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Last week, the Drug and Device Law Lifelong BFF asked us if we were interested in a quick trip to New York to use tickets for an early morning taping of “Live with Kelly.” Sure, we said – sounds like fun.  And so, after nearly two hours in line and significant drama over whether we were in front of or behind the “make it into the studio” line we were told would be drawn, we  were seated.   And we had a great time.  Kelly is as adorable and effervescent as she appears on television.  Her guest co-host interjected continuous comments from the “intelligent and engaged host” playbook.  And the guests were bona fide celebrities whom it was fun to observe at a distance of a scant ten feet.   But what was most impressive about the whole exercise was the opportunity to see what goes into the daily illusion that the hosts and the guests are responsible for the “workings” of an interview show.  Because, in fact, the stage was swarming with people who kept the machine operating, and the familiar faces were a tiny nucleus at the center of it all.  There were stylists and producers and directors and cameramen everywhere – so much so that they often blocked our view and we resorted to watching on monitors or on the screens mounted on the huge cameras.  And we realized that there would be no final product without every piece of this puzzle.

In today’s case, the absence of a requisite puzzle piece – a qualified specific causation expert – doomed the plaintiff’s case. In In re Zoloft Litigation, 2016 WL 5958372 (W. Va. Cir. Ct. Oct. 5, 2016), the court considered the defendants’ motion to exclude the plaintiff’s (general and specific) causation expert, who was a research scientist and not a medical doctor..  The expert had designated the expert to render the opinions that the defendants’ product could cause “deleterious effects both in developmental autonomy, neuroautonomy, and neurological function including the development of autism and other neurodevelopmental disorders,” 2016 WL 5958372 at *1 (emphasis in original), and that the plaintiff’s mother’s ingestion of the product while she was pregnant caused a seizure disorder and “cognitive and neurobehavioral disorder” in the plaintiff. Id.

The expert was deposed, on successive days, in four pending cases including this one. After the first day of his deposition, when he testified on behalf of two other plaintiffs, he met with plaintiffs’ counsel for several hours and drafted an updated disclosure in this case, omitting all references to autism and deleting the opinion that the defendants’ product caused the plaintiff’s seizures.   Instead, the new disclosure stated that the expert would testify that the plaintiff’s mother’s use of the product during pregnancy was a cause of the plaintiff’s developmental delays. Id. at *2.   Asked to explain why he revised his disclosure, the expert testified that, after “going back over the [plaintiff’s] records in preparation for” his deposition, he “felt it was prudent to focus on the developmental delay” and to delete the opinions that the defendants’ product caused autism and epilepsy. Id. Why?  Because the plaintiff had not been clinically diagnosed with autism, and because there was not a “good differential diagnosis” concluding that the plaintiff’s seizures “occurred at the right time to be related to his mother’s use” of the defendants’ product.” Id.

In his deposition, the expert admitted that, because he was not a medical doctor, he was not qualified to diagnose medical conditions. He had not performed any tests to support his causation opinions   He was unable to identify a diagnosis of “developmental delay” in DSM IV and conceded that there is no such diagnosis.   And, in an earlier case, he agreed that he has no methodology for determining the cause of a particular child’s birth defect.   We know – slam dunk.  We itch to write briefs in cases like these.

And it got better.   The expert testified that he relied, for his specific causation opinion, on two neuropsychiatric evaluations conducted on the plaintiff by a neurologist.  But the records of those evaluations identified no fewer than ten possible causes of the plaintiff’s developmental delays.  In his deposition, the expert agreed that nine of these were potential causes. Id. at *4.

The defendants moved to exclude the expert and for summary judgment. While the court conceded that, under West Virginia law, an expert need not be a medical doctor to offer medical causation opinions, it emphasized that there needed to be a “match” between the expert’s experience and his opinions, and that an expert’s opinion is properly excluded when it is not based on his professional training and experience.   Id. at *5-6 (citations omitted).  Because the plaintiff’s expert admitted that he lacked the experience to perform the differential diagnosis he claimed to have performed, his specific causation opinion was properly excluded.

There was also the matter of the “sham affidavit doctrine.” In response to the defendants’ summary judgment motion, the expert submitted an affidavit stating that he had “ruled out all alternatives” other than defendants’ drug as a cause of the plaintiff’s developmental delays, which contradicted his sworn deposition testimony.  Under the sham affidavit doctrine, an affidavit that directly contradicts a witness’s prior deposition testimony is “generally insufficient to create an issue of fact” to defeat summary judgment unless the contradiction is adequately explained. Id. at *8 (citations omitted).  Under West Virginia law, to determine whether there is an “adequate explanation” for the inconsistency, the court should examine “1) whether the deposition afforded the opportunity of direct and cross-examination of the witness; 2) whether the witness had access to pertinent evidence of information prior to or at the time of his or her deposition; and 3) whether the earlier deposition testimony reflects confusion, lack of recollection or other legitimate lack of clarity that the affidavit justifiably tries to explain.”   Id. at *8 (citations omitted).

In this case, the expert’s affidavit, stating that he excluded all causes other than the defendant’s drug for the plaintiff’s developmental delays, was inconsistent with his earlier testimony that he was not qualified to perform a differential diagnosis and with answers he gave about specific alternative causes, id., and none of the three possible “explanations” was adequate to justify the inconsistency.   As such, the court excluded the expert’s specific causation testimony.  Because the plaintiff had no other specific causation expert, the court granted summary judgment to the defendants.

While we applaud the integrity of any expert who admits that he is not qualified to render his opinions and that he arrived at them with no methodology, an expert prepared to make these admissions obviously should not have offered those opinions in the first place. And if the plaintiff’s deficient expert testimony cost him his case, this is no more than what courts are supposed to do (and too often do not).   In this case, with a key piece of the puzzle missing, the show, quite properly, did not go on.   We would love to see more of the same.