Okuda v. Wyeth, et al

Filing 231

MEMORANDUM DECISION AND ORDER granting in part and denying in part 97 Motion to Exclude Opinions of Plaintiff's Experts Drs. Parisian, Blume and Austin. Signed by Judge David Nuffer on 7/6/12 (alt)

IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TOSHIKO OKUDA,
Plaintiff,
vs.
PFIZER INC., et al.,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO EXCLUDE OPINIONS OF
PLAINTIFF’S EXPERTS DRS.
PARISIAN, BLUME AND AUSTIN

Defendants.

Case No. 1:04-cv-00080
District Judge David Nuffer

On June 18 and 19, 2012, pursuant to notice, the Court heard oral argument on
Defendants’ Motion to Exclude Opinions of Plaintiff’s Experts Drs. Parisian, Blume and Austin
(Docket No. 97). Plaintiff was represented by James Esparza, Russell T. Abney and James
Lampkin. Defendants were represented by Heidi K. Hubbard, Kelly A. Evans and Tracy H.
Fowler.
Having considered all of the moving papers and the arguments of counsel, the Court rules
as follows:
IT IS HEREBY ORDERED that Defendants’ motion (Docket No. 97) is GRANTED IN
PART AND DENIED IN PART, as follows:
1.

Drs. Parisian and Blume may testify generally as to the Food and Drug

Administration’s processes for drug approval, the regulatory history of hormone replacement
therapy, and the adequacy of warnings provided by defendants concerning breast cancer risks in
light of the information contemporaneously available.
2.

Drs. Parisian, Blume, and Austin also may testify regarding tests that could have

been done to further investigate the potential link between the E&P therapy and breast cancer.
3.

Drs. Parisian, Blume, and Austin may not testify regarding the testing defendants

should have done. Plaintiff has presented no objective standard for the testing that should have

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been done. The testimony of Wyeth’s officers cited by Plaintiff does not create an enforceable
standard or demonstrate an industry standard. The Plaintiff has not demonstrated by FDA
regulations, which Dr. Parisian cited, that there is a duty to test in those regulations. Similarly,
Plaintiff has not demonstrated that the FDA guidance documents create an objective standard or
requirement of testing. The marketing code, the Pharma code, does not establish a requirement
for testing that creates something that would be a sufficient support for Parisian, Blume, and
Austin’s testimony. Moreover, they have not demonstrated that their specific experience forms
the basis for establishing post-approval testing duties that they claim exist.
4.

Nor may Drs. Parisian, Blume, and Austin testify regarding defendants’ intent or

motives.
Dated July 6, 2012.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

Submitted by:
/s/ Tracy H. Fowler
Tracy H. Fowler
SNELL & WILMER LLP
15 West South Temple, Suite 1200
Gateway Tower West
Salt Lake City, Utah 84101-1004
Attorneys for Defendants
/s/ Kelly A. Evans
Kelly A. Evans
SNELL & WILMER LLP
3882 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169-5958
Admitted Pro Hac Vice
Attorneys for Defendants

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/s/ Heidi K. Hubbard
Heidi K. Hubbard
WILLIAMS & CONNOLLY
725 Twelfth Street, NW
Washington, D.C. 20005
Admitted Pro Hac Vice
Attorneys for Defendants

Signed Approval as to Form:

/s/ James Esparza
(Signed with permission)
James Esparza
1434 East 4500 South, Suite 100
Salt Lake City, UT 84117
Attorney for Plaintiff

/s/ James W. Lampkin, II
(Signed with permission)
James Wayne Lampkin, II
Russell T. Abney
BEASLEY ALLEN CROW &
METHVIN PORTIS & MILES PC
218 Commerce Street
Montgomery, AL 36104
Attorney for Plaintiff

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