The recent magistrate’s decision in Fecho v. Eli Lilly & Co., 2012 WL 6681895 (Mag. D. Mass. Dec. 21, 2012) (“Fecho II”), isn’t good, but it could have been far worse. While the decision stretches prescription drug warning causation to the breaking point, at least it didn’t do what the plaintiffs sought, which was the wholesale importation of asbestos-style tactics of proving causation into drug litigation. Still, to escape summary judgment required unprecedented application of both the Federal Rules of Evidence and Pennsylvania law (although not the law ordinarily applied in product liability cases).
Here’s what went on. Fecho is a testament to old litigation not dying, but spreading to different injury allegations. Fecho involves DES. That’s right old-fashioned diethylstilbestrol – prohibited from use in pregnant women by the FDA since 1971. As everyone in our line of work knows, DES is linked to a rare type of cancer in young women exposed in utero – a cancer that developed around the time of puberty.
That development, of course, brought about a wave of litigation over events that happened – due to the delay in cancer development – between one and three decades earlier. Because DES was never patented, many DES plaintiffs could not determine who made the drug they were exposed to. That proof problem led pro-plaintiff courts in the 1980s to invent “market share liability,” which all in all was probably the radical and ill-conceived expansion of tort liability of our legal lifetimes. Fortunately, most states didn’t adopt it.
But time passes, and with the youngest of the so-called “DES daughters” now over 40, one would expect the statute of limitations finally to put this litigation to bed – NOT!
Rather than finding something else to sue over, plaintiffs (some of them, anyway) are now claiming that the same in utero exposure to DES causes breast cancer. Unlike the DES litigation of the 1980s and 1990s, the medical causation science for this new theory isn’t very good, being limited to a couple of studies that plaintiffs’ experts have to massage thoroughly in order to discover any statistically significant increase in any “cohort.” See Fecho v. Eli
Lilly & Co., 2012 WL 194419, at *2 (Mag. D. Mass. Jan. 20, 2012) (expert found statistical significance in one “subset” of first study that “could be characterized as too thin” only after “control[ing] for” unspecified “confounding factors”); id. (second study had an even “smaller hazard ratio,” so the expert “discounted an excess risk calculation in preference for a proportionate hazards model”) (“Fecho I”). Not only that, but there’s no distinction between purported DES breast cancer and any other breast cancer. Id. (“temporal relationship between the exposure and the development of the disease . . . tracks the natural age at which breast cancer typically appears”). In short, DES breast cancer litigation not only has all the causation problems of earlier DES litigation, but junk medical causation science has replaced the prior “signature disease.”Continue Reading Asbestos Causation Tactics And Pharmaceutical Litigation
