Benkwith v. Matrixx Initiatives, Inc., 2:04-cv-623-MEF.

Decision Date27 December 2006
Docket NumberNo. 2:04-cv-623-MEF.,2:04-cv-623-MEF.
PartiesMaxine BENKWITH, individually and on behalf of all other similarly situated persons, Plaintiff, v. MATRIXX INITIATIVES, INC., et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Andrew P. Campbell, Wendy. T. Tunstill, Cinda R. York, Campbell Waller & Poer LLC, William Tipton Johnson, III, Jeffrey Conett Kirby, Pittman Dutton Kirby & Hellums PC, Birmingham, AL, for Plaintiff.

Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco, CA, Frederick George Helmsing, Sr., Joseph P.H. Babington, Patrick Conor Finnegan, Russell Crandle Buffkin, Thomas Ryan Luna, Helmsing Leach Herlong Newman Rouse PC, Mobile, AL, Susan Margaret Sharko, Drinker Biddle & Reath LLP, Florham Park, NJ, Billington Malone Garrett, Office of the Attorney General, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

FULLER, Chief Judge.

Plaintiff Maxine Benkwith brings this action against Matrixx Initiatives, Inc., Zicam, LLC, Botanical Laboratories, Inc., and McKesson Corporation (hereinafter collectively "Defendants"), claiming that a nasal spray designed, manufactured, marketed, and shipped by Defendants paused her to lose her senses of smell and taste. This cause is presently before the Court on Defendants' (1) Motion to Exclude the Expert Report and Testimony of Bruce W. Jafek, M.D. (Doc. # 90), and (2) Motion for Summary Judgment (Doc. # 93). Defendants argue that all or part of the reports or testimony of Dr. Jafek is inadmissible under Rule 702 of the Federal Rules of Evidence and the standards set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and McClain v. Metabolife Int'l Inc., 401 F.3d 1233 (11th Cir.2005), and that, as a result, there exists no genuine issue of material fact and Defendants are entitled to judgment as a matter of law. Plaintiff contends that Dr. Jafek's opinion is admissible and therefore both motions should be denied. The Court has carefully considered the arguments in support of and in opposition to each motion. For the reasons stated herein, the Motion to Exclude and the Motion for Summary Judgment are both due to be GRANTED.

I. Jurisdiction and Venue

The Court exercises subject matter jurisdiction over this action pursuant 28 U.S.C. §§ 1332 (diversity) and 1446 (removal). The parties contest neither personal jurisdiction nor venue, and the Court finds a sufficient factual basis for each.

II. Factual and Procedural Background

Zicam No-Drip Liquid Nasal Gel ("Zicam") is a homeopathic cold remedy intended to place zinc in direct contact with the nasal epithelial membrane. The active ingredient in Zicam is zinc gluconate, which is supposed to reduce the length and severity of a cold. A pump, delivers the gel to the nasal membrane. The directions state that the applicator tip should be placed approximately one-eighth of an inch past the nasal opening. The nozzle should then be slightly angled outward. The purchaser should pump the applicator once in each nostril. Finally, the directions state that to avoid irritation, the purchaser should not "sniff up" the gel.

Plaintiff Maxine Benkwith is sixty-one years old with a history of sinusitis and nasal congestion. She has taken Flonase, Nasalcrom, and Sudafed for nasal congestion. She has taken medication for other medical problems, including hypertension, acid reflux, arthritis, bronchitis, and high cholesterol. She first used Zicam in the winter of 2002-2003, when she felt that she was coming down with a cold. She used Zicam twice between November 2002 and March 2003. She believes that she felt a burning sensation between her eyes each time she used Zicam. In November 2003, Plaintiff bought another bottle of Zicam, which she used in November and December 2003 and in-January 2004. She states that she probably used Sudafed as well for these colds. In February 2004, Plaintiff realized that she had lost her senses of smell and taste.

Plaintiff testified that when she applied Zicam she followed the, directions. She testified that she did not put the applicator tip very far inside her nose and that she tilted the applicator tip toward the outer side of her nostril. She does not recall whether she sniffed when applying the Zicam, but stated that she believed the directions said not to sniff.

Plaintiff filed this case as a class action on May 3, 2004 in the Circuit Court of Montgomery County, Alabama, against Matrixx Initiatives, Inc., Zicam, LLC, and Bruno's Supermarkets, Inc. She puts forward several grounds for relief, including products liability under the Alabama Extended Manufacturer's Liability Doctrine, negligent distribution, failure to warn, breach of warranty of merchantability, and negligence.

The case was removed to this Court by Matrixx and Zicam, on June 24, 2004. (Doc. # 1.) The parties filed a stipulation of dismissal as to Bruno's (Doc. # 14), and the claims against it were dismissed (Doc. # 15). Plaintiff failed to file a motion for class certification, and Defendants' Motion to Strike Class Allegations (Doc. # 32) was denied as moot (Doc, # 34). Plaintiff filed an Amended Complaint (Doc. # 78) on April 25, 2006, which added as defendants Botanical Laboratories, Inc. and McKesson Corporation.

On August 31, 2006, Defendants filed a Motion to Exclude the Expert Report and Testimony of Bruce W. Jafek, M.D. and Miriam R. Linschoten, Ph.D. (Doc. # 90). On October 2, 2006, Defendants filed a notice of withdrawal of that portion of the motion pertaining to Miriam R. Linschoten, Ph.D. (Doc. # 109). Construing that notice as a motion to withdraw, the Court granted the motion (Doc. # 111). On August 31, 2006, Defendants filed a Motion for Summary Judgment (Doc. # 93) on the basis of a lack of expert testimony regarding causation.

III. Defendants' Motion to Exclude the Expert Report and Testimony of Bruce W. Jafek, M.D.
A. Standard

The admissibility of expert opinion is governed by Rule 702 of the Federal Rules of Evidence, which lays the foundation for a trial court's Daubert analysis. See McClain, 401 F.3d at 1237.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. In applying Rule 702, district courts must consider whether: (1) "the expert is qualified to testify competently regarding the matters he intends to address;" (2) "the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Dauberk" and (3) "the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004). The Eleventh Circuit has stated that the primary purpose of any Daubert inquiry is to determine whether an expert, "whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" McClain, 401 F.3d at 1255 (quoting Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

Rule 702 imposes upon a district court the duty to act as a "gatekeeper" for expert scientific testimony before it may be admitted into evidence. See Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167; Gen. Elec. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508. (1997). As a gatekeeper, the trial judge must "insure that speculative and unreliable opinions do not reach the jury." McClain, 401 F.3d at 1237. Where the scientific support for expert opinions or testimony is sufficiently called into question, the district court must determine whether the testimony "has a reliable basis in the knowledge and experience of the relevant discipline." Kumho Tire, 526 U.S. at 149, 119 S.Ct. 1167 (quotation marks and alteration omitted). "[T]he burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion." McClain, 401 F.3d at 1238 (quoting Frazier, 387 F.3d at 1260).

The district court, before admitting expert testimony, must determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. To do so, the court must assess whether the reasoning or methodology underlying the opinion is scientifically valid and whether the reasoning or methodology can properly be applied to the facts of the case. See id. at 592-93, 113 S.Ct. 2786. The "overarching subject" of, this inquiry is the scientific validity — and thus the relevance and reliability — of the principles underlying the testimony. Id. at 594-95, 113 S.Ct. 2786.

The requirement that the proposed evidence or testimony "assist the trier of fact to understand or determine a fact in issue" relates primarily to relevance. Id. at 591, 113 S.Ct. 2786. The Supreme Court has described this consideration as one of "fit." Id. "`Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id. "[A] court may not admit evidence when there is `simply too great an analytical gap between the data and the opinion proffered." Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir.2002) (citing Joiner, 522 U.S....

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