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Mercado v. Bayer Healthcare Pharmaceuticals Inc.

United States District Court, N.D. Illinois, Eastern Division

April 25, 2017



          HON. JORGE L. ALONSO United States District Judge.

         In this products liability action, defendant Bayer Healthcare Pharmaceuticals Inc. (“Bayer”) moves to exclude the testimony of Gary S. Milzer, M.D., plaintiff Ivette Mercado's retained expert. For the following reasons, the motion is granted.

         I. BACKGROUND

         Plaintiff suffered an infection some time after her physician inserted a Mirena intrauterine device (“IUD”), a contraceptive device manufactured and sold by Bayer, into her uterine cavity on October 29, 2013. Mirena is a T-shaped polyethylene frame with a steroid reservoir that releases levonorgestrel, a prescription medication used as a contraceptive. On November 15, 2013, a couple of weeks after the Mirena was inserted, plaintiff returned to her physician complaining of lower abdominal pain, and the physician gave her antibiotics for possible pelvic inflammatory disease (“PID”) or urinary tract infection. A urine culture revealed a Group A streptococcus infection. On December 3, 2013, plaintiff arrived in the emergency department of Advocate Lutheran General Hospital complaining of pelvic pain and illness. She was eventually admitted to the intensive care unit with possible toxic shock syndrome or septic shock. Although the physicians who treated her never definitively identified the cause of plaintiff's infection, they removed her Mirena on December 7, 2013. Plaintiff later filed this suit, complaining that Bayer is strictly liable for failure to warn of the danger and risk of infection caused by a Mirena device, and that Bayer negligently misrepresented the risks of infection posed by insertion of a Mirena device.


         “The admission of expert testimony is governed by Federal Rule of Evidence 702 and the principles outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999) (extending application of Daubert factors to engineers and other non-scientific experts).” Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011) (internal citations altered). Federal Rule of Evidence 702 provides as follows:

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.

         The rule imposes “three basic prerequisites.” See Weinstein's Federal Evidence § 702.02[3]. “Under Federal Rule of Evidence 702 and Daubert, the district court must . . . determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will ‘assist the trier of fact to understand the evidence or to determine a fact in issue.'” Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (quoting Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007)). In assessing reliability, the district court must ensure that the proffered expert testimony is “well-grounded in methods and procedures of science, ” and it should consider factors such as “(1) whether the [expert's] theory can be and has been verified by the scientific method through testing; (2) whether the theory has been subjected to peer review; (3) the known or potential rate of error; and (4) the general acceptance of the theory in the scientific community.” Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002).

         III. ANALYSIS

         Defendant challenges the expert testimony of Dr. Milzer, a gynecologist who opines that “the in-situ Mirena IUD was the proximate cause” of pelvic inflammatory disease from an infection of Group A streptococcus bacteria that ultimately resulted in toxic shock syndrome in December 2013. (Mot. to Exclude, Ex. 2, Milzer Report at 4, ECF No. 70-4 at 10.) By saying that the Mirena caused the infection “in situ, ” Dr. Milzer means that it caused the infection while in place in the uterine cavity; he does not opine that the insertion of the Mirena caused the infection, apparently recognizing that the antibiotics plaintiff received on November 15, 2013, would have remedied such an infection. (Id., Ex. 1, Milzer Dep., at 212:7-15, ECF No. 70-1.)

         Defendant does not challenge Dr. Milzer's qualifications (although it says they “teeter on the edge of acceptability” (Reply Br. at 2, ECF No. 73)), but defendant does challenge his opinion on the grounds that it is not scientifically reliable and does not fit the facts of the case. First, defendant argues that Dr. Milzer's theory that a Mirena device can cause an infection in situ, separate and apart from its insertion, bears none of the indicia of reliability courts look for under Daubert: (a) no scientific data supports that theory; (b) the theory has not been published or peer-reviewed; (c) it has not garnered general acceptance in the medical community; (d) it has not been tested, nor is it easily testable, either in the context of this case or generally, because no culture samples were taken of plaintiff's Mirena after removal and, even if they had, it would be impossible to say whether the Mirena had been contaminated post-removal; and (e) Dr. Milzer admitted that he worked backwards from the fact of the infection to reach the conclusion that the infection began with the IUD, a methodology that he did not dispute was inconsistent with general medical practice. Second, defendant argues that Dr. Milzer admitted that he relied on no published medical literature as support for his opinion; instead, he relied on “plaintiff lawyer websites” (Def.'s Mem. at 11, ECF ...

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