Isaac Owens v. Auxilium Pharmaceuticals, Inc. ( 2018 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 17-3416
    ISAAC OWENS,
    Plaintiff-Appellant,
    v.
    AUXILIUM PHARMACEUTICALS, INC.,
    Defendant-Appellee.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 14 C 5180 — Matthew F. Kennelly, Judge.
    ____________________
    ARGUED MAY 15, 2018 — DECIDED JULY 19, 2018
    ____________________
    Before BAUER, KANNE, and HAMILTON, Circuit Judges.
    KANNE, Circuit Judge. Isaac Owens used Testim, a topical
    gel containing 1% testosterone, sporadically for two years.
    During this time, he developed deep vein thrombosis. He
    sued Testim’s manufacturer, alleging that the drug caused the
    condition. To show causation—a necessary element of all of
    his claims—Owens planned to rely on the testimony of Dr. Ji-
    had Abbas. The district court excluded Dr. Abbas's testimony
    and, as a result, granted summary judgment in favor of the
    2                                                    No. 17-3416
    drug manufacturer. Owens appeals the district court’s deci-
    sion to exclude his expert’s testimony and grant summary
    judgment. We affirm.
    I. BACKGROUND
    Owens developed deep vein thrombosis (“DVT”) while
    using Testim, a drug manufactured by the defendant–Auxil-
    ium Pharmaceuticals, LLC. He and other plaintiffs in a multi-
    district litigation allege that they suffered injuries because
    they took Testim and other testosterone-replacement-therapy
    drugs. Owens’s case was selected for a bellwether trial in the
    multidistrict litigation.
    Owens began using Testim in July 2011 when his doctor
    diagnosed him with hypogonadism. Between July 2011 and
    July 2013, Owens used the drug sporadically. He refilled his
    prescription only three times, so he did not have enough of
    the drug to take a full daily dose during the time period.
    When Owens did use Testim, he did so incorrectly. Although
    the medication guide directs users to apply a full tube of Tes-
    tim to the shoulders and arms, Owens testified that he would
    apply part of a tube to his thighs and stomach.
    On July 12, 2013, Owens was admitted to a hospital’s
    emergency department for pain in his left leg. After an ultra-
    sound revealed blood clots in his leg, he was diagnosed with
    DVT. Owens was treated with blood thinners and released
    from the hospital the following day.
    In his suit, Owens alleges that Testim caused the DVT and
    asserts claims for strict liability, negligence, fraud, and negli-
    gent misrepresentation under Kentucky law. Each of these
    claims requires expert testimony to establish causation. In re
    Testosterone Replacement Therapy Prod. Liab. Litig. Coordinated
    No. 17-3416                                                      3
    Pretrial Proceedings, No. 14 C 1748, 
    2017 WL 4772759
    , at *6
    (N.D. Ill. Oct. 23, 2017) (citing Adams v. Cooper Indus., Inc., No.
    CIV.A. 03-476-JBC, 
    2012 WL 2339741
    , at *1 (E.D. Ky. June 19,
    2012)). For that, Owens planned to rely on the testimony of
    Dr. Abbas. But Dr. Abbas’s testimony was problematic. Alt-
    hough Dr. Abbas opined that Testim had caused Owens’s
    DVT, he did so on the assumption that Owens was applying
    the prescribed dose of the gel in the proper manner. Moreo-
    ver, when asked during his deposition about hypothetical
    cases that resembled Owens’s use of Testim, Dr. Abbas ex-
    plained that he had no opinion.
    Auxilium moved to exclude Dr. Abbas’s testimony be-
    cause it was not tied to the facts of the case. It also moved for
    summary judgment because, without the expert testimony,
    Owens could not show that Testim caused his injury. The dis-
    trict court agreed and granted summary judgment to Auxil-
    ium. Owens appealed.
    II. ANALYSIS
    This appeal centers on the district court’s exclusion of Dr.
    Abbas’s testimony, which Owens argues was improper. Fed-
    eral Rule of Evidence 702 and Daubert v. Merrell Dow Pharma-
    ceuticals, Inc., 
    509 U.S. 579
    (1993) govern this decision. In rele-
    vant part, they require that the expert’s testimony “assist the
    trier of fact.” Ammons v. Aramark Unif. Servs., Inc., 
    368 F.3d 809
    , 816 (7th Cir. 2004) (quoting NutraSweet Co. v. X-L Eng'g
    Co., 
    227 F.3d 776
    , 788 (7th Cir. 2000)). To do so, the testimony
    must “fit the issue to which the expert is testifying and be tied
    to the facts of the case.” Hartman v. EBSCO Indus., Inc., 
    758 F.3d 810
    , 819 (7th Cir. 2014) (quoting Deimer v. Cincinnati Sub-
    Zero Prods., Inc., 
    58 F.3d 341
    , 345 (7th Cir. 1995)). When there
    4                                                   No. 17-3416
    is no question that the district court properly followed Daub-
    ert’s framework—as is the case here—we consider whether
    the district court abused its discretion by excluding the testi-
    mony. Durkin v. Equifax Check Servs., Inc., 
    406 F.3d 410
    , 420
    (7th Cir. 2005).
    Here, the district court properly exercised its discretion by
    concluding that Dr. Abbas’s testimony did not fit the facts of
    Owens’s case. Dr. Abbas testified that Testim caused Owens’s
    DVT on the assumption that Owens used Testim as pre-
    scribed. This in fact was not the case. Owens instead testified
    that he used far less than the prescribed dose and that he did
    not apply the medication as directed. When presented hypo-
    theticals that more closely resembled the facts of Owens’s
    case, Dr. Abbas conceded that he could not offer an opinion.
    Because Dr. Abbas’s testimony did not fit the facts of the case,
    it was not likely to “assist the trier of fact to understand the
    evidence or to determine a fact in issue.” Ervin v. Johnson &
    Johnson, Inc., 
    492 F.3d 901
    , 904 (7th Cir. 2007).
    Of course, some questions regarding an expert’s use of
    faulty assumptions or data should be left to a jury. See, e.g.,
    Stollings v. Ryobi Techs., Inc., 
    725 F.3d 753
    , 765–67 (7th Cir.
    2013) (quality of testimony and soundness of factual basis are
    questions for jury; debatable input to expert’s model was an
    “arguable limitation” of his opinion, not an error rendering it
    irrelevant). But whether an expert’s approach lines up with
    the basic facts of the case goes to the relevance and admissi-
    bility of the testimony itself. Gatekeeping of this sort is
    properly left to the court. Dr. Abbas’s lack of familiarity with
    the case did not simply affect the certainty of his conclusion.
    It meant that he was giving an opinion about a hypothetical
    high-risk patient using Testim as directed, not Owens who we
    No. 17-3416                                                    5
    know did not use it as directed. The district court therefore
    did not abuse its discretion by excluding the testimony. Hart-
    
    man, 758 F.3d at 819
    ; 
    Deimer, 58 F.3d at 345
    ; Porter v. Whitehall
    Labs., Inc., 
    9 F.3d 607
    , 616 (7th Cir. 1993).
    Owens takes issue with this analysis for two reasons. Nei-
    ther is persuasive. First, he argues that the district court
    should not have excluded Dr. Abbas’s testimony because—in
    Owens’s view—deposition testimony suggests that he used
    full doses of Testim in the days leading up to his DVT. By
    Owens’s estimation, this inference is justified because:
    •   the prescribing doctor noted that Owens had not been
    using the full dose when filling the Testim prescription
    in July 2013;
    •   the doctor testified that he would have instructed a pa-
    tient using Testim incorrectly on how to use it cor-
    rectly; and
    •   Owens testified that he trusted the doctor and gener-
    ally followed his advice.
    This is hardly a set of facts that would lead us to conclude
    that the district court abused its discretion. In fact, Owens put
    the matter to rest during his deposition when he explained
    that he continued to apply less than half a full dose per day
    after his July appointment.
    Second, Owens argues that he at least used a “therapeutic
    dose” and contends that Dr. Abbas’s testimony was not based
    on the assumption that he used a full dose, but rather a “ther-
    apeutic dose.” But Owens raises this argument for the first
    time on appeal, so we do not consider it. Hale v. Chu, 
    614 F.3d 741
    , 744 (7th Cir. 2010) (“A party waives the right to argue an
    6                                                  No. 17-3416
    issue on appeal if he fails to raise that issue before the trial
    court”).
    III. CONCLUSION
    The district court properly applied the Daubert framework
    when excluding Dr. Abbas’s testimony. It did not abuse its dis-
    cretion by concluding that the testimony did not fit the facts
    of Owens’s case. It also did not abuse its discretion by failing
    to consider an argument Owens never presented. Without ex-
    pert testimony on causation, Owens’s claims necessarily fail.
    We therefore AFFIRM the judgment of the district court.