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This post comes from the non-Reed Smith side of the blog.

Lawyer One: Hey, you know what I might do in one of my cases. I might use an expert with no expertise.

Lawyer Two: What?

Lawyer One: Yeah. I’d even have him admit that he has no expertise.

Lawyer Two: Why the heck would you do that?

Lawyer One: Do you dare me?

Lawyer Two: Dude, what kind of dare is that? He’d be unusable. The court would exclude him.

Lawyer One: Do you dare me?

Lawyer Two: How do you intend to get his testimony admitted?

Lawyer One: I’d just tell the court that he’s an expert. It’ll work.

Lawyer Two: Huh? What? You can’t just tell the court he’s an expert.

Lawyer One: Watch me. DO YOU DARE ME?

Lawyer Two: Oh yeah. I dare you.

Lawyer One: Sweet. . . . . . .

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Last month, a Utah federal court excluded proposed expert testimony from a laboratory scientist about the labeling of the drug, Tysabri (treats MS), and the commercialization of an assay (blood test) used in connection with Tysabri treatment. Christison v. Biogen Idec Inc., 2016 U.S. Dist. LEXIS 110277 (D. Ut. Aug. 5, 2016). What turned a routine exclusion of expert testimony by a federal court into a ruling that was anything but routine was the reasoning. The expert said that he wasn’t an expert. He just said it. And he said it in seemingly every way imaginable. Here’s his testimony on labeling:

Dr. Major testified that “I’m not qualified to answer what goes on labeling of a prescription drug.” He also testified that “It’s not my role as the professional scientist to be able to–to talk about labeling[;]” “I’m not familiar with the requirements for labeling for prescription drugs[;]” “I can’t comment on the label, you know, the labeling, you know[;]” and “I’m not going to comment on the labeling.”

Id. at *6-7. Uh, yeah. That kind of testimony will get you this type of ruling, every time: “These statements show that Dr. Major is not qualified to testify regarding the labeling of a prescription drug. It could not be clearer.” Id. at *7.

Here’s his testimony on the commercialization of the assay used in connection with Tysabri treatment:

Dr. Major stated that he did not have sufficient knowledge or background in commercialization of assays. He testified that he:

  • did not know what would be required to commercialize an assay;
  • did not know what Biogen did to commercialize the assay;
  • would be “speculating” if he were asked to expound about what Biogen needed to do to actually commercialize the assay;
  • never commercialized an assay;
  • never sought FDA clearance or approval of an assay;
  • does not know what FDA requires to approve an assay for use with a prescription drug, that he has no experience with FDA’s regulations regarding assays;
  • does not know what clinical trials FDA requires to approve an assay; and
  • would have to consult online sources to know what FDA requires for clearance of an assay.

Id. at *12-13. Um hmm. “[T]o testify as an expert about a subject, an expert must be qualified in the subject.” Id. at *12. No kidding. And so, once again, that testimony gets you this ruling: “Dr. Major is not qualified to testify about the ‘commercialization’ of an assay” by the defendants. Id. at *14.

Now, the Court did hold that Dr. Major could testify about other subjects that fell within his real expertise—in the laboratory. Id. at *15-18. But it’s hard to imagine why Dr. Major was ever proposed as an expert on labeling and commercialization . . . . .

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Lawyer Two: I told you.

Lawyer One: No way. I almost had it. The court was this close . . . .