Susan Orrell v. Astrazeneca Pharmaceuticals Lp , 662 F. App'x 528 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: NEXIUM ESOMEPRAZOLE No. 14-56845
------------------------------ D.C. No.
2:12-ml-02404-DSF-SS
SUSAN ORRELL, et al.,
Plaintiffs-Appellants, MEMORANDUM*
v.
ASTRAZENECA PHARMACEUTICALS
LP, et al.,
Defendants-Appellees.
In re: NEXIUM ESOMEPRAZOLE, No. 15-56484
------------------------------ D.C. No.
2:12-ml-02404-DSF-SS
JANICE ALLEN, et al.,
Plaintiffs-Appellants,
v.
ASTRAZENECA PHARMACEUTICALS
LP, et al.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 20, 2016**
Pasadena, California
Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.
Plaintiffs in this MDL proceeding filed product liability claims against
AstraZeneca alleging that the drug Nexium caused plaintiffs’ reduced bone mineral
density and related fractures. Nexium is an FDA-approved medication marketed
and sold by AstraZeneca. Nexium belongs to a class of drugs called proton-pump
inhibitors (PPIs), which “work by reducing the amount of acid in the stomach.”
The plaintiffs designated orthopedic surgeon Dr. Sonny Bal as their
general-causation expert, produced his expert report, and made him available for a
deposition. The plaintiffs offered no other general-causation evidence. The
defendants moved to exclude Dr. Bal’s testimony and for summary judgment.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
2
The district court ruled Dr. Bal’s testimony did not satisfy the standard
required by Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and granted summary judgment for
the defendants. The district court denied plaintiffs’ motion to be relieved entirely
from costs under Federal Rule of Civil Procedure 54(d)(1). We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
1. “We review the district court’s decision to exclude expert scientific
testimony for abuse of discretion, even in the context of a summary judgment
motion.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1227 (9th Cir. 1998) (citing
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). “Establishing that an expert’s
proffered testimony grows out of pre-litigation research or that the expert’s
research has been subjected to peer review are the two principal ways the
proponent of expert testimony can show that the evidence satisfies the [reliability]
prong of Rule 702.” Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1318
(9th Cir. 1995). “[I]f these guarantees of reliability are not satisfied, the expert
‘must explain precisely how he went about reaching his conclusions and point to
some objective source to show that he has followed the scientific method, as it is
practiced by (at least) a recognized minority of scientists in his field.’” Lust ex rel.
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Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996) (internal
alterations omitted) (quoting Daubert, 43 F.3d at 1319).
Dr. Bal formed his general-causation opinion for the purposes of this
litigation and his causal theory was not subjected to peer review. In order to serve
as an expert in this case, Dr. Bal reviewed thirteen references. In his three-page
expert report, Dr. Bal discussed the materials he reviewed and explained his
opinion that there are three ways in which PPI use could contribute to an increased
fracture risk. But Dr. Bal did not adequately explain how he inferred a causal
relationship from epidemiological studies that did not come to such a conclusion
themselves. “When a scientist claims to rely on a method practiced by most
scientists, yet presents conclusions that are shared by no other scientist, the district
court should be wary that the method has not been faithfully applied.” Lust, 89
F.3d at 598.
At best, Dr. Bal analyzed three of the nine Bradford Hill factors that guide
scientists in drawing causal conclusions from epidemiological studies. See
Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 17 (1st Cir. 2011)
(citing Arthur Bradford Hill, The Environment and Disease: Association or
Causation?, 58 PROC. ROYAL SOC’Y MED. 295 (1965)). We agree with the district
court that Dr. Bal’s analysis of the factors he did discuss was “extremely thin.”
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For example, at his deposition, Dr. Bal explained “a causal relationship can be
inferred because of a number of studies that seem to point the same way.” But Dr.
Bal admitted that the meta-analyses he relied on found “significant heterogeneity
among the studies that they pooled,” indicating that the underlying studies “are all
over the map.” Dr. Bal also acknowledged that one of the meta-analyses he relied
on warned that its results must be interpreted with “caution” in part because of this
heterogeneity. Dr. Bal did not explain how he came to a different conclusion than
the studies’ authors, or how this heterogeneity affected his causal conclusion.
The district court did not abuse its discretion in excluding Dr. Bal’s
testimony as unreliable. Because the district court properly excluded this
testimony, and the plaintiffs offered no other evidence on general causation, the
district court correctly granted summary judgment to the defendants.
2. We also review the district court’s award of costs for abuse of discretion.
Miles v. California, 320 F.3d 986, 988 (9th Cir. 2003). Federal Rule of Civil
Procedure 54(d)(1) “creates a presumption for awarding costs to prevailing parties;
the losing party must show why costs should not be awarded.” Save Our Valley v.
Sound Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). Only “in the rare occasion
where severe injustice will result from an award of costs” does a district court
abuse its discretion “by failing to conclude that the presumption has been
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rebutted.” Id. at 945. This is not such a case. The district court did not abuse its
discretion in awarding costs to the defendants as prevailing parties under Rule
54(d)(1).
Costs of this appeal shall be awarded to the appellees.
AFFIRMED.
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