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Halee v. Bayer Corp.

United States District Court, S.D. Illinois

April 20, 2017

BAYER CORPORATION, et al., Defendants.



         This 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.

         1. Background.

         The 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.

         The 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.

         Defendants 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.

         2. Defendant's Motion to Exclude Plaintiffs' Expert Opinions.

         The 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.]

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”

         Admissibility 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. at 589-90.

         “The 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).

         When 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 Daubert include:

(1) whether a theory or technique is capable of being or has been tested;
(2) whether it has been subjected to peer review and publication;
(3) the known or potential rate of error when applied;
(4) the existence and maintenance of standards and controls; and
(5) whether it has gained general acceptance.

         Rule 702's advisory committee's notes suggest that courts also consider:

(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 testifying;”
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious alternative explanations;
(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 citations omitted).

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 reliability determination.”

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999).

         Under 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&#3 ...

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