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Levitt v. Merck & Company, Inc.

United States District Court, W.D. Missouri, Western Division

May 28, 2019

JO LEVITT, Plaintiff,
v.
MERCK & COMPANY, INC., Defendant.

          ORDER AND OPINION (1) DENYING DEFENDANT'S MOTION TO EXCLUDE EXPERT'S CAUSATION OPINION, (2) DENYING PLAINTIFF'S MOTION TO STRIKE REPLY, AND (3) DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE SUR- REPLY

          ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pending are Defendant's motion to exclude the causation opinion of David Egilman, M.D. (Doc. #39), Plaintiff's motion to strike portions of Defendant's reply in support of its motion to exclude the causation opinion of David Egilman, M.D., (Doc. #54), and Plaintiff's motion for leave to file sur-reply (Doc. #55). For the following reasons, all three motions are denied.

         I. BACKGROUND

         On September 29, 2006, Plaintiff brought this action against Defendant alleging she suffered two heart attacks in 2001 as a result of taking Vioxx. On November 8, 2006, the matter was transferred to the United States District Court for the Eastern District of Louisiana for inclusion in the Vioxx multidistrict litigation (“MDL”). The MDL court retained jurisdiction for the discovery phase of this case. During that time, Plaintiff designated David Egilman, M.D. as her expert concerning non-heart attack related injuries. Dr. Egilman testified Vioxx is a significant contributing cause of Plaintiff's acute coronary syndrome (“ACS”), which first presented as unstable angina. He based this opinion on studies demonstrating a link between Vioxx and ACS as well as a statistical analysis of Defendant's data. Defendant filed a motion in the MDL to exclude this opinion on the grounds that these studies concerned only ACS in general and not its initial presentation as unstable angina. Defendant argued the Fifth Circuit requires an expert to base his causation opinions on studies showing a link between the exact drug at issue and the exact symptoms. The MDL court found the Fifth Circuit cases did not apply and deferred the issue to this Court for application of Eighth Circuit law.

         Also pending are Plaintiff's motion to strike reply (Doc. #54) and Plaintiff's motion for leave to file sur-reply (Doc. #55).

         II. STANDARD

         The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The district court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). In determining the admissibility of expert testimony, the Court uses the following three-part test:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted). “Courts should resolve doubts regarding usefulness of an expert's testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (citations omitted).

         III. DISCUSSION

         A. Defendant's Motion to Exclude

         Defendant moves to exclude Dr. Egilman's causation opinions because they are based on unsound methodology, and he lacks sufficient medical expertise to opine on technical matters of cardiology. Defendant also disputes Dr. Egilman's findings that Vioxx is associated with unstable angina. Defendant seeks to exclude studies that look at composite risks for a broad set of adverse outcomes rather than a specific connection between the particular exposure and unstable angina. Defendant argues Dr. Egilman's study suggests that Vioxx is causally linked to a set of heart-related incidents that includes unstable angina but does not directly prove that Vioxx causes unstable angina. Lastly, ...


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