Products Liability Law Reporter

A federal district court held that preclusion of a plaintiff’s supplemental expert disclosures was not warranted in a contaminated talcum powder liability suit.

Brian Gref sued American International Industries and others, alleging that his exposure to asbestos from his lifelong use of talcum powder products led to his peritoneal mesothelioma. The plaintiff served on the defendants an expert report prepared by Jaqueline Moline, whom the defendants deposed twice. Before the second deposition, Moline conducted a dose-estimate calculation and testified on this issue. The court later ordered the plaintiff to supplement his expert disclosures to include Moline’s reliance on her new dose calculations and her new article, which had not been disclosed to the defendants previously. The plaintiff then served the defendants with a supplemental expert report prepared by Moline and provided supplemental disclosures for other experts. The defendants moved jointly to preclude the plaintiff’s reliance on his supplemental expert disclosures.

Denying the motion, the district court noted that a court exercising its considerable discretion to order exclusion of evidence must consider the party’s explanation for the failure to comply with a discovery order, the importance of the excluded witness’s testimony, the prejudice suffered by the opposing party resulting from having to prepare to meet the new testimony, and the possibility of a continuance. The court concluded that these factors weighed against preclusion.

The court reasoned that although the plaintiff had not shown substantial justification for his late disclosure, this was harmless and did not merit the extreme sanction of preclusion. Moline’s reliance on her new article and dose estimates were disclosed before the close of discovery, the court said, adding that any prejudice may be remedied by a continuance and the reopening of Moline’s deposition. Moreover, the court found that the information on which the dose calculations were based was previously disclosed, with opportunity for review, and the plaintiff had offered Moline for a continued deposition to allow further questions on her dose estimates. Finally, the court found that although Moline now indicated she intended to rely on the recent article, her ultimate opinion was unchanged from her initial report.

Finding that the defendants’ summary request to preclude the plaintiff’s other experts also was unjustified, the court concluded that preclusion was not warranted.

Citation: Gref v. Am. Int’l Indus., 2024 WL 2138160 (S.D.N.Y. Apr. 24, 2024).

Plaintiff counsel: AAJ members Brett Fuller, James M. Kramer, Dennis Geier, Donald P. Blydenburgh, John Bierce Wetmore Jr., Olivia Kelly, and Gary DiMuzio, all of New York City; and AAJ members Jacqueline Gagne Badders, John C. Metcalf, Melissa Schopfer, and Shane Hampton, all of Alton, Ill.