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United States District Court, S.D. New York

February 27, 2004.

In re: REZULIN PRODUCTS LIABILITY LITIGATION, This Document Relates to: All Cases

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Among the antecedents of our modern jury trial was wager of law, or compurgation, a form of trial by ordeal. The accused found a number of people and then took a solemn oath that he or she was innocent. The "companions, or `compurgators' as they were called, then swore that the oath which he [or she] had taken was clean. In other words, the court call[ed] upon the accused to produce a specified number of people . . . who [we]re prepared to swear that in their opinion his [or her] oath [wa]s trustworthy. * * * They d[id] not swear to the facts of the case, but merely to their judgment that the accused is a credible person."*fn1

  A practice reminiscent of wager of law has become fashionable among some well — financed litigants — the engagement of "expert" witnesses whose intended role is more to argue the client's cause from the witness stand than to bring to the fact — finder specialized knowledge or expertise that would be helpful in resolving the issues of fact presented by the lawsuit. These "experts" thus are loosely analogous to compurgators, also known as oath helpers, in that they lend their credentials and reputations to the party who calls them without bringing much if any relevant knowledge to bear on the facts actually at issue. This case exemplifies the fashion to some extent, as the Plaintiffs' Executive Committee has engaged a number of "expert" witnesses to perform roles which, in greater or lesser degree, meet this description.

  Defendant Warner-Lambert Company and affiliates move in limine to exclude certain Page 3 proposed testimony of a number of plaintiffs' experts on issues other than silent liver injury, which is the subject of another motion. They object to proposed testimony of plaintiffs' "experts" regarding (1) what constitutes ethical behavior for a company, (2) the motive, intent, and state of mind of actors including Warner-Lambert, Glaxo-Wellcome, U.S. Food and Drug Administration ("FDA") employees, and the authors of scientific articles, (3) Warner-Lambert's alleged suppression of research, (4) foreign regulatory experience with respect to Rezulin [troglitazone] including a "history" of regulatory actions, (5) FDA procedures and regulations and Warner-Lambert's alleged failure to provide adequate information to the FDA about Rezulin, (6) Warner-Lambert's alleged failure adequately to protect patients who participated in the Rezulin clinical trials, (7) what other physicians understood about Rezulin, its benefits and risks, (8) decisions made by physicians who prescribed Rezulin, (9) a duty to warn patients (as well as alleged failure to warn patients);(10) Rezulin's efficacy and its risk — benefit ratio; and (11) one expert's reliance on certain spreadsheets created by a consultant for the defendants. Page 4

 I. Legal Framework: Daubert v. Merrell Dow Pharmaceuticals Inc. and Federal Rule of Evidence 702.

  A. General Background

  The standard governing a district court's determination whether to admit scientific or other expert testimony is familiar. Federal Rule of Evidence 702 provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."
It incorporates principles established in Daubert v. Merrell Dow Pharmaceuticals, Inc.,*fn2 in which the Supreme Court charged trial courts with a gatekeeping role to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."*fn3

  In Daubert, the Supreme Court set forth the procedures a trial court is to follow in ruling on expert testimony. The trial court must determine "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue."*fn4 The Court explained further that this requires "a preliminary assessment of whether the testimony is scientifically valid and of whether that reasoning or methodology properly can be Page 5 applied to the facts in issue" — in essence, whether it is reliable.*fn5 The proponent of expert testimony must demonstrate admissibility by a preponderance of proof.*fn6 The Daubert Court stressed that the inquiry concerning reliability is "a flexible one" and set forth a list of four nonexclusive factors to consider: (1) whether the expert's theory "can be (and has been) tested"; (2) whether the theory "has been subjected to peer review and publication;" (3) the "known or potential rate of error"; and (4) whether the theory has "`general acceptance.'"*fn7

  The Court elaborated upon Daubert in Kumho Tire Co. v. Carmichael*fn8 where it held that Daubert's general gatekeeping obligation "applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge."*fn9 Ultimately, the objective of Daubert is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."*fn10

  In undertaking this inquiry, a district court must focus on the "principles and Page 6 methodology" employed by the expert, not on the conclusions reached.*fn11 Nevertheless, "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there simply is too great an analytical gap between the data and the opinion proffered."*fn12

  In 2000, Rule 702 was amended in light of Daubert to require that "(1) the testimony [be] based upon sufficient facts or data, (2) the testimony [be] the product of reliable principles and methods, and (3) the witness [have] applied the principles and methods reliably to the facts of the case." The Advisory Committee Notes explain that the amendment was intended to affirm Daubert's designation of the trial court as gatekeeper and "provide[] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony."*fn13 The standards set forth in Rule 702 were not intended to displace the nonexclusive list of factors set forth by the Supreme Court in Daubert, however.

  One of the fundamental requirements of Rule 702 is that the proposed testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This helpfulness requirement is "akin to the relevance requirement of Rule 401, which is applicable to all proffered evidence[,] [but] . . . goes beyond mere relevance . . . because it also requires expert testimony to Page 7 have a valid connection to the pertinent inquiry."*fn14 The Daubert Court referred to this as "`fit,'" noting that "Rule 702's `helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility."*fn15 Finally, Rule 702 requires also a finding that the proposed witness be qualified by virtue of specialized knowledge, skill, experience, training, or education.

  Recognizing that the application of the foregoing principles, "no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations," the Supreme Court in Daubert nevertheless reasoned that this "is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."*fn16

  B. Specific Considerations.

  Certain principles that are especially pertinent to the task at hand flow from the requirement that expert testimony be "scientific, technical, or other specialized knowledge." First, the requirement of "knowledge" guards against the admission of subjective or speculative opinions.*fn17 Page 8 Second, in requiring that expert testimony be directed to "scientific, technical or specialized" knowledge, Rule 702 ensures that expert witnesses will not testify about "lay matters which a jury is capable of understanding and deciding without the expert's help."*fn18 In other words, experts should not be permitted to "supplant the role of counsel in making argument at trial, and the role of the jury in interpreting the evidence."*fn19 Examples of "expert" testimony that courts have excluded on this basis include factual narratives*fn20 and interpretations of conduct or views as to the motivation of parties.*fn21

  Likewise, in deciding whether the proposed testimony will be helpful to the fact — finder, courts in this Circuit analyze the testimony to determine whether it `"usurp[s] either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.'"*fn22 Thus, although an expert may give an opinion to help the jury decide Page 9 an issue in the case, he or she may not tell the jury what result to reach*fn23 or communicate "a legal standard — explicit or implicit — to the jury."*fn24 This principle requires the exclusion of testimony that states a legal conclusion, although factual conclusions on an ultimate issue to be decided by the jury are permissible.*fn25

  Against this background, the Court now turns to its analysis of the challenged testimony.

 II. Testimony Regarding Ethics.

  The reports of two of plaintiffs' proposed experts indicate that they intend to testify, Page 10 at least in part, that Warner-Lambert, in their opinions, acted in an unethical manner, especially with respect to its presentation of, or reaction to, Rezulin clinical data and the conduct of Rezulin clinical trials. Two other experts gave such testimony in their depositions.*fn26 Defendants seek to preclude all such testimony by plaintiffs' experts. They argue that the opinions are (1) unreliable because Page 11 purely speculative; (2) unhelpful to the fact — finder because irrelevant in a case where liability is premised on legal, not ethical, standards, and (3) likely to prejudice and confuse fact — finders concerning the pertinent legal standards. Plaintiffs rejoin that the proffered testimony is reliable and establishes an industry standard that is relevant to the issues in the case.

  The opinions of plaintiffs' witnesses, however distinguished these individuals may be as physicians and scientists, concerning the ethical obligations of pharmaceutical companies and whether the defendants' conduct was ethical are inadmissible for the following reasons.

  A. Reliability Under Rule 702 and Daubert.

  Three of plaintiffs' four witnesses — Drs. Day, Bell and Kronmal — have admitted that their opinions concerning purported ethical standards are based on their personal, subjective views.*fn27 These opinions therefore do not meet the core requirement of Rule 702 that expert testimony rest on "knowledge," a term that "connotes more than subjective belief or unsupported Page 12 speculation."*fn28

  Such speculative testimony, contrary to plaintiffs' argument, cannot serve as the predicate for any purported industry ethical standard.*fn29 Even if expert testimony on the ordinary practices of a profession or trade were appropriate "to enable the jury to evaluate the conduct of the parties against the standards of ordinary practice in the industry,"*fn30 it still must comport with the reliability and helpfulness requirements of Rule 702. At their core, however, the witnesses' opinions regarding ethical standards for reporting or analyzing clinical trial data or conducting clinical trials articulate nothing save for the principle that research sponsors should be honest.*fn31 Even if charitably viewed as a "standard," the testimony nevertheless is "so vague as to be unhelpful to a fact — finder."*fn32 Page 13

  Plaintiffs press the notion that "there is no authority proscribing opinions which are personal, a label which can be attached to any expert's testimony."*fn33 The claim, at best, is frivolous word play. Its clear implication is that courts should permit "experts" to tender purely subjective views in the guise of expert opinions. This would border on the absurd.

  B. Relevance Under Rule 702 and Daubert

  Even assuming that the ethics testimony were based on a reliable foundation, it would not assist the fact — finder in determining any factual dispute in this case. The principal issues here are whether the defendants breached their legal duties to the plaintiffs in the manufacturing, labeling and marketing of Rezulin and, if so, whether any such breaches were proximate causes of injury. While the defendants may be liable in the court of public opinion, or before a divine authority for any ethical lapses, expert opinion as to the ethical character of their actions simply is not relevant to these lawsuits.

  Ethics testimony similar to that proposed here was excluded as irrelevant in Diet Page 14 Drugs, a pharmaceutical products liability proceeding analogous in some ways to this MDL.*fn34 There, the court excluded the opinions of a "clinical medical ethics" expert because the testimony was "at best, only marginally relevant to [the manufacturer's] conduct in the manufacturing and marketing of diet drugs," and the "pertinent issues in this litigation are the obligations of a pharmaceutical company in testing, surveying and labeling medications."*fn35 Those same obligations, not what is ethical, are the central issues in this case, and the proffered ethics testimony is "at best, only marginally relevant."*fn36 Page 15

  C. Federal Rule of Evidence 403.

  Even assuming that the proposed ethics testimony were reliable and marginally relevant under Rule 702, it would be likely unfairly to prejudice and confuse the trier by introducing the "experts'" opinions and rhetoric concerning ethics as alternative and improper grounds for decision on bases other than the pertinent legal standards.*fn37 Accordingly, plaintiffs are precluded from offering any testimony, including that cited in the margin, concerning ethical standards and the application of ethical standards to the alleged conduct of the defendants and others.

 III. Motive, Intent, and State of Mind Testimony

  Several of plaintiffs' proposed experts have rendered reports articulating, and/or testified in depositions to, opinions concerning the motive, intent and state of mind of Warner-Lambert and others.*fn38 Defendants object that the testimony (1) is unreliable speculation because the Page 16 witnesses lack relevant qualifications, and (2) would invade the province of the jury.*fn39 Plaintiffs rejoin that the witnesses are qualified, and the opinions are helpful under Rule 702 and proper under Rule 704. The Court concludes that the testimony is inadmissible.

  First, the opinions of these witnesses on the intent, motives or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or Page 17 expertise.*fn40 The Taylor court aptly described similar testimony as "musings as to defendants' motivations [that] would not be admissible if given by any witness — lay or expert."*fn41 Furthermore, plaintiffs' experts propose improperly to assume the role of advocates for the plaintiffs' case by arguing as to the intent or motives underlying the conduct of Warner-Lambert or others, a transgression that has resulted in the exclusion of "expert" testimony as to the "real motive" behind Page 18 certain business transactions.*fn42

  The testimony is improper also because it describes "lay matters which a jury is capable of understanding and deciding without the expert's help."*fn43 Dr. Bell's proposed testimony illustrates the point. At times he merely repeated facts or opinions stated by other potential witnesses or in documents produced in discovery, as with his reiteration of Dr. Misbin's view as to what the FDA might have done with different information. Elsewhere, he drew simple inferences from documents produced in discovery, as when he said he "knows for sure" that Glaxo took Rezulin off the market for safety reasons because "the chairman of the company" allegedly wrote this in a letter.*fn44 Similar repetitions of facts and speculative inferences about intent appear throughout the challenged testimony.*fn45

  Inferences about the intent or motive of parties or others lie outside the bounds of expert testimony. As the Diet Drugs court stated in excluding testimony that the pharmaceutical defendant's conduct with respect to labeling was motivated by its desire to increase profits, "[t]he Page 19 question of intent is a classic jury question and not one for the experts."*fn46

  Dr. Gale's opinion that Warner-Lambert's conduct with respect to clinical trial data potentially constituted "negligence" or "something more serious"*fn47 is excluded for the additional reason that it impermissibly embraces a legal conclusion.*fn48 Such testimony "usurp[s] . . . the role of the trial judge in instructing the jury as to the applicable law [and] the role of the jury in applying that law to the facts before it."*fn49

  Accordingly, plaintiffs are precluded from offering expert opinion evidence, including that cited in the margin, of the alleged motive, intent or state of mind of defendants or others.

 IV. Testimony about FDA Procedures and Regulations and Disclosure of Facts to the FDA

  Most of plaintiffs' challenged witnesses have given opinions on FDA procedures, regulations, and standards as well as statements that Warner-Lambert failed adequately to disclose Page 20 material facts about Rezulin to the FDA.*fn50 The Court notes Page 21 also that all of these challenged opinions to varying degrees recite facts, or agree with opinions, stated in the deposition of Dr. Misbin,*fn51 including his view that the FDA would not have approved Rezulin monotherapy had it been aware of certain liver injury data from the clinical trials.*fn52

  Warner-Lambert seeks to preclude these opinions on the grounds that they are (1) speculative and unreliable because none of the witnesses has expertise in FDA procedures and regulations, and (2) fraud — on — the — FDA evidence which, it claims, is inadmissible under Buckman Co. v. Plaintiffs' Legal Committee.*fn53 Plaintiffs rejoin that regulatory expertise is unnecessary because the proffered testimony — as recharacterized by them — does not speak to regulatory standards, but merely establishes that Warner-Lambert's disclosures of clinical trial data to the FDA were inadequate and misleading. Plaintiffs claim also that FDA regulations are "minimum" standards. Plaintiffs oppose defendants' Buckman argument as an unwarranted extension of that precedent. Page 22

  A. Reliability.

  Despite the plaintiffs' claim to the contrary, portions of the challenged testimony do unequivocally discuss, and evaluate Warner-Lambert's conduct against, FDA standards.*fn54 Plaintiffs do not dispute that extensive regulations govern the form and content of clinical data submissions to the PDA*fn55 or that the experts here in question disavow any expertise on the subject.*fn56 The Page 23 proffered opinions on FDA standards and regulations therefore are inherently unreliable. Further, there is no foundation for the view that FDA regulations are "minimal standards," for the witnesses cannot characterize — as "minimal" or otherwise — regulations that they do not know or understand in the first place. Plaintiffs' experts are unqualified also to testify about the facts of Warner-Lambert's disclosures to the FDA because they lack first — hand knowledge.*fn57

  Accordingly, plaintiffs' experts that are subject to this aspect of the motion — Drs. Avorn, Bell, Bonkovsky, Gale, Furberg, Julie and Kronmal — are not qualified to render opinions describing or interpreting FDA regulations, or commenting on Warner-Lambert's adherence to those regulations.

  B. Helpfulness under Rule 702.

  To the extent that the challenged testimony relates, as plaintiffs contend, to the factual accuracy of Warner-Lambert's clinical data submissions to the FDA, it constitutes lay matter that Page 24 the fact — finder can understand without the assistance of experts, regardless of much experience these witnesses have with clinical trials.*fn58 Dr. Avorn's testimony illustrates the point. His view that Warner-Lambert failed to disclose information to the FDA boils down to a contention that Warner-Lambert "buried" certain lab results in an Appendix to the Rezulin NDA.*fn59 This opinion does not implicate Dr. Avorn's expertise in pharmacoepidemiology. It is a simple inference drawn from his review of two documents — the primary Rezulin NDA and its Appendix — which, if admissible, plaintiffs' counsel may present directly to the fact — finder while arguing his or her view as to their significance. Expert testimony interpreting Warner-Lambert's conduct in disclosing information to the FDA therefore will not assist the fact — finder in these cases.

  C. Federal Rule of Evidence 403.

  Numerous portions of the opinions offered by these experts merely recite facts, or endorse opinions, expressed in the deposition of Dr. Misbin. Assuming that Dr. Misbin's testimony is ruled admissible at trial, the challenged opinions are excluded under Rules 702 and 403, as cumulative and certain to waste time.*fn60 Plaintiffs' argument that references to Dr. Misbin's testimony serve merely as a "factual basis" for their experts' opinions ignores the fact that plaintiffs' Page 25 experts also repeat Dr. Misbin's opinions. Accordingly, the proposed testimony about FDA procedures and regulations and disclosure of facts by Warner-Lambert to the FDA is inadmissible.*fn61

  D. Dr. Tolman's Testimony.

  Dr. Tolman's report largely to the effect that Warner-Lambert allegedly failed to provide the FDA with all necessary information regarding the risk of liver injury and that the FDA would not have approved Rezulin had it received different information. Defendants object to all of Dr. Tolman's proposed testimony on the ground that he arrived at these conclusions before having supporting data.*fn62

  Dispositive here is Dr. Tolman's admission that he ". . . wrote a lot of the declaration without having the raw information in hand under the assumption that it would be provided to me, so it was sort of coming in around that time, but I wasn't able to reference it when I wrote the declaration.,"*fn63 Courts applying the principles outlined in Daubert have held that an expert may not reach his conclusion first and do the research later.*fn64 Because Dr. Tolman wrote his report before Page 26 having the supporting data, his opinions are not "based upon sufficient facts or data" and do not proceed from "reliable principles and methods," as required by Rule 702.*fn65 Accordingly, all of Mr. Tolman's testimony is excluded.

 V. History of Rezulin.

  Plaintiffs' expert Dr. Gale proposes to testify to a narrative reciting selected regulatory events concerning Rezulin, including Advisory Committee meetings, labeling changes, "Dear Doctor" letters, and approval and withdrawal decisions by regulators in the United States and abroad.*fn66 Warner-Lambert characterizes the proposed testimony as "nothing more than a repetition of the factual allegations in plaintiffs' complaint" combined with comments amounting to Dr. Gale's "spin" on the facts.*fn67 Preclusion is sought on the grounds that the testimony (1) is not "knowledge" because it relates to factual matter that does not implicate Dr. Gale's expertise or first — hand experience, (2) proceeds from a biased and unreliable methodology, and (3) would invade the province of the jury by presenting a narrative that advocates plaintiffs' version of the facts. Plaintiffs rejoin that Dr. Gale's narrative merely forms the basis for his opinions and helps to explain his Page 27 reasoning to the jury, which entitles him to rely on facts of which he lacks personal knowledge.

  Dr. Gale's "history of Rezulin" is merely a "narrative of the case which a juror is equally capable of constructing."*fn68 In Dr. Gale's own words, the purpose of this testimony is simply to "provid[e] an historical commentary of what happened"*fn69 which, in his view, is "important to try and define the staging process" — a term evidently meaning "background."*fn70 Such material, to the extent it is admissible, is properly presented through percipient witnesses and documentary evidence. An expert is not required, for example, to comment that the transcript of the December 11, 1996 Advisory Committee "noted" in response to certain animal data, that "at least in rats we have reason to be concerned about what might happen ultimately in liver, a target tissue."*fn71 Likewise, the glosses that Dr. Gale interpolates into his narrative are simple inferences drawn from uncomplicated facts that serve only to buttress plaintiffs' theory of the case. As plaintiffs' Rezulin "historian," therefore, Dr. Gale "does no more than counsel for plaintiff will do in argument, i.e., propound a particular interpretation of [defendant]'s conduct."*fn72 Accordingly, Dr. Gale's testimony relating to the "history of Rezulin" is inadmissible. Page 28

 VI. Foreign Regulatory Experience

  Plaintiffs put forth Drs. Avorn, Bonkovsky, Day, Furberg, Gale, and Julie as expert witnesses regarding the actions of foreign regulators and Glaxo-Wellcome with respect to Rezulin.*fn73 Page 29

  Defendants seek to preclude all evidence, expert or otherwise, on the subject of foreign regulatory actions on the ground that it is irrelevant as a matter of law in a United States product liability litigation governed by United States law. They argue also that, even assuming that the evidence is relevant, it is only marginally so and that its potential for undue prejudice, confusion and waste of time warrants exclusion under Rule 403. With respect to some of the witnesses, including Dr. Avorn, defendants object also on the grounds of qualifications. Plaintiffs rejoin that the testimony is relevant to various issues. They do not address the Rule 403 question. Page 30

  A. Relevance and Rule 403.

  The Court finds no legal basis upon which now to rule, as urged by Warner-Lambert, that testimony regarding foreign regulatory actions is irrelevant as a matter of law in a United States products liability case governed by American law. The authorities cited by the defendants do not stand for this broad proposition, but rather reflect decisions by various courts to exercise their discretion, in particular cases, to admit or exclude testimony on foreign standards or practices. Any ruling as to the relevancy of otherwise admissible evidence concerning foreign regulatory actions therefore would be premature.

  B. Rule 702.

  Assuming that evidence concerning foreign regulatory actions is relevant and admissible over Rule 403 objections, plaintiffs' experts are not the appropriate vehicles for its introduction. The subject of the testimony is lay matter, similar in nature to Dr. Gale's "history of Rezulin." As review of the witnesses' reports and depositions makes clear, the challenged testimony focuses on a set of non — technical factual allegations — specifically, the actions taken or not taken by foreign regulators or Glaxo-Wellcome with respect to Rezulin — that plaintiffs would use as springboards for arguments about Warner-Lambert's conduct in the United States.*fn74 None of it Page 31 qualifies as "scientific, technical or other specialized knowledge."*fn75 Accordingly, the proposed testimony of these witnesses is excluded under Rule 702.

 VII. Warner-Lambert's Alleged Suppression of Research

  One of the variations on the plaintiffs' theme that Warner-Lambert concealed information about the alleged toxicity of Rezulin is that the defendants allegedly suppressed the results of in — house scientific studies. Evidently, plaintiffs have designated Dr. Smith to deliver this argument at trial.

  Dr. Smith's report concluded that "it is . . . apparent that Parke-Davis/Warner-Lambert management interfered dramatically with the scientific freedom of the above scientists."*fn76 He accused Warner-Lambert/Parke-Davis also of "suppressing scientific inquiry for the stated purpose of downplaying the hepatotoxic effects of TGZ in the published literature."*fn77 Page 32

  These opinions are based on Dr. Smith's review of "in — house documents, memos and emails" — all material produced by the defendants in this case.*fn78 For example, he asserts that defendants in 1999 "attempted to block or slow down their own scientists" by "restrict[ing] their access to key databases on computers."*fn79 The sole bases for this assertion are statements of defendants' in — house scientists that are reproduced in an internal email that purports to discuss changes in employee access to computer servers. All of his proposed testimony relating to the charges of alleged "science — suppression" follows this format. Plaintiffs thus propose to use Dr. Smith to argue, based on other non — technical evidence, from the witness stand. The proposed testimony pertains to "lay matters which a jury is capable of understanding and deciding without the expert's help."*fn80 It is no more than "arguments and conclusory statements about questions of fact masquerading behind a veneer of technical language."*fn81

  It is for counsel to make the arguments about the significance of Warner-Lambert's conduct or omissions with respect to its researchers and not for an expert to testify as to whether the company did or did not do something. Furthermore, Dr. Smith's statements as to the intent or motives that underlay that same — as yet undetermined — conduct are improper "musings as to the Page 33 defendants' motivations."*fn82 Finally, an expert who, like Dr. Smith, lacks personal knowledge may "only testify about the underlying facts if he [is] actually bringing to bear his scientific expertise."*fn83 Dr. Smith has no first — hand knowledge of the circumstances underlying his charge of data — suppression but brings no scientific or other technical expertise to bear on his testimony.

  Accordingly, all of Dr. Smith's testimony concerning Warner-Lambert's alleged interference with the independence of its in — house scientists or its alleged suppression of scientific research is inadmissible.

 VIII. Warner-Lambert's Alleged Failure Adequately to Protect Patients who Participated in the Rezulin Clinical Trials.

  Two of plaintiffs' proposed experts, Drs. Kronmal and Furberg, have rendered reports expressing the view that Warner-Lambert failed adequately to protect patients in clinical trials of Rezulin.*fn84 This testimony is not relevant under Rules 401 and 702 because no plaintiff in this MDL has been identified as a participant in a Rezulin clinical trial. The proposed testimony, even if otherwise admissible, therefore would not "assist the trier" to determine a fact in issue, as required Page 34 by Rule 702. Accordingly, it is inadmissible.*fn85

 IX. What Other Physicians Understood About Rezulin and its Benefits — Risks.

  Two of the plaintiffs* proposed experts, Drs. Gale and Bell, have rendered reports and/or testified in depositions regarding unidentified physicians' understandings of different occurrences, as well as their understanding of the risks and benefits of Rezulin.

  Dr. Gale commented repeatedly in his deposition about physicians' understandings of various medications, stating that the significance of a new medication comparing favorably to a placebo "is not always understood" by physicians.*fn86 He opined also that physicians do not generally examine a package insert for safety information about a medication, stating that "[t]he insert is — in fact, many physicians, to be quite honest, don't see the inserts, because the insert is something that's only available to the patients, as the doctors do not open the package and take out the insert and read it."*fn87 He later expressed the view that "[n]ow, a physician reading a statement saying `reversible jaundice' thinks this is a harmless condition, self — limiting."*fn88 Page 35

  Dr. Bell, too, testified about what other physicians understood about the risks and benefits of Rezulin.*fn89 He further expressed his view on what was known to the endocrinology community: "This tremendously high mortality rate associated with drug — induced liver disease was not well known and not well appreciated in the endocrinology community."*fn90

  Defendants seek to preclude the above — cited testimony on the grounds that Drs. Gale and Bell are not qualified to opine as to what doctors in general think. Plaintiffs concede that Page 36 opinions as to what "doctors in general think" would be inadmissible, but argue that the opinions challenged by the defendants do not fall into this category but rather pertain to the realm of permissible "completeness and accuracy" testimony. The parties' positions reflect a distinction drawn made by the Diet Drugs court.*fn91

  The challenged opinions self — evidently discuss the practices of physicians as to reading labels or package inserts and their understandings of the contents of the Rezulin label. Accordingly, these opinions are excluded under Rule 702 as speculative testimony.*fn92 Pursuant to the defendants' concession, and subject to relevance rulings to be made by the trial courts, these witnesses are not precluded from offering otherwise admissible testimony as to the accuracy of the Rezulin label.*fn93

 X. Decisions Made by Prescribing Physicians.

  Plaintiffs propose to introduce analogous testimony through Dr. Furberg, to the effect that physicians would not have prescribed Rezulin if they had been provided with more complete Page 37 information about Rezulin. "By misleading clinicians about the magnitude and seriousness of the liver problem, a large number of patients ended up taking Rezulin instead of safer, more effective and cheaper treatment alternatives. By withholding important safety information about Rezulin from providers, the Company also undermined the physician — patient relationship."*fn94

  Defendants seek to preclude this testimony on the grounds that (1) it is speculative because Dr. Furberg lacks expertise in treating diabetics or making risk — benefit assessments for drugs,*fn95 and (2) it improperly second — guesses the FDA's decisions as to the adequacy of the Rezulin label. Plaintiffs attempt to re-characterize Dr. Furberg's opinions as articulating general principles that physicians require accurate information on labels to make informed decisions and that prescriptions tend to decline when drug labels report adverse events in increasing numbers or frequency. Any physician, plaintiffs argue, is qualified so to opine, so it is irrelevant that Dr. Furberg lacks expertise in diabetology or risk — benefit assessment.

  The clear import of Dr. Furberg's opinions is that physicians would not have prescribed Rezulin if Warner-Lambert had provided different information to physicians. Testimony similar to Dr. Furberg's was excluded as speculative in Diet Drugs. The court there excluded an expert opinion "as to whether [defendants's] failure to report certain information to the FDA led to Page 38 more suffering and deaths of patients."*fn96 It held that the expert was "not qualified to opine on what decisions would have been made by the numerous physicians who prescribed diet drags had they been provided with different labeling information. Unlike opining about what physicians in general expect to see on a label, his surmising as to what physicians would do with different information is purely speculative and not based on scientific knowledge."*fn97 Similarly speculative is Dr. Furberg's testimony as to whether physicians would have prescribed Rezulin if different information about Rezulin had been available. Accordingly, his testimony on this subject is inadmissible.

 XI. Duty to Warn Patients

  Dr. Furberg's report included also statements regarding a company's duty to warn patients. Dr. Furberg first opined that "[s]tudy subjects and regular patients also have the right to be folly informed by drag manufacturers about the drags being tested or prescribed. To determine whether a treatment selection is acceptable, they need to be aware of all known favorable and unfavorable drag actions."*fn98 In paragraph 45(a) of his report he asserted that by allegedly withholding information Warner-Lambert violated "three basic patient rights issues." By violating these alleged "three basic patient rights," Warner-Lambert supposedly violated three corresponding Page 39 "duties" of (1) foil disclosure, (2) not harming others and (3) "distributional justice."*fn99

  Warner-Lambert asserts that Dr. Furberg is offering personal opinions that run contrary to controlling law — as embodied in FDA regulations and the learned intermediary doctrine — insofar as they hold that pharmaceutical companies should provide accurate information to patients rather than physicians. Warner-Lambert argues also that Dr. Furberg's opinions invade the province of judge and jury insofar as they purport to articulate legal standards and then judge Warner-Lambert's conduct under those standards.

  Plaintiffs resist the defendants' characterization of Dr. Furberg's opinions, asserting that they concern the "standard of conduct within the medical community" rather than the duties of the pharmaceutical companies to patients, and so do not invade the province of judge or jury. In the alternative, they contend that the opinions do not run contrary to controlling law because the learned intermediary doctrine*fn100 is inapplicable where, as here, Rezulin was marketed directly to consumers.

  Dr. Furberg's opinions concerning the rights of patients or the duties of pharmaceutical companies are not appropriate expert testimony because they embrace ultimate questions of law outside the province of an expert. As the Second Circuit held in United States v. Bilzerian, expert testimony must be circumscribed carefully to ensure that "the expert does not usurp either the role of the trial judge in instructing the jury as to the applicable law and the role of the jury Page 40 in applying that law to the facts before it."*fn101

  Plaintiffs counter that Dr. Furberg's proposed testimony does not invoke duties "required by law," but merely sets forth the "standards of conduct within the medical community." The argument is without merit. Dr. Furberg's opinions on the "three basic rights" of patients are at best thinly — disguised legal or quasi — legal principles. This is particularly evident in the case of the so — called "principle of self — determination," which is nothing but a formulation of the doctrine of informed consent.*fn102 Accordingly, Dr. Furberg's testimony on the "basic rights of patients" communicates a legal standard and so would encroach on the court's prerogative to instruct on the law. Dr. Furberg would fare no better if the Court were to view Dr. Furberg's opinions as articulating a "medical community standard" rather than a legal one: "testimony encompassing an ultimate legal conclusion based upon the facts of the case is not [admissible] and may not be made Page 41 so simply because it is presented in terms of industry practice. "*fn103

  Accordingly, testimony regarding patients' rights or a duty to warn patients is inadmissible.

 XII. Rezulin's Efficacy and its Risk — Benefit Ratio.

  Several of plaintiffs' experts propose to testify regarding Rezulin's efficacy, risk, and risk — benefit ratio. A precis of the challenged testimony and the Court's decision regarding each expert follow.

  A. Dr. Bell.

  Dr. Bell opined on the subject of drug — induced liver injury, stating: "I am also aware of evidence suggesting that a Rezulin reaction is worse in patients with pre-existing liver dysfunction."*fn104 He suggested also that Rezulin may cause a variety of liver injuries other than those warned about in the label, including cirrhosis.*fn105 Defendants argue that Dr. Bell is not qualified to offer these opinions because he lacks pertinent expertise.*fn106 Plaintiffs do not dispute the point but Page 42 instead deny that the challenged statements are opinions. Rather, they claim, the statements are "undisputed fact[s]" that form the basis for Dr. Bell's opinions. What opinions those might be, plaintiffs do not say.

  This aspect of Dr. Bell's proposed testimony plainly consists of opinions — opinions that are hotly contested and go to the heart of this litigation. In view of Dr. Bell's admitted lack of pertinent expertise, the testimony is excluded.

  B. Dr. Bonkovsky.

  Dr. Bonkovsky testified that he agreed with Dr. Gale's opinion that "there really was never evidence that there was that much more benefit to Rezulin compared with the already available on — the — market treatment."*fn107 Defendants object that Dr. Bell lacks the expertise to offer this opinion, citing his admission that he is "not an expert diabetologist or endocrinologist"*fn108 Plaintiffs rejoin that a physician's lack of expertise in the field on which he offers opinions affects its weight, not its admissibility.

  As a broad proposition both sides are correct. The Second Circuit has taken a liberal view of the qualification requirements of Rule 702, at least to the extent that a lack of formal training does not necessarily disqualify an expert from testifying if he or she has equivalent relevant Page 43 practical experience.*fn109 On the other hand, Daubert nevertheless requires district judges to determine whether the experience of a particular witness warrants placing that individual's view before the trier of fact.

   This Court finds Judge Conner's opinion in Mancuso v. Consolidated Edison*fn110 instructive. The court there precluded an internist, who worked primarily as a plaintiffs' expert in medical malpractice litigations, from testifying that PCB caused the plaintiffs injuries. The fact that the witness lacked formal training in toxicology or environmental medicine was not dispositive; rather, the Court found that his only relevant experience — exposure, during his medical training, to "many patients [that] had environmental problems" — was insufficient to establish the requisite specialized knowledge regarding the effects of PCBs on "living creatures."*fn111 Likewise, in light of Dr. Bonkovsky's lack of formal training in diabetology or endocrinology, the mere fact that some of his liver patients may have been exposed to Rezulin is insufficient to suggest that he has specialized knowledge on the risks and benefits of Rezulin — a drug that, as a hepatologist, he presumably has had little occasion to prescribe.*fn112 Page 44

   C. Dr. Day.

   Dr. Day testified that he "strongly disagree[s] with Parke-Davis' delay in `voluntarily' removing troglitazone from the US marketplace, which undoubtedly resulted in many needless cases of hepatotoxicity."*fn113 Defendants challenge Dr. Day's qualifications so to opine.

   Dr. Day admitted that he is "not an expert on diabetes in the U.S."*fn114 He conceded also that a decision whether to keep Rezulin on the market would require an evaluation of the risks versus the benefits, a task for which he is not qualified.*fn115 Indeed plaintiffs concede that "[b]ecause of Dr. Day's admitted lack of familiarity with Rezulin's alleged benefits in treating diabetes, Plaintiffs will not offer testimony from him relating to what the Defendants call the benefit side of the risk/benefit analysis."*fn116 But plaintiffs cannot so limit the impact of Dr. Day's admissions. If he is unqualified to evaluate the benefit side of a risk — benefit analysis for Rezulin then, even assuming that he were qualified to comment on its risks in isolation (he is, after all, a hepatologist with experience in researching drug — induced liver disease),*fn117 he cannot testify about Rezulin's relative risk, as he would have to do in order to address the risk — befit ratio for Rezulin. Accordingly, Dr. Day's testimony regarding the efficacy or risk — benefit ratio for Rezulin is excluded. Page 45

   D. Dr. Furberg.

   Dr. Furberg admitted that the efficacy data for Rezulin met FDA standards, under which a diabetes drug is considered effective if it lowers hemoglobin A1C, a measure of blood sugar.*fn118 But he proposes to testify that the FDA should "go beyond" this criterion to require that diabetes drugs should be shown to "reduce macrovascular complications."*fn119 He admits that this is his "public health viewpoint" and a personal "gold standard" that is not met by any diabetes drug currently on the market.*fn120 Defendants object to this testimony as unreliable speculation. Plaintiffs essentially concede the point,*fn121 but raise a host of insignificant objections which the Court rejects. Dr. Furberg's testimony regarding efficacy standards to which drug manufacturers ideally should adhere to "is not an `expert' opinion, but rather a personal opinion about what standards [he] believes Page 46 should apply to pharmaceutical company conduct."*fn122 It would not help the fact — finder to determine a fact at issue in this litigation. Accordingly, this testimony is excluded.*fn123

   E. Dr. Julie.

   Dr. Julie proposes to testify regarding Rezulin's efficacy in treating diabetes and its risk — benefit ratio.*fn124 Warner-Lambert objects, arguing that Dr. Julie is unqualified because he is not an endocrinologist and lacks expertise in treating diabetes patients.

   This does not in itself disqualify Dr. Julie. Defendants do not contest the general assertions in Dr. Julie's report that he is a board — certified gastroenterologist and has been a practicing physician in gastroenterology and hepatology for over fifteen years.*fn125 They simply assert that "more specialized expertise" is required. Regrettably, however, the parties have not addressed the issue of Dr. Julie's qualifications with respect to the challenged testimony adequately. For example, plaintiffs have not brought to the Court's attention evidence in the record indicating that Dr. Julie has treated Page 47 diabetic patients with Rezulin, rather than other therapies. Conversely, the defendants do not contest the plaintiffs' allegation that he has treated "numerous diabetic patients."*fn126

   Accordingly, the defendants' motion in limine with respect to Dr. Julie's opinions on the efficacy and risk — benefit of Rezulin is denied without prejudice to renewal.

   F. Dr. Gale.

   Dr. Gale proposes to opine that the risk of Rezulin outweighed its benefits. As to the risk side of the equation he stated in his report that the chance of Rezulin — induced liver failure is 1 in 1000. That number derives from an unpublished December 19, 2000 report by Dr. David Graham, an FDAbiostatistician.*fn127 Defendants seek to preclude all of Dr. Gale's testimony regarding the risks and benefits of Rezulin on the ground that his testimony about the risks would violate Rules 702 and 703.

   1. Analysis under Rule 703.

   Under Rule 703 a district court may allow an expert to testify based on inadmissible evidence, such as hearsay, if the evidence — here the unpublished Graham report and its conclusion that the risk of Rezulin — induced liver failure is 1:1000-is "of a type reasonably relied Page 48 upon by experts in the particular field."*fn128 Daubert's broad mandate requiring district courts to act as gatekeepers to prevent the admission of untrustworthy expert testimony applies fully to the analysis under Rule 703, and courts have broad discretion in determining whether hearsay evidence is "of a type reasonably relied upon by experts."*fn129 Moreover district courts must make an independent determination that the material in question is sufficiently reliable for experts in the field to rely upon it and are not bound merely "to accept expert testimony based on questionable data simply because other experts use such data in the field."*fn130 The Court, therefore, is not bound by Dr. Gale's assertion that, in his view, "anyone" would rely on Graham's report because it was a product of the FDA, an agency that (again, in his view) is widely regarded as the world's most rigorous and objective source of information on drugs generally and Rezulin in particular.*fn131 The parties have not brought to the Court's attention any authorities addressing the reliability of an expert's reliance on an unpublished study by an FDA employee. Thus the analysis proceeds in the framework of established principles Page 49 under Rules 702 and 703.

   First, defendants correctly note that Dr. Gale viewed the unpublished Graham report as "final" and "definitive."*fn132 And while Dr. Graham labeled the study as a "Final Report," the same study later was published with the conclusion that the incidence of acute liver failure was 1:4200 — less than one — fourth the rate in the earlier, unpublished report.*fn133 Moreover, plaintiffs do not dispute that under the FDA's own regulations the unpublished report did not qualify as an official position of the FDA, a fact of which Dr. Gale apparently was unaware.*fn134 Thus the December 2000 Graham report itself would appear to be untrustworthy when relied upon, as did Dr. Gale, as a definitive opinion of the FDA.*fn135 Moreover, Dr. Gale admitted that he made no effort to ascertain Page 50 whether the unpublished study was, in fact, "definitive" or merely a preliminary draft.*fn136 More importantly, however, the Court harbors concerns as to why Dr. Gale would, in a report prepared for this litigation, rely on the 1:1000 ratio expressed in an unpublished study authored by another person, while eschewing his own published, peer — reviewed view that the ratio was in the far lower range of 1:8000 to 1:20,000.*fn137 This omission is left unexplained and suggests that Dr. Gale's reliance on the unpublished Graham report was not based on scientific method but on the expediencies of this particular litigation.*fn138 Taken together, all of these factors lead the Court to conclude that Dr. Gale's reliance on the unpublished Graham report does not comport with Rule 703. To the extent that Dr. Gale's opinions regarding the risk of Rezulin are based on the 1:1000 ratio found in the unpublished Graham report they therefore are inadmissible.*fn139

   2. Analysis under Rule 702.

   Additional aspects of Dr. Gale's proposed testimony lead to the conclusion that Page 51 his opinions on the ratio of Rezulin — induced liver failure are unreliable also under Rule 702 and Daubert.

   First, there is Dr. Gale's admission that he adopted Graham's 1:1000 ratio without considering two epidemiological studies (one published, the other available to him through plaintiffs' counsel) that addressed this very subject but reached drastically different conclusions — viz. a ratio of 1:10,000, which is less than one — fourth that in the Dr. Graham piece.*fn140 This omission is especially glaring against Dr. Gale's own deposition testimony that in looking at the level of risk of acute liver failure from Rezulin "[a]ll evidence should be taken into account,"*fn141 including epidemiological studies.*fn142 Although the Selby-Chan study had not been published at the time of Dr. Gale's deposition plaintiffs do not dispute that an abstract and draft were given to plaintiffs' counsel before Dr. Gale's deposition, and that Dr. Selby had been deposed in this case before Dr. Gale. Yet Dr. Gale testified he never had reviewed the abstract or the study and was unaware that Dr. Selby had been deposed this case.*fn143 Dr. Gale's selectivity in defining the universe of relevant evidence thus violated his own Page 52 standard of proper methodology that "[a] 11 evidence should be taken into account," which suggests that he does not apply the same rigor in the courtroom that he would apply to his medical endeavors.*fn144 As the court held in Lust v. Merrell Dow Pharm., Inc.,*fn145 an expert may not "`pick and chose' from the scientific landscape and present the Court with what he believes the final picture looks like."*fn146 Similarly, in a case cited by the plaintiffs, this Court precluded an expert from testifying in part because he ignored available information that was vital to his opinion.*fn147

   Second, when confronted with the 1:10,000 incidence rates described in the two epidemiological studies that he did not review, Dr. Gale shifted his position, claiming for the first time the "acceptable risk [for Rezulin] is zero"*fn148 because Rezulin offers "no true benefit." In a similar vein, he testified that he "challenge[d] the whole concept of what is an acceptable level of risk" for Rezulin because "[wh]ether it's one in 1,000 or one in 10,000 or even one in 20,000,1 will not use that Page 53 drug, because there is no drug worth dying for when it comes to the treatment of diabetes."*fn149

   The basis for this view, Dr. Gale testified, is that "[Rezulin] is special."*fn150 But Dr. Gale acknowledged that death is a side effect of other medications on the market*fn151 and that diabetes medications that he prescribes, such as insulin, metformin and sulfonylureas, also carry serious risks, albeit ones that (to his mind) are not comparable to Rezulin because the benefits of those other drugs, on balance, are higher than those of Rezulin. Moreover, as this Court has written, many of plaintiffs' other experts have acknowledged that "Rezulin was enormously beneficial to many patients."*fn152 Dr. Gale's view that there is no acceptable risk for Rezulin therefore is so extreme that it appears to be shared by no other expert inside or outside this litigation.

   To be sure, Daubert explicitly dispensed with the Frye general — acceptance standard and held that "some propositions . . . are too particular, too new, or of too limited interest to be published."*fn153 But none of these factors applies to the subject of the incidence rate of Rezulin — induced liver failure, as is evident on this very record which includes relevant publications, including Dr. Gale's. In the circumstances, the assertion that Rezulin is "special" suggests to the Court that Dr. Gale is not employing in the courtroom the same level of intellectual rigor that characterizes the Page 54 practice of an expert in the relevant field, or at the very least this particular expert.*fn154

   3. Liver Enzyme Testimony.

   Defendants object also to Dr. Gale's proposed testimony concerning changes in liver enzymes. Relying on an article by Aithal and Day entitled "The Natural History of Histologically Proved Drug Induced Liver Disease," Dr. Gale opined that the "reversibility of changes in liver enzymes does not necessarily imply that the episode is either concluded or benign" and that "[l]iver inflammation can and often does persist after the drug has been withdrawn."*fn155

   Defendants argue that this testimony is unreliable because the article Dr. Gale relies upon does not mention Rezulin, Dr. Gale is not aware of any study or article that reaches a conclusion similar to Aithal — Day, and he has not seen any peer — reviewed literature consistent with his opinion.*fn156 Second, defendants argue that Dr. Gale is unqualified to give this testimony because he is a doctor specializing in the treatment of diabetic patients, but not a hepatologist, and that he has not demonstrated sufficient experience dealing with drug — induced liver injury, to testify about liver Page 55 enzyme changes. Plaintiffs do not oppose, and thus are deemed to admit, the defendants' contentions regarding the unreliability of the challenged testimony. As to Dr. Gale's qualifications, plaintiffs merely assert that defendants' position "carries expert qualification to an illogical extreme" and cite cases outside this Circuit for the general proposition that lack of specialization merely affects the weight, not the admissibility, of expert testimony.

   The Court finds that Dr. Gale's opinions on the elevation of liver enzymes is unreliable for the reasons stated by the defendants. Accordingly, his testimony on the subject is inadmissible.

  XIII. Dr. Julie's Opinions on Dr. Watkins's Spreadsheets.

   Dr. Julie opined that Rezulin can cause cirrhosis, basing this view in part on certain spreadsheets created by Dr. Watkins, a hepatology consultant to Warner-Lambert.*fn157 Defendants challenge this testimony on the ground that it is not "based upon sufficient facts or data" because it is contrary to undisputed evidence in the record — more specifically, Dr. Watkins's own testimony as to the meaning of the spreadsheets. Plaintiffs argue that Dr. Julie's proposed opinions are consistent with deposition testimony that Dr. Watkins's gave regarding a different set of spreadsheets in a separate Rezulin case.

   The spreadsheets in question here were prepared by Dr. Watkins to track adverse events associated with Rezulin. In various columns he listed information including the names of the patients, their ages, and the dates of Rezulin use. In a column headed "Comments," Dr. Watkins noted Page 56 information about existing medical conditions or adverse events reported for a particular patient. In some instances he noted the term "cirrhosis." In another column (or columns), he noted whether Rezulin, in his view, was "possibly" or "probably" the cause of the adverse event — there appear to have been 33 cases with the notation "cirrhosis" of which two were classified as "probably" and nine were classified as "possibly."*fn158

   At his deposition Dr. Watkins testified as to what he meant when he included the term "cirrhosis" in the "Comments" column — he meant only that "cirrhosis was either reported or some evidence of cirrhosis was present. It was not in any way a statement that Rezulin had caused the cirrhosis."*fn159 He testified further that it would be inaccurate to construe his spreadsheets as proof that Rezulin caused cirrhosis.*fn160 He stated also that the spreadsheets that Dr. Julie relied on were designed as a basis for causation assessments with respect to acute, rather than chronic, liver injuries such as cirrhosis.*fn161 Consequently, he stated, "the fact that cirrhosis appears in my comments section is not related to my assessment . . . [it is merely noted] as a feature of the case."*fn162

   Plaintiffs claim that Dr. Watkins' definition of "probable" with respect to a Page 57 different set of spreadsheets, not at issue here, is consistent with Dr. Julie's testimony about the subject spreadsheets. In that context, Dr. Watkins said that the term "probable" meant that "[Rezulin] contributed significantly to the liver event" or that he believed "with a reasonable degree of certainty [that the adverse event was] at least in part related to Troglitazone."*fn163

   It may well be that there is an issue of fact as to what Dr. Watkins intended when he used the word "cirrhosis" in the spreadsheets relied upon by Dr. Julie. By no stretch of the imagination, however, could one say that Dr. Julie's assumption as to what Dr. Watkins meant be regarded as an appropriate basis upon which to ground expert testimony. He proposes to give an expert opinion based on a guess, not facts. Page 58

  XIV. Conclusion.

   For the foregoing reasons, the defendants' motion in limine is granted to the extent set forth above and otherwise denied.


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