Friday, June 8, 2012

Shooting Fish In A Barrel

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.

But geez, reading Simmons we wonder what’s going on.  Those were really poor experts.  If the plaintiffs in the A/Z MDL are going with this kind of witness, we question how vigorously the litigation’s being pursued.

Here’s what we mean.  There were two experts in Simmons − both oral surgeons, whom we’ll call “Dr. O.” and “Dr. G.” Dr. O was “non-retained,” which we think means a treating physician.

The problem with Dr. O is that he didn’t even give a causation opinion.  He didn’t get close to opining to a reasonable degree of medical certainty (or a particular jurisdiction’s equivalent language) that the drug caused the plaintiff’s injury (osteonecrosis of the jaw, or “ONJ” for short).  Instead, as the court held:

[Dr. O] never opined that [the drug] caused [plaintiff’s] ONJ. Plaintiff relies on [Dr. O’s] statement that he found “a very close association” between ONJ and bisphosphonates. However, [Dr. O] also specifically acknowledged that he “didn’t establish causation” in evaluating [plaintiff’s] ONJ. . . . [Dr. O also] clarified that he was not aware of any evidence suggesting that by continuing to use [the drug, plaintiff’s] condition worsened. Furthermore, [Dr. O] agreed that the present level of evidence did not support a cause-and-effect relationship.

Simmons, 2012 WL 2016249, at *4 (emphasis added).  Huh?  That’s a plaintiff’s expert?  Sounds like someone on our side.

The second expert, Dr. G., was your classic litigation expert-for-hire.  He didn’t know anything he wasn’t spoon-fed by plaintiff’s counsel:

[T]he record reflects that [Dr. G] had no knowledge of the etiologies of ONJ prior to meeting [plaintiff], and then gained only a limited familiarity based on literature supplied to him by Plaintiff’s counsel.

Simmons, 2012 WL 2016249, at *6.  In his non-litigation practice, he’d never treated an ONJ patient nor diagnosed ONJ in anybody − if he ever encountered such a patient, he’d refer him/her to a specialist.  Id.  So much for expertise.  Dr. G’s methodology wasn’t any better:

[Dr. G’s] specific-causation opinion [w]as unreliable because it was not derived from scientifically valid principles but rather relied exclusively on the scientific literature provided by Plaintiff’s counsel.  [Dr. G] made no attempt to verify this information, such as doing his own research for other articles, and then drawing an independent conclusion.  . . . .[T]his court views with special caution expert testimony prepared solely for purposes of litigation. . . .  [Dr. G] conceded that he did not apply a differential diagnosis. . . .  [He] admitted that he did no research into alternative risk factors for ONJ.  [Dr. G] admitted that [plaintiff] had osteomyelitis, and that osteomyelitis can cause ONJ, and he conceded that he did not rule out osteomyelitis and [other] potential exacerbating factors.

Id. at *7 (emphasis added).

So Simmons involved two experts, one who offered no causation opinion at all, and a second who read only what plaintiff’s counsel handed him, and didn’t bother to do anything more, not even an attempt to rule out other possible causes.

So we wonder, what’s going on here?  We know that the other side has lots better experts available to them.  We see them regularly.  Why didn’t they bother getting them for one of their bellwether cases?  We don’t know the answer, but in general when the other side litigates on the cheap, such as by going with lousy experts (or not paying them to do anything), it’s indicative that they don’t value their cases very highly.