Opinion

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 UNITED STATES OF AMERICA, et al. ex rel. Case No.: 20cv286-W (MSB)

Everest Principals, LLC,

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ORDER DENYING DEFENDANTS’

Plaintiffs,

13 MOTION TO STRIKE

v.

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[ECF NO. 224]

ABBOTT LABORATORIES, et al.,

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Defendants.

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18 This is a qui tam case, wherein Plaintiff-Relator, Everest Principals, LLC (“Relator”)

19 maintains causes of action against Defendants Abbott Laboratories, Abbott Laboratories

20 Inc., Abbott Cardiovascular Systems Inc., and Abbott Vascular Inc. (collectively referred

21 to as “Defendants” or “Abbott”) on behalf of the United States of America and several

22 states for violations of the federal False Claims Act (“FCA”) and analogous state laws.

23 (ECF No. 85 at 6.) Relator is a limited liability company whose sole member was

24 employed by Defendants as a Therapy Development Specialist in its Structural Heart

25 Division from August 2015 to April 2017. (Id. at 7.) Defendants are involved in the

26 manufacturing and sale of medical devices, instruments, medications, and other health

27 care products. (Id. at 8.)

2 Rebuttal. (ECF No. 224, hereinafter “Motion to Strike.”) After reviewing letter briefs

3 lodged by the parties, the Court held Telephonic Discovery Conferences on October 6,

4 2025, and October 14, 2025, to address various issues pertaining to expert reports. (ECF

5 Nos. 216 & 219.) Following the conference, the parties jointly requested an opportunity

6 for formal briefing as to the Court’s tentative order striking the entire August 29, 2025,

7 report of Relator’s expert Dr. David Healy (“Healy Report”). (ECF No. 221.) For the

8 reasons outlined below, the Court DENIES Defendants’ Motion to Strike.

9 I. BACKGROUND

10 A. Defendants’ Motion to Strike

11 In short, Defendants argue the Healy Report should be stricken because it

12 improperly discloses affirmative expert opinions disguised as rebuttal opinions. (ECF

13 No. 224-1 at 2.) On August 29, 2025, the rebuttal report deadline, Relator disclosed Dr.

14 Healy for the first time. (Id.) The Healy Report contains two overarching opinions: (1)

15 “Abbott’s Therapy Awareness Programs lacked many of the qualities necessary to meet

16 an educational objective consistent with prevailing standards;” and (2) “Abbott’s

17 Therapy Awareness Programs . . . [were] inconsistent with accepted educational

18 standards” in other respects too. (Id. at 3 (citing Healy Report ¶¶ 14–15).) Defendants

19 contend that “none of Abbott’s opening reports contained any opinions whatsoever on

20 the subjects that Dr. Healy references.” (Id.) Moreover, Defendants argue that Dr.

21 Healy makes “textbook affirmative expert opinions that should have been disclosed, if at

22 all, by the June 30 [affirmative expert] deadline.” (Id. at 5.)

23 Defendants dispute Relator’s contention that Dr. Healy’s opinions are based on

24 the same subject matter as Defendants’ expert reports. (Id. at 5–6.) Instead,

25 Defendants assert that Abbott’s experts “opined that education was necessary and

26 explained why—not whether Abbott’s provision of education was or was not

27 appropriate as judged against the so-called ‘standards of medical education.’” (Id.

2 Dr. Anupam Jena—Defendants argue “none of those references contradict or rebut

3 evidence on the same subject matter identified in Abbott’s reports,” in violation of Rule

4 26(a)(2)(D)(ii). (Id. at 6–8.) Finally, Defendants contend striking the Healy Report is the

5 proper remedy because Relator cannot establish substantial justification or

6 harmlessness. (Id. at 9 (citing Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d

7 1101, 1106 (9th Cir. 2001).) By disclosing Dr. Healy’s opinion on August 29 rather than

8 June 30, Defendants contend “Relator deprived Abbott of the opportunity to rebut [the

9 opinions].” (Id.) Further, Defendants claim Relator’s late disclosure harmed Defendants

10 by forcing them to divert attention from expert depositions and dispositive motions and

11 incur additional attorneys’ fees. (Id. at 10.)

12 B. Relator’s Opposition

13 In response, Relator argues the Healy Report is proper rebuttal testimony and

14 Defendants’ Motion to Strike should be denied. (ECF No. 225 at 2.) Relator alleges that

15 Defendants “seek[] an impermissibly narrow standard of what constitutes proper

16 rebuttal that prevents a rebuttal expert from challenging affirmative experts’ underlying

17 assumptions and methodology and presenting facts and data that they failed to

18 consider altogether.” (Id.) Further, Relator maintains that accepting Defendants’

19 position “would turn the very purpose of rebuttal testimony on its head.” (Id.)

20 More specifically, Relator argues that the Healy Report contains proper rebuttal

21 testimony because it (1) addresses the same subject matter as Defendants’ affirmative

22 experts’ reports—namely, the purported medical education need and fulfillment of such

23 need by Abbott’s events—and (2) is intended solely to rebut Defendants’ affirmative

24 experts’ reports. (Id. at 4–5.) On June 30, 2025, Relator contends five of Defendants’

25 medical experts offered affirmative opinions “on the supposed need for physician

26 education on the MitraClip and whether Abbott’s events were conducted in a manner to

27 meet that need.” (Id. at 5, 6–9.) Relator argues it served the Healy Report on August

2 Report is offered to show Defendants’ experts “consistently overlooked established

3 principles of professional learning, substituting personal impressions or anecdotal

4 experience for evidence-based evaluation.” (Id. at 10–11 (citing Healy Report ¶¶ 62–

5 63).) Furthermore, Dr. Healy’s Report shows that “Abbott’s events ‘deviated

6 substantially from the standards of legitimate medical education.’ ” (Id. at 11 (citing

7 Healy Report ¶¶ 62–63).) Even if the Court finds any of Dr. Healy’s opinions were

8 improper rebuttal, Relator argues the Healy Report was served before the discovery

9 cutoff, Dr. Healy’s deposition, and the final pretrial conference. (Id. at 11.) Thus, there

10 is time to cure any possible prejudice, and the appropriate relief would be to permit

11 Defendants to take Dr. Healy’s deposition and serve a rebuttal report in response to the

12 Healy Report. (Id.)

13 II. APPLICABLE LAW

14 Federal Rule of Civil Procedure 26 governs the disclosure of expert testimony.

15 “Unless otherwise stipulated or ordered by the court, this disclosure must be

16 accompanied by a written report—prepared and signed by the witness . . . .” Fed. R. Civ.

17 P. 26(a)(2)(B). The report must contain a “complete statement of all opinions the

18 witness will express and the basis and reasons for them,” as well as “the facts or data

19 considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i)–(ii).

20 Additionally, the report must include the witness’s qualifications and “a statement of

21 the compensation to be paid for the study and testimony in the case.” Fed. R. Civ. P.

22 26(a)(2)(B)(iv), (vi). “A party must make these disclosures at the times and in the

23 sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D).

24 “A party need not disclose an expert within the deadline for initial expert reports,

25 and can instead disclose an expert as a ‘rebuttal expert,’ when the expert’s testimony is

26 ‘intended solely to contradict or rebut evidence on the same subject matter identified

27 by an initial expert witness.’” Clear–View Techs., Inc. v. Rasnick, No. 13-cv-02744-BLF,

2 because a broad reading that “encompass[es] any possible topic that relates to the

3 subject matter at issue . . . will blur the distinction between ‘affirmative expert’ and

4 ‘rebuttal expert.’” Vu v. McNeil–PPC, Inc., No. CV 09-1656 ODW (RZx), 2010 WL

5 2179882, at *3 (C.D. Cal. May 7, 2010). “The court must carefully analyze the

6 initial expert’s proposed testimony and the corresponding expert’s rebuttal testimony

7 to determine the propriety of the rebuttal testimony.” Obesity Research Inst., LLC v.

8 Fiber Research Int’l, LLC, No. 15-cv-0595-BAS-MDD, 2016 WL 795888, at *1 (S.D. Cal.

9 Mar. 1, 2016) (citing HM Elec., Inc. v. R.F. Techs., Inc., No. 12-cv-2884-BAS-MDD, 2015

10 WL 1879428, at *1 (S.D. Cal. Apr. 17, 2015)). Ninth Circuit courts have denied motions

11 to strike supplemental expert reports considering “the low risk of prejudice to the

12 Plaintiff and the public policy favoring disposition of cases on the merits.” Gray v.

13 United States, No. 05-cv-1893-J (BLM), 2007 WL 4644736, at *3 (S.D. Cal. Mar. 12,

14 2007).

15 “A ‘party may not rely on Rule 26(e)(1) as a way to remedy a deficient expert

16 report or as a means of getting in, in effect, a brand new report.’” Cueto v. Overseas

17 Shipholding Grp., Inc., No. 10-cv-1243-LAB (NLS), 2012 WL 28357, at *2 (S.D. Cal.

18 Jan. 4, 2012) (quoting Medtronic Vascular, Inc. v. Abbott Cardiovascular Sys., Inc., 2008

19 WL 4601038, at *1 (N.D. Cal. Oct. 15, 2008)). Further, a rebuttal expert report “is not

20 the time to change methodologies to account for noted deficiencies; instead, it is to

21 respond to criticisms of such methodologies.” Alvarez v. NBTY, Inc., No. 17-cv-00567-

22 BAS-BGS, 2019 WL 1353713, at *3 (S.D. Cal. Mar. 25, 2019) (internal citation and

23 quotation marks omitted). “[O]ffering a different, purportedly better methodology,”

24 however, is a “proper way to rebut the methodology of someone else.” Id. (internal

25 citation and quotation marks omitted).

26 Parties who run afoul of Rule 26 may face sanctions as specified Rule 37, which

27 provides in relevant part:

2 Rule 26(a) or (e), the party is not allowed to use that information or witness

to supply evidence on a motion, at a hearing, or at a trial, unless the failure

3 was substantially justified or is harmless.

4 Fed. R. Civ. P. 37(c)(1). The party facing sanctions bears the burden of proving

5 substantial justification or harmlessness. Yeti by Molly, Ltd., 259 F.3d at 1107. A district

6 court has “particularly wide latitude” in determining whether to issue sanctions under

7 Rule 37(c)(1). Id. at 1106.

8 III. DISCUSSION

9 A. Healy Report

10 On August 29, 2025, Relator produced the Healy Report, purportedly rebutting

11 five of Defendants’ affirmative expert reports.1 Dr. Healy is a Clinical Professor of

12 Anesthesiology and the Assistant Dean for Continuing Medical Education (“CME”) and

13 Lifelong Learning at the University of Michigan Medical School. (Healy Report ¶ 5.) Dr.

14 Healy notes he was retained by Relator to respond to Defendants’ affirmative experts’

15 opinions “concerning medical education provided by Abbott’s therapy awareness

16 programs for the MitraClip device.” (Healy Report ¶ 1.) In doing so, Dr. Healy explains

17 he “addresses the standards of appropriate medical education, the characteristics of

18 activities that are inconsistent with medical education purposes, and whether the

19 therapy awareness programs, and more specifically the speaker programs and other

20 company-sponsored events . . . held by Defendants . . . met prevailing standards for

21 providing medical education.” (Id.) Dr. Healy states that “[a]s an expert witness, I

22 evaluate whether educational activities meet accepted professional standards, are free

23 from commercial bias, and are designed to promote improved clinical care.” (Healy

24 Report ¶ 12.) The Healy Report contains two principal opinions: (1) “Abbott’s Therapy

25 Awareness Programs lacked many of the qualities necessary to meet an educational

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2 Programs” were otherwise “inconsistent with accepted educational standards.” (Healy

3 Report ¶¶ 14–15.) Dr. Healy references five of Defendants’ expert reports, which are

4 summarized below.

5 B. Makar Report

6 In a footnote, Dr. Healy claims to rebut parts of Dr. Moody Malak Makar’s June 30

7 Report (“Makar Report”). (See Healy Report ¶ 37 n. 6.) Dr. Makar is “an

8 echocardiographer and cardiac anesthesiologist.” (See Makar Report at 1.) Dr. Makar

9 was retained by Defendants “to opine on various topics relating to echocardiography

10 and the MitraClip procedure.” (Id.) Relevant to the instant dispute, Dr. Makar

11 concluded: “heart teams at new implanting sites need to be trained on how to perform

12 the MitraClip procedure and diagnose appropriate patients for the procedure.” (Makar

13 Report ¶ 3.)

14 Relator argues Dr. Healy rebuts Dr. Makar’s “opinions about ‘medical education

15 generally’ because the ‘technical device training’ Dr. Makar discusses is fundamentally

16 distinct from Abbott’s speaker programs, which Dr. Makar does not address

17 specifically.” (ECF No. 225 at 8 (citing Healy Report ¶ 37 n. 6).) Dr. Healy acknowledges

18 “Dr. Makar does not address Abbott’s speaker programs at all, and his Report provides

19 no evidence that those programs were legitimate educational activities.” (Healy Report

20 ¶ 37 n. 6.) Moreover, Dr. Healy opines that an article Dr. Makar relies on “does not

21 support Dr. Makar’s position” and instead “demonstrates how far Abbott’s programs fall

22 from established standards of medical education.” (Id.)

23 C. Bolling Report

24 Similarly, Dr. Healy addresses paragraph 2.A of Dr. Steven Bolling’s June 30 Report

25 (“Bolling Report”) in a footnote. (See Healy Report ¶ 37 n. 7.) Dr. Bolling is a cardiac

26 surgeon who was retained by Defendants “to opine on the impact of MitraClip on

27 treatment for degenerative mitral regurgitation, including the education necessary to

2 (Bolling Report at 1.) Dr. Bolling concluded: “Because MitraClip was an innovation, it

3 was not well-known or well-understood when it was approved, thus, there has been an

4 unmet need that persisted as many patients who could have benefited from the device

5 were not appropriately referred.” (Bolling Report ¶ 2.A.)

6 Relator argues Dr. Healy rebuts Dr. Bolling’s medical education opinions by

7 explaining Dr. Bolling “assumes, without analysis, . . . that Abbott’s speaker programs

8 satisfied this educational role.” (ECF No. 225 at 8 (citing Healy Report ¶ 37 n. 7).) Dr.

9 Healy also remarks on how Dr. Bolling did not “examine their design, content,

10 interdependence, or effectiveness” or “distinguish between accredited CME and

11 promotional speaker events.” (Healy Report ¶ 37 n. 7.) Further, Dr. Healy opines that

12 Dr. Bolling conflates two issues: “the genuine need for physician education and the

13 question of whether Abbott’s programs constituted legitimate education.” (Id.) Dr.

14 Healy notes “literature makes clear that commercially influenced events often lack

15 independence and are less effective than independent, peer-reviewed CME activities.”

16 (Id.)

17 D. Urey Report

18 Next, Dr. Healy claims to rebut paragraphs 2.1 through 2.10 of Dr. Marcus Urey’s

19 June 30 Report (“Urey Report”). (See Healy Report ¶¶ 38–39.) Dr. Urey is a

20 “cardiologist who specializes in advanced heart failure, mechanical circulatory devices,

21 and the care of heart transplant patients.” (See Urey Report at 1.) Dr. Urey was

22 retained by Defendants “to opine on how mitral regurgitation patients are referred for

23 specialized evaluation and treatment, including with MitraClip, the role of industry-

24 sponsored events in educating healthcare providers involved in cardiac referral

25 pathways, the impact of MitraClip on the treatment of mitral regurgitation patients, and

26 the roles of the heart failure specialist in recommending, and the patient in choosing,

27 MitraClip.” (Id.)

2 necessary to ensure that patients are timely referred for vital treatments.” (ECF No. 225

3 at 7 (citing Urey Report ¶¶ 2.1–2.10.) First, Dr. Healy opines that Dr. Urey’s “assertion

4 that Abbott’s programs improved outcomes is unsupported” because “Dr. Urey provides

5 no evaluation data[,] does not examine whether the programs met accepted

6 educational standards,” and “relies primarily on his own experience as both a

7 participant and speaker at such events.” (Healy Report ¶ 38 (citing Urey Report ¶ 2.8).)

8 Additionally, Dr. Healy notes that “broader evidence” contradicts Dr. Urey’s conclusion.

9 (Healy Report ¶ 39.) For example, Dr. Healy says “[s]ystematic reviews consistently

10 show that didactic, commercially influenced programs do not improve long-term

11 knowledge retention or patient outcomes.” (Id.) Dr. Healy also found “Dr. Urey

12 overlooks the robust, independent sources of physician education, including CME, peer-

13 reviewed literature, and professional society guidelines.” (Id.)

14 E. Reeves Report

15 Dr. Healy next addresses paragraphs 5.1 through 5.7 of Dr. Ryan Reeves’ June 30

16 Report (“Reeves Report”). (See Healy Report ¶¶ 40–43.) Dr. Reeves is “a board-

17 certified cardiologist who specializes in cardiovascular medicine and interventional

18 cardiology.” (See Reeves Report at 1.) He was retained by Defendants “to opine on the

19 disease state of mitral regurgitation and its treatment, including treatment with

20 Abbott’s MitraClip device, the role of physician education and referrals in the selection

21 of proper MitraClip patients, and the role of an interventional cardiologist in evaluating

22 a patient for, and implanting, MitraClip.” (Id.) Regarding medical education, Dr. Reeves

23 concluded: “It is important to educate clinical cardiologists so that they can identify

24 appropriate candidates for evaluation by a heart team early enough to give the patient

25 the best outcome.” (Reeves Report ¶ 5.)

26 Relator argues the Healy Report rebuts the Reeves Report in several ways. (ECF

27 No. 225 at 6–7.) First, Dr. Healy explains, “Dr. Reeves assumes that Abbott’s therapy

2 Reeves Report ¶¶ 5.1–5.7).) Dr. Healy continues, “Dr. Reeves does not examine

3 whether the programs were based on documented educational needs, whether the

4 content was balanced and evidence-based, whether multidisciplinary perspectives were

5 included, or whether outcomes were assessed.” (Healy Report ¶ 40.) Further, Dr. Healy

6 opines Dr. Reeves does not “distinguish between accredited CME and company-

7 controlled promotional events.” (Id.) Finally, Dr. Healy observes that Dr. Reeves “makes

8 no reference to the wide variety of high-quality, unbiased continuing education that was

9 readily available to physicians.” (Id. ¶ 41.) Dr. Healy also criticizes two of the sources

10 Dr. Reeves relies on and opines that “Dr. Reeves disregards well-established evidence

11 showing that didactic, commercially influenced events are both less effective and more

12 susceptible to bias.” (Id. ¶¶ 42–43.)

13 F. Jena Report

14 Finally, Dr. Healy claims to rebut Dr. Anupam B. Jena’s June 30 Report (“Jena

15 Report”). (See Healy Report ¶¶ 47–49.) Dr. Jena is a physician specializing in internal

16 medicine and an economist specializing in, among other things, the economics of

17 physician behavior, healthcare productivity, and medical innovation. (See Jena Report

18 ¶¶ 1–3.) Dr. Jena determined that “[e]ducation plays a legitimate and necessary role in

19 spreading awareness and helping physicians identify appropriate candidates,

20 particularly for novel therapies such as MitraClip.” (Jena Report ¶ 94.) Further, Dr. Jena

21 concluded “one must isolate the effect of the alleged kickback from the legitimate and

22 beneficial impact of physician education provided during Abbott’s MitraClip events.”

23 (Id.)

24 Dr. Healy attempts to rebut Dr. Jena’s opinions that “education was essential for

25 adoption of MitraClip,” “Abbott’s speaker programs provided meaningful education,”

26 and “any evaluation of improper influence must ‘isolate’ the educational benefit of

27 these programs.” (Healy Report ¶ 48).) Dr. Healy opines that Dr. Jena’s reasoning is

2 that describing Abbott’s programs “as education lowers the threshold for what qualifies

3 as education below accepted professional norms.” (Id.) Furthermore, Dr. Healy notes

4 that the Jena Report “relies on participant testimony that physicians discussed clinical

5 data and cases at these events;” however, Dr. Healy opines “informal case discussions in

6 a promotional environment do not transform the activity into legitimate education.”

7 (Healy Report ¶ 46 n. 16.)

8 G. Analysis

9 Under Federal Rule 26(a)(2)(D)(ii), an expert report qualifies as a rebuttal report if

10 it “is intended solely to contradict or rebut evidence on the same subject matter

11 identified by another party under Rule 26(a)(2)(B) or (C).” Fed. R. Civ. P. 26(a)(2)(D)(ii).

12 Accordingly, the Court must assess: (1) whether the Healy Report addresses the same

13 subject matter as the initial reports it purportedly rebuts; and (2) whether the Healy

14 Report “is intended solely to contradict or rebut evidence” in the initial reports. See

15 Leadership Stud., Inc. v. Blanchard Training & Dev., Inc., No. 15cv1831, 2018 WL

16 1989554, at *10 (S.D. Cal. Apr. 27, 2018) (citing Fed. R. Civ. P. 26(a)(2)(A) & (D)(ii)),

17 report and recommendation adopted, No. 15cv1831, 2018 WL 3752373 (S.D. Cal. Aug. 7,

18 2018).

19 Relator generally contends the Healy Report responds to the same subject matter

20 as Defendants’ affirmative expert reports: “the purported medical education need

21 provided by Abbott’s events.” (ECF No. 225 at 4.) By contrast, Defendants argue their

22 affirmative experts “opined that education was necessary and explained why—not

23 whether Abbott’s provision of education was or was not appropriate as judged against

24 the so-called ‘standards of medical education.’” (ECF No. 224-1 at 5–6 (citing Healy

25 Report ¶ 47).) In comparing the Healy Report against Defendants’ five affirmative

26 expert reports, the Court finds Defendants’ arguments to be more persuasive. Although

27 the Healy Report addresses the same general subject matter (medical education) as

2 the subject matter at issue, it will blur the distinction between ‘affirmative expert’ and

3 ‘rebuttal expert.’ More importantly, such broad reading of Rule 26(a)(2)(C)(ii) will

4 render the scope of the subject matter limitless and will lead to unjust results.”); see

5 also Tubio v. Adidas Am. Inc., No. CV 22-6424 GW (PVCX), 2024 WL 1191051, at *2 (C.D.

6 Cal. Feb. 5, 2024) (“[M]erely opining on the same general subject manner does not

7 qualify as a rebuttal report if the report does not explicitly rebut and contradict the

8 same evidence relied on by the expert report it seeks to rebut.”); Fed. Trade Comm'n v.

9 Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 6522134, at *4 (N.D. Cal. Dec. 11, 2018)

10 (“However, a rebuttal expert does not receive carte blanche to address the broad

11 subject matter of the case, but rather to ‘contradict or rebut evidence on the same

12 subject matter’ as the other party’s expert report.”) (internal citations omitted).

13 After a thorough review of the relevant reports, the Court finds the Healy Report

14 is not “intended solely to contradict or rebut evidence on the same subject matter” as

15 Defendants’ affirmative expert reports, as required by Rule 26. See Fed. R. Civ. P.

16 26(a)(2)(D)(ii). Indeed, the Healy Report goes well beyond simply addressing the need

17 for “medical education” and advances two overarching opinions about Abbott’s

18 programs: (1) “Abbott’s Therapy Awareness Programs lacked many of the qualities

19 necessary to meet an educational objective consistent with prevailing standards;” and

20 (2) “Abbott’s Therapy Awareness Programs” were also “inconsistent with accepted

21 educational standards” in other respects. (Id. (citing Healy Report ¶¶ 14–15).)

22 However, as summarized above, none of Defendants’ affirmative experts opined directly

23 on whether Abbott’s programming met “prevailing” or “accepted” standards for medical

24 education. (See supra Sections III.B–F.)

25 For example, the Reeves Report concludes: “It is important to educate clinical

26 cardiologists so that they can identify appropriate candidates for evaluation by a heart

27 team early enough to give the patient the best outcome.” (Reeves Report ¶ 5.) In

2 included any hallmarks of bona fide educational activity.” (Healy Report ¶ 40.) Dr.

3 Healy admits “Dr. Reeves does not examine whether [Abbott’s] programs were based

4 on documented educational needs, whether the content was balanced and evidence-

5 based, whether multidisciplinary perspectives were included, or whether outcomes

6 were assessed.” (Id.) Thus, by Dr. Healy’s own admission, he does not address the same

7 subject matter as Dr. Reeves’ Report.

8 Similarly, the Urey Report concludes: “Industry-sponsored events improve patient

9 outcomes by providing education necessary to ensure that patients are timely referred

10 for vital treatments.” (Urey Report ¶ 2.) In response, Dr. Healy states that Dr. Urey’s

11 “assertion that Abbott’s programs improved outcomes is unsupported.” (Healy Report

12 ¶ 38.) However, Dr. Urey did not discuss whether “Abbott’s programs” qualified as CME

13 or otherwise met prevailing standards of medical education; instead, Dr. Urey

14 commented generally on “industry-sponsored events.” (See generally Urey Report ¶¶

15 2.1–2.10.) Dr. Healy acknowledges “Dr. Urey provides no evaluation data and does not

16 examine whether [Abbott’s] programs met accepted educational standards,” thereby

17 admitting Dr. Urey addressed a different subject matter. (Healy Report ¶ 38.)

18 Additionally, the Bolling Report opines there was an unmet need even after MitraClip

19 was approved, but it does not opine that Abbott’s programs satisfied this educational

20 need. Compare Bolling Report ¶ 2.A (“Because MitraClip was an innovation . . . there

21 has been an unmet need that persisted as many patients who could have benefited

22 from the device were not appropriately referred”), with Healy Report ¶ 37 n. 7 (“Dr.

23 Bolling conflates two separate issues: the genuine need for physician education and the

24 question of whether Abbott’s programs constituted legitimate education”).

25 Rather than addressing Abbott’s experts’ opinions—namely, that education was

26 necessary for the MitraClip procedure and industry could generally play a role in

27 providing this education—Dr. Healy assessed the quality of Abbott’s programs.

2 trial of any information . . . that is not properly disclosed.” Yeti by Molly Ltd., 259 F.3d

3 at 1106 (citing Fed. R. Civ. P. 37(c)(1)). Belatedly disclosed evidence may be excused if it

4 is substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1); Goodman v. Staples The

5 Off. Superstore, LLC, 644 F.3d 817, 826 (9th Cir. 2011). Even though the Court finds the

6 Healy Report exceeds the scope of proper rebuttal, the Court recognizes “[e]xcluding an

7 expert from testifying is a ‘Draconian sanction.’ ” People v. Kinder Morgan Energy

8 Partners, L.P., 159 F. Supp. 3d 1182, 1193 (S.D. Cal. 2016) (quoting Gibson v. Credit

9 Suisse AG, 2016 WL 81224, at *4, 2016 U.S. Dist. LEXIS 2088, at *13 (D. Idaho Jan. 7,

10 2016). Courts typically decline to exclude experts as a sanction where there is ample

11 time to depose the expert. See, e.g., In re Uber Techs., Inc., Passenger Sexual Assault

12 Litig., No. 23-MD-03084-CRB (LJC), 2025 WL 3653918, at *12 (N.D. Cal. Dec. 17,

13 2025); Andrews v. Plains All Am. Pipeline, L.P, No. CV 15-4113 PSG (JEMx), 2019 WL

14 6647928, at *5 (C.D. Cal. Nov. 22, 2019) (declining to strike where defendants would

15 “still have the opportunity to prepare responses . . . and depose these experts with an

16 extended deadline, thereby solving the problem short of striking the reports”); Downs v.

17 River City Group, LLC, No. 3:11-CV-00885-LRH-WGC, 2014 WL 814303, *8 (D. Nev. Feb.

18 28, 2014).

19 Here, the Healy Report was served on August 29, 2025, well before the cutoff of

20 expert discovery (October 24, 2025), the dispositive motions filing deadline (December

21 19, 2025), and the Final Pretrial Conference (April 27, 2026). (ECF No. 147.) Because no

22 trial date has been set, there is ample time to cure any possible prejudice. Thus, the

23 Court finds any failure to timely designate Dr. Healy as an affirmative expert was

24 substantially justified and harmless, and the striking of the Healy Report is not

25 warranted. Discretionary relief is nevertheless appropriate to rectify any potential

26 unfairness. Accordingly, the Court will allow Defendants to take Dr. Healy’s deposition

27 and serve an expert report in rebuttal to the Healy Report. See Self v. Perspecta Enter.

1 || serve an expert report in rebuttal); San Diego Cnty. Credit Union v. Citizens Equity First

2 || Credit Union, No. 18CV967-GPC (MSB), 2020 WL 8621524, at *9 (S.D. Cal. June 12,

3 || 2020), objections overruled, No. 18CV967-GPC (MSB), 2020 WL 5797827 (S.D. Cal. Sept.

4 2020), aff'd, 60 F.4th 481 (9th Cir. 2023), opinion amended and superseded on

5 || denial of reh’g, 65 F.4th 1012 (9th Cir. 2023), and aff'd, 65 F.4th 1012 (9th Cir. 2023)

6 (declining to strike supplemental expert report due to a finding of harmlessness).

7 IV. CONCLUSION

8 For the reasons discussed above, Defendants’ Motion to Strike is DENIED.

9 || Defendants may depose Dr. Healy about his August 29, 2025, report no later than

10 || March 13, 2026. Additionally, Defendants may serve a sur-rebuttal report contradicting

11 || or rebutting Dr. Healy’s opinions no later than April 13, 2026. The Court sua sponte

12 || VACATES the Mandatory Settlement Conference, Final Pretrial Conference, and related

13 || dates [ECF No. 147]. The parties are ORDERED to jointly contact Judge Berg’s chambers

14 || with a proposed schedule for resetting these dates no later than January 26, 2026.

15 IT IS SO ORDERED.

16 ||Dated: January 12, 2026 =

_ 2 FF

18 Honorable Michael S. Berg

United States Magistrate Judge

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