“It was the best of times, it was the worst of times.” We know it’s hackneyed to pull out the Tale of Two Cities quote, but it does seem to describe what’s happened over the last few weeks when it comes to expert testimony. A couple of weeks ago in the Trasylol litigation the court did a heroic job in excluding testimony from plaintiff repeat expert Parisian. A week or so later we got the abominable opinion in the Gadolinium MDL, where the court cut back on defense expert testimony right and left (and wrong and wronger) while pretty much permitting plaintiff experts to run roughshod over the entire 700 series of the Fed. R. Evid. (We know lawyers who were on the winning side in one case and the losing side in the other. They now have to puzzle through how to argue for appealability in one but not the other.)
More recently we saw some expert admissibility rulings in a Neurontin suicide case, Smith v. Pfizer, Inc., 2010 U.S. Dist. LEXIS 47698 (M.D. Tenn. May 14, 2010). The rulings addressed objections to expert statements on the eve of trial. These objections were lodged after the time for Daubert challenges or motions in limine, so the court was free to punt on several issues … which it did. But it also issued a number of rulings worth reviewing. (By the way, it appears that the case settled a couple of days after the court’s rulings. Coincidence?)
Here are some of the more interesting rulings:
– The expert’s own clinical experience
We love having our experts talk about their own clinical experience because they are so familiar with it, it humanizes the experts in the eyes of the jury, and, let’s face it, it’s a lot harder for the other side to cross-examine on it. The Smith court was generally receptive to testimony about clinical experience, but excluded one defense expert’s statement that he had never seen anything in any of his patients suggesting that Neurontin caused depression or suicidal thoughts. The court concluded that such testimony was more prejudicial than probative. Smith, 2010 U.S. Dist LEXIS 47698, *11. Really? If it’s true, it’s true. How is that prejudicial? It’s like the criminal defense lawyer objection we used to hear: “Objection, your Honor; prejudicial – tends to show guilt.” Here, such testimony tends to show lack of causation and should have been admissible.
– Foreign regulatory rulings
Here it was the defendant that wanted one of its experts to testify that Neurontin had been approved in some European countries for treatment of general neuropathic pain. The court excluded such testimony because it was tangential and would be prejudicial “without testimony regarding the standards employed by those European regulatory agencies.” Smith, 2010 U.S. Dist. LEXIS 47698, *8. We have dealt with this issue before, and thus have no comment on the rightness or wrongness of the ruling in the Smith case, but we note that in most cases it is the plaintiffs who seek to introduce foreign regulatory events (e.g., another country insisted on a stronger warning, or refused to approve the drug at all) so the court’s ruling excluding foreign regulatory actions will end up being a useful precedent for many of our cases.
– Narration of company documents
Both sides employed experts who bolstered their opinions by describing company documents. Plaintiffs seemed more ambitious in this area, and were playing the usual gambit of using their experts as document delivery devices. They pick out a couple of documents that sound bad and then say something like, “Jeepers, that’s Bad! And I’m an expert on Bad.” The Smith court generally decided that narration of company documents was permissible to the extent needed to supply “context.” Smith, 2010 U.S. Dist. LEXIS 47698, *31. What was “context” and what was hooey presumably would have been sorted out at trial. Many of the rulings in this category related to plaintiff’s expert Cheryl Blume, who was typically overbroad, aggressive, and purporting to be omniscient in her proposed statements. The court excluded her “improper state-of-mind testimony” about how certain documents reflected the company’s true intent. Based on our experience, that would excise a big chunk of her testimony. The court also forbade Blume from engaging in some astonishing bits of over-the-top advocacy such as “So, don’t believe the defendants if they claim that they ever warned for ‘suicide’ during Mr. Smith’s life.” Id., *37. Now that’s prejudicial testimony. Of course, the problem with experts such as Blume is that they’ll find ways to load their testimony with these types of goodies no matter what the court rules. What made the Trasylol ruling so brilliant was the court’s recognition of this fact regarding Parisian. But such a ruling takes experience, insight, and guts.
– Litigation-created chart
Plaintiff’s attorneys put together a couple of charts and then put those charts in Blume’s proposed testimony. One problem: Blume played no part in creating those charts and “admitted that she had not verified the work and is incapable of verifying the work.” Accordingly, the court excluded Blume’s testimony on those charts. Id., *34-36.
– 61 homers
One of plaintiff’s experts was Ronald Maris, a psychiatry professor. (On our own, we learned that he has a website called Suicideexpert.com. We are not making that up.) Dr. Maris proposed to inform the jury that, for liability, “[a]ll that is required is that Neurontin was one of the causes of Richard Smith’s suicide, not the only cause. It was a necessary, but not sufficient condition for his suicide.” Id., *22. That’s right: plaintiff’s expert basically wished to instruct the jury on legal causation, which is a no-no . Thanks very much for the offer, says the court, but “[i]t is the job of the court, not an expert witness, to instruct the jury regarding the applicable law.” Id. If courts applied this simple, irrefutable concept more diligently, so much of what plaintiff experts endeavor to say regarding adequacy of warnings or appropriateness of marketing would simply vanish. Oh, and the court would not let Dr. Maris say that he was “distantly related to the baseball player” – with or without an asterisk. Id., *20.
The rulings in the Smith case are a mixed bag. Some of that is a function of the last-minute nature of the objections and rulings. But there’s more good than bad in this mixed bag. And, in fact, expert rulings in general in drug and device litigation are a mixed bag. There’s not a whole lot of consistency out there on expert testimony. As courts acquire more experience with expert issues in drug and device cases, and perhaps more importantly, with the plaintiff experts who play the same old games, maybe the rulings will start to coalesce around some core of common sense.
To quote the last line of another novel, “Isn’t it pretty to think so?”