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Monday, July 09, 2007

Ind. Decisions - Two today from the 7th Circuit

In Mickey Ervin v. Johnson & Johnson (SD Ind., John Daniel Tinder, Judge), a 6-page opinion, Judge Bauer writes:

Mickey Ervin brought a products liability action against Johnson & Johnson, Inc. and Centocor, Inc., claiming that his prescription medication Remicade caused a blood clot that required the partial amputation of his leg. Defendants moved in limine to exclude testimony from plaintiff’s expert and filed a motion for summary judgment. The district court granted both motions. Ervin now appeals these rulings. We affirm. * * *

A differential diagnosis satisfies a Daubert analysis if the expert uses reliable methods. Under Daubert, expert opinions employing differential diagnosis must be based on scientifically valid decisions as to which potential causes should be “ruled in” and “ruled out.” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir. 2005). Determining the reliability of an expert’s differential diagnosis is a case-by-case determination.

We agree with the district court that Dr. McKinley had no reliable basis for his expert opinion. He could not point to any epidemiological data supporting his opinion, and he was not able to articulate any scientifically physiological explanation as to how Remicade would cause arterial thrombosis. The mere existence of a temporal relationship between taking a medication and the onset of symptoms does not show a sufficient causal relationship. The district court did not abuse its discretion in finding that Dr. McKinley’s testimony was unreliable. In the absence of any other expert evidence supporting Ervin’s causation theory, the district court properly granted summary judgment.

In U.S. v. Sloan (SD Ind., Sarah Evans Barker, Judge), a 22-page decision in which Judge Flaum dissents in part, Judge Bauer writes:
A jury convicted James L. Sloan of six counts of mail fraud and 26 counts of wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. The district court sentenced Sloan to 18 months of incarceration, followed by two years of supervised release, and ordered him to pay $19,654.60 in restitution. Sloan now appeals his judgment of conviction and sentence. We affirm.

I. Background. With an offer of “Free Electricity for Life! Plus—the opportunity to make $492,000.00 per year” and other similar offers, Sloan enticed at least ninety individuals to join his organization, the Christian Freedom Foundation. To take advantage of these offers advertised in the March, April, July, and August 2001 editions of Sloan’s Christian Freedom Chronicle, these individuals were required to join the Christian Freedom Foundation. * * *

[The opinions reviews the various enhancements, including #4, the Enhancement for Mass-Marketing.]

The definition of “mass-marketing” is not limited to telephone, mail, or Internet solicitations but includes “other means.” Sloan used such “other means,” the Christian Freedom Chronicle, to reach a large number of individuals in order to have them pay to join the Christian Freedom Foundation. Accordingly, the district court’s application of the massmarketing enhancement was appropriate.

III. Conclusion For the foregoing reasons, Sloan’s judgment of conviction and sentence are AFFIRMED.

[Judge Flaum concludes in his partial dissent:] The majority relies on the fact that Bemiller testified that she trusted the solicitation because the Christian Freedom Foundation was a Christian organization. Bemiller testified that she “wrote out the check. It sounded good. It had ‘Christian’ on it, so I thought well, this has got to be good.” Although Bemiller trusted the scheme because it was being orchestrated by a Christian organization, she did not subscribe to the organization because of its Christian purpose. She, like all of the other victims, subscribed because she thought that she would get a free electricity generator and a financial windfall. In my view, Sloan did not exploit his victims’ charitable impulses, and therefore I would hold that the district court erred when it enhanced his sentence under § 2F1.1(b)(4)(A).

Posted by Marcia Oddi on July 9, 2007 01:18 PM
Posted to Ind. (7th Cir.) Decisions