DELVACCA Presents:
Recent Developments in Product Liability
Litigation: What Every In-House Counsel
Needs to Know
Mariam Koohdary, Stephen J. McConnell, Hope S. Freiwald
DELVACCA thanks Dechert LLP for sponsoring this event.
© 2010 Dechert LLP
Tackling The “Mass” In Mass Tort
Mass Torts Need A Trigger
Regulatory Action
Bad Press
Voluntary Recall
Lawsuits or Settlement
Involving Other Products
Big Jury Verdict
Critical Article in Scientific Literature
Recent Developments in Class Actions:
Daubert
American Honda Motor Co., Inc. v. Allen, 2010 WL 1332781
(7th Cir. Apr. 7, 2010)
•
Held that before a district court may certify a class, it first “must
conclusively rule” on any Daubert challenge if that expert’s testimony
is “critical” to class certification.
•
The district court isn’t allowed to punt Daubert and proceed with a
“provisional” class when plaintiffs' whole class action depends on
whether or not the experts are going to be able to prove on a
classwide basis what they said they can prove.
Recent Developments in Class Actions:
Off-Label Promotion Class Dismissed
Central Regional Employees Benefit Fund v. Cephalon, Inc.,
2010 WL 1257790 (D.N.J. Mar. 29, 2010)
•
Plaintiffs (third-party payors) sought to represent a class of governmental
agencies, alleging that Cephalon engaged in improper “off-label”
promotion.
•
Concluded it would be futile to allow plaintiffs to amend their alreadydismissed class complaint because plaintiffs could not state a claim
under any of the theories of liability they sought to assert.
•
“[O]ff-label marketing of an approved drug is itself not inherently
fraudulent.”
Recent Developments in Class Actions:
Cross Jurisdictional Tolling
Fosamax Prods. Liab. Litig., 2010 WL 908926
(S.D.N.Y. Mar. 15, 2010)
•
Procedural history:
–
Nationwide personal injury class action filed in Middle District of Tennessee.
–
Class action was transferred to New York as part of the MDL, and the MDL court denied
class certification.
–
While the class was pending, a number of plaintiffs filed untimely individual personal
injury lawsuits.
•
Plaintiffs argued that the Virginia statute of limitations should be tolled
during the pendency of the class certification decision in the MDL.
•
Court declined to expand American Pipe to allow for cross-jurisdictional
tolling, noting that “federal courts generally have been disinclined to
import cross-jurisdictional tolling into the law of a state that has not ruled
on the issue.”
Refusal To Create MDL
In Re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig.
•
Centralization was sought on two separate occasions and denied
(See MDL No. 2139, Order Denying Transfer).
•
The number of defendants and products at issue weighed against
centralization.
•
“Individual issues of causation and liability continue to appear to
predominate, and remain likely to overwhelm any efficiencies that
might be gained by centralization.”
•
Plaintiffs’ “different medical histories” considered an individual issue
weighing against centralization.
Refusal To Transfer Cases To MDL
In Re Seroquel Prods. Liab. Litig., MDL No. 1769
•
JPML vacated conditional transfer of 15 cases with almost 900
plaintiffs. (JPML Order, February 5, 2010).
•
Concluded the MDL has “reached an advanced stage,” and transfer
of the 15 cases is no longer necessary for the “just and efficient
conduct of the litigation.”
•
Reconsideration pending.
MDLs: Do You Really Want One?
•
Once an MDL is in place, plaintiffs will file many new complaints.
•
Plaintiffs’ counsel can file their less meritorious cases in federal court
where things move slowly.
•
Plaintiffs’ counsel will put the good cases in state court and put the
“dogs” in the MDL.
MDLs: Can Defendants Influence The
Where?
•
The Panel will consider many factors in exercising its discretion to
designate a transferee court : (1) where the pending litigation has
progressed furthest, (2) where the greatest number of cases are pending
(3) where the documents, parties and witnesses are located, (4) where
the greatest opportunity for state/federal coordination may exist, (5) what
is the availability of a judge in the proposed transferee court or courts,
and (6) will transfer serve any ulterior motive of any of the parties, such
as forum shopping?
•
How to oppose an MDL while
also arguing for a particular forum?
MDL Discovery: Benefits And Pitfalls
•
Benefits
-Streamline litigation and weed out cases (plaintiffs counsel often
dismiss their junk cases as soon as subjected to discovery)
-Avoid duplication of discovery
-Prevent inconsistent or repetitive rulings
- Preserve the resources of the parties, their counsel, and the
judiciary
•
Pitfalls
- Burdensome and untargeted discovery
- One-sided discovery
Plaintiffs’ Position
•
Plaintiffs typically want the MDL to focus on discovery regarding
general liability issues only – basically, discovery of defendant.
•
Argue that MDL discovery should be limited to “matters common to
all cases” to minimize the cost of pretrial activity.
Defense Response
• Fairness requires a two-way street.
• Keep cases moving forward and preserve evidence.
• Weed out “junk” cases, which should have never been filed in the
first place.
• Uncover common issues and questions suitable for disposition.
• Trial preparation.
Defendants Seek To Uncover Dispositive
Common Issues
•
Extent of usage
•
No general causation
•
No specific causation
•
Daubert
•
Estoppel/double recovery
•
Continued use after filing suit
•
Learned intermediary
•
Statute of limitations
•
Preemption
What MDL Courts Do In
Pharmaceutical Cases
Discovery Of All Plaintiffs
•
Zyprexa
•
Phenylpropanolanine (PPA)
•
Aredia and Zometa
•
Initial Expedited Discovery Programs
•
Baycol
•
Bextra and Celebrex
Vioxx
•
Fosamax
•
Diet Drug
•
Prempro
•
Propulsid
•
St. Jude
•
Seroquel
•
Rezulin
•
Celexa and Lexapro
•
Viagra
Discovery Promotes Docket Management
In Re Phenylpropanolamine (PPA) Products Liability Litigation:
3500
Dismissals
216
3000
Remands
25
2500
2048
2378
2000
Dismissals
8
1500
Remands
0
Pending
Cases
2889
Remands
256
1000
Pending
Cases
1249
Pending
Cases
1027
500
Remands
452
Pending
Cases
533
0
2003
2004
Pending Cases
2005
Remands
2006
Dismissals
Phased Discovery Program
Generic Discovery
Case-Specific Discovery
•
•
Plaintiff Fact Sheets
•
Record collection
•
Lone Pine report
•
Master discovery requests
served on Defendant
Custodial production of generic
documents
•
Depositions of Defendant
witnesses
•
Expedited case-specific
discovery program
•
Generic expert discovery
•
Phased discovery for nonexpedited cases
•
Daubert motions
•
Dispositive motions
•
Motions re: generic issues
Case-Specific Discovery Special Master
•
Plaintiffs often drag their feet, create delays, and look for ways to
resist case-specific discovery.
•
Special Master to handle case-specific discovery improves the
process.
•
Seroquel MDL is a great example of
how a Special Master has efficiently
managed the case-specific discovery process.
Dismissals Through Informal Discovery
In re: Welding Fume Prods. Liab. Litig., MDL No. 1535,
[Ernest Ray, No. 04-18252] (N.D. Ohio. 2010)
•
Plaintiffs moved to dismiss a bellwether trial case because claims of
severe disability were refuted by internet (specifically Facebook)
photos discovered by defendants.
•
Appropriate review of public websites requires no disclosure to
opposing counsel, and can be done relatively cheaply.
Recent MDL Developments
In re NuvaRing Prods. Liab. Litig., MDL No. 1964,
2009 WL 2425391 (E.D. Mo. Aug. 6, 2009)
•
Refused to consider motion to dismiss master complaint because it is a
mere “administrative tool.”
•
Then refused to consider motions to dismiss individual complaints.
•
Views MDL’s sole role to be “the efficient coordination of discovery.”
MDL: Law Of The Case
In Re Pharmacy Benefit Managers Antitrust Litigation,
2009 WL 3030370 (3d Cir. Sept. 23, 2009)
•
Prior to the creation of the MDL, district court entered an order
compelling arbitration of antitrust issues in the case.
•
After MDL was formed, the MDL judge vacated the arbitration ruling.
•
Third Circuit held that the MDL Judge’s order vacating the arbitration
ruling violated the law of the case doctrine.
•
“[W]e do not believe that Congress
intended that ‘Return to Go’ card
would be dealt to parties involved
in MDL transfers.”
MDL: Law Of The Case
In Re Ford Motor Co., 591 F.3d 406 (5th Cir. 2009)
•
Fifth Circuit held that while after remand, the transferor judge must give
“some deference” to the MDL transferee judge’s decisions, that
deference is not absolute.
•
“The law of the case doctrine requires attention to the special authority
granted to the multidistrict transferee judge and ensures that transferor
courts respect the transferee court's decisions. . . . That doctrine also
has the virtue of allowing transferor courts to correct serious errors of the
transferee court."
Federal vs. State:
Fraudulent Misjoinder
In Re Prempro Prods. Liab. Litig., 591 F.3d 613 (8th Cir. 2010)
•
Federal courts have repeatedly held that polyglot complaints violate the
permissive joinder requirement of the Federal Rules and are improper.
•
Eighth Circuit ruled that the manufacturers did not meet their burden of
establishing that claims of plaintiffs in multi-plaintiff complaints are
“egregiously misjoined” because plaintiffs’ “claims arise from a series of
transactions between . . . pharmaceutical manufacturers and individuals
that have used [their] drugs” and plaintiffs “contend their claims are
logically related because they each developed [the same injury] . . .”
Ex Parte Communications With Treaters
Zometa/Aredia Prods. Liab Litig, Gaus v. Novartis Pharmaceuticals
Corp., No. MID-L-007014-07 (N.J. Super. Law Div. Oct. 29, 2009)
•
New Jersey court prohibited plaintiffs’ counsel from ex parte
communications with plaintiffs’ treating physicians.
•
To ensure the same right of access
and promote an efficient discovery
process, all parties ordered to
proceed by way of deposition.
Ex Parte Communications With Treaters
In Re NuvaRing Products Liability Litigation, 2009 WL 775442
(E.D. Mo., Mar. 20, 2009)
•
Defendants sought approval to conduct ex parte interviews with
plaintiffs’ treating doctors, arguing such interviews will “facilitate the
discovery process.”
•
Court rejected defendants’ request because defendants had
alternative methods, i.e., formal discovery, to obtain information.
•
Plaintiffs permitted to conduct ex parte interviews but the interviews
were limited to the particular plaintiff's medical condition at issue in
the litigation. Plaintiffs were also required to inform the physician of
the voluntary nature of the interview.
Ex Parte Communications With Treaters
In Re Ortho Evra Prods. Liab. Litig., MDL No. 1742
(N.D. Ohio January 20, 2010)
•
The MDL court allowed plaintiffs’ counsel to have ex parte contact with
treating physicians but only to discuss the physicians’ records, course of
treatment and related matters.
•
Plaintiffs’ counsel were not allowed to discuss liability issues or theories,
product warnings, defendant's research documents, or related materials.
•
Sanctions would be imposed for violations of the Court’s approach.
State Court Coordination
•
There is no statute equivalent to 28 U.S.C. § 1407 that permits intrastate
coordination of lawsuits pending in state courts.
•
California, Texas, Pennsylvania and New Jersey have well-developed
coordination systems for intrastate actions.
•
Joint hearings, similar case management orders, use of same discovery
requests/responses.
•
Jurisdiction with early involvement + many resources + experience with
mass torts usually takes the lead in coordination.
•
MDL is the default for taking the lead.
Forum Shopping And
Choice Of Forum Issues
Choice of Forum
•
Plaintiff’s choice is entitled to deference, but with limitations.
•
Deference to plaintiff’s choice applied with less vigor when plaintiff is
foreign.
•
“When the plaintiff's choice is not its home forum . . . the
presumption in the plaintiff's favor applies with less force, for the
assumption that the chosen forum is appropriate is in such cases
less reasonable.” Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 430 (2007).
Forum Non Conveniens
Hunter v. Shire, Inc., 2010 WL 937279 (Pa. Super. March 17, 2010)
•
Philadelphia is a convenient forum, even though plaintiff lived in
Georgia, ingested the product in Georgia, suffered the alleged
injuries in Georgia, all of plaintiff’s doctors were in Georgia, and all of
plaintiff’s witnesses were in Georgia.
•
The central issues in the case concerned the developing, testing and
marketing of the drug, not plaintiff's consumption of the drug.
•
Endorse blatant forum shopping.
Forum Non Conveniens (Cont’d)
Avery v. Pfizer, Inc., (N.Y.A.D. Dec. 22, 2009)
•
Claims of a dozen or so Lipitor plaintiffs belongs in Georgia where
the plaintiff “lives in Georgia,” “ingested the drug in Georgia,"
suffered his injuries in Georgia,” “all [plaintiff's] treating physicians
are in Georgia,” and “all of [plaintiff's] witnesses are in Georgia.”
•
What happens to issues of specific causation, reliance and
damages?
•
Attendance of company witnesses at trial v. inability to compel
treating doctors to testify out of state.
Forum Non Conveniens In Mass Torts
In Re Seroquel Prods. Liab. Litig., MDL No. 1769
•
Thousands of non-New York residents filed lawsuits in New York.
•
Plaintiffs argued for a “mass tort exception” to forum non
conveniens.
•
“The mass tort nature of this [New York litigation] should weigh
heavily in the [court’s forum non conveniens] analysis.”
Forum Non Conveniens:
Foreign Nationals’ Strategies
• Ex parte dismissal in foreign forum
• Foreign blocking statutes
• Expansive U.S. residency
• Burdensome conditions of dismissal
Legal Climate 2010
(Institute of Legal Reform)
State
Overall
Class Actions
and Mass Torts
Delaware
1
Not Ranked
North Dakota
2
7
Nebraska
3
2
New Jersey
32
Not Ranked
Pennsylvania
34
31
Louisiana
49
49
West Virginia
50
50
Forums To Avoid
•
American Tort Reform Association’s annual list of most unfair
jurisdictions in which to be sued.
•
New Jersey’s “Mass Tort Capital,” Atlantic County, New Jersey
ranked number 4 in 2009.
•
West Virginia and South Florida
frequently on top.
•
“West Virginia was a field of dreams for
the plaintiffs’ lawyers. We built it and they came.”
West Virginia Judge Arthur Recht
Daubert & The Science Case
Daubert in the “Substantial Factor” Case
How Does the Legal Issue Get Framed?
•
Beyond Federal Rule 702, most states (37) require trial judges to
determine reliability of expert testimony before admission
•
Delaware - Daubert
•
New York – Frye as Daubert
•
Pennsylvania – Frye
•
New Jersey – Kemp
•
California – general acceptance of novel scientific method
Recent Decisions
Guinn v. AstraZeneca Pharms. LP, 2010 U.S. App. LEXIS 7076 (11th Cir. April 6, 2010)
Seroquel
Hopkins v. AstraZeneca Pharms. LP, 2010 WL 1267219 (Del. Super. Ct., Mar. 31, 2010)
Seroquel
Jones v. AstraZeneca Pharms. LP, 2010 WL 1267114 (Del. Super. Ct., Mar. 31, 2010)
Seroquel
Tucker v. SmithKline Beecham Corp., 2010 U.S. Dist. LEXIS 30791 (S.D. Ind. March 30, 2010)
Paxil
Tate v. AstraZeneca Pharms. LP, Docket No. L-1608-07 (N.J. Sup. Ct., Law Div. Feb. 5 2010)
Seroquel
Ratner v. McNeil-PPC, Inc., 2010 N.Y. Misc. LEXIS 138 (N.Y. Sup. Ct. January 9, 2010)
Tylenol
In re Accutane 2009 WL 3462395 (M.D. Fla. Oct. 28, 2009)
In re Bausch & Lomb, Inc., MDL No. 1785, 2009 U.S. Dist. LEXIS 83849 (D.S.C. Aug. 26,
2009); In re Bausch & Lomb, Inc., 2009 N.Y. Misc. LEXIS 3407 (N.Y. Sup. Ct. July 14, 2009)
Kilpatrick v. Breg Inc., 2009 U.S. Dist. LEXIS 76128 (S.D. Fla. June 25, 2009)
Scaife v. AstraZeneca Pharms. LP, 2009 WL 1610575 (Del. Super. Ct., June 9, 2009)
In re Neurontin Prod. Liab. Litig., 2009 N.Y. Misc. LEXIS 1777 (N.Y. Sup. Ct. May 15, 2009)
Accutane
ReNu
Joint Pain Pump
Seroquel
Neurontin
Recent Decisions
McCarrell v. Hoffman-La Roche, Inc., 2009 N.J. Super. Unpub. LEXIS 558 (N.J. App. Div. March
12, 2009)
Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009)
Accutane
Thimerosal Vaccine
Gibson v. Sanofi-Aventis U.S., LLC, Civ. A. No. 3:07CV-192-S,
2009 U.S. Dist. LEXIS 102864 (W.D. Ky. 2009)
Ambien
Haller v. AstraZeneca Pharms. LP, 598 F. Supp. 2d 1271 (M.D. Fla. 2009)
Seroquel
In re Baycol Prods. Litig., 596 F.3d 884 (8th Cir. 2010); Ronwin v. Bayer Corp., 332 Fed. Appx. 508
(10th Cir. 2009)
Baycol
In re Fosamax Prods. Liab. Litig., 645 F. Supp. 164 (S.D.N.Y. 2009); In re Fosamax Prods. Liab.
Litig., 647 F. Supp. 2d 265 (S.D.N.Y. 2009)
Fosamax
In re Zyprexa Prods. Liab. Litig., 79 Fed. R. Evid. Serv. (Callaghan)
774 (E.D.N.Y. 2009)
Zyprexa
In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig.,
524 F. Supp. 2d 1166 (N.D. Cal. 2008)
Bextra and Celebrex
In re Human Tissue Prods. Liab. Lit., 582 F. Supp. 2d 644 (D.N.J. 2008)
Perry v. Novartis Pharms. Corp., 564 F. Supp. 2d 452 (E.D. Pa. 2008)
In re Accutane Prods. Liab. Litig., 511 F. Supp. 2d 1288 (M.D. Fla. 2007)
Human Allografts
Elidel
Accutane
How Do You Know if You Have a Real Shot?
•
Build the right team bridging law and science
•
Hire the right consulting experts so you really know the disease
science
•
Hire the right consulting experts to know the product science (the
company’s view may actually be unfairly defensive)
•
Identify the biggest problem and opportunity for your case
•
Make sure the opportunity “fits” your plaintiff pool
•
Find your best case and best jurisdiction for a domino effect
General Causation: A Cautionary Tale
•
Most plaintiffs’ lawyers today don’t start empty handed
•
Most MDL courts are reluctant to end an entire litigation before it
even gets off the ground
•
A broad attack that fails can put your client behind on the stronger
case-specific issues AND hurt you in later remand courts
•
IF you do a general cause challenge, consider how you still tee that
up in the context of your best individual cases
•
OR limit a general causation attack to groups of cases
Your Fact Deposition Program:
Laying the Daubert Landmines
•
Fact Depositions “fix” the record and so frame the case for your later
expert examinations
•
Good fact depositions improve the odds of Daubert success
•
Missed chances in the fact deposition program may prevent you
from closing out plaintiffs’ experts on Daubert grounds
•
Lawyers taking fact depositions should understand both the scientific
and legal underpinnings of your Daubert strategy
Ensuring Daubert-Focused Depositions
•
Focus on methodology – if methods fail then conclusions fail too
•
Start with the specific case and work the general literature into that
context – push the expert to speak to the details
•
Emphasize the value of sound bites – academic debates are a waste
of time
•
Agree no one is “saving it for trial” – if you can win, there won’t be
one
•
Pick people who are relentless! A nonsensical answer many
times is better than a nonsensical answer once!
The Daubert Hearing:
Unmasking a Flawed Methodology
Expert Did Not Review Everything
“At the time of her deposition, Dr. Peck had reviewed thirty-one items of medical
literature . . . all of which had been provided to her by plaintiff’s counsel.
“She confirmed that she had not conducted any of her own research to reach her
opinions . . . .
“She also acknowledged that she chose not to review data that had been
supplied to her . . . .
“She further acknowledged that she was not aware of any [clinical trials] at the
dosages levels implicated by Ms. Scaife’s use of the drug.”
Scaife v. AstraZeneca LP, 2009 WL 1610575 at 8 (Del. Super.)
Expert Had No Reliable Methodology
(Federal)
“An expert, however, cannot merely conclude that all risk factors for
a disease are substantial contributing factors in its development.
The fact that exposure to a substance may be a risk factor for a
disease does not make it an actual cause simply because the
disease developed.”
Guinn v. AstraZeneca Pharms. LP, 2010 U.S. App. LEXIS 7076 (11th Cir. 2010)
Expert Had No Reliable Methodology (NJ)
“ Dr. Zonszein declared, without providing the why or wherefore, that all of
these factors ‘substantially contributed’ to [plaintiff’s] development of diabetes,
and that Seroquel® was the ‘straw that broke the camel’s back’, which, in Dr.
Zonszein’s words, ‘is another way of saying precipitated diabetes . . . .’ While
uttering the phrase ‘straw that broke the camel’s back’ is not necessarily a
magic phrase that requires the exclusion of an expert’s testimony, it does not,
without further support, qualify as the ‘process’ required under New Jersey
law.”
Tate v. AstraZeneca Pharms. LP, Docket No. L-1608-07 (N.J. Sup. Ct., Law Div., Feb. 5, 2010)
Expert Failed to “Rule Out” Other Causes
“ [T]hroughout her
deposition testimony it was
clear that [Plaintiff’s expert]
employed no scientificallydriven course to rule out
obesity or other known risk
factors in Ms. Scaife as the
sole cause of Ms. Scaife’s
diabetes.”
Scaife, 2009 WL 1610575 at 24
•
Q: But you didn’t look to see what
her eating habits were, what her
sleeping habits were, what her
exercise habits were, what her
mood was, what her other drugs
were?
•
A: [. . .] I can’t look at things I don’t
have.
•
Q: You can’t assume that her
exercise habits weren’t relevant
just because you don’t know what
they were?
•
A: I can’t assume they weren’t
relevant.
Expert “Ruled in” the Medicine Based Solely
on Temporal Proximity
“Throughout her deposition, Dr. Peck iterated over and over again, in
various configurations, that the analysis leading to her differential
diagnosis was simple and sequential: Ms. Scaife took Seroquel and
then, in sequence, things began to happen to her – she gained
weight; she developed diabetes.”
Scaife, 2009 WL 1610575 at 23
Expert Ignored Contrary Data
“Dr. Cohen did not address [four contradictory] studies in her expert reports
or affidavit, and did not include them on her literature reviewed list [. . .] This
failure to address this contrary data renders plaintiffs’ theory inherently
unreliable.”
In re Bausch & Lomb, Inc., 2009 WL 2750462 at 13 (D. S.C.)
“He reaches his opinion by first identifying his conclusion . . . and then
cherry-picking observational studies that support his conclusion and rejecting
or ignoring the great weight of the evidence that contradicts his conclusion.”
In re Bextra & Celebrex Mktg., 524 F. Supp. 2d at 1176.
“Even more damaging . . . is her failure to grapple with any of the myriad
epidemiological studies that refute her conclusion.”
Rimbert, 80 Fed. R. Evid. at *45-46
Expert Did Not Address Differences in Dose
“Plaintiffs have not identified, or even suggested, a threshold
level of microbes necessary to actually cause an onset of a nonFusarium infection.”
In re Bausch & Lomb, Inc., 2009 U.S. Dist. LEXIS 83849 at *34.
“[W]ith nearly all compounds there is usually a threshold that
must be met before there is any harm.”
In re Bextra & Celebrex Mktg., 524 F. Supp. 2d at 1180.
Expert’s Method Kept Changing
“Dr. Cohen’s changing opinions, and willingness to abandon or qualify
her opinions when faced with further facts, undermines the reliability of
her opinions.”
In re Bausch & Lomb, Inc., 2009 WL 2750462 at 12
“Beyond the problems associated with the way in which Dr. Tulloch
reached his opinions, the stark fact is that the grounds for his causation
opinion have been a veritable moving target. And that is most troubling
is that the underpinnings of his opinions have changed in direct response
to AstraZeneca’s motion practice.”
Haller v. AstraZeneca LP, 598 F. Supp. 2d 1271, 1296-97 (M.D. Fla 2009)
Expert Could Not Define the Mechanism
Q: Do you know what Ms. Scaife’s
level of insulin resistance was
before [. . .]?
A: [. . .] One doesn’t measure,
can’t measure it.
Q: And do you know what her level
of insulin resistance was after[. .
.]?
A: [. . .] you can’t quantitate that,
and it isn’t quantitative.”
“Dr. Peck ultimately
acknowledged that the exact
mechanism [of alleged injury]
is not well defined.”
Scaife, 2009 WL 1610575 at 11
Expert Overly Relied on Animal Studies
“Dr. Jackson performed no calculations to determine whether the
dose or route of administration of antidepressants to rats and
monkeys in the papers that she cited in her report was equivalent to
or substantially similar to human beings taking prescribed doses of
Prozac.”
Rimbert v. Eli Lilly & Co., 80 Fed. R. Evid. Serv. (Callaghan) 103
(D.N.M. 2009)
“Drs. Smith and Kolb fail to address the disparity in the dosages
Andreas Perry received and the dosages in the animal studies on
which they rely.”
Perry v. Novartis Pharms. Corp., 564 F. Supp. 2d 452 (E.D. Pa. 2008)
Expert Could Not Explain the Damage Formula
•
Expert could not point to laboratory data showing a clinically relevant
“change”
•
Expert could not say plaintiff did not have disease before taking
medicine – only points out that there is no proof plaintiff had disease
before
•
Expert could not say plaintiff would not have gotten disease at some
point in relatively near future
•
Expert could not point to evidence that use of medicine accelerated
timeline to clinical disease
•
If medicine was “straw that broke the camel’s back” expert could not say
the camel wasn’t already broken
. . . Because There Wasn’t One
•
Expert cannot state that plaintiff more likely than not will suffer a
specific bad outcome of the underlying disease.
•
Expert admits that while disease presents high relative risk of bad
outcomes individual risks are very small
•
Expert admits plaintiff’s pre-existing risk factors alone could cause
the same future bad outcomes
•
Expert admits that lifestyle and/or medicines used for multiple
conditions can take plaintiff’s prognosis to baseline or better
News From the Trial Front
Recent Verdicts
Baker (N.J. Sup. Ct. 2010) (Seroquel)
-Verdict for Defendant
Foust (Pa. Ct. Common Pl. 2010) (Prempro)
-Verdict for Defendant
Singleton (Pa. Ct. Common Pl. 2010) (Prempro)
-Verdict for Plaintiff, $9.45M in compensatory and punitive damages
Barton (Pa. Ct. Common Pl. 2009) (Prempro)
-Verdict for Plaintiff, $78.7M in compensatory and punitive damages
Stevens (Mont. Dist. Ct. 2009) (Zometa)
-Verdict for Plaintiff, $3.2M in compensatory damages
Kendall (Pa. Ct. Common Pl. 2009) (Prempro)
-Verdict for Plaintiff, $34.3M in compensatory and punitive damages
McCarrell (N.J. Sup. Ct. 2010) (Accutane)
-Verdict for Plaintiff, $25.16M in compensatory damages
Boles (S.D.N.Y. 2009) (Fosamax)
-Plaintiff’s Motion for Mistrial granted
Kilker (Pa. Ct. Common Pl. 2009) (Paxil)
-Verdict for Plaintiff, $2.5M in compensatory damages
Lessons Not Learned
•
Failing to Educate the Judge in Advance on Key Issues Keeps
You on Defensive
•
It Takes As Long or Longer to Defend a Case
•
How Your Witnesses Talk Matters as Much as What They Say
•
If Your Team is Less Likeable than Your Opponent’s, then You
Are Too
•
The Jury Does Not Have to Pay Attention
Lessons Learned
•
Make Sure Your Team is Interesting and Understandable
•
Have Your Experts Be the Teachers and Show don’t Tell
•
Warning Claims Can Be Defended with Common Sense
•
Push Evidentiary/Foundational Rules to Keep Out Prejudicial Evidence
•
Raise Relevance and Other Objections to Deposition Designations to Narrow
Case and Disrupt Case Flow
•
Approach New Judges as New – Don’t Discard Previously Failed Ideas
Before Trying Your New Audience