United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON, United States District Judge
the Court are several motions to exclude certain areas of
anticipated testimony of various expert witnesses for the
Mingo and Henry bellwether
trials. 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.
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.
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).
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
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).
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).
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.
the Plaintiffs and Defendants have various experts in this
case. The Court will address each of the motions in turn.
Mississippi Products Liability Act
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.”
* * *
a plaintiff making a design-defect claim must prove by the
preponderance of the evidence the existence of a feasible
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, ...