Pardon the spasm of self-pity, but throughout our legal career we have always felt as if we were on the side that faced higher standards. Not that we're complaining … well, actually we are complaining. When prosecuting cases on behalf of the United States of America (a great client, by the way, and the work was steady because people keep committing crimes), we were required to provide discovery materials of anything that might conceivably be relevant to the accused's defense, and to do so promptly and without question. Some judges insisted that we show up at the first hearing with a shopping cart full of grand jury transcripts, FBI reports (called 302's), etc. Evidence that might help a criminal defendant is called Brady material (after a SCOTUS case), and there is no better way for an AUSA to land in hot water than to fail to produce Brady material. Think of the Ted Stevens debacle. It soon became clear to us that the smart move was to adopt an open file policy. If there were materials that could not possibly help the defendant, who cares? Turn it over. And if the material might help the defendant, then it simply must be produced. We would probably hold back the home address of the confidential informant, but everything else was handed over. Given the usual surplusage of evidence against the crook, er, the accused, the discovery was usually handed over with a grin. By contrast, criminal defense lawyers think they should not have to produce any discovery. They act as if defense discovery is a violation of the right against self-incrimination. And yet, the Fed. R. Crim. Procedure does, indeed, say that criminal defendants must produce discovery, including notice of an alibi defense. Still, on those very rare occasions when criminal defendants actually did deliver any discovery, we felt like climbing to the roof of the federal building and shooting off fireworks.
It's not so different in the mass tort world. As defense lawyers, we are expected to hand the keys to the company over to the other side. We end up producing files, emails, databases, etc, all at costs of millions of dollars, and without our client being found liable for anything. But plaintiff lawyers tend to think that once they execute the medical record authorizations, they are done. It is woefully asymmetrical discovery. It is unfair, it becomes a settlement pressure point, and it distorts the whole civil justice process. We have heard some plaintiff lawyers say that anything beyond medical records and some bare bones depositions would be an undue hardship. And if plaintiff discovery is considered a rude intrusion, summary judgment is considered an affront to the cosmos, or, at minimum, a violation of the constitutional right to a jury trial. That, of course, is utter rubbish. The system of discovery, whatever else one might say about it, is designed to avoid trial by ambush. But plaintiff lawyers are quite happy to engage in as much ambushing as they can get away with, especially with their expert witnesses. The issue is whether the court will let them get away with it.
In a recent case, Baldonado v. Wyeth, 2012 U.S. Dist. LEXIS 98859 (N.D. Ill. July 17, 2012), the court did not allow the plaintiffs to get away with it. The plaintiff appeared to be playing a shell game with her expert witnesses, delaying as long as possible revealing which expert would testify as to what. That maneuver is not so rare. In those jurisdictions (including federal courts) where parties must supply expert reports and submit to expert depositions, there is often very little match among the expert report, the expert deposition, and the expert's trial testimony. (Our home jurisdiction of Pennsylvania is an exception. It does not provide for expert depositions, and the courts require that the expert's trial testimony come from within the four corners of the expert report.) We are cynical enough to think that the 'evolution' in an expert's opinion is by design, though it might also arise from sloppy expert work, where the original report was thrown together with only a tiny bit of thought and time (and, needless to say, expense), with the opinions being reshaped to fit the inconvenient facts. Nevertheless, there has to be a moment when the plaintiff must once and for all declare what exactly her experts are saying. Certainly all cards should be on the table for summary judgment.
In Baldonado, the defendant filed a motion for summary judgment arguing that a product liability design defect claim should be dismissed because the plaintiff had not adduced evidence of a safer alternative design. The plaintiff opposed the motion and cited the opinions of two experts, Drs. Austin and Tilley. Importantly, the plaintiff's summary judgment opposition did not rely upon or discuss the opinions of another of her experts, the ubiquitous Dr. Suzanne Parisian. After the summary judgment motion was fully briefed, the plaintiff withdrew Drs. Austin and Tilley as experts. That is interesting. We had nothing to do with the case, but if we did, we would have read that withdrawal as the raising of a white flag on the design defect issue. That is clearly the way the federal judge read things. As the judge observed, where the alleged defect is complex (as it was in that case) there must be expert testimony to get a case to the jury. Baldonado, 2012 U.S. Dist. LEXIS 98859 at *4. The judge ordered the plaintiff to state whether, in light of the absence of expert evidence, the plaintiff still intended to pursue her design defect claim. Why yes, responded the plaintiff, because Dr. Parisian could testify about safer alternatives. Wait a minute, said the defendant, the plaintiff waived reliance on Dr. Parisian for the purposes of defeating summary judgment.
Most of you have probably heard of Dr. Parisian before. It hardly feels like a genuine mass tort case without Dr. Parisian lurking within it somewhere. Earlier, we referred to Dr. Parisian as ubiquitous. She is apparently also omniscient, as she has offered opinions in a myriad of cases on a myriad of issues involving drugs and devices. A Parisian expert report is usually a magnum opus. It will be thick and dense. Some Parisian expert reports have had a mass so great as not to permit light to escape from them. They are expert opinion black holes. And yet with all that length, density, and just plain old stuff, there is a better than even chance that at trial Dr. Parisian will sit down in the witness box, smile, and render testimony that has very little relation to what is in the expert report. Some people just love surprises. Or think of Chekhov's gun. We would like to think that more of you have heard of the great Russian playwright Anton Chekhov than the great plaintiff expert Dr. Suzanne Parisian. The possibility that such is not so grieves us. Anyway, Chekhov once said that if a playwright mentions a gun in the first act, that gun must be fired in the last act. Maybe it's like that with Dr. Parisian. Once she is mentioned in the case, she has to be used later in the case, preferably at trial in front of a woozy jury. Call her Chekhov's expert.
In Baldonado, the plaintiff argued that simply naming Dr. Parisian as an expert should have kept her in the game to talk about a safer alternative (or, presumably, any topic that might come up), and it should not matter that the plaintiff had not mentioned Dr. Parisian in her summary judgment opposition papers. Mercifully, the federal judge rejected the plaintiff's arguments. Seventh Circuit law stresses that summary judgment "is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit , when a party must show what evidence it has that would convince a trier of fact to accept its version of the events. Id. at *6 (quoting another N.D. Ill. case quoting the Seventh Circuit - so if you can use this case, maybe you can provoke a court into quoting a quote of a quote of a quote. Aim high!). A party opposing summary judgment does not have the right to withhold evidence until trial, or until a surreply. Id. at *8. Not surprisingly, the plaintiff headed for the last resort of someone who violated a clear rule, and argued lack of prejudice to the other side. After all, Dr. Parisian had been mentioned, and everybody knows that Dr. Parisian can opine on everything. Like Chekhov's gun, by now we all know that the Dr. Parisian trigger will be pulled before the curtain falls. But a trial is not a play, or at least it is not supposed to be. The court saw through the gamesmanship, and apparently did not like it one bit. The case had been pending for eight years, and the plaintiff made a strategic decision about which experts to name, which experts to rely upon to oppose summary judgment, and which experts to withdraw. "Plaintiff's manner of proceeding in this case has included a 'pattern of withdrawing expert witnesses shortly before their scheduled hearing dates [resulting in] a waste of unnecessary resources in preparing for the hearings.'" Id. at *9, quoting an earlier order in the case. The plaintiff might gripe about unfairness, but "any perceived unfairness was of Plaintiff's own making." Id. Without the belatedly-offered Dr. Parisian expert testimony, the plaintiff lacked any admissible expert testimony on safer alternative design. Accordingly, the court granted partial summary judgment and dismissed the design defect claim.
We are happy to see a court shut down the plaintiff's expert shell game. Just like in those shell games on Manhattan street corners, the expert shell game is a cheat.