Hill v. Novartis Pharmaceuticals

Filing 111

ORDER Re: 69 Motion to Exclude Expert Testimony, signed by Senior Judge Anthony W. Ishii on 11/6/2012. (Figueroa, O)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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CHRIS HILL,

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Plaintiff,
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v.
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NOVARTIS PHARMACEUTICALS
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CORPORATION; and DOES
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1 through 20, inclusive,
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Defendants.
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____________________________________)

1:06-cv-00939-AWI-DLB
ORDER RE: MOTION TO
EXCLUDE EXPERT
TESTIMONY
(Doc. 69)

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I. INTRODUCTION
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Defendant Novartis Pharmaceuticals Corporation has filed a motion to exclude the testimony of
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plaintiff Chris Hill’s expert Robert Marx pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
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509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Federal Rule of Civil Procedure 702.
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For reasons discussed below, the motion shall be granted and denied in part.
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II. FACTS AND PROCEDURAL BACKGROUND
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The Court refers the parties to previous orders for a complete chronology of the proceedings. On
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June 29, 2006, plaintiff Chris Hill (hereinafter referred to as “Plaintiff”) filed her complaint in San

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Joaquin Superior Court against defendants Novartis Pharmaceuticals Corporation and Does 1

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through 20, inclusive, asserting two causes of action for strict products liability and negligence. On

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July 18, 2006, defendant Novartis Pharmaceuticals Corporation (hereinafter referred to as

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“Defendant”) removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446(a).

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On August 21, 2012, Defendant filed a motion for summary judgment. In conjunction with

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the motion, Defendant filed a motion on August 22, 2012 to exclude testimony of Plaintiff’s expert

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Dr. Robert Marx under Daubert, supra, 509 U.S. 579, and Federal Rule of Civil Procedure 702.

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Plaintiff filed her opposition to Defendant’s Daubert motion on September 24, 2012. Defendant filed

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its reply to Plaintiff’s opposition on October 11, 2012.

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III. LEGAL STANDARD

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Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, experience, training,

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or education may testify in the form of an opinion or otherwise if: [¶] (a) the expert’s scientific,

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technical, or other specialized knowledge will help the trier of fact to understand the evidence or to

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determine a fact in issue; [¶] (b) the testimony is based on sufficient facts or data; [¶] (c) the

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testimony is the product of reliable principles and methods; and [¶] (d) the expert has reliably applied

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the principles and methods to the facts of the case.” Fed. R. Civ. P. 702. “Rule 702 assigns to the

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district court the role of gatekeeper and charges the court with assuring that expert testimony ‘rests

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on a reliable foundation and is relevant to the task at hand.’ ” U.S. v. Hermanek, 289 F.3d 1076, 1093

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(9th Cir. 2002) (quoting Daubert, supra, 509 U.S. at 597). “A trial court has broad latitude not only

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in determining whether an expert’s testimony is reliable, but also in deciding how to determine the

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testimony’s reliability.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (citing

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Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

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IV. DISCUSSION

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The parties have provided the Court with Dr. Marx’s expert report in In re: Aredia and Zometa

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Products Liability Litigation, 3:06-MD-1760 (the “multidistrict litigation” or “MDL”); excerpts of

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Dr. Marx’s deposition testimony in other pharmaceuticals cases; partial transcripts of Daubert

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hearings held by other courts; and orders issued in state and federal cases that have addressed Dr.

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Marx’s testimony, including cases (such as this one) that were consolidated for pretrial management

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in the MDL. It is clear the parties are familiar with the nature and substance of Dr. Marx’s

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anticipated testimony here as well as the competing rationales courts have adopted in determining

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whether to admit or exclude Dr. Marx’s opinions, and are simply asking the Court to decide what

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outcome is most supported by the law and the facts. That said, the Court, having reviewed the

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pleadings of record and all competent and admissible evidence submitted, and applying the proper

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legal standard, first finds Dr. Marx is qualified under Rule 702 to opine as an expert on the issues

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for which his testimony has been offered by Plaintiff. The Court further rules as follows:

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1.

Defendant’s motion to preclude Dr. Marx from testifying about recommended dental

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evaluation and treatment measures effective in preventing bisphosphonate-induced

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osteonecrosis of the jaw is DENIED.

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2.

Defendant’s motion to preclude Dr. Marx from opining Defendant engaged in “bad faith”

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conduct is GRANTED. The Court finds this and other testimony regarding Defendant’s

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intent, motives or state of mind to be impermissible and outside the scope of expert

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testimony. Nevertheless, the Court further finds Dr. Marx is not precluded from (1) offering

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expert opinions about the information available to Defendant internally and from relevant

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medical literature and (2) testifying as a percipient witness about his experiences working

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with Defendant and its employees, all of which could conceivably lead a reasonable trier of

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fact to infer Defendant’s actions were undertaken in bad faith.

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3.

Defendant’s motion to preclude Dr. Marx from criticizing Defendant’s clinical trials is

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GRANTED. The Court finds Dr. Marx lacks the requisite expertise to opine about the

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adequacy of Defendant’s clinical trials. Nevertheless, the Court further finds Dr. Marx is not

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precluded from offering testimony (1) about the lack of information in clinical trial records,

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(2) that certain procedures were not performed during the trials and (3) to the extent

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necessary to support his opinion certain patients in the trials had bisphosphonate-induced

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osteonecrosis of the jaw (see no. 4 below).

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Defendant’s motion to preclude Dr. Marx from opining that certain patients in Defendant’s
clinical trials had bisphosphonate-induced osteonecrosis of the jaw is DENIED.

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5.

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Defendant’s motion to preclude Dr. Marx from testifying as to general causation based on
adverse events reports is DENIED.

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6.

Defendant’s motion to preclude Dr. Marx from opining about the biological mechanism by
which bisphosphonate drugs allegedly cause osteonecrosis of the jaw is DENIED.

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V. DISPOSITION

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Based on the foregoing, Defendant’s motion to exclude the testimony of Plaintiff’s expert Dr. Robert

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Marx is GRANTED in part and DENIED in part.

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IT IS SO ORDERED.

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Dated:
0m8i78

November 6, 2012
UNITED STATES DISTRICT JUDGE

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