May 19, 2019

Tenth Circuit: In Prozac Wrongful Death Case, Expert Witness Properly Excluded but the Request for Additional Time to Name a New Expert Should Have Been Granted

The Tenth Circuit Court of Appeals issued its opinion in Rimbert v. Eli Lilly and Co. on Wednesday, August 3, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner’s father, shorty after beginning to take Prozac, killed his wife and himself. Petitioner brought a wrongful death action against Respondent, the manufacturer of Prozac. Respondent moved for summary judgment to exclude the testimony of Petitioner’s sole expert witness on the question of causation; the motion was denied by the district court judge who was initially assigned the case. The case was thereafter reassigned, and Respondent moved for reconsideration of the prior rulings and the second district court judge granted the motion to exclude the expert witness. Petitioner then 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 Respondent, “concluding that, without the expert’s testimony, [Petitioner] could not put forth any evidence Prozac caused [his] father to commit the murder-suicide.” Petitioner appeals the order excluding the testimony of his expert witness and he also appeals the order denying additional time to name a new expert and the resulting entry of summary judgment for Respondent.

The Court found no abuse of discretion in excluding the expert witness. “[I]t was not ‘manifestly unreasonable’ for the district court to, upon being assigned a new case, independently assure itself of the expert’s reliability and to fulfill its gatekeeper function.” Additionally, Respondent was free to request reconsideration of the initial judge’s rulings. However, the Court agreed with Petitioner regarding his request for additional time to name a new expert. At the time of the request, there was no longer any impending trial date or pretrial schedule remaining that would have been disrupted; accordingly, Respondent would not have been prejudiced by a new scheduling order “in the sense of being unable to mount a defense against the new expert’s testimony,” and extra expense alone is not the type of prejudice contemplated when denying such an order.

“[T]he 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 . . . 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, [the Tenth Circuit was] left with the ‘definite and firm conviction’ that disallowing [Petitioner]’s request for additional time to name a substitute expert was an abuse of discretion.”

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