Supplemental Disclosures Are Not an Extension of Expert Opinion Deadline

Supplemental disclosures of an expert opinion are intended to be supplements, not to be the "lion's share" of the expert information, a US District Court has ruled, excluding the expert witness' opinion.

In Gibson v. SmithKline Beecham Corp. (dba GlaxoSmithKline LLC), (U.S. District Court, S.D. Miss., Mar. 17, 2016), Donna Jo Gibson claimed that her son, J.G., was injured by the drug Paxil, which she took during her pregnancy. She retained Dr. Aaron M. Wolfson, a vocational rehabilitation expert witness, to provide a preliminary report regarding J.G.'s future medical expenses and lost future wages.

GlaxoSmithKline LLC (GSK) moved to strike the designation of Wolfson, arguing that his opinions regarding future medical expenses and lost future wages were speculative and unsupported. Instead of striking Wolfson, the court gave Gibson a five month extension for designating an expert witness to allow Wolfson time to incorporate the results of J.G.'s upcoming medical procedures.

After that deadline passed, Gibson moved for another extension of the deadline to allow Wolfson time to analyze some recently produced documents. The court gave a two-week extension. After that, GSK again moved to exclude Wolfson's report, arguing again that it was preliminary and incomplete, speculative and unsupported.

Wolfson had admitted in his report that it was preliminary. His assessment of J.G.'s future medical costs was a statement that he could not make a medical cost analsis without further information from J.G.'s physicians. Wolfson had stated that "this initial preliminary assessment will require amendment pending the receipt of additional information that was not available prior to court­imposed discovery deadlines." Gibson had also agreed that Wolfson's report was an "initial assessment" of J.G.'s future medical costs, but argued that the report would be supplemented, as allowed by the Rules of Civil Procedure.

The court disagreed, citing past precedent and ruling that an initial disclosure of an expert report must be "complete and detailed." Supplemental disclosures, the court said, "are not intended to provide an extension of the deadline by which a party must deliver the lion's share of its expert information." The court noted that Gibson had been given two extensions to the expert designation deadline, and ruling that Wolfson would not be allowed to testify regarding future medical costs.

GSK also moved to exclude Wolfson's lost future wages opinion (Vocational Outlook Opinion), arguing that it provided "no rationale linking J.G.'s educational difficulties in elementary school to Wolfson's conclusion that J.G. would not be capable of advancing beyond high school."

Wolfson had opined that “[g]iven J.G.'s documented academic difficulties, it is more likely than not that his formal education would terminate after high school graduation." Given J.G.'s physical limitations on his ability to work, Wolfson concluded that J.G. would only be able to perform "sedentary to light/medium physical demand work that required no more than a high school degree."

The court found no basis for Wolfson's vocational outlook opinion, excluding it as well. Wolfson did not, the court said, discuss whether his methodology had been previously tested, or subjected to peer review or publication, any potential error rates, etc. Neither did he make any connection between academic performance in the first few years of schooling and the stated probability of achieving no more than a high school education. "Dr. Wolfson simply states that it is so," the court wrote, finding that nothing required it to admit opinion evidence on the ipse dixit of the expert.

Having rejected both of Wolfson's opinions, the court struck Wolfson as an expert witness.