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In re National Prescription Opiate Litigation

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

August 26, 2019

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

          ORDER DENYING MOTION TO EXCLUDE GRUBER

          DAN AARON POLSTER JUDGE

         Before the Court is Defendants' Daubert Motion to Exclude the Opinions Offered by Jonathan Gruber (Doc. #: 1916). For the reasons stated below, the motion is DENIED.

         The 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.

         I. Introduction

         Jonathan 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.”).

         Plaintiffs 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.

         II. Discussion

         Defendants 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 fentanyl addiction.

         A. The Reliability of Gruber's Methodology

         1. Graphical Illustrations of Correlation and Gruber's Conclusions on Causation

         Defendants 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).[1]

         To 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 ...

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