We saw this morning that the boxcar California verdict that was being ballyhooed the last couple of days was reversed by the trial judge granting a nonsuit (the California equivalent to judgment n.o.v.).  But we don’t usually discuss verdicts, good or bad.  Now we’ve received the opinion supporting that decision.  It’s Cooper v. Takeda Pharmaceuticals America, Inc., LASC No. JCCP4696, slip op. (Cal Super. L.A. Co. May 1, 2013).  Opinions, we discuss.

Basically, the plaintiff’s case fell apart because the causation opinions of the only plaintiff expert witness were so unsupported as to border on farcical.  The court deferred ruling on the defendant’s Kelly/Frye (should we now add Sargon to the name?) exclusion motion and let the case go to the jury – no doubt hoping that the jury would do the right thing.  Unfortunately, the jury fell for the snow job, so the court stepped in.

Cooper is the latest example of the routine abuse of “differential diagnosis/etiology” by plaintiff causation expert.  Here the disease was bladder cancer, which has a number of other known and idiopathic causes.  Unfortunately for plaintiff Sargon Enterprises, Inc. v. University of Southern California, 288 P.3d 1237 (Cal. 2012) (discussed here), recently reiterated that, yes, the rules governing admissibility of expert testimony actually have teeth.  Cooper, slip op. 5-6 (quoting extensively from Sargon).

This particular diagnosis failed because (no surprise) the expert didn’t have all of the relevant medical records and thus didn’t know all of the necessary information about the other causes (“[p]articularly smoking, environmental exposures, occupational exposure,” slip op. at 7) for bladder cancer as they related to this individual.  While the expert told the jury that he had “reviewed the medical history, id. at 10, he actually hadn’t:

Q.   And yet, Dr. Smith, sir, despite reading those records, you were totally unaware that they were records reporting that [plaintiff] had stopped smoking in the 1990’s. Isn’t that true, sir?

A.   There’s discrepancies within the chart which we talked about before. There are places in the chart that say never smoker. There are also places that say 1990’s.

Q.   Doctor, I’m going to ask you a specific question. Isn’t it true that as of the time we took your deposition, you were unaware of any record reporting that he had stopped in the 1990’s?

A.   My impression was that he had stopped in the 1970’s, correct

          *          *          *

Q ….[Y]ou can then agree that for purposes of forming your opinion, you did not weigh whether and to what extent if he smoked for 20 years or 40 years would factor into your opinion because you didn’t know then. Isn’t that true?

A.   I was under the impression,·once again, that he had quit in 1974. I was not aware of any documentation at that time of 1990 something.

Cooper, slip op. at 13-14 (quoting testimony of expert).  See id. at 14 (“[plaintiff’s] records, which have been duly admitted into evidence, all state that [he] ceased smoking at various dates in the 1990s”).  Where did the bogus information about quitting in the 1970s come from?  No surprise there, either.  It was a “statement of [plaintiff’s] attorney.”  Id. at 15.

Oops.  It’s not a reliable methodology to claim base an opinion on reading medical records, and then not to read them.  Nor, for that matter, did the expert meet (let alone examine) the plaintiff, contact any of the plaintiff’s treaters, or read any depositions before giving his opinion.  Id. at 11-12.

Nor did the expert have any idea what the plaintiff did for a living (answering “I don’t recall” in response to plaintiff’s occupation, id. at 11), which also made a big difference since occupational exposure to a variety of chemicals are also know causes of bladder cancer.  Thus his claim of ” no history of occupational exposures” could not ring true.  Id. at 12.

Nor did the expert review (or remember) other items in the medical records that indicated the severity of the plaintiff’s diabetes (Actos is an anti-diabetes drug).  Id. at 16.  Diabetes was also a risk factor with respect to bladder cancer.  Id.  Nor did the expert consider “demographic” characteristics (age, race) that were also risk factors for bladder cancer.  Id. at 17.

In short, the only expert upon whose testimony this multi-million dollar verdict rested, hardly considered anything.

Moreover, what he did use – certain epidemiologic studies – he used in precisely the way that the authors of those studies cautioned against using them.  Id. at 19 (study authors “cautioned against use of the data in the study for making risk assessments”).  He also ignored “post hoc rejection of data” although admitting this was “not good science.”  Id. at 22.  The court went on to demolish a variety of other studies for a variety of reasons.  Id. at 22-23.

The fundamental problem, as the court recognized, was that “ruling in, and ruling out, potential causes of Mr. Cooper’s bladder cancer is critical for purposes of establishing a foundation as to Dr. Smith’s specific causation opinion by way of a differential diagnosis.  Id. at 13.

An expert physician, evaluating a patient’s medical records, would thoroughly study them, noting anything of significance, and follow up on every detail necessary to come up with an accurate diagnosis. Since the date [plaintiff] stopped smoking and his level of tobacco consumption is a critical fact in the diagnosis, an expert would do all he or she could to resolve any ambiguities. Pursuant to Sargon, [the expert] was required to “employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

Cooper, slip op. at 15 (citation omitted).  Accord Id. at 16-17.

Thus, the court threw out the purported differential diagnosis in toto, was “inherently unreliable”:

In sum, the Court determines that the bases for [the expert’s] opinion that Actos caused [plaintiff’s] bladder cancer are inherently unreliable.  The studies and other information [he] relied on . . . do not support [a] conclusion that Actos was a specific cause of [plaintiff’s] bladder cancer.  Since [the expert’s] specific causation opinion is based on assumptions of fact without sufficient evidentiary support, as well as on speculative or conjectural factors, that opinion has no evidentiary value.

Cooper, slip op. at 24-25.  With the plaintiff lacking any admissible expert support on individual causation, the nonsuit followed as a matter of course.  Id. at 26.

This is a big deal opinion for the Actos litigation.  Not only does it wipe away a large verdict, but the court’s treatment of the epidemiology strongly suggests that these studies are not enough to support a causation finding in any case.  We presume that, this being the initial trial, the plaintiff side brought out everything it had supportive of causation.  If it’s not enough here to “rule in” Actos in a reliable fashion, then it shouldn’t be enough to rule it in in any of the thousands of remaining cases, either – whether or not the plaintiffs get (which the presumably can) a better or more prepared expert.  While it may be possible for a new expert to read medical records of another plaintiff more thoroughly and bolster a differential diagnosis in that fashion, that won’t matter if inability to “rule in” Actos is an independent and sufficient flaw in the diagnosis. From champ to chump in a few days – right now that’s the story of Cooper and maybe the rest of the plaintiffs in the Actos litigation.