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In re Xarelto (Rivaroxaban) Products Liability Litigation

United States District Court, E.D. Louisiana

July 21, 2017

IN RE XARELTO (RIVAROXABAN) PRODUCTS LIABILITY LITIGATION
v.
Janssen, et al. No. 2:15-cv-03469 THIS DOCUMENT RELATES TO: Dora Mingo

         SECTION L

          NORTH, MAG. JUDGE

          ORDER AND REASONS

          ELDON E. FALLON, United States District Judge

         Before the Court are several motions to exclude certain areas of anticipated testimony of various expert witnesses for the Mingo and Henry bellwether trials.[1] Plaintiff asks this Court to preclude testimony from seven defense experts about the potential outcomes from other anticoagulants. Rec. Doc. 5517. Defendants seek to exclude expert opinions and testimony regarding unapproved dosing and monitoring regimens, Rec. Doc. 6740, as well as opinions and testimony from Plaintiff's case specific expert, Dr. Henry Rinder. Rec. Doc. 6820. Mississippi law applies in Mingo. Having considered the parties arguments, submissions, and the applicable law, the Court now issues this Order and Reasons.

         I. LEGAL STANDARDS

         A. Daubert Standard

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Rule 702 is in effect a codification of the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Supreme Court held that trial courts should serve as gatekeepers for expert testimony and should not admit such testimony without first determining that the testimony is both “reliable” and “relevant.” Id. at 589.

         The trial court is the gatekeeper of scientific evidence. Daubert, 509 U.S. at 596. It has a special obligation to ensure that any and all expert testimony meets these standards. Id. Accordingly, it must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether the reasoning or methodology can be properly applied to the facts in issue. Id. at 592-93. In making this assessment, the trial court need not take the expert's word for it. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 147 (1997). Instead, when expert testimony is speculative or lacks scientific validity, trial courts are encouraged to exclude it. Moore v. Ashland Chem., Inc., 151 F.3d 269, 279 (5th Cir. 1998).

         In satisfying its “gatekeeper” duty, the Court will look at the qualifications of the experts and the methodology used in reaching their opinions and will not attempt to determine the accuracy of the conclusion reached by the expert. The validity or correctness of the conclusions is a determination to be made by the fact finder after the Daubert analysis.

         Scientific testimony is reliable only if “the reasoning or methodology underlying the testimony is scientifically valid, ” meaning that such testimony is based on recognized methodology and supported by appropriate validation based on what is known. Daubert, 509 U.S. at 592-93. In Daubert, the Supreme Court set forth a non-exclusive list of factors to consider in determining the scientific reliability of expert testimony. Id. at 593-95. In the context of the present case, these factors are: (1) whether the theory has been tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; (4) whether standards and controls exist and have been maintained with respect to the technique; and (5) the general acceptance of the methodology in the scientific community. Id. Whether some or all of these factors apply in a particular case depends on the facts, the expert's particular expertise, and the subject of his testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138 (1999).

         In addition to the five factors laid out in Daubert, a trial court may consider additional factors to assess the scientific reliability of expert testimony. Black v. Food Lion, Inc., 171 F.3d 308, 312 (5th Cir. 1999). These factors may include: (1) whether the expert's opinion is based on incomplete or inaccurate data; (2) whether the expert has identified the specific mechanism by which the drug supposedly causes the alleged disease; (3) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (4) whether the expert has adequately accounted for alternative explanations; and (5) whether the expert proposes to testify about matters growing directly out of research he or she has conducted independent of the litigation. See, e.g., id. at 313; Moore v. Ashland Chem., Inc., 151 F.3d 269, 278-79 (5th Cir. 1998); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1114 (5th Cir. 1991); Newton v. Roche Labs., Inc., 243 F.Supp.2d 672, 678 (W.D. Tex. 2002). Scientific testimony is relevant only if the expert's reasoning or methodology can be properly applied to the facts at issue, meaning there is an appropriate fit between the scientific testimony and the specific facts of the case. Daubert, 509 U.S. at 593. Scientific evidence is irrelevant, however, when there is too great an analytical gap between the data and the opinion proffered. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         The party seeking to introduce the expert testimony bears the burden of demonstrating that the testimony is both relevant and reliable. Moore, 151 F.3d at 275-76. The requirement of reliability does not strictly bind an expert within the proffered field of expertise; an expert may also testify concerning related applications of his or her background. Slatten, LLC v. Royal Caribbean Cruises Ltd., No. 13-673, 2014 WL 5393341, at *2 (E.D. La. Oct. 23, 2014) (citing Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991). The focus is not on the result or conclusion, but on the methodology. Moore, 151 F.3d at 275-76. The proponent need not prove that the expert's testimony is correct, but must prove by a preponderance of the evidence that the expert's methodology was proper. Id.

         Both the Plaintiffs and Defendants have various experts in this case. The Court will address each of the motions in turn.

         B. Mississippi Products Liability Act (“MPLA”)

         Because the admissibility of testimony depends in part on the relevant products liability statutes in Mississippi, the Court will generally describe them herein. In order to prove a design-defect claim under the MPLA,

the plaintiff must prove, by the preponderance of the evidence, that “the product was designed in a defective manner, ” that “[t]he defective condition rendered the product unreasonably dangerous to the user or consumer, ” and that “[t]he defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.”
* * *

         Additionally, a plaintiff making a design-defect claim must prove by the preponderance of the evidence the existence of a feasible design alternative:

The product failed to function as expected and there existed a feasible design alternative that would have to a reasonable probability prevented the harm. A feasible design alternative is a design that would have to a reasonable probability prevented the harm without impairing the utility, ...

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