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Harry D. Weist and Diane M. Weist, His Spouse v. E.I. Dupont De Nemours and Company

March 31, 2011

HARRY D. WEIST AND DIANE M. WEIST, HIS SPOUSE, PLAINTIFFS,
v.
E.I. DUPONT DE NEMOURS AND COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #4. Following Chief Judge Arcara's recusal, the matter was transferred to the Hon. William M. Skretny. Dkt. #64.

Currently before the Court is defendant E.I. DuPont De Nemours and Company's ("DuPont's"), motion to strike the June 16, 2010, expert report of Frederick J. Stone, M.D. and to permit a supplemental deposition of Dr. Stone. Dkt. #130. For the following reasons, defendant's motion is granted in part.

BACKGROUND

Plaintiff Harry D. Weist has been employed at Goodyear Tire and Rubber Company ("Goodyear"), since December 21, 1977. Dkt. #1, ¶ 7. During the period of 1981 through 1990, he alleges workplace exposure to ortho-toluidine, a chemical which was manufactured and distributed to Goodyear by the defendants. Dkt. #1, ¶ ¶ 7-8; Dkt. #22-2, ¶ 1. Plaintiffs allege that this exposure caused Harry D. Weist to suffer personal injuries, including bladder cancer, and that his wife, Diane M. Weist, suffers loss of consortium. Dkt. #1, ¶¶ 9 & 24.

Plaintiffs served an initial expert report from Frederick J. Stone, M.D., a pathologist, dated March 14, 2006, which opined, as relevant to the instant motion, that plaintiff's biopsy specimens revealed "a papillary transitional cell carcinoma, grade I of III." Dkt. #130-3. Plaintiffs served a rebuttal report from Dr. Stone on March 5, 2007, challenging defendant's expert report from John L. O'Donoghue. Dkt. #130-4. Dr. Stone was deposed on September 19, 2007. Dkt. #130-2, ¶ 3.

On March 16, 2009, plaintiffs served a supplemental report from Dr. Stone, dated November 8, 2008, which states, in full:

At your request, I have again reviewed the two slides and reports from Mount St. Mary's Hospital in Lewiston, New York of specimens in the above captioned case.

In the current WHO/ISUP classification, this tumor would be classified as a non-invasive, low grade, papiliary urothelial carcinoma.

I will convey to you via e-mail to JPEG files labeled Weist1 and Weist2 representing photomicrographs from these slides.

Dkt. #130-6. During the course of a status conference with the Court on April 24, 2009, the Court determined that defendants would be permitted to depose Dr. Stone concerning the supplemental report no later than August 21, 2009 and to name a defense pathologist no later than August 21, 2009, who could be deposed no later than September 30, 2009. Dkt. #130-2, ¶ 5. In response, plaintiffs' counsel withdrew Dr. Stone's supplemental report. Dkt. #130-2, ¶ 5. At the Court's direction, plaintiffs' counsel confirmed, by letter dated April 25, 2009, that they had withdrawn the November 8, 2008 supplemental report of Plaintiffs' expert pathologist Frederick J. Stone, M.D. and that report shall remain withdrawn for the remainder of this case.

With this withdrawal, it is my understanding that no further deposition of Dr. Stone will be permitted, and that the defendants will not be permitted to name a rebuttal pathologist and they will not be permitted to serve a report from a rebuttal pathologist.

Dkt. #130-9. In response, DuPont's counsel wrote plaintiffs' counsel to confirm that plaintiffs agreed "that Dr. Stone will not testify about any of his activities described in his November 8, 2008 report; that Dr. Stone will not testify concerning the classification of any tumor under the current WHO/ISUP classification scheme; and that Dr. Stone will not testify concerning the photomicrographs referred to in his [report dated] November 8, 2008." Dkt. #130-9.

The Court issued an Amended Case Management Order dated April 12, 2010 permitting plaintiff to "supplement the expert report of Dr. Markowitz no later than May 7, 2010" and permitting defendants to "supplement their experts' reports no later than June 4, 2010," with depositions of experts with ...


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