Allen v. Am. Capital Ltd.

287 F.Supp.3d 763

Charlisa ALLEN, et al., Plaintiffs,

v.AMERICAN CAPITAL LIMITED, et al., Defendants.

No. CV–16–02876–PHX–JAT

United States District Court, D. Arizona.

Signed December 22, 2017

Christopher L. Schnieders, Jonathan P. Kieffer, Jack T. Hyde, Wagstaff & Cartmell LLP, Kansas City, MO, Jose de Jesus Rivera, Nathan Jean Fidel, Miller Pitt Feldman & McAnally PC, Phoenix, AZ, David W. Zoll, Zoll & Kranz LLC, Toledo, OH, Neal R Lewis, Lewis & Associates, Orland, IN, for Plaintiffs.

David B. Rosenbaum, Dawn L. Dauphine, Phoenix, AZ, Diana M. Watral, Maria Pellegrino Rivera, Jessica J. Bluebond–Langner, Leslie M. Smith, Sarah J. Donnell, Kirkland & Ellis, Chicago, IL, for Defendants.

ORDER

James A. Teilborg, Senior United States District Judge

Three sets of motions are pending before the Court. First are Defendants Baxter Healthcare Corporation ("Baxter"), Scientific Protein Laboratories, LLC ("SPL"), and American Capital Limited's ("ACAS") (collectively "Defendants") motions to exclude Plaintiffs Charlisa, Joshua, and Jennifer Allen's (collectively "Plaintiffs") expert witnesses Ronald Moore, (Doc. 149), Suzanne Parisian, (Doc. 150), Clifford Siporin, (id. ), and all three of Plaintiffs' causation experts, (Doc. 151.) Second are Defendants' motions for summary judgment. (Docs. 162 & 164.) Third is Plaintiffs' motion to exclude Defense expert Dan Fintel. (Doc. 147.) All parties have responded, (Docs. 153, 154, 155, 156, 181, 183), and replied, (Docs. 157, 158, 159, 160, 188, 189.)

I. Background

Plaintiffs are the wife and children of Dr. Robert Allen, who they claim was injured and killed by allegedly contaminated heparin produced, marketed, and sold by Defendants. (Doc. 123.) They claim that Defendants are liable under theories of strict liability due to a manufacturing defect, negligence, breach of implied warranty, breach of express warranty, statutory wrongful death, and statutory survival. (Id. at 7–12.) Heparin is an anticoagulant and is one of the most commonly used medical therapies. (Doc. 151 at 4.)

On December 1, 2007, Dr. Allen, a forty-five-year-old radiologist, entered the Mayo Clinic in Scottsdale, Arizona ("Mayo") with abdominal pain and self-diagnosed gastrointestinal disease. (Doc. 155 at 3.) He continued to suffer from this pain throughout the night. (Id. at 4.) At around 6:00 a.m. on December 2, 2007, Dr. Allen was given a subcutaneous dose of heparin. (Id. ) Between 10:15 a.m. and 10:30 a.m., Dr. Allen received a bolus dose of heparin. (Id. at 5.) Just before 10:30 a.m., Dr. Allen's ECG strip recorded the beginning of a myocardial infarction, or heart attack, and his telemetry alarm began to sound. (Id. ) An echocardiogram performed at 10:34 a.m. indicated that there was significant damage to the heart. (Id. ) Dr. Allen was brought to the cardiac catheterization laboratory at around 11:24 a.m., where he underwent a thrombectomy to extract clots from his heart. (Id. ) At around 11:53 a.m., in the midst of the thrombectomy, Dr. Allen received two more bolus doses of heparin. (Id. at 5–6.) Eventually, Dr. Allen became hypotensive, he vomited blood, and he suffered from cardiogenic shock. (Id. at 6.) Following this procedure, he developed heparin-induced thrombocytopenia ("HIT"). (Id. ) On December 6, 2007, doctors replaced Dr. Allen's heart with a total artificial heart. (Id. at 7.) Dr. Allen began to suffer from end organ failure, and on February 27, 2008, doctors replaced the total artificial heart with a human transplant and replaced Dr. Allen's kidneys. (Id. ) The transplanted heart failed and, despite further procedures, Dr. Allen died on March 7, 2008. (Id. )

SPL is a limited liability company that primarily produces heparin active pharmaceutical ingredient ("API"), a precursor to usable heparin medication. (Doc. 162 at 3–4.) It creates API in processing facilities in Wisconsin and in China using crude heparin. (Id. ) The primary raw material in crude heparin is porcine intestinal mucosa, which SPL sources from intermediaries, who in turn gather intestines from slaughtered pigs in North America and China. (Id. ) ACAS is a majority shareholder in SPL Acquisition Corp., the sole member of SPL. (Doc. 164 at 6–7.) In 2007, Baxter used SPL heparin API to produce usable heparin medication, which it distributed to wholesalers, who passed it on to end users, such as Mayo. (Id. at 4.)

Toward the end of December 2007, Baxter observed an increase in adverse events from particular lots of their heparin. (Doc. 151 at 4.) Baxter notified the authorities of these issues, who launched an investigation. (Doc. 151 5.) Public health authorities ultimately concluded that these adverse events were caused by a third party introducing a contaminant, oversulfated chondroitin sulfate ("OSCS"), into crude heparin as a cost-saving measure. (Doc. 162 at 6.)

Plaintiffs around the country brought suits in state and federal court for harm allegedly caused by contaminated heparin. (Doc. 151 at 8.) The federal cases were consolidated by the Judicial Panel on Multidistrict Litigation in the Northern District of Ohio ("MDL court"). (Id. ) This case was before the MDL court for over eight years and is the last of the consolidated federal cases. (Id. ; Doc. 155 at 2.)

II. Legal Standards

This Court has diversity jurisdiction under Section 1332. See 28 U.S.C. § 1332 (2012) ; see also U.S. Const., art. III, § 2. A court sitting in diversity applies federal procedural law and state substantive law. See Erie R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In the case of Multidistrict Litigation ("MDL"), both the MDL court and the non-MDL court apply the substantive law of the non-MDL court's forum state. See In re Korean Air Lines Co., Ltd. , 642 F.3d 685, 699 & n.12 (9th Cir. 2011) (citing In re Korean Air Lines Disaster of Sept. 1, 1983 , 829 F.2d 1171, 1176 (D.C. Cir. 1987) ); Wahl v. Gen. Elec. Co. , 786 F.3d 491, 494–99 (6th Cir. 2015) (describing the majority view that cases filed directly in an MDL apply the substantive law of the court where the case would have otherwise been brought). Choice-of-law decisions are substantive and must be settled before further analysis. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

Both parties implicitly agree, with one exception, that Arizona law applies. See, e.g. , (Doc. 123 at 11–12; Doc. 124 at 21, 24; Doc. 125 at 21, 24.) Therefore, Arizona substantive law governs, except where otherwise noted.¹ See In re Korean Air Lines Disaster of Sept. 1, 1983 , 932 F.2d 1475, 1495 (D.C. Cir. 1991) ("[C]ourts need not address choice of law questions sua sponte "); Ind. Lumbermens Mut. Ins. Co. v. W. Or. Wood Prods., Inc. , 268 F.3d 639, 644 n.3 (9th Cir. 2001) (applying Oregon law where the parties implicitly agreed that Oregon law applied due to a choice-of-law provision in the governing contract).

Except where "a state evidence rule is ‘intimately bound up’ with the rights and obligations being asserted," federal evidentiary rules apply. Wray v. Gregory , 61 F.3d 1414, 1417 (9th Cir. 1995) (per curiam). Neither party asserts, and this Court finds no indication, that Arizona substantive law supplants the Federal Rules of Evidence in this case. Therefore, the Federal Rules of Evidence shall govern the evidentiary matters presented in the pending motions.

Under Federal Rule of Civil Procedure 54(b), before final judgment, a court may revise its earlier decisions that "adjudicate[ ] fewer than all the claims" of the parties. Fed. R. Civ. P. 54(b). This broad retrospective power to modify, however, has been narrowed by the law of the case doctrine. Under this doctrine, a court will generally not, as a matter of practice, reexamine its earlier decisions. Thomas v. Bible , 983 F.2d 152, 154 (9th Cir. 1993). "For the doctrine to apply, the issue in question must have been ‘decided either expressly or by necessary implication in [the] previous disposition.’ " Id. (alteration in original) (quoting Milgard Tempering, Inc. v. Selas Corp. of Am. , 902 F.2d 703, 715 (9th Cir. 1990) ). Courts retain discretion to apply the doctrine, but abuse that discretion by reopening previously decided issues falling outside of five enumerated circumstances. Id. at 155. Thus, "[d]epending on the nature of the case or the issue," reconsideration may only occur where "(1) the first decision was clearly erroneous; (2) an intervening change in the law has occurred; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; [or] (5) a manifest injustice would otherwise result." Id.

The United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") has suggested, however, that the law of the case does not bar a district court from reconsidering its own pretrial rulings before final judgment. Peralta v. Dillard , 744 F.3d 1076, 1088 (9th Cir. 2014) (en banc) (holding that the law of the case did not bar a court from granting judgment as a matter of law to a party despite previously rejecting that party's motion for summary judgment). In so deciding, the court reasoned that facts continue to develop as a case progresses, which may change the appropriateness of prior rulings. Id.

The Ninth Circuit has not held that the law of the case applies to MDL cases; however, courts within this circuit have, see, e.g. , Parkinson v. Novartis Pharm. Corp. , 5 F.Supp.3d 1265, 1271–72 (D. Or. 2014), the doctrine applies to other forms of transfer, Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 815–16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ; Muth v. Fondren , 676 F.3d 815, 818–19 (9th Cir. 2012), and the policies of judicial economy and finality that justify MDL litigation, see Stanley A. Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts , 78 F.R.D. 575, 577 (1978) ; 28 U.S.C. § 1407(a) (noting that transfer is for the "convenience of parties and witnesses" and...