Hofferth v. Janssen Pharmaceuticals Inc et al
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 95 Motion to Exclude; deeming moot 134 Motion to Strike. Signed by Honorable Mary Geiger Lewis on 3/5/2020.(cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
THOMAS JOSHUA HOFFERTH,
Plaintiff,
vs.
JANSSEN PHARMACEUTICALS, INC.,
JANSSEN, L.P., JOHNSON & JOHNSON,
and JANSSEN RESEARCH AND
DEVELOPMENT, LLC,
Defendants.
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Civil Action No.: 3:17-01560-MGL
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO EXCLUDE EXPERT TESTIMONY
AND DEEMING MOOT DEFENDANTS’ MOTION TO STRIKE
I.
INTRODUCTION
This is an action for various tort-based claims under South Carolina law. The Court has
jurisdiction over this matter under 28 U.S.C. § 1332.
Pending before the Court are Defendants Janssen Pharmaceuticals, Inc., Janssen, L.P.,
Johnson & Johnson, and Janssen Research & Development, LLC’s (collectively Defendants)
motions to exclude the expert testimony of L. Randolph Waid (Waid) and to strike the declaration
of Waid. Having carefully considered Defendants’ motion, the response, the reply, the record, and
the applicable law, it is the judgment of the Court Defendants’ motion to exclude expert testimony
of Waid will be granted in part and denied in part, and Defendants’ motion to strike will be deemed
moot.
II.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Thomas Joshua Hofferth (Hofferth) filed the immediate action alleging numerous
South Carolina tort violations—strict products liability, negligence, failure to warn, breach of
warranty of merchantability, breach of express warranty, breach of implied warranty, fraud, and
negligent misrepresentation—based upon his use of two antipsychotic pharmacological drugs
produced by Defendants, Risperdal and Invega. Hofferth, now twenty-eight years old, was
diagnosed with possible bipolar disorder as a child, and during the course of his treatment,
prescribed the two medications.
During his treatment, Hofferth experienced significant weight gain, and was eventually
diagnosed with gynecomastia. Gynecomastia is an enlargement or welling of breast tissue in
males.
Hofferth, during discovery, limited his allegations to the contraction of gynecomastia
purportedly because of his use of Risperdal and/or Invega. Pl. Fifth Supplemental Answers to
Defs’ First Set of Interrog., Nos. 7-8. Hofferth’s claims were further limited when his own
causation expert, Isaacs, conceded the purported side effect, gynecomastia, was caused only by
Invega, not Risperdal. Exhibit 1 to Motion to Exclude Expert Testimony of Dr. Scott D. Isaacs,
M.D. at 17 [hereinafter Isaacs Report] (“Thus, after eliminating any potential or contributory
causes, it is, to a reasonable degree of scientific and medical certainty, Invega was the cause of
Thomas Hofferth’s gynecomastia.”); see also id. at 14 (“Risperdal did not likely cause Mr.
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Hofferth’s chronic gynecomastia.”).
Accordingly, the case before the Court is the legal
implications of Invega’s purported health effects on Hofferth.
Hofferth retained Waid, a South Carolina certified clinical psychologists, to provide a
psychological evaluation of Hofferth in connection with the case.
After the discovery process, Defendants filed four motions to exclude the expert testimony
of Martin T. Wells (Wells), Waid, Dr. David A. Kessler (Kessler), and Dr. Scott D. Isaacs (Isaacs).
Hofferth responded to all four motions and Defendants replied. The Court addressed the motions
pertaining to Wells, Kessler and Isaacs at a hearing held as to those three motions. The Court is
now prepared to rule on the motion pertaining to Waid.
III.
STANDARDS OF REVIEW
Under Federal Rule of Evidence 702, a witness may be qualified as an expert to provide
opinion testimony when:
(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 reliability applied the principles and methods to the facts of the
case.
Id. The rule creates a “gatekeeping requirement” for the trial court to “ensure the reliability and
relevancy of expert testimony,” and to ensure “the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field” is presented in the courtroom. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999).
The Court is required to determine whether “an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 597 (1993). The Court may rely on the Supreme Court’s set of non-exclusive factors in
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making determinations on the reliability of the reasoning or methodology of the experts: 1)
“whether [the] theory or technique . . . can be (and has been) tested”; 2) “whether the theory or
technique has been subjected to peer review and publication”; 3) “the known or potential rate or
error” of a methodology and “the existence and maintenance of standards of controlling the
technique’s operation”; and 4) the general acceptance of the theory within the “relevant scientific
community.” Id. at 593-94. No single factor is determinative; the “inquiry is a flexible one,”
providing a trial court with “broad discretion in choosing which Daubert factors to apply and how
to consider them.” Belville v. Ford Motor Co., 919 F.3d 224, 233 (4th Cir. 2019).
The relevance inquiry requires analysis of whether the expert opinions have “a valid
scientific connection to the pertinent inquiry. Id. at 232. Put differently, relevance requires “expert
opinions to assist the trier of fact to understand the evidence or to determine a fact in issue.” United
States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018) (internal quotations
omitted). This mirrors the relevancy test in the Federal Rules of Evidence. Fed. R. Evid. 401
(“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 action.”).
IV.
DISCUSSION AND ANALYSIS
Waid is a South Carolina certified clinical psychologist Hofferth engaged to provide a
psychological evaluation of Hofferth in connection with the case. Defendants challenge the
reliability of causation opinions Waid offers and the relevance of Waid’s testimony.
The majority of Waid’s report lays out Hofferth’s medical history along with Hofferth’s
statements to Waid during the course of Waid’s evaluation.
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It would be improper to certify Waid as an expert, merely for him to provide a recitation
of factual testimony. A factual recitation, however, is proper if used to support independent
conclusions relevant to the case. See United States v. Palacios, 677 F.3d 234, 244 (4th Cir. 2012)
(allowing expert testimony to discuss factual information received from an interview when it
serves as the basis for independent opinions, rather than being used to simply pass along
testimonial facts). As explained below, the Court is unconvinced all opinions offered by Waid are
irrelevant, and therefore the factual recitation properly serves as foundation for his opinions.
The Court next looks to the recitation of opinions by Waid, as presented in his expert report.
Waid makes a number of conclusions about Hofferth’s psychiatric care and condition throughout
the report, and then summarily states, “Use of medications particularly atypical neuroleptic
medicines contributed significantly to excessive weight gain and development of gynecomastia.”
Exhibit 1 to Motion to Exclude Expert Testimony of L. Randolph Waid, Ph.D., Waid Expert
Report at 10. The Court has been unable to identify any other causation conclusions or opinions
within Waid’s report.
The causation opinion about the medications contributing to the weight gain and
gynecomastia is unsupported by any evidence provided in the report and falls outside the expertise
of Waid. Waid is a trained clinical psychologist, not a psychiatrist, and therefore unable to
prescribe pharmacological compounds. Thus he lacks any expertise on the topic. Further, he
provides no independent support anywhere in the report for this statement. The Court will
therefore grant Defendants’ motion as to any causation opinions attributable to Waid.
The other opinions and conclusions found in the report relate to either the prudence behind
prior prescription decisions for Hofferth, Hofferth’s current psychological condition, or Hofferth’s
previous psychological condition. As previously explained, Waid is not permitted to prescribe
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medications. Accordingly, he lacks any expertise to provide opinions regarding the prudence of
any prescribing decisions. The Court will, thus, also grant Defendants’ motion as it relates to any
opinions about the prudence of prescription decisions.
Waid, however, is eminently qualified to opine on Hofferth’s past and present
psychological condition—and appears to have performed a valid methodology to reach the
conclusions. It is unclear to the Court at this juncture whether these opinions would be relevant to
the factual issues to the case at hand. The Court, thus, reserves judgment on the relevancy of these
opinions until a more appropriate time.
Accordingly, the Court will deny without prejudice
Defendants’ motion to exclude as to Waid’s remaining opinions.
VI.
CONCLUSION
For the reasons stated above, the motion to exclude the expert testimony of Waid is
GRANTED as to any opinions by Waid about causation and prescription decisions, but DENIED
WITHOUT PREJUDICE as to his remaining opinions. Further, the Court relied solely on the
party’s briefs and Waid’s report in reaching a decision on the motion to exclude, thus, Defendants’
motion to strike the declaration of Waid is DEEMED MOOT.
IT IS SO ORDERED.
Signed this 5th day of March 2020 in Columbia, South Carolina.
s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
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