Magistrate Judge Burke recently denied a Rule 60 motion filed by Sandoz to strike Wyeth’s microbiology expert report served after the expert report deadline. Wyeth Holdings Corp., et al., v. Sandoz, Inc., C.A. No. 09-955-RGA-CJB (D. Del. May 10, 2012). Earlier in the litigation, Sandoz had moved to strike the same expert report, arguing that Wyeth withheld it in bad faith until after the deadline for expert reports with the goal of springing it on Sandoz late in the litigation. Id. at 4. In response to Sandoz’s earlier motion, Wyeth argued that it had not planned to serve a microbiology expert report at all until it received a microbiology expert report from Sandoz. Id. Ruling on Sandoz’s earlier motion to strike, the Court found no evidence of bad faith conduct by Wyeth, but struck a number of paragraphs that were not directly responsive to issues raised for the first time in Sandoz’s report. Id. at 2, 4.
Sandoz later filed a motion to strike the same expert report, this time under Rule 60 and on the theory that newly discovered evidence obtained during the deposition of Wyeth’s microbiology expert undercut Wyeth’s previous claim that it did not intend to serve a microbiology report until it received one from Sandoz. Id. at 3-4. Specifically, Sandoz learned during the deposition that—contrary to Wyeth’s prior representations that it did not even contact its microbiology expert until after it received Sandoz’s microbiology report—Wyeth actually had retained its microbiology expert many months prior to the expert phase of the litigation. Id. at 4.
Addressing the motion at issue, the Court explained that Sandoz carried a heavy burden of showing that the newly discovered evidence “(1) is material and not merely cumulative . . .; (2) could not have been discovered [previously] through the exercise of reasonable diligence; and (3) would probably have changed the [previous] outcome.” Id. at 2-3. The Court added that Sandoz’s burden was higher still because the exclusion of critical evidence is “an extreme sanction” “not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order . . .” Id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791-92 (3d Cir. 1994)).
The Court explained that there was no dispute that the evidence discovered during the deposition of Wyeth’s microbiology expert was not cumulative of evidence previously known to the Court and Sandoz, satisfying the first prong of the Rule 60 analysis. Id. at 5. The Court found, however, that Sandoz could not satisfy the second prong because Sandoz could have, through the exercise of reasonable diligence, learned when Wyeth retained its expert if that information was truly critical to the first motion to strike. Id. at 5-6. Finally, the Court found that even had it known of the newly discovered evidence during the first motion briefing, it probably would not have changed the outcome of that motion—although the new evidence might change one of the five Pennypack factors (bad faith), it would not change the remaining four factors. Id. at 6 (referring to Myers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904-05 (3d Cir. 1977)). The Court explained that even assuming the “bad faith” Pennypack factor would change based on the new evidence, the overall balance of the Pennypack factors would not shift far enough to justify the exclusion of Wyeth’s expert report. Id. at 7. Moreover, the Court added that the new evidence regarding when Wyeth “retained” its microbiology expert would not have altered its previous conclusion because the relevant issue was not how early the expert was retained, but instead was how early Wyeth planned to serve an expert report from him. Id. at 8-9. The new evidence did not shed any light on that question. Id.