What happens is Vegas should stay in Vegas – and should not be turned into a product liability suit. That’s the takeaway from Wells v. SmithKline Beecham Corp., No. 09-50244, slip op. (5th Cir. March 22, 2010). Somebody who had been gambling (and losing) for more than thirty years tried to claim that a medication for Parkinson’s disease causes him to lose still more after he began taking the drugs.
As the Fifth Circuit, observed, none of plaintiff’s three experts could say that the drug caused gambling: Expert #1 (“we don’t have enough data to suggest causality”); Expert #2 (“has a cause-and-effect relationship been established . . .? No.”). Expert #3 (“I cannot say [the drug] directly causes [pathological gambling]. What I can say is that there is an association between the two variables. . . . [T]hat’s different than talking about the issue of causation.”). Slip op. at 6.
Umpire Daubert says, “strike three, your out.”
Amazingly, the plaintiff appealed. The Fifth Circuit rung the plaintiff up again:
While “[w]e . . . understand that in epidemiology hardly any study is ever conclusive, and we do not suggest that an expert must back his or her opinion with published studies that unequivocally support his or her conclusions,” here there is simply too great an analytical gap between the data and the opinion proffered. And the bases for the experts’ conclusions pass none of the applicable Daubert tests: that [the drug] causes problem gambling is not generally accepted, has not been subjected to peer review and publication, and is not backed by studies meeting requisite scientific standards. Without the expert testimony, Wells cannot prove general causation – and judgment must be entered for GSK.
Slip op. at 8-9 (footnotes and other stuff omitted). “[T]he scientific knowledge is not yet there.” Id. at 9.
And don’t bet on baseball, either.
We’re told that congrats to Marcy Greer, Stephanie Smith, and Stacey Martinez of Fullbright & Jaworski, and to Cindy Bennes of Phillips Lytle.