Monday, May 2, 2011

Daubert Done Right

We were at a conference in Chicago last week where, as usual, the most interesting part was the panel of judges. Whether you agree or disagree with what the judges say, their every word is important and interesting. The focus of last week's panel was Daubert motions. Not to put too fine a point on it it, these judges were annoyed by burdensome Daubert motions. These judges thought most Daubert motions were a waste of time. Such motions often amount to huge stacks of paper full of science and peer-reviewed literature> If things are that complicated -- so the thinking goes -- maybe the jury should sort it out.

One of the lawyers in the audience had the temerity to ask the judges about the value of using Daubert motions to "educate" the judge, even if the motion is not ultimately successful. For a moment, we could have sworn that the panel morphed into Pink Floyd singing "we don't need no education." One of the judges said that maybe they only thing they'd be "educated" on is that the lawyer is a jerk for subjecting the judge to a difficult, mind-numbing exercise for no good reason. Here is what the judges tried to "educate" us on: judges are really, really busy. And not terribly patient.

Well, that's a tad depressing to lions of the defense bar, isn't it? We tend to view these cases as a magical mystery tour through preemption-learned intermediary-Daubert-summary judgment. Maybe the takeaway from what the judges said -- for that matter, the takeaway if one just applies a little common sense -- is to choose one's battles carefully and wisely. Instead of robotically following the dance-steps laid out on the floor, or doing something just because that's how we did it in the last case, we need to look through fresh eyes and do what's appropriate for that particular case. Daubert might not work in every case. In fact, we might end up "educating" the plaintiff lawyers and their experts.

But sometimes Daubert is the right way to go. Sometimes it really does help the court to streamline a case. Sometimes it can be a well-thought out response to plaintiff experts who (speaking of doing things robotically) trot in to say pretty much whay they say in every case -- the actual science and facts be damned.

We saw an example of a shrewd use of Daubert last week in Hogan v. Novartis Pharmaceuticals Corp., No. 06-Civ-0260 (BMC) (EDNY April 24, 2011). In Hogan the plaintiff claimed breach of implied warranty and failure to warn of the risk of developing osteonecrosis of the jaw from the defendant's intravenous drug, Zometa. The case presents an example of why the judges' criticism of Daubert motions is so maddening. If defense lawyers are to be lambasted for filing overreaching Daubert motions, what about plaintiff lawyers who file overreaching expert designations? And is it possible to talk about overreaching plaintiff expert designations without mentioning Dr. Parisian?

In Hogan, the defendant used a Daubert motion to get Dr. Parisian completely excluded. You know things are going well when the court begins its analysis by by observing that it's "[u]nclear … where Dr. Suzanne Parisian's testimomny fits." Slip op. at 2. Turns out that Dr. Parisian's testimony fit in nowhere. Dr. Parisian stated that "I'm here not as … the expert in Aredia and Zometa. I am here as the expert on FDA issues involving Aredia and Zometa." Id. at 2-3. That testimony was irrelevant. The plaintiff did not assert any violations of FDA regulations (different from some other cases we've discussed recently). The preemption defense bridge had already been crossed. By this point, the case was about causation and knowledge of causation. So what could Dr. Parisian say about that? The court allowed that "expert testimony on the topic of pharmacovigilance may help the jury understand what pharmaceutical companies generally do to anticipate and prevent adverse drug reaqctions." Id. at 5. But Dr. Parisian "has never worked for a pharmaceutical company" and was, therefore, "unqualified to opine on the potentially relevant testimony she offers in her report regarding pharmaceutical companies' internal operating procedures and other standards with which she claims manufacturers voluntarily elect to comply." Id. at 6. The court decided to exclude Dr. Parisian's proffered testimony "in its entirety" because the "FDA's role in this litigation … would be a sideshow." Id. at 7. Under that theory, Dr. Parisian would hardly ever be allowed to testify.

There are many other Daubert rulings in the Hogan case. We'll just mention some favorites. Another expert wanted to blather on about how "the defendant's efforts in manipulating publication of an article … 'demonstrated bad faith.'" Id. at 8. Since punitive damages weren't in the case, "testimony of bad faith conduct is excluded as irrelevant." Id. Yet another plaintiff expert wanted to interpret the defendant's documents to say that the defendant should have known about causation by a certain point in time. The court excluded such testimony, because the methodology was weak and the testimony had the "potential to sway the jury all by itself." Id. at 14.

The Hogan court noticed something that we've been saying about plaintiff experts for years: "all of plaintiff's experts, to some degree, are being proffered as 'superlawyers' to serve as scientifically informed advocates of conclusions that plaintiff wants the jury to reach and which belong only in summation, not expert testimony." Id. That's completely true and that thought was completely absent from the panel discussion last week. And it's not as if that's the sort of thing that can be handled on the fly during trial. Before the word "objection" exits the lips, the damage has been done and the jury has been influenced.

Along the same lines, the court prevented a plaintiff expert from taking the defendant's documents and explaining to the jury why they showed causation. An expert "cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence." Id. at 10 (quoting Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 469 (S.D.N.Y. 2005)). The same expert was precluded from criticizing the defendant's clinical trials, because he wasn't qualified to do it. Id. at 11.

Just for the sake of balance, we want this judge on the next panel that talks about Daubert.

We extend a tip of the cyber cap to Joe Hollingsworth for sending us this opinion. It is a timely reminder of the benefits of Daubert done right.