Lyman et al v. Pfizer, Inc. et al

Filing 172

MEMORANDUM OPINION AND ORDER denying 67 MOTION Disqualify Plaintiffs' Expert Witness, Dr. Philip Seeman. Signed by Judge William K. Sessions III on 8/30/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
COLLEEN AND STEVE LYMAN
Plaintiffs,
v.
PFIZER, INC., WYETH, INC.,
SCHWARZ PHARMA, INC.,
TEVA PHARMACEUTICALS
USA, INC., PLIVA USA, INC.,
ACTAVIS-ELIZABETH, L.L.C.
Individually and as a
subsidiary of ACTAVIS, INC.
and as successor TO PUREPAC
PHARMACEUTICAL, INC,
Defendants.

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Case no. 2:09-cv-262

Memorandum Opinion and Order
Plaintiffs Colleen and Steve Lyman have sued several
manufacturers of the drug metoclopramide, alleging that they are
liable for Colleen Lyman’s overexposure to the drug, which caused
her to develop tardive dyskinesia, a neurological movement
disorder.

Defendants Pfizer Inc. and Wyeth LLC (collectively

“Wyeth”) have moved to disqualify Plaintiffs’ expert Dr. Philip
Seeman, and to preclude their consultation with him.

As grounds,

Wyeth contends that Dr. Seeman worked as a consulting expert for
Wyeth in connection with a product liability case involving
Reglan®, or metoclopramide, and this past employment threatens
disclosure of Wyeth’s confidential information.
No. 67, is denied, for the reasons that follow.

The motion, ECF

I.

Background
Attorneys Jeffrey R. Pilkington and Charles L. Casteel have

represented Wyeth in Reglan® products liability litigation since
late 1996.

In October 2006 Pilkington contacted Dr. Philip

Seeman, a prominent neuropharmacologist on the faculty of the
University of Toronto, in connection with defending a
metoclopramide case in Texas, Kettering v. Wyeth.

He sought Dr.

Seeman’s expertise to assist him in understanding medical and
scientific issues concerning the action of metoclopramide on the
brain and its cells.
In a half-hour telephone conference, Pilkington gave Dr.
Seeman general information about Reglan® litigation, the nature
of the plaintiffs’ claims and contentions about metoclopramide,
Wyeth’s anticipated defenses in the Kettering case, and the
analyses of plaintiffs’ scientific experts.

Dr. Seeman agreed to

review some materials, including plaintiffs’ expert reports and
the studies upon which they relied.
Following the telephone conference the Wyeth attorneys met
with Dr. Seeman.

Dr. Seeman provided information about the risk

of tardive dyskinesia from taking metoclopramide.

Based upon his

review of the literature and his extensive knowledge of the
field, Dr. Seeman provided opinions on medical causation and risk
of tardive dyskinesia, both issues in the litigation.

The

attorneys spoke again with Dr. Seeman in late October, by

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telephone, for about an hour.
The Wyeth attorneys requested that Dr. Seeman prepare an
expert report for a pending case, Kettering v. Wyeth.

They

prepared a list of questions pertaining to metoclopramide’s
pharmacological properties, its risk of tardive dyskinesia, and
the pathogenesis of tardive dyskinesia in general.

The attorneys

met again with Dr. Seeman in December 2006 and obtained a written
report responding to the questions.

According to billing

records, Dr. Seeman devoted a total of five and one half hours to
discussion with the attorneys, an additional twelve hours of
reading research, and six hours preparing his report.
The Wyeth attorneys decided not to disclose Dr. Seeman as a
testifying expert.

Kettering settled.

Apart from a brief email

exchange in 2008, when Dr. Seeman inquired whether the Wyeth
attorneys had ever used his information, he had no further
interactions or communications with them.
In his 2006 report for Wyeth, Dr. Seeman opined that
metoclopramide, when delivered to the brain at the clinically
indicated range, resulted in a much greater risk of tardive
dyskinesia than antipsychotic drugs such as haloperidol and
chlorpromazine.

He concluded that he did not expect

metoclopramide to contribute in a major way to tardive
dyskinesia.
In April 2009 new research enabled Dr. Seeman to calculate

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the amount of metoclopramide that entered the brain, and he
decided to examine why the annual incidence of metoclopramideassociated tardive dyskinesia appeared to be much higher than the
annual incidence of tardive dyskinesia associated with other
commonly used antipsychotic drugs.

In May 2010 his article

presenting his findings was accepted for publication by the
journal “Synapse.”
Attorney Daniel J. McGlynn, counsel for the Lymans as well
as other metoclopramide plaintiffs, contacted Dr. Seeman in March
2010 to discuss tardive dyskinesia in connection with
metoclopramide and other dopamine blocking drugs.

During his

discussion, he learned that Pilkington and Casteel had previously
obtained information and opinions from Dr. Seeman.

Dr. Seeman

denied having any sort of exclusive or ongoing arrangement with
the Wyeth attorneys, or that he had been provided with any
confidential information.

McGlynn learned that Dr. Seeman had

recently concluded an experiment that purported to show that
metoclopramide had a strong propensity to cause tardive
dyskinesia, and McGlynn requested that Dr. Seeman provide a
report.

Dr. Seeman did so, in June 2010.

On July 6, 2010, McGlynn’s firm disclosed Dr. Seeman as a
testifying expert in Mosley v. Wyeth, a metoclopramide case
pending in the Southern District of Alabama.

Wyeth had been

dismissed from the case on summary judgment, and the issue of

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whether Dr. Seeman was disqualified was not raised.

The

remaining defendants in Mosley deposed Dr. Seeman in August, and
specifically asked him about his earlier conclusions.

See Seeman

Dep. 146:11-148:3, Aug. 24, 2010, ECF No. 117-1.
The Wyeth attorneys have requested that counsel for the
metoclopramide plaintiffs cease using Dr. Seeman as an expert in
this or any other metoclopramide litigation.

Counsel for the

metoclopramide plaintiffs have refused to withdraw Dr. Seeman as
an expert or to refrain from consulting him.
Defendants Pfizer and Wyeth have now moved to disqualify Dr.
Seeman in this case.
II.

Discussion
A federal court has “inherent power to disqualify experts,

although cases that grant disqualification are rare.”

Koch

Refining Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181
(5th Cir. 1996) (citation omitted).
The parties agree that in the absence of binding Second
Circuit precedent, this Court should undertake a two-part
inquiry, asking 1) was it objectively reasonable for the moving
party to conclude that a confidential relationship existed; and
2) did the moving party disclose confidential information to the
expert?

See id.; accord Ascom Hasler Mailing Sys., Inc. v. U.S.

Postal Serv., 267 F.R.D. 9, 12 (D.D.C. 2010); Lacroix v. BIC
Corp., 339 F. Supp. 2d 196, 199-200 (D. Mass. 2004); Hewlett-

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Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1092-93 (N.D.
Cal. 2004); In re Ambassador Group, Inc. Litig., 879 F. Supp.
237, 242 (E.D.N.Y. 1994); Wang Labs., Inc. v. Toshiba Corp., 762
F. Supp. 1246, 1248 (E.D. Va. 1991).
a third factor:

Some courts have considered

whether the public interest would be served by

allowing or not allowing the expert to testify.

Koch, 85 F.3d at

1181; see also Grioli v. Delta Int’l Mach. Corp., 395 F. Supp. 2d
11, 14 (E.D.N.Y. 2005); Lacroix, 339 F. Supp. 2d at 200; HewlettPackard, 330 F. Supp. 2d at 1093.
Only if the answers to both questions are “yes,” should the
expert be disqualified.

Koch, 85 F.3d at 1181.

The party

seeking disqualification shoulders the burden of proof.

Id.

Was it objectively reasonable for Wyeth to conclude that a
confidential relationship existed with Dr. Seeman?

The Wyeth

attorneys consulted with Dr. Seeman for a brief period in 2006.
They posed a series of textbook questions to him about
metoclopramide and the risks of tardive dyskinesia, to which he
responded in a brief report.

He was never disclosed as an

expert, and the relationship essentially terminated following
receipt of the report.

Dr. Seeman did not enter into a formal

confidentiality agreement, did not assist in metoclopramide
litigation, was not provided with any confidential documents, and
did not derive his opinions from studies or experiments funded or
directed by Wyeth.

Apparently the Wyeth attorneys did not

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communicate to Dr. Seeman the confidential nature of their
discussions, nor their expectation that he was no longer free to
express his opinions about his field of expertise to other
attorneys who inquired.

See Wang Labs., 762 F. Supp. at 1248

(“Lawyers bear a burden to make clear to consultants that
retention and a confidential relationship are desired and
intended.”).

It does not appear that Dr. Seeman learned anything

in particular about Wyeth; in fact, he has testified that he did
not remember being told who the lawyers represented.
Based on the information provided, Wyeth has not shown that
it was objectively reasonable for it to conclude that it had a
confidential relationship with Dr. Seeman.
Did Wyeth disclose confidential information to Dr. Seeman?
Wyeth asserts that it gave confidential information to Dr.
Seeman.

Dr. Seeman does not believe that he received any

confidential information.

The declarations supplied by Wyeth do

not specify precisely what confidential information was
disclosed.

See Nikkal Indus., Ltd. v. Salton, Inc., 689 F. Supp.

187, 191 (S.D.N.Y. 1988) (noting that the party who claims a
privilege may not meet its burden by “‘mere conclusory or ipse
dixit assertions’”) (quoting In re Bonanno, 344 F.2d 830, 833 (2d
Cir. 1965)); see also Stencel v. Fairchild Corp., 174 F. Supp. 2d
1080, 1083 (C.D. Cal. 2001) (“[D]iscussions between . . . counsel
and experts do not carry the presumption that confidential

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information was exchanged.”).
The scientific issues about which the Wyeth attorneys
consulted Dr. Seeman would not ordinarily qualify as confidential
information.

See Koch, 85 F.3d at 1182 (“[P]urely technical

information is not confidential.”)

Nothing in the report Dr.

Seeman provided to Wyeth in 2006 (reviewed in camera) remotely
suggests that Dr. Seeman received any confidential information
from Wyeth.

To the extent that Wyeth asserts that Dr. Seeman

became privy to defense strategies, they would appear to be selfevident, or long-since disclosed:

challenges to the evidence of

medical causation and of the degree of risk of developing tardive
dyskinesia.

Specific weaknesses or flaws that Wyeth may have

identified in the scientific evidence to be used in the Kettering
case are now four years out of date, and there is no indication
that Wyeth intends to pursue a similar strategy in this case, or
that any information it provided to Dr. Seeman even remains
relevant.
Wyeth has therefore not demonstrated that it divulged
confidential information to Dr. Seeman.

This is not a case of an

expert who has “switched sides” in the same litigation after
having received confidential information.

Koch, 85 F.3d at 1181.

Four years elapsed, during which Dr. Seeman did no work for
Wyeth.

The instant case is a different lawsuit than the one for

which he provided his opinion in 2006.

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Dr. Seeman’s opinions,

then and now, concern the interpretation of scientific
information regarding metoclopramide and the risk of tardive
dyskinesia; they do not bear on any responsibility or fault of
Wyeth.

Over the years Dr. Seeman’s opinions have apparently

evolved as new information has become available, and as old
information has undergone reinterpretation.

That his opinion on

the relative risk of tardive dyskinesia from metoclopramide is
now more useful to plaintiffs rather than defendants in
metoclopramide litigation will undoubtedly be explored on crossexamination; it is not, however, grounds for disqualification.1
See Paul ex rel. Paul v. Rawlings Sporting Goods Co., 123 F.R.D.
271, 281 (S.D. Ohio 1988).
Moreover, public policy concerns would not be served by
disqualifying Dr. Seeman.

Dr. Seeman is preeminent in his field.

His extensive knowledge and qualifications may well explain why
both sides of the metoclopramide litigation have sought his
opinion as to whether, how, why and to what extent dopamine
blocking drugs such as haloperidol, chlorpromazine and

1

Wyeth asserts that its ability to cross-examine Dr.
Seeman is compromised because it will be unable to impeach him
with prior inconsistent statements without putting its attorneys
on the witness stand. The Court notes that if Dr. Seeman admits
to having made the prior statement, there will be no need for
Wyeth’s attorneys to testify, because the impeachment is
complete. Should extrinsic evidence of a prior statement become
necessary for impeachment at trial, the Court will address the
issue, but at this stage of the litigation will not disqualify
Dr. Seeman on the basis of speculation about his trial testimony.
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metoclopramide cause tardive dyskinesia.

Presentation of those

views, subject to cross-examination, provides a source of
specialized knowledge intended to assist the trier of fact to
understand the evidence.
In sum, Wyeth has not shown that the relationship between
the Wyeth attorneys and Dr. Seeman developed to such a point that
his disqualification from all future metoclopramide litigation
involving Wyeth would be appropriate.

See id. at 278 (stating

that the proper focus “is to determine, first, whether the
attorney . . . acted reasonably in assuming that a confidential .
. . relationship of some sort existed, and, if so, whether the
relationship developed into a matter sufficiently substantial to
make disqualification . . . appropriate.”).

Accordingly, Wyeth’s

motion to disqualify, ECF No. 67, is denied.

Dated at Burlington, in the District of Vermont, this 30th
day of August, 2011.

/s/ William K. Sessions III___
William K. Sessions III
District Judge

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