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August 10, 2004.

PHILIP MORRIS USA INC., f/k/a PHILIP MORRIS INC., et al. Defendants.

The opinion of the court was delivered by: GLADYS KESSLER, District Judge


Joint Defendants have filed five separate, but similarly based, Motions in Limine to Exclude Certain Testimony and Exhibits of Plaintiff's Experts Drs. Biglan, Chaloupka, Dolan, Eriksen, and Krugman. Joint Defendants seek the exclusion at trial of certain portions of the testimony of these five marketing experts for violation of Plaintiff's discovery obligations under Fed.R. Civ. P. 26(a)(2)(B) and 26(e), as well as various Case Management Orders entered during the course of this litigation. The Government opposes the Motions.

Because the Government chose to file a consolidated Opposition, and Joint Defendants then filed a consolidated Reply, and because there are certain issues common to all five of the Motions, the Court will issue one Order that addresses both the common, as well as individual, issues raised in the papers. The Court has spent an immense amount of time reviewing these papers and various attachments, as well the memoranda of the parties, and has concluded that the Motions should be granted in part and denied in part, for the reasons stated herein.

  On November 15, 2001, Plaintiff filed the five expert reports which are involved in these Motions, in compliance with Order #65. That Order required that the reports "shall comply with the requirements set forth in [Fed.R. Civ. P.] Rule 26(a)(2)(B)." Each of the reports dealt with specific subject matter and identified documents and exhibits which the expert had "considered" in reaching his opinions. Joint Defendants then filed their responsive experts' reports on February 1, 2002, as also required by Order #65. The five experts were deposed at different times and filed their "supplemental/rebuttal" reports by May 1, 2002, pursuant to Order #65, as later modified by Order #143.

  In Order #230, entered October 1, 2002, the Court greatly extended discovery and continued the trial date for more than a year, in large part because of Joint Defendants' failure to comply with pre-existing discovery deadlines, including their late filing of more than two million pages of documents. That late production of materials continued well into 2003. Order #230 extended the deadline for the filing of Plaintiff's expert witness statements and disclosure of all "data and information considered" by those experts to September 1, 2003.

  After receiving late productions of at least eight million pages from Joint Defendants subsequent to the November 15, 2001 filing of expert reports, reviewing them, and making them available to their experts to evaluate, the United States then disclosed to the Joint Defendants those additional materials ("Supplemental Materials") which their experts "considered" in reaching their opinions, pursuant to the requirements of Fed.R.Civ.P. 26(a)(2)(B). Despite the magnitude of this effort, the United States met the September 1, 2003 deadline imposed by Order #230, and provided Joint Defendants with thousands of additional documents and substantial amounts of new data pursuant to Fed.R.Civ.P. 26(e). In addition, the United States made each of these five experts available for an additional seven hour deposition in order to allow Joint Defendants to explore how the Supplemental Materials filed by the September 1, 2003 deadline related to their opinions. In some cases, the United States did not provide any supplemental report or other written explanation of the relationship between the newly disclosed documents and data and the opinion of the expert for whom they were submitted.

  Joint Defendants argue that the Supplemental Materials submitted by Plaintiff's five marketing experts before the September 1, 2003 deadline, but subsequent to their November 2001 initial reports, and May 2002 rebuttal reports, should be excluded because of the following violations of either Fed.R.Civ.P. 26 or Case Management Orders issued by this Court: 1. The vast majority of Supplemental Materials considered by Plaintiff's experts, and provided to Joint Defendants before September 1, 2003, were available to those experts (and therefore should have been disclosed) prior to November 2001;

  2. Any "new opinions" of Plaintiff's experts, provided subsequent to their reports of November 15, 2001 and May, 2002 should be excluded for violation of Rules 26(a)(2) and 26(e); and

  3. To the extent that Plaintiff's experts were unwilling or unable to explain how the Supplemental Materials related to the expert opinions they submitted prior to the September 1, 2003 deadline, such supplementation must be excluded for violation of Fed.R.Civ.P. 26(e).

  I. Availability of Supplemental Materials before September 1, 2003

  Initially, it must be noted that it was the failure of Joint Defendants to make timely production of more than two million pages of materials which was a major precipitating factor in the entry of Order #230 extending the deadlines, including the trial date, originally set forth in Order #65. Because of this continuing problem with late production, the United States received more than eight million pages of materials, on a rolling basis, after the November 15, 2001 deadline for submission of expert reports required by Order #65. In addition, a great majority of the nearly 300 depositions taken by the parties occurred after November 15, 2001. Moreover, the United States did not receive access to Defendants' direct mail marketing databases until 2003, when the Court entered Order #564, on June 7, 2004, adopting Report & Recommendation #149. Finally, the failure of Joint Defendants to produce their own cigarette advertisements, which constitute a substantial percentage of the Supplemental Materials, forced the United States to obtain them late in the discovery period.

  Thus, it is perfectly clear that while some of the Supplemental Materials were available to the United States prior to November 15, 2001,*fn1 a very significant amount were not. Consequently, there is no justification for granting the extreme sanction requested by Joint Defendants, namely that the five experts should be barred from relying upon or testifying about all of these Supplemental Materials. Not only were these Materials, substantial as they were, produced more than one year before trial, but Joint Defendants were afforded a full seven-hour deposition of each expert and could have asked for more time if they needed it (which they did not), for inquiry about the Supplemental Materials. In sum, Joint Defendants were given a year and a deposition opportunity to cure any prejudice they may have suffered by submission of the Supplemental Materials. II. New Opinions of the Five Marketing Experts and Their Inability to Explain Consideration of Supplemental Materials

  Fed.R.Civ.P. 26(a)(2)(B) requires that a written report be submitted for any expert opinion. The Court has examined the memoranda submitted by counsel and has concluded that certain of the experts have in fact developed "new" opinions, for which the written reports required by Rule 26(a)(2)(B) have not been submitted. What is more, in the instances to be identified, the "new" opinions are significant and are precisely the type of material for which Rule 26(a)(2)(B) was designed in order to avoid blind siding the opposing party and creating "an ambush at trial." Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo v. Benefencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001). ...

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