We don’t know much, but there are a few things we know for sure. One is that when a topic is complex and not within the knowledge of an ordinary lay person, you generally need an expert. A second is that determining the medical cause of a disease is almost always complex and not within ordinary knowledge. A third is that any attorney who has ever filed a personal injury case knows for pretty darned sure that he or she is going to need experts, especially in cases involving drugs and medical devices.
It therefore astounds us when plaintiffs attempt to proceed in drug and device cases without experts, because it just does not work. Take, for example, the order granting summary judgment in Vicknair v. Pfizer, Inc., No. 20-2705, 2021 U.S. Dist. LEXIS 115962 (E.D. La. June 22, 2021). The plaintiff was treated with an intravenous antibiotic manufactured by the defendants and allegedly experienced chills, tremors, fever, shortness of breath, and disorientation. According to the complaint, the defendants voluntarily recalled particular lots of the antibiotic four months later, allegedly in response to reports of similar reactions. Id. at *2.
We obviously have no idea whether the plaintiff’s subsequent lawsuit against the drug manufacturers had any arguable merit. We do know, however, that when the plaintiff is 71 years old, had been treated for a preexisting infection, suffered from multiple medical problems, had recently undergone two invasive procedures, and was taking several other prescription medications [id. at *8-*9], he was going to need an expert on medical causation. Maybe multiple experts.
Which makes the plaintiff’s conduct very curious. “When the issue of medical causation is complex and not within the knowledge of an ordinary lay person, both the Fifth Circuit and the Louisiana Supreme Court hold that plaintiff must submit expert testimony to prove causation.” Id. at *5. This standard is common, yet the plaintiff in Vicknair did not disclose a medical causation expert. Nor did the plaintiff contend that he even needed to disclose a retained expert, because he purportedly intended to rely instead on testimony from his treating physician. Id. at *6.
The problem with that plan was that the plaintiff did not serve an expert disclosure identifying the treating physician either. The plaintiff opposed summary judgment with a letter from his treating physician that stated “the content of the testimony he hopes to introduce,” but that was nearly two months after the expert disclosure deadline. Id. at *6-*7. The plaintiff did not even request leave to make a late disclosure, which at least might have given him a chance. The court excluded the letter as untimely. Id. at *7.
The plaintiff took the path of least resistance, but also the path least likely to succeed: He argued that medical causation in his case was not complex and could be proved without expert testimony. More specifically, he argued that “causation can be established based on his medical records and the fact of defendants’ voluntary recall.” Id. at *8. The district court rejected that proposition out of hand: “The question whether an intravenous antibiotic was the cause of the plaintiff’s symptoms is plainly ‘complex and not within the knowledge of an ordinary lay person.’” Id. at *8. The plaintiff needed an expert, and while he argued that he had produced medical records well in advance of the expert deadline, “disclosures consisting of medical records alone are insufficient to satisfy the [expert] disclosure standard of Rule 26(a)(2)(C).” Id. at *9.
This plaintiff banked on a voluntary recall to carry the day, and he correctly was left holding the bag. As we have written multiple times, including here, a product recall does not equal a product defect. A recall does not even come close to proving medical causation on any level, yet this plaintiff challenged the court to allow that inference. The court refused and invoked a rule on medical causation and expert opinion that applies most everywhere. Again, we don’t know much, but we know enough to say that this was the correct outcome.