United States District Court, N.D. Ohio, Eastern Division
IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO Track One Cases
ORDER DENYING MOTION TO EXCLUDE ROSENTHAL
AARON POLSTER UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Exclude Meredith
Rosenthal's Opinions and Proposed Testimony (Doc #:
1913). For the reasons stated below, the motion is
Defendants have filed over a dozen motions seeking to exclude
testimony from Plaintiffs' designated experts. The Court
sets out here, in its first Daubert opinion, the
legal standards it will apply when considering all of these
motions. The Court will not repeat these legal standards in
subsequent opinions, and instead incorporates them by
reference in advance.
Defendants' motions ask the Court to apply Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993) and
Rule 702 of the Federal Rules of Evidence. Rule 702 states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed R. Evid. 702. Rule 702 was amended in 2000 to reflect the
decisions in Daubert and Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). These
decisions, and their progeny, emphasize the district
court's role as the gatekeeper tasked with insulating
juries from inadmissible expert testimony. See In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 528
(6th Cir. 2008); Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 295 (6th
Cir 2007). A court's gatekeeping function applies not
only to scientific expert testimony, but also to expert
testimony involving technical or specialized knowledge.
See Kumho Tire, 526 U.S. at 147; Fed.R.Evid. 702(a).
role as gatekeeper, a court must “strike a balance
between a liberal admissibility standard for relevant
evidence on the one hand and the need to exclude misleading
‘junk science' on the other.” Ask Chems.,
LP v. Computer Packages, Inc., 593 Fed.Appx. 506, 509
(6th Cir. 2014) (quoting Best v. Lowe's
Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th
Cir. 2009); see also Nelson v. Tennessee Gas Pipeline
Co., 243 F.3d 244, 252 (6th Cir. 2001)
(“close judicial analysis of expert testimony is
necessary because expert witnesses are not necessarily always
unbiased scientists.”) (citations and internal
quotation marks omitted). A court is not required to admit
expert testimony that is “connected to existing data
only by the ipse dixit of the expert” and may
conclude there is just too great an analytical gap between
the data and the opinion proffered. See Nelson, 243
F.3d at 254; see also Gen. Elec. Co. v. Joiner, 522
U.S. 136 (1997).
the complexities inherent in their role as gatekeeper,
district courts possess broad discretion to make
admissibility determinations. Pride v. BIC Corp.,
218 F.3d 566, 578 (6th Cir. 2000). Indeed,
“the law grants a district court the same broad
latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate
reliability determination.” Kumho Tire, 526
U.S. at 142 (emphasis in original) (citing Joiner,
522 U.S. at 143). “As a baseline premise, in rulings on
the admissibility of expert opinion evidence, the trial court
has broad discretion and its rulings must be sustained unless
manifestly erroneous.” Brainard v. American Skandia
Life Assur. Corp., 432 F.3d 655, 663 (6th
Cir. 2005) (internal quotation marks and citations omitted).
a court is given a wide berth to determine the admissibility
of expert testimony, “Daubert did not work a
seachange [sic]over federal evidence law, and the trial
court's role as a gatekeeper is not intended to serve as
a replacement for the adversary system.” Burgett v.
Troy-Bilt LLC, 579 Fed.Appx. 372, 376 (6th
Cir. 2014) (quoting Fed.R.Evid. 702, advisory committee note,
2000 amend.) (internal quotation marks omitted). Accordingly,
an expert's testimony should be excluded when it amounts
to “mere guess or speculation;” in contrast,
challenges to the accuracy of an expert's conclusions or
factual basis generally “bear on the weight of the
evidence rather than on its admissibility.” United
States v. L.E. Cooke Co., 991 F.2d 336, 342
(6th Cir.1993). And courts will “generally
permit” erroneous or weak expert testimony as long as
it has “some support” in the record. In re
Scrap Metal Antitrust Litig., 527 F.3d at 530 (citations
omitted). Once such evidence is admitted, “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” Burgett, 579 Fed.Appx.
at 377 (quoting Daubert, 509 U.S. at 596). Rejection
of expert testimony is the exception, rather than the rule.
See Burgett, 579 Fed.Appx. at 376 (quoting In re
Scrap Metal Antitrust Litig, 527 F.3d at 530).
Sixth Circuit has identified three factors a court should
consider when deciding whether expert testimony is
admissible. First, the proposed expert must have the
requisite qualifications. Second, the proposed testimony must
be relevant. Third, the proposed testimony must be reliable.
See In re Scrap Metal Antitrust Litig, 527 F.3d at
529. Each of these factors is discussed below.
the Expert Qualified?
first criterion for admission asks whether the witness is
qualified to offer expert opinion testimony. An expert may be
qualified by virtue of his or her “knowledge, skill,
experience, training or education, ” or a combination
of these factors. Fed.R.Evid. 702. Trial “courts do not
consider ‘the qualifications of a witness in the
abstract, but whether those qualifications provide a
foundation for a witness to answer a specific
question.'” Burgett, 579 Fed. App'x.
at 376 (citations omitted). In this regard, a trial court
must determine whether the expert's training and
qualifications relate to the specific subject matter of his
or her proposed testimony. “Thus, for example, a
witness qualified as an expert in cardiovascular pharmacology
may be allowed to opine about how a drug affects the heart,
but not on how obesity affects the heart.” In re
Welding Fume Products Liab. Litig., 2005 WL 1868046, at
*5 (N.D. Ohio Aug. 8, 2005) (citations omitted). The
proponent of the expert has the burden to demonstrate that
the expert's testimony meets all of the Daubert
criteria, including that of qualification. Nelson,
243 F.3d at 251.
cases where the proffered expert relies “solely or
primarily on experience, then the witness must explain how
that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.”
Fed.R.Evid. 702, advisory committee note, 2000 amend.
Further, regardless of the basis for the expert's
qualifications, that a “proffered expert may be
unfamiliar with pertinent statutory definitions or standards
is not grounds for disqualification. Such lack of familiarity
affects the witness'[s] credibility, not his
qualifications to testify.” Davis v. Combustion
Engineering, Inc., 742 F.2d 916, 919 (6th
Cir. 1984); see also, First Tennessee Bank Nat. Ass'n
v. Barreto, 268 F.3d 319, 333 (6thCir. 2001)
(unfamiliarity with only some aspects of banking
relationships merely affects weight and credibility, not
admissibility); Surles, 474 F.3d at 296 (expert with
experience with the threat management unit of the Los Angeles
Police Department was qualified to testify despite his lack
of specific experience in commercial bus line threat
the Proffered Testimony Relevant?
second factor for admission of expert testimony requires the
testimony to be relevant. The relevancy requirement has been
described as the “fit” requirement-that is, the
expert must “fit” the facts of the case into the
principles and methodologies used to render his opinion.
Daubert, 509 U.S. at 591; United States v.
Smithers, 212 F.3d 306, 313, 325 (6th Cir.
2000); see also Joiner, 522 U.S. at 152.
Daubert's “fit” requirement seeks to
ensure that a jury is presented with expert evidence only
when that evidence is demonstrably germane to the facts of
the case. At its core, the relevance standard, or fit
requirement, is “a liberal one” premised on
Federal Rule of Evidence 401. Daubert, 509 U.S. at
587 (“Relevant evidence is defined as that which has
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the
evidence.”) (internal quotation marks omitted).
“[f]it is not always obvious, and scientific validity
for one purpose is not necessarily scientific validity for
other, unrelated purposes, ” a court must perform a
case-by-case assessment to determine whether a particular
expert's testimony will truly help the jury understand
the evidence. Daubert, 509 U.S. at 591. Testimony
based on theories that do not fit the facts is not helpful to
the jury and is not relevant. Even testimony applying
appropriate methodology that is not connected to the facts of
the case renders the testimony irrelevant. Accordingly, Rule
702's “helpfulness” standard requires a valid
connection to the pertinent inquiry as a precondition of
admissibility. See Daubert, 509 U.S. at 591-92.
types of evidence may also be unhelpful to the jury and,
therefore, not relevant. For example, if the jury does not
require enlightenment from someone having specialized
knowledge of a subject, the proffered expert will not assist
them in their inquiries and his or her opinions are
irrelevant. See Fed. R. Evid. 702, advisory
committee note, 2000 amend. (“There is no more certain
test for determining when experts may be used than the common
sense inquiry of whether the untrained layman would be
qualified to determine intelligently and to the best possible
degree the particular issue without enlightenment from those
having a specialized understanding of the subject involved in
that dispute.”); see also See United States v.
Smith, 736 F.2d 1103, 1105 (6thCir. 1984),
cert. denied, 469 U.S. 868 (1984). In addition,
expert testimony that offers nothing more than a legal
conclusion and attempts to tell the jury what result it
should reach is generally not helpful and should be excluded.
See Shahid v. City of Detroit,889 F.2d 1543,
1547-48 (6th Cir. 1989) (expert testimony found