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Years ago we were often entertained by the comedic stylings of “Professor” Irwin Corey, “World’s Foremost Authority.” Authority in what? (Or so we imagine you asking.) Well, that’s the point. He was an authority on everything and nothing. His shtick was to amble on stage dressed in a collegiate gown and sneakers, and then hold forth on a variety of topics via double-talk, stream-of-consciousness, and abrupt, nonsensical topic changes. Here’s an odd bit of high-brow/low-brow trivia: Ayn Rand was a big fan of Professor Corey.
For some reason, we think of Irwin Corey when we confront plaintiff expert witnesses in drug or device cases. Plaintiff lawyers are nothing if not cheap, so they like to use the same experts again and again to cover a broad swath of scientific and technical areas, even if those areas are far away from the witness’s training and practice. More often than not, they (the plaintiff lawyers and the instant “experts”) get away with it. We remember deposing a professor of marketing who not only uttered the most inane thoughts on how certain advertisements contained Freudian themes, but also took a few stray shots at cancer causation. Like any semi-awake lawyer, we asked the witness whether he considered himself an oncologist. The witness than said something like, “I’m not board-certified as a medical doctor, but I think that I have had education, experience, and training that would permit me to share a few things that would be helpful to the jury.” And then he grinned. He grinned because he knew he had played the game well.
Too many courts let plaintiff experts play the game. Courts are supposed to act as gate-keepers. Gate-keeping must be plenty hard, because more than a few judges seem inclined to let phony experts blather. The judges would rather have the jurors sort it all out. It’s possible that we are irretrievably scarred on this issue, since we practice in a jurisdiction where a witness is qualified to testify as an expert if the witness “has any reasonable pretension to specialized knowledge on the subject under investigation.” Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81 (1995). That’s right, “pretension.”
It’s nice when we find the occasional case where judges put a halt to such drivel. Ranes v. Adams Laboratories, Inc., No. 06-1228 (Iowa Feb. 5. 2010) isn’t a perfect case on admissibility of expert testimony, but there’s way more good than bad in it. Ranes alleged that PPA caused him to sustain a stroke or something very like a stroke. But every treater in sight concluded that while Ranes suffered from some neurologically-related symptoms, those symptoms were not associated with a stroke and that PPA played no role. The defense expert, a neurologist, agreed with the treaters and believed that Ranes’ symptoms were consistent with a degenerative neurological condition — not a stroke.
Into the breach steps plaintiff’s expert, who was a toxicologist, not a neurologist. He primarily practiced as a pediatrician. Plaintiff’s expert, unlike every other doctor, diagnosed Ranes with vasculitis. He agreed that vasculitis was not shown by imaging or other medical tests. Plaintiff’s expert “diagnosed Ranes with vasculitis because he believed Ranes’ continual signs and symptoms are consistent with the toxic effects of PPA.”
Okay, at this point, if we’re wearing a black robe this case is a goner. The “expert” is in foreign waters, and the opinion sounds like circular, back-filling hogwash. The Iowa Supreme Court ultimately gets there, but it takes a while. As we read the opinion, we kept our fingers poised over the trap-door button. It felt swell at the end when we finally got to push it.
Iowa employs an ad hoc approach to decide expert admissibility. For complex scientific evidence, Iowa courts consider the Daubert factors. Because Ranes was a toxic-tort case with complex issues of differential diagnosis (or differential etiology), Daubert applied to Ranes. So far so good.
The court begins by holding that plaintiff’s expert is generally qualified to discuss the potential effects of PPA on the human body, and also how PPA potentially affected the plaintiff. This despite the fact that the expert was not a neurologist and hadn’t really done much on the particular issue at hand besides read some studies. At this point, our hearts are sinking and are lips are saying “uh oh.”
But not to worry. The court observes that plaintiff’s expert relied on one case-control study and several case reports to support his general causation analysis. The expert reasoned that the case control study shows that PPA can cause strokes, and since Ranes likely suffered a “stroke-like event,” the study tended to show a relevant causal connection. But the case control study excluded men (the plaintiff was male) and there’s no support for the extrapolation from the study’s reference to “stroke” to the so-called “stroke-like event” — whatever that is. The court holds that “a bare analogy from case reports to the injuries alleged in a particular case is unreliable.” Moreover, there were factual distinctions between Ranes and the case reports. (That will almost always be the case with case reports.) The court makes a nice point when it says that if plaintiff’s expert “had taken his opinion in this case to a medical journal for publication, it would be in the form of another case report related to PPA, not a clinical trial or case-control study.” And “[r]easonable medical experts would not rely upon the presented anecdotal information.” Touche. Then the court seizes upon the fishy nature of the diagnosis and circular reasoning offered up by plaintiff’s expert, and points out that “a diagnosis of a disorder does not constitute additional evidence of causation of the disorder.”
Finally, finally — when we thought the court had been fooled by the pretense of expertise — the court comes back to the issue of qualifications and decides that the toxicologist is not qualified to make a diagnosis of vasculitis and that, in any event, the methodology was faulty because it was clear that the expert had cherry-picked the supporting evidence. He dismissed all the neurological tests performed over three years as faulty, and “relied only on symptoms Ranes reported to tie the case reports he located to Ranes’ case.” That cannot pass muster. No valid expert opinion, no evidence of causation — hello summary judgment.
Obviously, we approve of the Iowa court’s reasoning. (Though we don’t like the way it made us sweat for 30 pages. It was almost cruel the way the qualifications issue was hidden behind the back for a while.) We also think that the deficiencies the court identified with respect to the expert in Ranes will exist with the overwhelming majority of plaintiff experts.
Take it from us. We’re experts.