Moller v. Martian Sales, Inc.

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Dr. Josef Thundiyil is Plaintiff's designated expert toxicologist that will be called to testify at trial. ECF No. 196. On the November 18, 2025, expert disclosure deadline, Plaintiff provided Dr. Thundiyil's expert report with his attached Curriculum Vitae ("CV") dated April 14, 2025. ECF No. 217-1 at 4-5; No. 217-7. Dr. Thundiyil has opined that Plaintiff's daughter died as a result of ingesting kratom products distributed by the defendants. ECF No. 217-1 at 2. On January 16, 2026, JOpen deposed Dr. Thundiyil. ECF No. 221-1 at 2. JOpen's counsel asked the doctor whether he had ever performed any studies related to kratom, and he described an unpublished study from 2020 to 2024 looking at reported deaths in Florida from kratom as compared to a control group of patients that died in Orange County, Florida, who had kratom or mitragynine on board, but whose causes of death were not attributed to those substances. Id. at 3 (17:15-20), 5-6 (19:21-20:8), 14 (50:10-18). Although currently under peer review, Dr. Thundiyil indicated the study was presented as a poster and oral presentation in October 2025. Id. at 6 (20:2-

10). However, these presentations were not disclosed in his April 14, 2025, CV because that CV was not his "most recent" CV. ECF No. 217-6 at 4 (22:12-18). Plaintiff's counsel later provided JOpen's counsel another updated CV of Dr. Thundiyil, dated October 17, 2025. ECF No. 222-1 at 36 (234:12-21); see ECF No. 217-8.¹The October 2025 CV lists four poster presentations regarding mitragynine and kratom and three news segments regarding kratom, none of which was listed in the April 14, 2025, CV. Compare ECF No. 217-7 at 10, 18, 25, 31 (Last entries in listings of poster publications and presentations in April 14, 2025 CV), with ECF No. 217-8 at 10, 18, 25, 32 (Last entries in listings of poster publications and presentations in October 17, 2025, CV). On September 4, 2025, the abstract of the study at issue was published. ECF No. 217-4 at 3 (abstract of "Control study of mitragynine induced fatalities vs all causes deaths with

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mitragynine found on autopsy" (the "Study")). On January 21, 2026, Plaintiff produced the relevant posters listed in Dr. Thundiyil's October 2025 CV. ECF No. 217-5 at 2. The posters are entitled "Case Control study of mitragynine induced fatalities vs all causes deaths with mitragynine found on autopsy" ("Poster 1") and "Risk factors associated with kratom deaths in a single state"

("Poster 2"). ECF Nos. 217-2, 217-3. On January 23, 2026, JOpen requested Plaintiff produce certain documents relating to the posters, but Plaintiff did not produce same. ECF No. 217-1 at 12; No. 217-9 at 2, 4.

II. PENDING MOTIONS

On February, 3, 2026, JOpen filed its Motion to Preclude, requesting the Court preclude Plaintiff from using information related to the Study in any motion, trial or a hearing, pursuant to Rule 37(c)(1). ECF No. 217-1 at 1. Alternatively, JOpen requests the Court allow it an additional 2 hours to depose Dr. Thundiyil at Plaintiff's expense and award sanctions pursuant to Rule 30(d)(2). Id.²JOpen also requests the Court to compel Plaintiff to produce certain documents related to the posters, which the Court construes as a Motion to Compel pursuant to Rule 37(a)(3)(A). Id. at 1-2, 8. JOpen asserts the omissions of the four poster presentations and three news segments from the April 2025 CV constitute failure to provide required expert disclosure per Rule 26(a)(2)(B)(iv). Id. at 8-9. It then contends Plaintiff's failure is neither substantially justified nor harmless, and thus, Rule 37(c)(1) sanctions are appropriate. Id. at 10-12. In Opposition, Plaintiff notes Dr. Thundiyil updated his CV after the November 18, 2025, expert disclosure deadline and that, during the doctor's deposition, JOpen's counsel asked various

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questions relating the news segments and poster presentations. See ECF No. 221 at 2-4. Plaintiff asserts the disclosure of the October 2025 CV during the deposition was timely, and that disclosure, along with the provision of the abstracts, is substantially justified and not prejudicial to JOpen. Id. at 7-12. Plaintiff asserts there is no good cause to redepose Dr. Thundiyil because JOpen's counsel questioned him extensively about the October 2025 CV, the abstracts, and the Study, and the abstracts were publicly available as of September 2025. Id. at 12-13. As to the requested documents, Plaintiff asserts the Protective Order's attorneys-eyes-only provision is insufficient to protect the documents' sensitive data because JOpen's counsel has an alleged interest to use the documents for purposes other than this litigation due to a potential business relationship with JOpen. Id. at 14-15; see ECF No. 62. Plaintiff next asserts JOpen seeks sensitive personal health and identifying information that is protected by the Health Insurance Portability and Accountability Act ("HIPAA") and Louisiana law, privileged, and not relevant or proportional to the needs of the case. ECF No. 221 at 15-17.³

In Reply, JOpen asserts Plaintiff's contention that her expert disclosure is timely would eliminate the purpose of the disclosures, and any disclosure could be avoided by using the date the expert added the publication to his CV rather the date of the publication. ECF No. 224 at 2. It reiterates that it will be prejudiced if the Court does not preclude Plaintiff from using information

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relating to the Study because its conclusions form the basis of Dr. Thundiyil's expert opinion on mitragynine-related causes of death. Id. at 3-5.

III. APPLICABLE LAW AND ANALYSIS

A. Motion to Preclude

Rule 37(c) of the Federal Rules of Civil Procedure authorizes the preclusion of evidence (or other sanctions) when a party has failed to provide information as required by Rule 26(a) or (e). FED. R. CIV. P. 37(c)(1). Rule 37(c)(1) motions are akin to motions in limine⁴as same seek to secure a pretrial ruling that certain evidence is inadmissible.⁵Given the request that Plaintiff be precluded from using the information related to the Study at trial and the impact of same on the trial process, the prudent approach is to allow Chief Judge Vitter to determine what evidence may or may not be introduced during trial when addressing motions in limine. In light of available less severe alternatives, the undersigned denies JOpen's motion to preclude but does so without prejudice to JOpen raising the issue via a motion in limine before Chief Judge Vitter.

B. Motion to Compel

Under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure, "a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." The party must make the expert disclosure "at the times and in the sequence that the court orders." FED. R. CIV. P. 26(a)(2)(D).

Generally, expert disclosures "must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained . . . to provide expert testimony in the case,"

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and that report must contain, among other things, "a complete statement of all opinions the witness will express and the basis and reasons for them" and "the facts or data considered by the witness in forming them." FED. R. CIV. P. 26(a)(2)(B)(i)-(ii). The party must not only disclose the facts or data considered but must also produce same.⁶

The Advisory Committee's notes to Rule 26(a)(2)(B) indicate "facts or data" is "broadly"

interpreted "to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. The disclosure obligation extends to any facts or data 'considered' by the expert in forming the opinions to be expressed, not only those relied upon by the expert."⁷"[C]onsidered" in Rule 26(a)(2)(B) means any fact or data "furnished to a testifying expert that such expert 'generates, reviews, reflects upon, reads, and/or uses in connection with the formulation of his opinions, even if such [fact or data] is ultimately rejected.'"⁸ Rule 37 authorizes a party to move for an order compelling another party to make a disclosure required under Rule 26(a) that she failed to make. F ED. R. CIV. P. 37(a)(1), (3)(A). A

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Rule 37 motion "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Id. at 37 (a)(1). However, this requirement may be overridden when the circumstances warrant.⁹"In circumstances where the discovery may impact pending deadlines, the failure to certify has been sacrificed to achieve pragmatic ends such a[s] 'judicial expediency.'"¹⁰While JOpen's failure to provide the required Rule 37(a)(1) certificate would be a sufficient reason to deny its motion,¹¹considering the lapse of the expert discovery deadline, the Court will address the merits of the motion.¹²

JOpen requests the Court compel Plaintiff to disclose and produce certain documents and communications related to the studies reflected in Posters 1 and 2. ECF No. 217-1 at 4. Specifically, they are:

1) All research and case-related documents underlying the presentations on THUNDIYIL_000001 and THUNDIYIL_000002, including but not limited to the manual of operations and all "autopsy records and toxicology reports over a 5-year period for all decedents with MTG identified as the cause of death" that were received by medical examiners for the study . . . ;

2) Communications with the Institutional Review Board regarding the studies presented in THUNDIYIL_000001 and THUNDIYIL_000002, including but not limited to

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submittals for approval and any subsequent approval for such research; and

3) Documents sufficient to understand the training and background of the individuals (or

"group of physicians" as Dr. Thundiyil referred to in public news segments) that conducted the case studies in THUNDIYIL_000001 and THUNDIYIL_000002 (including but not limited to, Christian Iuteri, Ryan Sawyers, Connor Byrne, and Max Trojano).

ECF No. 217-1 at 1-2.

The briefing, including Plaintiff's, indicates that the studies reflected in Posters 1 and 2 are bases for Dr. Thundiyil's opinions. See ECF No. 221 at 9-10 ("[T]he CV and related abstract posters do not constitute new opinions, but only support Dr. Thundiyil's pre-existing opinions. . .

. Further, the updated CV and abstracts only support Dr. Thundiyil's opinion, the documents are in no way leading to a new or different opinion."); see also No. 224 at 3-4 ("[T]he study Plaintiff failed to disclose is Dr. Thundiyil's own study . . . the conclusions of which form the basis for Dr. Thundiyil's opinion on mitragynine-related causes of death."). Thus, any facts or data from the studies that Dr. Thundiyil considered in forming his opinions, as well as the studies themselves, should have been disclosed by Plaintiff in the expert report on November 18, 2025. It does not appear that such disclosure occurred. See ECF No. 221-4 at 4-9 ("Background Materials Reviewed And/Or Relied Upon" in Dr. Thundiyil's November 13, 2025, expert report). Indeed, even Dr. Thundiyil indicates that he has not provided all the "facts or data" he considered to form his opinions. See ECF No. 221-4 at 4 n.1 ("This is not a compete recitation of all materials I may have access to or reviewed in relation to kratom and/or this matter and I reserve the right to refer to, rely on, or supplement this listing." (emphasis added)). Disclosure, however, is expressly required by Rule 26.

The Court cannot determine whether all of the documents and communications requested by JOpen fall within the scope of Rule 26(a)(2)(B)(ii). Regardless, Plaintiff must produce to JOpen the studies reflected in Posters 1 and 2 and any facts or data related to them, including responsive

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documents and communications requested by JOpen, that Dr. Thundiyil considered, not only those relied upon, to form the opinions reflected in the expert report as same fall within Rule 26(a)(2)(B)(ii). However, any facts and data not considered by Dr. Thundiyil need not be disclosed or produced. Plaintiffs must produce the required materials by March 3, 2026. Failure to do so may result in sanctions under Rule 37(b)(2).

Contrary to Plaintiff's assertions that the Protective Order is insufficient to protect the production of the documents and communications, that Order applies to all materials marked confidential and produced in the course of discovery, including initial disclosures. ECF No. 62 ¶ 1. That Order expressly prohibits the use or disclosure of confidential information for any purposes other than this litigation. Id. ¶ 5(a). Designation of a document as "Attorneys' Eyes Only" further limits access that document. Id. ¶ 5(c). The Order "remain[s] in force after dismissal or entry of final judgment not subject to further appeal." Id. ¶ 12(a). A violation of the Order can subject a party and/or its counsel to Rule 37(b)(2)(A) and (C) sanctions,¹³even absent a motion.¹⁴While the Court cannot prevent a violation of the Order, the Court expects all officers of the court to comply with their ethical obligations. Moreover, the parties and their counsel are on notice that the Court will appropriately issue sanctions for any violation.

Likewise, Plaintiff's assertions of HIPAA protections and privilege¹⁵over autopsy records and toxicology reports fail. HIPAA does not apply because even a covered entity may disclose an individual's protected health information when disclosure is required by law.¹⁶And the Louisiana health care provider-patient privilege does not apply because Plaintiff is not the patient who may

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raise this privilege.¹⁷Nor does LA. REV. STAT. § 3715.1 apply as neither Plaintiff nor Dr. Thundiyil qualify as a "health care provider" under those provisions. See LA. REV. STAT. § 3715.1(A)(2); LA. REV. STAT. § 40:1165.1(A)(10); see ECF No. 217-8 (Dr. Thundiyil's October 17, 2025, CV, indicating he is licensed to practice medicine in Florida but not indicating any Louisiana license or certification).

B. Motion to Re-depose

Rule 30(a)(2)(A)(ii) of the Federal Rules of Civil Procedures requires a party to obtain leave of court to re-depose a party or witness, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2) if the parties have not stipulated to the deposition and the deponent has already been deposed in the case. Rule 26(b)(1) describes the permissible scope of discovery,¹⁸ and (b)(2) describes when the court may and must limit the frequency and extent of discovery. Accordingly, "many district courts simply follow[ ] the directive of Rule 30(a)(2) by considering the principles set out in Rule 26(b)(2) in deciding whether they must grant leave."¹⁹ Relatedly, Rule 30(d)(1) requires a court to allow a party additional time to depose a party or witness beyond the general limitation of one day of 7 hours "consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstances impedes or delays the examination." "In deciding whether there has been a fair examination, the court may consider factors such as: (1) if the examination will cover events occurring over a long period of time; and (2) the need for each party to examine the witness in

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multi-party cases."²⁰In multi-party cases, "duplicative questioning should be avoided and parties with similar interests should strive to designate one lawyer to question about areas of common interests." Another factor is whether the deponent is an expert witness, for which "there may more often be a need for additional time—even after the submission of the report required by Rule 26(a)(2)—for full exploration of the theories upon which the expert relies."²¹ Before extending the duration of a deposition, however, the court must be satisfied that the moving party has shown "good cause."²²The Advisory Committee's notes to Rule 30(d) do not describe what suffices as good cause, but courts generally agree that good cause means the proposed areas of questioning do not run afoul of Rule 26(b)(2)(C)²³and have required same where a party moves for a second deposition pursuant to Rule 30(a)(2)(A)(ii).²⁴ Courts typically allow a second deposition "where a witness was inhibited from providing full information at the first deposition" or "where new information comes to light triggering

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questions that the discovering party would not have thought to ask at the first deposition."²⁵

"[N]ew information" justifying a second deposition may be "new parties were added to the case,"

"new allegations were made in the pleadings," or "new documents were produced."²⁶But if the movant seeks information it could have obtained at the first deposition or could be gathered by less burdensome means, it may not be entitled to conduct a second deposition.²⁷If the court allows a second deposition "because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information."²⁸ Rule 30(d)(2) authorizes the court to "impose an appropriate sanction—including the reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent." "The meaning of 'appropriate sanction' . . . has been broadly interpreted as '[t]he full scope of sanction available under Rule 30(d)(2) is not expressly described in the text of the rule.'"²⁹Many courts have construed the rule to apply to circumstances where a party's conduct at a deposition warranted remedial action,³⁰but "Rule

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30(d)(2) permits the imposition of a sanction even for actions that occur while not in the deposition itself."³¹"The movant bears the burden on any Rule 30(d)(2) motion that it makes."³² While JOpen does not clearly describe the proposed topics for a second deposition of Dr. Thundiyil, it apparently seeks to re-depose him regarding the delinquently produced posters and studies reflected in them, as well the three news segments listed in the October 2025 CV. See ECF No. 217-1 at 2 (arguing no publications or news segments relating to the Study were disclosed in the doctor's expert report and that the information is necessary for JOpen to assess the Study's veracity and methodologies). Given that the posters and news segments pre-dated Dr. Thundiyil's report but were not identified in either the report or CV,³³the Court permits JOpen to question Dr. Thundiyil regarding same.

These posters and news segments should have been listed in the expert disclosures. See FED. R. CIV. P. 26(a)(2)(B)(iv). Plaintiff's assertion that Dr. Thundiyil did not timely update his CV does not excuse that failure. Case law, as well as common sense, supports allowing a second deposition where a party fails to disclose relevant information in its Rule 26(a) disclosure, which it later reveals only after an intervening deposition has occurred.³⁴JOpen received the posters after Dr. Thundiyil's deposition; it is newly discovered information that JOpen could not have asked about during the doctor's first deposition as it did not have the posters. The news segments are also newly discovered information that JOpen could not have asked about because it was not made aware of the videos.

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There is no indication that JOpen knew about the poster presentations and news segments before the deposition; rather, its briefing indicates the opposite. See ECF No. 224 at 4 ("Defendant seeks the opportunity to obtain documents and testimony that it would have sought in the first place if proper disclosure had been made.").³⁵And considering the minimal addition of deposition time and that the trial for this case is more than a month away, the Court finds the burden Plaintiff would facing producing Dr. Thundiyil minimal compared to benefit of his additional testimony.³⁶ Contrary to Plaintiff's assertion, allowing another deposition Dr. Thundiyil is not unreasonably duplicative discovery as it is unclear when Dr. Thundiyil answered based on the study reflected in Poster 1 or in Poster 2. See ECF No. 221-1 at 11-12 (47:17-48:6) (discussing Posters 1 and 2 presentations and the doctor clarifying a previous answer by stating "Well, I sort of combined the results of both of those when I told you about them"). Accordingly, the Court finds good cause to permit JOpen to redepose Dr. Thundiyil for an additional 2 hours pursuant to Rule 30(a)(2)(A)(ii) and (d)(1), but only with regard to the posters, studies, and news segments, and JOpen may not re-ask any prior questions that were previously asked and answered. Plaintiff bears the obligation to disclose a complete and accurate written report by Dr. Thundiyil as described under Rule 26(a)(2)(B). See FED. R. CIV. P. 26(a)(2)(A)-(B) ("[A] party must disclose to the other parties the identity of any witness it may use at trial to present evidence

. . . . [T]his disclosure must be accompanied by a written report . . . ."); FED. R. CIV. P. 37(c)(1) (describing available sanctions against a "party" that "fails to provide information . . . as required

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by Rule 26(a) . . . ."). Having failed to do so, in accordance with Rule 30(d)(2), Plaintiff must bear all costs of the second deposition, including any expenses related to Dr. Thundiyil. * * *

The current expert discovery deadline (February 20, 2026) has expired. ECF No. 195. Under Rule 16(b)(4), a scheduling order "may be modified only for good cause and with the judge's consent." Good cause "requires a showing that the relevant scheduling order deadline cannot reasonably be met despite the diligence of the party needing the extension."³⁷The Court finds good cause to allow the second, 2-hour deposition and the disclosure and production of facts or data ordered by the Court beyond the existing discovery deadline.³⁸The production must occur by March 3, 2026. The deposition must be conducted on or before March 6, 2026.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Defendant JOpen's Motion to Preclude is DENIED.

IT IS FURTHER ORDERED that Defendant JOpen's Motion to Compel is GRANTED IN PART AND DENIED IN PART. Plaintiff must produce to JOpen the studies reflected in Posters 1 and 2 and any facts or data related to them, including responsive documents and communications requested by JOpen, that Dr. Thundiyil considered to form his opinions reflected in his expert report by March 3, 2026. Facts and data not considered need not be disclosed and produced.

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IT IS FURTHER ORDERED that payment of reasonable expenses, including attorneys' fees, is DENIED pursuant to Rule 37(a)(5)(C).

IT IS FURTHER ORDERED that Defendant JOpen's Motion to Re-depose is

GRANTED, at Plaintiff's expense, as described herein.

IT IS FURTHER ORDERED that the second deposition, limited to an additional 2 hours, of Dr. Josef Thundiyil take place on or before March 6, 2026, for the limited purpose of addressing the posters, studies reflected in them, and news segments; Defendant JOpen may not ask duplicative questions previously asked in the first deposition.

New Orleans, Louisiana, this ________ day of February, 2026.

___________________________________

DONNA PHILLIPS CURRAULT

UNITED STATES MAGISTRATE JUDGE

26th