In one sense, the decision in Sadler v. Advanced Bionics, LLC, 2013 U.S. Dist. LEXIS 47964, (W.D. Ky. Apr. 3, 2013), is a mixed bag (we said that last week about the court’s in limine decisions as well).  The defense moved to exclude the testimony of the plaintiff’s FDA expert in many areas and didn’t win on a lot of them.  But, mixed bag or not, the defendant seems to have won the important ones. 

Before we get to that, we’ll note that the plaintiff’s FDA expert is not Dr. Parisian.  See, plaintiffs can use other FDA experts.  And this one actually has more than a few years of FDA experience.  He was in the compliance office of the FDA’s devices center for nearly 30 years and was actually promoted to a senior position.  And he is actually seeking to give an opinion in the area in which he worked at the FDA – device regulation.  Id. at *7-8. 

That said, his proposed testimony had some of the same problems that we often see with Dr. Parisian.  Specifically, he wanted to give legal conclusions, tell the jury what the defendant’s motives were, and give narrative testimony about documents.  The defense moved to exclude all of that and, for the most part, won.  Here’s what the court said as to why:

[T]estimony by an expert that Defendant acted "recklessly" or "illegally," to the extent that testimony expresses a legal conclusion, is inadmissible. And terms such as "recklessly," "disturbingly," "callously," and "unconscionably" connote the sort of inadmissible personal opinion that falls beyond the proper scope of an expert's testimony. These terms also carry some personal opinion regarding Defendant's intent or motive, which is likewise inadmissible.  Thus, to the extent [the expert’s] use of those terms constitutes a legal conclusion or an impermissibly subjective personal opinion, such testimony is excluded. . . .

To the extent [the expert]  proposes to testify using these terms in a way that expresses a purely legal conclusion or a personal opinion beyond the proper scope of expert testimony, such testimony is inadmissible. . . . [The expert]  shall not use terms such as "adulterated," "defective," "unconscionably," "recklessly," or "illegally" at trial.

Id. at *13-14, *21 (citations omitted). 

Good.  The expert isn’t a mind reader, legal scholar or the jury.

On the other hand, the court is allowing narrative testimony, meaning story-telling testimony in which the expert reads and summarizes (as he sees it) company document after company document that he neither wrote nor received.  Id. at *11-12.  We think (or hope), though, that the court’s exclusion of any testimony about what the defendant or its employees were thinking or intending with those documents, or what legal conclusions might be drawn from them, will limit the impact – and prejudice – of such narrative testimony.

The court also denied the defendant’s motion to exclude the expert’s testimony in a number of substantive areas, including testing designs and protocols, tracking and trending (of adverse events, we suppose), vendor selection and monitoring, and causation.  Id. at *15-21.  The court’s opinion provides little of the back-and-forth between the parties on these issues, however, so we really can’t comment.  We will comment, however, on two of the qualifications that the court gave to its rulings on motives and legal conclusions testimony.

 First, the court said that, although the expert couldn’t give a legal conclusion that the product was “defective,” he might be able to describe it as defective in the common, universal or everyday meaning of that word.  Id. at *20.  We have no idea what that distinction means in a product liability trial.  All we can be sure of is that, with this ruling, plaintiffs’ expert will try to use that word a lot, and there will be an awful lot of sidebars at trial. 

Second, the court held open the possibility that the defense could open the door to motive or intent testimony from this expert depending on how it presents its “good faith” and “learned intermediary” defenses.  Id. at *14.  We don’t get this at all.  The expert’s motive or intent opinions are excluded because they are improper, not irrelevant.  No matter what evidence the defendant presents on good faith or warning, the FDA expert won’t become The Long Island Medium or Arthur Miller.  (Yeah, we know that she’s a medium, not a psychic.)  Sure, the defense’s evidence might open the door to evidence from the plaintiff that otherwise might have been inadmissible.  But the expert still won’t be qualified to read the company’s mind or do the jury’s job.  No matter what door is opened, the expert wont be transformed into something that he’s not. 

We’ll say this about the ruling.  The court gave its qualification very cautiously, stating that the plaintiffs’ argument wasn’t “entirely clear.”  Accordingly, the court only authorized plaintiffs to approach at a sidebar to make their argument if they think that a door was somehow opened.  So this issue may still go the right way at trial.Regardless, it’ll be nice to simply hear from someone other than Dr. Parisian.