April 6, 2022

In its opinion filed on February 10, 2022, the United States Court of Appeals for the Fifth Circuit (“Federal Appellate Court”) stated: “we are persuaded that the district court erred by admitting Dr. Kopreski’s testimony under Rule 701, and the error was not harmless because Earnest’s substantial rights were prejudiced by admission of the testimony. Sanofi’s stratagem of skating the line between Rules 701 and 702 with Dr. Kopreski’s testimony—borne out by the record and essentially confirmed at oral argument—reflects a calculated and troubling end-run around Rule 702 and Daubert. These evidentiary gates exist to keep out error that may impermissibly affect the jury … and the district court should not have left the gate ajar here.”

Rule 701

Rule 701 governs the admissibility of opinion testimony by a lay witness: If a witness is not testifying as an expert, the testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The Underlying Facts

Barbara Earnest sued drug makers Sanofi U.S. Services Inc. and Sanofi-Aventis U.S., L.L.C. in the Eastern District of Louisiana. Earnest’s suit is part of the multidistrict litigation (MDL) over several pharmaceutical companies’ alleged failure to warn users of Taxotere (generically docetaxel), a chemotherapy drug, of the risk of permanent alopecia or hair loss. At trial, Sanofi elicited testimony from two medical doctors. One, Dr. John Glaspy, was accepted as an expert witness under Federal Rule of Evidence 702. The other, Dr. Michael Kopreski, was offered as Sanofi’s designated corporate representative under Federal Rule of Civil Procedure 30(b)(6). Both testified that little medical evidence linked Taxotere to permanent hair loss.

Earnest challenged the admission of Dr. Kopreski’s testimony, arguing it was actually expert testimony admitted in contravention of Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). By extension, she argued that because Dr. Glaspy’s testimony relied in relevant parts on Dr. Kopreski’s testimony, it also should not have been admitted.

The Appellate Court held: “Sanofi’s maneuvers in cloaking Dr. Kopreski’s quasi-expert testimony as “lay witness” opinion testimony under Federal Rule of Evidence 701, and then using Dr. Glaspy to repeat it as expert analysis, effected a concerning end run around Rule 702. Because this strategy allowed Sanofi to shoehorn inadmissible opinion testimony into evidence—and then emphasize those “expert” conclusions in closing arguments to the jury—it significantly prejudiced Earnest’s case. We REVERSE the district court’s judgment and REMAND the claims appealed here for a new trial.”

Source Earnest v. Sanofi U.S. Services, Incorporated, No. 20-30184.

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