Bartoli v. Novartis Pharmaceuticals Corporation

Filing 148

MEMORANDUM Signed by Chief Judge Todd J. Campbell on 8/13/09 [Doc 2764 USDC MDTN] (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
IN RE:
AREDIA and ZOMETA PRODUCTS
LIABILITY LITIGATION

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) NO. 3:06-MD-1760
) JUDGE CAMPBELL
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This Document Relates to:
Case No. 3:06-0377 (Thomas)
Case No. 3:06-0381 (Hogan)
Case No. 3:06-0521 (Brodie)
Case No. 3:06-0550 (White)
Case No. 3:06-0659 (Crews)
Case No. 3:08-0068 (Fussman)
Case No. 3:08-0069 (Forman)
Case No. 3:08-0071 (Deutsch)
Case No. 3:08-1157 (Anderson)
Case No. 3:08-1156 (Melau)

MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment Based on Failure
of General Causation Proof under Daubert (Docket No. 2374). The Court held a hearing on July
27, 2009. For the reasons stated herein, Defendant’s Motion is DENIED.
Defendant contends that it is entitled to summary judgment because Plaintiffs cannot
establish an essential element of their causes of action, that being causation. Defendant argues that
Plaintiffs must establish causation through expert testimony and they cannot because their experts’
general causation opinions are inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786 (1993) and Fed. R. Evid. 702. Therefore, the Court must first address
whether Plaintiffs’ general causation experts should be excluded for purposes of summary judgment.
Rule 702 provides:

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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.
Fed. R. Evid. 702.
A trial judge must ensure that any and all scientific testimony or evidence admitted is not
only relevant, but reliable. Daubert, 113 S.Ct. at 2795. This requirement entails a preliminary
assessment of whether the reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology can be applied properly to the facts in issue. Sigler
v. American Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008); Bland v. Verizon Wireless, LLC,
538 F.3d 893, 896 (8th Cir. 2008).
Under Daubert, the proponent of an expert witness must demonstrate that (1) the witness is
qualified by knowledge, skill, experience, training or education, (2) the testimony of that expert
witness is relevant, meaning that it will assist the trier of fact to understand the evidence or to
determine a fact in issue, and (3) the testimony of that expert witness is reliable. In re Scrap Metal
Antitrust Litigation, 527 F.3d 517, 529 (6th Cir. 2008).1

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The Court in Daubert identified several factors that may bear on the inquiry, but it
took care to emphasize that the inquiry is a flexible one. See Nelson v. Tennessee Gas Pipeline Co.,
243 F.3d 244, 251 (6th Cir. 2001). The trial court must consider whether the factors are reasonable
measures of reliability in a given case. Id. Those factors are (1) whether a theory or technique can
be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether
a technique has a known or potential rate or error and the existence of standards controlling its
operation; and (4) whether the theory or technique enjoys general acceptance in a relevant scientific
community. Id. at 251, n. 5.
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The Sixth Circuit Court of Appeals has stated that “Daubert attempts to strike a balance
between a liberal admissibility standard for relevant evidence on the one hand and the need to
exclude misleading ‘junk science’ on the other.” Best v. Lowe’s Home Centers, Inc., 563 F.3d 171,
176 (6th Cir. 2009). The Rule 702 inquiry is a flexible one, and the focus must be solely on
principles and methodology, not on the conclusions they generate. Id. at 177. An expert who
presents testimony must employ in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field. Id.
Plaintiffs argue that their experts2 present reliable, admissible testimony concerning general
causation. They contend that Defendant is wrong about what is required to prove causation but that,
even if Defendant is correct, they have the required evidence. Plaintiffs assert that they have
demonstrated the existence of a genuine issue of material fact as to whether Aredia and Zometa
cause or contribute to the development of ONJ.
A court must be sure not to exclude an expert’s testimony on the ground that the court
believes one version of the facts and not the other. In re Scrap Metal, 527 F.3d at 529. The task for
the Court in deciding whether an expert’s opinion is reliable is not to determine whether it is
correct, but rather to determine whether it rests upon a reliable foundation, as opposed to
unsupported speculation. Id. at 529-530. Rejection of expert testimony is the exception, rather than
the rule. Id. at 530.
Defendant’s and Plaintiffs’ briefs convincingly demonstrate why the arguments of both sides
go to the weight of the experts’ testimony, not the admissibility. The parties have presented more

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Plaintiffs identify these experts as Ray, Skubitz, Vogel, Marx, Hellstein and Hanson.
Docket No. 2635, p. 2.
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than unsupported speculation on both sides of this issue as to whether Aredia and Zometa can cause
ONJ. Defendant’s arguments impugn the accuracy of Plaintiffs’ experts’ opinions but do not
undermine the general scientific reliability under Daubert. The Court finds that Plaintiffs have
satisfied their burden of establishing that their experts’ general causation opinions are admissible
under Daubert and Fed. R. Evid. 702. This is a classic jury question.
Therefore, the Court finds that Defendant’s Daubert motion to exclude Plaintiffs’ general
causation experts should be denied. Having denied the request to exclude Plaintiffs’ causation
experts, Defendant’s Motion for Summary Judgment based upon lack of general causation proof is
also DENIED.
IT IS SO ORDERED.

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TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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