Newton v. Roche Laboratories, Inc., A-00-CA-782 JN.

Decision Date05 December 2002
Docket NumberNo. A-00-CA-782 JN.,A-00-CA-782 JN.
Citation243 F.Supp.2d 672
PartiesDaryl and Ann NEWTON Individually and on Behalf of Candis Sofia Newton v. ROCHE LABORATORIES, INC., et al.
CourtU.S. District Court — Western District of Texas

Hampton, Leebron & Garth, Houston, for Daryl Newton, Individually and on behalf of Candis Sofia Newton, Ann Newton, Individually and on behalf of Candis Sofia Newton, plaintiffs.

Burgain Garfield Hayes, Jr., Clark, Thomas, & Winters, Austin, Mary Morrissey Sullivan, Colleen M. Hennessey, Sullivan, Sullivan & Nahigian, L.L.P., Boston, MA, Lisa J. Stevenson, Michael X. Imbroscio, Covington & Burling, Washington, DC, Mary R. Pawelek, Clark Thomas & Winters, Austin, Mark H. Lynch, Covington & Burling, Washington, Kenneth J. Ferguson, Clark, Thomas, & Winters, Austin, Gregory Gannon, Gannon, Taliaferro & Biggs, San Antonio, for Roche Laboratories, Inc., Hoffman-Laroche, Inc., Walgreen Company, defendants.

ORDER

AUSTIN, United States Magistrate Judge.

Before the Court are Defendant's Motion to Exclude the Expert Testimony of Lyle H. Rossiter, Jr., and Motion to Exclude the Expert Testimony of James T. O'Donnell, both documents filed on August 15, 2002 (Clerk's Doc. Nos. 52 & 54). On September 30, 2002, the District Court referred both motions to the undersigned Magistrate Judge for a determination pursuant to 28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. On October 15, 2002, the Court held a hearing on the motions, and after considering the oral arguments and submitted briefing, the Court has arrived at its decision in the matter.

I. BACKGROUND

Plaintiffs Daryl and Ann Newton bring this suit individually and on behalf of their daughter, Candis Sofia Newton. Candis was born in Mexico on April 22, 1982, and placed in an orphanage at eighteen months of age, suffering at the time from severe malnutrition. The Newtons adopted her when she was four-and-a-half years of age.

In December 1998, the Newtons brought Candis to a dermatologist for treatment of severe acne. The doctor prescribed Accutane, and Candis began taking the drug on December 8, 1998. On January 14, 1999, a little over a month later, Candis discontinued her use of Accutane because the Newtons were concerned that the drug was causing psychological problems. Candis continued to exhibit psychotic behavior, and eventually deteriorated to such a point that she required hospitalization in October 2000. She has been diagnosed with severe schizophrenia.

Records indicate that Candis had what Plaintiffs experts agree were predisposing conditions or "risk factors" for schizophrenia. Both her biological uncle and sister have been diagnosed with schizophrenia. While her mother outwardly exhibited symptoms consistent with schizophrenia, she was never clinically evaluated, and has since died. Candis was severely malnourished in her early childhood, and her natural father was sixty years old at the time of her birth (both childhood malnutrition and high paternal age at conception are considered risk factors for mental disease).

Plaintiffs bring this suit claiming that Accutane caused or precipitated the onset of Candis Newton's schizophrenia. They have presented two witnesses to offer expert testimony regarding both general and specific causation, and Defendants move here to exclude this testimony as unqualified and unreliable.

II. ANALYSIS
A. STANDARD FOR EXCLUSION OF EXPERT TESTIMONY

Federal Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact ... a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, (1) if 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 reliably to the facts of the case.

In several now well-known cases, the Supreme Court has articulated the trial court's gate-keeping function under Rule 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As a preliminary matter, the trial court is required to determine whether a proposed expert is qualified to give expert testimony. Kumho Tire Co., 526 U.S. at 156, 119 S.Ct. 1167. A party seeking to exclude expert testimony because the expert is not qualified must show that the expert does not possess a higher degree of knowledge, skill, experience, training, or education than an ordinary person. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995).

If the trial court determines that the expert is qualified in the relevant field, then the court must exercise its gate-keeper function as provided in Daubert and Kumho Tire. In Daubert, the Court held that Rule 702 imposes a special obligation upon the trial judge to "ensure that any and all scientific testimony ... is not only relevant but reliable." Daubert, 509 U.S. at 589-90, 113 S.Ct. 2786. Daubert sets forth four specific factors that the trial court should ordinarily apply when considering the reliability of scientific evidence: (1) whether the technique can or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique. Id. at 592-93,113 S.Ct. 2786.

The Kumho Tire Court concluded that a trial court may consider one or more of the specific Daubert factors when doing so will help determine that testimony's reliability. Kumho Tire Co., 526 U.S. at 151, 119 S.Ct. 1167. "But, as the Court stated in Daubert, the test of reliability is `flexible,' and the Daubert factors neither necessarily nor exclusively apply to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. Thus, whether Daubert`s suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness's particular expertise, and the subject of the testimony. Id.See also Black v. Food Lion, Inc., 171 F.3d 308, 312 (5th Cir.1999) ("In the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate."). Under Kumho Tire, trial courts have broad latitude to determine whether or not the proffered testimony requires an application of the Daubert factors.

In making the reliability determination, the trial court should not require certainty, but the testimony must demonstrate that the opinions offered are more than speculation. In considering this issue, the trial court must consider the validity of the principles applied by the expert, the accuracy of the data relied upon by the expert, and the precision of the application of the principles to the relevant data. See Marcel v. Placid Oil, 11 F.3d 563, 567 (5th Cir.1994).

The burden of proof on a Daubert issue rests on the proponent of the testimony. "The proponent need not prove that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable." Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir.1998, en banc). The Fifth Circuit has been particularly careful to distinguish evidence that establishes a causal relationship between the product and the alleged injury, from evidence that merely "suggests" an association between the product and the injury. See Allen v. Pennsylvania Eng'g Corp., 102 F.3d 194,197 (5th Cir.1996). Although evidence of an association may indicate the need for further research and be important in the scientific and regulatory contexts, the Fifth Circuit has cautioned that tort law requires a "higher standard" of causation. Id. at 198. As Judge Posner has noted, "Law lags science; it does not lead it." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996). Courts "must resolve cases ... on the basis of scientific knowledge that is currently available," and only evidence that demonstrates a causal relationship between a product and an alleged injury can be admitted as relevant and reliable. See Moore, 151 F.3d at 274, 276; see also Brumley v. Pfizer, Inc., 200 F.R.D. 596, 602 (S.D.Tex. 2001) (requiring evidence of causation and noting that "the lack of proof of a drug's safety does not prove that it is dangerous").

B. DR. JAMES O'DONNELL'S TESTIMONY

Plaintiffs have presented Dr. James O'Donnell as their expert to testify regarding general causation, i.e., that Accutane IS PHARMACOLOGICALLY CAPABLE OFcausing schizophrenia. Defendants attack both Dr. O'Donnell's qualifications and the reliability of his opinions. The Court finds that O'Donnell does not possess the qualifications to render a causation opinion in this case. Although he holds himself out as a "doctor" and a pharmacologist, he has never earned an M.D., a Ph.D., or any degree in pharmacology.1 See Plaintiffs Combined Response to Defendants' Motions to Exclude, Tab B, O'Donnell Dep., pp. 16-21 (hereafter referred to as "O'Donnell Dep."). In fact, his only claim to the title of "doctor" is based upon the completion of a one-year "Pharm.D."2 program in 1971. Id. at 16. O'Donnell admits that he took just one course related to pharmacology during his year-long Pharm.D. program.3 Id. at 20. Although he is listed as an Assistant Professor of Pharmacology at the Rush Medical College, he offers only a single class there as an unpaid, volunteer lecturer, spending roughly a half-day a...

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