Opinion
Civil Action Number 99-11700-RGS
April 24, 2002
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO PRECLUDE TESTIMONY OF PLAINTIFF'S EXPERT
Defendant Warner-Lambert Company seeks to preclude the testimony at trial of plaintiff Albert's damages expert, Robert Brandwein. Warner-Lambert contends that Brandwein's January 2001 Market Analysis fails to meet the "reliability and assistance" criteria of Fed.R.Evid. 702. On March 19, 2002, Albert provided Warner-Lambert with a "final" report intended to flesh out the substance of Brandwein's earlier analysis. Warner-Lambert complains that Brandwein's "supplementation" of his initial report more than a year after the deadline for completion of expert discovery comes as a complete surprise.
Warner-Lambert's claim of surprise is somewhat difficult to digest. Brandwein's January 2001 report repeatedly flags its interim nature. "The questionnaire is in no way meant to substitute for a complete analysis to determine the market." Ex. E (Market Analysis), at 2. "The following figures are all subject to verification by additional surveys and are all very preliminary." Id., at 18, n. 2. "A survey outlining the use of denture cups — whether they be disposable or reusable is necessary in order to determine accurately the market. Making some reasonable assumptions, we can develop a preliminary estimate of the market." Id., at 19.
Supplementation of an expert's report in anticipation of trial may be more the rule than the exception. "[E]xperts, like lawyers themselves, may increase their efforts as trial approaches, and we do not suggest any general bar to an exhibit created in good faith for the expert after initial discovery." Fusco v. General Motors Corp., 11 F.3d 259, 266 (1st Cir. 1993). There is, however, a line between supplementation of expert opinion that has been disclosed, and the untimely disclosure of expert opinion that is totally unanticipated. In the latter instance, the harsh sanction of preclusion may be warranted, particularly where late disclosure causes prejudice to the opposing party. See Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 19-21 (1st Cir. 2001); Klonoski v. Mahlab, 156 F.3d 255, 268-273 (1st Cir. 1998).
This case falls somewhere in between. Some of what Brandwein has now disclosed is new opinion, some of it is simply elaboration on opinions previously disclosed. Warner-Lambert justifiably argues prejudice because Brandwein's deposition has been completed and the deadline for further expert discovery has expired. Albert, for his part, does not seriously dispute the point, but notes that a trial date has yet to be set and that the exclusion of Brandwein's testimony would be tantamount to a death sentence to his case. In these circumstances, a lighter sanction than preclusion is counseled, as Rule 37(c)(1) permits, even in cases where a party cannot demonstrate that its failure to comply with an expert disclosure deadline was justified or harmless. See Dura Automotive Systems of Indiana, Inc. v. CTS Corporation, ___ F.3d ___, 2002 WL 501027, at *6 (7th Cir. April 4, 2002). Thus, in lieu of preclusion, the court will allow Brandwein to supplement his earlier report contingent upon his being made available for up to four hours of additional direct deposition testimony at Albert's expense. Warner-Lambert will also be permitted to supplement its rebuttal report without making its counter-expert available for a further deposition.
Finally, Warner-Lambert asserts that Brandwein's ultimate opinion as to Albert's lost profits is based on unsupported assumptions and a marketing survey too poorly designed and executed to produce statistically reliable results. Expert witness testimony may be excluded where the gap between the underlying data and the expert's opinion "is simply too great." General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). It remains the rule, however, that trial courts, in evaluating the reliability of expert opinion, must focus on the "principles and methodology [employed by the expert, and] not on the conclusions that they generate." Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595 (1993). While Brandwein's methodology may be subject to some reproach, his survey of thirty-five nursing homes appears statistically reasonable and his assumptions regarding capture rates, market share and projected losses are not so unrealistic as to border on the ipse dixit. Some allowance may also be made for the fact that in cases where a hypothetical product is new to the market, as reputed lost profits are notoriously difficult to estimate with mathematical precision. See Rombola v. Cosindas, 351 Mass. 382, 385 (1966).
Joiner stands for the self-evident proposition that where an expert's opinion is divorced from all empirical reality, that in itself is strong evidence that his underlying methodology is flawed. See also Ruiz-Troche v. Pepsi Cola of Puerto Rico, 161 F.3d 77, 81 (1st cir. 1998). 509 U.S. at 596.
To the extent that Brandwein's analysis and ultimate conclusions are open to debate, the rules of evidence provide a remedy. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert,
ORDER
For the foregoing reasons, the motion to preclude Brandwein's expert testimony is DENIED, subject to the sanctions imposed by this decision.
SO ORDERED.