Original article no longer available
10/9/2008 3:01:52 PM EST
Posted by Shane Dilworth
Mark Gilbert Rimbert’s case against Prozac maker Eli Lilly & Co. just keeps heating up, but this time the turmoil involves Judge James O. Browning, who was taken off the case today after informing attorneys that his son recently attempted suicide after his psychiatrist prescribed Prozac to him.
In a letter to counsel dated Oct. 8 and docketed Oct. 9, the judge explained that on or about Sept. 29, he and his wife became aware that their son, who sadly has struggled with suicide attempts in the past, was being prescribed Prozac, the drug at the heart of the underlying case. After his son’s suicide attempt, the psychiatrist took him off of Prozac in order to try a different medication. Judge Browning told that attorneys in a May 12 letter that three members of his immediate family have battled depression and have used a selective serotonin reuptake inhibitor (SSRI) to treat the disease, that more than one of his immediate family members have had suicidal tendencies and that one recently attempted suicide while on Lexapro.
Judge Browning maintained in both letters that he could “continue to be fair and impartial,” but said in the most recent letter that if any of the attorneys was uncomfortable with his role in the case due to the number of unresolved issues and motions, to inform the Court Clerk and the case would be reassigned. Judge Judith C. Herrara was named as Judge Browning’s replacement on Oct. 9.
Rimbert sued Lilly in 2006, alleging that his father’s use of the SSRI caused him to kill his wife and dog before killing himself.
Could the reassignment of Judge Browning have an impact on this case considering his past rulings on the learned intermediary doctrine, the admissibility of the testimony of plaintiff’s expert Dr. Grace Jackson and his most recent order denying summary judgment based on preemption all favored the plaintiff?
To view complete original transcript click here
Mark Gilbert RIMBERT v. ELI LILLY AND COMPANY, Defendant–Appellee. No. 09–2307. — (Findlaw)
United States Court of Appeals,Tenth Circuit
Decided: August 03, 2011
Shortly after Mark Rimbert’s father began taking Prozac, he killed his wife and himself. Rimbert brought a wrongful death action against Eli Lilly, the manufacturer of Prozac. After discovery, Eli Lilly moved for summary judgment on various grounds and to exclude the testimony of Rimbert’s sole expert witness on the question of causation. Those motions were, in all relevant parts, denied by the district judge who was initially assigned the case. The case was thereafter reassigned, and Eli Lilly moved for reconsideration of the prior rulings. The second district judge granted Eli Lilly’s motion to exclude Rimbert’s expert witness. Rimbert immediately moved for a new scheduling order allowing him time to name a new expert, which the district court denied. The district court then entered summary judgment for Eli Lilly, concluding that, without the expert’s testimony, Rimbert could not put forth any evidence Prozac caused Rimbert’s father to commit the murder-suicide.
Rimbert appeals the order excluding the testimony of his expert witness. He also appeals the order denying additional time to name a new expert and the resulting entry of summary judgment for Eli Lilly.
Rimbert’s father was diagnosed with moderate depression and prescribed Prozac. The initial dose was then increased, and shortly thereafter his father committed the murder-suicide. Rimbert brought this wrongful death suit against Eli Lilly, the maker of Prozac, alleging the use of Prozac caused Rimbert’s father to take his own and his wife’s lives.
After discovery, Eli Lilly filed three dispositive motions: (1) a motion for summary judgment based on federal preemption, (2) a motion for summary judgment on all Rimbert’s claims based on evidentiary sufficiency, and (3) a motion to exclude the testimony of Rimbert’s sole expert witness under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After reading the motions, the first district judge to whom the case was assigned made certain disclosures of a personal nature to the parties. He informed the parties he did not believe the circumstances required him to recuse himself from the matter, but offered to have the case reassigned if any party was uncomfortable with his participation. Neither party requested reassignment.
The judge then ruled on Eli Lilly’s motions. First, he granted in part and denied in part Eli Lilly’s summary judgment motion concerning evidentiary sufficiency, allowing the majority of Rimbert’s claims to proceed. Second, he denied Eli Lilly’s Daubert motion. Finally, he denied Eli Lilly’s motion for summary judgment based on federal preemption. The last of these orders was issued on October 2, 2008. That same day, a pretrial conference was held and the trial date was moved from October 20, 2008, to December 1, 2008, by agreement of the court and the parties.
On October 8, 2008, the district judge made a second disclosure of a personal nature involving a circumstance that had arisen, which, although new, related to the circumstances described in the prior disclosure. Again, the judge indicated he believed he was not required to recuse himself, but offered to have the case reassigned if either party so requested. This time, Eli Lilly requested reassignment and the case was reassigned on October 9, 2008. The same day the case was reassigned, the new district judge vacated the remaining schedule, including the dates for pretrial conferences, pretrial order, jury selection, and trial.
On November 9, 2008, Eli Lilly moved to renew its previous motions or, in the alternative, to certify the orders for interlocutory appeal. On July 21, 2009, the second judge granted Eli Lilly’s motion to reconsider the Daubert ruling, reversed the first judge’s decision, and excluded from trial the testimony of Rimbert’s only causation expert. The second judge did not hold another Daubert hearing, but rather relied on the same evidence, including the transcript of the initial Daubert hearing, as was considered in the first ruling. On July 24, 2009, Rimbert filed a motion for a new scheduling order, in which he requested a new deadline to designate a substitute expert witness. Rimbert suggested a period of sixty days be allowed. Eli Lilly opposed the motion and urged the district court to enter summary judgment in its favor, as the parties acknowledged without an expert witness Rimbert could not establish causation. The district court denied Rimbert’s motion, concluding Rimbert had not shown good cause for a modification of the scheduling order under Fed.R.Civ.P. 16(b)(4), and consequently entered summary judgment for Eli Lilly. This appeal followed.
In the normal course of events, district courts are well within permissible discretion to deny the opportunity to name a new expert after discovery has closed and a party receives an unfavorable Daubert ruling. Here, however, the district court was not faced with a case that had proceeded normally, and the unique circumstances presented called for flexibility in the discovery schedule. In light of the procedural oddities of the case, including an initial favorable Daubert ruling, and the district court’s unorthodox consideration of the motion for a new scheduling order as if it had been made at a prior date when the case was in a vastly different posture, this court is left with the “definite and firm conviction” that disallowing Rimbert’s request for additional time to name a substitute expert was an abuse of discretion. Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1164 (10th Cir.2000).
For the foregoing reasons, the district court’s order granting Eli Lilly’s renewed Daubert motion is AFFIRMED. The order denying Rimbert’s motion for a new scheduling order and entering summary judgment for Eli Lilly is REVERSED and the matter is REMANDED to the district court for further proceedings consistent with this opinion.