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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`DEC 9 2021
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`
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`No. 20-16646
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`D.C. No. 3:18-cv-03732-WHO
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`MEMORANDUM*
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` Plaintiff-Appellant,
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`INA ANN RODMAN,
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`
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` v.
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`OTSUKA AMERICA
`PHARMACEUTICAL, INC.,
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` Defendant-Appellee.
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`
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`Appeal from the United States District Court
`for the Northern District of California
`William Horsley Orrick, District Judge, Presiding
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`Argued and Submitted November 17, 2021
`San Francisco, California
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`Before: SCHROEDER, W. FLETCHER, and MILLER, Circuit Judges.
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`Ina Rodman appeals from the district court’s grant of summary judgment to
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`Otsuka America Pharmaceutical, Inc., in this product-liability action. Rodman
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`alleges that Otsuka’s antipsychotic drug Abilify caused her to develop tardive
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`dyskinesia (TD). Rodman sued Otsuka under a failure-to-warn theory, contending
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`that although the Abilify label discussed the risk of TD, it underreported the actual
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`*
` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`incidence rate. The district court excluded the testimony of Rodman’s expert
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`witness, Dr. Laura Plunkett, as unreliable under Daubert v. Merrell Dow
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`Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), and then granted Otsuka
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`summary judgment because, without that testimony, Rodman offered no evidence
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`to support her claim. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
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`We review the district court’s evidentiary rulings for abuse of discretion.
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`Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002). We review
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`the district court’s grant of summary judgment de novo, Branch Banking & Tr. Co.
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`v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th Cir. 2017), and may affirm on any ground
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`supported by the record, In re ATM Fee Antitrust Litig., 686 F.3d 741, 748 (9th
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`Cir. 2012).
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`1.
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`The district court did not abuse its discretion in excluding Dr.
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`Plunkett’s testimony. Federal Rule of Evidence 702 “assign[s] to the trial judge the
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`task of ensuring that an expert’s testimony both rests on a reliable foundation and
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`is relevant to the task at hand.” Daubert, 509 U.S. at 597. Regardless of an expert’s
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`credentials, where “there is simply too great an analytical gap between the data and
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`the opinion proffered,” a court cannot permit the expert to testify. General Elec.
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`Co. v. Joiner, 522 U.S. 136, 146 (1997).
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`The Abilify label reported that between 0.1 and 1 percent of participants
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`developed TD during short-duration, premarketing clinical trials. Regardless of
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`2
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`whether that figure represented an incidence rate, Dr. Plunkett failed to produce a
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`comparable incidence rate with which to dispute the label’s rate. An incidence rate
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`is the ratio of the number of Abilify users who developed TD to the total number
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`of Abilify users. As Dr. Plunkett conceded, neither the study nor the data set on
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`which she relied calculated an incidence rate or reported the total number of
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`Abilify users—the necessary denominator in a calculation of an incidence rate.
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`Because Dr. Plunkett did not have reliable evidence to support her opinion, the
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`district court appropriately excluded her testimony under Daubert.
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`2.
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`The district court did not err in granting summary judgment. As part
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`of her claim, Rodman had to show that Otsuka failed to warn of a risk “known or
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`scientifically knowable at the time of the drug’s distribution.” Wendell v.
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`GlaxoSmithKline LLC, 858 F.3d 1227, 1238 (9th Cir. 2017).
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`Lacking evidence of label inadequacy without Dr. Plunkett’s testimony,
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`Rodman argues that a 2018 study authored by Otsuka’s expert, Dr. Christoph
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`Correll, establishes a genuine issue of material fact because it allegedly reports a
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`TD incidence rate of 1.7 percent for Abilify. The district court concluded that
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`Rodman did not clearly advance that argument until her motion for
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`reconsideration, so it was therefore untimely. We agree that Rodman did not
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`sufficiently raise this argument to the district court, which was not required to
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`“comb the record to find some reason to deny a motion for summary judgment.”
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`3
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`Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1209 (9th Cir. 2001).
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`Even considering the argument on its merits, Rodman provides no evidence that
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`the figure in Dr. Correll’s study proves that a higher incidence rate of TD was
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`“scientifically knowable” to Otsuka during the time Rodman took Abilify.
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`Wendell, 858 F.3d at 1238. Without Dr. Plunkett’s testimony, and with no other
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`available evidence, Rodman did not establish a genuine issue of material fact.
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`AFFIRMED.
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`4
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