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 GRUBER
AARON POLSTER JUDGE
the Court is Defendants' Daubert Motion to
Exclude the Opinions Offered by Jonathan Gruber (Doc. #:
1916). For the reasons stated below, the motion is
Court hereby incorporates the legal standards set forth in
the Court's Opinion and Order regarding Defendants'
motion to exclude the opinion and testimony of Prof. Meredith
Rosenthal, see Doc. #: 2495.
Gruber is one of the nation's leading health economists.
He received his Ph.D. in Economics from Harvard University
and is the Ford Professor of Economics at the Massachusetts
Institute of Technology, where he has taught for over 25
years. Gruber directs the Health Care Program at the National
Bureau of Economic Research and served as President of the
American Society of Health Economists from 2016-2018. He has
twice won the International Health Economics Association
Kenneth J. Arrow Award for the outstanding health economics
paper and has served as the Co-Editor for both the Journal of
Public Economics and the Journal of Health Economics. Along
with David Cutler, another of Plaintiffs' experts, he won
the ASHEcon award for best health economist in the nation age
40 and under in 2006. Gruber has previously testified in
Int'l Tobacco Partners, Ltd. v. Kline, 475
F.Supp.2d 1078, 1082 (D. Kan. 2007) (“Gruber is clearly
qualified to testify as an expert in this case.”).
asked Gruber to compose a report for two purposes. (Doc. #:
1916-5). The first was “to provide, from the
perspective of accepted principles of economics, an overview
of the nation's opioid crisis.” Report at ¶ 15
(Doc. #: 1916-5). Second was to address “whether, to a
reasonable degree of certainty in the field of economics, the
defendants' shipments of prescription opioids
contributed, in whole or in part, to the growth in the misuse
of opioids and the increases in licit and illicit
opioid-related mortality over the past 20 years, and to
explain the bases” for those opinions. Id.
Gruber reached the following principal conclusions: First,
“[t]here is a direct, causal relationship between
defendants' shipments of prescription opioids and the
misuse and mortality from prescription opioids, with
geographic areas that received higher volumes of per capita
shipments of prescription opioids experiencing significantly
higher rates of opioid related misuse and mortality,
including the Bellwether jurisdictions.” Id.
at ¶ 16. Second, “[t]here is a direct, causal
relationship between defendants' shipments of
prescription opioids and the misuse of and mortality from
illicit opioids, including heroin and fentanyl, which
accelerated rapidly after 2010.” Id. Third,
“[t]he significant increases in all-opioid mortality
(i.e., mortality from both prescription and illicit opioids)
are largely unrelated to trends in non-opioid drug overdoses,
changes in population demographics, or local economic
conditions.” Id. Gruber employed both
regression analysis and other mainstream methods of
statistical analysis to determine correlation and causation
to reach and illustrate his conclusions. He also relied on
the work of other economists and epidemiologists, including
some who also serve as Plaintiffs' experts in this case,
to support his opinions.
do not challenge Gruber's qualifications, but they do ask
the Court to exclude his report and testimony, attacking his
opinions' relevance or fit with Plaintiffs' case, and
offering several arguments relating to the appropriateness
and reliability of his methods. Specifically, Defendants
assert that Gruber is not using any recognized methodology to
sustain his analysis, that whatever methodology he is using
is inadequate to support an admissible opinion on causality,
that his analysis fails to address the Bellwether counties,
and that he impermissibly relies on a supposedly flawed
“gateway hypothesis” concerning individuals'
transition from prescription opioid addiction to heroin and
The Reliability of Gruber's Methodology
Graphical Illustrations of Correlation and Gruber's
Conclusions on Causation
first argue Gruber founds his opinions solely upon
unacceptable, unreliable methodologies, finding fault with
Gruber's use of what they describe as mere graphical
representations of underlying data to support his findings.
Motion at 5 (Doc. #: 1916). They claim Gruber was unable
“to identify any authoritative source supporting his
method at any point during his deposition.”
Q. And I'm not focused so much on the graphic itself as
the analysis that . . . underlies the graphic; where . . .
you take the lowest quartile and the highest quartile, and
you've shown a difference in terms of mortality, growth
between those two quartiles. What's the name of that
analysis so I can find it in a textbook?
A. I don't know that there's a common name for this
analysis that you find in a textbook. . . .
Gruber Dep. Doc. #: 1916-6 at 402:21 - 403:11. Defendants
conclude that Gruber's testimony is therefore “not
based on any reliable, tested methodology.” Motion at 5
(Doc. #: 1916).
counter this attack, Plaintiffs first point out that
Defendants misrepresent Gruber's deposition testimony
when they claim he failed to name another source using his
method. Plaintiff's Opposition (hereinafter
“Opp.”) at 6 (Doc. #: 2116). They point to
testimony just two pages farther down in the deposition
transcript that gainsays Defendants' assertion:
Q. Whether in a textbook or some other source, can you point
me to any source that would describe for me the type of, you
know, high quartile - highest quartile-lowest quartile
analysis that you're doing here and would state ...