Keffer v. Wyeth et al
Filing
309
MEMORANDUM OPINION AND ORDER directing that 177 MOTION by Pharmacia & Upjohn Company, Wyeth, Wyeth Pharmaceuticals, Inc. to Exclude the General Causation Testimony of Dr. Michael Wertheimer and Dr. John Cronin and REQUEST for a Hearing and 180 M OTION by Pharmacia & Upjohn Company, Wyeth, Wyeth Pharmaceuticals, Inc. to Exclude the Specific Causation Testimony of Dr. Michael Wertheimer and REQUEST for Hearing are denied without prejudice. Defendants may re-file any specific causation challen ge to Dr. Cronin alone, and any specific causation challenge to Dr. Michaels, according to the following schedule: the 302 MOTION by Rosemary Keffer to Withdraw Expert (Dr. Wertheimer) and Substitute New Expert (Dr. Michaels) is granted to the exte nt provided herein and denied in all other respects; plaintiff is permitted to have Dr. Michaels author and serve supplemental report respecting his opinions as to specific causation in lieu of those previously offered by Dr. Wertheimer by 9/2/2011; defendants are permitted to depose Dr. Michaels respecting his opinions by 9/8/2011; defendants are given leave to renew any Daubert challenges as they relate to Dr. Michaels and Dr. Cronin by 9/12/2011, with any response by plaintiff by 9/16/2011, and any reply by 9/19/2011. Signed by Judge John T. Copenhaver, Jr. on 8/26/2011. (cc: attys; any unrepresented party) (lca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROSEMARY KEFFER,
Plaintiff,
v.
Civil Action No. 2:04-0692
WYETH, d/b/a Wyeth, Inc.;
WYETH PHARMACEUTICALS, INC.; and
PHARMACIA & UPJOHN COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are (1) plaintiff’s motion to withdraw one of
her expert witnesses and substitute in his stead a different
expert witness (“motion for substitution”), filed August 16,
2011, (2) defendants’ motion to exclude the general causation
testimony of Michael D. Wertheimer, M.D., and Dr. John Cronin,
filed May 19, 2011, and (3) defendants’ motion to exclude
specific causation testimony of Dr. Wertheimer, filed May 19,
2011.
I.
Plaintiff seeks to replace her case-specific causation
expert, Michael D. Wertheimer, M.D., with a different expert,
Paul J. Michaels, M.D.
In late July Dr. Wertheimer abruptly
resigned as an expert witness for plaintiff in this, and
apparently all other, hormone replacement therapy (“HRT”)
litigation.
Plaintiff seeks to replace Dr. Wertheimer with Dr.
Michaels, an existing expert in this case who has already been
deposed and provided a case-specific pathology report herein.
Plaintiff proposes that Dr. Michaels also be given leave to
supplement his expert opinion to address specific causation.
If
permitted, that supplement is promised within 10 days.
In support of her request, plaintiff states,
inter alia, (1) she has acted diligently and in good faith, (2)
little to no prejudice would result to defendants inasmuch as Dr.
Michaels will provide a case-specific opinion using the same or
similar methodology as Dr. Wertheimer, and she will make Dr.
Michaels available for an additional deposition if necessary, (3)
the absence of a specific causation expert would cause her
difficulty in litigating this action to final judgment, and (4)
Dr. Michaels is well qualified to opine on the subject matter,
having testified on specific causation in HRT trials previously.
Defendants oppose the request.
They assert, inter
alia, that (1) the reason for Dr. Wertheimer’s withdrawal is not
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the fact that he is overworked but rather that “his credibility
is in tatters following” a July 2011 trial in this court of
another HRT action, (2) trial is less than one month away and
multiple forms of prejudice would result, including the need for
defendants’ experts to revise their reports to meet any new
opinions offered by Dr. Michaels, (3) defendants should be
awarded fees and costs as a result of Dr. Wertheimer’s departure
from the case, and (4) Dr. Michaels is unqualified to opine on
the specific causation matters at issue, and he lacks a reliable
methodology for doing so.
Defendants devote much space to a thorough discrediting
of Dr. Wertheimer.
The reasons for Dr. Wertheimer’s withdrawal,
however, are essentially immaterial.
Rule 16 focuses not upon
Dr. Wertheimer’s indifference and neglect but rather on the
diligence of plaintiff’s counsel.
It appears undisputed that
plaintiff’s counsel played no role in Dr. Wertheimer’s decision.
One searches the record in vain for any substantial indication
that plaintiff’s counsel should be blamed for his departure.1
1
Defendants appear to assert that plaintiff’s counsel should
have foreseen the imminent decimation of Dr. Wertheimer’s
credibility months ago and taken steps at that time to replace
him. (See, e.g., Defs.’ Br. at 13 (“Certainly by February 2011
it was only a matter of time before Dr. Wertheimer was
exposed.”)). Inasmuch as the contention rests upon little more
than speculation, it does little to demonstrate a lack of
diligence on plaintiff’s counsels’ part.
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Importantly, plaintiff does not seek to substitute for Dr.
Wertheimer because his testimony has been discredited.
She seeks
that relief because he has unexpectedly resigned.
The court thus finds that the withdrawal of Dr.
Wertheimer is appropriate.
The court further finds that good
cause supports a modification of the scheduling order so as to
permit service of a supplemental report by Dr. Michaels as to
specific causation.
The court does not intend presently to resolve any
Daubert challenge to Dr. Wertheimer, which is now moot, or any
similar challenge to Dr. Michaels, which would be premature in
advance of him offering his report and being deposed.
Indeed,
defendants note that “[i]f Plaintiff now substitutes another
specific causation expert, Defendants must draft a new Daubert
challenge crafted to the particulars of Dr. Michaels’ background
and opinions.”
(Defs.’ Br. at 15).
Defendants note as well that
they “also filed a twenty-page Daubert challenge on general
causation regarding Dr. Wertheimer and Dr. John Cronin.”
(Id. at
15 n.49).
To facilitate the orderly resolution of any such
challenges to the reliability or relevance of the aforementioned
witnesses, it is ORDERED that defendants' motions (1) to exclude
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general causation testimony by Dr. Wertheimer and Dr. Cronin, and
(2) to exclude specific causation testimony of Dr. Wertheimer be,
and they hereby are, denied without prejudice.
Defendants may
re-file any general causation challenge to Dr. Cronin alone, and
any specific causation challenge to Dr. Michaels, according to
the schedule that follows.
Based upon the foregoing discussion, it is,
accordingly, ORDERED as follows:
1.
That the motion for substitution be, and it hereby is,
granted to the extent provided herein and denied in all
other respects;
2.
That plaintiff be, and she hereby is, permitted to have
Dr. Michaels, no later than September 2, 2011, author
and serve a supplemental report respecting his opinions
as to specific causation in lieu of those previously
offered by Dr. Wertheimer;
3.
That defendants be, and they hereby are, permitted to
depose Dr. Michaels respecting his opinions no later
than September 8, 2011;
4.
That defendants be, and they hereby are, given leave no
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later than September 12, 2011, to renew any Daubert
challenges as they relate to Dr. Michaels and Dr.
Cronin, with any response by plaintiff no later than
September 16, 2011, and any reply by September 19,
2011.
The Clerk is directed to forward copies of this order
to all counsel of record.
DATED:
August 26, 2011
John T. Copenhaver, Jr.
United States District Judge
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