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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 Sept. 5, 2002) (unpublished).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”).
But that’s not so elementary, my dear Watson, at least not anymore.  Our correspondents were most pleased to inform us that the court in Watson (actually a different judge to whom the case was reassigned) recently agreed to reconsider that order admitting Dr. Egilman − indicating that under more recent precedent the prior terse analysis that permitted Dr. Egilman’s opinions wasn’t rigorous enough.

After reviewing the Tenth Circuit’s recent pronouncement on Daubert challenges and the admissibility of expert testimony at trial, I reexamined pertinent documents in this matter. . . . I find that the Hoffman opinion may impact previous expert witness rulings including, but not limited to, Dr. David Egilman’s opinions.

Order at 1-2.  Thus, the court’s going to take another look in Watson, and hopefully this time get it right.

Another development that sparked reconsideration in Watson was the exclusion decision in Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 1006 (E.D. Wash. 2010), where the court did get it right and tossed almost identical Egilman opinions in another non-occupational exposure popcorn case.  The Newkirk opinion contains a detailed indictment of both Egilman’s methods and conclusions (exactly what wasn’t done in Watson).  Here are Dr. Egilman’s greatest misses, as stated in the Newkirk opinion:
  • The Court notes that Dr. Egilman does not cite to any support for many of his statements.  [describing several statements]  Each of these preceding statements are important foundational assumptions on which Dr. Egilman relies for the remainder of his analysis.  However, without citation to any source, the Court must conclude that those foundational statements are not based on sufficient facts or data.  Id. at 1016-17.
  • Dr. Egilman’s testimony and reports contain many other examples of conclusions and opinions that he fails to document. . . .  In addition to not being supported by sufficient facts or data, Dr. Egilman’s unsupported statements would not assist the fact finder in deciding the material questions in this case and may be misleading or confusing.  Id. at 1018.
  • Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own.  Id.
  • Dr. Egilman’s underlying methodology for his conclusions regarding [another expert’s] work is not reliable because he provides no basis to extrapolate from [the other expert’s] letter regarding a single patient. . . .  Therefore, Dr. Egilman had no identifiable data on which to base his conclusions, and the Court has no means to analyze whether the underlying data is reliable.  Id. at 1019.
  • Dr. Egilman relies on the findings of [other experts] despite their own reflections that the methodology underlying their work . . . could not support extrapolating to general causation for a broader group of consumers.  Id. at 1020.
  • Dr. Egilman’s opinions fall below the threshold standard of scientific validity in other ways. . . .  Coming to a conclusion first and then doing research to support it is the antithesis of this method. . . .  Dr. Egilman’s conclusions . . . preceded his actual estimation of the levels of diacetyl to which [plaintiff]was exposed.  Id. at 1021.
  • Dr. Egilman also fails to apply reliable scientific methods when he extrapolates from extremely small samplings to make sweeping conclusions.  Id. at 1022.
  • Dr. Egilman cites no other authority for the analytical step he takes from observing that there is no accepted “safe” level of diacetyl exposure.  Id. at 1024.
  • Dr. Egilman offers no analytical bridge between the animal studies finding harm from diacetyl exposure to rats and his conclusion that those studies demonstrate that diacetyl exposure causes decreased lung function and [other injuries] in humans.  He offers no explanation for how and why the results of those studies can be extrapolated to humans.  Id. at 1025-26.
  • Dr. Egilman’s characterization of the study as an exposure study when, by its own terms, it is not, indicates that Dr. Egilman did not reliably apply the methodology of that study to the facts of this case.  Id. at 1026.
  • Dr. Egilman also includes legal conclusions throughout his expert report and affidavits.  Yet Dr. Egilman has not presented any credentials to support his qualifications as a legal expert. . . .  Dr. Egilman fills his expert report with “opinions” that are actually legal conclusions.  Id.
  • [O]ne illustration of lack of reliable methodology is when the expert has arrived at contradictory conclusions using the same methodology.  In his [date] affidavits, Dr. Egilman discounts some of the very studies he relied upon in his [date] report.  Id. at 1027.
  • Dr. Egilman provides no basis for his confidence in making a conclusion that the authors explicitly stated was premature without additional data.  Id.
  • The bulk of Dr. Egilman’s conclusions do not rise above “subjective belief or unsupported speculation.”  Id. at 1029.

There’s actually more, but it’s too case specific for us to bother with.
The plaintiff appealed Newkirk, and last year the Ninth Circuit affirmed in all respects.  The Court of Appeals needed only two paragraphs to dispose of Dr. Egilman:

Dr. Egilman did not sufficiently justify his foundational assumption or refute the contrary record evidence.  Moreover, as the district court observed, there were problems with Dr. Egilman’s . . . estimates of [plaintiff’s] exposure levels.  In light of these concerns, we hold that the district court did not abuse its discretion in concluding that the “analytical gap between the existing data and the opinion Dr. Egilman proffers” was too large.

Because Dr. Egilman could not establish that diacetyl in microwave popcorn vapors was generally capable of causing [the lung disease in question], he could not rely on a differential diagnosis to establish that exposure to microwave popcorn had caused [plaintiff’s] medical problems.  We therefore affirm the exclusion of all of Dr. Egilman’s testimony.

Newkirk v. ConAgra Foods Inc., 438 Fed.Appx. 607, 609 (9th Cir. 2011).
That should have been the end of the matter in Newkirk, but oddly it wasn’t.  In addition to the plaintiff appealing in Newkirk, Dr. Egilman himself appealed, purportedly in his own right (we owe thanks to our correspondents for pointing this out; we would never have looked for something like that otherwise).  Dr. Egilman claimed, according to the court, “that the district court abused its discretion by using defamatory language in its order.”  Egilman v. ConAgra Foods, Inc., No. 10-35667, slip op. at 2 (9th Cir. Sept. 5, 2012).  That argument was, of course, meritless since, as we’ve blogged about before, the contents of a judicial opinion can’t be defamatory as a matter of law.  See Wolk v. Teledyne Industries, Inc., 475 F. Supp.2d 491, 510 (E.D. Pa. 2007) (applying Pennsylvania law).  But the Ninth Circuit did not have to reach the merits to dispose of Dr. Egilman’s appeal in the Newkirk litigation.  Instead, the court held that Dr. Egilman, as a mere retained expert, lacked standing to appeal the exclusion order:

Appellant’s participation in the district court consisted of filing reports in his capacity as an expert.  His participation was not akin to party participation.  He did not file papers objecting to the order excluding his testimony.  He did not argue the legal merits of the motion to exclude his testimony. . . .  We conclude that Egilman does not have standing to appeal the district court’s order, that we lack jurisdiction, and that this appeal should be dismissed.

Egilman, slip op. at 1-2.  We confess, we’ve never had it happen to us, but if an expert ever decides to appeal his own exclusion, separately from the party retaining him/her, we now have some precedent that it can’t be done.
To be fair, we need to point out that the same Egilman opinions that were sliced, diced, and pureed in Newkirk were actually admitted in evidence in a Missouri case.  See Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 193-94 (Mo. App. 2012) (describing Egilman testimony in another non-occupational popcorn exposure case).  However, the jury in Khoury was no more gullible than the trial and appellate judges in Newkirk.  The Show Me State jurors weren’t shown enough because they brought back a defense verdict, id. at 195, so the admission of Dr. Egilman’s testimony wasn’t at issue on the Khoury appeal.
So perhaps the reason we haven’t heard much from Dr. Egilman in the drug/device area (not a single Westlaw mention − cases or expert databases, we checked both − in this field in the last two years) is that he’s been busy with the popcorn cases.  Extrapolating from the track record we’ve just discussed, however, perhaps that’s likely to change.  Since it’s always possible Dr. Egilman may resurface in drug/device litigation, we thought we’d pass along what (with our readers’ help) we’ve been able to find out about what he’s been up to.