*1 This matter is before the Court on Defendants' Motion for Reconsideration and, in the alternative, Motion for Leave to Amend Defendants' Expert Disclosure regarding Dr. Ferdinand Kockerling (“Dr. Kockerling”). [Docs. 651, 652, 654]. Specifically, Defendant Ethicon and its parent company, Defendant Johnson & Johnson (collectively, “Ethicon”), ask the Court to reconsider its August 11, 2020 Order [Doc. 639], which granted Plaintiffs' Motion to Strike Defendants' Rule 26(a)(2)(C) Expert Disclosure for Dr. Kockerling and quashed Defendants' Notice of Deposition.

Dr. Kockerling is the founder and chairman of the German Herniamed Hernia Registry (“Herniamed”) and a long-time consultant for Ethicon. Data from Herniamed led Ethicon to remove Physiomesh from the market worldwide in 2016. The parties have differing views about what Herniamed required of Ethicon with respect to Physiomesh and the product liability claims asserted. Plaintiffs have suggested that Ethicon's knowledge of a higher recurrence rate with Physiomesh, and Ethicon's knowledge that Physiomesh was an independent risk factor for recurrence, can be inferred prior to Ethicon's May 2016 decision to withdraw Physiomesh from the market.

For purposes of the Court's original ruling, the undersigned presumed (as represented by Ethicon) that Dr. Kockerling was not a paid consultant or retained expert – a point Plaintiffs questioned. The Court deemed Dr. Kockerling's disclosure deficient even under the more relaxed standard for non-retained experts. Critically, although Rule 26(a)(2)(C) requires a less detailed disclosure, Rule 26(a)(2)(C)(ii) still requires a summary of the specific facts and opinions the witness is expected to testify about. See FED. R. CIV. P. 26, Adv. Comm. Notes 2010 Amendments.

In addition, the Court observed that, to the extent Ethicon would seek to offer Dr. Kockerling as a fact witness, fact discovery for the Trial Cases had long since closed. The Court highlighted the posture of the case in its ruling, namely, that the First Trial Case was scheduled to commence November 2, 2020.[1] Since that time, upon the parties' joint request, the First Trial Case has been postponed until January 25, 2020.

In the event Ethicon does not succeed in persuading the Court to reconsider, Ethicon requests leave to serve an Amended Non-Retained Expert Disclosure for Dr. Kockerling on Plaintiffs, proceed with his deposition, and, at minimum, preserve Dr. Kockerling's deposition testimony for future MDL cases (if not allowed to present Dr. Kockerling's testimony during the First Trial Case). [Doc. 651-2, Defendants' (“Defs.”) Exhibit 1 – Dr. Kockerling Amended Disclosure (“Amended Disclosure”)].

Standard for Reconsideration

As a general rule, a court will only grant a motion to reconsider based on the availability of “newly-discovered evidence or manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (citation and internal quotation marks omitted). A motion to reconsider is not a means “to relitigate old matters, raise argument[,] or present evidence that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Florida, 408 F.3d 757, 763 (11th Cir. 2005) (citations omitted) (affirming denial of plaintiff's Rule 59(e) motion to amend or alter final judgment where plaintiff's motion was an attempt to relitigate district court's treatment of certain facts and legal conclusions in analyzing motion for summary judgment); accord Owens v. Metro. Life Ins. Co., 2017 WL 106017, at *2 (N.D. Ga. January 11, 2017) (citations omitted).

Discussion

*2 In support of the Motion for Reconsideration, Ethicon raises two primary arguments: 1) lack of prejudice to Plaintiffs and 2) exclusion of Dr. Kockerling's testimony is inconsistent with the fundamental purpose of the bellwether discovery process.

Ethicon first argues that the Court should reconsider because the ruling was based in part upon the deficient Rule 26(a)(2)(C) Non-Retained Expert Disclosure for Dr. Kockerling – an argument not raised by Plaintiffs and not briefed by Defendants.[2] Ethicon contends that Plaintiffs did not make such argument because Dr. Kockerling's opinions came as no surprise to Plaintiffs, as evidenced by Plaintiffs' own expert reports. [Doc. 651-1 at 7]. As argued by Ethicon, because there is no surprise, there is no prejudice to Plaintiffs if the Court grants its Motion.

1. Lack of Prejudice

In response, Plaintiffs argue that the proposed Amended Disclosure confirms that Ethicon hopes to “sandbag” Plaintiffs with untimely factual testimony concerning “interactions” Dr. Kockerling had with Defendants' employees between 2013 and 2015.[3] [Doc. 652 at 6]. And, in fact, Dr. Kockerling's Amended Disclosure now includes at Paragraph 3 the following Topic:

[Amended Disclosure, ¶ 3]. Paragraphs 3(a) through (d) identify the opinions Dr. Kockerling shared with various Ethicon employees (or former employees), including, Dr. Goran Ribaric, Dr. Jeff Hammond, and Boris Batke, between July 2013 and November 2015, at which time Dr. Kockerling states that he “concluded for the first time that, in his opinion, Physiomesh was an independent risk factor for hernia recurrence.” [Amended Disclosure, ¶ 3(d)]. If permitted to testify, Dr. Kockerling will offer testimony that, up until November 2015, he advised Ethicon that the Herniamed data on Physiomesh recurrence was “preliminary, that there were not enough Physiomesh patients enrolled in the study to reach a valid conclusion, that he believed the difference in recurrence rates related to surgical technique as opposed to the mesh, and that it was necessary to wait until more patients were enrolled in the study before drawing reliable scientific conclusions. [Amended Disclosure, ¶ 3].

*3 The Court remains troubled by the fact that Ethicon apparently seeks to obtain Dr. Kockerling's factual testimony as a means of rebutting Plaintiffs' theory of the case and/or the Rule 30(b)(6) testimony that has been of record for nearly two years. Fact discovery for the Trial Cases closed July 29, 2019 (more than a year ago). [MDL 2782, Doc. 539 – PPO No. 20 (Amended Proposed Discovery, Scheduling, and Case Management Order – Initial Discovery Pool), ¶ 5(j)]. In addition, Plaintiffs have already obtained binding testimony from Ethicon's Rule 30(b)(6) corporate representatives on the same subject matter. [Doc. 652 at 5]. Ethicon cannot now simply amend Dr. Kockerling's Expert Disclosure and seek to corroborate, embellish, or contradict binding Rule 30(b)(6) corporate representative(s)' testimony. As pointed out by Plaintiffs, the timely factual evidence on these subjects was relied upon by both parties in preparing for the bellwether trials and provided a basis for the opinions of the parties' respective experts. Ethicon states in its reply that the only prejudice Plaintiffs can point to is “the timing, not the substance of the disclosure.” [Doc. 654 at 8].

The Court is not persuaded by Ethicon's argument. If Dr. Kockerling were permitted to testify in this manner contrary to binding Rule 30(b)(6) corporate testimony as Plaintiffs represent, the prejudice to Plaintiffs and their coordinated efforts to prepare for Crumbley is clear.

2. Exclusion Is Inconsistent with Bellwether Objectives

Secondly, Ethicon raises what amounts to a fairness argument in suggesting that the Court should not exclude Dr. Kockerling from testifying because it would undermine the bellwether discovery process.

According to Ethicon, because the Court is allowing Plaintiffs to depose Oliver Martini (“Martini”), Ethicon is entitled to the same benefit. Ethicon argues that the Court's rulings regarding Martini and Dr. Kockerling are difficult to reconcile. In other words, Ethicon was not interested in having Dr. Kockerling deposed until Plaintiffs became interested in Oliver Martini -- what Martini might have to say about Dr. Kockerling's knowledge and/or opinions as well as timing (specifically, what Dr. Kockerling told Ethicon and when) related to the Herniamed Registry. The obvious difference, of course, is that Martini is Ethicon's corporate employee, and Plaintiffs did not become aware of Martini's significance until Spring of 2020 when Ethicon produced documents from other custodians in April, May, and June of 2020. [Doc. 638 at 4]. Martini is also purely a fact witness. Prior to the Court's ruling permitting Plaintiffs to depose Martini, Plaintiffs had no access to Martini. In contrast, Ethicon cannot claim that it had no access to Dr. Kockerling nor that Ethicon was unaware of the nature of Dr. Kockerling's testimony.[4]

In the event the Court denied Ethicon's Motion for Reconsideration, Ethicon requested leave to serve an Amended Rule 26(a)(2)(C) Disclosure for Dr. Kockerling on Plaintiffs, proceed with his deposition, and preserve Dr. Kockerling's deposition testimony for future MDL cases. Based on issues raised by both parties in the late stages of preparation for the Crumbley trial, the Court intends to revisit the discovery schedule for the subsequent trial cases. At that time, the Court will consider Ethicon's request to use Dr. Kockerling as a witness. For now, the request is denied, but the denial is without prejudice.

Conclusion

In sum, Ethicon has not produced new evidence, the existence of new controlling law, or otherwise shown that the Court's decision was a “manifest error[ ] of law or fact.” Arthur, 500 F.3d at 1343. As previously stated, “Defendants' contention that Dr. Kockerling is not “a traditional fact witness” does not excuse Defendants' non-compliance with the deadlines adopted by the Court ....” [Doc. 639 at 10]. Accordingly, the Court finds that reconsideration is not warranted.

It is hereby ORDERED that Defendants' Motion for Reconsideration [Doc. 651] is DENIED concerning Crumbley, the First Trial Case, and DENIED without prejudice for purposes of the Unscheduled Trial Cases and future MDL proceedings.

*4 SO ORDERED this 25th day of November, 2020.

The First Trial Case selected is Jim B. Crumbley and Diane Crumbley v. Ethicon, Inc., et al. (“Crumbley”), Civil Action No. 1:18-cv-748-RWS. [MDL 2782, Doc. 621 – PPO No. 22, ¶ 2(a); Doc. 677 – PPO No. 24].

Plaintiffs argued that Dr. Kockerling was not a non-retained expert and suggested that the relationship between Ethicon and Dr. Kockerling required that Dr. Kockerling provide a traditional, more comprehensive expert report as contemplated by FED. R. CIV. P. 26(a)(2)(A).

In the original disclosure, Ethicon designated Dr. Kockerling to testify about: (1) Dr. Kockerling's education, training, and experience as a surgeon, including his expertise in hernia repair surgery; (2) The factors that influence outcomes in hernia repair; (3) The nature of recurrence in ventral hernia repair and how recurrence in ventral hernia repair is defined and measured; (4) The history and nature of hernia registries; (5) The history and development of the Herniamed hernia registry; and (6) One of Dr. Kockerling's publications, in which he discusses the importance of registries in postmarketing surveillance of surgical meshes, and in which he reports Herniamed registry data concerning Physiomesh. [Doc. 613-1 / Exhibit 1 - Defendants' Disclosure of Expert Dr. Ferdinand Kockerling (“Kockerling Disclosure”)].

Indeed, the proposed Amended Rule 26(a)(2)(C) Disclosure for Dr. Kockerling represents that Dr. Kockerling's “shared opinions” are memorialized in Ethicon's internal memoranda and correspondence. [Amended Disclosure, ¶ 3].