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Klein v. TAP Pharm. Prods.

United States Court of Appeals for the Ninth Circuit

May 14, 2013, Submitted, San Francisco, California1; May 17, 2013, Filed

No. 11-17250

Opinion

 [*584]  MEMORANDUM 3

Karin Klein claimed that TAP Pharmaceuticals and Abbott Laboratories 4 failed to warn her adequately of the severe side effects she experienced  [**2] after taking Lupron Depot 3.75 mg. The case was tried to a jury, and Klein lost. She now argues that the district court abused its discretion in several evidentiary and discovery rulings and that the district court was unfairly biased. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Klein challenges the district court's exclusion of several Lupron labels, adverse event reports, scientific articles, and supplemental expert reports. The district court did not abuse its discretion in excluding the challenged Lupron labels because they all contained information regarding the side effects of different formulations of Lupron, rendering them insufficiently relevant, unduly prejudicial, and likely to confuse the jury. See Fed. R. Evid. 403. Similarly, the district court did not err in excluding the adverse event reports. They were hearsay reports of uncertain reliability, lacking information relevant to causation. We also affirm the district court's rulings excluding the scientific articles on hearsay  [**3] grounds because Klein failed to establish that any exception applied. See Fed. R. Evid. 803. Finally, the district court appropriately deemed the supplemental expert reports untimely because Klein submitted the reports two years after the deadline for expert reports and within one month of the start of trial. See Fed. R. Civ. P. 26(e) (parties must supplement materially incomplete or incorrect information in a "timely manner").

Klein also challenges the district court's supervision of discovery. The district court acted within its discretion in granting Klein's narrowed motion to compel and requiring Klein to bear the cost of reproducing documents that had already been produced. The district court's denial of Klein's motion to extend discovery was also reasonable because the motion was filed too close to the discovery deadline. D. Nev. Local R. 26-4.

Finally, Klein has not even remotely established that the district court exhibited "such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Judicial bias cannot be demonstrated simply by pointing to rulings that disfavored the complaining party.

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518 Fed. Appx. 583 *; 2013 U.S. App. LEXIS 9955 **; 2013 WL 2136500

KARIN KLEIN, Plaintiff - Appellant, v. TAP PHARMACEUTICAL PRODUCTS, INC.; ABBOTT LABORATORIES, Defendants - Appellees.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Subsequent History: US Supreme Court certiorari denied by Klein v. TAP Pharm. Products, Inc., 2013 U.S. LEXIS 8994 (U.S., Dec. 9, 2013)

Prior History:  [**1] Appeal from the United States District Court for the District of Nevada. D.C. No. 2:08-cv-00681-RLH-RJJ. Roger L. Hunt, Senior District Judge, Presiding.

Disposition: AFFIRMED.

CORE TERMS

district court, discovery, expert report, excluding, adverse event, side effect, supplemental, challenges, scientific, articles, deadline, hearsay, labels