Baldonado, et al v. Wyeth, et al

Filing 206

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 5/17/2012:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JO BELLE BALDONADO,
Plaintiff.
v.
WYETH and its division,
WYETH PHARMACEUTICALS, INC.,
Defendant.

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Case No. 04 C 4312

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Defendant Wyeth moves in limine to exclude the anticipated expert testimony of two of
Plaintiff’s designated marketing experts – Dr. Matthew F. Hollon and Dr. Adriane J. FughBerman. See Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). As explained below, Defendant’s motion is granted in part, and
denied in part.
BACKGROUND
Plaintiff Jo Belle Baldonado was diagnosed with breast cancer while she was taking
Prempro, a prescription hormone therapy (“HT”) medication that Defendant Wyeth designed,
manufactured, and marketed. Plaintiff’s prescribing physicians were Dr. Teresita D. Avila, M.D.
and Dr. Mani Akkineni, M.D. Alleging that Prempro caused her breast cancer, Plaintiff filed the
present civil action against Defendant and others. Trial is scheduled for October 9, 2012.
In advance of trial, Defendant moves to exclude the testimony of Dr. Matthew Hollon
and Dr. Adriane Fugh-Berman, both of whom Plaintiff has designated as experts on Wyeth’s

marketing practices for its hormone therapy medications. The witnesses are “general liability
experts” who have not filed case-specific expert reports. (R. 131, Pl’s Resp. at 1.)
I.

Expert Qualifications
Defendant does not challenge the qualifications of either Dr. Hollon or Dr. Fugh-Berman

to offer expert opinions on Defendant’s marketing practices. See Fed. R. Evid. 702(a) (stating
that an expert may by qualified by “knowledge, skill, experience, training, or education”). For
purposes of context, however, the Court briefly summarizes each expert’s professional
background.
A.

Dr. Matthew F. Hollon, M.D., MPH

Dr. Hollon is a Board-certified physician of Internal Medicine at the University of
Washington in Seattle (“UW”). (R. 131, Ex. 13, Expert Report of Dr. Hollon (“Hollon Report”),
at 1.) He graduated from the UW School of Medicine in 1994, and thereafter completed a
medical residency and fellowship in Internal Medicine at UW. (Id.) During his fellowship, Dr.
Hollon attended classes at the UW School of Public Health and Community Medicine and
received a Masters of Public Health. (Id.) Currently, Dr. Hollon is the Director of
Evidence-Based Medicine for the Internal Medicine Residency Program at the UW Department
of Medicine and an Assistant Professor in the Division of General Internal Medicine. (Id.) Dr.
Hollon has been an active member in numerous professional organizations, and has published
extensively in the area of pharmaceutical marketing. (Id. at 1-2.) He has also consulted on this
topic for the Canadian government. (Id.)
B.

Dr. Adriane J. Fugh-Berman, M.D.

Dr. Fugh-Berman is an associate professor in the Department of Physiology and
Biophysics at Georgetown University Medical Center, where she teaches “graduate courses in

the history of medicine and critical assessment of medical literature, including a module on
clinical trial methodology and assessment of adverse events.” (R. 131, Ex. 15, Expert Report of
Dr. Fugh-Berman (“Fugh-Berman Report”), at 1.) She also lectures about “pharmaceutical
company influence on physician prescribing practices.” (Id.) For more than twenty-five years,
Dr. Fugh-Berman has “worked in the field of women’s health and corporate influence on
healthcare,” and has published numerous articles in that regard, including articles “on the culture
of gynecology and the effect of drug company promotion on prescribing habits.” (Id.) Dr. FughBerman previously practiced general medicine with a focus on women’s health. (Id.) After
leaving clinical practice in 2001, Dr. Fugh-Berman has, among other professional pursuits, “been
a consultant, scientific reviewer, working group member, or speaker on women’s health issues
for the National Institutes of Health, the Federal Trade Commission, the Centers for Disease
Control, the Agency for Health Care Research and Quality, the Department of Defense, the
National Security Agency, and the Institute of Medicine.” (Id. at 1-2.)
II.

Anticipated Expert Testimony
Plaintiff seeks to call either Dr. Hollon or Dr. Fugh-Berman as a general liability expert

on Defendant’s marketing practices.1 If permitted to testify, according to Plaintiff, the experts
would opine that Defendant’s marketing of HT products including Prempro fell below the
standard of care that a pharmaceutical company should exercise. (R. 131, Pl.’s Resp. at 5-6, 8.)
The experts in their respective reports offer extensive detail about Defendant’s marketing
practices and opine on the impact of those practices on patients and physicians. (Id.)
Plaintiff offers the experts to establish “key elements in Plaintiff’s negligence and

1

Plaintiff represents that the experts would offer materially identical testimony, and that
she designated both to ensure the availability of at least one of the experts for trial.

punitive damages claims.” (R. 131, Pl.’s Resp. at 3.) Plaintiff contends that the experts “will
serve to educate the jury on the nature and purpose of the marketing materials seen by Mrs.
Baldonado and her physicians” (id. at 8), thereby “provid[ing] context for Wyeth’s breach of its
duty to the physicians and patients . . . .” (Id. at 3.)
LEGAL STANDARD
“The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and
the Supreme Court’s opinion in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009). “The district court functions as a gatekeeper with respect to testimony proffered under
Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission.”
Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)); see also Bielskis v.
Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (“It is the district courts’ role to ensure
that expert testimony is both relevant and reliable.”). Whether to admit expert testimony rests
within the discretion of the district court. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct.
512, 139 L. Ed. 2d 508 (1997). Indeed, a district court has “wide latitude in performing its
gatekeeping function and determining both how to measure the reliability of expert testimony
and whether the testimony itself is reliable.” Bielskis, 663 F.3d at 894.
Under Rule 702, “[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; see also Ortiz v. City of Chicago, 656 F.3d 523, 526 (7th Cir. 2011). The inquiry under
Rule 702 is “flexible.” Bielskis, 663 F.3d at 894.
District courts employ a three-part analysis before admitting expert testimony: (1) the
expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2)
the expert’s reasoning or methodology underlying his testimony must be scientifically reliable;
and (3) the expert’s testimony must assist the trier of fact in understanding the evidence or to
determine a factual issue. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).
“The goal of Daubert is to assure that experts employ the same ‘intellectual rigor’ in their
courtroom testimony as would be employed by an expert in the relevant field.” Jenkins v.
Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting Kumho Tire Co., 526 U.S. at 152).
ANALYSIS
In the present motion, Defendant seeks to exclude the expert testimony of Dr. Hollon and
Dr. Fugh-Berman on the ground that such testimony is irrelevant and unreliable. To the extent
the Court permits the experts to testify, Defendant alternatively seeks to preclude the experts
from offering “narrative histories” of hormone therapy marketing practices; opinions on
Defendant’s intent and/or motives; and opinions on the applicable standard of care. The Court
addresses each of these issues below.
I.

Relevance
The Court first considers the threshold issue of relevance. Rule 401 of the Federal Rules

of Evidence provides that evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence; and the fact is of consequence in determining the

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action.” Fed. R. Evid. 401; see also Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”);
Daubert, 509 U.S. at 590-91 (observing that expert testimony must be relevant in order to “assist
the trier of fact” under Rule 702).
In its motion, Defendant argues that neither Plaintiff nor her physicians relied on any of
Defendant’s marketing materials, and therefore evidence of Defendant’s marketing materials and
practices can have no bearing on Plaintiff’s injuries, nor properly provide evidence relevant to
the assessment of a punitive damages award.2 (R. 116, Def.’s Mem. at 4-6.) Plaintiff responds
that both she and her prescribing physicians relied on Defendant’s marketing materials, and her
experts “will limit their testimony in this trial to the marketing conduct of Wyeth that is relevant
to this plaintiff’s case.” (Id. at 1; see also id. at 9 (“[T]hese doctors’ testimony will be
specifically tailored to the facts of this case.”).)
The parties agree, at least implicitly, that the expert testimony is relevant to the extent
that Plaintiff and/or her prescribing physicians relied on the marketing materials about which the
experts would opine. (See R. 116, Def.’s Mem. at 6; R. 131, Pl.’s Resp. at 13, 17); accord De
Bouse v. Bayer AG, 235 Ill.2d 544, 337 Ill. Dec. 186, 922 N.E.2d 309 (2009) (“If a consumer has

2

On the subject of negligence, see generally Robinson v. McNeil Consumer Healthcare,
615 F.3d 861, 871 (7th Cir. 2010) (“‘proof of negligence in the air . . . will not do’”) (quoting
Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 99 (1928)) and Pipp v. Johnson and
Johnson, No. 09-CV-5944, 2010 WL 2365303, at *1 (N.D. Ill. June 9, 2010) (citing Smith v. Eli
Lilly & Co., 137 Ill.2d 222, 233, 137 Ill.2d 222, 560 N.E.2d 32, 560 N.E.2d 324 (1990) (“In a
negligence action th[e] causation-in-fact requirement entails a reasonable connection between
the act or omission of the defendant and the damages which the plaintiff has suffered.”)). On the
subject of punitive damages, see generally Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d
917, 931 (7th Cir. 2004) (stating, in the context of punitive damages, “‘[a] defendant should be
punished for the conduct that harmed the plaintiff, not for being an unsavory individual or
business’”) (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct.
1513, 155 L. Ed. 2d 585 (2003)).
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neither seen nor heard [the marketing] statement, then she cannot have relied on the statement
and, consequently, cannot prove proximate cause.”). Reliance is a question of fact, and under
the Federal Rules of Evidence, “[w]hen the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist.” Fed. R.
Evid. 104(b).
Here, although the pre-trial record contains some evidence of reliance on marketing
materials,3 a ruling on the relevance of the proffered testimony to the negligence or punitive
damages claims is premature. Plaintiff has agreed to “specifically tailor[]” the expert testimony
“to the facts of this case.” (R. 131, Pl.’s Resp. at 9); see also Barton v. Wyeth Pharm., Inc., No.
694/695 EDA 2012, 2012 WL 112613 (Pa. Super. Ct. Jan. 3, 2012) (applying Illinois law)

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Defendant argues that Drs. Avila and Akkineni did not rely on Defendant’s marketing
practices, reasoning that the doctors testified as much. (See R. 116, Def.’s Mem. at 3-4 (citing,
e.g., Dr. Avila Dep. (7/20/11) at 21, 256-57; Dr. Akkineni Dep. at 115-16).) Defendant presents
this testimony out of context. Although the doctors may have stated that they did not rely on
marketing materials, the doctors gave that testimony in the context of explaining that the
decision to prescribe Prempro to Plaintiff was an exercise of independent medical judgment.
This context is significant because throughout their depositions, the doctors explained that
marketing activities and information from drug companies underlie and inform, at least in part,
the exercise of their medical judgment. (See, e.g., Dr. Avila Dep. (8/10/11) at 210 (testifying
that information from a “sales rep” would go into the decision-making process); Dr. Akkineni
Dep. at 15 (decisions based in part on marketing information received from drug manufacturer),
117-18 (advised patients of risk based on review of the literature).) The doctors testified about
many of these influences. (See, e.g. Dr. Avila Dep. (7/20/11) at 15 (“whatever is out and
recommendations and medical literature that is given to us”), 16 (letters from drug companies),
16-17 (textbooks), 18 (Physicians Desk Reference (“PDR”)), 19-20 (lectures), 22 (journals), 24
(booklets), 27 (advertisements), 27 (materials brought in by patients), 50 (office visit by sales
representatives); Dr. Avila Dep. (8/10/11) at 210 (pamphlets); Dr. Akkineni Dep. at 15 (visits by
sales representatives who provide product information), 17 (text books and educational
information from medical associations), 20 (PDR), 24 (studies), 49 (specific document from
Wyeth sales team), 54 (“Dear Doctor” letters), 58 (office visits by sakes representatives), 61
(continuing medical education); accord R. 132, Ex. 22 (medical records: “reading material on
estrogen replacement [] given to the patient”).)
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(finding no abuse of discretion in the trial court’s admission of evidence of Wyeth’s “extensive
marketing activities,” where a physician’s information on the drug at issue was “rooted, at least
indirectly, in Wyeth’s active promotion of its product”). If Plaintiff seeks to offer expert
testimony on Defendant’s marketing practices, Plaintiff must first introduce evidence that is
“sufficient to support a finding” that the testimony relates to the underlying facts of this case.
See Fed. R. Evid. 104(b) & adv. comm. notes (“The order of proof here, as generally, is subject
to the control of the judge.”); see also United States v. Boling, 648 F.3d 474, 482 (7th Cir. 2011)
(“A trial judge has discretion to control the mode and order of witness interrogation and
evidence presentation.”) (citing Fed. R. Evid. 611(a)).
Additionally, given the breadth of the expert reports at issue, the Court orders as follows:
•

•

The parties shall meet and confer in good faith on the relevance of the proposed
testimony on or before June 8, 2012.

•

II.

By May 31, 2012, Plaintiff shall file a detailed statement of the specific expert
testimony and opinions that she intends to elicit at trial in this case from Dr.
Hollon and/or Dr. Fugh-Berman. The statement must include supporting
references to the expert reports and depositions.

If the parties are unable to reach agreement, Defendant shall file objections to the
relevance of the proposed testimony by June 12, 2012. Plaintiff may reply, if at
all, by June 15, 2012.

Narrative Histories
Defendant next seeks to preclude the experts from offering “narrative histories” of

Defendant’s promotion of hormone therapy. (R. 116, Def.’s Mem. at 7.) In their respective
reports, Dr. Hollon and Dr. Fugh-Berman offer lengthy narrative summaries about Defendant’s
promotion of hormone therapy products over approximately the last 60 years. (See Hollon
Report at 8-88; Fugh-Berman Report at 5-31.) Defendant argues that this type of narrative

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testimony, based on the experts’ review of documents, does “not involve any application of
‘scientific, technical or other specialized knowledge’” and “will not aid the jury and will
impermissibly interfere with its role as trier of fact.” (Def.’s Mem. at 14 (quoting Fed. R. Evid.
702).) The Court agrees.
Under the circumstances of this case, allowing an expert to provide summary testimony
“based on nothing more than [the expert’s] review of certain discovery materials could give the
jury the impression that he did something more than simply review the materials, which the jury
can do itself.” United States v. Vance, No. 07-CR-351, 2011 WL 2633842, at *5 (N.D. Ill. July
5, 2011) (citing United States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996) (“Unless the expertise
adds something, the expert at best is offering a gratuitous opinion, and at worst is exerting undue
influence on the jury that would be subject to control under Rule 403.”)). Even if the expert may
have relied upon his or her expertise to “wade through the multitude of possibly relevant
documents,” the “vast majority” of the experts’ proffered narratives amount to a summary and
statement of the experts’ “advocacy-based interpretation of documents in the record concerning”
HT marketing practices. In re Viagra Prods. Liab. Litig., 658 F. Supp. 2d 950, 967 (D. Minn.
2009); see also In re Trasylol Prods. Liab. Litig, 709 F. Supp. 2d 1323, 1346 (S.D. Fla. 2010)
(finding that expert’s testimony “will not assist trier of fact,” where testimony “mostly consists
of a factual narrative of [drug’s] regulatory history and summaries of [pharmaceutical
defendant’s] internal documents”); In re Prempro Prods. Liab. Litig., 554 F. Supp. 2d 871, 886
(E.D. Ark. 2008) (“If an expert does nothing more than read exhibits, is there really any point in
her testifying as an expert?”). For these reasons, the experts may not offer factual narrative
testimony that simply summarizes documents relating to Defendant’s promotion of hormone

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therapy.
III.

Reliability
Defendant contends that the experts’ testimony “should [] be excluded because it does

not come close to the standard of reliability.” (R. 116, Def.’s Mem. at 9.) As explained below,
Defendant does not present any argument that warrants exclusion of the proffered expert
testimony on the basis of reliability.
A.

Dr. Hollon

Defendant argues that Dr. Hollon failed to undertake an “objective investigation of the
facts” (Id. at 10), and “failed to gather relevant data.” (Id. at 12-14.) Defendant presents these
challenges as two independent arguments.
1.

Objective Investigation of the Facts

Defendant relies on Dr. Hollon’s deposition testimony to argue that he “made no
objective investigation of the facts.” (R. 116, Def.’s Mem. at 10 (citing id., Ex. 20, Hollon Dep.
in the MDL Court (“Hollon Dep.”), at 67-68 (Mar. 27, 2006)).) According to Defendant, Dr.
Hollon’s deposition testimony shows that he “bases his opinions on material hand-picked for
him by Plaintiff’s counsel,” and then “‘randomly’” delves into this limited material and, finding
nothing to disprove his views, offers them as expert opinions.” (Id. (citing Hollon Dep. at 6768).) Defendant, however, grossly mischaracterizes Dr. Hollon’s deposition testimony by
offering only limited testimony ripped from its context.
Contrary to Defendant’s representation, Dr. Hollon never testified that he relied
exclusively on the documents that Plaintiff’s counsel provided to him. In fact, he explicitly
testified that “not all of it was provided by counsel.” (Hollon Dep. at 77.) Dr. Hollon testified

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that he additionally relied on his “knowledge” and “expertise” of marketing practices (id. at 33),
and on materials that he “found . . . independently” (id. at 46). He further testified that he
gathered a “substantial portion” of the documents he reviewed “well prior to any specific work
that I did related to this case.” (Id. at 36; see also id. at 28 (“most of the medical literature that I
used to write this report was obtained by my own independent efforts”).)
To the extent Dr. Hollon relied on documents that counsel sent to him, the record
contradicts Defendant’s assertion that these documents were “limited.” (Id. at 21, 27 (“millions
of pages”).). As Dr. Hollon testified: “There were boxes upon boxes upon boxes of documents
sent, numbering thousands upon thousands upon thousands of pages . . . .” (Id. at 21 (further
noting that he received an initial and then subsequent set of documents, and also 240 gigabytes
of information on a hard drive).) Despite the breadth of counsel’s production, Dr. Hollon also
requested additional materials, which he received. (Id. at 24, 69.)
Furthermore, contrary to Defendant’s arguments, Dr. Hollon did not simply look to
counsel’s documents to disprove his opinions. Once Dr. Hollon reached his tentative opinions,
he “went back to look in the medical literature . . . and in the popular literature, using”
electronic databases, including LexisNexis, to test his opinions. (Id. at 67-68; see also id. at 33
(testifying that he relied on his own experience combined with a “comprehensive summary of
the available literature on the general impact of promotion on prescribing practices of physicians,
and the influence that direct to consumer marketing has on those prescribing practices in this
country”); id. at 67 (“It’s my responsibility, as a researcher and scientist, to try and triangulate
and to review as much as I can to form an opinion so that my opinion is valid.”).)
For all of these reasons, the Court cannot say that Dr. Hollon failed to undertake an

11

objective investigation of the facts such that his expert testimony lacks reliability. (Id. at 33
(testifying that he relied on his own experience combined with a “comprehensive summary of
the available literature on the general impact of promotion on prescribing practices of physicians,
and the influence that direct to consumer marketing has on those prescribing practices in this
country”).) Defendant’s challenges go to the weight of Dr. Hollon’s expert testimony, not its
admissibility. See Walsh v. Chez, 583 F.3d 990, 995 (7th Cir. 2009) (holding that the “district
court erred in concluding that whatever flaws existed in the expert reports . . . went to their
admissibility, as opposed to their weight”).
2.

Gather Relevant Data

Defendant next argues that Dr. Hollon “failed to gather relevant data.” (R. 116, Def.’s
Mem. at 12.) Defendant’s somewhat undeveloped argument focuses on certain specific
opinions.
First, Defendant argues that, with respect to “Dr. Hollon’s opinion that Wyeth repeatedly
ignored the FDA’s directives regarding HT advertisements”:
[Dr. Hollon] did not obtain all the facts about those ads, including when they ran,
where they ran, or even whether they ran at all. He is not familiar with the
correspondence file between Wyeth and the FDA, and instead bases his opinion
on his ‘sense’ of what happened.
(Id. at 13.) This argument, however, mischaracterizes the portions of the record upon which it
relies. (Id. (citing Hollon Dep. at 232-33, 270-74, 280-81, 284-87).) In the cited deposition
testimony, Dr. Hollon offered limited testimony about certain advertisements that might not even
be relevant to this case. (See Hollon Dep. at 270-87. Cf. id. at 257-60 (testifying that he created
a binder of relevant promotional materials).) Dr. Hollon is not a case-specific expert, and
nothing in the cited testimony establishes that Dr. Hollon is unfamiliar with Defendant’s HT
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advertising generally, or otherwise lacks a sufficient factual basis to opine on Defendant’s
marketing activities. This is particularly true in light of his experience, research, and review of
relevant records. Moreover, to the extent Defendant suggests that Dr. Hollon lacks familiarity
with “the correspondence file between Wyeth and the FDA,” Defendant offers nothing to
support such a sweeping statement. Defendant relies exclusively on Dr. Hollon’s testimony
relating to Defendant’s promotion of HT for off-label use – an issue that is irrelevant to this case.
(Id. at 232-33.)
Second, with regard to Dr. Hollon’s opinion that Defendant “exert[ed] profound control
over” the medical literature on HT, Defendant argues that the opinion is unreliable because Dr.
Hollon “admits that he cannot quantify the extent to which Wyeth allegedly influenced the
medical literature.” (R. 116, Def.’s Mem. at 13-14.) In support of its argument, Defendant relies
on Dr. Hollon’s deposition testimony that Defendant’s funding of articles “was a piece of the
overall marketing plan that influenced providers and patients together . . . . It’s reasonable to
suppose that they continued to invest in it because it was effective.” (Id.) When read in the
proper context, however, this testimony does not support Defendant’s argument. Dr. Hollon’s
testimony was in the context of discussing the existence of thousands of articles on HT and how
Defendant used these articles as “a piece of the overall marketing plan that influenced providers
and patients together.” (Hollon Dep. at 324; see also id. at 152 (discussing the effect of
“comprehensive promotional efforts of Wyeth” and “integrated marketing tactics,” which took
place “through all these different channels”).)
Finally, Defendant argues that Dr. Hollon’s opinion on ghostwriting “hinges on a single
article that he admits he did not read.” (R. 116, Def.’s Mem. at 14 (citing Hollon Dep. at 321).)

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Defendant neither discusses the content or methodological value of this “single article,” nor does
Defendant discuss the relevant portions of Dr. Hollon’s expert report in which he references
numerous sources upon which he bases his opinion on ghostwriting. (Hollon Report at 62, 7273, 77.) Moreover, as to the specific article to which Defendant refers, Dr. Hollon never testified
that “he did not read” the article, but instead testified that he only had an abstract of the article
with him “here.” (Hollon Dep. at 321.)
3.

Scientific Standards

Defendant next argues that Dr. Hollon failed to adhere to scientific standards. (R. 116,
Def.’s Mem. at 13.) Defendant reasons that Dr. Hollon has previously opined in the Journal of
the American Medical Association (“JAMA”) that, as a general matter, the net public benefit of
direct-to-consumer advertising is unclear. (Id. at 15.) By now “offering a contrary [opinion] in
this litigation,” Defendant asserts that “Dr. Hollon is applying different standards in the
courtroom than those applied in his professional practice.”4 (Id.) The Court again disagrees.
Dr. Hollon’s JAMA article does not discuss Defendant or HT marketing practices, and therefore
is not counter to his opinions in the present litigation. In any event, the existence of this prior

4

Defendant also contends that “in the five years since he was retained as an expert in the
HT litigation, he has never subjected his opinions (and accordingly his methodology) regarding
Wyeth’s advertising to peer review.” (R. 116, Def.’s Mem. at 15.) This argument, comprised of
one conclusory sentence without elaboration or reference to any legal authority, is waived. See
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 n.1 (7th Cir. 2012) (holding that
“perfunctory and undeveloped arguments unsupported by pertinent authority are waived”). Even
if Defendant had not waived this argument, the existence of peer review is one of myriad
relevant factors under Daubert. Defendant makes no attempt to explain how this factor, viewed
with others, warrants exclusion under Daubert. See Daubert, 509 U.S. 593-94 (“The fact of
publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not
dispositive, consideration in assessing the scientific validity of a particular technique or
methodology on which an opinion is premised.”).
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publication goes to the weight, not the admissibility, of his expert testimony.
B.

Dr. Fugh-Berman

Defendant’s sole challenge to Dr. Fugh-Berman’s methodology is this: she failed to
make an objective investigation of the facts because she “published . . . a paper . . . , which is
critical of the ‘lawful’ practice of ‘ghostwriting.’” (R. 116, Def.’s Mem. at 10-11.) Defendant
reasons that Dr. Fugh-Berman’s publication “reveals that she is simply a mouthpiece for HT
plaintiffs’ counsel” because she relied heavily on “plaintiffs’ counsel” for the content of her
article. (Id. at 11.) Other than offer a defense of ghostwriting, Defendant does not advance any
legal argument in support of excluding Dr. Fugh-Berman’s testimony under any applicable legal
authority. To the extent Defendant disagrees with Dr. Fugh-Berman’s opinions as to
ghostwriting, Defendant may, if otherwise appropriate, explore these issues with the witness on
cross-examination.
IV.

Intent and Motivation
Defendant seeks to preclude Dr. Hollon from testifying about Defendant’s “internal

motivations,” arguing that such testimony would amount to improper speculation. (R. 116,
Def.’s Mem. at 15-16.) Plaintiff responds that “opinions as to Wyeth’s ultimate motives and
intent are certainly not the main thrust of Dr. Hollon’s report or testimony. Where he does touch
upon the subject, Dr. Hollon provides objective sources.” (R. 131, Pl.’s Mem. at 22.)
The Court agrees with Defendant. Nothing in Plaintiff’s brief or the record suggests that
Dr. Hollon has personal knowledge of the internal motivation for any of Defendant’s actions,
and furthermore, the jury is fully capable of considering the issue of intent based on the evidence
presented at trial. See DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998) (“He

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could give an opinion as an engineer that reducing the padding saved a particular amount of
money; he might testify as an engineer that GM’s explanation for the decision was not sound
(from which the jury might infer that money was the real reason); but he could not testify as an
expert that GM had a particular motive.”); Johnson v. Wyeth LLC, No. 10-C-2690, 2012 WL
1204081, at *3 (D. Ariz. Apr. 11, 2012) (precluding plaintiff’s experts from offering “opinions
concerning defendants’ motive, intent, knowledge, or other state of mind”); In re Yasmin and
YAZ (Drospirenone) Mktg., Sales Practices and Prods. Liab. Litig., 09-md-2100, 2011 WL
6302287, at *12 (S.D. Ill. Dec. 16, 2011); Loewen v. Wyeth, Inc., No. 03-J-2166, 2011 WL
6942870, at *4 n.3 (N.D. Ala. Nov. 14, 2011) (precluding Dr. Hollon from offering any
testimony that “constitutes his personal views as to the intent, motive, and state of mind of
Wyeth”); George v. Kraft Foods Global, Inc., 800 F. Supp. 2d 928, 932-33 (N.D. Ill. 2011)
(excluding expert’s state of mind opinion as speculative and unhelpful); United States Gypsum
Co. v. Lafarge N. Am., Inc., 670 F. Supp. 2d 768, 775 (N.D. Ill. 2009) (citing Dahlin v.
Evangelical Child and Family Agency, No. 01 C 1182, 2002 WL 31834881, at *3 (N.D. Ill. Dec.
18, 2002) (“testimony that does little more than tell the jury what result to reach is unhelpful and
thus inadmissible, and testimony regarding intent—essentially an inference from other facts—is
even more likely to be unhelpful to the trier of fact”) (internal citation omitted)); Nat’l Jockey
Club v. Ganassi, No. 04-3741, 2009 WL 2177217, at *8 (N.D. Ill. July 21, 2009) (“intent of the
parties must be determined by the jury, and expert opinion testimony is not necessary on this
point”).
Accordingly, the Court grants Defendant’s motion to preclude Dr. Hollon from offering
opinion testimony as to Defendant’s state of mind, including intent or motivation.

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V.

Standard of Care
Finally, Defendant seeks to preclude Dr. Hollon from offering testimony “regarding the

standard of care for pharmaceutical marketing.” (R. 116, Def.’s Mem. at 16.) Defendant reasons
that Dr. Hollon’s opinion on the applicable standard of care amounts to his own subjective
“views on marketing ethics” without any objective foundation. (Id.) Once again, the Court
disagrees. Dr. Hollon is a physician and expert in drug marketing, and he may reliably draw on
his vast experience in this area, and his expert knowledge of federal and industry regulations, to
opine on the standard of care. (See Hollon Report at 23; Hollon Dep. at 219-21, 237-38, 26465); accord Loewen, 2011 WL 6942870, at *1 n. 1 (“the court sees no reason why Dr. Hollon’s
testimony regarding the standard of care should be excluded” on the basis that it amounts to
“personal opinions”); In re Prempro Prods. Liab. Litig., No. 03-CV-1507, 2006 WL 5217764, at
*5 (E.D. Ark. Sept. 13, 2006) (rejecting Wyeth’s challenge to Dr. Hollon’s proposed testimony
on the standard of care, reasoning that “[c]learly, Dr. Hollon has a knowledge of pharmaceutical
marketing that is beyond a juror’s common understanding”).
CONCLUSION
For the reasons explained above, the Court grants in part, and denies in part, Defendant’s
motion.
Date: May 17, 2012
ENTERED

_______________________________
AMY J. ST. EVE
United States District Court Judge

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