Today’s post is of the “this and that” variety − dealing with things we’ve come across that we haven’t yet blogged about this week.
As defense counsel appreciate, PMA preemption post-Riegel floats like a butterfly and stings like a bee. Anybody representing PMA medical device clients will
When last we looked in on long-time plaintiffs’ expert David Egilman, M.D., in 2010, the Second Circuit in the Zyprexa litigation had affirmed sanctions against one of the lawyers who cooperated with Dr. Egilman in what that court described as a “brazen” disregard of a protective order. Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 188 (2d Cir. 2010). That was the swan song for Dr. Egilman’s involvement that litigation.
We also pointed out that Dr. Egilman had previously been involved in a protective order controversy in Colorado: Ballinger v. Brush Wellman, Inc., 2001 WL 36034524 (Colo. Dist. June 22, 2001), affirmed in part and reversed in part, 2002 WL 2027530 (Colo. App. Sept. 5, 2002) (unpublished). Beyond that, we remember Dr. Egilman from some of our New Jersey Vioxx cases years ago.
We hadn’t heard much about Dr. Egilman recently, though, until last week, when a couple of our readers at Blackwell Burke, Corey Gordon and Brendan Kenny, let us know that Dr. Egilman was involved in still more goings-on stemming from his role as an expert in what we call the “buttered popcorn” litigation.
Buttered popcorn?
Yeah, that’s right. As weird as it might sound, there are a bunch plaintiffs claiming that they were injured by popcorn. Our old pal Sean Wajert, who writes the Mass Tort Defense Blog, had a significant role in that, so we already knew a little about the popcorn proceedings. Basically, the plaintiffs allege that diacetyl, a flavoring agent used with popcorn, supposedly causes (in extremely large doses − most plaintiffs claim occupational exposures) certain lung problems. Our two readers (who have been in the thick of litigating these cases for years) informed us that Dr. Egilman has been a repeat player in that litigation − particularly in its most questionable aspects, the non-occupational exposure cases.
So we took a shot. If we run “Egilman” (fortunately he’s not named “Smith”) in Westlaw since 2010, what do we get?
Well, the first case on the list is Watson v. Dillon Cos., 2012 WL 2060844 (D. Colo. June 7, 2012). It mentions Dr. Egilman, but is really about a Daubert motion (denied) relating to another expert. Looking further we found another opinion in that case, Watson v. Dillon Cos., 797 F. Supp.2d 1138 (D. Colo. 2011), which was mostly about Dr. Egilman. Apparently Dr. Egilman is one of a small cadre of experts willing to testify that lesser, non-occupational exposures to diacetyl (household use) can cause the same injuries as occupational exposure. Of course, no epidemiology supports this theory (otherwise the plaintiffs wouldn’t need Dr. Egilman) so he relied on the usual bottom-of-the-barrel stuff that we’ve seen so often − animal studies (id. at 1153-54) and a supposed “differential diagnosis” (id. at 1156-57). However, despite the obvious respiratory differences between humans and rats, and Dr. Egilman’s ignoring the plaintiff’s occupational exposure to other lung irritants in his carpet cleaning business, the Watson court, in a very cursory analysis, held Dr. Egilman’s opinions admissible. Id. at 1156 (“[g]iven the evidence and authority discussed above, I conclude that Dr. Egilman’s opinions regarding both general and specific causation, with one exception, employ reliable methods and are based on sufficient, reliable data”).Continue Reading The Egilman Chronicles
Maybe this falls in the category of “people who live in glass houses…” but we think it is silly for lawyers to insult judges. At least when we rip an opinion, we endeavor to do so on sound doctrinal grounds. Further, when we have the temerity to jump on judicial reasoning, it is for a
If yesterday was the unofficial end of summer, for many of us today is the unofficial start of Fall – in other words, back-to-school day. Lunches and backpacks packed, pencils sharpened, flip flops traded for sneakers and slick new hair cuts. In the Philly/New Jersey area it is a soggy first day of school, but you can feel the excitement nonetheless. The kids are excited to see who is in their class and learn what their friends have been up to all summer. The parents – well, we all know why we’re excited. At least until the first major project is due that our child forgot to tell us about and now it’s Sunday night around eight pm and you’re driving around trying to find a store that is still open that sells glue sticks and poster board. But, let’s not get ahead of ourselves. Instead, we’ll sit back and wave to our kids as they head for the buses and schoolyards and we’ll bring you a nice piece of news from the District of Oregon. Well, it’s not all nice and that’s why we decided to post about it today — when we mourn the end of summer but celebrate a new school year.
The case is Teater v. Pfizer, Inc., 2012 U.S. Dist. LEXIS 122848 (D. Ore. Jun. 27, 2012) and it involves alleged off-label promotion of the drug Neurontin. Plaintiff was prescribed Neurontin for her post-traumatic stress disorder (“PTSD”) which was an off-label use. Plaintiff alleged that she suffered a whole host of side effects, including depression and attempted suicide. Id. at *3-4. Plaintiff’s complaint alleged causes of action for: (1) violations of RICO; (2) fraud; (3) violations of the Oregon Unlawful Trade Practices Act (“UTPA”); (4) unjust enrichment; and (5) products liability (breach of warranty, strict liability and negligence) – all based on allegations of off-label promotion. Id. at *7. The court dismissed all but her products liability claims and here is how the court did it.
RICO – no standing. To sustain a RICO claim, plaintiff has to demonstrate an injury to “a specific business or property interest” and “a concrete financial loss.” Id. at *8. Plaintiff Teater alleged that she suffered a business injury when side effects from her use of Neurontin rendered her unable to make payments on business equipment, which was then auctioned off. Id. at *9-10. Not so said the court. “Plaintiff has only pled injuries that derive from the alleged psychological side effects and/or emotional distress caused by her consumption of Neurontin.” Id. at *11-12. This is nothing more than standard monetary damages alleged to be the result of side effects of a prescription drug – “hallmark personal injury damages.” Id. at *11. Not a RICO injury.Continue Reading No Off-Label Promotion In The Air