NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0580n.06 No. 11-5053 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

In re: AR EDIA AND Z OMETA P RODUCTS ) LIABIL ITY LIT IGA TION )

__________________________ ) ) CLARISSA SI MMONS, substituted on b ehalf ) of Jame s Simm ons, d ece ased, ) ) ON AP P EAL FR OM THE P laintif f-App ellant, ) UNITED STAT ES DIS TRICT

) COURT F OR THE MIDDLE v. ) DISTRICT OF TENNESS EE ) NOVARTIS P HARMAC EUTICALS ) CORP ORATION, ) ) Defendan t-Appellee. ) ) )

BEFORE: BOGG S, SUHRHE INRICH and COOK, Circuit Judges. SUHRHEINRICH, Circuit Judge. Plaintiff Clar issa Simm ons (“Plaintiff” ), widow and persona l repr esenta tive of J ames Simm ons (“Simmons”), appea ls the decisions of the district court g ranting summary judgme nt in favor of Def endant Novar

tis Pharma ceutica ls Corpor ation (“N PC” or “Defe ndant”) and prohibit ing Sim mons’s trea ting phy sicians and reta ined ex pert f ro m offe ring expert testimony

on the ca use of Simmons’s injury

in this product-liability

action. We AF FI RM.

-1-I. Background A. F acts Simm ons develope d osteonec rosis of the jaw (ONJ), a sever e bone disease aff ecting the jaw, 1 alleg edly as a result of using the presc ription medications Zometa and Aredia, drugs p ro d u ce d by NPC. For thirty -five y ear s, Simm ons smoked a pack of cig are ttes a day

. I n November 2000, Simm ons was diag nosed with lung canc er. I n 2002, the ca ncer metastasized to Simmons’s bones, and he was presc ribed Z ometa to trea t it. I n May 2003, Simm ons develope d rena l insufficienc y and

was switched to Are dia. Z ometa and Are dia are FDA -appr oved intravenous bisphosphonate drug s 2
presc ribed for the preve ntion and trea tment of s keletal rela ted events, such as bone fra cture s and spinal cord compre ssion, in patients suffe ring from cer tain ty pes of canc er that has metastasized to the bone. They are also presc ribed for the trea t m ent of another complication of canc er, hy perc alce mia of malig nancy , a potentially fata l elevation of c alcium in the blood. Fr om 1999 to November 2002, Simm ons was trea ted by dentist Dr. Mohamed Z amaludin. I n October 2002, Simm ons beg an complain i n g of pain in his rig ht lower jaw, and saw Z amaludin in November

. On Fe bruar y 28, 2003, he vis i t ed an o ra l surg eon, Dr. E. Ross Mey er. Dr. Mey er d eter mined that all that rema ined of Tooth 29 was its root, which was infec ted and nee d ed t o b e

remove d. Tooth 29 was remove d o n M ar ch 5, 2003. This is the location wher e Simm ons experience d his jaw problems.

ONJ “re sults in the g ums being eate n awa y until the bone is repla ced.” Thomas v. Novartis 1 Pharm. Corp. , (6th Cir. ) 443 F. A pp’x 58, 60. “B isphosphonates are a class of drug s that derive their name from their chemica l structure , 2 which conta ins two phosphonate groups .

. . , covale ntly bonded to a ca rbon atom.” Thomas , 443 F. App’ x at 60. -2-I n J uly 2003, Simm ons beg an experiencing jaw pain ag ain. I n J uly 2004, he beg an trea tment

with Dr. Geor g e Obeid, an oral and maxi llofacia l surg eon. A biopsy on his jaw showed the prese nce of osteomy elitis, an infection of the jaw bone. I n April 2006, Simm ons filed this product-liability action. B. Plaintiff ’s Experts 1. Dr. Obeid Plaintiff offer ed Dr . Obeid as a “non-r etained” expert. Dr. Obeid is a board-ce rtified ora l 3 and maxi llofacia l surg eon. He is head of the Depa rtment of Ora l an d Maxi llofacia l Surg ery at Washington Hospital Center in Was hington, D.C. Dr. Obeid is also a member of the Americ an Association of Or al Maxil lo Surge ons. Dr

. Ob ei d opined in his deposition testimony that he found a “ver y close association” betwee n ONJ and biosphosphonates. Dep. at 16. Dr. Obe id testified that he conside rs himself an expert in osteomy elitis as i t re l at es t o the oral maxi llofacia l reg ion. Dep. at 24-25. Dr. Obeid 4 testified that bisphosphonates such as Are dia and Z ometa do not metabolize and thus can acc umulate in the body and cause problems. He opined that leaving Simm ons on his Are d i a t reatment “compounde d the issue” and worsene d his jaw condition. Dr. Obeid stated that althoug h Simm ons neede d to have cer

tain tee t h ex trac ted, beca use he was rec eiving the Z ometa and Are dia bisphosphonate trea tment, Dr. Obeid “could not predic t with c erta inty the outcome of the proce dure” and was conce rned that he “mig ht expose new bone and make his condition worse.” Id. at 43. Dr.

The district court excluded a number of non-re tained experts. On appea l, Plaintiff protests 3 only the exclusion of Dr. Obe id. Osteomy elitis is an acute or chronic bone infe ction. 4 -3-Obeid testified that a 2003 article by Dr. Robert Marx and a 2004 article by Dr. Salvatore Rugg erio 5

rec ommended conservative treatment given un certainty whether the j aw bone would heal after an invasive proce dure. Dep. at 44-45. I n addition, in J anuar y 2005, Plaintiff and Simm ons contac ted Dr. Mar x , who advised a g ainst ext rac ting a ny rema ining tee th. Dep. at 46. 2. Dr. G utm an Plaintiff r etained Dr. Edwar d Gutman also on the issue of specific causa tion. Dr. Gutman is an experience d oral surg eon. He has written numerous publications and g iven many prese ntations on dental issues and se rves a s a consultant to the Mar y land State B oard of

Dental Examiners. Dr. Gutman testified that based on what he had rea d, it was his opinion “with a rea sonable deg ree of dental cer tainty ” th a

t “ th e majority of people on bisphosphonate who have an invasive proce dure will develop ONJ.” De p . at 1 70. He stated that Simm ons’s ONJ could have been preve nted throug h prophy lactic tre atment and avoiding a n extraction while on Are dia and Z ometa. C. P roce dural Hi story On April 19, 2006, Simm ons and Plaintiff broug ht this product-liability action in Maryland

s t at e court, alleg ing that NPC’s presc ription canc er drug s Are dia and Z ometa caused S immons t o develop ONJ and los s of consortium as to Clarissa. NPC remove d the action to the Unit ed S tates District Court for the District of Maryland based on fede ral diversity jurisdiction. The J udicial Panel

on Multidi strict L itigation transfe rre d the action under 28 U.S.C. § 1407 to the United States District Court for the Middle Distri ct of Tenne ssee (“MDL court” ) and assig ned it to Chief J udg e Todd Campbell. After transfe r to the MDL court, Plaintiff voluntar ily dismiss ed Novar tis Corporation.

Dr. Marx was subsequently reta ined as one of Plaintiff’s experts, but solely on the issue of 5 g ener al ca

usation. -4-Af

t er Simm ons died of lung canc er on April 11, 2007, Clarissa was substitut ed as the p er s o n al repr esenta tive of his jaw injury claims in this survival action. NPC moved to exclude, inter alia, the testimony of Drs. Obeid and Gutman, on the issue of

causa tion. NPC also moved for summary judgme nt. On Dec ember 7, 2010, the MDL court g rante d Def

endant’ s motion for summary judgme nt

on all of Plaintiff’s claims. The court g rante d the motion to exclude any testimony by Dr. Obeid as to the cause of Simm ons’s injury

. The court h eld that “Dr

. Obeid has no admissible specific

causa tion expert testimony to be offere d , ” R

. 1 0 1 at 5, beca use Plaintiff failed to point to any opinion of Dr. Obe id, “ under oath and to a rea sonable de g ree of medica l cer tainty ” as to the c ause of Simm ons’s ONJ. The court also noted that simply beca use Dr. Obeid told Simm ons he had ONJ from the Are dia and Z ometa drug s (and could diag nosis the medical condition) did not mean he was qualified to g ive an e x pert opinion as to spec ific ca usation. Id. at 6. By a separ ate order dated Dec ember 7, 2010, the district c ourt g rante d Def endant’ s motion
to exclude Dr. Gutman’s testimony , also finding that Dr. Gutman was not qualified to testify about
t h e s p ecific cause of Simm ons’s ONJ. R. 102. The court held that Gutman’s opinion lack ed t h e sound methodology and foundation require d by Daubert. The court noted that Dr. Gutman admitted that his infor

mation w as based solely on literature Plaintiff’s counsel sent him and that, other than these a rticles, ther e wa s no methodology behind his opinion. R. 102 at 5. Be cause Plaintiff no longe r had proof of an essential element of her product-liability claim under Maryland law, i.e. specific causa tion, t h e d i strict court g rante d summary judgme nt to

-5-Def

endant a nd dismiss ed the c ase. R. 103, 104. 6 This appea l followed. II. Analysi s A district c ourt’s g rant of summary judgme nt is revie wed de novo. Ky. Speedway , LLC , v. Nat’l Ass’n of Stock Car Auto Racing, Inc. , 588 F.3d 908, 915 (6th Cir. 2009). Summary judgme nt is appropr iate if the pleading s, depositions, answe rs to interrog atories, and admissions on file, toge ther with the aff

idavits, if any , “show that ther e is no g enuine issue as to a ny materia l f

act and that the movant is entitled to judgmen t as a m at ter of law.” Fe d. R. Civ. P. 56(c) (2). Summary 7 judgme nt is appropr iate if the nonmoving party fails to make a showing sufficie nt to car ry her burden of proof on an essential element of that party ’s case . See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A district court’s de cision to exclude expert testimony is revie wed for abuse of discre tion, T amraz v. Lincoln Elec. Co. , 620 F.3d 665, 668 (6th Cir. 2010) (citing Kumho Tire Co. , L t d

. v. Carmichael , 526 U.S. 137, 152 (1999), cert. denied , 131 S. Ct. 2454 (2011), even when the decision results in summary judgme nt. Nelson v. Tenn. Gas Pipeline Co. , 243 F.3d 244, 248 (6th Cir. 2001) (citing Gen. Elec. Co. v. Joiner , 522 U.S. 136, 142-43 (1997). “A district court abuses its discretion if it bases its ruling on an err oneous view of the law or a clea rly err oneous assessment of the evidenc e.” Ky. Spee dway, 588 F.3d a t 915 (internal quotation mar ks omitt ed).

The district court noted that it had previously found that there we re gen u i n e issues of 6 materia l fac t as to whether Are dia or Z ometa g ener ally cause ONJ, and applied that rul i n g in this case . R. 103 at 2. The parties filed their briefs prior to the amende d version of Rule 56 on Dec ember 1, 2010. 7

-6-Fe dera l Rule of Evidence 702 states:

I f scientific, tec hnical, or othe r spec ialized knowledg e will assist the trier of fac t to

. . . deter mine a fac t in issue, a witness qualified as an ex p er t b y k n owledg e, skill, experience , training , or educa tion, may testify ther et o i n the form of an opinion or otherwise, if (1) the testimony is based upon sufficie nt fac ts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and me thods reliably to the fac ts of the ca se. Fe d. R. Evid. 702. I t is the district court’s duty to ensure that all expert evidenc e “re sts on a reliable 8 foundation.” Daubert v. Merre ll Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702 g ives district courts a “g ateke eping role” in scre ening the reliability of expert testimony

. Id. ; Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 152 (1999). Distri ct courts are g iven “broa d latitude” in making this assessment. Kumho Tire , 526 U.S. at 139 (citing Gen. Ele c. , 522 U.S. at 143). There is no dispute that the substantive law of Mary land applies. Under Mary land law, the plaintiff in a product-liability suit must show g ener ally that the defe ndant’s products could cause the injury and specific ally that the defe ndant’s products wer e the cause -in-fa ct (i.e. specific cause ) of the injury

. Giddings. v. Bristol-Myers Squibb Co. , 192 F. Supp. 2d 421, 423 (D. Md. 2002). To satisfy this burden, expert testimony is usually

require d. Id. A. Dr. Obeid Plaintiff arg ues that the district court abused its discretion in concluding that Dr. Obeid did
not offe r any opinions on causa tion. As the district court noted, a trea ting phy sician’s testimony is subject to Daube rt. See Gass v. Mar r i o t t Ho t el S er vs., Inc. , 558 F.3d 419, 426 (6th Cir. 2009). Plaintiff was there fore require d to demonstrate that Dr. Obeid’s rea soning or met h o d o l o g y was scientifica lly valid and that he proper ly applied that rea soning or methodology to the fac ts at issue.

The lang uag e of Fe d. R. Evid. 702 was amende d eff ective Dec ember 1, 2011. The chang es 8 are sty listi c only

. -7-Id . Plaintiff has not met that burden.

First, contra

ry to Plaintiff’s asser

tion, Dr. Obeid never opined that Are dia and Z ometa cause d Simm ons’s ONJ. Plaintiff relies on Dr. Obeid’s statement that he found “a very close association” betwee n ONJ and bisphos phonates. Howeve r, Dr. Obeid also specific ally acknow ledg ed that he “didn’t establish causa

tion” in evalua ting Simm ons’s ONJ. Dep. at 16. See Nelson , 243 F.3d at 253 (noting that “an association does not mean there is a cause and eff ect rela tionship” and that “[b] efor e any infere nces a

re dr awn a

bout causa tion, the possibil ity of ot her reasons for t he association must be examined”). Plaintiff also claims that Dr. Obeid stated that he relied o n ca s e repor ts from Dr. M ar x sug g esting that Are dia would “compound[] the issue” of ONJ. Dep. at 33. Howeve r, Dr

. Obeid clar ified that he was not a war e of any evidenc e sug g esting that by continuing to use Are dia, Simm ons’s condition w orsene d. Dep. at 33. Fur thermore , Dr. Obeid ag ree d that the prese nt le vel of evide nce did not support a c ause- and-e ffe ct re lationship between bisphosphonate exposure and ONJ. Dep at 36. 9 Plaintiff a lso c laims tha t D r. Obeid’s medical rec ords “conc lusively link” Simm ons’s ONJ with his use of Are dia and Z ometa. Simmons’s July 31, 2004, consult rec ord fr om Dr. Obe id and his medical residents state “B iphosphonate induced osteonec rosis are a.” R. 78-6 at 2. On November 23, 2004, the note indicates that Simm ons had exposed and necr otic bone. R. 78-8 at 2. Howeve r, it is not clea

r i f Dr

. Obeid himself cre ated these medical rec ords, and the diag nosis is mere ly an

Dr. Obeid was responding to a statement found in a 2009 article

. Fur thermore , his counsel 9 objected, stating that Dr. Obeid was offere d as a fa ct wi t n ess and that the article went bey ond the scope of any thing he would have c onsidered in 2003. De p. at 36. Plaintiff clai m s that the district court err ed in rely ing on counsel’s char acte rization of Dr. Obeid as a fac t witness. I t does not matter here , beca use counsel’s char acte rization does not aff ect our ana ly sis in thi s case . -8-hy

pothesis, which does not satisfy Daubert and Rule 702. See Tamraz , 620 F.3d a t 670-72. Next, Plaintiff claims that, as ref lected by their deposition testimony , Dr. Obeid told both her and her husband that Are dia and Z ometa cause d Simm ons to develop ONJ

. Howeve r, these
statements repr esent the conclusions of Dr. Obeid’s medical residents. Moreove r, these are simply hy potheses. See Tamraz , 620 F.3d a t 670. Plaintiff also asser

ts that Dr. Obeid’s “conse rvative trea tment” of Simm ons (i.e. the decision
not to extract any teeth) demonstrates that he had a causa tion opinion. The rec ord does not support this asser tion. The rec ord ref

lects that Dr. Obeid mere ly acquie sced in the Simm ons’s desire to forg o further extractions afte r Plaintiffs had spoken with Dr. Marx. Specifica lly , Dr. Obeid testified that beca use “he [Dr. Obeid] could not promise them g ood outcome

. . . [he] ag ree d to that.” Dep. at 46- 47. This does not amount to an opinion on specific c ausation. Absent an opinion reg arding causa tion, the district court did no t ab u s e i t s discretion in excluding Dr . Obeid’s testimony

. Alterna tively , Plaintiff contends that Dr. Obeid utiliz ed a “diffe rential diag nosis” to deter mine the ca

use of Simm ons’s jaw problems. This court re cog nizes “differ ential diag nosis” 1 0

as an appropr iate method for deter mining specific causa tion. Best v. Lowe’s Home Ctrs., Inc. , 563 F. 3 d 171, 178 (6th Cir. 2009). As part of “diffe rential diag nosis” the expert must acc ura t el y diag nose the nature of the disease, reliably rule in the possible cause s of it, and reliably rule out the reje cted c auses. See Tamraz , 620 F.3d a t 674; Best , 563 F.3d a t 179. Ag ain, t he record d o es n o t support Plaintiff’s claim. Dr. Obeid, who considers himself to

The district court did not separ ately addre ss the methodology or Dr. Obeid’s qualifica tions. 1 0

-9-be an expert in osteomy elitis in the mouth, Dep. at 24-25, testified that Simm ons had osteomy elitis.

Dep. at 39-40. Howeve r, nowher e in his testimony did Dr. Obeid rule out osteomy elitis as the sole

cause of Simm ons’s ONJ. At most his testimony ref lects that he adopted a “conse rvative course of
trea tment” based on the rec ommendations of Drs. Marx and Rugg iero (in their case repor ts) beca use none of the doctors “w as sure whether the bone is g oing to he al af ter a proce dure or

not.” Dep. at 44. I n short, Plaintiff has not met her bur den of demonstrating that Dr. Obeid employ ed a reliable methodology for ruling o u t o s t eo my elitis as a possible cure of t he ONJ

. See Tamraz , 620 F.3d at 674. The dist rict court did not abuse its discretion in excluding any causa tion testim ony

from Dr

. Obeid. I n addition, Plaintiff challeng es the district court’s conclusion that Dr. Ob ei d wa s not qualified to g ive an expert opinion as t o causa tion. I n support, she points to two publications and three prese ntations listed on his c urriculum vitae. The two published case repor ts ( which Plaintiff fa i l ed t o file as part of her opposition to NPC’s Daubert motion) are not helpful beca use as Dr. Ob ei d himself explained, he did not establish causa tion in those case repor

ts, but simply a “ver y close association.” Dep. at 16. Dr. Obeid also ag ree d with the statement in the 2009 position paper of the Americ an Association of Ora l and Maxi llofacia l Surg eons (AAO MS”) that “the curr ent level of evidenc e does not fully support a cause -and- eff ect rela tionship betwee n bisphosphonate exposure and necr osis of the jaws.” De p. at 36. Dr. Obeid was appar ently not asked (by either party ) to explain his prese ntations, but he acknow ledg ed in his deposition te stimony that he had never been involved in any clinical trials re g arding the drug s in question, had never serve d as a pe er r eviewe r for any article s that involve ONJ, Dep. at 16, 27, and had never conducte d any rese arc h on ONJ (or bisphosphonates) other than the two case repor ts. Dep. at 23. Fur

thermore , he stated that he is not

-10-an expert or specia list in epidemiolog y , endocr inology , pharm ac o logy , tox icolog y , radiolog y , or

patholog y . Dep. a t 24. Plaintiff maintains that Dr. Obeid’s opinions are also based on his own experience

. As Plaintiff corr ectly notes, “‘t h e t ex t of Rule 702 expressly contemplates that an expert may be qualified on the basis of expe rience .’” Dicke nson v. Cardiac & Thoracic Surgery of E. Tenn. P.C. , 3 88 F.3d 976, 980 (6th Cir. 2004) (quoting Fe d. R. Evid. 702 advisory committee’s n o t e (2 0 0 0 Amendments) (empha sis added) ). See also Gass , 558 F.3d at 427-28. Plai n t i ff ’s re l i ance on Dicke nson and Gass is misplaced. As those courts explained, “[t] he exclusion of a medical doctor’s profe ssional opinion, rooted in that doctor’s ‘extensive rele vant ex perie nce,’ is ‘ra rely justified in

case s involving medical experts as opposed to supposed experts in the are a of product l i ab i lity .’” Gass , 558 F.3d at 4 2 7 (q u o t ing Dicke nson , 388 F.3d at 982). Her e, howeve r, Dr. Obeid’s own testimony reve als that his experience as an oral surg eon, while it may qualify him to diag nose Simm ons’s ONJ, did not prepa re him to explain the etiology of Simm ons’s ONJ. See Tamraz , 620 F.3d at 673; cf. Thomas v. Novartis Pharm. Corp. , 443 F. App’x 58, 62 (6th Cir. 2011) (holding that
t h e plaintiff “fa iled to make the connec tion betwee n [t he trea ting phy sician’s] experien ce an d bisphosphonate-induce d osteonec rosis of t he jaw” and “it is not enoug h to show that [t he treating phy sician] can re cog nize and trea t osteonecr osis of the jaw” ). I n s hort, Plaintiff failed to show that Dr. Obeid meets the require ments to g ive an exp er t opinion on the causa tion of his ONJ. The district court did not abuse its discretion by excluding Dr. Obeid’s testimony

. B. Dr. G utm an Plaintiff complains that the district cour t er red in concluding that Dr. Gutman lacke d the

-11-experience and knowledg e nec essar y for a reliable evalua tion of t he etiology of S immons’s ONJ

. Howeve r, as the district court found, the r ecor d ref lects that Dr. Gutman had no knowledg e of the etiologie s of ONJ prior to meeting Simm ons, and then g aine d o n l y a l i mited familiarity based on literature supplied to him by Plaintiff’s counsel. As the district court found, Dr. Gutman testified in his deposition testimony that he has never trea t ed any patients who were taking Aredia or Z ometa or any other bisphos phonate, Dep. at 102, 140, 210, had never diag nosed a patient with ONJ , Dep a t 162, 163, 303, or deter mined a cause of

a patient’s ONJ. Dep. at 303. Dr. Gutman stated that althoug h he was previously awa re, as part of “the g ener al dental public” of the association of ONJ with Are dia and Z ometa, it did not a ffe ct his prac tice. Dep. at 155-56. He stated that if he ever had such a patient, he would ref er them to an oral surg eon. Dep. 156. I n addition, Dr. Gutman admitted that he was not an expert on Z ometa, Are dia, bisphosphonates, or ONJ, ex cept a s to Si mmons’s case. D ep. at 159- 60. As the district court also found, Dr. Gutman’s testimony reve aled that he had no independe nt expertise from any other source other than the six article s Pla intiff’s counsel g ave him, that these article s wer e the foundation of his opinion, and that there was no other methodology supporting his opinion. Dep. at 48, 54-55, 57-58, 5 9 , 177, 179, 201, 303. Dr. Gutman stated that he has never written or edited any article s, abstrac ts, or books which a ddress ON J or bisphosphonates. De p. at 45, 151. He has also never conducte d any kind of labora tory or clinical study of Are dia or Z ometa. Dep. a t 162, 202. Plaintiff arg ues t hat Dr. Gutman i s a dentist who is trained in ora l surg ery and is an ex pert in treating teeth and the mouth and diag nosing infe ctions and other dise ases. B ut this knowledge , standing alone, does not qualify him to evalua te the ca use of Simmons’s ONJ. See, e.g., Si gler v.

-12-Am. Honda Motor Co ., 532 F.3d 469, 478-79 (6th Cir. 2008) (holding that the district court proper ly

excluded proposed expert’s t es t i mony beca use his evidenc e perta ined to are a in which he lacke d expertise); cf. Tamraz , 620 F.3d at 673 (holding that the plaintiff confla ted his proposed expert doctor’s expertise in dia g nosis with a doctor’s expertise in etiology , rema rking that “most treating phy sicians have more training in and experience with diag nosis than etiology ”). I n short, the district
court did not err in concluding that Dr. Gutman’s opinion lacks the soun d m et hodology and foundation require d under Daubert , when he had rea d only six article s on the subject provided to him by counsel, had perf

ormed no labora tory or clinical tests, and did not trea t bisphosphonate patients. 1 1 The district cou rt al s o did not abuse its discretion in excluding Dr. Gutman’s specific

causa tion opinion as unreliable beca use it was not der ived from scientifica lly valid principles but rathe r relied exclusively on the scientific literature provided by Plaintiff’s counsel. Dr. Gutman made no attempt to verify this information, such as doing his own rese ar ch for other article s, and then dra wing an independe nt c onclusion. As the district c ourt noted, this c ourt views with spe cial caution expert testimony prepa red solely for p u rp o s es of litigation, rathe r than flowing from an expert’s line of scientific or technica l work. See Johnson v. Manitowoc Boom Trucks, Inc. , 484 F.3d 426, 434-35 (6th Cir. 2007). The district court corr ectly conclude d that Dr. Gutman failed to perf orm a reli a

b le d if fer ential

Plaintiff’s relianc e on Streimer v. Biondo , 873 N.Y.S.2d 515 (N.Y. Sup. C t. 2008) 1 1 (unpublished), is m isplaced. The fac t that other phy sicians have been found qualified to opine on ONJ causat i o n d o es n ot establish Dr. Gutman’s qualifica tions. I t also appea rs that Plaintiff is somehow using this case to bolster her arg ument that beca use Dr. Gutman’s relianc e on the body of literature reg arding the rela tionship betwee n ONJ and b i s p h o s p h onates rests in larg e part on Dr. Rugg iero’s expertise, Gutman was qualified to testify on causa tion. Howeve r, as she acknow ledg es in her brief, Dr. Rugg iero testif i ed that no “ca

use and eff

ect” rela tionship has been established betwee n bisphosphonates and ON J . Appellant’s B r. 51. -13-diag nosis. Dr. Gutman conce ded that he did not apply a differ ential diagno s i s . De p . at 223.

Nonethele ss, Plaintiff say s that Dr. Gutman actually testified about other possible cause s of Simm ons’s ONJ. But Dr. Gutman admitted that he did no rese arc h into alterna tive risk fac tors for ONJ. Dep. at 207. Dr. Gutma n ad m i tted that Simm ons had ost eomy elitis, and that osteomy elitis

can cause ONJ, and he conce ded t h at h e d i d not rule out osteomy elitis and potential exacer bating fac tors such as smoking, chemother apy , diabetes, anemia, and g ener al dental health. Dep. at 223 (osteomy elitis); 224-25 (smoking) ; 240-45 (chr onic suppurative osteomy elitis); 2 50-54 (chr onic diffuse sclerosing osteomy elitis); 274-76, 283-84, 290-91 (cor ticosteroids and chemother apy ); 278- 83, 284-90 (diabe tes); 296 (g ener al dental he alth). Thus, we hold tha t the district c ourt did not a buse its disc retion in f

inding that Dr. Gutman

was not qualified to testify about the specifi c ca use of Simm ons’s ONJ in this case beca use his opinion lacks the sound methodolog y and founda tion required by Fe d. R. Evid. 702 and Daubert

. C. Summ ary Judgm ent Be cause Plaintiff failed to demonstrate an essential element of her case , specific causa tion, the gra nt of sum mary judgme nt was appropriate

. See Ce lotex , 477 U.S. at 322. See Thomas , 443 F. App’ x at 64. D. Alte rnative Ar gum ent For the first time on appea l, Plaintiff offe rs statistical analy sis that over 88 % of all case s of ONJ in individuals w

h o h a v e r e c e ived bisphosphonates are cause d by the bisphosphonates, proff ere d b y Dr

. W ay

ne Ray

. She there fore arg ues that beca

use Simm ons had ONJ, and took Are dia an d Z ometa, she has submitt ed sufficie nt evid e n c e to survive summary judgme nt. Be cause this issue was not prese nted to the district court, which means that the district court did not have an opportunity to

-14-addre ss the admissibili ty of Dr. R ay ’s t es t i m ony , we decline to addre ss it. See United States v.

Ellison , 462 F.3d 557, 560 ( 6th Cir. 2006). III. Conclusi on Fo r t h e fo re go i ng rea sons, as well as those found in the order s of the district court dated Dec ember

7, 2010, R. 101, 102, 103, the judgme nt of the district court is AF F IRMED

.

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