Retractable Technologies, Inc. v. Becton Dickinson and Company

Filing 510

MEMORANDUM ORDER - Signed by Magistrate Judge Roy S. Payne on 8/26/2013. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
RETRACTABLE
TECHNOLOGIES, INC., et al.
v.
BECTON, DICKINSON AND CO.

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Case No. 2:08-CV-16-LED-RSP

MEMORANDUM ORDER
Plaintiff Retractable Technologies, Inc. (“RTI”) alleges violations of the Sherman and
Clayton Acts, violations of the Texas Antitrust Act, false advertising in violation of the Lanham
Act, product disparagement, tortious interference with prospective contract or business relations,
and unfair competition by Defendant Becton, Dickinson and Company (“BD”). (Dkt. No. 73.)
Before the Court is RTI’s Motion to Limit the Testimony of Plaintiff’s Expert Dr. Marguerite
Jackson. (Dkt. No. 184, filed January 14, 2012.)
APPLICABLE LAW
An expert witness may provide opinion testimony if “(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 reliably applied the
principles and methods to the facts of the case.” Fed. R. Evid. 702.
Rule 702 requires a district court to make a preliminary determination, when requested,
as to whether the requirements of the rule are satisfied with regard to a particular expert’s
proposed testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999); Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993). District courts are accorded broad

discretion in making Rule 702 determinations of admissibility. Kumho Tire, 526 U.S. at 152
(“the trial judge must have considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable”). Although the Fifth Circuit and other
courts have identified various factors that the district court may consider in determining whether an
expert’s testimony should be admitted, the nature of the factors that are appropriate for the court to
consider is dictated by the ultimate inquiry—whether the expert’s testimony is sufficiently reliable
and relevant to be helpful to the finder of fact and thus to warrant admission at trial. United States v.
Valencia, 600 F.3d 389, 424 (5th Cir. 2010).

Importantly, in a jury trial setting, the Court’s role under Daubert is not to weigh the
expert testimony to the point of supplanting the jury’s fact-finding role; instead, the Court’s role
is limited to that of a gatekeeper, ensuring that the evidence in dispute is at least sufficiently
reliable and relevant to the issue before the jury that it is appropriate for the jury’s consideration.
See Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1391-92 (Fed. Cir. 2003) (applying Fifth
Circuit law) (“When, as here, the parties’ experts rely on conflicting sets of facts, it is not the
role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”);
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir. 2002) (“‘[t]he trial court’s role as
gatekeeper [under Daubert] is not intended to serve as a replacement for the adversary
system.’ . . . Thus, while exercising its role as a gate-keeper, a trial court must take care not to
transform a Daubert hearing into a trial on the merits,” quoting Fed. R. Evid. 702 advisory
committee note). As the Supreme Court explained in Daubert, 509 U.S. at 596, “Vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible evidence.” See
Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).

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DISCUSSION
RTI objects to Dr. Jackson’s proposed testimony on several grounds.
1.

RTI objects to Dr. Jackson’s calculations and charts on relevancy grounds,

alleging that Dr. Jackson changed her testimony at the deposition. The Court disagrees. Dr.
Jackson’s conclusion, as stated in her report, was “that the BD safety-engineered hypodermics
are, in fact, safe…” (Mot. at 4.) RTI does not dispute that safety is a relevant issue in this case.
RTI’s question at the deposition was very specific: Dr. Jackson was asked if she was making a
comparative safety analysis of the BD and RTI products, to which she said no. (Jackson Depo.
at 179:19-21.) RTI does not dispute that safety is relevant in this case, and provides no basis for
its implicit proposition that Dr. Jackson’s opinions are wholesale irrelevant because some portion
of her analysis was not drawing a concrete conclusion on the comparative safety of BD and RTI
products. There is no reason that RTI cannot question Dr. Jackson regarding the limits of her
study, and whether the study properly shows comparative safety, on cross-examination. Mathis
v. Exxon Corp., 302 F.3d at 461.
2.

RTI also objects to Dr. Jackson’s proposed testimony because of her use of the

allegedly flawed BD complaint system as a basis for calculating needle-stick injuries. (Mot. at
7-10.) RTI has proffered evidence to show that BD’s complaint system had a “systematic
problem” according to the FDA, as well as other evidence showing flaws in BD’s complaint
system, but sets forth no reason that these are not issues that can (and should) be addressed by a
vigorous cross-examination of Dr. Jackson. To the extent BD takes issue with the bases for Dr.
Jackson’s opinions, those issues are best explored by vigorous cross-examination. Mathis v.
Exxon Corp., 302 F.3d at 461. To the extent RTI’s objection lies in Dr. Jackson having not been
presented with the QualityHub audit, the Court has already addressed and dismissed this
objection in its Orders on the Parties’ Motions in Limine. (See Dkt. No. 481 and 488.)
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3.

RTI also objects to Dr. Jackson’s proposed testimony because she did not add

numbers based on anecdotal reports for individual hospitals to her existing dataset (Mot. at 1011) and because “she cannot attest to the reliability or origination of the data she used.” (Id. at
11-12.) RTI presents no reason why a limited dataset renders Dr. Jackson’s methodology
unreliable. Similarly, RTI presents no reason why Dr. Jackson’s inability to personally attest to
the accuracy of the underlying dataset renders her methodology unreliable and notes that the
proper avenue for RTI to challenge the limitations of the underlying data utilized by Dr. Jackson
is through a vigorous cross examination. Mathis v. Exxon Corp., 302 F.3d at 461.
4.

RTI objects to Dr. Jackson’s proposed testimony as “leav[ing] too great an

analytical gap,” alleging that Dr. Jackson’s analysis of the change in needlestick rate from 1999
through early 2007 does not conclusively prove the cause of “44 NSIs in mid-2008.” (Mot. at
13.) The Court is not persuaded, and notes that RTI is free to explore the limitations of the
underlying data utilized by Dr. Jackson on cross examination. Mathis v. Exxon Corp., 302 F.3d
at 461.
5.

Finally, RTI challenges Jackson’s annual needle-stick estimates, alleging that Dr.

Jackson’s limited sample size and approximation of Massachusetts’ number of healthcare
workers render Dr. Jackson’s testimony unreliable. (Mot. at 13-15.) RTI correctly notes that Dr.
Jackson’s report does contain a number of assumptions about proportion of healthcare workers
and representativeness (e.g. “… I therefore assume that it has at least 5% of the nation’s
healthcare workers”), but these issues can be addressed and highlighted by a vigorous cross
examination, and thus the Court finds that the jury is not likely to give Dr. Jackson’s testimony
undue weight.

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CONCLUSION
Having considered all of RTI’s objections to Dr. Jackson’s opinions and proposed
testimony, BD’s Motion to Limit the Testimony of Defendant’s Expert Dr. Marguerite Jackson
(Dkt. No. 184) is DENIED.
SIGNED this 3rd day of January, 2012.
SIGNED this 26th day of August, 2013.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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