FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 07, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16368

Non-Argument Calendar

________________________

D. C. Docket No. 04-02523-MD-T-30TBM

In Re:

ACCUTANE PRODUCTS LIABILITY.

__________________________________________________

JULIA BISHOP, as co-personal

representative of the estate

of Charles Bishop, deceased,

et al.,

Plaintiffs,

CHRISTOPHER M. PERRONNE,

EILEEN BARIL,

KENNETH S. PALMER,

CLAY R. SEYMOUR,

JASON S. ADKINS,

Plaintiffs-Appellants,

versus

HOFFMAN-LA ROCHE, INC.,

ROCHE LABORATORIES, INC.,

F. HOFFMANN-LA ROCHE LTD.,
ROCHE HOLDING AG,

F. HOFFMAN LA-ROCHE AG,

ROCHE HOLDING LTD.,

Defendants-Appellees,

MCKESSON CORPORATION,

a California corporation,

et al.,

Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 7, 2010)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

Appellants appeal an adverse summary judgment in favor of appellees,

manufacturers and marketers of the acne drug Accutane. Specifically, appellants

assert that the district court abused its discretion in refusing to consider in evidence

an abstract of a medical study offered by the appellants and in failing to offer a

reason for its refusal.

This case began in 2004, when the multiple toxic torts lawsuits alleging that

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Accutane caused Irritable Bowel Disease (“IBD”) were consolidated in the Middle

District of Florida. In 2007, two years prior to the entry of the summary judgment

now before us, the district court entered summary judgment against a number of

the Accutane plaintiffs for much the same reason as it did in the order now before

us: plaintiffs would not be able to prove liability at trial because, the court having

excluded plaintiffs’ sole expert, plaintiffs would have no expert testimony as to

causation. The district court then stayed the case, pending the results of the appeal

of the earlier case, as to the remaining plaintiffs who had not yet designated an

expert.

On appeal, a panel of this court upheld the district court’s exclusion and

summary judgment orders, Rand v. Hoffman-LaRoche Inc., 291 Fed. Appx. 249

(11th Cir. 2008), and, after the case was remanded and the stay lifted, the

remaining plaintiffs selected the same expert, Dr. Fogel, as their sole causation

expert. The district court determined that Dr. Fogel’s opinion as to causation for

the remaining plaintiffs relied on the same problematic scientific tests and data as

before, with one exception, and, as to that exception, overreached the study’s

conclusions. On that basis, the district court again excluded Dr. Fogel’s expert

testimony, leaving this second round of plaintiffs with no expert testimony as to

causation, just like the first round of plaintiffs.

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After Dr. Fogel was excluded, plaintiffs moved to supplement the record

with a newly-discovered abstract (the “Crockett study”) linking Accutane to IBD.

With no explanation, the district court denied plaintiffs’ motion. Plaintiffs now

argue that the district court abused its discretion in excluding consideration of the

evidence. Had the evidence been admitted, they argue, Dr. Fogel could have relied

on it to show causation, and, with this new foundation on which to base his

opinion, Fogel would have been admitted as an expert by the court. Had he been

admitted, there would have been a genuine issue of material fact as to causation,

precluding summary judgment.

We need not evaluate plaintiffs’ long string of hypotheticals because, even if

the district court had admitted the study, plaintiffs never submitted evidence that

Dr. Fogel adopted the study or would have included it in his evaluation. See Dkt.

727, Exhs. 1-3. We can find no abuse of discretion in the exclusion of Fogel’s

testimony, and, without Dr. Fogel, the district court did not err in concluding that

“[w]ithout expert testimony that Accutane can cause IBD, Plaintiffs are unable to

prove liability.”

AFFIRMED.

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