United States District Court, E.D. Pennsylvania
LIZA VALIDO-SHADE, et al.
WYETH LLC, et al
Decided: October 31, 2014.
For LIZA VALIDO-SHADE, TIM SHADE, W/H, Plaintiffs: JAMES D. SILL, LEAD ATTORNEY, TIMOTHY M. BUNSON, SILL LAW GROUP, EDMOND, OK; THOMAS R. KLINE, LEAD ATTORNEY, LEE B. BALEFSKY, KLINE & SPECTER, PHILADELPHIA, PA.
For WYETH, LLC, WYETH PHARMACEUTICALS, INC., WYETH-AYERST INTERNATIONAL, INC., Defendants: ROBERT A. LIMBACHER, LEAD ATTORNEY, BRANDON L. GOODMAN, Goodell, DeVries, Leech & Dann LLP, Philadelphia, PA; ERIC K. BLUMENFELD, HUGHES HUBBARD & REED LLP, JERSEY CITY, NJ; JAMES A. FREDERICK, GOODELL DEVRIES LEECH & DANN LLP, BALTIMORE, MD; KEVIN A. CLINE, ARNOLD & PORTER LLP, WASHINGTON, DC; MICHAEL D. TIGER, HUGHES HUBBARD & REED, NEW YORK, NY.
MEMORANDUM IN SUPPORT OF SEPARATE PRETRIAL ORDER NO. 9368
Harvey Bartle, III, J.
Plaintiffs Liza Valido-Shade and her husband Tim Shade have sued defendant Wyeth for damages they have allegedly sustained as a result of her ingestion of Wyeth's diet drugs known as Pondimin ® and Redux[TM] (" Fen-Phen" ). The action was originally filed in the Court of Common Pleas of Philadelphia County and timely removed to this court on the basis of diversity of citizenship. According to plaintiffs, Valido-Shade took the drugs for a number of months in 1996 and 1997 and was diagnosed in 2010 with pulmonary arterial hypertension (" PAH" ), a debilitating and incurable condition. Whether she suffers from PAH and if so whether Wyeth's diet drugs caused her PAH after such a long latency period is hotly disputed.
Wyeth has now filed a Daubert motion and a motion for summary judgment. Wyeth argues that the testimony of plaintiffs' case-specific causation experts, Lewis Rubin, M.D. and Laurence A. Berarducci, M.D. should be excluded and that without this testimony Wyeth is entitled to summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
We note at the outset that Dr. Berarducci stated at his deposition that he does not disagree with anything Dr. Rubin stated at his deposition. Consequently, if Dr. Rubin's testimony is excluded, the testimony of Dr. Berarducci should be excluded.
Plaintiffs are members of the Nationwide Class Action Settlement Agreement (" Settlement Agreement" ) involving diet drugs which was approved by the court in Pretrial Order (" PTO" ) No. 1415. As part
of the Settlement Agreement, claims involving primary pulmonary hypertension (" PPH" ), the former name for PAH, are excluded from the definition of settled claims. The Settlement Agreement contains a detailed definition of PPH. Settlement Agreement § I.46. Those claiming PPH or PAH may sue Wyeth in the tort system. Settlement Agreement § § I.46, I.53, VII. B. 4, VI.B.5.
In Cheek v. Wyeth (In re Diet Drugs), 890 F.Supp.2d 552 (E.D. Pa. 2012), another PAH case, this court faced the question of the admissibility of the expert testimony of Dr. Rubin and Dr. Stuart Rich that diet drugs can cause an individual to develop PPH eleven years after that individual discontinued use of the drugs. In exercising our gate keeping function, we concluded that plaintiffs had met the requirements of qualification, reliability, and fit under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Rule 702 of the Federal Rules of Evidence. We noted that it would be up to the jury to decide whether to accept the opinions of Drs. Rubin and Rich or those of Wyeth's experts to the contrary. In contrast, we face here Dr. Rubin's case-specific testimony on causation as it relates to Valido-Shade.
Dr. Rubin's case-specific testimony ties the 2010 diagnosis of Valido-Shade's PAH to her ingestion of Wyeth's diet drugs many years earlier in 1996 and 1997. Wyeth, however, argues that Dr. Rubin's testimony should be excluded and relies ...