The trial judge in the second Risperdal trial denied plaintiff’s post-trial motion for a new trial, upholding the jury’s determination that plaintiffs hadn’t proven that Risperdal caused plaintiffs’ gynecomastia (male breast growth). Cirba v. Janssen Pharmaceuticals, Inc., 2015 WL 4081909 (Pa. Ct. Comm. Pl. June 30, 2015). Given the court’s summary of plaintiff’s weight and history of Risperdal use, the jury’s verdict seems pretty darn reasonable:
There was clear evidence that [plaintiff] had gained significant weight after he stopped taking the drug in 2007. He is presently 6’1” and 272 pounds. Since Defendant is clearly overweight, had not consumed Risperdal since 2007, had never complained of gynecomastia until 2013, and there were no photos prior to puberty to support his causation claim, the jury came to the reasonable conclusion that Risperdal did not cause his present condition.
Id. at 2.
Nonetheless, plaintiff tried to get the verdict overturned in several ways.
He argued that the court should have disallowed causation testimony by his nurse practitioner, who had prescribed him Risperdal and treated him for almost eight years, including a six-year period leading up to his first complaint of gynecomastia during which he took no Risperdal. She testified that weight gain, not Risperdal, caused the growth in his chest.
Now, a dispute over causation testimony from a treating doctor is not unusual. But ordinarily the roles are reversed. The defendant is more often seeking to exclude such testimony, often because the testimony was elicited by a plaintiff who had unilateral access to the doctor before the deposition. As defense attorneys, that means we know the basic playbook for fending off this type of testimony. And it involves more than just arguing to the court that the healthcare provider is not an expert. It requires questioning that attempts to establish, among other things, the following: the healthcare provider didn’t reach the opinion as part of plaintiff’s treatment; the opinion wasn’t necessary to plaintiff’s treatment; the healthcare provider’s records don’t reflect the opinion; the doctor did not have sufficient medical information about plaintiff to make the determination; the doctor did not sufficiently understand the medical and scientific literature to give a causation opinion; the doctor did not employ a scientifically rigid or accepted causation analysis; and the doctor didn’t reach the opinion until contacted by plaintiff’s lawyers. There’s more, but you get the idea. The court’s opinion, however, doesn’t indicate that plaintiff elicited this type of testimony, instead arguing that the nurse was not an expert and not qualified to give the opinion. Without the testimonial predicate, however, that argument is less powerful and less likely to win. The court rejected the argument, holding that the nurse reached her causation opinion as part of her treatment of the plaintiff and in connection with her prescribing decision. Id. at *3.
Plaintiff also lost his argument that the court should have excluded evidence of Risperdal’s benefits because his claim was about disclosure of risks, not Risperdal’s benefits. The court saw it differently. Information on Risperdal’s benefits was necessary to allow the jury to fully consider the risk-benefit analysis that a prescribing doctor would conduct. Id. at *4.
Plaintiff also argued that defense counsel should not have been allowed to use PowerPoint slides during opening and closing. This tells us one thing: the defense’s PowerPoint slides were effective. We haven’t seen a mass tort trial—and we’ve seen a lot of them—in which slides were not used in opening and closing. Visual aids are appropriate for assisting jurors to better understand the facts and even arguments. Plaintiff complained that some of the slides were misleading. Well, if true, plaintiff can object to that—the content of the slides—not the general practice of using slides. Plaintiff lost this argument.
Finally, with Wimbledon having just finished, we address plaintiff’s argument about tennis balls. Defense counsel used actual tennis balls during closing as visual aids and referred to tennis balls in his questioning of witnesses. The point, apparently, was that if plaintiff had growth in his chest equal to the size of tennis balls some doctor or nurse would have noticed that before 2013 and noted it in the plaintiff’s medical records. Plaintiff argued, it seems, that this was a mischaracterization of his gynecomastia. Here, however, is where the plaintiff lost us. Plaintiff’s own expert introduced the “tennis balls” comparison when describing the growth in plaintiff’s chest: “It’s about a tennis ball size is how I’d liken it.” Id. at *5. That’s about all we needed to know. Once you serve tennis balls, they’re in play. The court rejected this argument too.
We’ll see whether there’s an appeal.