Back in 2013, we published a comprehensive post on the checkered Daubert history of the notorious and prolific (in equal amounts) plaintiff-side “FDA expert” (although she routinely attempts to opine way beyond FDA matters) – “Dr.” Suzanne Parisian. We use quotation marks, because although Parisian is technically an MD, she hasn’t seen a single patient
Last week’s Westlaw search (that’s one way we find the cases we discuss in the Blog) brought a blast from the past – a case almost three years old showed up discussing – and rejecting – expert testimony about so-called “regulatory causation.” Since we’d only touched upon this type of expert opinion once, we thought we’d take a more in-depth look at this concept.
The first thing we discovered is that “regulatory causation” apparently was invented by the ubiquitous Suzanne Parisian, largely for use in the now-mostly-concluded Aredia/Zometa litigation. That theory was an attempt to dumb down the usual common-law requirements for both causation (ordinarily “more likely than not”) and expert certainty (a “reasonable degree of medical” either “certainty” or “probability” depending on the jurisdiction).
As we described in more detail, here, the FDA, being a regulatory agency, is able to intervene prophylactically, before actual harm takes place, in order to prevent such harm. Thus, the FDA is not bound by common-law causation or expert standards in deciding when a warning should appear on the label for a drug or device. And the Agency doesn’t. Instead, its regulations governing label changes state the new warnings should be added “as soon as there is reasonable evidence of a causal association [of a risk] with a drug; a causal relationship need not have been definitely established.” 21 C.F.R. §201.57(c)(6)(i). That’s for drugs approved after mid-2001. For some older drugs (without an update since 2001), the standard is similar, although the words vary: “as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” Id. §201.80(e). See In re Incretin-Based Therapies Products Liability Litigation, 142 F. Supp.3d 1108, 1120 (S.D. Cal. 2015) (describing how these regulations work). For medical devices, the equivalent standard is harder to locate, since the FDA’s “labeling” regulations for devices does not address when to change a label. For PMA devices a standard of sorts – “reasonable evidence of a causal association” – in the CBE provisions applicable to such devices. 21 C.F.R. §814.39(d)(2)(i).
We spend a large portion of our professional life preparing motions to exclude the testimony of plaintiffs’ experts in mass tort litigation. Our pleasure in reading today’s decision is no doubt a function of the frequent futility of this effort and the consequent inflation of plaintiffs’ settlement demands. As such, we offer an enthusiastic tip of the hat to Tarek Ismail for sending us a nearly great (we’ll explain the qualification later) opinion out of the Mirena MDL. In a voluminous opinion in In re Mirena IUD Prods. Liab. Litig., 2016 WL 890251 (S.D.N.Y. Mar. 8, 2016), the United States District Court for the Southern District of New York considered both sides’ Daubert motions.
Defendant’s Medical Experts
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