In a 341-page opinion, In re Zantac (Ranitidine) Products Liability Litigation, 9:20-md-02924-RLR, slip op. (S.D. Fla. Dec. 6, 2022), the MDL court held that all of the Zantac plaintiffs’ general causation experts (concerning five cancer types) failed to meet the admissibility standards of Fed. R. Evid. 702. Consequently the court granted the defendants’ motions
Three years ago we published a lengthy post, “Stupid Expert Tricks,” detailing several of the other side’s egregious attempts at passing off junk science “experts” as the real thing, along with our side’s trials and tribulations during the course of unmasking these phonies. Our rogues’ gallery contained: In In re Zofran (Ondansetron) Products Liability Litigation, 392 F. Supp.3d 179, 181-87 (D. Mass. 2019) (Zambelli-Weiner); In re 3M Bair Hugger Litigation, 924 N.W.2d 16, 19 (Minn. App. 2019) (Augustine); In re Mirena IUD Levonorgestrel-Related Products Liability Litigation (No. II), 341 F. Supp.3d 213, 222-23, 229-32 (S.D.N.Y. 2018) (Etminan); Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316, 328-29 (D. Or. 2013) (Painter); McClellan v. I-Flow Corp., 710 F. Supp.2d 1092, 1119-25 (D. Or. 2010) (Matsen); Nelson v. Tennessee Gas Pipeline Co., 1998 WL 1297690, at *4, 7-8 (W.D. Tenn. Aug. 31, 1998), aff’d, 243 F.3d 244 (6th Cir. 2001) (Kilburn); and Wade-Greaux v. Whitehall Laboratories, Inc., 874 F. Supp. 1441, 1559-62 (D.V.I. 1994), aff’d mem., 46 F.3d 1120 (3d Cir. 1994) (Gilbert).
We’ve found another one – this time from talc litigation.
We write on the heels of a long weekend layered with dogs and fun. The National Dog Show, which you may have watched on TV yesterday, is held about ten minutes from our house, and a fabulous corded Standard Poodle named Joel, who just happens to be “family” (he is the sire of our gorgeous puppy, Luca) won Best of Opposite Sex two days running (and stayed overnight with us). And two out-of-town handlers we know unexpectedly needed a place to exercise their charges, so we twice got to stand in our back yard while no fewer than seven show dogs, from ten pounds to 150 pounds, swirled around us. We can’t imagine being much happier.
Layers of good mark today’s case, as well. Arevalo v. Mentor Worldwide LLC, et al., 2022 WL 16753646 (11th Cir. Nov. 8, 2022), is a decision on the appeal of a Northern District of Florida decision we liked very much. Arevalo is a pelvic mesh case. The plaintiff alleged that mesh devices implanted to treat her stress urinary incontinence and pelvic organ prolapse caused her to undergo mesh removal surgery and to suffer a familiar litany of injuries. The plaintiff’s general and specific causation expert was the ubiquitous Dr. Bruce Rosenzweig. Among numerous other motions, the defendant moved to exclude Dr. Rosenzweig’s specific causation opinion as unreliable because Dr. Rosenzweig did not perform an adequate differential diagnosis. The court granted the motion and excluded the specific causation opinions, holding that Dr. Rosenzweig “did not explain how he systematically and scientifically ruled out the other potential causes for the plaintiff’s symptoms. Arevalo, 2022 WL 1673646 at *4. The court then granted summary judgment for the defendant because the plaintiff could not reach the jury without expert specific causation testimony. The plaintiff appealed to the Eleventh Circuit, and today’s decision is the result.
This post is from the non-Reed Smith side of the blog.
Defendants in Pizzitola v. Ethicon, Inc., filed motions to exclude two of plaintiff’s experts and both decisions (two orders issued) heavily favored the defense, rejecting recurrent design defect arguments by plaintiffs.
The product at issue is synthetic pelvic mesh. Plaintiff’s first challenged expert was a gynecologic surgeon. While is area of practice may overlap with issues in the case, his report went well beyond both relevant issues and his area of expertise. Namely, plaintiff’s expert wanted to opine that lots of things were alternative designs that in fact were not. Starting with a different medical procedure altogether. “It is not an alternative design of any product. In fact, it is not a product at all.” Pizzitola I, 2022 U.S. Dist. LEXIS 184352, *6 (S.D. Tex. Oct. 7, 2022). Plaintiff argued the testimony was relevant to a risk/utility analysis but showing that a different medical procedure may be safer, “does not affect whether a product has utility and/or risks.” Id. at *7. The decision to perform a different medical procedure lies within the medical judgment of the treating surgeon and has no bearing on the design of the device at issue. Id.
Continue Reading Two Strikes Against Plaintiff’s Experts in Texas Pelvic Mesh Case
The defendants in Mixson v. C.R. Bard, Inc., ___ F. Supp.3d ___, (N.D. Fla. Sept. 16, 2022) (“Mixson I”), and Mixson v. C.R. Bard, Inc., 2022 WL 7581737 (N.D. Fla. Sept. 23, 2022) (“Mixson II”), by no means won everything, but what they won was more important than what they didn’t, so we’re OK with the results.
In today’s case, Chapman v. AstraZeneca, a Delaware state court granted summary judgment to the defendant pharmaceutical manufacturer after excluding the plaintiff’s causation expert under Delaware Rule of Evidence 702 because the expert’s opinion was not “stated in terms of medical probability.”
The plaintiff claimed that the defendant’s proton pump inhibitor, a class of
Some of us DDL bloggers have admitted to occasionally choosing our subject case based on its length. In theory a shorter case is less complicated, has less to analyze, and takes less time to write up. In theory. In reality, if there is not enough “there” there, drafting a compelling post can require more creative
When you depose the other side’s expert, there’s always that string of questions where you collect the admissions of non-expertise. “You’re not an expert in x? You’re not an expert in y? You’re not an expert in z?” Etc. Sometimes the expert does some clever fencing. E.g., “What do you mean by expert?” Or worse
We are headed to Guitar Town. That’s Nashville to you. Guitars are played and guitars (including the magnificent Gibson ES-335) are made there. We aim to sample plenty of live music and hot chicken. But the reason for our trip is the Defense Research Institute (DRI) Drug and Medical Device Conference. Tomorrow we will be
The puppies are here! We are delighted to follow up on our last post, wherein we announced that the mother of our standard-poodle-puppy-to-be was in the middle of giving birth. We are thrilled to report that the final tally includes eight beautiful, healthy pups – four boys and four girls, three white and five blue
