We like CAFA – that is the Class Action Fairness Act – because a federal forum is generally much preferred (and becoming moreso after Dukes and Comcast) for class actions involving prescription medical products, not to mention just about anything else. Thus we cautioned some time ago that the industry could “lose by winning”
…And it’s from Pennsylvania. Judge Stanton Wettick, from Allegheny County (who is certainly in the running for most respected CP judge in the state) has issued an opinion, Krelic v. Mutual Pharmaceuticals Co., No. GD-08-024513, slip op. (Pa. C.P. Allegheny Co. April 11, 2013), which addresses and rejects – for the first time that
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
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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.Continue Reading Breaking News – Opinion Reversing $6.5 Million Actos Verdict
Long time blog subscribers surely remember our co-founder, Mark Herrmann, who wrote for the blog for over three years, until late 2009. Then, for his own good and sufficient reasons, he gave up the practice of product liability litigation and went in house at Aon, the insurance giant. For a while, Mark stayed
Once again, we’ve been asked to shill for a DRI Drug and Medical Device meeting. Since we’re defense side shills by nature, we are only too happy to oblige. Here goes:
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It is that time of year again. Trees blooming, people sneezing, and the Drug and Device defense bar is getting ready for the
We’re constantly reminded of what self-centered creatures we are. Both at work and on the home front, it is hard to dwell too long on something without wondering what’s in it for us. Just a little while ago we sent out one of those “Can anybody recommend a litigator in X?” emails and were greeted