Expert’s Exclusion Upheld by 10th Circuit

By Robert Ambrogi Esq

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.

A Matter of Judicial Discretion

On appeal, Rimbert’s sole argument for reinstating the first judge’s Daubert ruling was the doctrine of law of the case should apply to constrain a successive judge's ability to revisit discretionary, interlocutory decisions made by prior judges.

As traditionally applied, the law of the case doctrine says that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. The doctrine is designed to promote finality and prevent re-litigation of previously decided issues.

The 10th Circuit, however, has refused to apply this doctrine to prevent a trial judge from revisiting rulings prior to entry of final judgment, the appellate panel said. The same holds true even when the case is reassigned from one judge to another. “The doctrine does not bind a judge to follow rulings in the same case by another judge of coordinate jurisdiction as long as prejudice does not ensue to the party seeking the benefit of the doctrine,” the court explained.

Rimbert urged the 10th Circuit to adopt the approach taken by the 7th Circuit, where judges are precluded from revisiting interlocutory rulings that are discretionary in nature. Discretionary decisions should be treated differently, Rimbert argued, because they can be reviewed only for abuse of discretion. In those circumstances, he contended, revisiting the initial decision allows an unfair second bite of the apple with potentially no recourse on appeal.

But the 10th Circuit declined to go the way of the 7th, concluding that its own prior precedent was controlling and allowed the second judge to revisit even the discretionary rulings of the first. “Rimbert's argument that law of the case should apply in these circumstances has already been considered and rejected by this court,” the panel said.

In what might be considered the dénouement to the tragic story of this case, the 10th Circuit concludes its analysis by pointing to the arguments that the plaintiff could have but did not raise on appeal.

“Notably, Rimbert makes no argument on appeal that the substance of the second judge's Daubert ruling, i.e., excluding the testimony of Rimbert's expert, constitutes an abuse of discretion,” the court notes. “Rimbert also does not argue that he was denied notice or the opportunity to be heard such that the second judge's reconsideration of the prior ruling prejudiced his procedural rights.”

Was the court suggesting that, had he raised those arguments, his appeal might have succeeded? The answer to that question will remain forever unknown.

Rimbert v. Eli Lilly and Company, No. 09-2307 (Aug. 3, 2011).

Tell us: Do you think Rimbert would have had a better chance arguing one of the other two points?

Robert Ambrogi Esq

Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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