We are only a couple of days away from the 50th anniversary of The Beatles’ arrival in America. The DDL heirs say they are sick of hearing about it, but for those of us who sat in front of a black and white tv on February 9, 1964 as Ed Sullivan introduced the Fab Four,
The Ninth Circuit’s en banc opinion in Estate of Barabin v. AstenJohnson, Inc., No. 10-36142, 2014 WL 129884 (9th Cir. Jan. 15, 2014), is a great reminder that district courts can abuse their discretion if they do not sufficiently consider and determine the admissibility of expert opinions under Daubert. Plaintiffs’ lawyers often complain
Back in March, we reported that a monstrous $27.6 million verdict had been tossed by the Pennsylvania Superior Court in Polett v. Public Communications Inc., No. 1865 EDA 2011, slip op., (Pa. Super. March 1, 2013), for no less than four separate reasons: (1) exclusion of a “tolling agreement” whereby the plaintiff agreed
Because it is Christmas Eve, we are going to keep this one short and light. After all, there are still presents to be purchased, gifts to be wrapped, cards to be mailed, stockings to be stuffed, and pies to be baked. While we would strongly encourage you to take a minute out of the hustle and bustle to peruse the Drug and Device Law blog, this time of year we can’t help but recommend a few other yuletide/ year-end activities. Whether you are caught up in the Christmas hoopla or simply in the everyday frenzy of life, Christmas Eve can be great night for a relaxing drink (warm tea, mulled wine, vodka martini – the choice is yours) and a good movie, TV show, or book.
For example, if, like some of us, the only time you get to the movies is to see the latest Disney animation (although Monsters University was good), you may still be able to find one of these playing somewhere: Prisoners (Hugh Jackman as a desperate father trying to protect his family); Gravity (George Clooney and Sandra Bullock in space, meant to be seen on the big screen); Captain Phillips (Tom Hanks and the Somali pirates hijacking); Blackfish (documentary on orcas, very powerful); and The World’s End (latest Simon Pegg comedy, if you like “Shaun of the Dead” and “Hot Fuzz” this is a must see). Or, there are the new releases. We haven’t seen them but it seems like you could have a good time at: American Hustle, Dallas Buyers Club, Anchorman 2, or Saving Mr. Banks. And this doesn’t even include the movies opening Christmas Day.
Or, how about what you missed on TV this year. You could take the day to catch up on Scandal (wow, Olivia’s parents). We’ll watch just about anything with James Spader and Blacklist didn’t disappoint. Did you see the finale of Breaking Bad? (both logically and emotionally satisfying) And, don’t forget Netflix originals like Orange is the New Black or House of Cards. Did you know Arrested Development is back too?
And, if movies and TV aren’t your thing, there’s still time to download a good book. We know there are plenty out there to choose from, but the one’s we can recommend (won’t speak for what we haven’t read) are And the Mountains Echoed by Khaled Hosseini (author of the “Kite Runner” and “A Thousand Splendid Suns” – if you haven’t read those, start there); The Good Lord Bird (a slave boy must pass as a girl when joining John Brown’s antislavery crusade); Life After Life (an interesting tale of a women who is continually re-born); and Empty Mansions (a fascinating story of America in the 19th century and a modern battle over a staggering inheritance (non-fiction)).
We know there is more out there in all three genres – and we’re sure McConnell will have a few words especially about the movies and TV – but those lists should keep you busy through at least the New Year. Before you tune us out for one of these entertainment choices, however, we do have a new case to tell you about: In re Actos (Pioglitazone) Prods. Liab. Litig., 2013 WL 6328263 (W.D. La. Dec. 3, 2013).
First, we have to tell you that this decision involves a medical monitoring claim under New York law (anticipated costs if plaintiff’s bladder cancer recurs). At the time this decision was rendered, the court was applying Askey v. Occidental Chem. Corp., 102 A.D.2d 130 (4th Dept.1984). But, as we recently reported, New York has now rejected claims for medical monitoring. So, we aren’t interested in this case for its discussion of the underlying claim. Rather, what drew our attention was the court’s discussion of whether plaintiff’s experts’ opinions satisfied the federal standard for relevancy.Continue Reading To A Reasonable Degree of Certainty, It Is Christmas Eve
Reading the recent order in Morritt v. Stryker Corp., 1:07-cv-02319, 2013 U.S. Dist. LEXIS 136843 (E.D.N.Y. Aug 12, 2013) (Report and Recommendation adopted Sept. 23, 2013), reminds us of walking down a long corridor with numerous open doors, each leading to a jury trial on the merits of the plaintiffs’ medical device product liability
As lawyers who usually represent defendants in serial product liability litigation, we like rules. We like deadlines. We like thorough expert discovery. While we have been known to seek some discovery extensions and have slogged through cases in jurisdictions where expert discovery just means that the parties exchange reports, we tend to think that our plaintiffs prefer no rules and deadlines for experts—or having rules and deadlines that are not enforced. In serial litigation, where you can see the same expert show up with an “insert plaintiff name here” approach to reports and testimony, there can be a temptation to abbreviate expert discovery. After all, sometimes clients prefer to save money and lawyers prefer not to waste time. Grote v. Wright Med. Group, Inc., 12-CV-2002-LRR, 2013 U.S. Dist. LEXIS 124693 (N.D. Iowa Aug. 30, 2013), seems to us like a case where the plaintiff tried to take advantage of these preferences and got called on it, at least somewhat. It also may be the first time we have read a decision this long—21 of those Lexis * pages—that only cites a single case. It definitely taught us that a response to a motion is referred to as a “Resistance” in some courts.
In Grote, the plaintiff sued over an allegedly defective hip prosthesis and served apparently typical reports from frequent flyer liability experts. Because these experts had been deposed before in other cases and the reports did not disclose anything new—aside from mentions of the plaintiff—the parties agreed not to depose the liability experts. The defendant even informed the court of the agreement in an uncontested motion to extend the discovery and dispositive motions deadlines. On the last day of discovery, when it was surely apparent that the defendant manufacturer would soon be filing Daubert motions and a motion for summary judgment, the plaintiff served supplemental reports from two of these experts, Fred Hetzel and Mari Truman.Continue Reading Paying Some Price for Gamesmanship
We’ve already provided our readers with our list of the testimony (trial and deposition) of the seemingly ubiquitous plaintiff’s expert Dr. Suzanne Parisian, although we admit that our readers have not been very conscientious in updating us with new transcripts.
Be that as it may, in this post we’re taking the next logical step – we’re looking at the numerous court decisions where the admissibility of Dr. Parisian’s testimony was successfully challenged, in whole or in part. We’re categorizing the exclusions by topic, starting with those that exclude her altogether as a witness, and working our way down. Because we don’t believe in doing the other side’s research for them, we’re not listing topics on which she was allowed to testify, however, be aware that, if a decision is not in the first paragraph, it did allow her to testify, at least as to something.
Here goes:
Cases Totally Excluding Dr. Parisian’s Testimony: Miller v. Stryker Instruments, 2012 WL 1718825, at *10-12 (D. Ariz. Mar. 29, 2012) (no coherent methodology; unhelpful; legal conclusions; narrative testimony; unqualified to give medical testimony; ipse dixit; reliance on after-the-fact events); Kaufman v. Pfizer Pharmaceuticals, Inc., 2011 WL 7659333, at *6-10 (S.D. Fla. Aug. 4, 2011) (ipse dixit; conclusory; lack of methodology; opinions not tied to FDA regulations or to facts; irrelevant bases; intent/state of mind; outside scope of expertise; outside relevant time period), reconsideration denied, 2011 WL 10501233 (S.D. Fla. Aug. 10, 2011) (narrative testimony; lack of methodology; outside relevant time period); Hogan v. Novartis Pharmaceuticals Corp., 2011 WL 1533467, at *2-3 (E.D.N.Y. April 24, 2011) (FDA issues irrelevant; unqualified as to industry standards); Lopez v. I-Flow Inc., 2011 WL 1897548, at *9-10 (D. Ariz. Jan. 26, 2011) (legal conclusions; conclusory; improper state of mind/intent opinions; narrative testimony; bases not connected to conclusions; ipse dixit; speculative; outside expertise); In re Trasylol Products Liability Litigation, 709 F. Supp.2d 1323, 1336-51 (S.D. Fla. 2010) (unqualified as to foreign regulations and medical causation; narrative testimony; ipse dixit; corporate knowledge and intent; FDA violation testimony conclusory and not tied to regulations; opinions beyond scope of report; improper reliance on internal documents; lack of methodology; speculation; advocate not an expert), certification denied, 2010 WL 2541892 (S.D. Fla. June 22, 2010); In re Prempro Products Liability Litigation, 554 F. Supp.2d 871, 879-87 (E.D. Ark. 2008) (erroneous admission of Parisian testimony required new trial on punitive damages; narrative testimony, ipse dixit; testimony not connected to FDA regulations), aff’d in pertinent part, reversed in part on other grounds, 586 F.3d 547, 571 (8th Cir. 2009); Jacobs v. Caesars Entertainment, Inc., 2007 WL 594714, at *4 (E.D. La. Feb. 21, 2007) (insufficient factual basis; unreliable methodology), reconsideration denied, 2007 WL 1558717, at *2 (E.D. La. May 30, 2007), aff’d, 280 Fed. Appx. 424 (5th Cir. 2008); Nelson v. C.R. Bard, Inc., 2006 WL 6225071 (D.D.C. Sept. 26, 2006) (minute order); Barnes v. EBI Medical Systems, Inc., 2001 WL 36105533 (Vir. Cir. Spotsylvania Co. Jan. 26, 2001) (legal opinion; lack of qualifications; no foundation; speculation).Continue Reading Which Decisions Have Excluded Dr. Parisian, And About What?
Summer used to be the season of sun, fun, and nothing of consequence happening. We remember when courts were like dormant reptiles in July and August. After June, there would be no major rulings, and certainly no trials, until the temps dropped under 85 and the kids marched sullenly back to school. Even television lazily took the Summer off. It was rerun time, and the three networks were reduced to pitching that ‘It’s new to you if you haven’t seen it.” In between the reruns, failed pilots were burned off, like greasy chicken-bits on a grill.
It’s different now. Seasons hardly matter. Some channels seize Summer as the time to introduce major, and very good, shows, such as The Bridge. Further, not all shows are introduced by ‘channels’ at all. Just as it did with Arrested Development and House of Cards, Netflix recently unleashed Orange is the New Black on the viewing populace. It has become the critics’ new darling. Moreover, watching reruns has drastically mutated, now that we can catch up on things we missed via binge-watching on demand or on DVD. For example, we took a cue from a couple of recent books about TV’s current Golden Age – Alan Sepinwall’s The Revolution was Televised and Brett Martin’s Difficult Men — and zipped through all seven seasons of the underrated The Shield (“Good cop and bad cop left for the day. I’m a different kind of cop.”). We have made it most of the way through the prematurely-ended Deadwood, where the f-bombs approach Midnight Run territory, and where the soliloquies could have been lifted from Macbeth — adding the f-bombs.
Speaking of premature endings, the death of James Gandolfini at age 51 made us rue all the great future performances we have been cheated out of (HBO had started shooting a series where Gandolfini was going to play the part of a lawyer) and remember his transcendent work as Tony Soprano. (More than one correspondent on this blog mourns Gandolfini’s passing, as evidenced here.) Without any planning, almost reflexively, we ended up binge-re-watching The Sopranos. Over 86 hours, Gandolfini turned in as impressive a body of acting work as we are ever likely to see. Make no mistake – as Carmela’s shrink says to her, “You have been told” – Tony is evil. But Gandolfini let us feel the complexity and banality and humanity of that evil. As high school students we were forced to write an essay on whether Arthur Miller’s “Death of a Salesman” was a legitimate expression of tragedy. How can someone fall from greatness if they were never really great in the conventional sense? Or can ‘great’ stem from representing something significant? If schools in the future manage to get things right, students will be asking the same thing about David Chase’s television show.
We are not exactly binge-watching drug and device law cases. But if you’ve been paying attention to this blog you know that a lot has been happening. The Mensing/Bartlett mosaic continues to assemble. California keeps emitting weird food law cases. The courts in our fair Commonwealth never miss an opportunity to make us reopen the hornbooks and reconsider our sanity. And there are even a few drug and device trials trudging through the heat.Continue Reading Hip Rulings on Split Screens, Expert Fees, Recalls, Collateral Source, and 510(k) Clearance
We saw this morning that the boxcar California verdict that was being ballyhooed the last couple of days was reversed by the trial judge granting a nonsuit (the California equivalent to judgment n.o.v.). But we don’t usually discuss verdicts, good or bad. Now we’ve received the opinion supporting that decision. It’s Cooper v. Takeda Pharmaceuticals America, Inc., LASC No. JCCP4696, slip op. (Cal Super. L.A. Co. May 1, 2013). Opinions, we discuss.
Basically, the plaintiff’s case fell apart because the causation opinions of the only plaintiff expert witness were so unsupported as to border on farcical. The court deferred ruling on the defendant’s Kelly/Frye (should we now add Sargon to the name?) exclusion motion and let the case go to the jury – no doubt hoping that the jury would do the right thing. Unfortunately, the jury fell for the snow job, so the court stepped in.
Cooper is the latest example of the routine abuse of “differential diagnosis/etiology” by plaintiff causation expert. Here the disease was bladder cancer, which has a number of other known and idiopathic causes. Unfortunately for plaintiff Sargon Enterprises, Inc. v. University of Southern California, 288 P.3d 1237 (Cal. 2012) (discussed here), recently reiterated that, yes, the rules governing admissibility of expert testimony actually have teeth. Cooper, slip op. 5-6 (quoting extensively from Sargon).
This particular diagnosis failed because (no surprise) the expert didn’t have all of the relevant medical records and thus didn’t know all of the necessary information about the other causes (“[p]articularly smoking, environmental exposures, occupational exposure,” slip op. at 7) for bladder cancer as they related to this individual. While the expert told the jury that he had “reviewed the medical history, id. at 10, he actually hadn’t:
Q. And yet, Dr. Smith, sir, despite reading those records, you were totally unaware that they were records reporting that [plaintiff] had stopped smoking in the 1990’s. Isn’t that true, sir?
A. There’s discrepancies within the chart which we talked about before. There are places in the chart that say never smoker. There are also places that say 1990’s.
Q. Doctor, I’m going to ask you a specific question. Isn’t it true that as of the time we took your deposition, you were unaware of any record reporting that he had stopped in the 1990’s?
A. My impression was that he had stopped in the 1970’s, correct
* * *
Q ….[Y]ou can then agree that for purposes of forming your opinion, you did not weigh whether and to what extent if he smoked for 20 years or 40 years would factor into your opinion because you didn’t know then. Isn’t that true?
A. I was under the impression,·once again, that he had quit in 1974. I was not aware of any documentation at that time of 1990 something.Continue Reading Breaking News – Opinion Reversing $6.5 Million Actos Verdict