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Florida Federal Court Excludes “Advocate” Expert’s Testimony

By Brian A. Zemil, Litigation News Associate Editor – June 30, 2010

In a recent order, a federal district court has added to the ongoing debate about how expert witnesses can properly assist fact-finders, remain credible, and help litigants without crossing the line into impermissible advocacy.

Opinion or Advocacy?
As part of the In re Trasylol Products Liability Litigation MDL pending in the U.S. District Court for the Southern District of Florida, the district court entered an order [PDF] excluding the opinions of a regulatory expert, characterizing the witness as an “advocate.”

The In re Trasylol plaintiffs allege that Trasylol—a pharmaceutical used to control bleeding during heart surgery—causes kidney injury, heart attacks, and death. The plaintiffs identified a regulatory expert, Dr. Suzanne Parisian, to testify about the FDA regulations applicable to Trasylol and the appropriateness of the actions of the defendant, Bayer, in light of that regulatory scheme.

Bayer moved to exclude Dr. Parisian’s testimony based on Federal Rule of Evidence 702 and Daubert, arguing that Dr. Parisian offered causation opinions and conclusions based on factual narratives and legal analyses beyond the scope of proper expert testimony.

Relying, in part, on other federal courts’ decisions excluding at least part of Dr. Parisian’s opinions, the In re Trasylol court excluded her opinions in their entirety, ruling that her causation opinions were not within her expertise.

The court also found that Dr. Parisian’s conclusions contained analytical gaps that prohibited her from opining that Bayer violated FDA regulations. The court determined that the expert’s testimony would not assist the trier of fact because she did not analyze the facts, but simply “regurgitates them and reaches conclusory opinions that are purportedly based on these facts.”

The court also held her testimony to be unreliable because it generally “takes a collection of facts, imputes motive and knowledge, and draws unsupported conclusions unrelated to any regulatory expertise.”

“Dr. Parisian is an advocate, presented with the trappings of an expert but with no expectation or intention of abiding by the opinion constraints of Rule 702,” the court concluded.

Dealing with an Expert “Advocate”
Although practitioners, such as Amy Cashore Mariani, Boston, vicechair of the ABA Section of Litigation’s Trial Evidence Committee, stop short of describing the In re Trasylol order as part of a “new trend,” she sees this order as perhaps “part of the process of identifying on an industry-by-industry basis those who are testifying as experts within the spirit of the rules and those who have agendas within a particular realm.”

“At the heart of the court’s reasoning is the jurisprudential principle that an expert cannot offer opinions outside her expertise,” says John B. Isbister, Baltimore, former cochair of the Section’s Products Liability Committee. “Experts have always been paid participants in our adversary system, delivering favorable opinions for a party, and it is the attorney’s job to select and present an expert that appears objective,” Isbister says.

For James A. King, Columbus, OH, vicechair of the Section’s Trial Evidence Committee, the In re Trasylol order “provides a window into an expert witness industry running wild.” “A professional expert can make life easy but can also wreak havoc at trial because he may appear to be an adjunct of counsel,” King notes.

“Trial attorneys ignore experts’ agendas at their peril,” says Mariani. Although the concept that an expert is independent and should serve only to help the jury “is increasingly ignored, it shouldn’t be,” she says. “An expert’s opinion isn’t worth the paper that it is written upon if it will not be convincing to a jury,” she notes.

Challenging the admissibility of an expert advocate’s opinions raises issues of strategy. After securing favorable deposition testimony, Mariani prefers filing a pretrial motion “well in advance of trial, and certainly in advance of the pretrial conference, to ensure that the trial court issues a ruling before trial, to start the court thinking about the problems with an expert’s testimony in the weeks leading up to trial, and to set the ground rules for opening statements.”

Before filing a motion to exclude an expert’s testimony, counsel should consider “the likelihood of success and whether it is more beneficial to save the ammunition for cross,” King adds.

Keywords: Litigation, Florida Federal Court, expert witnesses, expert advocates, In re Trasylol

Related Resources

  • » In re Trasylol Prods. Liab. Litig., No. 08-MD-01928, 2010 U.S. Dist. LEXIS 51811 (S.D. Fla. Apr. 27, 2010).
  • » In re Prempro Prods. Liab. Litig. (Prempro I), 554 F. Supp. 2d 871 (E.D. Ark. 2008) (granting post-trial motion to strike Dr. Suzanne Parisian’s testimony relating to punitive damages as lacking expert analysis), aff’d, 586 F.3d 547, 571 (8th Cir. 2009).
  • » In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164 (S.D.N.Y. 2009) (granting motion to exclude conclusory or insufficiently supported opinions—so-called “bad company” testimony—offered by Dr. Suzanne Parisian after hearing).
  • » Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

  • July 8, 2010 – Testifying experts acting as partisan advocates??? Shocking! Simply shocking!!


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