Pooshs v. Phillip Morris USA, Inc., et al.

Filing 495

ORDER RE OBJECTIONS TO TESTIMONY OF DEFENDANTS' EXPERT. Signed by Judge Hamilton on 2/3/2016. (pjhlc1, COURT STAFF) (Filed on 2/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NIKKI POOSHS,

United States District Court
Northern District of California

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Case No. 04-cv-1221-PJH

Plaintiff,

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v.

PHILIP MORRIS USA, INC., et al.,
Defendants.

ORDER OVERRULING PLAINTIFFS'
OBJECTIONS TO CERTAIN
TESTIMONY OF DEFENDANTS'
EXPERT DR. CHIRIEAC

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On February 2, 2016, Day 10 of the trial of this action, shortly before plaintiff

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rested her case, plaintiff’s counsel advised the court that plaintiff objected to certain

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testimony that defendants planned to offer through one of their expert witnesses – Lucian

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Radu Chirieac, M.D., a pulmonary oncologic pathologist who is affiliated with Brigham

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and Women's Hospital in Boston. Dr. Chirieac issued his original expert report on

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January 5, 2012, and issued a supplemental report on August 24, 2012.

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Plaintiff’s counsel has asserted objections “to new opinions that are not limited to

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[Dr. Chirieac’s] Rule 26 report.” Counsel stated that the court had “excluded, for

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example, Dr. Hammar, at the defendants’ urging, from referencing any new opinions

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based on any subsequent work and review of documents” and asserted that “we now

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want to make sure that that applies in fairness to their experts as well.” Transcript of

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Proceedings, Feb. 2, 2016, at 1933. Counsel added that “the problem” is “the

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supplemental report where [Dr. Chirieac] changes and offers new opinions.” Id. at 1934.

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Counsel claimed that “[w]e were advised last night by [defendants’ counsel] Mr.

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Geise that he intends to offer those new opinions that are not in original Rule 26 report.”

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Id. He also claimed that he did not know that Dr. Chirieac was going to testify as to his

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original opinion supplemented by the August 24th report until he heard defendants’

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counsel refer in his January 19, 2016, opening statement to the opinions presented in the

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August 24th report. Id. at 1934-35. Counsel asserted that “[w]e have no objection to him

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testifying as to anything in his original report, but he changes and offers new opinions in

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the supplemental report that are not anywhere in the original report.” Id. at 1935.

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Counsel added that “[he] can testify, Dr. Chirieac, that there was subsequent pathology
testing and that he’s reviewed it . . . but he can’t change his opinions in the supplemental

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report.” Id. at 1935-36.

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The plaintiff's objections are OVERRULED, for the following reasons. First, the

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order granting RJR's motion in limine to exclude testimony and opinions of Dr. Hammar

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regarding the supplemental pathology testing does not apply to the supplemental

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opinions of Dr. Chirieac. In January 2008, the parties entered into a written stipulation

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regarding release, testing, and sharing of pathology (Doc. 257-2). In March 2008, the

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parties entered into an written addendum to the pathology stipulation (Doc. 257-3), in

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which they agreed (among other things) that "[n]o pathology testing shall be conducted

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by the side proffering the pathology expert after that expert's deposition without the

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express agreement of the parties or leave of court["] and that "[a]ny testing in violation of

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this paragraph, or testimony about such testing, will be excluded from evidence."

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Plaintiff's only disclosed pathology expert is Dr. Hammar, who issued his expert

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report in this case on November 14, 2011, and an addendum report on April 9, 2012.

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Defendants deposed Dr. Hammar on May 2, 2012. On July 19, 2012, Dr. Hammar

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issued a "supplemental" report, in which he referred to additional pathology testing

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ordered by plaintiff's counsel, which had been conducted on May 9, 2012. In its Motion in

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Limine No. 1, RJR moved, pursuant to the parties’ stipulation, to preclude the introduction

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of evidence stemming from testing conducted by plaintiff after her pathology expert was
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deposed.
At the November 29, 2012 hearing, the court stated, "[C]learly . . . there would be

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a violation [of the stipulation] if Hammar were to testify, but I won't preclude other

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witnesses on that subject." Transcript of Proceedings, Nov. 29, 2012 (Doc. 287) at 29.

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In the follow-up written order, the court ruled that "[d]efendant R.J. Reynolds Tobacco

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Company’s first motion in limine to exclude evidence precluded by the pre-trial stipulation

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is GRANTED. Dr. Hammar will not be permitted to testify regarding the supplemental

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pathology testing, but other witnesses who were deposed after the supplemental testing

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may testify on this subject." Preliminary Final Pretrial Order (Doc. 289) at 5.

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In his initial Rule 26 expert report, Dr. Chirieac opined that plaintiff “developed a

United States District Court
Northern District of California

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lung cancer induced by an activating mechanism in the epidermal growth factor receptor

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(EGFR) gene . . . that is unrelated to smoking.” He provided several reasons to support

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his opinion that plaintiff has an EGFR-mutated cancer – e.g., good response to Tarceva

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(therapy most useful for EGFR-mutated cancers); very long survival since diagnosis;

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pathology showing "minimally invasive" adenocarcenoma with predominantly lepidic

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(BAC) and papillary features (typical of EGFR-mutated cancers); family history of cancer;

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and long period between cessation of smoking and cancer diagnosis. He also stated that

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"[a]dditional pathology may become available" – including tissue samples of the right

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adrenal gland – and that he "reserve[d] the right to review those slides and supplement

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this report."

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As set forth by plaintiff in the opposition to RJR’s Motion in Limine No. 1 (Doc.

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280), plaintiff’s counsel ordered further pathology testing in May 2012. The report

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indicated that the testing had detected no EGFR mutation, was negative for a

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rearrangement involving the ALK gene by FISH, and no KRAS mutations. On May 30,

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2012, Dr. Barry Horn, plaintiff’s disclosed pulmonology expert, submitted a supplemental

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report in which he discussed the results of the May 2012 testing, and noted that Dr.

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Hammar had indicated he disagreed with Dr. Chirieac’s opinion. Plaintiff’s counsel

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forwarded the supplemental Horn report to defendants’ counsel, and stated that they
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intended to take Dr. Chirieac’s deposition. Defendants’ counsel advised plaintiff’s

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counsel that Dr. Chirieac would be submitting a supplemental report. As of August 20,

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2012, plaintiff had not deposed Dr. Chirieac but counsel indicated that they would do so

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after they received the supplemental report.

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On August 24, 2012, Dr. Chirieac filed the supplemental report. He stated that he

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had reviewed additional materials, including additional right adrenal gland pathology

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slides; the depositions of plaintiffs’ experts Drs. Horn and Hammar; the results of

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additional tests ordered by plaintiff's counsel; EGFR gene sequencing test results; IHC

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stains for HER2 protein; and numerous additional medical records. He stated that the
review of the right adrenal gland slides "demonstrated a carcinoma with similar

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morphological pattern as in the left adrenal gland" – a "metastatic papillary

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adenocarcinoma" and that an immunostain for TTF-1 was performed and was "positive

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on the tumor cells."

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Dr. Chirieac stated that after he had reviewed the tests ordered by plaintiff's

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counsel, which tests reported no detected activating mutation in the EGFR gene, no

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mutations in the KRAS gene, and no ALK arrangements, he ordered a more

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comprehensive test for detecting EGFR mutations by Sanger gene sequencing, and

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stated that those tests were also negative. He opined that "[i]n light of these test results,

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Mrs. Pooshs most likely does not have a known activating EGFR mutation.” He stated

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further that he had reviewed the fluorescence in situ hybridization (FISH) test results for

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ALK abnormalities, indicating that plaintiff did not have ALK rearrangements, as well as

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the PCR test results reporting the absence of any KRAS mutations. He noted that KRAS

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genes are the most common driver mutations inducing lung carcinoma, and that while

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EGFR mutations are most commonly found in persons who have never smoked

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cigarettes, KRAS mutations are almost entirely limited to lung cancers in smokers.

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Dr. Chirieac concluded that while he had not been able to elucidate the specific

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genotype of plaintiff's tumor, he was able to provide an opinion regarding the phenotype

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of her cancer. He claimed that plaintiff’s lung cancer progression pathway is “most likely
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characteristic of non-smoking induced lung cancers," which theory he stated is supported

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by various studies, as well as by plaintiff's social and family history.

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On February 2, 2016, defendants’ counsel stated that plaintiff’s counsel “had an

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opportunity to depose Dr. Chirieac” and that “a deposition was scheduled, and then

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plaintiff’s counsel canceled the deposition.” Feb. 2, 2016 Tr. at 1936-37. “[T]hey did not

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depose him, nor did they ever come back to us and say, ‘We want to depose him’ or

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anything else.” Id. at 1937. Plaintiff’s counsel conceded that plaintiff had not deposed

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Dr. Chirieac. Id. at 1945. The ruling as to Dr. Hammar was based on the parties’

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stipulation, which clearly does not apply to Dr. Chirieac, as Dr. Chirieac was never

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deposed.
A second basis for overruling plaintiff’s objections is that they are entirely untimely.

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Plaintiff’s counsel’s claim that he was unaware until the night before he posed the

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objections that defendants planned on having Dr. Chirieac testify as to the opinions in

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both his original and supplemental reports flies in the face of evidence and logic. On

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Friday, January 29, 2016, Day 8 of the trial, the court discussed scheduling with the

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parties at the conclusion of the day’s testimony. Plaintiff’s counsel advised the court that

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“I’ve alerted defense counsel already that we may get to their case-in-chief . . . Tuesday

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or perhaps even late Monday.” Transcript of Proceedings, Jan. 29, 2016, at 1567.

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Defendants’ counsel responded, “Based on where we left the Court yesterday, our

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understanding is we wouldn’t get to our case until Tuesday at the earliest.” Id. Counsel

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then added that defendants would “work to make sure he’s here on standby on

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Monday[,]” and noted that “[h]e’s coming from Boston” and is “going to need to get on a

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plane Sunday if he needs to be here Monday. Id. at 1568.

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Moreover, during the long and winding pretrial process, defendants filed no fewer

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than five witness lists prior to the commencement of trial. In their first witness list, filed on

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November 1, 2012 (Doc. 249), defendants described Dr. Chirieac’s proposed testimony,

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and while they did not specifically reference the supplemental report, it is clear from the

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description that the proposed testimony is based at least in part on the opinions in the
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supplemental report. This trial witness list was followed by at least four subsequent lists.
On October 17, 2013, defendants filed an “Amended Joint Witness List” (Doc.

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349). In this list, defendants set forth Dr. Chirieac’s qualifications and provided a

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relatively lengthy description of the substance of his proposed testimony, which includes

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the opinions he expressed in the supplemental expert report dated August 24, 2012. On

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January 15, 2015, defendants filed an “Identification of Operative Joint List of Trial

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Witnesses” (Doc. 400) which again lists Dr. Chirieac, with a description of his

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qualifications and the substance of his proposed testimony, similar to the description in

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the October 17, 2013 list. On April 1, 2015, defendants filed a “Final Joint List of Trial
Witnesses” (Doc. 417), again providing a description of his qualifications and the

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substance of his proposed testimony. In this list, defendants also stated that they “expect

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Dr. Chirieac to testify consistent with his opinions stated in his January 5, 2012, expert

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report pursuant to Fed. R. Civ. P. 26, as supplemented by his August 23, 2012 expert

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report.” Finally, on April 17, 2015, at the court’s request, defendants filed a list of

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proposed witnesses (Doc. 423), which consisted of only the names of the witnesses.
Thus, plaintiff has been on notice since at least the time of the initial pretrial

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conference in November 2012 that defendants planned on presenting testimony by Dr.

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Chirieac based on both his original and his supplemental report.1 Nevertheless, plaintiff

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never posed any objections to the proposed testimony, never sought to have any of the

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proposed testimony excluded, and never deposed Dr. Chirieac, despite having had an

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opportunity to do so. Indeed, in the Sixth Pretrial Order (Doc. 406), which was filed on

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March 4, 2015, the court summarized the parties’ objections to the trial exhibits, witness

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lists, designations of written discovery, and page/line designations of deposition

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testimony, and, in ruling on the objections, noted that plaintiff had not objected to

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Indeed, in the opposition to RJR’s Motion in Limine No. 1, filed November 15, 2012,
plaintiff asserted that “[e]ven if RJR’s interpretation of the stipulation were correct,
[p]laintiff should still be able to inquire about the [supplemental] testing during . . . the
cross-examination of [d]efendant’s pathologist, who reviewed and relied upon the test
results in his expert report.” Plaintiff’s Oppositions to R.J. Reynolds Tobacco Company’s
Motions in Limine Nos. 1-8 (Doc. 280) at 5-6.
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defendants’ witness lists.
A third basis for overruling plaintiff’s objections is that plaintiff’s counsel’s assertion

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that Dr. Chirieac can testify that “there was subsequent pathology testing and that he’s

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reviewed it,” is inconsistent with the argument that Dr. Chirieac should be precluded from

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testifying as to the opinions in his supplemental report. In the court’s view, it would be

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impossible for Dr. Chirieac to testify regarding the supplemental testing without also

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referring to his supplemental opinions.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: February 3, 2016
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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