sixteen twenty three ninety six sixteen twenty three ninety seven kathy gad pamela sutherland versus d c c live again with the still of the incorporated oral argument not to exceed fifteen of several decades ago actually and that gets a case we have a statute of limitations issue regarding the application of the wisconsin limitation period and discovery rule which requires that the plaintiffs should probably should know that the injury was probably not possibly probably caused by a specific product of a identified manufacturer in this case what we have is testimony to the a fact that she was told after having been previously advised by the man who implanted it and told her there was no problem ok by a subsequent trader who says i possibly related to a breast implant our position is simply that possibly related to a breast implant does not meet the statute or the court standard of probably by a specific product and specific manufacturer we brief that i'll be happy to answer any questions the court may have but otherwise i'd rest on my brief the common issue is the court's denial of a motion which actually asked for two separate releases reliefs rather one is to modify the scheduling order and the second is to allow a belated lee identified expert witness the court first looked at the fact that dr brower had provided expert testimony in prior litigation and identified dead as a reason for denying the motions and we say she simply got it wrong under the cases that we've cited familiarity with the expert is a reason to allow it not to disallow it so arse our position is the judge clearly erred in taking the appropriate factor an appropriate factor and simply putting it on the wrong side of the scale why if everybody's from ill you're for our why did your side not list brower as  initially chosen to go with three other experts the record is unclear why and whether or not they failed to contact brower and chose to go with some others or whether they couldn't pay for er whatever it might be so why should one side have a second bite at the apple when their experts are denied under a daubert analysis by the district court so you have three in the district court refuses to allow those three to testify so you have not and then why should you be able to go to somebody that you knew about a long time ago and get a second bite at the apple nobody said we knew about it and we said well we're talking about the defendant no but i thought you said that there was familiarity with with brauer that by the plaintiffs the record shows that the familiarity with brouwer was by the defendant he had an hour had testified in other cases or what  i believe so whatever they said is he had had that been identified as an expert witness in a researcher on the subject several years previously so you're saying that the evidence that's in the record suggests that  plaintiffs did not know at all about brauer it doesn't say one way or the or the other ok but my question is still a question that i have which is what is the law of the six circuit and whether a party whose experts have been denied under dauber can go find a new expert i think it is within the broader ram bit of first of all good cause or alternatively whether it's harmless those criteria have been identified and are there are three cases that made me have concern about this from the sixth circuit one is plucked versus b p oil one is nelson versus tennessee gas pipeline and one is pride versus pick and arguably all of those seem against your position and i wondered what with you have a case that says that this should be allowed or what you can say about those cases if you know about them we certainly have some from with a wonderful new way of studying a problem and that way is agreed by everyone to be absolutely correct why shouldn't a district court have to reopen the discovery process and then consider this new expert i think we're talking about two separate rules first is the good cause for rescheduling and we certainly have that because the previous scheduling date it already passed ye but the rescheduling you won because of the expert right they were tied together but the specific motion initially was to reschedule and if the court had said we will reschedule we then get to the issue of what are the rescheduling dates and what's included rescheduling so what  good cause did you have for rescheduling that you presented to the district twofold one is the expiration of prior scheduling dates we had a a why not just go to trial why not just go to trial i thought you were close to trial and you to stop because of bankruptcy etc etc well that's not quite change what we were getting close to trial was when they originally when the judge originally grant summary judgment on statute of limitations grounds that the original strike date was i think september of two thousand and twelve when when we get back after remained that's long gone so it's inevitable that you have to reschedule but the discovery deadline had had long passed it had your honor ok so what grounds would there be for reopening discovery that you presented to the district court that the district court abused its discretion considering one is the additional literature and research in the field  and what the interesting thing is the judge said you can't show that your expert relied upon that and that's darn true we could not in two thousand and eleven have relied upon literature that came out in twenty thirty which i started was that the new expert didn't you don't have evidence horse to argue the merits of what he would testify to before actually allowing him to testify in the first instance all you have to do is point to somebody and say we won him  there have to be i mean we actually in our request to expand the record it's a traditional number this point out that his most recent article was published this month so we could not very well say i'm going to rely upon my own research and i'm going to publish it in the strikes me as strange is if we had a prior identified expert who died i don't think there's anyone in the world who would say that you shouldn't allow a replacement expert because he was made on  available by death or if he was comatose or if you would move to australia and it seems strange to suggest that the same situation lack of diligence or well that's probably true but i don't perceive this to be a punitive analysis indeed look at the criteria the judge used and again harmless is the standard of the substituted expert one thing the judge points to besides that he was known before is that this would delay things putting aside the fa that ten years of delay was attributable to dow and its bankruptcy another couple years what would it have taken at the time this motion was argued if the judge had orally said you can identify brow we want the report and everything else in a month and defendant can have two months later to prepare and we depose him within three months the judge had done that that would have banned in the bank before she even issued the pinions you were allowed to bring brow ben at the same time she actually issued her opinion there would still be two months in that entire process we had even set a trial date yet so that in my view would not have to lie or delayed the trial aside from the fact that every such motion involves delay are you arguing armless or harmlessness now we're arguing harmlessness right now when it occurred several thirty seven yesterday and you didn't raise that to the district court we we did argue that they ought to allow a new witness who had not been just rule did you mention rule thirty seven and i don't believe thirty seven was mentioned by name and that sort of rot of the district court to reverse if we take your position you're saying that you're relying on harmlessness it's a standard that comes from rule thirty seven which you say should apply there are arguments against it if we were to reverse we would be reversing the district court on an issue that was not presented at the district court which is normally not what we do how you respond to that we're now that this was an issue that was presented rule thirty seven was not identified by name how could have been presented i don't understand how you can or maybe you should present it now without referring to rule thirty seven i don't know well what we said was your honor this is this is should be allowed the happened now you're using an argument in support of that which says that it would be harmless and harmlessness supports allowing it but you get that from a rule they never district court never got a chance to examine the rule may not have been cited but the argument was made that's the distinction i would drop we said you should allow this previously  disclosed witness in the court rule which addresses that issue specifically is thirty seven we might not have connected the dots in that fashion but we did present the issue itself and in addition it goes together with the reopening and that was the specific purpose under  on good morning your honour's my name is barry field and i represent the d c c litigation facility may it please the court and looking at the issues here as is very clear there are two fundamental issues the first issue is of course whether or not the district court or abused its discretion in refusing to reopen expert discovery and the second issue was whether or not the district court improperly granted summary judgment to the d c c litigation facility on mit's gets a cyclone and that was a an independent reason for granting summary judgment in addition to the lack of causation evidence i'd like to first turn to the first issue which has to do with rule sixteen i think it's important to recognize what happened in the case obviously once the case came back from the sixth circuit the two cases came back from  circuit the district court was going to pick up where it left off but the plaintiffs or miss gets in the sutherland and their new counsel obviously had a different idea and sort of picking up where we left off which would be going back to expert discovery had closed fact discovery had closed and we were now dealing with dispositive motions and a potential trial if the dispositive motions were not granted that and that's not on appeal they also came in and suggested that they wanted to reopen both fact an expert discovery so basically they wanted to start this case from a new now it is true that the that eventually what they did was to suggest that we're not going to attempt to reopen fact discovery we want to just reopen expert discovery and how much time had passed them from when the close of expert discovery was to when they're seeking to reopen what were the dates the close of expert discovery was in two thousand and twelve and i don't remember exactly what month in two thousand and twelve it was in two thousand and twelve and then they're coming back in what year they're coming back in two thousand and fifteen they filed their motion to reopen that discovery annex and expert discovery and in two thousand and fifteen i suppose hypothetically that there was new discoveries concerning the impact of silicone breast implants on women that that everybody in the scientific community agreed that these implants were causing all of these auto immune diseases suppose that is a hypo and i understand that it's not what you think the big situation is shouldn't the plaintiffs in the case be able to produce a new expert who can testify on this new scientific discovery that everybody in my hypo everybody agrees is true i think it depends your honor for instance you could have a situation where there was new scientific literature that came out and that's the new scientific literature came out for an instant after two thousand and twelve if that new if that nude literature was material then obviously you had three experts that the plaintiffs have already identified who if i determined that there are opinions either given in the report or at the expert deposition was now materially in complete or incorrect then under the federal rules that would be an opportunity to supplement one of the things that really gets lost i think in in the appellant's argument is they fail to recognize that they had three experts that they had previously designated on causation  cases when up the litigation facility had previously filed d'albert motions for those particular experts but the district court did not reach those motions because it determined that there was a separate ground for which was the statue of liberty statue limitation our court said state was being used back to the district court that's correct your honor and so as a consequence those three experts were causation experts and those experts if they believe this literature that is being cited by the plaintiffs in their briefs was somehow material information that affects their opinion then they could have requested permission to supplement their expert opinions they didn't do that as a matter of fact as we point out not only do we have any evidence that dr brower has for bravura relied on any of this literature there's no indication that any of their experts including their their earlier causation experts have looked at any of this literature so the this literature now you're talking about actual as opposed to my hypo that there was there was some development of literature during this three year approximately three year period and that could have been used in a motion to supplement the existing three proposed experts correct as well as we indicated your honor obviously in science there continues to be research that has been performed by different scientists and those scientists publish different articles about their research in here we point out that although they cite a number of different articles many of those articles don't even have anything to do with the injuries that the plaintiffs are are dealing with broward actually testified in any case that you are aware of i know he back in the one nine hundred ninety s we did find one or two cases where he clearly testified i did not see scour the the dockets to see but i'm not aware of him testifying in the last fifteen or so years in any breast implant litigation but i think your honors in the earlier question sort of picked up on one of the points that was key which is they sort of suggested that in fact their familiarity with brower by hypothetically the litigation facility is a reason to allow him but when you look at the law even if you're talking about on the harmless standard is not simply that you know the expert exists that you know this is a person that that actually has performed some research in the area even if the elite litigation facility had this information and knew this information that's not sufficient the cases are really trying to determine whether or not the nonmoving party has sufficient evidence as to the substance of the information that has not previously been disclosed so simply knowing that an expert exists the name of the expert eccentric is not sufficient even under the harmlessness standard practically what is really the harm if if this had gone smoothly in the district court where your opponent brings up  one wants to have broward considered as an expert your opponent says it would only have taken a couple months on their side and maybe double the number of months on your side and this case is already stagger for several years why why not allow further development of our b r i think one thing that is important is again to look back at the context the way they have characterized the way the  characterized their requests now before this court is they were only seeking to name one additional expert and what's the harm with seeking to add one additional expert when you look at the record however it is very clear that it wasn't simply to name one expert their motion was to completely reopen discovery and they did not identify how many additional experts they wanted to name so they've recast the argument before this court  was it was a request to reopen expert discovery completely and was it just expert discovery or was it fact it was originally their original motion which was found in a rule sixteen was for both fact and expert discovery once they learned that in fact the court had already rejected in the at the relator as for a case that rejected these three experts under daubert they've been recast and limited their motion but it still was not just simply to name one expert it was actually to reopen expert discovery with respect to your honor's question the issue with not only would we reopen discovery so they would obviously have the opportunity to name water more additional experts then it would be the litigation facility with then have to look at the opinions that were disclosed by these experts and then determine whether or not there are three experts  litigation facility had three experts whether those three experts would continue to would need to supplement or issue new opinions depending on which experts were named it's possible that there would need to be the litigation facility would need to hire new experts and so it would be a complete reopening of discovery a complete set of new experts for the the pallant as well as potentially new experts or at least new opinions from the litigation facility and hypothetically if these one or more of these new experts from either side had really profound information really probative information you would hope that there would be some mechanism in the civil rules that would allow for reopening and that you wouldn't be stuck with the fact record the expert record that the stablished as of twenty twelve when you're trying the case in tw seventeen but i guess you know the question is what mechanism allows for that and was that properly in there i think there are two potential mechanisms on we've talked about earlier and that is a mechanism to supplement the opinions and so for instance they had three causation opinions of three causation experts including a rheumatologist and so if there was this new  groundbreaking breaking research or literature they could come into the district court and the demonstrate to district court that this is material information that needs to be added to the record and so they would be able to do it through supplementation there's also the potential obviously if they could demonstrate that in fact because this researcher perhaps wasn't known or because this researcher was performing research that was not known then that could satisfy the good c standard that exist under rule sixteen but we have a different issue here obviously one of the things that is very important is that they were attempting to establish good cause and under the good cause and a rule sixteen it's important to demonstrate that there was reasonable diligent diligence in order to disclose the experts and they were not able to demonstrate to the district court that there was reasonable diligence and the district court noted that obviously under rule sixteen there is this notion of considering prejudice as well and that is that if in fact you have the stablish reasonable diligence then what you would do is you would as a district court is that you would then look and say even if the moving party has demonstrated reasonable diligence is there prejudice to the namu having party and the prejudice would really be time to lay and the cost it would be the resources time and cost and when you look at decisions such as the cases that your honor pointed to earlier whether you're talking about the nelson case nelson tennessee pipeline case of the private big they're looking at different issues and prejudice and i think the other thing that is important about those those decisions is they had dressed one of the issues that that was raised by this panel which is if you have a situation where you've already been given the opportunity to name your experts and you were given an opportunity after multiple extension of the district court you name those experts those experts disclose those opinions those experts were deposed and now you're subject to dahlberg and you know you're subject to daubert do you get the opportunity for a do over because they're about to be excluded and in those cases they make clear that fairness does not dictate that you get a second bite at the apple are there other circuits that take a different approach on that it seems so hard to have that rule that the six and i'm just wondering whether other circuits have more leniency well i recall there are some circuits that when they're looking at rule sixteen what they will do is look at a variety of different factors including whether or not for instance you know what's the prejudice to the party what's what is already surprise to the nonmoving party what's the justification so they're looking at different factors but at the end of the day you're still looking at whether or not there was reasonable diligence on the part of the moving party the other thing just looking at prejudice you could imagine having a rule that if it's going to cost the opposing party a certain amount of extra money that the plaintiff could have to pay the defendant for that extra time involved and pay attorney's fees for the extra time and if it if the expert is that important to the plaintiff because they've lost with their three experts being rejected than you know why not have that kind of a role because it seems it seems like a plaintiff or a defendant and goes to to both sides could easily make a mistake as to what the district court is going to require their experts to be able to say and then the party could easily be able to cure that by finding another expert who can say this missing piece and so shouldn't any side the defense or the plaintiffs be able to come back with a new and better expert to fill in the gaps that the district court identifies under dauber i think that would only be the case if the moving party had demonstrated reasonable diligence in order to comply with the earlier scheduling deadline i don't get to prejudice you don't get to prejudice it as a matter of fact there is some case law that actually sort of takes the line that if you've determined that in fact there has not been room but there has not been diligence then you don't need to get to the prejudice issue you can only get to the prejudice issue if you determine that the moving party has exercise reasonable diligence and here it is clearly under rule sixteen that's what they presented to the district court they didn't refer to rule thirty seven and so the analysis is on a rule sixteen and they have not demonstrated reasonable diligence under rule sixteen thank you the high school question that is formally totally  relevant to the case but i'm curious what it what exactly is a litigation facility i mean if you win some million dollar lawsuit or if you lose where where does that money come from so  part of the as part of the reorganization there were sort of two facilities that were created there was a settlement facility which was the facility that is involved in paying the settlement claims and then there's a litigation facility so for those individuals who and if a huge judgment goes against you ultimately go to the shareholders of dow corning or is it does it come out of a limited pool some of which would go to pay others or what your honor i don't know the answer that question i'm happy to try to get the that's if there is a an award you know whether it comes out of a preexisting pool or not obviously what i do know is that this this facility was created to litigate and to resolve claims and they closed o including the understand though he has incorporated here that yes i thought of their shareholders of the litigation facility it is a wholly owned subsidiary of dow corning quarreling so if this thing loses money dow corning loses money and vice versa certainly there are some pool that will go somewhere else if it doesn't go to this planet well i know there's a pool for i know there's a poor under the bankruptcy on the bankruptcy process i just don't know how that is related to when you're looking at the issue of diligence i think it bears mention that the first status conference following the court's reversal we indicated to the trial judge our intent to file a motion for new experts at that time th appear motion was not yet in the hopper now it had been raised the first time and we were looking ahead of that but the point is that this motion was made before their job their motion that they prevailed on had been filed so we suggest that that we've been as diligent as possible when i did the district court say that you weren't diligent i don't think the court addressed the issue of diligence so much as saying that brouwer had testified before and she cited the delay and the expense now it also bears note that there's no prejudice expense wise if we had identified him earlier they still would be taking his deposition and that cost would still exist whether we identified him now or three years ago so put that aside as an element of prejudice what happened when the case was remanded is that we're still to send we had pending a motion to compel and a motion to allow the deposition of dow experts and what occurred was we tried to simplify it and get it rolling it's true that the original motion was broader than what happened but if you look in the record you'll find that we filed a supplement or a reply i'm not sure exactly how it was noted what we said was we don't need additional fact discovery will forego our motions that had been pending to compel and for things like that we identify brouwer by name as the only additional expert that we sought so by the time it actually came to argument of this motion we were simply talking about brauer as an added expert and in the process of giving up some of the other issues that might have been litigated because they were pending  in terms of the finding here's my understanding for what it's worth as part of the dow bankruptcy they created the facility and they endowed it with a fund of some number of billions of dollars and then according to my understanding that's used for defense costs and any judgments against them and when everything's settled whatever's left goes back to tao or by now its successors since a merger of dupont