Christison v. Biogen Idec et al

Filing 154

MEMORANDUM DECISION AND ORDER overruling objection and affirming Magistrate Judge's 146 Memorandum Decision/Order. Signed by Judge David Nuffer on 6/2/15 (alt) Modified on 6/2/2015: added links to order and underlying motion (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
KENNETH CHRISTISON, individually and as
surviving spouse of Annalee Christison,
deceased, and as personal representative of the
estate of Annalee Christison, deceased,

MEMORANDUM DECISION AND
ORDER OVERRULING DEFENDANTS’
OBJECTION AND AFFIRMING
MAGISTRATE JUDGE’S DECISION

Plaintiff,
v.
Case No. 2:11-cv-01140-DN-DBP
BIOGEN IDEC, and ELAN
PHARMACEUTICALS, LLC,

District Judge David Nuffer

Defendants.

Magistrate Judge Dustin B. Pead

On February 23, 2015, Defendants filed a motion to exclude the report of Dr. Eugene
Major and to disqualify him as an expert in this case. 1 Magistrate Judge Pead received briefing
from both parties and denied the motion in a Memorandum Decision (“Decision”). 2 Defendants
disagreed with Judge Pead’s Decision, and filed an Objection outlining the perceived errors. 3 For
the reasons stated below, Defendants’ Objection is OVERRULED and Magistrate Judge Pead’s
Decision is AFFIRMED.
STANDARD OF REVIEW
When an objection to a magistrate judge’s decision is received within 14 days of the date
of the order, “[t]he district judge in the case must consider [the] timely objection[] and modify or

1

Defendants’ Joint Motion to Disqualify Eugene Major as an Expert Witness in this Matter and to Strike Expert
Report, and Memorandum of Points and Authorities in Support, docket no. 136, filed February 23, 2015.

2
3

Memorandum Decision (“Decision”), docket no. 146, entered March 30, 2015.

Defendants’ Rule 72 Objection to the Magistrate’s Order Denying Defendants’ Joint Motion to Exclude Dr.
Major’s Report and to Disqualify Dr. Major as an Expert (“Objection”), docket no. 147, filed April 3, 2015.

set aside any part of the order that is clearly erroneous or is contrary to law.” 4 Here, Judge Pead
entered his Decision on March 30, and Defendants filed their Objection on April 3. Therefore,
the timely objection is reviewed to determine whether the Decision is clearly erroneous or
contrary to law.
DISCUSSION
Defendants make two main arguments in their Objection. They argue that all litigants—
not just the government—should be able to invoke the DHHS Touhy regulations. They also
argue that Judge Pead used incorrect standards in his Decision. Each of these arguments will be
discussed below.
Defendants Do Not Have Standing to Invoke the Regulation
Defendants argue that all litigants—not just the government—should be able to invoke
the DHHS Touhy regulations. They contend that there is nothing in the Touhy regulations that
limits standing to the government alone, and that “[t]he onus should not be on the government to
seek out improper testimony about which it was not made aware; the process as set out under
federal regulation requires Dr. Major to seek authorization prior to offering expert testimony
concerning information acquired in the course of performing his official duties.” 5
However, Defendants do not cite to any authority establishing that private litigants can
invoke the regulations. Without authority, the Defendants fail to meet the movant’s burden.
Judge Pead Used Correct Standards
Defendants also argue that Judge Pead “used the incorrect standard in applying the Touhy
regulations to Dr. Major.” 6 Defendants contend that Judge Pead’s finding “that the regulations

4

Fed. R. Civ. P. 72(a).

5

Objection at 5 (emphasis in original).

6

Id. at 4.

2

did not create an evidentiary privilege and did not change the Federal Rules of Civil Procedure”
was incorrect because “[t]he relevant legal standard here is not whether the regulations create an
evidentiary privilege, but whether Dr. Major is even authorized to proffer testimony because he
has failed to even attempt to comply with DHHS’s Touhy regulations.” 7
The regulation at issue provides that “[n]o employee or former employee of the DHHS
may provide testimony or produce documents . . . concerning information acquired in the course
of performing official duties . . . unless authorized by the Agency head . . . .” 8 Thus, if
information was not acquired in the course of performing official duties, Section 2.3 does not
require the Agency head to approve it. For that reason, it is essential to know which information
is alleged to have been acquired in the course of performing official duties.
However, Defendants failed to identify any testimony that is alleged to have been
acquired by Dr. Major in the course of performing official duties. Instead, they filed a motion to
entirely strike Dr. Major’s report and exclude him completely from this litigation. This broad
request for relief required Judge Pead to first decide the purpose of Section 2.3. He concluded
that “Section 2.3 merely creates an internal system for DHHS to control the flow of information
out of its offices. The regulation does not create an evidentiary privilege or augment the Federal
Rules of Civil Procedure.” 9
After determining the purpose of Section 2.3, Judge Pead analyzed Defendants’ motion
exclude and strike under Rule 26, which was appropriate. While Defendants argue the motion
should have been analyzed under the framework of Dr. Major’s compliance with the regulation,
Defendants had not shown the regulation had been triggered. That is, they had not attempted to

7

Id.

8

45 C.F.R. § 2.3 (emphasis added).

9

Decision at 3.

3

narrow their request to any “discrete pieces of information that Dr. Major received and should
not discuss” 10 but instead, had broadly “attempt[ed] to exclude his testimony altogether.” 11 Thus,
Defendants had not identified any “information acquired in the course of performing official
duties” and Judge Pead properly analyzed the motion as a Rule 26 motion. Judge Pead went on
to analyze the cases cited by Defendants in support of their motion, and concluded that “none of
them convince the Court that exclusion is warranted here.” 12 Therefore, Judge Pead used the
correct standards to analyze Defendants’ motion.
ORDER
IT IS HEREBY ORDERED that Defendants’ Objection 13 is OVERRULED and
Magistrate Judge Pead’s Decision 14 is AFFIRMED.
Dated June 2, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

10

Id. at 4.

11

Id.

12

Id. at 3.

13

Defendants’ Rule 72 Objection to the Magistrate’s Order Denying Defendants’ Joint Motion to Exclude Dr.
Major’s Report and to Disqualify Dr. Major as an Expert (“Objection”), docket no. 147, filed April 3, 2015.
14

Memorandum Decision (“Decision”), docket no. 146, entered March 30, 2015.

4