There are times that you can tell that a witness at a deposition just isn’t committed to his or her answers. They get long-winded, creeping toward the ultimate answer, circling it, poking it, testing it, before ultimately offering it and then cautiously backing away. It’s the reddest of red flags. And, if it comes from a causation expert, you could be on the verge of hobbling or ending the plaintiff’s case. Here is just that type of testimony:
Q: So, Doctor, would you be willing to testify to a jury Nexium [sic] can cause fractures?
A: You know, it would depend on the question posed to me in front of a jury. I would be honest in my interpretation of the data. It would [sic] not take it any more than it is or less than it is.
I don’t think—if this is a question asked before a jury, I’ll be honest with them. I don’t think that looking at all of this data any reasonable physician or scientist or even a person of the lay public reading this can say there’s absolutely no relationship between Nexium use and risk of fracture, absolutely none.
The weight of the evidence suggests otherwise,that there is a relationship, a causal relationship, can be inferred because of a number of studies that seem to point the same way. And the evolution of those studies and that’s what I would testify that, yes, it seems from the weight of the scientific evidence we have that the long-term use of Nexium seems to be related to the risk of fractures.
In re Nexium (Esomeprazole) Prods. Liab. Litig., 2014 WL 5313871, at *2 (C.D. Cal. Sep. 30, 2014). That answer is from a real expert in the Nexium litigation. It’s loaded with just the type of hedging you get from an uncomfortable and uncertain witness: “it depends”; “I’ll be honest”; and “it seems from the weight of the evidence.” That testimony would never convince a jury.Continue Reading Anatomy of a Rule 702 Win