Recently, some of the more footloose of the Drug and Device Law Relatives auditioned for the game show Family Feud. The first step was a mock “round” of the game, played against another auditioning family. All were instructed that, even if their answers made no logical sense, they should shout them with conviction and applaud them with over-the-top enthusiasm.
While this may be a good audition strategy, it is less appropriate when employed in litigation by witnesses supposedly expert in their fields. In Sparling v. Doyle, 2016 WL 236266 (W.D. Tex. Jan. 20, 2016), the court considered the plaintiffs’ objections to the magistrate judge’s 72-page opinion striking the testimony of three of plaintiffs’ experts in a dietary supplement death case. Plaintiffs argued that, contrary to the magistrate’s ruling, their experts’ causation opinions were based on “considerable evidence and reliable methodologies.” 2016 WL 236266 at *4. Under this general heading, they lodged four specific objections to the magistrate’s opinion.
First, the plaintiffs argued the magistrate had committed error by failing to consider “material scientific admissions” by the defendants’ experts, including the experts’ alleged concessions of “critical causation issues” – namely, the experts’ supposed concession of the mechanism by which the supplement in question allegedly caused hyperthermia and death. The court responded, “Plaintiffs . . . are conflating evidentiary proof to support their theory of causation with the reliability determination of their experts’ opinions under Daubert. The key issue here is whether the offered testimony by Plaintiffs’ experts is reliable. Nowhere in Plaintiffs’ experts’ reports do they cite reliance on Defendants’ experts as a basis for their opinions.” Id. Further, the court explained, a “statement by a defense expert is [at most] an evidentiary admission, and not a judicial admission.” Id. at 5. Unlike a binding judicial admission, which is “an intentional waiver, releasing the opponent from proof of a fact,” id. (internal punctuation and citation omitted), “an evidentiary admission is merely a statement of assertion or concession made for some independent purpose,” id., which a party may attempt to contradict and explain. Because any admissions by the defendants’ experts were not judicial admissions, and were therefore not binding on the court, the court overruled the plaintiffs’ first objection.
Second, the plaintiffs argued that the magistrate “improperly adopted defense argument and cross-examination as evidence.” According to the plaintiffs, the magistrate made an “independent factual finding” that dog studies were an unreliable basis for plaintiffs’ pharmacologist’s opinion, substituting her judgment for that of the expert. The court disagreed, noting that the magistrate rejected the plaintiffs’ experts’ reliance on the dog studies because the experts failed to account for differences between the injected administration of the supplement in the dog studies and plaintiff’s decedent’s oral ingestion, and because the experts’ dose-response opinion failed to account for the different doses used in animals and humans. Finally, because the plaintiffs’ experts themselves conceded that animal data does not always extrapolate to effects in humans, the magistrate held that she “was left with [the expert’s] mere assurances that, [in this case], dogs were a good model to predict human effects.” She “found these assurances insufficient.” Id. The court held that the magistrate “had not committed a clear error in judgment,” as plaintiffs’ experts “did not take the steps necessary to qualify the dog studies for human extrapolation based on the circumstances” of the case. As such, the court denied the plaintiffs’ objection to the exclusion of opinions derived from dog studies.
Third, the plaintiffs argued that the magistrate “failed to consider the opinions as a whole and missed numerous bridges between the data” and plaintiffs’ experts’ opinions. Id. at *6. Relying primarily on a single case from outside of the Fifth Circuit, plaintiffs argued that the magistrate should have taken “the entire body of evidence relied on by the expert[s]” into account in evaluating the experts’ reliability, rather than taking an “atomistic approach that determines that each piece of evidence is insufficient, on its own, to support the expert’s conclusion.” Id. The court held that the magistrate did not “make a factual assessment of the weight of the experts’ opinions.” Rather, she focused on the reliability of using the studies plaintiffs’ suggested permitted extrapolation – “bridged the gap” among similar chemicals. The court concluded, “In effect, [the magistrate found that because the underlying studies and could not be used to support [the expert’s] conclusions, she was left with nothing but the ipse dixit of the expert and concluded that the opinion was unreliable. Holding that the magistrate’s finding was not “unreasonable or arbitrary,” the court overruled the third objection.
Finally, the plaintiffs argued that the magistrate erred in “holding that the opinions at issue were nothing more than opinions of class effect,” id. at *7, when, according to the plaintiffs, they were “not merely asserting a class effect, but also extrapolating effects for particular chemicals based on class comparisons to bridge the analytical gap.” Id. The magistrate had noted that the plaintiffs’ own experts’ admissions that the chemical in question was structurally different from other class chemicals and that different chemicals in the class had different effects. As such, the judge overruled the plaintiffs’ objection, holding that the magistrate had correctly found that “Plaintiffs were unable to bridge the analytical cap between the data and the opinion offered,” and thus could not meet their burden of proving the opinions admissible. Id. at *7-8.
In all, a tidy interment of the plaintiffs’ stable of experts, whose opinions, quite simply, failed to satisfy Daubert’s reliability standard. Notwithstanding the cadre of plaintiffs cheering, “Good answer! Good answer!,” the court found that the magistrate had done her job when she struck all three experts’ opinions.