We write today about a partial exclusion of a plaintiff expert in the upcoming Taxotere bellwether trial. We have blogged about other aspects of the Taxotere litigation previously. (Here and here, for example.) The case is In re Taxotere (Docetaxel) Prods. Liability Litig., 2019 U.S. Dist. LEXIS 130339 (E.D. La. Aug. 5, 2019). Taxotere is used to treat chemotherapy. The plaintiff alleged that it caused her to suffer permanent hair loss. Her legal claims included, inter alia, failure to warn and misrepresentation. The defendants moved to limit or preclude a plaintiff expert’s opinions on a variety of issues, but the opinion we will focus on here is on how the medical community would have reacted to a different warning on the label. There was no dispute over whether the expert was qualified to render that opinion. Rather, the issue was whether that opinion would be helpful to the jury, given that the actual treating physician was available to testify about what he would have done if the label had been different.

It is interesting how the parties framed the issue. The plaintiff argued that the jury should be able to hear both the “objective” evidence from the expert, as well as the “subjective” evidence from the treating physician. Put that way, the position almost sounds reasonable. More evidence is always better than less, right? Um, no. Sometimes that more is more confusing and more prejudicial. The defendants argued that the jury must “hear it from the horse’s mouth” — that the learned intermediary doctrine “turns on the testimony of a plaintiff’s prescribing physician, not the testimony of a retained expert speculating about the decision-making process.” It is the effect on the actual treater that counts.

The horse’s mouth won over the objective/subjective framework. The Taxotere court ruled that the expert was not allowed to furnish testimony as to what the plaintiff’s treater would have done here. The expert could allude to “the standard of care for informing patients through the decision-making process; she cannot, however, testify about the application of these principles” to this particular case. Only the treater – who was available – could testify as to what he actually would have done.

This result is not surprising, inasmuch as it is the majority rule and is eminently reasonable. That the issue was even raised highlights the schizophrenia inherent in many product liability cases regarding treating physicians. Enterprising plaintiff lawyers would rather hang liability on deep-pocketed, unlovable corporations. Those plaintiff lawyers have less appetite for targeting doctors, who come garbed in white coats, oodles of respect, and state laws that cap med-mal damages. Even if the initial complaint names the treating physician as a defendant in order to prevent federal diversity jurisdiction, watch how the plaintiff soft-pedals discovery against the doctor, and then dismisses the claims against the doctor shortly before trial. Sometimes, to our cynical eyes, there is a whiff of a rotten quid pro quo behind such machinations.

Whether or not the treating physician was initially named in the complaint, the performance of the treating physician plays an important role in product liability actions. The plaintiff wants to make sure the jury assigns blame to the company, not the doctor. Thus, the plaintiff needs to say that the doctor did not err in selecting the product. That story is a bit jarring: the product stinks, but the doctor was wise to use it. Further, the plaintiff might accuse the company of failing to train physicians. But if the doctor did nothing wrong, of what significance is any alleged failure to train? Finally, and most pertinently for cases like this Taxotere case, the plaintiff needs to overcome the learned intermediary doctrine. That is not so easy when prescribing doctors say, as doctors usually do, that they were already aware of the relevant risk and the proposed enhanced warning would have made no difference. Or maybe the doctor confesses an inability to speculate about the counterfactual scenario. At this point the plaintiff tries to bring in an expert who essentially mouths the following: ‘I don’t care what the treater here says. Any reasonable doctor would have run far away from this product upon reading a proper label.’ That is, the expert is necessarily opining that the treater is a liar or an idiot. Jurors should not buy this contradictory tale-spinning by plaintiffs and their experts. Luckily, due to smart courts like the one in this Taxotere case, they do not have to.