Here’s another guest post from Reed Smith‘s Eric Alexander. Maybe we’ll get him his own account next time.
************
After the overwhelming response to our first post last week – the list of the recipients of those firm holiday cards we never actually send got a bit longer – we agreed to do
When last we looked in on long-time plaintiffs’ expert David Egilman, M.D., in 2010, the Second Circuit in the Zyprexa litigation had affirmed sanctions against one of the lawyers who cooperated with Dr. Egilman in what that court described as a “brazen” disregard of a protective order. Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 188 (2d Cir. 2010). That was the swan song for Dr. Egilman’s involvement that litigation.
We also pointed out that Dr. Egilman had previously been involved in a protective order controversy in Colorado: Ballinger v. Brush Wellman, Inc., 2001 WL 36034524 (Colo. Dist. June 22, 2001), affirmed in part and reversed in part, 2002 WL 2027530 (Colo. App. Sept. 5, 2002) (unpublished). Beyond that, we remember Dr. Egilman from some of our New Jersey Vioxx cases years ago.
We hadn’t heard much about Dr. Egilman recently, though, until last week, when a couple of our readers at Blackwell Burke, Corey Gordon and Brendan Kenny, let us know that Dr. Egilman was involved in still more goings-on stemming from his role as an expert in what we call the “buttered popcorn” litigation.
Buttered popcorn?
Yeah, that’s right. As weird as it might sound, there are a bunch plaintiffs claiming that they were injured by popcorn. Our old pal Sean Wajert, who writes the Mass Tort Defense Blog, had a significant role in that, so we already knew a little about the popcorn proceedings. Basically, the plaintiffs allege that diacetyl, a flavoring agent used with popcorn, supposedly causes (in extremely large doses − most plaintiffs claim occupational exposures) certain lung problems. Our two readers (who have been in the thick of litigating these cases for years) informed us that Dr. Egilman has been a repeat player in that litigation − particularly in its most questionable aspects, the non-occupational exposure cases.
So we took a shot. If we run “Egilman” (fortunately he’s not named “Smith”) in Westlaw since 2010, what do we get?
Well, the first case on the list is Watson v. Dillon Cos., 2012 WL 2060844 (D. Colo. June 7, 2012). It mentions Dr. Egilman, but is really about a Daubert motion (denied) relating to another expert. Looking further we found another opinion in that case, Watson v. Dillon Cos., 797 F. Supp.2d 1138 (D. Colo. 2011), which was mostly about Dr. Egilman. Apparently Dr. Egilman is one of a small cadre of experts willing to testify that lesser, non-occupational exposures to diacetyl (household use) can cause the same injuries as occupational exposure. Of course, no epidemiology supports this theory (otherwise the plaintiffs wouldn’t need Dr. Egilman) so he relied on the usual bottom-of-the-barrel stuff that we’ve seen so often − animal studies (id. at 1153-54) and a supposed “differential diagnosis” (id. at 1156-57). However, despite the obvious respiratory differences between humans and rats, and Dr. Egilman’s ignoring the plaintiff’s occupational exposure to other lung irritants in his carpet cleaning business, the Watson court, in a very cursory analysis, held Dr. Egilman’s opinions admissible. Id. at 1156 (“[g]iven the evidence and authority discussed above, I conclude that Dr. Egilman’s opinions regarding both general and specific causation, with one exception, employ reliable methods and are based on sufficient, reliable data”).Continue Reading The Egilman Chronicles
With Bexis and McConnell now at Reed Smith, we’ve gained access to Reed’s database on the ubiquitous plaintiffs’ expert Dr. Suzanne Parisian. Therefore, we’re updating our last list of Parisian transcripts to include additional Parisian transcripts that are publicly available (we do not knowingly list transcripts that have been filed under seal − although that did once happen by accident; we fixed it).
As before, if we have the actual transcript of Parisian’s testimony, then the item is listed in black, whether or not it’s also available on Westlaw those also have a Westlaw citation). If we don’t have any transcript, then we’ve also listed it, but in red. A red colored entry with a Westlaw cite means we don’t have a copy of the transcript, but it’s available on Westlaw.Continue Reading Parisian Transcripts 3.0
Thanks and congratulations to Christy Jones and Anita Modak-Truran of Butler Snow for letting us know about – and more importantly winning – today’s decision in Smith v. Johnson & Johnson, No. 11-60624, slip op. (5th Cir. Aug. 2, 2012), affirming summary judgment in a vaginal mesh case.
Smith has two aspects, procedural and
Pardon the spasm of self-pity, but throughout our legal career we have always felt as if we were on the side that faced higher standards. Not that we’re complaining … well, actually we are complaining. When prosecuting cases on behalf of the United States of America (a great client, by the way, and the work
The other side provides expert “disclosures” that are so vague and generic that they provide no substantive information about what the bases for the expert’s opinions (or even the opinions themselves) are?
So do we.
So we’re glad to call your attention to the recent decision in Ingram v. Novartis Pharmaceuticals Corp., ___ F.R.D.
The good guys in Aredia/Zometa won another one the other day. The Sixth Circuit affirmed the exclusion of all the plaintiff’s experts − and thus entry of summary judgment − in Simmons v. Novartis Pharmaceuticals Corp., ___ Fed. Appx. ___, 2012 WL 2016249 (6th Cir. June 5, 2012). So good for them.
Because Bexis’s firm is involved in the Pelvic Mesh litigation, he is not involved in this post about yesterday’s opinion of the New Jersey Appellate Division in In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4, slip op. (N.J. Super. App. Div. June 1, 2012).
We wish it wasn’t so newsworthy, but defendants in New Jersey have had a devil of a time getting the same opportunity as plaintiffs in mass torts to obtain certain important evidence. And now, so sayeth the Appellate Division.
Here’s what happened. The Pelvic Mesh mass tort involves several hundred plaintiffs. After first precluding defendants from informally contacting plaintiffs’ treating physicians – ordinarily allowed under Stempler v. Speidell, 495 A.2d 857 (N.J. 1985) – the court entered an order precluding any defendant from using as an expert witness any physician who had ever treated or consulted with any plaintiff, even though that plaintiff was not the subject of the expert testimony. As described by the Appellate Division:
[T]he [trial] court issued an order and written decision dated May 26, 2011, barring defendants from consulting with or retaining any physician who had at any time treated any plaintiff in the pelvic mesh litigation. . . . At the time of the court’s order, the number of plaintiffs had risen to more than 220. Defendants estimated that more than 1,000 physicians were thus disqualified as potential defense experts.
Pelvic Mesh, slip op. at 8-9.
The result was predictable. The plaintiffs in that litigation had the opportunity to try to retain as an expert any physician in the relevant specialties. The defense, on the other hand, was prevented from retaining a significant number of the available experts, disproportionately including the most active specialists with the largest practices.Continue Reading News Flash: Mass Tort Defendants in New Jersey Entitled to Level Playing Field