Okuda v. Wyeth, et al, No. 1:2004cv00080 - Document 231 (D. Utah 2012)

Court Description: MEMORANDUM DECISION AND ORDER granting in part and denying in part 97 Motion to Exclude Opinions of Plaintiff's Experts Drs. Parisian, Blume and Austin. Signed by Judge David Nuffer on 7/6/12 (alt)
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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION TOSHIKO OKUDA, Plaintiff, vs. PFIZER INC., et al., MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO EXCLUDE OPINIONS OF PLAINTIFF S EXPERTS DRS. PARISIAN, BLUME AND AUSTIN Defendants. Case No. 1:04-cv-00080 District Judge David Nuffer On June 18 and 19, 2012, pursuant to notice, the Court heard oral argument on Defendants Motion to Exclude Opinions of Plaintiff s Experts Drs. Parisian, Blume and Austin (Docket No. 97). Plaintiff was represented by James Esparza, Russell T. Abney and James Lampkin. Defendants were represented by Heidi K. Hubbard, Kelly A. Evans and Tracy H. Fowler. Having considered all of the moving papers and the arguments of counsel, the Court rules as follows: IT IS HEREBY ORDERED that Defendants motion (Docket No. 97) is GRANTED IN PART AND DENIED IN PART, as follows: 1. Drs. Parisian and Blume may testify generally as to the Food and Drug Administration s processes for drug approval, the regulatory history of hormone replacement therapy, and the adequacy of warnings provided by defendants concerning breast cancer risks in light of the information contemporaneously available. 2. Drs. Parisian, Blume, and Austin also may testify regarding tests that could have been done to further investigate the potential link between the E&P therapy and breast cancer. 3. Drs. Parisian, Blume, and Austin may not testify regarding the testing defendants should have done. Plaintiff has presented no objective standard for the testing that should have 15330858.4 been done. The testimony of Wyeth s officers cited by Plaintiff does not create an enforceable standard or demonstrate an industry standard. The Plaintiff has not demonstrated by FDA regulations, which Dr. Parisian cited, that there is a duty to test in those regulations. Similarly, Plaintiff has not demonstrated that the FDA guidance documents create an objective standard or requirement of testing. The marketing code, the Pharma code, does not establish a requirement for testing that creates something that would be a sufficient support for Parisian, Blume, and Austin s testimony. Moreover, they have not demonstrated that their specific experience forms the basis for establishing post-approval testing duties that they claim exist. 4. Nor may Drs. Parisian, Blume, and Austin testify regarding defendants intent or motives. Dated July 6, 2012. BY THE COURT: ____________________________ David Nuffer United States District Judge Submitted by: /s/ Tracy H. Fowler Tracy H. Fowler SNELL & WILMER LLP 15 West South Temple, Suite 1200 Gateway Tower West Salt Lake City, Utah 84101-1004 Attorneys for Defendants /s/ Kelly A. Evans Kelly A. Evans SNELL & WILMER LLP 3882 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169-5958 Admitted Pro Hac Vice Attorneys for Defendants 2 15330858.4 /s/ Heidi K. Hubbard Heidi K. Hubbard WILLIAMS & CONNOLLY 725 Twelfth Street, NW Washington, D.C. 20005 Admitted Pro Hac Vice Attorneys for Defendants Signed Approval as to Form: /s/ James Esparza (Signed with permission) James Esparza 1434 East 4500 South, Suite 100 Salt Lake City, UT 84117 Attorney for Plaintiff /s/ James W. Lampkin, II (Signed with permission) James Wayne Lampkin, II Russell T. Abney BEASLEY ALLEN CROW & METHVIN PORTIS & MILES PC 218 Commerce Street Montgomery, AL 36104 Attorney for Plaintiff 3 15330858.4