United States District Court, C.D. California
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For Deborah Stanley, Plaintiff: Elizabeth R Odette, PRO HAC VICE, Lockridge Grindal Nauen PLLP, Minneapolis, MN; Jeffrey C Bogert, Jeffrey C Bogert Law Offices, Santa Monica, CA; John A Girardi, Molly B Weber, Girardi Keese, Los Angeles, CA; John J Vecchione, PRO HAC VICE, John J Vecchione Law PLLC, Fairfax, VA; Mel Ira Burman Powell, Powell Law Firm, Beverly Hills, CA.
For Novartis Pharmaceuticals Corporation, Defendant: James M Sullivan, LEAD ATTORNEY, Katharine R Latimer, PRO HAC VICE, Hollingsworth LLP, Washington, DC; Amy R Fiterman, PRO HAC VICE, Faegre Baker Daniels LLP, Minneapolis, MN; Brent G Cheney, Natasha N Dawood, Richard A Clark, Parker Milliken Clark O'Hara and Samuelian APC, Los Angeles, CA; Christine R M Kain, James A O'Neal, PRO HAC VICE, Faegre and Benson LLP, Minneapolis, MN.
ORDER [Motions filed November 18, 2013]
Jesus G. Bernal, United States District Judge.
Before the Court is a Motion Summary Judgment, a Motion to Exclude Testimony of Plaintiff's Case-Specific Experts, and a Motion for Daubert Evidentiary Hearing filed by Defendant Novartis Pharmaceuticals Corporation. (Doc. Nos. 55, 61, 63.) After considering the papers in support of and in opposition to the motion and arguments presented at the January 6, 2014 hearing, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion to Exclude Testimony of Plaintiff's Case-Specific Experts (Doc. No. 61), DENIES IN PART Defendant's Motion for Daubert Evidentiary Hearing (Doc. No. 63), and GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment (Doc. No. 55).
I. PROCEDURAL HISTORY
Plaintiff Deborah Stanley (" Plaintiff" ) filed a Complaint against Defendant Novartis
Pharmaceuticals Corporation (" Defendant" or " Novartis" ) on April 14, 2011, alleging claims for strict liability, negligence - negligent manufacture, negligence - failure to warn, breach of express warranty, and breach of implied warranty. (Doc. No. 1.) On August 6, 2011, Plaintiff moved to transfer this case to the MDL court for pretrial proceedings. (Doc. No. 11.) The Panel on Multidistrict Litigation denied the transfer motion on December 15, 2011. (Doc. No. 19.)
On February 8, 2012, Novartis moved to stay the action for the remainder of 2012, arguing that developments in other cases involving Zometa and Aredia, including those that were part of the MDL, would assist in the efficient resolution of this action. (Doc. No. 27.) The Court (Morrow, J.) denied the Motion to Stay on April 13, 2012. (Doc. No. 36.)
On November 15, 2013, the Parties stipulated to the dismissal of Plaintiff's claims for manufacturing defect (part of Plaintiff's strict liability claim), negligent manufacturing, and breach of express warranty. (Doc. No. 50.) On November 18, 2013, Defendant filed a Motion for Summary Judgment (" MSJ," Doc. No. 55), attaching:
o Declaration of Brent G. Cheney (" Cheney Decl.," Doc. No 55-2), which attests to Exhibits 1-48  (Doc. No. 55-3), and\
o Statement of Undisputed Material Facts (" SUF," Doc. No. 56-1).
On December 2, 2013 and December 3, 2013, Plaintiff filed an Opposition (Doc. No. 84), attaching:
o Declaration of John A. Girardi (" Girardi Decl.," Doc. No. 85), which attests to Exhibits 1-26 (Doc. Nos. 85-1 - 85-26);
o Declaration of Deborah Stanley (" Stanley Decl.," Doc. No. 88);
o Declaration of Eric Sung (" Sung Decl.," Doc. No. 89); and
o Statement of Genuine Disputes (" SGD," Doc. No. 83).
On December 9, 2013 Defendant replied (Doc. No. 98), attaching:
o Declaration of Brent G. Cheney (" Cheney Decl. iso Reply," Doc. No. 98-1), which attests to Exhibits 1-4, and
o Evidentiary Objections and Responses to Plaintiff's SGD (Doc. No. 99).
On November 18, 2013, Defendant also filed a related Motion to Exclude Testimony of Plaintiff's Case Specific Experts (" Motion to Exclude," Doc. No. 61) and a Motion for a Daubert Evidentiary Hearing (Doc. No. 63).
On December 2, 2013 and December 3, 2013, Plaintiff opposed the Motion to Exclude and Motion for a Daubert Hearing (Doc. Nos. 82, 86.)
Defendant replied on December 9, 2013. (Doc. No. 97, 100.)
II. LEGAL STANDARD 
A. Motion for Summary Judgment
A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must show that " under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.
Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears the initial burden of identifying the elements of the claim or defense and evidence that it believes demonstrates the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
When the non-moving party has the burden at trial, however, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case.
Celotex, 477 U.S. at 325. Instead, the moving party's burden is met by pointing out there is an absence of evidence supporting the non-moving party's case. Id.
The burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed.R.Civ.P. 56(e);
Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters placed in issue by the motion as to which it has the burden of proof at trial.
Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252; see also William W. Schwarzer, A. Wallace Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial, 14:144. " This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Anderson, 477 U.S. at 252). " The non-moving party must do more than show there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle, 627 F.3d at 387 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
A genuine issue of material fact exists " if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
B. Motion to Exclude Expert Testimony
Expert witness testimony is governed by Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Rule 702 should be applied consistent with the " liberal thrust" of the Federal Rules and their " general approach
of relaxing the traditional barriers to 'opinion testimony'." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)). A trial court's " gatekeeping" obligation to admit only expert testimony that is both reliable and relevant is especially important " considering the aura of authority experts often exude, which can lead juries to give more weight to their testimony." Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063-64 (9th Cir. 2002). Nevertheless, " [s]haky but admissible evidence is to be attacked by cross ...