Photo of Bexis

We’re not the first to post on the recent defense win in Ervin v. Johnson & Johnson, 2007 WL 1966796 7th Cir. July 9, 2007). The Product Liability Prof Blog got there first, on July 13. But we have our own two cents worth to say, so we’ll chime in.
We are, of course, delighted with the result. Plaintiff Ervin sued Johnson & Johnson on a claim that the prescription medicine Remicade caused a blood clot that resulted in the amputation of part of his leg. J&J moved in limine under Daubert to exclude the testimony of plaintiff’s expert and filed a motion for summary judgment. The trial court granted both motions, and the Seventh Circuit affirmed.
Very nice.
On the other hand, this was a little like shooting fish in a barrel. Plaintiff relied on a single expert, Dr. Lee McKinley, who opined to a reasonable degree of medical certainty that the use of Remicade was “the major contributing factor to Ervin’s thrombotic arterial occlusion and subsequent below knee amputation.” Dr. McKinley’s differential diagnosis “ruled in” Remicade as a possible cause of the arterial thrombosis based on (1) the temporal proximity between the drug infusion and the development of the clot, (2) a Google search that revealed one case report of an arterial thrombosis following Remicade infusion, and (3) a handful of “line entries” from FDA printouts that contained basic descriptions of adverse events, but no patient histories, descriptions of treatment, or analyses. Dr. McKinley identified no study, textbook, medical article, or paper showing that Remicade is associated with an increased risk of thrombosis.
If we had only that to run with, we’d feel pretty good about defending this case.
But it gets better.
The expert did not “rule in” the plaintiff’s elevated platelet count or diabetes as possible causes of the thrombosis, even though both of those conditions are associated with an increased risk of clotting. The expert “ruled out” the plaintiff’s Protein S deficiency as a cause of the clot until he was shown a later Protein S report, which caused the expert to change his opinion. The expert thus changed his opinion about causation during his deposition, saying that he “didn’t know” whether Remicade caused the thrombosis.
So the Seventh Circuit said the trial court didn’t abuse its discretion in excluding this testimony under Daubert.
We’ve pleased that J&J picked this one off. But we have two questions:
First, why aren’t we ever asked to defend cases that are filed in Aruba?
And, second, why don’t we ever have cases where the plaintiff’s expert gives testimony like this?
Maybe in our next lives, huh?