Products Liability Law Reporter

Africano v. Atrium Med. Corp., 2019 WL 5085338 (N.D. Ill. Oct. 10, 2019).

A federal district court held that a plaintiff’s rebuttal expert report was improper where it failed to directly contradict the expert report offered by the defense.

Randy Africano filed suit against Atrium Medical Corp., alleging strict liability, negligence, and failure to warn claims related to the defendant’s ProLite mesh, a polypropylene mesh used in hernia repairs. Africano submitted an expert report written by Duane Priddy, who asserted that polypropylene mesh is inherently unstable and inappropriate for implantation in the human body. Atrium submitted the opinion of Stephen Spiegelberg, who asserted that polypropylene mesh is a safe biomaterial. Africano advised the court that he intended to offer the rebuttal opinion of Scott Guelcher in response to Spiegelberg’s report. The court ordered that Africano’s rebuttal experts must restrict themselves to the expert opinions offered by Atrium.

Africano produced three rebuttal expert reports, including one by Guelcher. The defendant moved to strike Guelcher’s report.

Granting the motion, the trial court noted that Fed. R. Civ. P. 26(a)(2) requires rebuttal expert reports to contradict or rebut evidence on the same subject matter identified by another party. Citing case law, the court added that evidence offered as additional support of a party’s initial argument that does not contradict evidence offered by the opposing party is not considered a proper rebuttal. Stated another way, the court said, a proper rebuttal must directly refute the arguments offered by the opposition. Applying these principles here, the court found that Guelcher’s report does not address or refute Spiegelberg’s opinions in that the report simply reiterates the central elements of the plaintiff’s claims, which were addressed in his initial expert reports, particularly the arguments made by expert Priddy. Guelcher’s report does not respond to any new arguments or evidence raised by Spiegelberg or add to the discovery process, the court said, concluding that to allow the report would therefore undermine the purpose of Rule 26(a)(2).

Consequently, the court held that Guelcher’s report does not comply with the court’s discovery orders and does not qualify as a proper rebuttal opinion.