Plaintiffs, Civil Action No. 11-1210

V. OPINION

BOSTON SCEINTIFIC

NEUORMODULATION CORPORATION,

Defendant.

John Michael Vazguez, U.S.D.J.

This matter comes before the Court on motions to exclude the testimony of several expert

witnesses. Plaintiffs Wendy Bahnsen and Carolina Fuentes (collectively “Plaintiffs”) filed amotion to exclude the testimony of Defendants’ four expert witnesses: Wayne Van Halem,

Suzame O’Shea, Gregory Russo, and Timothy Deer. D.E. 297. Defendant Boston Scientific

Neuromodulation Corporation (“BSNC” or “Defendant”) filed a bnefin opposition, D.E. 310, towhich Plaintiffs replied. D.E. 335. Defendant also filed a motion to exclude the testimony of

Plaintiffs’ expert witnesses, Richard Baer and Meredith Rosenthal. D.E. 300. Plaintiffs filed a

brief in opposition, D.E. 312, to which Defendant replied. D.E 331.’ The Court reviewed the

submissions made in support and in opposition to the two motions and considered the motions

without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons

1 In this Opinion, Plaintiffs’ motion to exclude expert testimony with be referred to as “P1.MEE.” Defendant’s brief in opposition will be referred to as “Def Opp.” Plaintiffs’ reply brief

will be referred to as “P1. Rep.” Likewise, Defendant’s motion to exclude expert testimony will

be referred to as “Def. MEE.” Plaintiffs’ brief in opposition will be referred to as “P1. Opp.”

Defendant’s reply brief will be referred to as “Def. Rep.”
factual and procedural history. The Court is an issuing an opinion addressing Defendant’s motionfor summary judgment, D.E. 299, which includes a detailed recounting of the background of this

matter. To the extent relevant to these motions, the Court incorporates the factual and proceduralhistory into this Opinion.

Generally, during the relevant time period of 2006 to 2010, Defendant BSNC marketed,

sold, supplied, and submitted claims for an implantable spinal cord stimulator, the Precision P1usTM

$CS System (“$CS”). As a government supplier of medical equipment, BSNC fulfilled patient

requests for replacement supplies of some external equipment (“Replacement Supplies”) for a

SCS. BSNC’s Billing and Collections Department processed the necessary documentation for

BSNC to be reimbursed when it supplied such equipment.

Plaintiffs are former BSNC employees, who worked in its Billing and Collections

Department. Plaintiffs assert that through their work, they became aware that BSNC was

knowingly submitting thousands of false claims to Medicare for reimbursement. Among other

things, Plaintiffs claim that Defendant submitted claims for Replacement Supplies without written

physician orders and/or with fabricated diagnosis codes. The present suit springs from these

allegations. Following discovery, the parties now challenge their opponents’ respective expert

witnesses.2 Plaintiffs have also filed a motion for summary judgment as to Defendant’s counterclaims,while Defendant has moved for summary judgment on Plaintiffs’ false Claims Act counts.Those motions are addressed in separate opinions.

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judge to act as a ‘gatekeeper’ to ensure that any and all expert testimony or evidence is not only

relevant, but also reliable.” Kannankeril v. Terminix Int’l, Inc., 12$ f.3d $02, $06 (3d Cir. 1997)

(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To fulfill its role as

gatekeeper, the court analyzes the admissibility of an expert’s testimony pursuant to the following

three requirements under FRE 702: “(1) the proffered witness must be an expert; (2) the expertmust testify about matters requiring scientific, technical or specialized knowledge; and (3) the

expert’s testimony must assist the trier of fact.”3 Kannankeril, 12$ F.3d at $06 (citing In re Faoli

R.R. Yard FCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)).

Thus, “Rule 702 embodies a trilogy of restrictions on expert testimony: qualification,

reliability, and fit.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.

2003) (citing In re Faoli Railroad Yard PCB Litigation, 35 F .3 d at 741-43). Qualification requiresa witness to have a specialized expertise. The Third Circuit has “interpreted this requirement

The full language of FRE 702 is as follows:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods;

and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

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and internal quotation marks omitted). Thus, guided by Daithert, the Third Circuit has found that

reliability of scientific evidence requires assessing its scientific validity. Id. Finally, fit requires

that the expert’s testimony “be relevant for the purposes of the case and must assist the trier of

fact.” Id. Once again, guided by Daubert, the Third Circuit has found that to be helpful the

testimony must have “a valid scientific connection to the pertinent inquiry as a precondition to

admissibility.” Id. (citation omitted).

The Third Circuit has made clear that when a district court evaluates the admissibility of

expert testimony it is not requiring perfection. The Circuit has held that under FRE 702, districtcourts should extend a “liberal policy of admissibility” to an expert’s substantive and formal

qualifications. In re Paoli Railroad Yard FCB Litigation, 35 F.3d at 741. Similarly, for reliabilitya district court must find “good grounds” for the expert’s belief after conducting a “flexible”

inquiry. Id. at 742. Finally, a district court applies the same standard to find fit as for finding

reliability. The Circuit has “emphasize[d] that the standard is not that high.” Id. at 745.

III. ANALYSIS

Both Plaintiffs and Defendant argue that the testimony of the other party’s respective

expert witnesses is inadmissible under FRE 702. The Court will first address the admissibility of

Defendant’s expert witnesses: Wayne Van Halem, Suzanne O’Shea, Gregory Russo, andTimothy Deer. Then, the Court will address the admissibility of Plaintiffs’ expert witnesses:Richard Baer and Meredith Rosenthal.

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P1. MEE. at 5. Specifically, Mr. Van Halem would testify that Chapter five of the relevantMedicare Program Integrity Manual (“PIM”) did not require BSNC to submit a physician orderwith its claims for reimbursement of SCS Replacement Supplies.4 Plaintiffs move to exclude thetestimony of Mr. Van Halem on the bases that his opinions are unreliable and contradict the priortestimony of BSNC’s 30(b)(6) witness, Wendy Chan. P1. MEE. at 5-12.

BSNC hired Mr. Van Halem to analyze the report of Plaintiffs’ expert witness, Dr.

Richard Baer. Expert Report of Wayne Van Halem (“Van Halem Report”); D.E. 297-5. Mr.Van Halern reviewed thirty-nine documents and references to form his report. Id. Exhb. B.

Several of these documents are Medicare guidance and regulations, such the PIM (Pub 100-8),

Medicare Benefit Policy Manuel (Pub 100-2), Medicare Change Request 5917, Transmittal

1603, etc. Id. Plaintiffs contend that Mr. Van Halem’s methodology is unreliable because he

cannot point to a single Medicare regulation that says Chapter Five of the PIM does not apply to

DME claims submitted to A/B MACs. P1. Rep. at 1. further, they argue that Mr. Van Halem

has never advised anyone before that Chapter five is inapplicable to DME claims submitted to

A/B MACs. P1. MEE. at 8.

‘

The PIM is a published document, through which the CMS communicates “program issuances,

day-to-day operating instructions, policies, and procedures that are based on statutes, regulations,guidelines, models, and directives.” See CENTERS FOR MEDICARE & MEDICAID

SERVICES, Manuals, https://www.cms.gov/Regulations-and

Guidance/Guidance/Manuals/index.html (last visited December 4, 2017).

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F.3d 195, 217 (3d Cir. 2006) (citing United States v. Leo, 941 F.2d 181, 195-96 (3d Cir. 1991))

(holding that under the Federal Rules of Evidence “an expert witness is prohibited from

rendering a legal opinion”); first National State Bank v. Reliance Elec. Co., 66$ F.2d 725, 731

(3d Cir. 1981) (per curiam) (holding that FRE 702 supports excluding expert witnesses fromexplaining the law to the jury).

Generally, however, Mr. Van Halern’s testimony is reliable enough for the Court to admit

it under FRE 702. To be admissible the Court must find that the opinions in Mr. Van Halem’s

report were “based on the methods and procedures of science rather than on subjective belief orunsupported speculation.” Schneider ex rel. Estate ofSchneider, 320 F.3d at 404 (citations

omitted). Mr. Van Halern relied on an array of information to support his opinions. Van Halem

Report. These documents and references could provide a person with “21 years of experience

specifically in the Medicare billing field” with good grounds for forming opinions on B$NC’s

Medicare billing practices. Def. Opp. at 9. Further, to the extent that Mr. Van Halem’s opinions

contradict those of BSNC’s 30(b)(6) witness, this may impact the weight ofthose opinions but

not their admissibility. Thus, Mr. Van Halem’s testimony is admissible as long as he does not

opine on the law.

3. Suzanne O’Shea

Suzanne O’Shea (“Ms. O’Shea”) is a U.S. Food and Drug Administration (“FDA”)

lawyer, who would testify that afler a patient receives a SCS, BSNC must make $CS

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Replacement Supplies only when they are ordered by a physician. P1. MEE. at 14. Because

FDA requirements do not control Medicare’s billing requirements, Plaintiffs further argue that

Ms. O’Shea’s testimony would unduly confuse the jury. Id. at 15-16. Defendant claims that

“[w]hile Ms. O’Shea does not offer an opinion on whether Medicare requires specific physician

orders or diagnosis codes for reimbursement decisions, her testimony will help the jury

understand what the SCS System . . . is.” Def. Opp. at 18. Defendant also claims that Ms.

O’Shea’s testimony will directly rebut Dr. Baer’s opinions. Id.

To support their argument, Plaintiffs point to Ms. O’Shea’s answers in her deposition:

Q: That’s not my question. You have said that there is a requirementfrom the FDA that Boston Scientific make adhesive patches

available. That’s your opinion, correct?

A: Yes.Q: And when you say make them available, do you have any opinion

at all about what sorts of requirements for a physician order or a

diagnosis code or a prescription would be required in order for apatient to order new adhesive patches?

A: I do not have an opinion on that, as the FDA did not address the

process for that in the information I read, and FDA does not get

involved in a lot of those things.

Q: Do you have expertise in submitting claims to Medicare or thedocumentation requirements for supplier to submit such claims?

A: I do not.Q: Do you have any expertise in Medicare or CMS regulationssurrounding the submission of claims?A: I do not.

P1. MEE.; Exhb. 6 (Deposition of Suzanne 0’ Shea at 28:21-29:17); D.E. 297-8.

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requirements regarding the SCS and its Replacement Supplies relate to the case, such

information will not help a trier of fact resolve the issues in this lawsuit, that is, whether

Defendant violated Medicare’s requirements when it submitted the relevant claims. Defendant

has presented no evidence that FDA approval means, as a matter of law, that Medicare must pay

for the approved product or that FDA approval overrides Medicare’s claim requirements. The

risk for confusion and undue prejudice is clear. The confusion and undue prejudice stems from

the real risk that a jury will conclude that FDA approval trumps Medicare requirements.

Healthcare, FDA approval, and Medicare reimbursement are complex areas of the law, and a

jury could reasonably (though improperly) conclude that because the FDA approves an item,

Medicare should pay for it. The FDA’s approval of the $CS and the Replacement Supplies is not

at issue in this case. Further, Ms. O’Shea’s testimony does not directly contradict Dr. Baer’s

testimony. Ms. O’Shea did not reference Dr. Baer’s reports or opinions in her report, O’Shea

Report; Exhb. 5; D.E. 297-7, and Dr. Baer did not discuss FDA regulations in his report. Baer

Report; Exhb. 42; D.E. 3 16-9. Thus, Ms. O’Shea’s testimony is inadmissible.

C. Gregory Russo

Gregory Russo (“Mr. Russo”) is a healthcare consultant, who would testify about his

analysis of Plaintiffs’ expert witnesses’ opinions, Drs. Richard Baer and Meredith Rosenthal.

Russo Report, Exhb. 7; D.E. 297-9. BSNC, in particular, asked Mr. Russo to provide an opinion

regarding the claims BSNC submitted to Medicare for reimbursement of SCS Replacement

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Mr. Russo’s testimony rebuts Dr. Baer’s testimony concerning BSNC claims data and that histestimony only opines on factual conclusions. Def. Opp. at 18.

As stated above, to the extent that Mr. Russo, or Dr. Baer, or any other expert witness in

this case will opine on what a “claim” is or offer another legal conclusion on what constitutes a

false claim, such testimony is admissible. The Court will instruct the jury on this issue. 31

U.S.C. § 3729 (b)(2) already defines “claim” and the Court does not require either ofthe parties’

assistance reading the statute.6 However, to the extent that Mr. Russo will offer testimony on

underlying factual issues, such testimony could assist the trier of fact. Similar to how Federal

6 31 U.S.C. § 3729 (b)(2) provides that a “claim”:

(A) means any request or demand, whether under a contract or otherwise, for money or

property and whether or not the United States has title to the money or property, that-

(i) is presented to an officer, employee, or agent ofthe United

States; or

(ii) is made to a contractor, grantee, or other recipient, ifthe moneyor property is to be spent or used on the Government’s behalf or toadvance a Government program or interest, and ifthe United

States Government-

(I) provides or has provided any portion of the money or

property requested or demanded; or

(II) will reimburse such contractor, grantee, or other

recipient for any portion of the money or property which isrequested or demanded; and

(B) does not include requests or demands for money or property that theGovernment has paid to an individual as compensation for Federalemployment or as an income subsidy with no restrictions on that

individual’s use of the money or property[.]

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of the Court and give an improper legal opinion.

D. Timothy Deer

Dr. Timothy Deer (“Dr. Deer”) is a pain doctor with experience treating patients who

have implanted SCS systems. P1. MEE. at 19. Plaintiffs’ motion to exclude Dr. Deer’stestimony concerns only Dr. Deer’s opinions on the “standard of care” for patients with

implanted SC$ systems. Id. Dr. Deer would testify that since patients only receive SC$ systems

after a physician finds such a chronic pain treatment medically necessary, “there is no need to

confinn medical necessity annually, each time a patients needs to replenish his or her supplies, or

at any other arbitrary interval.” Def. Opp. at 26.

Plaintiffs contend that this testimony is based on unreliable methods and irrelevant to the

case. Plaintiffs assert that Dr. Deer cannot reliably speak for the medical community on the

standard of care for SCS patients with regards to BSNC supplying them with SCS Replacement

Supplies when he “has not reviewed any particular patient files,” “has not reviewed any of the

claims BSNC submitted for payment to the [G]overnrnent,” “has not conferred with others

[doctors] in the field”, and seeks to testify “about an aspect of caring for SCS patients with which

he has virtually no experience.” P1. MEE. at 23. further, Plaintiffs assert that the physician

‘ Plaintiffs point to Dr. Deer’s deposition testimony for proof that he should not be able to testify

as to the physician standard of care:

Q: Has any physician ever told you affirmatively that they are not

involved in ordering SCS supplies?

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anesthesiologists’ generally accepted medical practices because it was irrelevant to the FCA

Medicare billing dispute at bar. 533 F. Supp. 2d 12, 24.

Defendant argues that Dr. Deer’s testimony is both reliable and relevant. BSNC asserts

that Dr. Deer’s testimony is reliable because his opinions come from “over twenty years

experience treating SCS System patients, implanting thousands of such devices over that time in

such patients, and following patients throughout their lifetimes with such devices.” Def. Opp. at

28.8 further, Defendant argues that Dr. Deer’s testimony concerning the physician standard of

Ms. Galant: Object to form.

A: Well, I don’t recall ever asking them that, because it’s not been

an issue of discussion when we’ve had extensive hours of discussion

about reimbursement and requirements of medical necessity for thedevise and no one’s ever mentioned that out of hundreds and

hundreds of physicians who I’ve talked to about these issues of

medical necessity.

Q: So you’ve never even asked another physician whether they orderSCS supplies, correct?

Ms. Galant: Object to form.

A: Well since in my opinion, the medical necessity is documented

up front, that would be a question that’s improper because it’s not

needed and not medically necessary — Q: So you haven’t asked that question, correct?

Ms. Galant: Objection to form.

A: I don’t recall — I don’t recall asking that specific question. Nor

would I. And I wouldn’t today either.

P1. MEE.; Exhb. 10 (Deposition of Timothy Deer 96:17-97:18); D.E. 297-12.

8 Defendant cites to Heller v. Sliaw Indus., inc., for the proposition that an expert witness’s

conclusion may still be reliable if based on scientifically valid methods, even if not based on any

published studies. 167 F.3d 146, 155 (3d Cir. 1999). Heller, however, did not involve testimony

on a physician standard of care or even an industry custom. In Heller, the expert witness based

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and unfair prejudice. In short, the issue is not whether a physician believes that Replacement

Supplies should be provided indefinitely as medically necessary. Instead, the critical question

concerns what information Medicare required suppliers to obtain before submitting a claim.

Again, Defendant has presented no evidence that it can fail to comply with Medicarerequirements based on a physician’s opinion. The risk of confusion and undue prejudice is also

clear — a jury may conclude that the physician’s opinion controls regardless of Medicare

requirements.

Despite Defendant’s claim that Dr. Deer’s testimony is necessary to rebut Dr. Baer’s

testimony on the physician standard of care, Plaintiffs sufficiently counter that it is not.

Plaintiffs argue that Dr. Baer’s report only references the physician standard of care in passing.

P1. MEE at 14; see Baer Report; Exhb. 42 at 15; D.E. 316-9. further, Plaintiffs assert that Dr.

his conclusion on the cause of a respiratory problem on a “differential diagnosis drawn from his

examination of [plaintiffi Heller, the results of a series of medical tests, review of Helle?s

personal and family medical history, and Heller’s descriptions of her personal activities

(smoking, etc.) and environmental conditions (“cats, dogs, the type of heating system, rugs,

pillows, things of that sort”)). Id. at 153-54. The I-feller expert’s choice to use a fairly in depth

alternative methodology, rather than published studies, to form his opinions is not similar Dr.

Deer’s choice in forming his opinions.

The reference in Dr. Baer’s report that Plaintiffs refer to reads:

Boston Scientific has argued that supplies are ‘necessary’ to allowan SCS System to function but only a physician or authorized

healthcare provider can make that determination. If a patient

desires a replacement supply for an SCS device. Her treating

physician may want to see the patient to determine if continued use

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To reiterate, while Dr. Deer’s testimony concerning the standard of care is tangentially

related, Dr. Deer’s testimony would risk confusing the trier of fact over what this lawsuit hinges

on. Namely, whether BSNC violated Medicare rules and regulations through its billing practicesfor the Replacement Supplies. In other words, even if Dr. Deer professionally believes that by

of the device is in order, ifthere is a problem with the device, ifthedevice is causing harm to the patient, or if another form of therapyis necessary.

‘° The following testimony from Dr. Baer’s deposition is illustrative of Plaintiffs’ argument:

Q: Well, you’re a doctor, what do you understand the standard ofcare to be?

A: Well, the standard of care has to do with — well, it’s a broad

definition, that’s why I was asking you in what way are you applying

it here. I’m not sure I can give you a definition ofstandard of care.

Q: You’re not — you’ve never testified as an expert about thestandard of care for any sort of medical treatment or medicalcondition?

A: Well, I’ve testified as to medical necessity. It’s not exactly the

same thing. I don’t think specifically that I have.Q: Would you agree with me that Dr. Deer is more familiar than you

with the standard of care for patients with chronic pain who would

benefit from the implantation of a spinal cord stimulator?

Mr. Connors: Object to form.A: The reason I have trouble with this, because I didn’t agree with

some of the things that Dr. Deer said about the standard of care inspinal cord stimulators. According to his experience, he’s had a lot

of experience with it, but I thought he said some things in his report

that were unreasonable with regards to his standard of care.

Exhb. 4 (Deposition of Richard Baer 160:4-16; 160:25-161:13); D.E. 363-2.

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care for patients with implanted SCS systems does not “fit” with this case and is inadmissible.”

Plaintiffs’ Experts:

A. Richard Baer

Dr. Richard Baer (“Dr. Baer”) is a former medical director for Medicare Administrative

Contractors (“MACs”)’2 with extensive experience on Medicare coverage determinations andMedicare compliance issues. P1. Opp. at 3-4. Plaintiffs hired Dr. Baer to review BSNC

documents and BSNC expert witness testimony to determine whether BSNC’s billing practices

with regards to SCS Replacement Supplies violated Medicare rules and regulations. Id. Dr.

Baer’s report and deposition testimony speak to multiple issues, but Defendant seeks to exclude

only Dr. Baer’s testimony regarding his identification of false claims and his conclusions as tothose claims’ materiality and falsity. Def. MEl at 6.13

Plaintiffs only seek exclusion of Dr. Deer’s testimony as to the physician standard of care for

patients with implanted SCS systems. Therefore, the Court’s ruling of inadmissibility only

extends equally as far.

12 MACs are private health insurance carriers that contract with the Centers for Medicare and

Medicaid Services (“CMS”). MACs act as the primary operational contact between theMedicare program and health care providers.

‘ Defendant’s motion does not seek to exclude Dr. Baer’s testimony on “(1) whether certain

Medicare regulations and guidelines apply to the claims at issue; (2) the standard of care for

patients who have been surgically implanted with a permanent SCS following a determination ofmedical necessity therefor; (3) the timing of the determination of medical necessity for apatient’s subsequent orders ofsupplies needed for the safe and efficacious use of the stimulator;

(4) the usual clinical course of these patients’ pain and underlying medical conditions.” Def.

MEE. at 6. The Court notes that Plaintiffs would likely disagree with the characterization and

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staff members review and analyze approximately one million pages of BSNC medical records

into distinct patient files. Defendant believes that the review lacked proper oversight and was

filled with errors. Id. at 9-10. Second, Defendant asserts that Dr. Baer opines on legal, rather

than factual, principles to conclude that BSNC submitted false claims. Id. at 15.

Plaintiffs counter that Dr. Baer used sound methodology to create a reliable report. They

assert that Dr. Baer had the Susman Godfrey staff assist in developing a factual record of BSNCcustomer records because, Plaintiffs contend, the records were produced in a scattershot manner.

P1. Opp. at 9. Further, Plaintiffs argue that Dr. Baer oversaw this process by providing detailedinstructions to Plaintiffs’ counsel on how the review was to be conducted. Id. If the staff

members came across a claim that was “anything more than a pure factual and non-technicalcomparison of dates” then Dr. Baer personally reviewed the claim. Id. Plaintiffs add that Dr.

Baer twice supplemented his expert report after BSNC critiqued his opinions. Id. at 10.

‘

finally, Plaintiffs dispute Defendant’s claim that Dr. Baer opined on legal matters. They claim

added details summarizing Dr. Baer’s uncontested areas of testimony. However, Defendant’s

listing of uncontested areas of testimony is helpful for record clarity.

In fact, after receiving BSNC’s critique of his methodology “Dr. Baer reviewed every

document in every customer files himself to ensure that his earlier analysis was not affected by

any biases or mistakes by the paralegal who assisted him. Baer Decl., Exhibit C (Second $upp.

Report) at 1. Dr. Baer’s personal review proved Boston Scientific’s criticism unfounded. Dr.

Baer confirmed his bottom-line opinions regarding 6,047 of the 6,051 claims that were still atissue. For only 4 claims—less than a tenth of one percent—Dr. Baer updated his opinions, all inBoston Scientific’s favor.” P1. Opp. at 12.

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conclusions, his testimony is inadmissible. Berckelev I,r’. Gip., Ltd., 455 F.3d at 217. However,

Dr. Baer may testify to factual background matters that would assist the trier of fact. Second,

while the Court can appreciate Defendant’s critique of Dr. Baer’s methodology, alleged flaws in

that methodology should impact the weight, not admissibility, of Dr. Baer’s report. See NN&R,

Inc. v. One Beacon Ins. Grp., 2006 WL 2845703, at *3 (D.N.J. Sept. 29, 2006) (finding that

although the expert witness’s “opinions may be assailable at trial on cross-examination because

he failed to personally examine the insurance claim files or other key documents, it appears to

the Court that the expert’s opinion and methodology are sufficiently reliable and relevant to meetthe requirements of Fed.R.Evid. 702”). Defendant has not pointed to any fatal procedure error in

the collection of the underlying data. To the extent that Defendant believes that errors were

made, it is certainly free to cross-examine Dr. Baer on this area.

Further, the cases Defendant cites to support finding Dr. Baer’s report inadmissible,

actually illustrate why the Court should admit the report and Defendant may, ifit chooses, crossexamine Dr. Baer on his report. For example, In re TMI Litig., the Third Circuit affinned the

exclusion an expert witness who relied on medical history summaries prepared by plaintiffs’counsel’s staff. However, in that case the summaries were not based on medical or hospital

records, were the product of the staff interviewing people with questions not formulated by the

expert, and were the only information the expert relied upon to testify about the health historiesat issue. 193 F.3d 613, 697—98 (3d Cir. 1999), amended, 199 f.3d 15$ (3d Cir. 2000). Likewise,

16
the extent that Defendant contends that the information should have been organized differently, it

can cross-examine Dr. Baer. Therefore, the Court disagrees with Defendant and finds that Dr.Baer’s testimony is admissible except to the extent he is going to opine on the law.

B. Meredith RosenthalDr. Meredith Rosenthal (“Dr. Rosenthal”) is a Professor of Health Economics and Policy

at the Harvard School of Public Health. P1. Opp. at 31. Dr. Rosenthal would testify as to

potential damages and penalties resulting from the claims that Dr. Baer opined were false. Def.

MEE. at 18. Defendant seeks to exclude Dr. Rosenthal’s testimony as unreliable because Dr.Rosenthal calculated damages based on the sum of claims that Dr. Baer found false. Id. SinceDefendant argues Dr. Baer’s claim analysis was unreliable, Defendant asserts that it follows thatcalculations as to damages on those claims are unreliable.

As stated above, Dr. Baer’s testimony is reliable under FRE 702 and, therefore, admissible.

Thus, the Court finds no basis for excluding Dr. Rosenthal’s testimony. Issues with Dr. Baer’s

methodology that may impact the weight of Dr. Baer’s evidence may also impact the weight of

Dr. Rosenthal’s evidence, but they do not make it inadmissible.

IV. CONLCUSION

For the reasons stated above, Plaintiffs’ motion to exclude expert testimony (D.E. 297) is

GRANTED in part and DENIED in part. Defendant’s motion to exclude expert testimony (D.E.300) is DENIED. An appropriate Order accompanies this Opinion.

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