Automotive Engineering Expert Witness’ Testimony Survives Rule 37 Exclusion Sanction
Posted on January 22, 2025 by Expert Witness Profiler
Vicki Oetjens had surgery in October of 2020. Had all gone to plan, a diseased portion of her colon would have been removed, then the healthy ends would have been stapled together. But when the surgical stapler was deployed, no staples fired. This left a hole in Vicki’s large intestine requiring surgical repair. Vicki had to use an ostomy bag until she had a second surgery to reverse the first and reconnect her intestine. When Vicki developed a hernia at the site of her incision, that second surgery led to a third.
So in June of 2022, Vicki and her husband Eric Oetjens sued the entities that manufactured the stapler: Medtronic USA, Inc., Medtronic, Inc., and Covidien LP (collectively “Covidien”).
The Oetjens identified Larry Petersen as a third proposed expert witness. Per their expert disclosures, Petersen is “expected to testify concerning the mechanical use of the subject 28 [mm] EEA Circular Stapler.”
Covidien protests that the Oetjens’ failure to submit an expert report for Petersen violates Rule 26(a)(2)(B) and warrants exclusion of his testimony under Rule 37(c)(1).
The parties agreed that Petersen is a retained expert witness who, pursuant to Rule 26(a)(2)(B), cannot offer expert testimony without first tendering a written expert report. They also agreed that no such written report has been produced. So the only question is whether the Oetjens can avoid Rule 37(c)(1)’s exclusion sanction by showing that their failure to comply with Rule 26(a)(2)(B) “was substantially justified or is harmless.”
Automotive Engineering Expert Witness
Larry Petersen is an automotive engineer whose litigation support work, in a primary engineering analysis and expert testimony role, includes detailed design, failure analysis and accident reconstructions including automotive components including engine, transmission, driveline, brake and suspension and engine/transmission control components.
Discussion by the Court
The Oetjens, seemingly pointing to Rule 37(c)(1)’s exception for “substantially justified” nondisclosure, responded that they cannot yet produce an expert report for Petersen for two reasons. First, they cited “outstanding discovery requests,” asserting that Petersen cannot offer an expert opinion on whether Covidien’s stapler fired without stapling or failed to fire at all until the Oetjens receive “an exemplar stapler to inspect” and depose a Rule 30(b)(6) Covidien representative with “a working knowledge of the mechanics of the stapler,” specifically whether the stapler can cut without stapling.
Further, said Covidien, the Oetjens should have timely submitted an expert report for Petersen, “then supplemented it if necessary—or sought additional time.”
It should be noted that Petersen’s testimony is contingent upon whether Covidien raises a user error argument. They say they identified Petersen as an expert witness “for the sole purpose of having an independent engineer available . . . in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler.” If Covidien argues user error, then the Oetjens will provide an expert report for Petersen. Otherwise, the Oetjens may not need Petersen’s expert testimony at all, or they may use Petersen only “as a potential engineering rebuttal witness” such that “there would be no need for an expert report.”
Because the parties stipulated to stay Covidien’s expert disclosure deadline pending the resolution of its motions, it should be noted that Covidien “will not be prejudiced by allowing Petersen to submit his expert report, if necessary, once the outstanding discovery has been provided.”
On this key point, therefore, the Court can find that the Oetjens’ failure to timely provide an expert report for Petersen is ultimately harmless.
Held
The Court denied without prejudice the Defendants’ motion to strike Larry Petersen’s testimony.
Key Takeaway:
While Covidien made strong arguments that the Oetjens should have proceeded differently with respect to Petersen’s expert disclosures, the Court concluded that the Oetjens’ missteps were not ultimately prejudicial, so exclusion is not necessary on that ground.
Petersen was identified as an expert witness for the sole purpose of having an independent engineer available in the event that [Covidien] takes the position that there was some type of user error on the part of the medical staff or that a mechanical issue arises with regard to the use of the stapler. Considering Petersen’s testimony was contingent upon whether Covidien raised a user error argument, it was likely that Oetjens may not need Petersen’s expert testimony at all.
Case Details:
| Case Caption: | Oetjens Et Al V. Medtronic, Plc Et Al |
| Docket Number: | 2:22cv11220 |
| Court: | United States District Court, Michigan Eastern |
| Order Date: | January 16, 2025 |
