Confidentiality issues often arise in drug and device cases, usually when plaintiff lawyers want to send confidential company documents to the New York Times. But every once in a while it’s the plaintiffs who get impaled on the issue. That’s what happened in In re Viagra Products Liability Litigation, MDL No. 06-1724, slip op. (D. Minn. April 14, 2010). Pfizer had earlier been unable to knock out one of plaintiffs’ general causation experts on Daubert grounds because the court had been sufficiently impressed by a peer reviewed article by that expert on the issue in question (whether Viagra caused a certain vision disorder).
But mass torts have their ups and downs, and Pfizer followed up in a very smart way. It used discovery to obtain from the University of Alabama-Birmingham (“UAB”) the source documents underlying the article. Guess what? The article wasn’t quite as rigorous as it seemed. As we discussed here, the article had misrepresented some pretty key findings and methodologies. The expert had even labeled some subjects as “exposed” when they were, in fact, “unexposed.” Kind of important, don’t you think?
Last August the court found that the new information showed that the expert’s study was unreliable (to put it charitably), and that “[p]eer review and publication mean little if a study is not based on accurate underlying data.” What happened here is something that should keep journal editors up at night. In any event, so much for that expert.Continue Reading Hard Cases Sometimes Make Good Law