United States District Court, W.D. New York
DECISION & ORDER
MARIAN W. PAYSON, Magistrate Judge.
Plaintiffs Robert Coene ("Coene") and Valerie Coene have sued defendant 3M Company ("3M") asserting a variety of state law claims sounding in products liability, breach of warranty, negligence and fraud arising out of Coene's alleged occupational exposure to silica dust during his employment. (Docket # 1). According to Coene, 3M designed and manufactured respirators, which it distributed and sold to Coene's employer, Eastman Kodak Company ("Kodak"). ( Id. at ¶ 19). Coene contends that he used 3M respirators during his employment and that the respirators failed to prevent his exposure to silica dust, causing him to develop silicosis. ( Id. at ¶¶ 20-23).
Currently pending before this Court are several motions filed by both parties. First, 3M filed a motion to strike an opinion from Coene's exposure expert, William Meggs ("Meggs"), MD, PhD, on the grounds that the opinion was untimely. (Docket # 62). In response, Coene filed a cross-motion seeking sanctions. (Docket # 63). Also pending before the Court is 3M's motion to strike Coene's sur-replies. (Docket # 84).
In addition, Coene has moved to preclude the testimony of 3M's toxicologist, John Whysner ("Whysner"), MD, PhD, on the grounds that he is not qualified to provide his opinion testimony and that his proposed testimony does not fit the facts of the case. (Docket # 77). The final motion pending before the Court is Coene's motion to extend the dispositive motion deadline. (Docket # 103).
I. 3M's Motions to Strike Meggs's Opinion and Coene's Sur-Replies and Coene's Motions for Sanctions and to Extend the Discovery Deadline
A. Factual Background
Resolution of several of the pending motions requires review of the chronology of various events occurring during the litigation of this lawsuit. Accordingly, the Court will recite the relevant history of this litigation.
On November 18, 2011, 3M served its initial disclosures. (Docket # 63-3). In its disclosures, 3M identified one witness with potentially discoverable information. ( Id. at 2). That witness was Alan R. Johnston. ( Id. ). In its disclosures, 3M noted that it was in the preliminary stages of identifying other individuals likely to have discoverable information and would supplement its disclosure. ( Id. ).
On November 6, 2012, this Court issued an amended scheduling order that required, inter alia, Coene to identify his experts and to provide their expert reports on or before March 4, 2013. (Docket # 47). The order also required 3M to identify its experts and provide their reports on or before May 6, 2013. ( Id. at ¶ 2). Expert discovery, including depositions, was to be completed by July 1, 2013. ( Id. at ¶¶ 1-2).
On March 4, 2013, Coene served his expert disclosure in accordance with the scheduling order. (Docket # 67-2). That disclosure, in relevant part, disclosed Meggs as an expert who would testify regarding Coene's "diagnosis of silicosis and its causes." ( Id. at 25). According to the disclosure, Meggs would testify that the scarring in Coene's lungs was due to "occupational exposure to dusts while operating a laser sintering machine and/or abrasive blast cabinet at Eastman Kodak." ( Id. ). The disclosure further provided that Coene worked with a glass material that when heated transformed into respirable crystalline silica and that Coene may also have been exposed to crystalline silica when operating an "abrasive blast cabinet which may have used silica sand." ( Id. ).
The disclosure also disclosed Katherine Root ("Root"), a senior industrial hygienist at Kodak. ( Id. ). According to the disclosure, Root was presently or previously a member of the industrial hygiene staff at Kodak who might testify regarding industrial hygiene reports and surveys performed at Kodak and the policies and procedures at Kodak for plant safety and enforcement of a respiratory protection program. ( Id. ).
According to 3M, Coene failed to provide Meggs's expert report on March 4, 2013, in accordance with the scheduling order. (Docket ## 62 at 2; 62-1 at 2, 4). Instead, Coene produced Meggs's expert report on March 28, 2013. ( Id. ). In the report, Meggs opined that Coene was exposed to and inhaled silicon dioxide crystals, which caused silicosis. (Docket # 62-1 at 4-6). According to Meggs, the silicon dioxide crystals were formed when glass was heated during the laser sintering process. ( Id. ). Meggs's report does not mention the "abrasive blast cabinet." ( Id. ).
On May 31, 2013, upon the joint proposal of the parties, this Court issued an amended scheduling order that required 3M to identify its experts and provide their written reports by June 20, 2013. (Docket # 53). In addition, the order provided that all fact discovery and expert discovery had to be completed by July 31, 2013. ( Id. ). On June 19, 2013, 3M provided Coene the report of Whysner, its expert. (Docket # 64 at ¶ 5). On the seventeenth page of the report, Whysner stated that neither sand nor silica containing materials were used in the "sandblasting" process that Coene performed at Kodak. (Docket # 64-3 at 18). In a footnote to that statement, Whysner cited the affidavit of Root (hereinafter, the "Root Affidavit"). ( Id. ). The Root Affidavit was not attached to Whysner's report, nor was it provided to Coene along with the report or included in the list of sources Whysner relied upon in forming his opinion. ( Id. at 4-5; Docket # 67 at 3-4).
On July 17, 2013, counsel for Coene contacted counsel for 3M via email to provide dates for the depositions of Meggs and Jeffrey Marshick ("Marshick"), MD, Coene's treating physician. (Docket # 118-1 at 2-3). In the email, counsel for Coene also indicated that he would need to "line up [3M's] guys as well" and that he needed to "take 3M's guys too." ( Id. ). Counsel for 3M responded on July 31, 2013 to accept one of the proffered dates to depose Meggs. ( Id. at 1-2). In the email, counsel for 3M also indicated that she would "be getting dates from Spencer and Weisler and will provide you with their availability in the next day or two." ( Id. ). Counsel for 3M provided counsel for Coene with available dates for the depositions of Spencer and Whysner on August 1, 2013. ( Id. at 1).
On August 19, 2013, this Court issued an Amended Scheduling Order setting October 15, 2013 as the deadline for completion of fact and expert discovery. (Docket # 58). In addition, the order provided November 15, 2013 as the deadline for filing dispositive motions. ( Id. ). The order provided that any request for an extension must be made "by written application, made prior to the cutoff date, showing good cause for the extension." ( Id. ). On August 21, 2013, Meggs was deposed by counsel for 3M. (Docket # 64-2 at 2). During his deposition, Meggs testified that he had completed his review of the relevant records and literature and that he was not aware of and had not requested any additional information necessary to render his opinion. (Docket # 62-1 at 12). According to Meggs, Coene was exposed to amorphous silica when he was employed at Kodak. ( Id. at 10). Meggs testified that the amorphous silica was created when glass, which contained crystalline silica, was manipulated through laser sintering, heating and sandblasting. (Docket ## 62-1 at 10; 64-2 at 9-10; 75-1 at 2-3, 5-6, 8-9). Meggs testified that he had not reviewed any documents from Kodak and specifically had not reviewed "an affidavit from a Kodak Industrial Hygienist that said [Kodak] didn't have any silica in Mr. Coene's workplace." (Docket # 64-2 at 6). In addition, Meggs agreed with 3M's attorney that all of his opinions concerning Coene were discussed during the course of the deposition. (Docket # 62-1 at 14).
On August 27, 2013, Coene took the deposition of Whysner. (Docket # 63-1 at 1). During the deposition, 3M provided Whysner's entire file to Coene, including the Root Affidavit. (Docket # 64 at ¶ 9). During the deposition, the Root Affidavit was marked as an exhibit, and Coene's attorney questioned Whysner about the affidavit. (Docket # 84-8 at 3-4). The Root Affidavit was executed on June 24, 2013 and states, in relevant part, "[c]rystalline silica was not used in the Plastic Fabrication, the Model Shop and the Rapid Prototype Center at the Elmgrove Plant, B-4, which are the areas in which [Coene] worked while employed at Kodak." (Docket # 63-2 at 1).
According to 3M, on September 19, 2013, Coene's attorney forwarded to 3M's counsel a letter written by Meggs dated September 17, 2013 (hereinafter, the "Second Meggs Report"). (Docket ## 62 at 3; 62-1 at 16-17). The letter was written by Meggs "in follow-up to [his] report and earlier deposition" and "[i]n light of the questioning by defense counsel regarding current studies relating to occupational disease in laser sintering." (Docket # 62-1 at 16). In the letter, Meggs states that upon review of Coene's deposition and two articles published in 1997 and 1999, he believed that Coene was also exposed to nylon and resin dust while working at Kodak. ( Id. ). Meggs opined that "nylon and resin dust powder was a contributing factor to [Coene's] interstitial fibrosis." ( Id. at 17).
On September 24, 2013, 3M's counsel informed counsel for Coene that 3M considered the Second Meggs Report to be an improper attempt to alter Meggs's expert opinion and requested that it be withdrawn. (Docket # 64-6 at 2). In addition, counsel for 3M stated that if the report was not withdrawn by September 25, 2013, the upcoming depositions of plaintiff's treating physician, Marshick, and John Spencer ("Spencer"), CIH, CSP, one of 3M's expert witnesses, would be adjourned. ( Id. at 2-4; Docket # 62 at 3).
In response, counsel for Coene stated that after he received and reviewed a copy of the transcript for Whysner's deposition, he gave Meggs a copy of the Root Affidavit. (Docket # 63-1). Counsel for Coene contended that the Root Affidavit is "obviously a very important item of evidence" that "may remove the possibility that silica sand was used in the blast cabinet at Kodak." ( Id. ). According to Coene's counsel, the affidavit was signed by an individual who was not disclosed in 3M's disclosures. ( Id. ). After reviewing the Root Affidavit, Meggs "decided to do additional research on other exposures" and provided a supplemental report. ( Id. ).
On September 25, 2013, 3M filed its pending motion to strike the Second Meggs Report and for a protective order seeking to adjourn the depositions of Marshick and Spencer, which were scheduled to proceed on September 27, 2013. (Docket # 62). The Court adjourned the depositions pending resolution of the motion to strike. On September 26, 2013, Coene opposed the motion to strike and cross-moved for sanctions based upon 3M's failure to supplement its initial disclosures to identify Root as a potential witness. (Docket # 63). Coene did not file a notice of motion in connection with his cross-motion. Accordingly, the docket does not reflect a pending motion for sanctions, and the Court did not issue a motion scheduling order with respect to the cross-motion.
On September 27, 2013, 3M filed a reply in further support of its motion to strike and in response to Coene's cross-motion for sanctions. (Docket # 64). On September 30, 2013, Coene filed a response to 3M's reply. (Docket # 67). At the end of the response, Coene requested that the Court extend the discovery deadlines in order to permit the parties to complete depositions of treating physicians, expert witnesses or other witnesses. ( Id. at 5). On October 15, 2013, Coene filed a supplemental response to 3M's reply. (Docket # 75). This filing prompted 3M's motion to strike Coene's September 30, 2013 and October 15, 2013 filings on the grounds that they were not authorized under the applicable rules and because Coene had not sought leave of the Court before filing them. (Docket # 84). In October 2013, Coene and 3M each filed motions for summary judgment. (Docket ## 68, 71). Finally, on November 13, 2013, Coene filed the pending motion seeking an extension of the dispositive motion deadline. (Docket # 103).
The Court held oral argument on several of the motions on October 29, 2013. (Docket # 99). During oral argument, the Court requested that 3M's attorney submit an affidavit providing a timeline of her efforts to obtain the Root Affidavit. (Docket # 102 at 16-17, 59-60). On October 29, 2013, that affidavit was provided to the Court. (Docket # 94-2).
According to the affidavit, counsel for 3M contacted outside counsel for Kodak in early February 2013 and requested an affidavit from Kodak for use in connection with an anticipated summary judgment motion attesting that crystalline silica was not used at Kodak while Coene was employed there. ( Id. at ¶¶ 4-5). On February 5, 2013, counsel for 3M received a draft affidavit from Kodak's outside counsel. ( Id. at ¶ 6). Kodak's outside counsel indicated to counsel for 3M that the affidavit was a draft and had not been approved by Kodak's legal department, which was required to finalize the affidavit for use in connection with its summary judgment motion. ( Id. ).
On March 25, 2013, 3M's counsel communicated with Kodak's outside counsel for the purpose of informing Kodak's outside counsel that 3M was not yet ready to file a summary judgment motion. ( Id. at ¶ 7). 3M's counsel contacted Kodak's outside counsel on June 17, 2013, and requested permission to use the draft affidavit. ( Id. at ¶ 8). Kodak's outside counsel indicated that the affidavit needed to be reviewed and approved by Kodak. ( Id. ). On June 24, 2013, Kodak's outside counsel forwarded counsel for 3M a scanned copy of the executed affidavit. ( Id. at ¶ 9). Counsel for 3M represented that she has never communicated with Root, did not select Root as the affiant and did not participate in the drafting or revising of the affidavit. ( Id. at ¶ 10).
After the oral argument on October 29, 2013, counsel for Coene sent two letters to the Court, one dated October 30, 2013, and the other dated November 1, 2013, each of which sought to supplement the record before the Court. By this Court's count, these letters are Coene's third and fourth sur-replies.
B. 3M's Motion to Strike Coene's Sur-Replies
I turn first to 3M's motion to strike the two sur-replies filed by Coene or, in the alternative, for leave to file a rebuttal to Coene's sur-replies. (Docket # 84). Rule 7 of the Local Rules of Civil Procedure for the Western District of New York governs motion practice. See W.D.N.Y. Local Rule 7. That rule contemplates the filing of an initial motion, the non-movant's response and, if specifically requested in the notice of motion, a reply by the moving party. See id. The rule specifically prohibits the filing of a sur-reply without leave of the Court. See W.D.N.Y. Local Rule 7(a)(6). This Court's customary practice is to issue a motion scheduling order after a motion is filed providing deadlines for these filings. In this case, however, the parties filed their response and reply within a matter of days, before the Court issued a scheduling order to govern the briefing. (Docket ## 62, 63, 64, 66).
After the matter was fully briefed, and without seeking leave of the Court, on September 30, 2013, Coene filed a document purporting to be his response to 3M's reply. (Docket # 67). On October 15, 2013, again without seeking leave of the Court, Coene filed a document purporting to be a supplemental response to 3M's reply. (Docket # 75). In fact, Coene's September and October filings were not Coene's only attempts to improperly supplement the record on this motion. As recounted above, Coene sent two letters to this Court seeking to supplement the record after oral argument.
This Court has spent an inordinate amount of time reviewing the various filings, including the improperly filed sur-replies. Having expended judicial time and resources doing so, this Court will exercise its discretion to consider the information contained in the two sur-replies (Docket ## 67, 75) and in 3M's rebuttal (Docket # 84). See Navarrete De Pedrero v. Schweizer Aircraft Corp., 635 F.Supp.2d 251, 258-59 (W.D.N.Y. 2009) ("[m]otions for leave to file sur-reply information and to strike are subject to the sound discretion of the court"). The Court will not consider, however, the letters submitted by Coene following the oral argument on the motion. Coene's counsel is cautioned to comply with the district's local rules and reminded that any future violations may result in sanctions.
C. 3M's Motion to Strike the Second Meggs Report
1. The Parties' Positions
I turn next to 3M's motion to strike the Second Meggs Report. 3M contends that the Second Meggs Report contains a new opinion that was not timely disclosed in accordance with this Court's scheduling order setting a deadline of March 4, 2013 for Coene's expert disclosures. (Docket # 62 at 1-2). According to 3M, Meggs previously opined that Coene was exposed to silica while working at Kodak and now suffers from silicosis. ( Id. at 5). Meggs opined that the respirable silica was created during the laser sintering process involving glass material. ( Id. ). 3M maintains that Meggs's deposition testimony was consistent with his report and that Meggs testified that he did not have any other opinions concerning Coene. ( Id. )
According to 3M, the Second Meggs Report opines, for the first time, that Coene was also exposed to nylon and resin and that Coene suffers from interstitial fibrosis, not silicosis. ( Id. ). 3M contends that Meggs's new opinion cannot be characterized as either a supplemental opinion or a rebuttal opinion. ( Id. at 6-8). Specifically, it is not a supplemental opinion because it is not based upon any new information; rather, it relies upon information, including Coene's deposition testimony and scientific articles, that predate the issuance of Meggs's original report. ( Id. at 6). 3M further maintains that the report is not a rebuttal report because it was not filed within the thirty-day deadline provided by Rule 26(a)(2)(D. the Federal Rules of Civil Procedure and, in any event, does not concern the same subject matter of any of 3M's expert opinions. ( Id. at 6-7).
3M contends that it will suffer prejudice if Meggs is permitted to testify about the opinion contained in his second report. ( Id. at 8-9). As 3M argues, it has conducted discovery based upon Coene's assertions that he was exposed to silica and that he suffered from silicosis. ( Id. ). According to 3M, it has not prepared to defend against a claim of "interstitial fibrosis" caused by exposure to nylon and resin and would have to "redo" much of its preparation in order to do so. ( Id. ). In addition, 3M has already deposed Meggs and has not had an opportunity to examine him on his new opinion. ( Id. ).
Coene responds that the Second Meggs Report is a permissible supplemental report within the meaning of Rule 26(e)(2). (Docket # 63 at 4-5). According to Coene, 3M wrongfully withheld the Root Affidavit and failed to supplement its initial disclosures to identify Root as a witness upon whom it would rely to support its defense. ( Id. ). Coene contends that the information contained in the Root Affidavit suggests that silica sand was not used in the sandblasting process at Kodak. ( Id. at 3). In his original report, Meggs opined that Coene was exposed to silica during the sandblasting process; thus, the information in the Root Affidavit directly challenges Meggs's opinion. ( Id. at 3 n.1). According to Coene, the newly-disclosed information in the Root Affidavit led Meggs to consider whether any other dusts at Kodak could have caused Coene's injuries. ( Id. at 3). In other words, Coene maintains, the late disclosure of the new information justifies Meggs's supplemental opinion. ( Id. ).
In reply, 3M contends that the Root Affidavit did not communicate any new information to Coene. (Docket # 64 at 5). According to 3M, the Root Affidavit merely confirmed information that Meggs already knew - that there was no evidence that crystalline silica was used at Kodak while Coene worked there. ( Id. at 4). Specifically, 3M notes that Meggs testified during his deposition that he had not reviewed any records from Kodak suggesting that crystalline silica was present in Coene's workplace. ( Id. at 5). Indeed, Coene testified during his deposition that he did not believe that the materials he worked with contained ...