United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE.
matter comes before the Court on Defendants' Motion [Doc.
30] to Exclude Plaintiffs' Experts' Opinions;
Defendants' Motion [Doc. 32] for Summary Judgment; and
Plaintiffs' Motion [Doc. 34] for partial Summary
Judgment. All motions having been fully briefed, the Court
heard oral arguments on January 26, 2017.
Plaintiffs previously filed a complaint in this Court
(Hale v. Bayer Corporation, 3:14-cv-00481-MJR-SCW)
which was voluntarily dismissed on April 29, 2015. The
plaintiffs then filed suit in the Circuit Court, Third
Judicial Circuit, Madison County, Illinois on June 4, 2015,
and the defendants removed the matter back to this court on
July 9, 2015.
Complaint alleges that plaintiff Kenneth Hale took Aleve®
in early June 2013, as directed, and suffered permanent
kidney injury. Aleve® is an over-the-counter form of a
non-steroidal anti-inflammatory drug (“NSAID”)
and Mr. Hale has been diagnosed with Minimal Change Disease
(“MCD”). The complaint puts forth claims of
strict product liability, negligence, breach of warranty,
willful and wanton conduct, and on behalf of plaintiff Viki
Hale, loss of consortium.
Walgreens Co. and Walgreens Business Services, LLC filed a
motion to dismiss for failure to state a claim upon which
relief could be granted and the Court granted their motion on
September 16, 2015. [Doc. 16.] As such, Bayer Corporation and
Bayer Healthcare LLC (collectively “Bayer”) are
the remaining defendants in this matter.
Defendant's Motion to Exclude Plaintiffs' Expert
Defendants move to exclude the testimony of plaintiffs'
expert witnesses: Dr. Gourang Patel, Dr. Erik Daniels, and
Dr. John Hoelscher pursuant to Federal Rule of Evidence 702.
Defendants argue that these doctors' opinions are
“not properly founded in or based upon sufficient
reliable medical, scientific, or other specialized
knowledge” as required for admissibility set forth in
Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579
(1993) and Kumho Tire Co., Ltd., v.
Carmichael, 526 U.S. 137 (1999). [Doc. 30.]
Rule of Evidence 702 provides that:
“A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.”
of expert testimony is also governed by Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
and its progeny. In Daubert, the Supreme Court held
that Federal Rule of Evidence 702 did not incorporate the
''general acceptance'' test set forth in
Frye v. United States, 54 App. D.C. 46 (D.C. Cir.
1923). Instead, the Court held that Rule 702 required
district judges to be “gatekeepers” for proposed
scientific evidence. Daubert, 509 U.S. at 589;
see also General Elec. v. Joiner, 522 U.S. 136, 142
(1997). For scientific evidence to be admissible, the Court
found that a district court must find it both relevant and
reliable; it must be scientific knowledge grounded
''in the methods and procedures of science''
and consist of more than ''subjective belief or
unsupported speculation.'' Daubert, 509 U.S.
objective of [the gatekeeping] requirement is to ensure the
reliability and relevancy of expert testimony. It is to make
certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 152 (1999).
dealing with scientific evidence, the preliminary question is
''whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts
in issue.'' Daubert, 509 U.S. at 592-93.
Considerations pertinent to this inquiry from
(1) whether a theory or technique is capable of being or has
(2) whether it has been subjected to peer review and
(3) the known or potential rate of error when applied;
(4) the existence and maintenance of standards and controls;
(5) whether it has gained general acceptance.
702's advisory committee's notes suggest that courts
(1) Whether experts are “proposing to testify about
matters growing naturally and directly out of research they
have conducted independent of the litigation, or whether they
have developed their opinions expressly for purposes of
(2) Whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious
(4) Whether the expert “is being as careful as he would
be in his regular professional work outside his paid
litigation consulting;” and
(5) Whether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion the
expert would give.
(2000 Amendments, Advisory Committee Notes)(internal
Expert testimony can consist of scientific, technical, or
other specialized knowledge and Daubert still
applies; however, the court is not required to apply all of
the factors in Daubert. “We conclude that
Daubert's general holding-setting forth the
trial judge's general “gatekeeping”
obligation-applies not only to testimony based on
“scientific” knowledge, but also to testimony
based on “technical” and “other
specialized” knowledge. See Fed. Rule Evid. 702. We
also conclude that a trial court may consider one or
more of the more specific factors that Daubert
mentioned when doing so will help determine that
testimony's reliability. But, as the Court stated in
Daubert, the test of reliability is “flexible,
” and Daubert's list of specific factors
neither necessarily nor exclusively applies 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
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
Rule 702, “the proponent has the burden of establishing
that the pertinent admissibility requirements are met by a
preponderance of the evidence.” (2000 Amendments,
Advisory Committee Notes). To determine if an expert is
qualified to testify on a particular matter, a court should
Aconsider a proposed expert's full range of practical
experience as well as academic or technical training."
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.
2000). However, generalized knowledge within an area is not
necessarily enough to qualify an expert:
[A]n expert's qualifications must be within the same
technical area as the subject matter of the expert's
testimony; in other words, a person with expertise may only
testify as to matters within that person's expertise.
Generalized knowledge of a particular subject will not
necessarily enable an expert to testify as to a specific
subset of the general field of the expert's knowledge.
Martinez v. Sakurai Graphic Sys. Corp., No. 04 C
1274, 2007 WL 2570362, at * 2 (N.D. Ill. Aug. 30, 2007)
(citing O'Conner v. Commonwealth Edison Co., 807
F.Supp. 1376, 1390 (C.D. Ill. 1992), aff ...