In Re: Testosterone Replacement Therapy Products Liability Litigation

Filing 1898

CASE MANAGEMENT ORDER NO. 49 (Decision on AbbVie's motion to exclude plaintiff's expert Robert Johnson - dkt. 1729), signed by the Honorable Matthew F. Kennelly on 5/8/2017. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
In re: Testosterone Replacement
Therapy Products Liability Litigation
Coordinated Pretrial Proceedings
(This document applies to all cases)

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No. 14 C 1748
MDL No. 2545

CASE MANAGEMENT ORDER NO. 49
(Decision on AbbVie's motion to exclude
plaintiff's expert Robert Johnson – dkt. 1729)
MATTHEW F. KENNELLY, District Judge:
This order concerns the cases brought against defendants AbbVie Inc. and
Abbott Laboratories (collectively AbbVie) that have been selected for bellwether trials in
this multidistrict litigation (MDL) proceeding. Plaintiffs in those cases have designated
Robert W. Johnson as an expert witness to testify about AbbVie's financial condition
and ability to pay a potential punitive damages award. AbbVie has moved to exclude
his testimony under Federal Rules of Evidence 104(a), 702, and, 403, as well as
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
AbbVie argues Johnson lacks the appropriate qualifications to evaluate a
company's financial condition and ability to pay and that the opinions he intends to offer
in this case are not the product of any reliable methodology. The Court need not
consider those arguments, however, because it concludes that Rule 403 provides a
sufficient basis for the exclusion of Johnson's testimony. Plaintiffs do not dispute that
Johnson's testimony is relevant only on the issue of punitive damages. In another
decision in this proceeding, the Court has ruled that the punitive damages law of Illinois
applies in the AbbVie-only bellwether cases. Under Illinois law, "evidence of net worth

is . . . the preferred method of assessing punitive damages." Cent. Bank—Granite City
v. Ziaee, 188 Ill. App. 3d 936, 946, 544 N.E.2d 1121, 1127 (1989).
AbbVie has agreed to stipulate to its net worth as reflected in its filings with the
Securities and Exchange Commission, the same filings on which Johnson relies for his
analysis. Given that stipulation, the relevance and probative value of additional
testimony about AbbVie's finances is unclear. By contrast, the potentially unfair
prejudice arising from extended testimony regarding the wealth of AbbVie and its
executives is obvious. In their response to AbbVie's motion to exclude, plaintiffs do not
address AbbVie's proposed stipulation or explain why information beyond the
company's net worth is necessary for the jury to make a potential punitive damages
assessment. Yet it is the proponent of expert testimony who bears the burden of
establishing that the testimony satisfies the Rules of Evidence. See Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). The Court concludes that the risk
of unfair prejudice substantially outweighs the probative value of Johnson's testimony in
light of AbbVie's proposed stipulation and therefore grants AbbVie's motion to exclude
[dkt no. 1729]. See Fed. R. Evid. 403.

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MATTHEW F. KENNELLY
United States District Judge
Date: May 8, 2017

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