Miller v. Pfizer, Inc., No. 02-3092.

• Decision Date: 04 February 2004
• Docket Number: No. 02-3092.
• Citation: 356 F.3d 1326
• Parties: Mark MILLER, individually and as administrator of the estate of Matthew Miller, deceased; Cheryl Miller, individually, Plaintiffs-Appellants, v. PFIZER, INC., Roerig Division, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1326

356 F.3d 1326

Mark MILLER, individually and as administrator of the estate of Matthew Miller, deceased; Cheryl Miller, individually, Plaintiffs-Appellants, v. PFIZER, INC., Roerig Division, Defendant-Appellee.

No. 02-3092.

United States Court of Appeals, Tenth Circuit.

February 4, 2004.

Arnold Anderson Vickery, Houston, TX (James E. Fitzgerald, Cheyenne, WY, and Earl Landers Vickery, Austin, TX, with him on the briefs), for Plaintiffs-Appellants.

Malcolm E. Wheeler (James E. Hooper, Amy L. Padden and Craig R. May, with him on the brief), of Wheeler Trigg & Kennedy, P.C., Denver, CO, for Defendant-Appellee.

Before EBEL, ANDERSON, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Matthew Miller died at the age of thirteen, one week after beginning to take sertraline, an antidepressant drug marketed as "Zoloft." His parents sued Pfizer, the manufacturer of Zoloft, for wrongful death, claiming that Zoloft caused Matthew to commit suicide.

The Millers hired Dr. David Healy, who proposed to testify that Zoloft may cause suicide and had in fact caused Matthew to commit suicide. Applying standards outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny for determining whether expert testimony is admissible under Federal Rule of Evidence 702, the district court ruled that Dr. Healy could not testify. This left the Millers with no expert to provide evidence of causation. Accordingly, the court granted summary judgment to Pfizer.

The Millers appeal. Their principal claim is that the court did not give them a fair opportunity to make a proper record supporting Dr. Healy's conclusions. At the outset of discovery the Millers had requested the court to appoint independent experts to evaluate the opinions of the parties' retained experts. The district court did so only after completion of discovery. The court-appointed experts ultimately advised the court that Dr. Healy's analysis was unscientific. The Millers now argue that the district court improperly deprived Dr. Healy of the opportunity to respond to concerns expressed by the independent experts. If the district court had indeed deprived Dr. Healy of that opportunity, the Millers might prevail on a claim of abuse of discretion. Our review of the record, however, establishes that the district court acted with patience and fairness. Most, if not all, of the concerns expressed by the independent experts had previously been expressed by Pfizer or the district court. The Millers have failed to identify any concern to which they lacked an adequate opportunity to respond. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

Dr. Douglas Geenens diagnosed 13-year-old Matthew Miller with depression and prescribed Zoloft on July 21, 1997. Matthew hanged himself one week later. The Millers filed a wrongful death action against Pfizer in the United States District Court for the District of Kansas on July 27, 1999, basing federal jurisdiction on diversity of citizenship, see 28 U.S.C. § 1332. Their expert witness on causation has been Dr. David Healy, a neuropsychopharmacologist.

Zoloft belongs to a class of drugs called selective serotonin reuptake inhibitors (SSRIs). Dr. Healy asserts that SSRIs cause akathisia, a syndrome involving motor restlessness, which in turn causes some patients to commit suicide. In forming his opinion Dr. Healy relied on various articles and studies involving Zoloft and other SSRIs. Of these studies, he placed the most emphasis on his own healthy-volunteer study, two "challenge-dechallenge-rechallenge" reports (in which subjects were given the drug, then not given it, and then given it again), and a study conducted by Dr. Ian Hindmarch (although he ultimately decided not to rely on the Hindmarch study). He also relied on depositions from this case; testimony, depositions, and exhibits from other cases; Pfizer documents; an application of what are known as Koch's postulates (which are employed to evaluate causality); and a meta-analysis he performed using Pfizer data.

Shortly after bringing suit, the Millers submitted a preliminary report prepared by Dr. Healy. Anticipating that Dr. Healy's views might be challenged by Pfizer, the Millers, in an effort to obtain validation of Dr. Healy's opinions from an outside source, filed a motion to appoint independent experts on October 21, 1999.

The court's first scheduling order, entered November 18, 1999, required the Millers to provide Pfizer with their Rule 26 expert disclosures no later than December 28, 1999. The scheduling order also set a deadline of February 11, 2000, for the Millers to provide Rule 26 disclosures pertaining to rebuttal experts. On January 10, 2000, Pfizer filed a "Motion to Limit Revision, Amendment or Supplementation of Expert Opinions Disclosed Pursuant to Rule 26(a)(2)." The district court sustained this motion in part on January 28, 2000. It ruled that the Millers could "serve a supplemental final expert report on or before [March 7, 2000]," and final rebuttal expert disclosures by March 28, 2000. Dist. Ct. R., Doc. No. 115.

On March 27-28, 2000, Dr. Healy was deposed for ten hours. During the following two weeks the Millers provided Pfizer with supplemental responses to Pfizer's requests for admission. The responses contained an explanation of a statistical analysis performed by Dr. Healy. Objecting to the responses as untimely, Pfizer filed on April 17, 2000, an "Emergency Motion to Bar Plaintiffs' Expert, Dr. Healy, from Supplementing His Opinions and to Strike and Deem Admitted Plaintiffs' Second Supplemental Responses to First Requests for Admissions." Dist. Ct. R., Doc. No. 195. The district court denied this motion on April 18, 2000, after observing that "[t]he newly disclosed information does not appear to substantially depart from information which has been previously disclosed." Dist. Ct. R., Doc. No. 199 at 2. But it reserved its final ruling on the issue until it considered the parties' dispositive motions and stated that it "may well strike Dr. Healy's information because of the late hour at which it has been produced." Id. at 2-3.

Also on April 18, 2000, Pfizer filed a motion to exclude Dr. Healy's testimony under Daubert. Proceedings were delayed, however, when Pfizer's attorney was seriously injured in an accident on June 2, 2000. The district court continued the trial date from July 18 to September 19, 2000. Then, on August 18, 2000, the district court issued an order staying all proceedings and directing the parties to show cause why independent expert witnesses should not be appointed. Ultimately, on April 24, 2001, the court entered an order appointing two independent experts, John Concato, M.D., M.S., M.P.H. and John M. Davis, M.D.

In its order appointing the experts, the district court identified the "fundamental question" on which it wanted advice: "whether Dr. Healy's methodology, and his application of it in this case, constitute valid, scientifically reliable reasoning in support of his opinions that Zoloft causes suicide (general causation) and that Zoloft caused Matthew Miller's suicide (specific causation)." Aplt.App. at 359. The order declared that "the parties [had been] afforded full opportunity to adduce evidence in support of their respective positions." Id. It then stated that the independent experts would be provided "(1) a copy of the parties' previously filed briefs pertaining to the motion to exclude Dr. Healy's testimony; (2) a copy of all exhibits cited or referred to in those briefs ...; (3) a copy of Pfizer's July 1999 Report to the Irish Medicines Board; (4) the letter of January 2000 from the Irish Medicines Board to Pfizer regarding the report; and (5) Dr. Healy's Declaration of August, 2000, which addresses the concerns which the Court articulated in its order to show cause." Id. at 360. The materials provided to the independent experts included various expressions of Dr. Healy's opinions as they had evolved during the course of the litigation: reports dated September 22 and December 10, 1999; a Letter Report dated March 6, 2000; deposition testimony on March 27-28, 2000; responses filed in April 2000 to Pfizer's requests for admission; and declarations dated May 9 and August 31, 2000. The district court also encouraged the experts "to examine whatever medical or scientific literature is necessary to render their professional opinions." Aplt.App. at 361.

The independent experts submitted a report on September 5, 2001, that generally discredits Dr. Healy's theory and methodology. In response, the Millers filed a "Consolidated Statement of Facts" on October 23, 2001. Id. at 389. The court described it as a "45-page brief contain[ing] 145 separately numbered statements, 119 of which are presented for the first time in this document." Dist. Ct. Order (Nov. 16, 2001), Aplt.App. at 440. The district court granted Pfizer's motion to strike the statement on the grounds that it was not associated with any pending motion (or constituted an improper attempt by the Millers to supplement their summary-judgment briefing), did not comply with procedural rules, and was untimely.

On November 19-20, 2001, the district court held a hearing on the motion to exclude Dr. Healy's testimony as inadmissible under Daubert. The court allowed Dr. Healy to engage in a dialogue with the independent experts but, apparently relying on Federal Rule of Civil Procedure 26, restricted the information on which his responses to their questions could be based to those materials that had previously been supplied to the independent experts. See Tr. of Daubert Hr'g, Aplt.App. at 592. The court explained:

[U]nder our federal rules which govern pretrial proceedings ... there's a time set as part of the discovery process where each expert is required to produce a written report that states all of the opinions that ... [the] expert will offer at the trial,...