U.S. Court of Appeals Affirms Dismissal of Pharmaceutical Defect Lawsuit as Plaintiff’s Expert Witness is Excluded

The United States Court of Appeals for the Seventh Circuit in Chicago has affirmed the grant of defendant’s motion for summary judgment in the plaintiff’s lawsuit that alleged that the product Testim, which was manufactured by Auxilium Pharmaceuticals as a topical gel containing testosterone, caused the plaintiff, Isaac Owens, to develop deep vein thrombosis (DVT).

The federal district court in Chicago granted Auxilium’s motion to exclude Owens’ sole expert witness on the issue of causation linking Testim to his medical condition.

The appeals panel stated that the district court could properly exclude causation testimony from the Owens’ expert, when: (1) although the expert opined that Testim had caused plaintiff’s DVT, he did so under the assumption that Owens was applying the prescribed dose of the gel in the proper manner; (2) Owens conceded that he had used only half of the prescribed dosage and applied the gel in the wrong parts of his body; and (3) Owens’ expert could not express an opinion regarding causation under circumstances that more accurately described Owens’ use and application of Testim.

Accordingly, as the district court could properly conclude that the expert’s proposed testimony was not tied to the facts of the Owens case, the dismissal was appropriate.

After having his case dismissed at the district court level, Owens filed an appeal to the U.S. Court of Appeals. The Owens argument on appeal was that his expert’s exclusion was improper under Federal Rule of Evidence 702.

In conclusion, it was held that the district court properly applied the Daubert framework when excluding the expert’s testimony. The court of appeals stated that the federal district court did not abuse its discretion by concluding that the testimony did not fit the facts of the Owens case. It also did not abuse its discretion by choosing not to consider an argument Owens never presented. Without expert testimony on causation, Owens’ claims necessarily failed. Therefore, the court affirmed the judgment of the district court.

Owens v. Auxilium Pharmaceuticals, Inc., No. 17-3416 (July 19, 2018) (N.D. Ill., E. Div.).

Kreisman Law Offices has been handling pharmaceutical defect lawsuits, product liability cases, catastrophic injury lawsuits and wrongful death cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Kenilworth, Matteson, Crete, Steger, Batavia, Arlington Heights, Orland Park, Inverness, Chicago (Lawndale, East Garfield Park, South Loop, Lakeview, Lincoln Square, Wicker Park), Naperville, New Lenox and Lockport, Ill.