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In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

August 20, 2019

IN RE NATIONAL PRESCRIPTION OPIATE LITIGATION THIS DOCUMENT RELATES TO Track One Cases

          ORDER DENYING MOTION TO EXCLUDE ROSENTHAL

          DAN AARON POLSTER UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' Motion to Exclude Meredith Rosenthal's Opinions and Proposed Testimony (Doc #: 1913). For the reasons stated below, the motion is DENIED.

         A. Legal Standards.

         The 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.

         The 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 methods; 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).

         In its 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).

         Due to 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).

         Although 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).

         The 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.

         Is the Expert Qualified?

         The 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.

         In 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 assessment).

         Is the Proffered Testimony Relevant?

         The 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).

         Because “[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.

         Other 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 ...


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