Unreported / Non-Citable
Background
This is a False Claims Act “qui tam” case — a federal whistleblower suit in which a private party (the “relator”) sues a defendant on behalf of the United States and shares in any recovery. The relator, Everest Principals LLC, was formed by a former Abbott Laboratories employee who worked in Abbott’s Structural Heart Division from 2015 to 2017. The lawsuit alleges that Abbott’s so-called Therapy Awareness Programs and “speaker programs” for its MitraClip heart-valve device were not legitimate medical education but were vehicles for paying kickbacks to physicians to encourage MitraClip referrals — a practice that, if proved, would generate false claims under federal and state health-care laws.
The dispute in this order is procedural but high-stakes. Abbott served five expert reports on June 30, 2025, the affirmative-expert deadline. Two months later, on the rebuttal-expert deadline, the relator served a single expert report from Dr. David Healy, a Clinical Professor of Anesthesiology and Continuing Medical Education official at the University of Michigan. Dr. Healy’s report concluded that Abbott’s Therapy Awareness Programs lacked the qualities of legitimate medical education and were inconsistent with accepted educational standards.
Abbott moved to strike the entire Healy Report, arguing that it was actually a brand-new affirmative report disguised as rebuttal — that none of Abbott’s experts had opined on the educational quality of Abbott’s programs, only on whether physician education in general was needed. Federal Rule of Civil Procedure 26(a)(2)(D)(ii) limits a rebuttal expert’s testimony to material “intended solely to contradict or rebut evidence on the same subject matter” identified by the other side’s affirmative experts.
The Court’s Holding
The magistrate judge denied Abbott’s motion to strike but agreed with Abbott on the underlying procedural point. Looking at each of Abbott’s five expert reports next to Dr. Healy’s report, the judge concluded that the Healy Report addressed only the same general subject matter — “medical education” — but did not actually rebut what Abbott’s experts had opined. Abbott’s experts said physician education was generally necessary; Dr. Healy opined that Abbott’s specific programs failed to qualify as legitimate education. Those are different subjects under Rule 26, even though they sound related. Dr. Healy himself acknowledged that several of Abbott’s experts had not addressed whether Abbott’s programs met educational standards. So the Healy Report exceeded the proper scope of rebuttal.
That conclusion would normally trigger Rule 37(c)(1), under which a party that fails to disclose a witness on time is barred from using that witness’s testimony unless the failure was substantially justified or harmless. But the judge declined to apply the “draconian” remedy of exclusion, citing the Ninth Circuit’s recognition that striking an expert is a serious sanction and that courts in this district routinely refuse to strike when there is enough time left in the case schedule to cure any prejudice. Here, the report was served well before the close of expert discovery and months before the originally scheduled pretrial conference, and no trial date had been set.
Instead, the court fashioned a tailored remedy: Abbott would be permitted to depose Dr. Healy by March 13, 2026, and to serve a sur-rebuttal expert report contradicting his opinions by April 13, 2026. The court also vacated the existing pretrial conference, settlement conference, and related dates, ordering the parties to jointly propose a new schedule.
Key Takeaways
- A rebuttal expert is not a back-door affirmative expert. Federal Rule 26 limits rebuttal testimony to material that actually contradicts evidence offered by the other side’s affirmative experts on the same subject matter — addressing the same general topic is not enough.
- Even when a rebuttal report exceeds proper limits, district courts have wide discretion under Rule 37 and routinely choose remedies short of exclusion when there is time left in the case schedule to cure prejudice.
- Allowing the opposing side to depose the rebuttal expert and serve a sur-rebuttal report is a common middle-ground remedy in the Southern District of California for late or out-of-scope expert disclosures.
- In False Claims Act qui tam cases involving allegations that physician-education programs are disguised kickbacks, the qualitative evaluation of the programs themselves is an affirmative claim element that should be disclosed during the affirmative-expert phase, not during rebuttal.
Why It Matters
Federal False Claims Act litigation against medical-device and pharmaceutical companies often turns on the line between legitimate physician education and illegal kickbacks. Whether a particular educational event qualifies as bona fide continuing medical education or is instead a marketing junket dressed in CME clothing is precisely the kind of opinion testimony juries rely on. This decision is a reminder that lawyers in these cases need to designate that opinion as an affirmative expert opinion, served by the affirmative-expert deadline, and not save it for the rebuttal stage.
For California qui tam practitioners, the case is also a useful illustration of how Southern District of California magistrates handle late expert disclosures. Striking an expert is rare, but the late-disclosing party should expect to give up significant procedural ground in the form of additional depositions, sur-rebuttal reports, and reset case schedules.