May 15, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 5180 -
Matthew F. Kennelly, Judge.
Bauer, Kanne, and Hamilton, Circuit Judges.
Owens used Testim, a topical gel containing 1% testosterone,
sporadically for two years. During this time, he developed
deep vein thrombosis. He sued Testim's manufacturer,
alleging that the drug caused the condition. To show
causation-a necessary element of all of his claims-Owens
planned to rely on the testimony of Dr. Jihad Abbas. The
district court excluded Dr. Abbas's testimony and, as a
result, granted summary judgment in favor of the drug
manufacturer. Owens appeals the district court's decision
to exclude his expert's testimony and grant summary
judgment. We affirm.
developed deep vein thrombosis ("DVT") while using
Testim, a drug manufactured by the defendant-Auxilium
Pharmaceuticals, LLC. He and other plaintiffs in a
multi-district litigation allege that they suffered injuries
because they took Testim and other
testosterone-replacement-therapy drugs. Owens's case was
selected for a bellwether trial in the multidistrict
began using Testim in July 2011 when his doctor diagnosed him
with hypogonadism. Between July 2011 and July 2013, Owens
used the drug sporadically. He refilled his prescription only
three times, so he did not have enough of the drug to take a
full daily dose during the time period. When Owens did use
Testim, he did so incorrectly. Although the medication guide
directs users to apply a full tube of Testim to the shoulders
and arms, Owens testified that he would apply part of a tube
to his thighs and stomach.
12, 2013, Owens was admitted to a hospital's emergency
department for pain in his left leg. After an ultrasound
revealed blood clots in his leg, he was diagnosed with DVT.
Owens was treated with blood thinners and released from the
hospital the following day.
suit, Owens alleges that Testim caused the DVT and asserts
claims for strict liability, negligence, fraud, and negligent
misrepresentation under Kentucky law. Each of these claims
requires expert testimony to establish causation. In re
Testosterone Replacement Therapy Prod. Liab. Litig.
Coordinated Pretrial Proceedings, No. 14 C
1748, 2017 WL 4772759, at *6 (N.D. Ill. Oct. 23, 2017)
(citing Adams v. Cooper Indus., Inc., No. CIV.A.
03-476-JBC, 2012 WL 2339741, at *1 (E.D. Ky. June 19, 2012)).
For that, Owens planned to rely on the testimony of Dr.
Abbas. But Dr. Abbas's testimony was problematic.
Although Dr. Abbas opined that Testim had caused Owens's
DVT, he did so on the assumption that Owens was applying the
prescribed dose of the gel in the proper manner. Moreover,
when asked during his deposition about hypothetical cases
that resembled Owens's use of Testim, Dr. Abbas explained
that he had no opinion.
moved to exclude Dr. Abbas's testimony because it was not
tied to the facts of the case. It also moved for summary
judgment because, without the expert testimony, Owens could
not show that Testim caused his injury. The district court
agreed and granted summary judgment to Auxilium. Owens
appeal centers on the district court's exclusion of Dr.
Abbas's testimony, which Owens argues was improper.
Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) govern this
decision. In relevant part, they require that the
expert's testimony "assist the trier of fact."
Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809,
816 (7th Cir. 2004) (quoting NutraSweet Co. v. X-L
Eng'g Co., 227 F.3d 776, 788 (7th Cir. 2000)). To do
so, the testimony must "fit the issue to which the
expert is testifying and be tied to the facts of the
case." Hartman v. EBSCO Indus., Inc., 758 F.3d
810, 819 (7th Cir. 2014) (quoting Deimer v. Cincinnati
SubZero Prods., Inc., 58 F.3d 341, 345 (7th Cir. 1995)).
When there is no question that the district court properly
followed Daubert's framework-as is the case
here-we consider whether the district court abused its
discretion by excluding the testimony. Durkin v. Equifax
Check Servs., Inc., 406 F.3d 410, 420 (7th Cir. 2005).
the district court properly exercised its discretion by
concluding that Dr. Abbas's testimony did not fit the
facts of Owens's case. Dr. Abbas testified that Testim
caused Owens's DVT on the assumption that Owens used
Testim as prescribed. This in fact was not the case. Owens
instead testified that he used far less than the prescribed
dose and that he did not apply the medication as directed.
When presented hypotheticals that more closely resembled the
facts of Owens's case, Dr. Abbas conceded that he could
not offer an opinion. Because Dr. Abbas's testimony did
not fit the facts of the case, it was not likely ...