United States District Court, E.D. Louisiana
ORDER & REASONS
CARL J. BARBIER, District Judge.
Before the Court is a Motion to Strike Certain Opinions of Dr. Stephen Terry Kraus Which Are Outside the Scope of Opinions Offered by Dr. Samuel Hammar (Rec. Doc. 511) filed by Defendants Northrop Grumman Shipbuilding, Inc. (n/k/a Huntington Ingalls Incorporated, f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc., f/k/a Avondale Marine Ways, Inc.) ("Avondale'), Albert L. Bossier, Jr., and J. Melton Garrett, and OneBeacon America Insurance Company and American Employers Insurance Company in their capacities as alleged insurers of Avondale's alleged executive officers (collectively the "Avondale Interests"). Additionally, the motion filed by the Avondale Interests was adopted by Defendants the MacCarty Corporation ("McCarty") (Rec. Doc. 514); Eagle, Inc., ("Eagle") (Rec. Doc. 515); Continental Insurance Company ("Continental") and Maryland Casualty Company ("Maryland") (Rec. Doc. 523); and Bayer CropScience, Inc., as Successor to Rhone-Poulene AG Company, f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company ("Amchem"), who also filed a Supplemental Memorandum (Rec. Doc. 519). Defendants OneBeacon America Insurance Company and American Employers Insurance Company, as alleged insurers of Eagle, Inc., filed a motion to strike that adopts the Avondale Interests' motion as well. (Rec. Doc. 516) Plaintiffs opposed the foregoing motions (Rec. Doc. 533), and the Avondale Interests filed a motion for leave to file a reply to Plaintiffs' opposition. (Rec. Doc. 539) Having considered the motions and legal memoranda, the record, and the applicable law, the Court finds that the motions to strike should be GRANTED IN PART and DENIED IN PART.
FACTS AND PROCEDURAL BACKGROUND
The Court is familiar with the facts of the case and so will provide only a brief recitation here. This action arises from the death of Sally Gros Vedros ("Vedros") due to mesothelioma. Alton Gros, Vedros's father, worked at Avondale as a welder from 1943 to 1976, and Vedros claims to have spent many years washing her father's work clothes, which allegedly resulted in Vedros's secondary exposure to insulation dust containing asbestos. Vedros also worked at Avondale from 1960 to 1963 in the purchasing department, and she claims that she was directly exposed to asbestos while she worked at Avondale. Before her death, Vedros filed suit against many Defendants, and after her death, her children joined the suit as Plaintiffs. Although Plaintiffs filed suit in state court, Defendants removed the matter to the United States District Court for the Eastern District of Louisiana on May 20, 2011. The matter was then transferred to the Eastern District of Pennsylvania for inclusion in MDL No. 875, and subsequently remanded to this Court on March 21, 2013.
Since that time, the Court has continued trial of this matter on a number of occasions for various reasons. Accordingly, the Court has issued several Scheduling Orders. Plaintiffs timely supplied the expert report of Dr. Samuel Hammar on February 17, 2012, in accordance with a previous scheduling order. On April 7, 2015, however, Dr. Hammar announced that he is unavailable to provide deposition or trial testimony due to medical concerns. (Rec. Doc. 406-5) Under the current Scheduling Order, trial is set for August 10, 2015. (Rec. Doc. 386)
Because Dr. Hammar is unable to provide deposition or trial testimony, Plaintiffs sought permission to obtain an expert report from Dr. Kraus or Dr. Kradin or both to replace that of Dr. Hammar. (Rec. Doc. 406). Defendants generally did not oppose Plaintiffs' request to obtain a replacement medical expert. They argued, however, that the Court should not permit Plaintiffs to replace one expert with two. (Rec. Docs. 421, 423, 426) Additionally, Defendant Westinghouse argued that the Court should restrict the scope of the replacement report to that of the original report from Dr. Hammar to prevent Defendants from having to secure responses to any additional testimony from their experts. (Rec. Doc. 423) Defendant Avondale objected to Plaintiffs' use of Dr. Kraus as an expert and sought to have the Court require Plaintiffs to employ Dr. Kradin instead. (Rec. Doc. 426) The Court agreed with Defendants that Plaintiffs should not replace Dr. Hammar with two experts. In allowing the substitution, the Court further ordered that "Plaintiffs shall limit the scope of the replacement testimony to that of Dr. Hammar as much as possible." (Rec. Doc. 435, p. 5)
On July 10, 2015, the Avondale Interests filed the instant Motion to Strike Certain Opinions of Dr. Stephen Terry Kraus Which Are Outside the Scope of Opinions Offered by Dr. Samuel Hammar (Rec. Doc. 511), which a number of Defendants subsequently adopted. (Rec. Docs. 514, 515, 519, 523) On July 14, 2015, Defendants OneBeacon America Insurance Company and American Employers Insurance Company filed a separate motion to strike that adopts the Avondale Interests' motion. (Rec. Doc. 516) Plaintiffs opposed these motions on July 21, 2015. (Rec. Doc. 533)
Defendants argue that many of Dr. Kraus's opinions are contrary to or concern matters not addressed by Dr. Hammar. Specifically, Defendants take issue with at least nine of Dr. Kraus's opinions or sets of opinions: (1) No. 5; (2) Nos. 15-18, 20; (3) No. 23; (4) No. 26; (5) No. 30; (6) Nos. 21, 22, 24, 25; (7) No. 33; (8) No. 35; and (9) Nos. 37, 38. Defendants ask the Court to strike these opinions because they go beyond the scope of Dr. Hammar's expert report and testimony and deviate in such a way that unfairly prejudices the Defendants.
In its Supplemental Memorandum, Amchem argues that any of Dr. Kraus's causation opinions based upon the deposition testimony of either Lori Vedros Kravet or Bobby S. Jambon exceed the scope of Dr. Hammar's opinions because Dr. Hammar did not review those two depositions in preparation of his report. Additionally, Amchem argues that Dr. Kraus's "Rebuttal Report to Dr. Stockman" (Rec. Doc. 519-3) should be stricken in its entirety because Dr. Stockman is no longer an expert in this matter and because Dr. Kraus's rebuttal report was untimely, seeks to offer additional causation opinions, goes beyond the scope of Dr. Stockman's report, and goes beyond the scope of the opinions offered by Dr. Hammar.
In opposition, Plaintiffs generally argue that they have limited the scope of Dr. Kraus's replacement testimony to that of Dr. Hammar "as much as possible." Although Dr. Kraus's report may include additional references and support for his opinions, and the fact that Dr. Kraus "may have presented the details of the articles differently in his report from Dr. Hammar, " Plaintiffs argue that Dr. Kraus's opinions are "not outside the scope of Dr. Hammar's opinions and are actually in line with Dr. Hammar's opinions." (Rec. Doc. 533, pp. 4, 7-8)
This Court recently considered a similar motion filed by Plaintiffs seeking to strike the opinions of a substitute expert, Dr. Gail Stockman, that were outside the scope of opinions offered by the original expert, Dr. Robert Sawyer. (Rec. Doc. 477) Plaintiffs argued, just as the Defendants do now, that certain opinions of the substitute expert deviated from those of the original expert in a way that unfairly prejudices Plaintiffs. The Court agreed and, striking those opinions, stated that "[t]he decision to allow a substitute expert to testify was based on the understanding that the substitute report and testimony would not go beyond the original expert's report and testimony and that the substitute would testify to the same conclusions." (Rec. Doc. 506, p. 6) The same applies here.
A. Arguments Raised by the Avondale Interests
1. Kraus Opinion No. 5
In Opinion No. 5, Dr. Kraus opines that "Vedros also had occupational exposure at Avondale, where she worked in an office." (Rec. Doc. 511-3, p. 1) Defendants argue that Dr. Hammar did not opine that Vedros was exposed to asbestos while she worked in the office at Avondale. Dr. Hammar's Opinion No. 23 states that Vedros's mesothelioma was caused by her "total and cumulative exposure to asbestos[, which] was primarily due to bystander exposure from her father." (Rec. Doc. 511-2, p. 6) In other words, Hammar opined that Vedros's bystander exposure was her primary exposure, though not her only exposure. Furthermore, Hammar Opinion No. 2 states that Vedros worked at Avondale between 1960 and 1963, and Hammar Opinion No. 52 opines that "occupational and bystander exposures... have the ability to contribute to the causation of mesothelioma." (Rec. Doc. 511-2, pp. 5, 11) While this may be sufficient to create an inference that Dr. Hammar opined that Vedros had some occupational exposure, Dr. Hammar's deposition testimony ...