United States District Court, W.D. Missouri, Western Division
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
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
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.
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.
pending are Plaintiff's motion to strike reply (Doc. #54)
and Plaintiff's motion for leave to file sur-reply (Doc.
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).
Defendant's Motion to Exclude
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.