United States: Plaintiffs Learn Supplementing Isn't A Second Bite At The Apple

Last Updated: November 29 2016
Article by Michelle Yeary

People supplement a lot of things. You can supplement your diet with a multivitamin. You can supplement your income with a part-time side job. On the DDL Blog, we are always supplementing our scorecards and cheat sheets. Generally speaking, supplement is a pretty common word and has a fairly universally accepted definition. A supplement is an add-on. Something you do to make something more complete. Does the food you eat contain vitamins and minerals? Sure. But that multivitamin adds to it. It's a boost.

In litigation too, we do a lot of supplementing. In fact, we are required to do so. Federal Rule 26(e) requires a party to supplement its discovery responses if it "learns that in some material respect the disclosure or response is incomplete or incorrect." This duty to supplement extends to expert reports as well. Fed.R.Civ.P. 26(e)(2). But what does it mean to "supplement" an expert report? And when does supplementing to make a correction or completion go too far?

Plaintiffs got the answer to that question in U.S. ex. rel. Brown v. Celgene Corp., 2016 U.S. Dist. LEXIS 156826 (C.D. Cal. Aug. 23, 2016). Plaintiff-Relators brought a False Claims Act and Medicare Anti-Kickback Statute case against defendant alleging it illegally marketed Thalomid and Revlimid off-label and paid kick-backs to physicians for prescribing off-label. Id. at *6. The court set a deadline for the expert reports and relators timely served a report from their damages expert. Shortly thereafter, however, relators sought leave to supplement that expert report based on late produced Medicare data. Id. at *6-8. Relators wanted to time to analyze the data and supplement the report with that analysis. Relators also represented that while the supplement would be based on new data, the opinions were not expected to differ significantly. Id. at *8. The court granted the leave requested. Defendant was likewise given an opportunity to amend its expert reports in rebuttal and relators' expert was deposed after his supplemental report was served. Id. at *11.

Defendant then moved to strike those portions of relators' supplemental report that went beyond the scope of the court permitted supplementation. In addition to incorporating an analysis of the Medicare data, relators' expert 1) broadened the scope of on-label damages to include all on-label prescriptions; 2) included a new opinion on the "unreasonableness" of speaker compensation; 3) identified a new category of damages based on defendant's charitable foundation contributions; 4) changed his definition of off-label use; and 5) used a previously undisclosed economic model. Id. at *12-13. Defendant argued that to the extent any of these changes were based on information and discovery, it wasn't the Medicare data, but instead information that was available to relators at the time their expert authored his original report. Relators' argument in response was essentially "no harm, no foul." Because there was yet no trial date set and because defendant had an opportunity to depose the expert on the supplemental report, there was no prejudice and no reason not to allow the amendment. Id. at *15.

However, as the court pointed out, "[s]upplementation under the Rules means correcting inaccuracies or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure." Id. Rule 26(e) can't be used to "sandbag one's opponent with claims and issues that should have been included in the expert witness' report (indeed, the lawsuit from the outset)." Id. at *16. Otherwise, expert reports would never be final and experts could lie in wait to modify their opinions after the opposing party discloses its.

The late disclosure of new opinions and the expansion of the case requiring Defendant to defend ever-changing theories of liability is prejudicial to Defendant. Relator cannot simply keep adding theories when she realizes that some will not work.

Id. at *26.

And just because defendant had an opportunity to rebut the new opinions doesn't mean it wasn't prejudiced. What about having to spend additional resources to take discovery of and defend against new theories late in the litigation. Id. at *27. By relators' logic, allowing time for rebuttal or deposition cures any supplementation no matter how untimely. But a court order is a court order, and a party who fails to comply "must understand that they will pay a price." Id. When the court allowed supplementation on a single discrete issue – the Medicare data – it "was not a license for [relators' expert] to completely rethink the theories in his original Report." Id.

In addition to their no prejudice argument, relators argued that while their expert did "refine" his opinions, to the extent those modifications weren't based on the Medicare data, they were based on documents and testimony from defendant's promotional speakers that was not available at the time of the original expert report. Id. at *21. But relators' request for leave to supplement their expert report was based solely on the Medicare data. Nowhere did relators claim that they needed documents and testimony from promotional speakers. Id. at *23-24. The court didn't stop there. Even accepting relators' argument that this was additional discovery they needed for their expert's opinion, "the fault in obtaining the discovery so late in the litigation rests with Relator." Id. at *24. Bottom line, relators waited too late to serve discovery on those third-parties, so they cannot now argue that that information was not available to them. Id.

The court goes on to apply these basic principles to each of the expert's "supplemental" opinions and excludes them all except for the one based on the newly received Medicare data. Relators were simply too late. Too late in seeking fact discovery they claimed they needed. Too late in proffering brand new theories of liability at the expert stage of the case. Too late in serving an expert report that contained opinions that should have been included in the original. Supplementing can be a good thing, it may even be required at times. But supplementing isn't a do-over. So you better be thorough the first time through.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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