WOLFE v. MCNEIL-PPC INC. et al

Filing 152

ORDER THAT DEFTS' MOTION TO EXCLUDE (DOC #55) IS DENIED; DEFT'S MOTION TO EXCLUDE (DOC #56) IS GRANTED IN PART, DENIED AS MOOT IN PART AND DENIED IN PART. DEFTS' MOTION (DOC #57) IS DENIED; DEFTS' MOTION (DOC #58) IS DENIED. DEFTS ' MOTION TO EXCLUDE (DOC #59) IS DENIED; DEFTS' MOTION TO EXCLUDE (DOC #131) IS GRANTED IN PART AND DENIED IN PART. DEFTS' MOTION TO PRECLUDE (DOC #128) IS DENIED. PLFF'S MOTION TO PRECLUDE (DOC #133) IS DENIED. PLFF'S MOTION TO PRECLUDE (DOC #129) IS DENIED. PLFF'S MOTION TO PRECLUDE (DOC #132) IS DENIED. PLFF'S MOTION TO PRECLUDE (DOC #130) IS DENIED; AND PLFF'S MOTION TO PRECLUDE (DOC #134) IS DENIED, ETC. ( SIGNED BY HONORABLE JAN E. DUBOIS ON 5/3/11. ) 5/4/11 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________________________
KILEY WOLFE,
Plaintiff,
v.
MCNEIL-PPC, INC.; MCNEIL
CONSUMER & SPECIALTY
PHARMACEUTICALS, a division of
MCNEIL-PPC, INC.; MCNEIL
CONSUMER HEALTHCARE, a division
of MCNEIL PPC, INC.; JOHNSON &
JOHNSON, INC.; and JOHNSON &
JOHNSON PHARMACEUTICAL
RESEARCH AND DEVELOPMENT,
LLC,
Defendants.
_____________________________________

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CIVIL ACTION

NO. 07 - 348

ORDER
AND NOW, this 3rd day of May 2011, upon consideration of Defendants’ Motion to
Exclude Expert Testimony of Dr. Moshe Arditi (Document No. 55, filed August 27, 2010),
Plaintiff’s Answer in Opposition to Defendants’ Motion to Exclude the Expert Testimony of
Moshe Arditi, M.D. (Document No. 67, filed September 27, 2010), Reply in Support of
Defendants’ Motion to Exclude Expert Testimony of Dr. Moshe Arditi (Document No. 107, filed
October 20, 2010), Defendant’s Motion to Exclude Expert Testimony of Dr. Marvin E. Goldberg,
Dr. Laura Bix, and Dr. George M. Samaras (Document No. 56, filed August 27, 2010), Plaintiff’s
Answer in Opposition to Defendants’ Motion to Exclude Expert Testimony of Dr. Marvin E.
Goldberg, Dr. Laura Bix, and Dr. George M. Samaras (Document No. 84, filed September 27,
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2010), Reply in Support Defendants’ Motion to Exclude Expert Testimony of Dr. Marvin E.
Goldberg and Dr. Laura Bix (Document No. 109, filed October 20, 2010), Defendants’ Motion to
Exclude the Expert Testimony of Lorraine E. Buchanan, R.N. and to Limit the Testimony of Royal
Bunin, MBA (Document No. 57, filed August 27, 2010), Plaintiff’s Response in Opposition to
Defendants’ Motion to Exclude the Testimony of Plaintiff’s Life Care Expert, Lorraine E.
Buchanan, R.N. and to Limit the Testimony of Plaintiff’s Economist Royal Bunin, MBA
(Document No. 78, filed September 27, 2010), Defendants’ Motion to Exclude Expert Testimony
of Dr. Philip Rosenthal (Document No. 58, filed August 27, 2010), Plaintiff’s Answer in
Opposition to Defendants’ Motion to Exclude Expert Testimony of Philip Rosenthal, M.D.
(Document No. 100, filed October 14, 2010), Reply in Support of Defendants’ Motion to Exclude
Expert Testimony of Dr. Philip Rosenthal (Document No. 106, filed October 20, 2010), Plaintiff’s
Sur-Reply in Opposition to Defendants’ Motion to Exclude the Expert Testimony of Philip
Rosenthal, M.D. (Document No. 119, filed November 15, 2010), Defendants’ Motion to Exclude
Expert Testimony of Dr. Talal Chatila (Document No. 59, filed August 27, 2010), Plaintiff’s
Answer in Opposition to Defendants’ Motion to Exclude Expert Testimony of Talal Chatila, M.D.
(Document No. 101, filed October 14, 2010), Reply in Support of Defendants’ Motion to Exclude
Expert Testimony of Dr. Talal Chatila (Document No. 108, filed October 20, 2010), Defendants’
Motion to Exclude Expert Testimony of Dr. George M. Samaras (Document No. 131, filed
February 28, 2011), Plaintiff’s Answer in Opposition to Defendants’ Motion to Exclude Expert
Testimony of Dr. George M. Samaras (Document No. 140, filed March 30, 2011), Defendants’
Reply in Support of Motion to Exclude Expert Testimony of George M. Samaras, PH.D.
(Document No. 149, filed April 11, 2011), Plaintiff’s Motion to Preclude Expert Testimony of Dr.
Maja Mockenhaupt (Document No. 128, filed February 28, 2011), Plaintiff’s Motion to Preclude
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Expert Testimony of Dr. Maja Mockenhaupt (Document No. 133, filed March 3, 2011),1
Defendants’ Opposition to Plaintiff’s Motion to Preclude Expert Testimony of Dr. Maja
Mockenhaupt (Document No. 141, filed March 30, 2011), Plaintiff’s Motion to Preclude the Expert
Testimony of Margaret Fisher, M.D. (Document No. 129, filed February 28, 2011), Plaintiff’s
Motion to Preclude the Expert Testimony of Margaret Fisher, M.D. (Document No. 132, filed
March 3, 2011),2 Defendants’ Opposition to Plaintiff’s Motion to Preclude Expert Testimony of
Dr. Margaret Fisher (Document No. 142, filed March 30, 2011), Plaintiff’s Motion to Preclude
Expert Testimony of Elizabeth Rand, M.D. (Document No. 130, filed February, 28, 2011),
Plaintiff’s Motion to Preclude Expert Testimony of Elizabeth Rand, M.D. (Document No. 134,
filed March 3, 2011),3 and Defendants’ Opposition to Plaintiff’s Motion to Preclude Expert
Testimony of Dr. Elizabeth Rand (Document No. 143, filed March 30, 2011), for the reasons set
forth in the Memorandum dated May 3, 2011, IT IS ORDERED as follows:
1.

Defendants’ Motion to Exclude Expert Testimony of Dr. Moshe Arditi
(Document No. 55, filed August 27, 2010) is DENIED;

2.

Defendant’s Motion to Exclude Expert Testimony of Dr. Marvin E. Goldberg, Dr.
Laura Bix, and Dr. George M. Samaras (Document No. 56, filed August 27, 2010)
is GRANTED IN PART, DENIED AS MOOT IN PART and DENIED IN
PART, as follows:
a.

Those parts of the motion that address the testimony of Dr. Marvin E.

1

Documents No. 128 and 133 are identical.

2

Documents No. 129 and 132 are identical.

3

Documents No. 130 and 134 are identical.
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Goldberg and the testimony of Dr. Laura Bix relating to the FDA’s
funding and staffing levels are GRANTED;
b.

That part of the motion that addresses the testimony of Dr. George M.
Samaras is DENIED AS MOOT, as the Court covers defendants’ separate
motion to exclude Dr. Samaras’s testimony in ¶ 6, infra; and

c.
3.

The motion is DENIED in all other respects;

Defendants’ Motion to Exclude the Expert Testimony of Lorraine E. Buchanan,
R.N. and to Limit the Testimony of Royal Bunin, MBA (Document No. 57, filed
August 27, 2010) is DENIED;

4.

Defendants’ Motion to Exclude Expert Testimony of Dr. Philip Rosenthal
(Document No. 58, filed August 27, 2010) is DENIED;

5.

Defendants’ Motion to Exclude Expert Testimony of Dr. Talal Chatila
(Document No. 59, filed August 27, 2010) is DENIED;

6.

Defendants’ Motion to Exclude Expert Testimony of Dr. George M. Samaras
(Document No. 131, filed February 28, 2011) is GRANTED IN PART and
DENIED IN PART, as follows:
a.

Those parts of the motion that address Dr. Samaras’s opinions that 1) the
FDA’s funding levels impede its ability to properly perform its duties,
2) ibuprofen is “dangerous” and “known to cause catastrophic illnesses,”
and 3) labeling of Children’s Motrin was driven by McNeil’s sales and
marketing function are GRANTED; and

b.

The motion is DENIED in all other respects;

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7.

Plaintiff’s Motion to Preclude Expert Testimony of Dr. Maja Mockenhaupt
(Document No. 128, filed February 28, 2011) is DENIED;

8.

Plaintiff’s Motion to Preclude Expert Testimony of Dr. Maja Mockenhaupt
(Document No. 133, filed March 3, 2011) is DENIED;

9.

Plaintiff’s Motion to Preclude the Expert Testimony of Margaret Fisher, M.D.
(Document No. 129, filed February 28, 2011) is DENIED;

10.

Plaintiff’s Motion to Preclude the Expert Testimony of Margaret Fisher, M.D.
(Document No. 132, filed March 3, 2011) is DENIED;

11.

Plaintiff’s Motion to Preclude Expert Testimony of Elizabeth Rand, M.D.
(Document No. 130, filed February, 28, 2011) is DENIED; and

12.

Plaintiff’s Motion to Preclude Expert Testimony of Elizabeth Rand, M.D.
(Document No. 134, filed March 3, 2011) is DENIED.

IT IS FURTHER ORDERED that, after review of all the motion papers, the Court
concludes that no Daubert hearings are necessary.
IT IS FURTHER ORDERED that the issuance of this Order is without prejudice to the
rights of the losing party to:
1.

seek reconsideration at or before trial of any part of this Order, if warranted by the
evidence; or

2.

object at trial to improper questions of, and inadmissible evidence offered by or
through, any testifying expert.
BY THE COURT:
/s/ Hon. Jan E. DuBois
JAN E. DUBOIS, J.
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