. Brooks, Dr. Li declares that “[he] was 6 diagnosed and treated for cancer” in 2012, and he “only slowly restarted consulting 7 activities in September 2013.” Id. ¶ 13. Dr. Li declares that “[he] do[es] not have any 8 documents or information from Mr. Brooks in [his] possession and [he] do[es] not recall 9 receiving any documents or information from Mr. Brooks, let alone confidential or 10 proprietary information.” Id. Dr. Li further declares that he has reviewed his e-mail 11 account and “[is] not in possession of confidential information or medical records related 12 to metal-on-metal hip devices from Depuy or its counsel; nor do[es he] have a recollection 13 of receiving such information.” Id. ¶ 14. Further, “[a]fter reviewing [his] e-mail account, 14 [he is] not in possession of specific questions from Depuy or its counsel related to metal- 15 on-metal; nor do[es he] have a recollection of these types of communications.” Id. ¶ 15. 16 Based on the information in Dr. Li’s possession, he does not believe the payments 17 referenced in Mr. Inskeep’s declaration were related to metal-on-metal devices. Id. ¶ 16. 18 He also does not have in his possesion any retention agreements or confidentiality 19 agreements with DePuy related to metal-on-metal devices, and he does not recall entering 20 into any such agreements. Id. ¶ 18. Dr. Li declares that he was never under the impression 21 that DePuy viewed him as a consulting or non-testifying expert on issues related to metal- 22 on-metal hip products. Id. ¶ 19. Indeed, “in 2016, instead of contacting [him] directly, 23 Depuy subpoenaed [Dr. Li] as a fact witness in an intellectual property matter.” Id. He 24 declares that “[he] never agreed to consult with Depuy as a metal-on-metal expert” and has 25 never received confidential or proprietary information from DePuy related to such devices. 26 Id. ¶ 21. Even when Dr. Li acted as a consulting expert in metal-on-polyethylene cases, 27 “[he] did not discuss matters of litigation strategy or receive internal e-mails or confidential 28 information other than design specifications for the particular device at issue in that case.” 8 22-CV-2075 JLS (SBC) 1 Id. ¶ 17. “In general, [he] would only receive medical records and at times design 2 specifications for the particular device at issue from Depuy and perform a literature review 3 on [his] own and then draft a report with [his] findings.” Id. Dr. Li never informed any of 4 the plaintiffs in the MDL of any conflict of interest with DePuy because he never agreed 5 to consult with DePuy as a metal-on-metal expert and accordingly did not believe there 6 was any conflict of interest to disclose. Id. ¶¶ 21–23. 7 Dr. Li’s affidavit is largely repetitive of his declaration. See generally Li Aff. 8 C. 9 As previously noted, the instant Motion, to the extent it implicates Dr. Li, was filed 10 in seven other individual cases that have since been remanded from the MDL. The instant 11 Motion already has been decided in several of those actions. First, at the end of March 12 2023, the court in Winkelmeyer v. DePuy Orthopaedics, Inc., denied the Motion. See 13 generally Case No. 13-cv-4058, 2023 WL 2719473 (W.D. Mo. Mar. 30, 2023). Only after 14 the Motion was denied did the defendants in that action file a motion to lodge in camera 15 the supporting documents referenced in the Inskeep Declaration, as well as a motion for 16 reconsideration.6 The court in Winkelmeyer denied the motion for reconsideration on the 17 grounds that the documents submitted in camera were neither new evidence nor 18 identification of a clear error meriting reconsideration. See generally Case No. 13-cv-4058, 19 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023). Other Rulings on the Motion and Defendants’ in Camera Submission 20 On May 4, 2023, the court in Sheehy v. DePuy Orthopaedics, Inc., having considered 21 the in camera documents submitted by the defendants, granted the Motion and afforded 22 the plaintiff an opportunity to identify a new expert. See Case No. 22-cv-3370 (D. Colo.), 23 ECF No. 139 at 3. 24 Orthopaedics, Inc., granted the Motion after taking into consideration the defendants’ in 25 camera submission. See Case No. 23-cv-40 (C.D. Cal.), ECF No. 93-1 (sealed). Finally, Similarly, on May 18, 2023, the court in England v. DePuy 26 27 28 6 It was at that time, too, that Defendants submitted their request to lodge the documents in camera with this Court. 9 22-CV-2075 JLS (SBC) 1 an evidentiary hearing and a hearing on the Motion were held on June 21, 2023, in Cannon 2 v. DePuy Orthopaedics, Inc., but a decision has yet to issue as of the date of this Order. 3 See Docket, Case No. No. 22-cv-5152 (N.D. Ga.). 4 This Court granted Defendants’ request to lodge in camera documents further 5 supporting the instant Motion. See ECF No. 97. Without divulging specifics, among the 6 in camera documents are a contemporaneous e-mail from Mr. Inskeep to his colleagues 7 proposing an agenda for a 2011 meeting with Dr. Li; a contemporaneous memorandum 8 authored by Ms. Meier comprising her notes from said meeting; and a contemporaneous e- 9 mail from Mr. Brooks to Mr. Inskeep following a 2013 meeting with Dr. Li. 10 LEGAL STANDARD 11 “‘Courts have inherent power to disqualify experts.’” Crenshaw v. MONY Life Ins. 12 Co., 318 F. Supp. 2d 1015, 1026 (S.D. Cal. 2004) (quoting Stencel v. Fairchild Corp., 174 13 F. Supp. 2d 1080, 1082 (C.D. Cal. 2001)). “However, disqualification is a drastic measure 14 that courts should impose only hesitantly, reluctantly, and rarely.” Hewlett-Packard Co. 15 v. EMC Corp., 330 F. Supp. 2d 1087, 1092 (N.D. Cal. 2004) (citations omitted). Further, 16 “expert witnesses stand in shoes different from those of counsel. ‘An expert does not 17 advocate during litigation but acts as a source of information and opinion.’” Crenshaw, 18 318 F. Supp. 2d at 1026 (quoting United States v. Salamanca, 244 F. Supp. 2d 1023, 1024 19 (D.S.D. 2003)). Accordingly, “[i]t is important to remember that the expert disqualification 20 standard must be distinguished from the attorney-client relationship.” Hewlett-Packard 21 Co., 330 F. Supp. 2d at 1092 (citations and internal quotation marks omitted). 22 “Courts have developed two approaches” to assessing this issue. The first approach, 23 sometimes called the “bright-line rule,” “requires disqualification ‘where it is undisputed 24 that the consultant was previously retained as an expert by the adverse party in the same 25 litigation and had received confidential information from the adverse party pursuant to the 26 earlier retention.’” In re Bard IVC Filters Prod. Liab. Litig., No. MDL 15-02641-PHX 27 DGC, 2017 WL 6603467, at *2 (D. Ariz. Dec. 21, 2017) (quoting Wang Labs., Inc. v. 28 Toshiba Corp., 762 F. Supp. 1246, 1248 (E.D. Va. 1991)). 10 22-CV-2075 JLS (SBC) 1 “The second approach applies where ‘the parties dispute whether the earlier 2 retention and passage of confidential information occurred.’” Id. (quoting Wang, 762 F. 3 Supp. at 1248). When such is the case, the court analyzes two questions: “(1) whether it 4 was reasonable for the party seeking disqualification to believe it had a confidential 5 relationship with the expert, and (2) whether the expert received confidential information 6 relevant to the current litigation.” Id. (citations omitted). If either question is answered in 7 the negative, “disqualification is likely inappropriate.” Wang, 762 F. Supp. at 1248. If, on 8 the other hand, both questions are answered in the affirmative, the expert generally should 9 be disqualified; however, the court also should consider whether disqualification would be 10 fair to the party whose expert would be disqualified and would promote the integrity of the 11 judicial process. In re Bard, 2017 WL 6603467, at *2; Hewlett-Packard, 330 F. Supp. 2d 12 at 1093. The party moving to disqualify bears the burden of proof on these issues. 13 Hayward Property, LLC v. Commonwealth Land Title Ins. Co., Case No. 17-cv-06177 14 SBA, 2021 WL 4923379, at *2 (N.D. Cal. Aug. 31, 2021) (citing Hewlett-Packard, 330 F. 15 Supp. 2d at 1096). 16 ANALYSIS 17 Here, the Parties dispute whether Dr. Li was previously retained as an expert by 18 Defendants in the same litigation. See Opp’n at 2 (“Defendants moved to disqualify 19 Plaintiff[’]s[] biomedical expert Dr. Li on the basis that Dr. Li has allegedly ‘switched 20 sides’ from Defendants to Plaintiff[] in this litigation. He did not.”). Accordingly, 21 application of the bright-line rule is inappropriate here, and the Court instead turns to the 22 alternate test for disqualification. 23 I. Objectively Reasonable Belief that a Confidential Relationship Existed 24 In assessing whether the party seeking disqualification had an objectively reasonable 25 belief that a confidential relationship with the expert existed, courts consider a number of 26 factors, including the length of the relationship; the number and frequency of contacts and 27 meetings between the party and the expert; whether the parties entered into any formal 28 confidentiality agreement; whether the expert was retained by the party to assist in the 11 22-CV-2075 JLS (SBC) 1 litigation; whether work product was discussed with or documents provided to the expert; 2 which way any alleged confidential communications flowed (from the expert to the party 3 or vice-versa); whether the expert was paid any fee; whether the expert was asked to not 4 discuss the case with the opposing party or counsel; and whether any of the expert’s ideas 5 were derived from work done under the party’s direction. See Hewlett-Packard, 330 F. 6 Supp. 2d at 1093 (citations omitted). 7 Here, both Defendants and Dr. Li acknowledge that Dr. Li was a consulting polymer 8 chemist to DePuy from the 1990s until at least the early 2000s, see Li Decl. ¶ 9; Inskeep 9 Decl. ¶ 4, and was paid by DePuy for consulting, see Li Decl. ¶ 16; Inskeep Decl. ¶ 17; 10 accordingly, it certainly was objectively reasonable for Defendants to have believed that a 11 confidential relationship existed between DePuy and Dr. Li at some point. See, e.g., In re 12 C.R. Bard, Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. MDL 2187, 2014 WL 6960396, 13 at *10 (S.D. W. Va. Dec. 8, 2014) (finding objectively reasonable expectation of 14 confidential relationship where relationship lasted nearly four years and involved frequent 15 contacts). 16 Moreover, Defendants’ in camera submission evidences that it was objectively 17 reasonable for Defendants to believe that a confidential relationship existed between 18 DePuy and Dr. Li in the timeframe during which this litigation was pending. Although the 19 Court finds troubling the lack of formal confidentiality and retention agreements between 20 DePuy and Dr. Li, ultimately, such documents are not prerequisites to the formation and 21 existence of a confidential relationship, but merely one factor to be considered. 22 Meanwhile, the contemporaneous documents submitted by Defendants show that DePuy 23 provided Dr. Li with documents related to litigation during this timeframe; that they paid 24 him consulting fees; that they paid for his travel and lodging for at least one consulting 25 meeting; and that work product and litigation strategy was likely discussed with Dr. Li 26 during several meetings. 27 While Dr. Li’s declaration and affidavit state that he has no recollection of Mr. 28 Inskeep or any other lawyer for DePuy sharing confidential or privileged information with 12 22-CV-2075 JLS (SBC) 1 him related to the instant litigation, see Li Aff. ¶¶ 9–12; Li Decl. ¶¶ 11–17, 21, the 2 contemporaneous documents submitted by Defendants tend to show that such information 3 was shared. Further, while Dr. Li says he does not recall having any discussions with Ms. 4 Meier concerning metal-on-metal devices, see Li Decl. ¶ 12, her contemporaneous notes 5 from the August 2011 evidence otherwise. Memories fade, and, as counsel for Plaintiff 6 conceded during oral argument, documents created more or less at the time of the events 7 in question are simply more reliable than Dr. Li’s recollections more than a decade later. 8 During oral argument, Plaintiff’s counsel urged the Court to review several cases 9 cited by Defendant, which Plaintiff’s counsel insisted were distinguishable. Specifically, 10 Plaintiff’s counsel noted that in Simons v. Freeport Memorial Hospital, unlike here, the 11 expert who was disqualified had “rendered some type of oral opinion.” No. 06 C 50134, 12 2008 WL 5111157, at *4 (N.D. Ill. Dec. 4, 2008). However, that was solely one factor 13 relevant to the court finding that a confidential relationship existed. See id. (“In light of 14 the facts above, it was reasonable for defendants to assume a confidential relationship.”) 15 (emphasis added). 16 Freeport and this case. For example, the expert in Freeport was paid for 20 hours of 17 consultation services, see id., and Dr. Li was paid for 47 hours—more than twice that, see 18 Inskeep Decl. ¶ 17. The expert in Freeport did not solely provide an “initial consultation,” 19 but “continued to provide consultation to defendants” over a period of three months. 20 Freeport, 2008 WL 5111157, at *3. Here, Dr. Li met and consulted with counsel for DePuy 21 multiple times over a period of years. See generally Inskeep Decl. It also appears, like 22 here, that there was no formal written contract cementing the consulting relationship in 23 Freeport. See Freeport, 2008 WL 5111157, at *3 (“In contrast to plaintiff’s suggestion 24 otherwise, a written contract is not the only way a party can reasonably assume a 25 confidential relationship with an expert.”) (citation omitted). In sum, the facts supporting 26 the existence of a confidential relationship here are even more compelling than those in 27 Freeport. 28 /// Ultimately, there are more similarities than differences between 13 22-CV-2075 JLS (SBC) 1 Plaintiff’s counsel also pointed to Rhodes v. E.I. du Pont de Nemours & Co., where 2 the court disqualified an expert where there was a signed retention letter, the expert had 3 discussed the case by phone approximately 28 times with counsel, and counsel gave the 4 expert a memorandum summarizing the relevant facts “as well as counsel’s views on that 5 case’s key issues and strategies.” 558 F. Supp. 2d 660, 668 (S.D. W. Va. 2008). While 6 certain factors supporting the existence of a confidential relationship are present in Rhodes 7 that are absent here, the converse is also true. For instance, the relationship in Rhodes 8 potentially lasted only months, whereas here the relationship spanned years. Id. at 671. 9 And here there were several lengthy in-person meetings between DePuy’s counsel and Dr. 10 Li that further support a finding that “[t]his history of interactions does not indicate a 11 sporadic or informal relationship.” Id. 12 Ultimately, having considered the evidence and the relevant factors, the Court finds 13 that Defendants have met their burden of establishing their reasonable belief that a 14 confidential consulting relationship existed between DePuy and Dr. Li. 15 II. Disclosure to the Expert of Confidential Information Relevant to the Litigation 16 A finding that an objectively reasonable belief in a confidential relationship existed 17 does not end the Court’s inquiry, however, as “[s]econd, the moving party must establish 18 that it in fact disclosed confidential information to the expert.” Stencel v. Fairchild Corp., 19 174 F. Supp. 2d 1080, 1083 (C.D. Cal. 2001) (citations omitted). 20 information essentially is information ‘of either particular significance or [that] which can 21 be readily identified as either attorney work product or within the scope of the attorney- 22 client privilege.’” Hewlett-Packard, 330 F. Supp. 2d at 1094 (citations omitted). Said 23 confidential information must be “relevant to the current litigation.” Id. at 1096; see Junger 24 v. Singh, 514 F. Supp. 3d 579, 598 (W.D.N.Y. 2021) (“[T]he party seeking disqualification 25 [must] show that . . . during the relationship there [must have been] a disclosure of 26 confidential or privileged information to the expert that is relevant to the current litigation.” 27 (citation and internal quotation marks omitted)). 28 /// “Confidential 14 22-CV-2075 JLS (SBC) 1 “Courts are more likely to find for the moving party if any of the following 2 information is shared: legal strategies, the types of experts to be called, the attorney’s views 3 on the relative strengths or merits of a claim or defense, the role of other witnesses at trial 4 or anticipated defenses.” Stencel, 174 F. Supp. 2d at 1083 (citing Koch Refining Co. v. 5 Jennifer L. Boudreaux MV, 85 F.3d 1178, 1181 (5th Cir. 1996)). The proponent of 6 disqualification “should point to specific and unambiguous disclosures that if revealed 7 would prejudice the party.” Hewlett-Packard, 330 F. Supp. 2d at 1094 (citations omitted); 8 In re Incretin-Based Therapies Prods. Liab. Litig., 721 F. App’x 580, 584 (9th Cir. 2017) 9 (finding district court abused its discretion where defendant failed to meet this burden). 10 Communications with experts, unlike attorney-client communications, carry no 11 presumption of confidentiality. Stencel, 174 F. Supp. 2d at 1083 (citation omitted). “[T]he 12 party requesting disqualification may not meet its burden with mere conclusory or ipse 13 dixit assertions.” Hewlett-Packard, 330 F. Supp. at 1096 (quotation marks and citation 14 omitted). 15 Plaintiff’s counsel submitted during oral argument that Defendants have failed to 16 pinpoint any confidential information contained within Dr. Li’s expert report. During the 17 hearing, the Court requested, and Plaintiff subsequently filed, a copy of Dr. Li’s expert 18 report, given that Mr. Inskeep’s declaration asserts that Dr. Li helped develop defense 19 themes and evidence relevant to certain points addressed in the report. See Inskeep Decl. 20 ¶ 16. The Court cannot make a determination as to whether the report itself discloses 21 confidential information conveyed by DePuy’s counsel to Dr. Li; however, that is not the 22 relevant inquiry for purposes of the present Motion. The fact remains that other documents 23 tend to evidence that attorney work-product information related to the instant litigation was 24 shared between DePuy’s counsel and Dr. Li, which is the relevant inquiry. 25 While it is true, as Plaintiff’s counsel argued during oral argument, that Defendants’ 26 Motion and the publicly filed supporting documents may speak “in generalities” about the 27 allegedly confidential information disclosed, the in camera documents are more specific 28 in their content. Here, Defendants have “provide[d] . . . contemporaneous documentation 15 22-CV-2075 JLS (SBC) 1 that attorney work product was communicated to [the expert] or from other persons, 2 including Defendants’ counsel, who were parties to such discussions.” Hinterberger v. 3 Catholic Health Sys., Inc., No. 08-CV-380S F, 2013 WL 2250591, at *15 (W.D.N.Y. May 4 21, 2013) (citing Wang Labs., Inc. v. Toshiba Corp., 762 F. Supp. 1246, 1249 (E.D. Va. 5 1991)). In particular, it seems more likely than not, in view of the in camera documents, 6 that privileged and confidential information was shared with Dr. Li at the August 2011 7 meeting between Dr. Li, Mr. Inskeep, and Ms. Meier, based on the agenda for and Ms. 8 Meier’s notes taken during the meeting, as well as at the October 2013 meeting between 9 Dr. Li and Mr. Brooks, based on comments contained in a contemporaneous e-mail 10 between Mr. Brooks and Mr. Inskeep about the meeting. As noted supra at Section I, these 11 contemporaneous documents are inherently more reliable than Dr. Li’s recollections of 12 events. 13 memorandum, as in Rhodes, 558 F. Supp. 2d at 671, these documents evidence that 14 attorney work-product information relevant to this case was disclosed to Dr. Li. Even if Dr. Li was not provided a confidential and privileged written 15 Accordingly, on this record, the Court finds Defendants have met their burden of 16 showing that confidential information relevant to the instant litigation was disclosed by 17 DePuy’s counsel to Dr. Li. 18 III. Nonwaiver 19 “In addition to proving the elements discussed above, ‘[t]he party seeking 20 disqualification bears the burden of establishing . . . its non-waiver.’” Junger, 514 F. Supp. 21 3d at 599 (citing Eng. Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1501–02 (D. 22 Colo. 1993); Hinterberger, 2013 WL 2250591, at *24 (W.D.N.Y. May 21, 2013); Barrett 23 v. United States, 651 F. Supp. 606, 607 (S.D.N.Y. 1986)). 24 Here, Plaintiff claims that, by waiting approximately sixteen months to so much as 25 mention Dr. Li’s conflict, Defendants have waived the right to seek disqualification. Opp’n 26 at 6. Defendants counter that Plaintiff knew or should have known of the conflict and 27 accordingly there was no prejudice, and, at any rate, the MDL cases were stayed until 28 /// 16 22-CV-2075 JLS (SBC) 1 September 2022, so there was no reason for Defendants to assess Plaintiff’s expert 2 designations before then. Mot. at 10 n.6. 3 As an initial matter, Defendants’ contention that “these cases were dormant and 4 stayed until the September 16, 2022 scheduling order,” and that accordingly there was no 5 reason to assess Plaintiff’s expert designations prior to that time, rings hollow. See id. In 6 a June 17, 2022 filing from before this matter was transferred to this District, Defendants 7 indicated that “[they] sent Plaintiff three separate deficiency notices relating to Plaintiff’s 8 failure to comply with CMO 12, including, in pertinent part, one in July of 2021 that 9 pertained to Plaintiff’s failure to submit complete medical records . . . and one in August 10 of 2021 pertaining to Plaintiff’s failure to submit case-specific expert reports on theories 11 of product defect.” ECF No. 24 at 1. In the same filing, Defendants argue that “Plaintiff’s 12 obligation to comply with CMO 12 was reinstated January 1, 2022, and that Plaintiff’s case 13 should be dismissed for failure to timely serve her case-specific expert reports.” Id. at 2. 14 Defendants clearly were on the lookout for expert reports during the time of the alleged 15 stay and therefore could and should have raised Dr. Li’s conflict of interest earlier. 16 Ultimately, “the only relevant communication of an objection to a challenged expert 17 or consultant’s services to an opponent is not to the objected expert or consultant, or, for 18 that matter, to the opponent’s counsel, but to the court by a formal request to disqualify.” 19 Hinterberger, 2013 WL 2250591, at *24 (citing English Feedlot, Inc., 833 F. Supp. 2d at 20 1504). “While it may be the case that [Plaintiff] initially ran the risk of disqualification by 21 hiring an expert who had a previous relationship with [Defendants], once [Defendants] 22 became aware that [Dr. Li] was working for [Plaintiff], it was incumbent upon them to 23 timely raise the issue for prompt resolution by the Court.” Junger, 514 F. Supp. 3d at 599. 24 Here, at the latest, Defendants knew in the instant case that Dr. Li was to be one of 25 Plaintiff’s experts in July 2022, the latter of the dates on which Plaintiff may have provided 26 Defendants with her expert report authored by Dr. Li; Defendants then waited 27 approximately five months, until December 2022, to raise the issue. Moreover, Defendants 28 knew that Dr. Li was going to be an expert for other plaintiffs in other cases in the same 17 22-CV-2075 JLS (SBC) 1 MDL in August 2021, and still failed to voice concerns about a conflict of interest earlier 2 than December 2022. If Defendants had concerns about Dr. Li’s possession of confidential 3 information relevant to this action, they should have promptly raised the issue with Plaintiff 4 and, barring agreement to withdraw Dr. Li as an expert, promptly filed a motion to 5 disqualify. Defendants’ failure to act for months, if not more than a year, tends to support 6 an inference that they waived the right to challenge Dr. Li on this basis. See, e.g., Eng. 7 Feedlot, Inc., 833 F. Supp. at 1504–05 (noting party seeking disqualification had eight 8 months after expert’s deposition to move for disqualification, and failure to do so was “a 9 mere tactical maneuver” that “does not manifest a genuine concern about confidentiality”); 10 Wis. Loc. Gov’t Prop. Ins. Fund v. CH2M Hill, Inc., No. 02-C-302-DRH, 2005 WL 11 8165822, at *2 (E.D. Wis. Dec. 8, 2005) (finding waiver argument convincing where 12 parties had opportunity to discuss conflict of interest at time of expert witness disclosures 13 but waited to raise the argument until trial was a month away). 14 On the other hand, as the Court noted during oral argument, cases finding waiver of 15 the right to seek disqualification are rare, and this Court has been able to locate no such 16 cases involving a case that was part of a multidistrict litigation where other courts have 17 already disqualified the expert. Given that two other courts have rejected the argument 18 that Defendants waived disqualification, this Court is disinclined to find a waiver here. 19 IV. Fairness to the Nonmovant and the Promotion of Judicial Integrity 20 Even if Defendants meet their burden of proof on the above issues, the Court must 21 also balance other important considerations in assessing the propriety of disqualification. 22 “[T]he court’s interest in protecting and preserving the integrity and fairness of the judicial 23 proceedings . . . has been used to override the other two [disqualification factors] where 24 necessary.” Freeport, 2008 WL 5111157, at *2 (citing Am. Empire Surplus Lines Ins. Co. 25 v. Care Ctrs., Inc., 484 F. Supp. 2d 855, 857 (N.D. Ill. 2007); Great Lakes Dredge & Dock 26 Co. v. Harnischfeger Corp., 734 F. Supp. 334, 337 (N.D. Ill. 1990); Koch Refining Co. v. 27 Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181 (5th Cir. 1996)). 28 /// 18 22-CV-2075 JLS (SBC) 1 Here, the record evidences that Plaintiff and her counsel are not to blame for the 2 present conflict of interest, and disqualification is indisputably prejudicial to Plaintiff. Not 3 only must Plaintiff now find a new expert, but the Court also must reopen or extend expert 4 discovery in a case that was initially filed more than eleven years ago, and Plaintiff’s 5 counsel confirmed during oral argument that he has already expended significant resources 6 in consulting with Dr. Li and having him prepare his expert report in this matter. The Court 7 is also sympathetic to Plaintiff’s counsel’s point, raised during oral argument, that it is 8 difficult to find an expert with such a long and public history supporting the opinions 9 rendered in the case, a factor juries often consider favorably in assessing an expert 10 witness’s credibility. 11 However, considerations of judicial integrity tip the balance in favor of 12 disqualification. On the one hand, the Court harbors misgivings that granting Defendants’ 13 Motion raises legitimate concerns about condoning possible gamesmanship, despite 14 Defendants’ counsel’s assurances to the contrary during the hearing. On the other hand, 15 however, the Court has serious concerns that any outcome other than disqualification 16 would have a deleterious impact on judicial integrity given that two other courts already 17 have disqualified Dr. Li from serving as a plaintiff’s expert witness in cases remanded from 18 the same MDL. In light of the Court’s findings that a confidential relationship existed 19 between DePuy and Dr. Li, and that confidential information relevant to this litigation was 20 almost certainly exchanged with him, the Court must endeavor to prevent any appearance 21 of an expert “switching sides” in the same litigation and, advertently or not, potentially 22 disclosing information that could provide the other side with a litigation advantage. 23 Accordingly, the Court finds, on balance, that disqualification is the appropriate course of 24 action here, given the unique circumstances of this case in the MDL context. See Am. 25 Empire Surplus, 484 F. Supp. 2d at 857 (disqualifying expert despite the fact that testimony 26 was “clear that no confidential information was provided to [the expert]” because “the 27 unique facts of this case make disqualification appropriate” where permitting expert to 28 /// 19 22-CV-2075 JLS (SBC) 1 testify would “undermine[] public confidence in the integrity and fairness of the judicial 2 process”). 3 CONCLUSION 4 In light of the foregoing, the Court GRANTS Defendants’ Motion to Disqualify 5 Plaintiff’s Expert Stephen Li (ECF No. 44). On or before July 24, 2023, the Parties 6 SHALL MEET AND CONFER concerning, and SHALL FILE, a proposed scheduling 7 order of revised dates and deadlines in light of Plaintiff’s need to obtain a new expert. 8 Further, on or before August 14, 2023, the Parties SHALL MEET AND CONFER 9 concerning and SHALL FILE a Joint Status Report, not to exceed ten (10) pages in length, 10 apprising the Court of which pending Daubert motions (ECF Nos. 40 & 41) require 11 rebriefing under Ninth Circuit law and the reasons therefor. 12 13 IT IS SO ORDERED. Dated: July 14, 2023 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 22-CV-2075 JLS (SBC)
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