Royce v. Wyeth et al

Filing 522

ORDER granting 445 MOTION by Leah Royce Hines to Reconsider (or in the Alternative for Clarification) of the Court's Order Granting Defendants' Daubert Motion to Exclude the Testimony of Dr. Blume to the extent it seeks clarification of the July 8, 2011 opinion, and denying in all other respects. Signed by Judge John T. Copenhaver, Jr. on 8/11/2011. (cc: counsel of record) (lca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
LEAH ROYCE HINES,
Plaintiff,
v.

Civil Action No. 2:04-0690

WYETH, d/b/a Wyeth, Inc.;
WYETH PHARMACEUTICALS, INC.;
and PHARMACIA & UPJOHN COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is plaintiff’s motion, filed July 20, 2011, for
reconsideration or, in the alternative, for clarification of the
court’s memorandum opinion and order granting defendants’ motion
to preclude the testimony of Dr. Cheryl Blume.

By memorandum opinion and order entered July 8, 2011,
(the “July 8 opinion”), the court granted defendants’ motion to
exclude the expert testimony of Drs. Suzanne Parisian and Cheryl
Blume, finding that the experts’ proposed testimony concerning
the reasonableness of defendants’ testing procedures lacked
adequate explanation or analysis and would prove unhelpful to the
jury.

(July 8 opinion at 11-18).

On July 11, 2011, plaintiff

moved to clarify the July 8 opinion as it related to Dr.
Parisian.

Specifically, plaintiffs asserted that Dr. Parisian

was prepared to testify to matters other than whether defendants

acted as reasonable pharmaceutical companies and requested that
the court clarify that the July 8 opinion did not exclude Dr.
Parisian’s testimony in its entirety.

Plaintiff did not mention

Dr. Blume in her clarification request.

By memorandum opinion and order entered July 13, 2011
(the “July 13 opinion”), the court granted plaintiff’s motion,
clarifying that the July 8 opinion precluded Dr. Parisian from
offering testimony concerning the reasonableness of defendants’
conduct but did not bar her from testifying to other relevant
matters.

The July 13 opinion then specifically found Dr.

Parisian qualified to offer relevant and reliable testimony
concerning the general regulatory requirements governing
pharmaceutical manufacturers, including, for example, the process
for obtaining approval of prescription drugs by the Food and Drug
Administration.

Plaintiff has now moved for reconsideration of the July
8 opinion as it relates to Dr. Blume.

Plaintiff asserts that she

“never intended to call Dr. Blume to testify at the trial of this
matter, on the reasonableness of the Defendants’ actions or any
other issue.”

(Pl.’s Mot. at 2).

Accordingly, she contends that

defendants’ motion to exclude Dr. Blume’s testimony was “moot
from the outset” and that the court should void the July 8
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opinion as it relates to Dr. Blume.

In the alternative,

plaintiff requests clarification that the court, by the July 8
opinion, “did not intend to preclude Dr. Blume from testifying
entirely, but only as to the ‘reasonable company’ opinions.”
(Pl.’s Mot. at 1).

In response, defendants object to plaintiff’s assertion
that she never intended to call Dr. Blume to testify at trial.
Defendants assert that, to the contrary, plaintiff had
contemplated presenting Dr. Blume as an expert witness at trial
as late as July 8, 2011.

On that date, counsel for plaintiff

sent an e-mail to counsel for defendants asserting that plaintiff
had not yet decided whether to call Dr. Blume to testify at
trial.

(Defs.’ Resp., Ex. 1).

Defendants thus contend that

plaintiff has not provided a valid basis to void the July 8
opinion as it relates to Dr. Blume.

Defendants do not object,

however, to plaintiff’s alternative request that the court
clarify that the July 8 opinion barred Dr. Blume’s testimony only
insofar as it related to the reasonableness of defendants’
testing procedures.

Given the representation of plaintiff’s counsel to
defendants concerning Dr. Blume, the record does not support
plaintiff’s assertion that she never intended to present the
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expert testimony of Dr. Blume at trial.

Accordingly, the court

is not prepared to void the portion of the July 8 opinion
excluding the testimony of Dr. Blume on the basis asserted by
plaintiff.

Inasmuch as defendants do not object to plaintiff’s

alternative request for clarification, however, the court finds
it appropriate to grant the clarification sought.

The court now

clarifies that the July 8 opinion precluded Dr. Blume from
testifying to the reasonableness of defendants’ conduct only.
Notwithstanding the July 8 opinion, plaintiff was free to offer
Dr. Blume’s testimony concerning other matters meeting the
requirements of Federal Rule of Evidence 702.

Consistent with the foregoing, it is ORDERED that
plaintiff’s motion be, and it hereby is, granted to the extent it
seeks clarification of the July 8 opinion, and denied in all
other respects.

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.

DATED: August 11, 2011
John T. Copenhaver, Jr.
United States District Judge

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