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Judy Schutter v. Wyeth

September 28, 2011


The opinion of the court was delivered by: Blanche M. Manning United States District Judge


After a years-long regimen on hormone replacement therapy drugs from Wyeth, plaintiff Judy Schutter developed metastatic, hormone-receptor positive breast cancer. She subsequently filed a multi-count complaint against Wyeth and related defendants based on diversity jurisdiction. Discovery is currently proceeding before this court as this case is no longer proceeding as part of multi-district litigation due to the progression of Ms. Schutter's cancer. During their depositions, Wyeth asked three of Ms. Schutter's treating physicians to opine regarding the cause of breast cancer. Ms. Schutter's motion to strike this testimony is before the court. For the reasons discussed below, the motion is granted.

I. Background

In 1996, on the advice of her gynecologist, Ms. Schutter began a multi-year course of hormone replacement therapy ("HRT") to alleviate menopause symptoms. Her treatment plan included the hormone replacement medications Premphase, Prempro, and Provera (collectively, "hormone replacement drugs"). Ms. Schutter began taking Premphase in 1996, and, by 1998, switched to Prempro and later Provera. In September of 2000, Ms. Schutter felt a lump in her right breast. Her then-treating physician, Dr. Ramona Slupik, ordered a diagnostic mammogram. By November of 2000, Ms. Schutter stopped her HRT regimen because she had been diagnosed with metastatic, hormone-receptor positive breast cancer that eventually spread to her lungs and liver.

Hormone replacement therapy was first recognized as a viable treatment for menopausal discomfort in 1942, when Wyeth received market approval for the hormone replacement drug Premarin. In her complaint, Ms. Schutter alleges that over the years that HRT was widely used, hormone replacement drug manufacturers, including the defendants, knew these medications placed patients at risk for a variety of potential serious, life-threatening complications.

Some doctors believe that a woman's use of HRT and a subsequent diagnosis of breast cancer are related. Ms. Schutter asserts that HRT caused her cancer. Over the course of her HRT regimen and breast cancer treatment, Ms. Schutter relied primarily on three treating and prescribing physicians: Dr. Ramona Slupik, her obsetetrician-gynecologist; Dr. Ruth O'Regan, her original treating oncologist; and Dr. William Gradishar, her current treating oncologist. After Ms. Schutter filed suit, all three of her doctors were deposed. Ms. Schutter disclosed her doctors as fact witnesses but not experts. Wyeth did not disclose any of Ms. Schutter's doctors as experts.

During the doctors' depositions, Wyeth asked questions about risk factors and the cause of Ms. Schutter's breast cancer. In her motion to strike, Ms. Schutter contends that the defendants were not entitled to do so because her treating physicians are not expert witnesses. Alternatively, she asserts that their testimony about causation is inadmissible because it is not based on knowledge gained in their capacity as treating physicians, is an impermissible legal conclusion about causation, and is irrelevant since they did not need to consider causation to treat her cancer.

In response, Wyeth contends that the doctors are all fact witnesses so it was not required to submit expert disclosures under Rule 26 to be able to use their testimony. Next, it denies that the testimony at issue goes to causation. Instead, according to Wyeth, it flows from the doctors' treatment of Ms. Schutter. Next, Wyeth contends that Ms. Schutter's motion is premature as she is attempting to strike deposition, not trial, testimony. Finally, Wyeth argues that because discovery was ongoing when the parties' dispute about causation arose, Ms. Schutter cannot be unfairly prejudiced by the use of all of her doctors' testimony.

II. Discussion

A. Is This Motion Premature?

Wyeth first suggests that the motion to bar is premature because it has not determined what evidence it intends to offer at trial and Ms. Schutter has not determined whether she will call her treating physicians to testify or, alternatively, designate portions of their depositions for use at trial. The court finds that clarifying the scope of permissible testimony at this point in the proceedings will help streamline trial preparation.

Second, Wyeth contends that a ruling now will prevent it from responding as events develop at trial, and asserts that it may need to use causation testimony from Ms. Schutter's treating physicians to impeach or rebut testimony presented at trial. If this position was correct, no court would be able to issue any pretrial evidentiary rulings. The court nevertheless clarifies that its rulings regarding Ms. Schutter's treating physicians are directed at the parties' cases in chief and do not prevent a party from presenting impeachment testimony. However, to the extent that any party believes it is entitled to ask a treating physician about causation, it must first raise this issue outside the presence of the jury.

Finally, Wyeth suggests that even if the use of causation testimony from Ms. Schutter's treating physicians is improper, any error is harmless because the court should promote the determination of cases based on all available evidence. This argument is flatly wrong. The rules of evidence apply, and the harmless error doctrine does not allow a party to introduce all of the evidence it wishes ...

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