Crawford v. Walgreen Co.

Filing 46

OPINION AND ORDER DENYING 27 MOTION for Summary Judgment filed by Walgreen Co. GRANTING IN PART 24 MOTION F.R.E. 702 to Exclude Plaintiff's Experts' Opinions filed by Walgreen Co. DENYING AS MOOT 33 M OTION to Strike Portions of Plaintiff's Response in Opposition to Walgreen's Motion to Exclude Experts filed by Walgreen Co. The court ORDERS the parties to file a joint status report regarding their willingness to engage in a settlement conference before a Magistrate Judge by 4/9/2021. A trial date will be set under a separate order. Signed by Senior Judge James T Moody on 3/31/2021. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CHRISTINE CRAWFORD,
Plaintiff,
v.
WALGREEN CO.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 2:18 CV 457

OPINION and ORDER
This matter is before the court on defendant’s motion to exclude plaintiff’s
experts (DE # 24) and defendant’s motion for summary judgment (DE # 27). For the
reasons that follow, defendant’s motion to exclude will be granted in part and denied in
part, and defendant’s motion for summary judgment will be denied.
I.

BACKGROUND
A.

Factual Background

Plaintiff Christine Crawford originally filed her complaint in the Lake Superior
Court, alleging that defendant Walgreen Co. negligently dispensed medication to her
that contained lactose, despite knowing that she is lactose intolerant, and without
warning her that the medication contained lactose. (DE # 5.) Defendant removed the
case to this court based on diversity jurisdiction. (DE # 1.)
The undisputed factual allegations are as follows. Between 2011 and 2018,
defendant routinely filled plaintiff’s prescription for Triamterene. (DE # 24-5.)
According to plaintiff, when she first began taking the medication, it was a different

brand and did not cause her any sickness. (DE # 24-11 at 71.) However, around the time
that plaintiff began receiving a different brand of the medication (Sandoz), in 2016 or
early 2017, she began experiencing symptoms that she now believes were caused by the
medication. (DE # 24-5 at 25; DE # 24-11 at 26, 70-71.) Plaintiff claims that she suffered
the following injuries as a result of taking the lactose-containing Triamterene: “severe
life-altering diarrhea which has led to the diagnosis of several urinary tract infections,
chronic irritation of the colon, colon inflamation, colitis and C. Difficile Toxin . . .” (DE #
24-12 at 4.) Plaintiff testified that, in the year since she stopped taking Triamterene, she
can only recall one instance of diarrhea. (DE # 24-11 at 64.)
Plaintiff’s medical records indicate that she has complained of persistent
diarrhea, urinary tract infections (UTIs) and colitis symptoms dating back to 1996,
before she received her first dose of Triamterene in 2011. (DE # 24-2 at 1, 24-25, 27-28,
33; DE # 24-3 at 18-20, 23, 28-30, 32-34, 40-42, 49-51, 53, 56, 58, 59; DE # 24-4 at 4.)
Plaintiff’s medical records also reveal that she has reported to her physicians that she
has suffered from periodic diarrhea for decades, after contracting amoebic dysentery in
Mexico in the 1970s. (See e.g. DE # 24-1 at 8.)
Plaintiff stopped taking the Triamterene in August 2018, after discovering that
the medication contained lactose. (DE # 24-11 at 62.) Plaintiff was diagnosed with, and
treated for, a UTI in June 2019, nearly 10 months after she stopped taking the
Triamterene. (DE # 24-14 at 7.)

2

Triamterene itself does not contain lactose, but lactose is an inactive ingredient,
likely used to make the capsule that contains the medication. (DE # 24-15 at 8.) When
filling a medication for a patient who is noted to have lactose intolerance, defendant’s
computer system would not flag the presence of lactose as an inactive ingredient if the
medication contained less than one gram per dose. (Id. at 4.) Defendant’s pharmacists
would only speak to a patient about the fact that a medication contains lactose if this
computer system flagged the presence of lactose – meaning that defendant’s
pharmacists would only alert a patient to the presence of lactose in a medication if the
medication contained more than one gram of lactose per dose. (Id.)
B.

Expert Opinions

Plaintiff disclosed two experts, Dr. Brett Brechner and Robert Belloto, Ph.D.
Plaintiff intends to use Belloto to establish the pharmacist standard of care, and to
provide evidence that defendant breached this standard of care. (DE # 29 at 8-9.)
Plaintiff intends to use Dr. Brechner to establish a causal link between plaintiff’s use of
Triamterene and her adverse symptoms. (Id. at 17.)
Belloto has his Ph.D. in Pharmacy and works as a pharmacist. (DE # 24-6 at 1-2.)
Belloto has opined as to the standard of care of a pharmacist and has concluded that
defendant should have notified plaintiff that the Triamterene contained lactose as an
inactive ingredient. (DE # 24-7.) Belloto opined that defendant breached its standard of
care by failing to warn plaintiff. (Id.) In forming his opinion, Belloto relied on an article
by Filippo Fassio et al., which states that most lactose intolerant patients can tolerate

3

five grams of lactose per single dose, with an increase in the tolerance threshold if the
lactose is consumed together with other nutrients. (DE # 24-7 at 2; DE # 24-8 at 7.)
Belloto’s report also relied on the Fassio article’s statement that even small amounts of
lactose, as little as 0.01%, is enough to induce symptoms in at least a portion of lactoseintolerant patients. (DE # 24-7 at 2; DE # 24-8 at 7.) Belloto explains that 0.01% is the
equivalent of 0.01 g/100 g of a product, which is the equivalent to 10 mg of lactose. (DE
# 24-7 at 2.) Given that some patients can experience symptoms from even very small
amounts of lactose, and given that predictions of adverse effects based on statistical
models are difficult and are only probabilistic in nature, Belloto opined that “the
standard of care would be to notify the patient via counseling and discussion that the
capsule does contain lactose and it is possible that it can cause adverse effects. Then,
perhaps, a few capsules could have been dispensed to see if any adverse effects were
observed by Ms. Crawford. Another alternative would be to look for a different dosage
form or therapy.” (Id. at 3.) He concluded, “[i]t certainly appears that the standard of
care was breached by failing to notify the patient that the capsules contained lactose.”
(Id.)
Plaintiff’s other expert, Dr. Brechner was one of plaintiff’s treating physicians.
Plaintiff was a patient at Dr. Brechner’s medical practice and Dr. Brechner personally
treated plaintiff on two occasions, on January 24, 2018, and on August 29, 2018. (DE #
24-10 at 1.) Dr. Brechner opined: (1) that the daily ingestion of lactose in the Triamterene
may have caused or contributed to plaintiff’s chronic diarrhea and colitis; (2) her colitis

4

and diarrhea predisposed her to recurrent urinary tract infections which required
multiple antibiotics; (3) the use of multiple antibiotics was likely the cause of the C. Diff
colitis; and (4) while plaintiff’s diarrhea persisted after she changed medications, the
diarrhea and colitis would not be expected to clear up immediately if it was caused
directly by the lactose in the Triamterene. (Id. at 2.)
Defendant now moves to exclude both of plaintiff’s experts. (DE # 24.) Defendant
also moves for summary judgment on the basis that the absence of an admissible expert
opinion that the Triamterene caused plaintiff’s symptoms requires that judgment be
entered in favor of defendant as a matter of law. (DE # 27; DE # 28.) The motions are
fully briefed and are ripe for ruling.
II.

ANALYSIS
A.

Motion to Exclude Legal Standards

In this case, the court’s jurisdiction is based on diversity of citizenship. Therefore,
the court must apply federal procedural law and state substantive law. C.W. ex rel. Wood
v. Textron, Inc., 807 F.3d 827, 831 (7th Cir. 2015). The parties do not dispute that Indiana
substantive law applies here.
Plaintiff’s claim is for negligence. “To prevail on a claim of negligence, a plaintiff
is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of
that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the
breach.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007).

5

In this diversity action, Indiana law governs whether an expert is needed to
establish the standard of care or the causation of a plaintiff’s injuries. Musser v. Gentiva
Health Servs., 356 F.3d 751, 760 (7th Cir. 2004) (standard of care); Higgins v. Koch Dev.
Corp., 794 F.3d 697, 701 (7th Cir. 2015) (causation). Generally, under Indiana law, “[a]
plaintiff must present expert testimony to establish the applicable standard of care and
to show whether the defendant’s conduct falls below the standard of care.” Musser, 356
F.3d at 760; see also Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 90 (Ind. Ct. App.
2018); Troutwine Ests. Dev. Co., LLC v. Comsub Design & Eng’g, Inc., 854 N.E.2d 890, 902
(Ind. Ct. App. 2006); Shidler v. CVS Pharmacy Inc., No. 205-CV-209 CAN, 2007 WL
601748, at *3 (N.D. Ind. Feb. 20, 2007) (expert testimony required to establish the
standard of care for pharmacist). Indiana law also generally requires expert testimony
to establish causation in cases involving the relationship between an injury and a preexisting condition, because the causal connection in such cases involves complicated
medical questions beyond the understanding of a lay person. See Spinnenweber v.
Laducer, 983 F.3d 301, 305 (7th Cir. 2020) (citing Daub v. Daub, 629 N.E.2d 873, 877-78
(Ind. Ct. App. 1994)).
While the court must look to Indiana law to determine whether an expert is
needed to establish the standard of care or causation, the court must look to Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), to determine whether plaintiff’s proposed experts’ opinions are admissible. C.W.
ex rel. Wood, 807 F.3d at 834. Rule 702 provides:

6

If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
Under Daubert, the court must be satisfied, first, that the expert can testify based on
valid scientific, technical, or specialized knowledge, i.e., whether the expert’s testimony
is reliable, and second, whether that testimony will be of assistance to the trier of fact.
509 U.S. at 592; United States v. Welch, 368 F.3d 970, 973 (7th Cir. 2004); Ammons v.
Aramark Uniform Services, Inc., 368 F.3d 809, 816 (7th Cir. 2004). The reliability issue
requires the court to determine whether the expert is qualified in the relevant field and
used a reliable methodology to arrive at his or her conclusions. Zelinski v. Columbia 300,
Inc., 335 F.3d 633, 640 (7th Cir. 2003); Smith v. Ford Motor Co., 215 F.3d 713, 718
(7th Cir. 2000). In this case, the qualifications of plaintiff’s experts is not at issue. Thus,
the court may proceed directly to the issue of reliability.
A district court’s inquiry under Daubert is a flexible one, and therefore the court
has wide latitude in performing this gate-keeping function and determining whether
the expert testimony is reliable. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th
Cir. 2011). The overarching inquiry under Rule 702 is “the scientific validity and thus
the evidentiary relevance and reliability of the principles that underlie a proposed
submission. The focus, of course, must be solely on principles and methodology, not on
the conclusions that they generate.” Daubert, 509 U.S. at 594-95 (footnote omitted); see

7

also C.W. ex rel. Wood, 807 F.3d at 834 (“The district court is the gatekeeper of expert
testimony. We stress that ‘the key to the gate is not the ultimate correctness of the
expert’s conclusions. Instead, it is the soundness and care with which the expert arrived
at her opinion[.]’” (quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir.
2013))).
B.

Motion to Exclude Belloto

Plaintiff identified Belloto as an expert who could establish the standard of care,
and provide evidence that defendant breached that standard of care. Indiana law
recognizes that pharmacists owe a duty of care to their customers. Hooks SuperX, Inc. v.
McLaughlin, 642 N.E.2d 514, 519 (Ind. 1994) (“[P]harmacists must exercise that degree of
care that an ordinarily prudent pharmacist would under the same or similar
circumstances.”). The parties in this case do not dispute that defendant owed plaintiff a
duty of care. The question, then, is what defendant’s duty consisted of. See id. Plaintiff
attempts to answer this question using Belloto’s evidence.
Defendant has moved to exclude Belloto as an expert on the basis that his
opinion – that the standard of care required defendant to notify plaintiff that the
capsule contained some amount of lactose – is based on an unreliable methodology. (DE
# 24 at 13.) First, defendant argues that Belloto’s opinion relies on the Fassio article’s
statement that amounts of lactose as little as 0.01% is enough to induce symptoms in
some lactose-intolerant patients. (Id. at 12.) Defendant correctly points out that the
Fassio article does not cite any support for this claim. (See DE # 24-8 at 7.) Defendant

8

contends that, in the absence of any citation supporting this claim, this underlying fact
is not reliable and cannot serve as the basis for Belloto’s opinion. (DE # 24 at 14.)
Second, defendant argues that Belloto’s conclusion – that defendant had a duty to warn
plaintiff that the medication contained any amount of lactose – is too attenuated from
the other fact Belloto relies upon in forming his opinion: that most patients can tolerate
five grams of lactose per dose. (Id. at 14-15.) The court agrees that Belloto should be
excluded.
Belloto’s opinion rests on the unsupported claim in the Fassio article that a
lactose-intolerant patient could experience symptoms after ingesting as little as 0.01% of
lactose in a given product. Belloto relies on this data point to conclude that, because a
patient could experience symptoms after the ingestion of as little as 10 mg of lactose,
defendant had a duty to warn patients about the presence of any amount of lactose in a
given medication. However, plaintiff has not identified any evidence that the
unsupported claim from the Fassio article is a reliable basis for Belloto’s conclusions.1
In the absence of evidence that a lactose-intolerant patient could experience
symptoms after ingesting as little as 10 mg of lactose, Belloto’s opinion rests on

1

The Fassio article states: “The absence in many European countries and nonEuropean countries of laws regulating the commercialization of delactosed products –
and the consequent lack of a cut-off value for establishing when a product can be
labeled “lactose-free”– has resulted in the proliferation of many dairy products claiming
the absence or reduction of lactose, despite the presence of a small amount (usually
<0.01% or <0.1% and <0.5%, respectively) in such products, which, although reduced, is
still enough to induce symptoms in at least a portion of lactose-intolerant patients.” (DE
# 24-8 at 7.) The Fassio article does not provide any citation in support of this claim.
9

evidence that most lactose-intolerant patients can tolerate five grams of lactose per
dose. Yet, Belloto does not connect the dots between this data point, and his opinion in
this case that defendant breached its standard of care by failing to warn plaintiff about
the presence of less than one gram per dose of lactose. “[N]othing in either Daubert or
the Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert. A court may conclude that
there is simply too great an analytical gap between the data and the opinion proffered.”
General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997) (district court did not err in
excluding expert testimony where expert relied on scientific articles that were too far
removed from the facts of plaintiff’s case). Belloto’s conclusion is too far removed from
the data on which he relies to be admissible because it amounts to nothing more than
unsupported speculation that a patient may experience symptoms after ingesting less
than one gram of lactose per dose of medication.
Plaintiff argues that Belloto’s opinions did not require any quantitative analysis,
and he did not need to cite to any study in order to opine as to the standard of care. (DE
# 29 at 13-14.) Plaintiff argues that Belloto only relies on the Fassio article in so far as it
demonstrates that some people are sensitive to even small amounts of lactose, but that
the specific numbers are not relevant to Belloto’s opinion. (Id. at 13.) These arguments
are not persuasive. The court need not determine whether, in theory, a pharmacist
could provide testimony regarding a general standard of care without relying on any
quantitative data; Belloto did not opine that a pharmacist has a general duty to warn a

10

patient of the presence of any amount of an allergen in a medication, no matter how
small. Rather, he specifically relies on the fact that amounts of lactose as small as 10 mg
can cause symptoms in lactose-intolerant patients, in forming his opinion that
defendant had a duty to warn plaintiff of the presence of lactose in the medication. This
fact forms the crux of his opinion. Without this underlying fact, there would be nothing
to support his conclusion that a pharmacist has a duty to warn a lactose-intolerant
patient about the presence of any amount of lactose. Thus, contrary to plaintiff’s
assertion, the amount of lactose in the medication is relevant to Belloto’s opinion
regarding the standard of care for a pharmacist and the breach of that standard of care.
The court finds that Belloto’s evidence is not based on reliable principles and
methods. Therefore, the court will grant defendant’s motion to exclude Belloto as an
expert.
C.

Motion to Exclude Dr. Brechner

Defendant identifies two grounds in support of its motion to exclude Dr.
Brechner’s testimony. The court will address each argument in turn.
First, defendant argues that Dr. Brechner’s opinion should be excluded because it
is not based upon sufficient facts. (DE # 24 at 17.) Defendant argues that Dr. Brechner’s
opinions did not reflect any knowledge or consideration of plaintiff’s pre-existing
medical history of chronic diarrhea, colitis, and UTIs. (Id. at 17-18.) Defendant argues
that it is not clear from his report that Dr. Brechner reviewed plaintiff’s medical records

11

that pre-date her first dose of Triamterene, and therefore his opinion is based on an
incomplete, and therefore inaccurate, picture of her medical history. (Id. at 18-19.)
A treating physician should not be excluded as an expert witness merely because
he lacks a complete or accurate understanding of a plaintiff’s medical history before
opining on the cause of the plaintiff’s medical condition. The Seventh Circuit’s decision
in Cooper v. Carl A. Nelson & Co., is instructive on this issue. 211 F.3d 1008 (7th Cir. 2000),
as amended on denial of reh’g and reh’g en banc (June 1, 2000). There, the Court reviewed
the district court’s decision to exclude three expert witnesses’ causation testimony. Id. at
1019. The district court excluded the three experts – plaintiff’s treating physicians –
because they relied on plaintiff’s own statements regarding his medical history in
determining the cause of his chronic pain syndrome. Id. The Seventh Circuit determined
that the district court “assumed an overly aggressive role as ‘gatekeeper’ and that the
jury ought to have been allowed to assess the physicians’ assertion that trauma from the
fall caused Mr. Cooper’s pain.” Id. For example, one of the physicians, Dr. Richardson,
physically examined the plaintiff and obtained a self-reported medical history from the
plaintiff. Id. The plaintiff reported that after his fall, he began experiencing pain. Id.
Based on the plaintiff’s self-reported medical history, Dr. Richardson determined that
the plaintiff’s pain was caused by his fall. Id. The defendant argued that a plaintiff’s selfreported medical history is an insufficient basis upon which to base a causation opinion;
that the plaintiff lied about his medical history; and that Dr. Richardson did not
consider other possible causes of the plaintiff’s pain. Id. at 1019-1021.

12

The Seventh Circuit rejected the defendant’s arguments. The Court noted that, in
clinical medicine, “the methodology of physical examination and self-reported medical
history employed by Dr. Richardson is generally appropriate.” Id. at 1020. The Court
distinguished this case from cases in which the asserted cause of a patient’s condition
requires specialized scientific knowledge, such as a case where a physician determined
that a nicotine patch worn for three days caused a myocardial infarction, or where a
physician determined that a chemical sensitivity was the result of pesticide exposure, or
where a physician determined that radiation exposed caused a plaintiff’s cataracts. Id.
The Seventh Circuit determined that the possibility that the plaintiff’s pain was
attributable to a factor other than his fall “is a subject quite susceptible to exploration on
cross-examination by opposing counsel. Similarly, the accuracy and truthfulness of the
underlying medical history is subject to meaningful exploration on cross-examination
and ultimately to jury evaluation. Therefore, [the defendant’s] contention that other
conditions of [the plaintiff’s] might have caused his [pain] goes to the weight of the
medical testimony, not its admissibility.” Id. at 1021. “The proper method of attacking
evidence that is admissible but subject to doubt is to cross-examine vigorously, to
present contrary evidence, and to give careful instructions on the burden of proof.” Id.;
see also Walker v. Soo Line R. Co., 208 F.3d 581, 586 (7th Cir. 2000) (in situations where
there are questions about the accuracy of a patient’s self-reported medical history, and a
medical expert has relied upon that history in opining on causation, district courts
should allow those inaccuracies to be explored through cross-examination).

13

This case is akin to Cooper. Here, Dr. Brechner opined that plaintiff’s symptoms
may have been caused by her ingestion of lactose in the Triamterene. He made this
determination after meeting with plaintiff, discussing her symptoms, and based on her
report that she is lactose-intolerant. Defendant claims that Dr. Brechner should be
excluded because it is possible that there were other causes for her symptoms; namely,
her pre-existing conditions. To the extent that Dr. Brechner was not aware of the full
scope of plaintiff’s history of similar symptoms pre-dating her use of the Triamterene,
this is a matter of credibility, not admissibility. The possibility of alternative causes to a
plaintiff’s injuries is a question properly left for exploration on cross-examination.
Cooper, 211 F.3d at 1021; see also Gayton v. McCoy, 593 F.3d 610, 619 (7th Cir. 2010)
(“[W]hether the cause put forth by a qualified expert actually proximately caused the
injury at issue is a question for the jury at trial; a district court should only evaluate
whether an expert’s conclusion on causation was reasoned and based on a reliable
methodology.”). Defendant is free to explore the issue on cross-examination.
Furthermore, as in Cooper, Dr. Brechner’s methodology of patient examination
and self-reported patient history is reliable. Dr. Brechner’s determination of causation
does not require the same type of specialized scientific knowledge that might be
required to opine on causation in other cases. See Cooper, 211 F.3d at 1020. Defendant
argues that Dr. Brechner did not have sufficient facts to conduct a differential diagnosis
or differential etiology – yet Dr. Brechner did not claim to have employed these
methods of singling out a potential cause of plaintiff’s symptoms. Moreover, such

14

methods are not required in this case. Here, Dr. Brechner’s examination and
consideration of plaintiff’s self-reported history and symptoms were a sufficient basis
for Dr. Brechner’s opinion as to the possible cause of her symptoms.
Defendant’s second argument in favor of excluding Dr. Brechner’s opinion is that
his opinion was not made to a reasonable degree of medical certainty, and therefore
would not be sufficient to support a judgment under Indiana law. (DE # 24 at 19.)
Defendant argues that Dr. Brechner’s report stated that plaintiff’s daily ingestion of the
Triamterene “may have caused or contributed” to her symptoms; that the insult on her
gastrointestinal tract “could cause” prolonged inflammation of the colon; that there is a
“likely correlation” between plaintiff’s recurrent UTIs and her chronic diarrhea; and
that the diarrhea and colitis would not be expected to clear up immediately following
discontinuation of the Triamterene “if it was indeed caused by the lactose.” (Id. at 19-20;
DE # 24-10.) Defendant argues that this language reflects a degree of uncertainty with
respect to his causation opinions and therefore would not be sufficient to support a
verdict in favor of plaintiff. (Id. at 20.)
This second argument from defendant is not an argument regarding the
admissibility of Dr. Brechner’s opinion; it is an argument regarding the sufficiency of
his opinion. Dr. Brechner’s opinion that the Triamterene “may have caused or
contributed” to plaintiff’s symptoms is sufficiently certain to be admissible under Rule
702. See Gayton, 593 F.3d at 619 (to be admissible, “an expert need not testify with
complete certainty about the cause of an injury; rather he may testify that one factor

15

could have been a contributing factor to a given outcome.”); Stutzman v. CRST, Inc., 997
F.2d 291, 296 (7th Cir. 1993) (“[T]he Federal Rules do not contain any threshold level of
certainty requirement. . . . “[C]ertainty is an issue for the jury and does not affect
admissibility.”).
The question of whether plaintiff has pointed to sufficient evidence to support a
verdict in her favor is a question for summery judgment or motion during/after trial –
the sufficiency of the evidence is not an appropriate basis to exclude an expert’s
opinion. Indeed, the case cited by defendant in support of its argument only pertains to
the sufficiency – not the admissibility – of an expert’s causation opinion. Topp v. Leffers,
838 N.E.2d 1027, 1036 (Ind. Ct. App. 2005) (trial court properly granted directed verdict
where plaintiff did not present evidence sufficient to establish causation). Accordingly,
the motion to exclude Dr. Brechner’s opinion based on the sufficiency of the evidence to
support a verdict will be denied.
Defendant also filed a motion to strike Dr. Brechner’s supplemental affidavit,
submitted as part of plaintiff’s response to the motion to exclude. (DE # 33.) In the
supplemental affidavit, Dr. Brechner stated that he reviewed plaintiff’s medical history
“as needed” and cited to the specific medical records that he may have included in his
review. (DE # 29-5.) He also stated that he is reasonably certain of the opinions he
expressed in his report. (Id.) Defendant argues that the supplement should be stricken
as untimely. Defendant also moves to strike Footnote # 6 in plaintiff’s response brief,
which cites to scientific articles that were not relied upon by plaintiff’s experts. (DE #

16

33.) The court did not rely upon any of the materials identified in defendant’s motion to
strike. Therefore, the motion to strike will be denied as moot.
D.

Motion for Summary Judgment Legal Standard

The court next considers defendant’s motion for summary judgment. Federal
Rule of Civil Procedure 56 requires the entry of summary judgment, after an adequate
time for discovery, against a party “who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
responding to a motion for summary judgment, the non-moving party must identify
specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In doing so, the non-moving party cannot rest on
the pleadings alone, but must present proof in support of its position. Id. at 248. A
dispute about a material fact is genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. If no reasonable jury could
find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th
Cir. 1994). The court must construe all facts in a light most favorable to the non-moving

17

party and draw all legitimate inferences and resolve all doubts in favor of that party.
NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).
E.

Motion for Summary Judgment

While defendant moved to exclude both Belloto and Dr. Brechner, defendant’s
motion for summary judgment only pertains to Dr. Brechner. (DE # 28.) First, defendant
argues that, if Dr. Brechner’s testimony is excluded, plaintiff cannot establish causation
because in this case establishing causation requires expert evidence. However, this court
has determined that Dr. Brechner’s opinion is admissible; therefore, this basis for
summary judgment will be denied. Second, defendant reiterates its argument (this time
in the appropriate motion) that Dr. Brechner’s opinions are “couched in terms less than
that of a reasonable degree of medical certainty, which is insufficient, standing alone, to
support a judgment or verdict.” (Id. at 17.)
As a preliminary matter, the court finds that, in this case, expert evidence is
required to establish causation. Plaintiff has a long history of experiencing the very
symptoms that she claims were caused by the Triamterene. The relationship between
her pre-existing conditions and the symptoms that she attributes to the Triamterene is a
complicated medical question that is beyond the grasp of a lay person. Thus, expert
medical evidence is required to establish causation. See Spinnenweber, 983 F.3d at 305;
Topp, 838 N.E.2d at 1033.
The court next considers whether Dr. Brechner’s evidence is sufficient to raise a
genuine issue of material fact regarding causation. “Evidence establishing a mere

18

possibility of cause or which lacks reasonable certainty or probability is not sufficient
evidence by itself to support a verdict. An expert medical opinion that lacks reasonable
certainty, standing alone, is not sufficient to support a judgment.” Topp, 838 N.E.2d at
1033 (internal citations omitted); see also Smith v. Beaty, 639 N.E.2d 1029, 1033–34 (Ind.
Ct. App. 1994) (“The plaintiff’s burden may not be carried with evidence based merely
upon supposition or speculation.”). “However, ‘an expert’s opinion that something is
‘possible’ or ‘could have been’ may be sufficient to sustain a verdict or award’ when
rendered in conjunction with other, probative evidence establishing the material factual
question to be proved.” Roberson v. Hicks, 694 N.E.2d 1161, 1163 (Ind. Ct. App. 1998)
(quoting Noblesville Casting Div. of TRW, Inc. v. Prince, 438 N.E.2d 722, 731 (Ind. 1982));
see also Smith, 639 N.E.2d at 1034–35.
Here, Dr. Brechner’s opinion, when considered in conjunction with the other
probative evidence, establishes more than a mere hypothesis of causation, and is
sufficient for a jury to infer – without resort to speculation – that the Triamterene
caused or contributed to plaintiff’s symptoms. Plaintiff’s own testimony provides
evidence that she began having symptoms around the time that the brand of medication
was switched. Plaintiff’s medical records also reflect the absence and/or lessening of
her symptoms before and after taking the brand of Triamterene that contained lactose.
The evidence would support a finding that plaintiff suffered from persistent and
worsening symptoms during the period of time when she was taking the lactosecontaining Triamterene. This is sufficient evidence from which a jury could reasonably

19

find in favor of plaintiff on the issue of causation. Accordingly, defendant’s motion for
summary judgment will be denied.
IV.

CONCLUSION
For these reasons, the court DENIES defendant’s motion for summary judgment.

(DE # 27.) The court GRANTS in part defendant’s motion to exclude (DE # 24), on the
terms identified in this Opinion and Order. The court DENIES as moot defendant’s
motion to strike. (DE # 33.) The court ORDERS the parties to file a joint status report
regarding their willingness to engage in a settlement conference before a Magistrate
Judge by April 9, 2021. A trial date will be set under a separate order.

SO ORDERED.
Date: March 31, 2021
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

20