In re Ephedra Prods. Liab. Litig.

In re Ephedra Prods. Liab. Litig.

Opinion

 [*184] OPINION AND ORDER

PERTAINS TO ALL CASES

JED S. RAKOFF, U.S.D.J.

In Case Management Order No. 14 dated June 23, 2005, the Court granted in part and denied in part the respective motions of the Defendants' Coordinating Counsel (the "DCC") and Plaintiffs' Coordinating Counsel (the "PCC") to exclude, pursuant to Rule 702, Fed. R. Evid., and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the testimony of certain "generic" experts. Specifically, the Court held that

the PCC's experts shall not be permitted to testify with "medical certainty" or "scientific certainty" that ephedra caused the alleged injuries. However, they will be permitted to testify (if otherwise admissible under applicable state and federal law) that ephedra may be a contributing cause of stroke, cardiac injury, and seizure in some people. A Memorandum Order [or, as here, an Opinion and Order] further detailing and elaborating on these ruling and including other holdings, such as more particularized rulings on the opinions offered by Dr. James Knochel and Dr. Kristie L. Ebi,  [**2]  will be filed in due course.

Case Management Order No. 14, June 23, 2005, P 3. As promised, this Opinion and Order serves to explain, elaborate, and refine those determinations and decide certain related, outstanding issues.

By way of background, there are presently consolidated before the Court about 500 civil actions claiming personal injury or wrongful death caused by dietary supplements containing ephedra. Some 360 were transferred here pursuant to 28 U.S.C. § 1407 for pretrial purposes only, while the remainder -- cases against the former Twin Laboratories Inc., a debtor in bankruptcy in this district, plus a few other cases commenced in this district -- are here for all purposes. Following consolidation,  [*185]  the Court issued Case Management Order No. 1, dated April 26, 2004, which among other things, provided that the PCC

shall identify, in a document served on all parties, generic expert witnesses who are reasonably expected to testify [at subsequent trials] for the plaintiffs on issues of general or widespread applicability ("Generic Experts"), including, but not limited to, experts who will testify on general causation. The plaintiffs [**3]  may identify up to three Generic Experts with respect to each of the following categories of injuries: (a) ischemic stroke, (b) hemorrhagic stroke, (c) seizures, (d) cardiac injury, (e) psychotic injury, and (f) primary pulmonary hypertension. For each Generic Expert so identified, Plaintiffs' Coordinating Counsel, on behalf of all plaintiffs, shall serve upon all parties the disclosures required by Fed. R. Civ. P. 26(a)(2), except that such disclosures need not include such testimony, if any, that such Generic Expert is expected to offer relating only to liability or damages as to a particular plaintiff.

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