Wednesday, August 24, 2011

Expert’s Exclusion Upheld by 10th Circuit

From the BullsEye blog: "In what proved to be a dramatic turn of events for the plaintiff in a products liability suit against pharmaceutical giant Eli Lilly and Company, the 10th U.S. Circuit Court of Appeals ruled this month that a trial judge’s ruling to allow expert testimony is not final and may be reversed by a second trial judge who takes over the case.

The 10th Circuit refused to accept the plaintiff’s argument that the “law of the case” legal doctrine should preclude the second trial judge from revisiting the first judge’s ruling. The court said it would not apply the doctrine to rulings revisited prior to entry of final judgment, reasoning that judges generally remain free to reconsider their earlier interlocutory orders. This holds true even when a case is reassigned from one judge to another, the circuit panel said.

The underlying lawsuit arose out of truly tragic circumstances. Plaintiff Mark Rimbert alleged that Eli Lilly’s anti-depression medication Prozac caused his father to kill his wife and himself. Rimbert’s father committed the murder-suicide shortly after he was diagnosed with moderate depression and started taking the drug.

After the parties concluded discovery, Eli Lilly filed motions for summary judgment on various grounds and a motion to exclude the testimony of Rimbert’s expert witness on causation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). After conducting a Daubert hearing, the judge denied the motion to exclude the expert.

Later, the judge made a disclosure “of a personal nature” to the parties in the case. Although he did not believe the circumstances required him to recuse himself, he offered to have the case reassigned if any party was uncomfortable with his continued participation. Eli Lilly took him up on that offer and the case was reassigned to a new judge.

As soon as the new judge took over the case, Eli Lilly renewed its previous motions. Relying on the transcript of the first judge’s Daubert hearing and the evidence presented there, the second judge reversed the first judge’s ruling and granted Eli Lilly’s motion to exclude the testimony of Rimbert’s causation expert. He also refused to give Rimbert more time to find a new expert. Leaving Rimbert with no evidence of causation, the second judge granted summary judgment in favor of Eli Lilly.

Click here to read the whole article. Expert services for imaging, video, audio, and cell phone analysis can be found here.


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