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Freeman v. Hoffman-La Roche, Inc.

Supreme Court of Nebraska

May 18, 2018

Aimee Freeman, appellant,
v.
Hoffman-La Roche, Inc., and Roche Laboratories, Inc.,

         1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews de novo whether the trial court applied the correct legal standards for admitting an expert's testimony.

         2. __:__:__. When the trial court has not abdicated its gatekeeping function under Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862');">631 N.W.2d 862 (2001), an appellate court reviews the trial court's decision to admit or exclude the evidence for an abuse of discretion.

         3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         4. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         5. Trial: Expert Witnesses. Under the framework established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862');">631 N.W.2d 862 (2001), if an expert's opinion involves scientific or specialized knowledge, a trial court must determine whether the reasoning or methodology underlying the testimony is valid (reliable). It must also determine whether that reasoning or methodology can be properly applied to the facts in issue.

         6. __:__. A trial court can consider several nonexclusive factors in determining the reliability of an expert's opinion: (1) whether a theory [300 Neb. 48] or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there is a high known or potential rate of error; (4) whether there are standards controlling the technique's operation; and (5) whether the theory or technique enjoys general acceptance within a relevant scientific community.

         7. Expert Witnesses. Absent evidence that an expert's testimony grows out of the expert's own prelitigation research or that an expert's research has been subjected to peer review, experts must show that they reached their opinions by following an accepted method or procedure as it is practiced by others in their field.

         8. Courts: Expert Witnesses. The objective of the trial court's gatekeeping responsibility is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

         9. Evidence: Proof. Failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

          Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

          Jeffrey A. Silver, and Walter G. Campbell, Jr., and Noreek Davitian, of Krupnick, Campbell, Malone, Buser, Slama, Hancock & Liberman, P.A., and Michael D. Hook, of Hook, Bolton, Mitchell, Kirkland & McGhee, P.A., for appellant.

          Jill Vinjamuri Gettman, of Gettman & Mills, L.L.P., Michael X. Imbroscio and Paul W. Schmidt, of Covington & Burling, L.L.P, and Colleen M. Hennessey, of Peabody & Arnold, L.L.P, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

          CASSEL, J.

         I. INTRODUCTION

         In this product liability action, the district court excluded the claimant's expert's testimony regarding causation. Summary judgment for the manufacturer and distributor followed. On [300 Neb. 49] appeal, the claimant asserts that the exclusion exceeded the court's "gatekeeping" function. Because the record supports the court's conclusion that the expert's methodology was unreliable and conclusion-driven, we find no abuse of discretion in the exclusion and affirm the judgment.

         II. BACKGROUND

         Aimee Freeman brought a product liability action against Hoffman-La Roche, Inc., and Roche Laboratories, Inc. (collectively Roche), alleging that she developed a chronic medical condition and other side effects as a result of ingesting Accutane. Accutane, also known as isotretinoin, is a pharmaceutical drug manufactured and distributed by Roche for the treatment of chronic acne.

         Freeman initially alleged that she suffered from ulcerative colitis-a type of inflammatory bowel disease (IBD)-which is a chronic condition characterized by ulceration of the colon and rectum. However, the expert witnesses generally agreed that Freeman had actually developed Crohn's disease-another type of IBD-which causes chronic inflammation and ulcers in any part of the gastrointestinal tract and tends to extend beyond and penetrate all layers of the gastrointestinal tract wall. Both ulcerative colitis and Crohn's disease share many of the same symptoms. But, as Freeman acknowledges, "there are differences in the clinical presentation of the disease[s] and the triggers statistically associated for developing [them]."[1]

         As a material element for her product liability claims, Freeman was required to prove her injury was proximately caused by Roche's actions or inactions in manufacturing and distributing isotretinoin.[2] In other words, she had to show that ingesting isotretinoin could cause the development of Crohn's [300 Neb. 50] disease and that her ingestion of isotretinoin did in fact cause her to develop the disease.[3] In order to meet this burden of proof, Freeman intended to call Dr. David B. Sachar as an expert witness to render opinions on the general and specific causation of her Crohn's disease.

         Before trial, Roche filed a motion in limine seeking to preclude Sachar's testimony and challenged his opinions under the Daubert/Schafersman framework.[4] They did not suggest that Sachar was unqualified to testify as an expert; rather, they alleged that his ...


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