We use the phrase so much, particularly on this blog, that you hardly notice. Try our blog’s search box, and you’ll see that just about every author on the blog, current or past, has used the phrase. It’s useful, we guess, in introducing the reader to what’s coming: that is, some good, some bad. And, for whatever reason, lawyers seem to like to use it more than most. We encounter one every so often in real life. A filled stocking on Christmas morning is like one. A variety of nuts or candies often comes in one. Maybe donuts, but those are almost always in boxes.
But we see it way more in writing. And here it comes again: the Daubert and summary judgment decisions in the Zometa opinion in Sheffer v. Novartis Pharma. Corp., 2013 U.S. Dist. LEXIS 133760 (S.D. Oh. Sept. 18, 2013), are . . . . ready, here it comes . . . a mixed bag. And it truly is. Well, not truly. It isn’t a bag. It’s a legal decision. But it’s mixed. Well, that’s probably not right either. It’s not mixed. We’re not sure how you’d do that. But it’s got . . . well, good stuff and bad stuff.
The Daubert portion has both. As for the bad, the court acknowledged that a causation expert can use a differential diagnosis to reach a specific causation opinion. Id. at *12-16. We’ve discussed many times the shortcomings of differential diagnosis opinions, but regardless of their shortcomings acceptance of these opinions has become more and more common. The court even called it “differential etiology,” which is more accurate. But we still haven’t seen, in this opinion or elsewhere, much discussion of differential etiology being an established and regularly practiced scientific process used by doctors outside the court room to establish causation.
Nonetheless, the court allowed plaintiff’s expert to use it as the basis for his opinion that Zometa caused plaintiff’s osteonecrosis of the jaw (ONJ). Worse, though, the court allowed the expert to give this opinion despite his deposition testimony that he couldn’t rule out other potential causes, such as plaintiff’s use of another drug, Avastin, metastasis from her breast cancer, or her having had a bone infection before being diagnosed with ONJ. Id. at *14. The court pointed, instead, to the expert’s report, presumably served before his testimony, in which he wrote without explanation that he had ruled out these causes. Id. at *15.
The court also noted that the expert didn’t need to exclude all other potential causes, though you’d think that these three were important enough to merit an expert’s explanation. Id. You can be sure that this type of opinion won’t do anything to lessen the uptick in differential diagnoses opinions that we’ve seen in recent years. As for the good, the court excluded specific causation opinions from plaintiff’s treating physicians. Id. at *9-12. Plaintiff’s treaters admitted that they weren’t causation experts and, when addressing whether Zometa caused plaintiff’s ONJ, they used words such as “possibly,” “may” and “some idea.” Id. That’s not good enough, and the court excluded any causation opinions from them.
Back to the bad stuff. The court denied defendant’s summary judgment motion on plaintiff’s failure to warn claim. This one’s a bit curious. Plaintiff’s doctors and treaters testified that they knew that Zometa carried a risk of ONJ. Id. at *28. We’d think that that testimony would cut off proximate causation. Regardless of the warning, the doctors knew the risk. But plaintiff argued that the doctors t, while the doctors knew the risk, they might not have known the magnitude of the risk. Id. 28-29. Now, we didn’t see in the opinion reference to testimony from the doctors themselves saying this. But the court accepted this argument, holding that the prescriber might not have known the full extent of the risk in 2005 when he prescribed Zometa to plaintiff. And if the defendant had informed him of the real risk the prescriber might have told the plaintiff about it, and then the plaintiff might have decided not to take Zometa. Id. at *34.
That seems like a lot of mights and a lot of speculation, particularly given that the plaintiff deposed this doctor and had a chance to elicit actual testimony on this issue. In fact, it seems that the prescriber said something very different at that deposition. According to the opinion, he testified that he would still recommend Zometa to the plaintiff even today, just as he did in 2005. Id. at *31. It seems to us that the plaintiff simply hadn’t produced enough fact to get passed summary judgment.
There’s more to the court’s opinion. It addressed a statute of limitations defense, plaintiff’s design defect claim, and plaintiff’s warranty claim. They aren’t particularly unusual, though, so we won’t go into them. If you’re interested, please read the opinion. We can tell you this much: they’re a mixed bag.