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April Krueger, Individually and On Behalf v. Wyeth

August 22, 2012


The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge


Before the Court is Defendants' motion to strike the reports of Drs. Papperman and McCorvey designated as rebuttal experts by Plaintiff. (ECF No. 181). The motion was filed on July 5, 2012. Plaintiff responded on July 18, 2012. (ECF No. 186). Plaintiff replied on July 23, 2012. (ECF No. 187). Defendants assert that the reports of Drs. Papperman and McCorvey are not "rebuttal reports" within the meaning of Fed.R.Civ.P. 26(a)(2)(D)(ii) and are untimely as initial reports pursuant to the scheduling order governing this case. (ECF No. 152). Plaintiff claims that the reports of Drs. Papperman and McCorvey rebut the testimony of defense experts Drs. Arias, Goldman, Nelson and Policar.

In particular, Plaintiff asserts that Drs. Arias, Goldman, Nelson and Policar maintain active obstetrics and gynecological medical practices and offered opinions based upon their clinical experience. Plaintiff did not initially designate any physicians practicing in obstetrics and gynecology as experts. Plaintiff claims that Drs. Papperman and McCorvey are practicing physicians in obstetrics and gynecology and offer opinions different from Defendants' experts. Defendants counter that Dr. Papperman's primary report and Dr. McCorvey's report were prepared months before the disclosure of Defendants' expert reports and, consequently, cannot be said to rebut opinions offered in reports that had not yet been disclosed. Plaintiff requests that in the event the Court finds the proffered reports to not properly be rebuttal evidence, that Plaintiff should be given relief from the scheduling order and be allowed to designate these reports as initial reports at this time.


In this litigation, Plaintiff alleges Defendants' advertising campaign misrepresented the benefits and failed to disclose the risks of its hormone replacement drugs during the class period. The underlying class action complaint was filed in this district on December 12, 2003. (Doc. No. 1). On March 20, 2004, the Judicial Panel on Multidistrict Litigation transferred this case to the Eastern District of Arkansas for coordinated pretrial proceedings. (Doc. No. 6). On March 20, 2007, after that court declined to certify a multi-state class of consumers alleging consumer fraud and seeking medical monitoring for any future injuries that arise from their use of Prempro, it remanded Plaintiff's case to this district. (Doc. No. 9).

Back in this court, Plaintiff moved to certify a class on May 14, 2007. (Doc. No. 15). That motion was denied without prejudice on February 19, 2008. (Doc. No. 44). On March 4, 2008, Plaintiff moved to stay all proceedings pending the outcome of certain litigation pending before the California Supreme Court. (Doc. No. 47). The stay was granted, ultimately, until July 31, 2009. (Doc. Nos. 52, 58). On January 7, 2010, Plaintiff again moved for class certification. (Doc. No. 61). That motion was granted in part and denied in part on March 30, 2011. (Doc. No. 108). A motion for reconsideration was denied on July 13, 2011. (Doc. No. 122). The Court of Appeals for the Ninth Circuit declined permission to appeal the class certification order on October 18, 2011. (Doc. No. 124).

The class, as certified by the District Court is:

All California consumers who purchased Wyeth's Hormone Replacement Therapy products, Premarin, Prempro, and/or Premphase, for personal consumption between January 1995 and January 2003, and were exposed to a representation from Wyeth, or health care providers, or read in literature in which Wyeth advertised or provided to third parties to be disseminated under its brand or the third parties' brand, that Premarin, Prempro, and/or Premphase lowered cardiovascular, Alzheimers and/or dementia risk, or did not increase breast cancer risk, and do not seek personal injury damages resulting therefrom.

Summary of Arguments and Relevant Expert Opinions Rule 26(a)(2)(D) governs the time within which parties must disclose expert testimony. Evidence intended solely to contradict or rebut evidence on the same subject matter identified by another party must be made within thirty days after the other party's disclosure. Rule 26(a)(2)(D)(ii). The scheduling order in the instant case provided for staged expert disclosures. (ECF No. 152). The expert reports at issue here pertain to non-economic damages. Initial expert disclosures of this type were required to be exchanged no later than May 9, 2012. Disclosures of contradictory or rebuttal evidence pertaining to non-economic damages were required by June 8, 2012. (Id.). The instant disclosures were made on June 8, 2012, and are timely if they are proper rebuttal.

Defendants' primary argument is that the proffered rebuttal reports cannot be such because they were prepared approximately six months before the initial reports were disclosed. Hence, say Defendants, there was nothing produced by Defendants at that time to rebut. The Court agrees that Plaintiff has a harder road to show that these reports are properly offered in rebuttal when the opinions that they allegedly rebut had not yet been offered. Nonetheless, the question is not when the reports at issue were penned, it is whether they "contradict or rebut evidence on the same subject matter." Rule 26(a)(2)(D)(ii). See also Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Hawai'i 2008).

Plaintiff's primary argument that the proffered reports are proper rebuttal is that the experts identified by Defendants are physicians who practice obstetrics and gynecology and offer opinions based upon their clinical practices. Plaintiff claims that the reports of Drs. Papperman and McCorvey, although penned earlier, nevertheless constitute proper rebuttal because their opinions are inconsistent with those of Defendant's experts and based upon the same experiential matrix as Defendants' experts. Plaintiff's initial experts, according to Plaintiff, could not offer opinions based upon their clinical practices.

The parties' experts disagree regarding the nature and extent of the risks of breast cancer posed by Defendants' products as well as the risks and benefits of those products regarding the prevention and treatment of osteoporosis, cardiovascular disease and cognitive function. Of significance here are the competing opinions regarding the veracity and adequacy of the information provided by Defendants to physicians and patients and the extent to which physicians and patients relied on allegedly false and misleading information.

Plaintiff's Initial Experts

Plaintiff included in its initial disclosures the report of Dr. Patsner whose practice included obstetrics and gynecology. Dr. Patsner's practice evolved into gynecological oncology until he retired from full-time surgical practice in 2000. Dr. Patsner, among other things, opined, "Physicians depend directly on pharmaceutical companies for the most accurate, balanced and thorough information about the safety ...

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