Chantix Daubert Leaves Us Wanting More

Here's another guest post from Reed Smith's Eric Alexander.  Maybe we'll get him his own account next time.

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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 another this week.  We also vowed to make this post more positive than the first.  We would not want to get an unfounded reputation for being unduly negative, critical, and crotchety.  A well-founded reputation is fine, but we wanted to try to find a case with something to praise.  It seems that finding a praiseworthy case some weeks is about as hard as resisting a cheeky alliterative title for our posts.  (There sure are some b-words to pair with “bayou” when discussing a Louisiana case.)  So, we found a case with some good parts and some bad parts.  Like many meals out.  On an MDL-wide Daubert, getting a satisfying entrée is sufficiently unlikely that you often have to make sure you enjoy your salad - butter lettuce, pear, blue cheese, and walnuts or pecans is nice, but lay off the raspberry vinaigrette.


The decision in In re Chantix Varenicline Prods. Liab. Litig., MDL No. 2092, 2012 U.S. Dist. LEXIS 130144 (Aug. 21, 2012), is like that.  The defendant took a shot at the whole ball of wax - general causation - “whether Chantix [a prescription drug for smoking cessation] is capable of causing the adverse neuropsychiatric events alleged,” as the Court put it.  It missed.  A definitive “no” on general cause would have pretty much ended the MDL, and MDLs (other than Seroquel) have a way of lasting past Daubert decisions.  Similarly, most restaurants tend to like you to order some apps and sides with your entrée, have a few drinks along the way, save room for dessert and a nice aperitif, and maybe offer you a wafer thin slice of beef to finish you off.  It is a rare joint that says, in essence, “You really came here for the porterhouse, so have that first and we’ll see if you have any room left after that.”  But we digress.  The entrée here was not prepared too well.  Maybe it was how it was ordered.  Maybe it should have been sent back.  Maybe it was because the chef/court was confused about what it was preparing/deciding.  We’ll get to that.  Since we are trying to be positive, we will discuss the tasty part first.

The court precluded plaintiffs’ experts – three of them were challenged specifically and addressed in the opinion, but the Conclusion suggests the ruling applies to all of plaintiffs’ experts – from offering testimony about what the defendant knew or that it misled the FDA.  For one of the experts, the court said she could not testify to “labeling changes based on that knowledge.”  In the Conclusion, the exclusion is of testimony “whether defendant ‘intentionally misled the FDA.’”  Since we are still being positive, we will not dwell on the lack of consistency.  We will praise something not normally praised – lack of detailed analysis.  The court kicks this testimony from the first expert up, Dr. Furberg, with “as such opinions are necessarily based on speculation.”  The other two experts challenged for such “opinions” fell without elaboration.

There are a bunch of other reasons why an expert should not be able to testify about – or opine about, which is not really the same thing – these subjects, but speculation is a good reason.  So, the court stops discussing it.  No authority is cited; the case defendant cited In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 543 n. 32, 560 (S.D.N.Y. 2004), is actually brushed aside a few pages earlier.  We recall writing the challenge to an expert offering testimony on corporate intent that was granted in In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., No. MDL 1203, 2000 WL 876900 (E.D. Pa. June 20, 2000), and later expanded in In re Diet Drugs Prods. Liab. Litig., MDL No. 1203, 2001 WL 454586 (E.D. Pa. Feb. 1, 2001), and later adopted in said Rezulin opinion – yes, the Rezulin court did preclude the same Dr. Furberg and others from offering testimony on the “intent, motive or state of mind of corporations or regulatory agencies.”  Back then, we had to look to a range of non-products cases to cobble together support for a proposition that seemed obvious – an expert in regulatory matters, pharmacology, epidemiology, or whatever should not be allowed to get on the stand and offer up their take on what the drug manufacturer, its employees, FDA, or its employees knew, thought, or intended at a point in time.  We used to have spend time in briefs explaining all the reasons why this was so.  As courts have fallen in line on this, including, it seems, just about every drug or device MDL court to offer up a Daubert decision on the plaintiffs’ experts since Diet Drugs – because the plaintiffs’ expert keep offering intent testimony – we now have an established proposition the adoption of which required the Chantix court no analysis or citation.  Like food – we are just not going to make analogies to smoking – simple can be better than complicated.

Taking this same approach on whether the experts can testify FDA was misled is similarly logical and avoids some thorny issues.  If an expert is speculating when offering up a testimony on what the company knew, then she is certainly speculating when she says the FDA was misled, which necessarily involves a guess at what FDA knew and thought.  Even former FDA officials who become experts do not get to speculate on what another specific FDA official would have done with additional or different information.  In re Diet Drugs Prods. Liab. Litig., 2001 WL 454586, *19 (yeah, did that, too).  We do think that the line of cases that exclude evidence, expert or otherwise, offered to show that FDA was misled – starting with Bouchard v. American Home Products, 213 F. Supp.2d 802 (N.D. Ohio 2002) – is right even after Levine.  We also see why a court would be hesitant to rely on preemption to exclude evidence in a pharmaceutical products case these days.

While the Chantix court excluded the “knew” and “misled” testimony, it hastened to add that the experts could say what the defendant “should have known” and what information it provided to FDA.  We will be curious to see how those lines are held at trials, as the veteran testifiers for plaintiffs do have a way of suggesting what they cannot say directly.  But “should have known” and therefore “should have” taken some action does not sound like a basis for punitive damages and “knew” and “decided not to” take some action does.  Similarly, you feel much better about avoiding punitives when no witness has testified that FDA was “misled” into taking or not taking some regulatory action based on what the company submitted or “failed” to submit.  (We would urge that words like “failed,” “chose,” and “decided” are a way that impermissible knowledge and intent testimony actually gets offered by the cagey experts and lawyers.)  So, we would take these exclusions, even with the clarifications about what can be offered.

That said, the rest of the opinion was grounds for indigestion.  Every challenge to opinions from the seven experts at issue on “general causation,” “biological plausibility,” and mechanisms for causation was shot down.  In so doing, the court permitted speculation and theories (without any showing of general acceptance) and never identified any study relied upon by the challenged experts that had the hallmarks of reliable evidence of causation, at least as the court explained it . Rule 703 is never mentioned.  In general, the court took the opposite approach of the Steve McConnell's Seventh Circuit idol in Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (Posner, J.), ironically another smoking cessation aid case, which famously declared, “But the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.”  The basic approach was to criticize the defendant’s challenge, pump up the expert’s qualifications and number of citations in the expert’s report, and cite caselaw (sometimes miscite) for the propositions that the judge’s gatekeeper role under Daubert does not supplant cross-examination, that most criticisms go to weight, and expert testimony can still be admitted if it fails multiple Daubert factors.  It also fundamentally misunderstood the task at hand, often seeming to be rejecting a “no evidence” summary judgment motion rather than a Daubert challenge to specific experts’ testimony.

How did this happen?  We weren’t there and haven’t read the briefs, but a few things leap out.  First, the day before the Daubert hearing, the court issued a partial summary judgment ruling that the Chantix label as changed in 2009 “is sufficient as a matter of law for warnings regarding neuropsychiatric injuries” (and the SOL would start running as of that change) and the court “the court considers the pending motion to exclude certain of plaintiffs’ experts in light of its prior ruling on the label sufficiency.”  That had two implications as we read it:  1) that the court thought it was now established that Chantix can cause a range of neuropsychiatric injuries and 2) that the court did not understand – luckily, we do get to speculate on what judges understand – the relationship between labeling and causation.  Even if Chantix does have the potential to cause neuropsychiatric injuries, an expert’s opinion that it does may still not be admissible.  He may not base his opinion on reliable studies or he may apply an unreliable methodology in evaluating the studies, as by contending that an odds ratio less than 1.0 favors causation.  He may have good qualifications in one area, but base his opinion solely on the type of studies he would never come across in his day job (e.g., a rat study guy trying to rely on epidemiologic studies).  The reverse is also true: an expert can have admissible but incorrect opinions that Chantix can cause neuropsychiatric injuries.  Here, however, because the court clearly felt Chantix can cause neuropsychiatric injuries, the challenge to each expert was treated as something of an affront and the burden of demonstrating the reliability and admissibility of the expert’s opinions was not placed on the plaintiffs, who should have had it as the proponents of the evidence.

In addition, the court seemed to think the fact that warnings in the Chantix label, or in FDA’s communications, became more forceful and prominent over time was important to the analysis of causation.  There was no discussion of the well-known disclaimers in labeling regulations that “a causal relationship need not have been definitely established” or various FDA statements that labeling (and reporting of adverse events) should not be viewed as admissions of causation.  Although the court discussed whether actions by FDA – its mission is to protect public health, after all – are based standards relevant to consideration of causation evidence under Daubert, its insistence on looking at FDA actions and inconsistency in how it did so was befuddling.  Unfortunately, it appears that the defendant may have pushed the court to keep blurring the lines between admissibility under Daubert and what FDA has done/said, as it raised (according to the court) various arguments about how the plaintiffs’ experts interpreted studies or adverse event data different than how FDA did.  The record also included defendant’s “Introduction and Statement of Facts Relevant to all Daubert Motions,” 154 exhibits from defendant, plaintiffs’ “Omnibus Memorandum of Facts and Law,” and 215 exhibits from plaintiffs, plus more stuff with the reply.  With a dash of hindsight, we can certainly question whether all the background not really relevant to the admissibility of the opinions of the challenged experts ended up distracting the court from the real issues.

Second, for whatever reason, after three years of presiding over the Chantix MDL, the judge did not like the defendant or its motions, at least as we read the opinion.  When the first sentence in the “Relevant Factual Background” is that “this is a multidistrict product liability action concerning Chantix, touted by defendant to aid in smoking cessation” (emphasis added), you might get a hint at where the court is going.  If the court really was “consider[ing] only whether Chantix is capable of cause the adverse neuropsychiatric events alleged,” then marketing conduct does not matter.  Nor does how “severe” the events are being alleged, something the court notes several times.  The standards for admissibility of expert evidence do not change based on whether defendants marketed aggressively (or misleadingly) or whether the injuries alleged are really bad.  As Mike Tomlin says, “The standard is the standard.”

We said a “few things” leap out at us to why the portion of the opinion on causation was so bad.  We have given two, really three if you count subparts like the Federal Rules of Civil Procedure require.  There are more, but to go into them would come across as too negative, which we are resisting.  Anyway, we started by saying that the Chantix opinion was like a meal out with some good parts and some bad parts.  It was really like a meal that left us nauseated, but we thought back and remembered that we liked the bread.  And maybe the butter.

The Egilman Chronicles

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”).

 

But that’s not so elementary, my dear Watson, at least not anymore.  Our correspondents were most pleased to inform us that the court in Watson (actually a different judge to whom the case was reassigned) recently agreed to reconsider that order admitting Dr. Egilman − indicating that under more recent precedent the prior terse analysis that permitted Dr. Egilman’s opinions wasn’t rigorous enough.

 

After reviewing the Tenth Circuit’s recent pronouncement on Daubert challenges and the admissibility of expert testimony at trial, I reexamined pertinent documents in this matter. . . . I find that the Hoffman opinion may impact previous expert witness rulings including, but not limited to, Dr. David Egilman’s opinions.

Order at 1-2.  Thus, the court’s going to take another look in Watson, and hopefully this time get it right.

 

Another development that sparked reconsideration in Watson was the exclusion decision in Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 1006 (E.D. Wash. 2010), where the court did get it right and tossed almost identical Egilman opinions in another non-occupational exposure popcorn case.  The Newkirk opinion contains a detailed indictment of both Egilman’s methods and conclusions (exactly what wasn’t done in Watson).  Here are Dr. Egilman’s greatest misses, as stated in the Newkirk opinion:

 

• The Court notes that Dr. Egilman does not cite to any support for many of his statements.  [describing several statements]  Each of these preceding statements are important foundational assumptions on which Dr. Egilman relies for the remainder of his analysis.  However, without citation to any source, the Court must conclude that those foundational statements are not based on sufficient facts or data.  Id. at 1016-17.
• Dr. Egilman’s testimony and reports contain many other examples of conclusions and opinions that he fails to document. . . .  In addition to not being supported by sufficient facts or data, Dr. Egilman’s unsupported statements would not assist the fact finder in deciding the material questions in this case and may be misleading or confusing.  Id. at 1018.
• Dr. Egilman relies on existing data, mostly in the form of published studies, but draws conclusions far beyond what the study authors concluded, or Dr. Egilman manipulates the data from those studies to reach misleading conclusions of his own.  Id.
• Dr. Egilman’s underlying methodology for his conclusions regarding [another expert’s] work is not reliable because he provides no basis to extrapolate from [the other expert’s] letter regarding a single patient. . . .  Therefore, Dr. Egilman had no identifiable data on which to base his conclusions, and the Court has no means to analyze whether the underlying data is reliable.  Id. at 1019.
• Dr. Egilman relies on the findings of [other experts] despite their own reflections that the methodology underlying their work . . . could not support extrapolating to general causation for a broader group of consumers.  Id. at 1020.
• Dr. Egilman’s opinions fall below the threshold standard of scientific validity in other ways. . . .  Coming to a conclusion first and then doing research to support it is the antithesis of this method. . . .  Dr. Egilman’s conclusions . . . preceded his actual estimation of the levels of diacetyl to which [plaintiff]was exposed.  Id. at 1021.
• Dr. Egilman also fails to apply reliable scientific methods when he extrapolates from extremely small samplings to make sweeping conclusions.  Id. at 1022.
• Dr. Egilman cites no other authority for the analytical step he takes from observing that there is no accepted “safe” level of diacetyl exposure.  Id. at 1024.
• Dr. Egilman offers no analytical bridge between the animal studies finding harm from diacetyl exposure to rats and his conclusion that those studies demonstrate that diacetyl exposure causes decreased lung function and [other injuries] in humans.  He offers no explanation for how and why the results of those studies can be extrapolated to humans.  Id. at 1025-26.
• Dr. Egilman’s characterization of the study as an exposure study when, by its own terms, it is not, indicates that Dr. Egilman did not reliably apply the methodology of that study to the facts of this case.  Id. at 1026.
• Dr. Egilman also includes legal conclusions throughout his expert report and affidavits.  Yet Dr. Egilman has not presented any credentials to support his qualifications as a legal expert. . . .  Dr. Egilman fills his expert report with “opinions” that are actually legal conclusions.  Id.
• [O]ne illustration of lack of reliable methodology is when the expert has arrived at contradictory conclusions using the same methodology.  In his [date] affidavits, Dr. Egilman discounts some of the very studies he relied upon in his [date] report.  Id. at 1027.
• Dr. Egilman provides no basis for his confidence in making a conclusion that the authors explicitly stated was premature without additional data.  Id.
• The bulk of Dr. Egilman’s conclusions do not rise above “subjective belief or unsupported speculation.”  Id. at 1029.

 

There’s actually more, but it’s too case specific for us to bother with.

 

The plaintiff appealed Newkirk, and last year the Ninth Circuit affirmed in all respects.  The Court of Appeals needed only two paragraphs to dispose of Dr. Egilman:

Dr. Egilman did not sufficiently justify his foundational assumption or refute the contrary record evidence.  Moreover, as the district court observed, there were problems with Dr. Egilman’s . . . estimates of [plaintiff’s] exposure levels.  In light of these concerns, we hold that the district court did not abuse its discretion in concluding that the “analytical gap between the existing data and the opinion Dr. Egilman proffers” was too large.

 

Because Dr. Egilman could not establish that diacetyl in microwave popcorn vapors was generally capable of causing [the lung disease in question], he could not rely on a differential diagnosis to establish that exposure to microwave popcorn had caused [plaintiff’s] medical problems.  We therefore affirm the exclusion of all of Dr. Egilman’s testimony.

 
Newkirk v. ConAgra Foods Inc., 438 Fed.Appx. 607, 609 (9th Cir. 2011).

 

That should have been the end of the matter in Newkirk, but oddly it wasn’t.  In addition to the plaintiff appealing in Newkirk, Dr. Egilman himself appealed, purportedly in his own right (we owe thanks to our correspondents for pointing this out; we would never have looked for something like that otherwise).  Dr. Egilman claimed, according to the court, “that the district court abused its discretion by using defamatory language in its order.”  Egilman v. ConAgra Foods, Inc., No. 10-35667, slip op. at 2 (9th Cir. Sept. 5, 2012).  That argument was, of course, meritless since, as we’ve blogged about before, the contents of a judicial opinion can’t be defamatory as a matter of law.  See Wolk v. Teledyne Industries, Inc., 475 F. Supp.2d 491, 510 (E.D. Pa. 2007) (applying Pennsylvania law).  But the Ninth Circuit did not have to reach the merits to dispose of Dr. Egilman’s appeal in the Newkirk litigation.  Instead, the court held that Dr. Egilman, as a mere retained expert, lacked standing to appeal the exclusion order:

Appellant’s participation in the district court consisted of filing reports in his capacity as an expert.  His participation was not akin to party participation.  He did not file papers objecting to the order excluding his testimony.  He did not argue the legal merits of the motion to exclude his testimony. . . .  We conclude that Egilman does not have standing to appeal the district court’s order, that we lack jurisdiction, and that this appeal should be dismissed.

 
Egilman, slip op. at 1-2.  We confess, we’ve never had it happen to us, but if an expert ever decides to appeal his own exclusion, separately from the party retaining him/her, we now have some precedent that it can’t be done.

 

To be fair, we need to point out that the same Egilman opinions that were sliced, diced, and pureed in Newkirk were actually admitted in evidence in a Missouri case.  See Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 193-94 (Mo. App. 2012) (describing Egilman testimony in another non-occupational popcorn exposure case).  However, the jury in Khoury was no more gullilble than the trial and appellate judges in Newkirk.  The Show Me State jurors weren’t shown enough because they brought back a defense verdict, id. at 195, so the admission of Dr. Egilman’s testimony wasn’t at issue on the Khoury appeal.

 

So perhaps the reason we haven’t heard much from Dr. Egilman in the drug/device area (not a single Westlaw mention − cases or expert databases, we checked both − in this field in the last two years) is that he’s been busy with the popcorn cases.  Extrapolating from the track record we’ve just discussed, however, perhaps that’s likely to change.  Since it’s always possible Dr. Egilman may resurface in drug/device litigation, we thought we’d pass along what (with our readers’ help) we’ve been able to find out about what he’s been up to.

Another Decision Leveling the Playing Field

We recently saw another decision allowing defendants in mass tort litigation to retain as defense experts doctors who also treated plaintiffs.  In Re: Zimmer NexGen Knee Implant Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 117238 (N. D. Ill. Aug. 16, 2012).  The NexGen MDL court rejected some of plaintiffs’ familiar arguments, including that defendants would improperly influence the doctors’ testimony as fact witnesses in their own patients’ cases and that treaters serving as defense experts somehow violate fiduciary obligations to the patient.  Id. at *31, 34. 

The court was influenced, instead, by the defendants’ proposed order, which set out the circumstances under which the defense could retain treaters as experts:

Defendants propose that their contact with Plaintiffs’ treating physicians should be permitted, subject to an order limiting contact with prospective expert witnesses who are also treating physicians of individual plaintiffs as follows:

   1. Zimmer’s counsel will not communicate with physician-expert about any of his or her patients who are plaintiffs in this MDL.

   2. Zimmer and its counsel may not use a physician as a consulting or testifying expert in a case where that physician’s present or former patient is a plaintiff in that particular case.

   3. Before having any substantive communication with a prospective physician-expert, Zimmer’s counsel will provide the treating physician with this Order and will secure the treating physician’s written acknowledgment that he or she has read the attached Memorandum to Physicians [not attached to the opinion], except that [an] expert[ ] retained as of the date of this Order shall be provided with this Order within thirty (30) days, and shall provide written acknowledgment that he or she has read the attached Memorandum to Physicians.

Id. at *10-11. 

We should note that the court also rejected a key (and incorrect) argument often made by plaintiffs – that the defense’s access to treating doctors for ex parte informal discovery is restricted to some extent by the physician-patient privilege.  It is not.  That privilege is waived the moment plaintiff files suit.  The MDL court sided with courts holding that state privilege law doesn’t apply and neither does state-law restricting the defense conducting ex parte treater discovery.  It’s not a privilege issue.  It’s about available methods of discovery under federal law:

These courts recognize that a state’s law of privilege applies in diversity actions, but they conclude that a plaintiff waives the physician-patient privilege as to all matters relevant to the case by putting his or her medical condition at issue.  Thus, state law banning ex parte communications between defense counsel and a plaintiff’s treating physician merely governs the method of discovery, not the operation of the privilege. . . .

The ex parte rule shares certain public policy goals with the law of privilege, but [any state] rule [banning ex parte discovery] operates by imposing restrictions on the methods of discovery--traditionally a matter within the broad discretion of the district court.  The Federal Rules of Civil Procedure do not directly address the matter of ex parte contacts at issue in this case, but those rules do empower the court to “regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local rules.”

Id. at *18-21.  The court used that power to allow the defense to retain treaters as experts.

Now, we think that decision was an easy one.  There would be no semblance of fairness in allowing Plaintiffs in mass torts to have potential access to the entire pool of the most active and involved experts while restricting the defense’s access. 

But maybe more important is that plaintiffs’ attorneys should not have the advantage of one-sided access to treating doctors before their fact depositions or trial testimony.  For those of us who have taken treater depositions after the doctor had an ex parte “meeting” with plaintiff’s lawyer, we know the usefulness that such a meeting can have and the unfairness it can create if only one side has the opportunity to request such a meeting. 

While this wasn’t at issue in the NexGen decision, the court’s opinion nonetheless offered helpful language that could apply.  Plaintiff argued that the evidence or testimony given by a treater as to her or his patient might be unfairly influenced by the defense if the defense had also hired that treater as an expert.  In other words, the plaintiffs – who have no restrictions on access to treaters – wanted the treaters for themselves.  The court rejected this reasoning:

As a general proposition . . . no party to litigation has anything resembling a proprietary right to any witness’s evidence.  Absent a privilege no party is entitled to restrict any opponent’s access to a witness, however partial or important to him, by insisting on some notion of allegiance. . . . Unless impeded by privilege an adversary may inquire, in advance of trial, by any lawful manner to learn what any witness knows . . . . [W]hile the Federal Rules of Civil Procedure have provided certain specific formal methods of acquiring evidence from recalcitrant sources by compulsion, they have never been thought to preclude the use of such venerable, if informal, discovery techniques as the ex parte interview of a witness who is willing to speak. 

Id. at *31-32 (quoting Doe v. Eli Lilly & Co, 99 F.R.D. 126, 128 (D.D.C. 1983)).

Similarly, the court addressed the notion that a treater serving as an expert witness for the defense would somehow violate a fiduciary duty to her patient/plaintiff, a duty that supposedly involved assisting the plaintiff in litigation.  Id. at * 34.  If you recall, New Jersey’s Appellate Division recently rejected this very same argument.  We wrote about it here.  The NexGen MDL court rejected it too.  The treater’s duty in litigation is not to help one side.  It’s to tell the truth: “[A]s imposed by law, the physician’s duties in litigation are to cooperate procedurally when called upon and to provide truthful information.”  Id. at * 36 (citing In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 188 (App. Div. 2012). 

We think these points support more than allowing the defense to retain treaters as experts.  They help establish that when doctor-patient privilege is not an issue – and it clearly isn’t in these types of mass torts – one side of the litigation shouldn’t have a unilateral right to informal discovery from key witnesses.  Both sides should have such access. 

It’s August, So . . . .

            It’s hot.  The Olympics are over (U.S. came out well ahead in medal count).  There are only about three weeks left to squeeze in a summer vacation.  ABC just announced the line up for the next season of Dancing With the Stars.  And the stores are jammed with notebooks, backpacks and sneakers (September always meant new sneakers!).  Sure, there are a few other things going on too – something about a vice-presidential candidate and are we taking pictures of Mars?  But really, as the summer winds down, we’d prefer to keep things simple.  So, our post today is nothing earth-shattering, but it is a nice decision we’d like you all to be aware of.

            The case is Smith v. Johnson & Johnson, Inc., 2012 U.S. App. LEXIS 16000 (5^th Cir. Aug. 2, 2012).  The product was a pelvic mesh used in surgery to repair complications plaintiff suffered following a hysterectomy.  Id. at *2.  A few months later, additional surgery was required to remove the mesh which had eroded causing pain and other complications requiring a 5-week hospital stay.  Id. at *3.  Plaintiff appealed two decisions by the district court.  The first struck her experts and the second granted summary judgment.  We like them both, so we’ll summarize both.

            First, the experts.  Here plaintiff (really her counsel) failed on several fronts.  First, they were untimely.  On the day expert designations were due, plaintiff only identified two experts by name and CV – but did not serve defendant with an expert report or any other statement of the experts’ proposed opinions or bases for them in violation of  Rule 26(b)(2).  Id. at *4.  Expert reports weren’t served until two months later.  Two months after that, in response to defendant’s summary judgment motion, plaintiff served an affidavit from a previously unidentified third expert.  Id. at *4. 

            Both the district and appellate courts struck the third expert as untimely.  Plaintiff offered no reasonable explanation for why that expert could not have been designated by the deadline and all of his opinions could be obtained from the other experts.  Id. at *8-9.

As to the first two experts, plaintiff was given a pass.  The magistrate judge denied defendant’s motion to strike the experts as untimely, holding that “the importance of the expert testimony weighed heavily in favor of permitting the late designation.”  Id. The court did, however, award defendant costs finding that defendant “had incurred unnecessary expenses due to the plaintiffs’ lateness.”  Id. at *4-5. 

But, that pass only got plaintiff over the lateness hurdle.  The court went on to strike the experts “based on its finding that their reports were conclusory and provided no factual support or reasons for their conclusions.”  Just how conclusory were these reports?  Well, according to the court’s decision essentially they said:  We are doctors.  We reviewed plaintiff’s medical records. We believe the pelvic mesh caused plaintiff’s injuries.  Id. at *6-7.  Pretty bare bones, huh?  The court agreed:

According to [the expert’s] report, he did not consult any of the medical literature concerning Mersilene mesh or any of the documentation about the product. He also gave no reasons or explanation for his conclusions. It is a well established rule that without more than his credentials and subjective opinion, an expert’s testimony that a medical condition simply is so is not admissible.   

Id. at *7 (citation and quotation marks omitted).

            And the court didn’t stop there either.  Not only were the reports completing lacking in substance, they also didn’t address the critical issue in the case – “whether the warning provided by the manufacturer . . . was sufficient and whether any inadequate warning caused Smith’s injuries.”  Id.  Plaintiff had no admissible expert testimony in response to defendant’s motion for summary judgment.  Id. at *8. 

            Which brings us to said summary judgment motion, governed by Mississippi law.  Mississippi recognizes, and has codified in its Products Liability Act, the learned intermediary doctrine.  Id. at *10-11.  So, on a failure to warn claim, the question before the court was whether the plaintiff had established that her surgeon would not have used the pelvic mesh if he had received an adequate warning.  Id. at *11.  Plaintiff focused on the adequacy of the warning and overlooked the part about what her surgeon would have done. 

            As to the warning itself, plaintiff contended that it should have included information about adverse event reports detailing injuries allegedly incurred as a result of the use of the product.  Id. at *12.  But, given her surgeon’s testimony, what was or was not on the product’s label didn’t really matter:

[Plaintiff’s surgeon] testified that he was aware of the risks inherent in using Mersilene mesh, and stated that he was personally aware of the possibility of adverse events including extrusion and erosion. . . . [He] also testified that he read the Contraindications section of the Mersilene package insert, which advised that . . . subsequent infection may require removal of the material.   [He] saw infection as a very serious potential issue and took that possibility into account in deciding whether surgery with Mersilene mesh was the best option for Smith.

Id. at *12-13.   Because her surgeon was aware of risks but decided to use the product anyway “the adequacy of the warning is not a producing cause of the injury and the plaintiff’s recovery must be denied.”  Id. at *13-14. 

            Like we said, a good decision.  One we hope you have some use for in your own cases.  Now, back to your regularly scheduled end of summer activities.

Parisian Transcripts 3.0

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.

We still doubt that the list below is complete, but it’s getting better. If you’d like to contribute a transcript, send it to Bexis or McConnell, since we’re keeping the master file here, now. As before, it’s chronological, and we’ve included what drug or device was involved. Here we go again:

Testimony  
DATE         CASE NAME         TYPE

1997-09-03 Macias v. Medtronic (spinal stimulator, leads) Deposition

1997-09-12 Hoeffer v. Am. Med. Sys. (penile implant) Deposition

1997-09-25 Hoeffer v. Am. Med. Sys. (penile implant) Trial

1998-03-23 Porterfield v. Ethicon (surgical mesh) Deposition

1998-04-06 Macias v. Medtronic (spinal stimulator, leads) Deposition

1998-04-14 Macias v. Medtronic vol 1(spinal stimulator, leads) Trial

1998-04-15 Macias v. Medtronic vol 1(spinal stimulator, leads) Trial

1998-04-15 Macias v. Medtronic vol 2(spinal stimulator, leads) Trial

1998-04-17 Macias v. Medtronic vol 1(spinal stimulator, leads) Trial

1998-04-17 Macias v. Medtronic vol 2(spinal stimulator, leads) Trial

1998-04-20 Macias v. Medtronic vol 1(spinal stimulator, leads) Trial

1998-04-20 Macias v. Medtronic vol 2(spinal stimulator, leads) Trial

1998-06-10 Suerth v. Pfizer (femoral stem) Deposition

1998-06-30 Suerth v. Pfizer (femoral stem) Deposition

1998-08-31 In re AMS Minnesota Penile Prosthesis Litigation Deposition

1998-08-31 In re Guidant Implantable Defibrillators PLL Deposition

1998-09-09 Suerth v. Pfizer (femoral stem) Deposition

1998-09-18 In re AMS Minnesota Penile Prosthesis Litigation Deposition

1998-11-25 Mason v. Carter Wallace (pregnancy test) Deposition

1998-12-22 Ethicon, Inc. v. Artegraft, Inc. (biliary stent) Deposition

1999-08-20 Drake v. Sofamor Danek Group (bone screw) Deposition

1999-10-07 Hoeffer v. Am. Med. Sys. (penile implant) Deposition

2000-01-15 Chow v. U.S. Surgical Corp. (trochar) Deposition

2000-01-16 Doe v. Ortho Clinical Diagnostics (thimerosal) Deposition

2000-02-22 Linsley v. C.R. Bard, Inc. (surgical mesh) Deposition

2000-05-10 Barnes v. EBI Medical (cold pack) Deposition

2000-11-30 Carr v. Bernhardt (cervical interbody fusion system) Deposition

2001-02-12 Nelson v. C.R. Bard, Inc. (surgical mesh) Deposition

2002-01-15 Chow v. United States Surgical Corp. (trocar) Deposition

2002-01-23 Shows v. St. Dominics Hospital (ventilator) Trial

2002-05-06 Fowler v. ADAC Laboratories (nuclear scanning device) Deposition

2002-07-16 Parker v. Alcon (Pantopaque), 2002 WL 34201763 Deposition

2002-08-13 Parker v. Alcon (Pantopaque) , 2002 WL 34201762 Deposition

2002-09-19 Drinkwater v. Boston Scientific (?) Deposition

2002-10-10 Cohen v. Lysonics (?) Deposition

2003-03-10 Barnes v EBI Medical (cold pack) Deposition

2003-03-26 Barthold v. Boston Scientific (GDC Coil) Trial

2003-04-03 Galzerano v. Stryker Corp. (knee implant) Deposition

2003-05-01 Morton v. George Washington University (?) Deposition

2003-07-08 Galzerano v. Stryker Corp. (knee implant) Deposition

2003-07-25 Dateline Interview (hip implant) TV Show

2003-08-19 Bartlett v. Stryker Corp. (knee implant) Deposition

2003-09-11 Teperson v Sulzer (hip implant) Deposition

2004 McCullough v. Aventis, 2004 WL 5046828 (flu vaccine) Partial Expert Testimony

2004 Kendall v. Wyeth, 2004 WL 6019671, 2004 WL 6022467, 2004 WL 6022468 (hormone therapy) Partial Expert Testimony

2004-02-25 George v. Aultman Hospital (fluoroscope) Deposition

2004-05-26 Oakberg/Lillebo v Zimmer, Inc. (hip implant) Deposition

2004-08-24 Ross v. Cyberonics (nerve stimulator) Deposition

2004-09-10 Paulin v. Aventis (?) Deposition

2004-09-21 Cueva v Sulzer (hip implant) Deposition

2004-10-27 Hardy v. Bayer (Baycol) Deposition

2004-11-11 Allan v. Terens (?) Deposition

2004-11-12 Oakberg v. Zimmer, Inc. (hip implant) Daubert Hearing

2004-12-06 Johnson v. Ethicon (suture) Deposition

2004-12-07 Johnson v. Ethicon (suture) Deposition

2005-01-20 Hardy v. Bayer (Baycol) Trial

2005-01-21 Hardy v. Bayer (Baycol) Trial

2005-01-24 Hardy v. Bayer (Baycol) Trial

2005-02-02 Doschadis v. Zimmer, 2005 WL 3635612, 2005-WL 6310437, 2005 WL 6310442 (hip implant) Deposition

2005-02-09 Jacob v. Caesars Entertainment (anti-infection practices) Deposition

2005-03-14 Johnson v. Ethicon (suture) Deposition

2005-03-15 Johnson v. Ethicon (suture) Deposition

2005-05-03 Vinion v. Amgen (IDE Embrel) Deposition

2005-05-13 Ashford v.Mariner Post-Acute Network (?) Deposition

2005-05-24 Vinion v. Amgen (IDE Embrel) Deposition

2005-06-10 Saban v. Lumenis Inc. (?) Deposition

2005-07-11 Grother v. Clarus Medical (laser) Deposition

2005-07-11 Williams v. Clarus Medical (laser) Deposition

2005-07-15 Renovitch v. Synthes (medullary exchange tube) Deposition

2005-07-28 Leclerc v. Zimmer (hip implant), 2005 WL 3635613 Deposition

2005-08-15 Doschadis v. Zimmer, 2005 WL 6320155, 2005 WL 6310440, 2005 WL 6310441 (hip implant) Deposition

2005-09-08 Meinhart v. Hoveround Corp. (electric wheelchair) Deposition

2005-11-09 Buonocore v. Cardeon Corp. (aortic profusion device) Deposition

2005-11-10 Contratto v. Ethicon (surgical gel) Deposition

2005-12-01 Saban v. Lumenis (?) Deposition

2005-12-16 Contratto v. Ethicon (surgical gel) Deposition

2006-01-04 Stewart v. Sulzer (hip implant) Deposition

2006-01-16 Doe2 v. Ortho-Clinical Diagnostics (thimerosal) Deposition

2006-03-16 Stewart v. Sulzer, 2 vols. (hip implant) Trial

2006-03-20 Buonocore v. Cardeon (?) Trial

2006-03-27 Judd v. TMC Healthcare, 2006 WL 3257121 (vascular device) Deposition

2006-04-04 Grother v. Clarus Medical (medical laser) Deposition

2006-04-19 In re Prempro PLL, 2006 WL 5443498, 2006 WL 5443499, 2006 WL 6576306, 2006 WL 6576308, 2006 WL 6642053 (hormone therapy) Deposition

2006-04-19 Meharg v. I-Flow, 2006 WL 6607760 (pain pump) Deposition

2006-04-19 Hines v. Wyeth, 2006 WL 6831050 (hormone therapy) Deposition

2006-06-07 Doherty v. Merck (Vioxx) Trial

2006-05-08 Doherty v. Merck (Vioxx) Deposition

2006-05-09 Doherty v. Merck (Vioxx) Deposition

2006-07-21 Black v. Johnson & Johnson (?) Deposition

2006-07-28 McCullough v. Aventis (flu vaccine) Deposition

2006-08-18 Weston v. CIBA Vision, 2006 WL 6610553 (contact lens) Deposition

2006-08-19 In re Prempro PLL, 2006 WL 6576310 (hormone therapy) Deposition

2006-09-21 Reece v. Astrazeneca (Crestor), 2006 WL 3938900 and 2006 WL 4079040 Deposition

2006-10-11 In re Guidant Corp. Implantable Defibrillators PLL, 2006 WL 6271412 Deposition

2006-12-18 Matareese v. Reese (?) Deposition

2007-02-20 Nix v GSK, 2007 WL 7079369 (Serevent) Deposition

2007-02-09 Jacob v. Caesars Entertainment, 2007 WL 7035983 (anti-infection practices) Deposition

2007-02-28 Masters v. Eniva Corp. (?) Trial

2007-04-18 Simon v. Wyeth (hormone therapy) Trial

2007-04-19 Simon v. Wyeth (hormone therapy) Trial

2007-04-20 Simon v. Wyeth (hormone therapy) Trial

2007-04-20 Simon v. Wyeth (hormone therapy) Trial

2007-04-20 Simon v. Wyeth (hormone therapy) Trial

2007-04-26 Reece v. Astrazeneca (Crestor) Daubert Hearing

2007-06-14 Fleet Phospho-Soda Litig. (bowel preparation solution) Deposition

2007-07-10 Pryor v. Bon-Secours (?) Deposition

2007-07-19 Rowatt v. Wyeth (hormone therapy) Deposition

2007-07-20 Rowatt v. Wyeth (hormone therapy) Deposition

2007-08-20 In re Human Tissue Litig., 2007 WL 6502202, 2007 WL 6502183, 2007 WL 714497 (cadaver implants) Deposition

2007-10-02 Hays v. CB Fleet (bowel preparation solution) Deposition

2007-10-15 Lewis v. Ortho-McNeil (?) Deposition

2007-11-08 Singh v. Edwards Lifesciences (?) Deposition

2007-11-14 In re Prempro PLL (hormone therapy) Deposition

2007-11-14 Hernandez-Trevino v. Wyeth (hormone therapy) Deposition

2007-12-20 In re Prempro PLL (hormone therapy) Deposition

2008-02-01 Rix v. Sanchez & Abbott Labs. (Depakote) Deposition

2008-02-12 Scoggins v. Wyeth, 2008 WL 8115543 (hormone therapy) Trial

2008-02-13 Scoggins v. Wyeth, 2008 WL 8115544 (hormone therapy) Trial

2008-02-13 LaFerrara v. Wyeth, 2008 WL 8126385 (hormone therapy) Deposition

2008-02-13 Hines v. Wyeth., 2008 WL 8652728 (hormone therapy) Trial

2008-02-15 Singh v. Edwards Lifesciences (cardiac catheter) Trial

2008-02-28 Runner-Bradden v. Bausch & Lomb (contact lens solution) Deposition

2008-03-03 Scoggins v. Wyeth (hormone therapy) Trial

2008-03-05 Scoggins v. Wyeth (hormone therapy) Trial

2008-03-11 In re Ortho Evra PLL (contraceptive patch) Deposition

2008-03-17 Haslam v. Pfizer, 2008 WL 5186626, 2008 WL 5270853, 2008 WL 6831968, 2008 WL 8415040 (Bextra) Deposition

2008-04-07 Arbino v. J&J, 2008 WL 5539279 (contraceptive patch) Deposition

2008-04-07 Tomko v. J&J, 2008 WL 7427808 (contraceptive patch) Deposition

2008-04-21 Dubzak v. Boston Scientific (bladder support device) Deposition

2008-06-03 Dussault v. Children’s Hospital (?) Deposition

2008-06-30 Oliva v. Bristol-Myers Squibb (?) Deposition

2008-07-21 Woods v. Upjohn (hormone therapy) Trial

2008-07-22 Woods v. Upjohn (hormone therapy) Trial

2008-07-23 Woods v. Upjohn (hormone therapy) Trial

2008-07-23 Woods v. Upjohn (hormone therapy) Trial

2008-07-24 Woods v. Upjohn (hormone therapy) Trial

2008-07-24 Woods v. Upjohn (hormone therapy) Trial

2008-07-31 Webster v. Body Dynamics (?) Deposition

2008-08-19-20 Webster v. Nittany Pharmaceuticals (?) Trial

2008-09-09 Steele v. GSK (Paxil) Deposition

2008-09-16 Kelley v. Unico Holdings Co. (bowel preparation solution) Deposition

2008-09-22 Oliva v. Bristol-Myers Squibb (?) Deposition

2008-10-10 Zundel v.J&J (ibuprofen) Deposition

2008-10-16 Seeno v. Mentor Corp. (?) Deposition

2008-12-01 Seeno v. Mentor Corp. (?) Trial

2008-12-18 McGookin v. Guidant Corp. (?) Deposition

2009-01-10 Panacryl Sutures PLL Deposition

2009-01-29-30 Zundel v. J&J (ibuprofen) Trial

2009-02-05 Higginbotham v. King (?) Deposition

2009-02-09 McGookin v. Guidant Corp. (?) Deposition

2009-02-16 Ingram v. Mylan Pharmaceuticals (phenytoin) Deposition

2009-02-19 Slicho v. Boston Scientific (?) Deposition

2009-02-27 Grossnickle v. Stryker (pain pump) Trial

2009-03-02 Grossnickle v. Stryker (pain pump) Trial

2009-03-02 Grossnickle v. Stryker (pain pump) Trial

2009-03-12 In Re Fosamax PLL Deposition

2009-03-26 Vance v. Rite-Aid (generic hormone therapy) Deposition

2009-03-26 Fisher v. Pelstring, 2009 WL 8520417 (metoclopramide) Deposition

2009-04-16 Anderson v. Novartis, 2009 WL 6699612 (Aredia-Zometa) Deposition

2009-04-16 Forman v. Novartis, 2009 WL 6753962 (Aredia-Zometa) Deposition

2009-04-16 Fussman v. Novartis, 2009 WL 7127450, 2009 WL 7127451, 2009 WL 7127456, 2009 WL 7127460 (Aredia-Zometa) Deposition

2009-04-16 Brodie v. Novartis, 2009 WL 8160691, 2009 WL 816069 (Aredia-Zometa) Deposition

2009-04-16 Bartoli v. Novartis, 2009 WL 8520473 (Aredia-Zometa) Deposition

2009-04-16 Joslin v. Novartis, 2009 WL 8529276 (Aredia-Zometa) Deposition

2009-04-16 Zimmerman v. Novartis, 2009 WL 8542785 (Aredia-Zometa) Deposition

2009-04-16 Burt v. Novartis, 2009 WL 8556092 (Aredia-Zometa) Deposition

2009-04-16-17 Aredia & Zometa PLL, 2009 WL 6754033, 2009 WL 8252132, 2009 WL 8529276 Deposition

2009-04-17 Fussman v. Novartis, 2009 WL 7127454, 2009 WL 7127459 (Aredia-Zometa) Deposition

2009-04-17 Brodie v. Novartis, 2009 WL 8160684, 2009 WL 8160692 (Aredia-Zometa) Deposition

2009-04-17 Winter v. Novartis, 2009 WL 8539832, 2009 WL 8539834 (Aredia-Zometa) Deposition

2009-04-17 Burt v. Novartis, 2009 WL 8556093 (Aredia-Zometa) Deposition

2009-04-17 Sheffer v. Novartis, 2009 WL 8559506 (Aredia-Zometa) Deposition

2009-05-04 Ingram v. Mylan Pharmaceuticals (phenytoin) Deposition

2009-05-15 Kilpatrick v. Breg, Inc., 2009 WL 6356410 and 2009 WL 6356411 (pain pump) Deposition

2009-05-21 Poole v. Matrixx Initiatives (homeopathic zinc) Deposition

2009-06-02 Vance v. Rite-Aid (generic hormone therapy) Deposition

2009-06-02 Fisher v. Pelstring, 2009 WL 8520418 (metoclopramide) Deposition

2009-06-10 Meharg vs. I-Flow, 2009 WL 6483210, 2009 WL 6669203, 2009 WL 6669204 and 2009 WL 6725708 (pain pump) Deposition

2009-06-14 Krieger v. CB Fleet (bowel preparation solution) Deposition

2009-07-10 Boles v. Merck (Fosamax) Daubert Hearing

2009-07-09 Howard v. Mylan Pharmaceuticals (phenytoin) Deposition

2009-07-10 Winter v. Novartis, 2009 WL 8539831 (Aredia-Zometa) Deposition

2009-07-22 Hackett v. Breg, Inc., 2009 WL 854601 (pain pump) Deposition

2009-07-22-3 Cox v. DJO, 2009 WL 5912859, 2009 WL 5912862, 2009 WL 8246323 (pain pump) Deposition

2009-07-28 Vidrine v. Bausch & Lomb (contact lens solution) Deposition

2009-08-19 Boles v. Merck (Fosamax) Trial

2009-08-20 Boles v. Merck (Fosamax) Trial

2009-08-22 Stevens v. Novartis, 2009 WL 8252129 (Aredia-Zometa) Deposition

2009-08-22 Hogan v. Novartis, 2009 WL 8259660 (Aredia-Zometa) Deposition

2009-08-22 Knopf v. Novartis, 2009 WL 8529274 (Aredia-Zometa) Deposition

2009-08-22 Krause v. Novartis, 2009 WL 8529282 (Aredia-Zometa) Deposition

2009-08-22 Zimmerman v. Novartis, 2009 WL 8542783 (Aredia-Zometa) Deposition

2009-08-22 Radin v. Novartis, 2009 WL 8559491 (Aredia-Zometa) Deposition

2009-08-22 Dopson-Troutt v. Novartis, 2009 WL 8559495 (Aredia-Zometa) Deposition

2009-08-22 Rutz v. Novartis, 2009 WL 8559501 (Aredia-Zometa) Deposition

2009-08-22 D’Agnese v. Novartis, 2009 WL 8559504 (Aredia-Zometa) Deposition

2009-08-22 Jenkins v. Novartis, 2009 WL 8559510 (Aredia-Zometa) Deposition

2009-08-27 Meharg v. I-Flow, 2009 WL 6725713 (pain pump) Deposition

2009-08-31 McGookin v. Guidant Corp. (?) Trial

2009-09-18 Kilker v. GSK (Paxil) Trial

2009-09-18 Kilker v. GSK (Paxil) Trial

2009-09-22 Kilker v. GSK (Paxil) Trial

2009-09-22 Kilker v. GSK (Paxil) Trial

2009-09- 29 Vitatoe v. Mylan Pharmaceuticals, 2009 WL 5454713 (phenytoin) Deposition

2009-10-02 In Re Boston Scientific Corp. Securities Litigation (?) Deposition

2009-10-05 Alderfer v. Breg, Inc., 2009 WL 5912858 (pain pump) Deposition

2009-10-06 In re Trasylol PLL, 2009 WL 6464666 Deposition

2009-10-06 In re Trasylol PLL, 2009 WL 6464689, 2009 WL 6527903 Trial

2009-10-06 Kendall v. Wyeth (hormone therapy) Trial

2009-10-07 In re Trasylol PLL Deposition

2009-10-13 In re Gadolinium PLL, 2009 WL 6736344 (contrast medium) Deposition

2009-10-15 Stevens v. Novartis (Aredia-Zometa) Trial

2009-10-26 Kendall v. Wyeth (hormone therapy) Trial

2009-10-27 Kendall v. Wyeth (hormone therapy) Trial

2009-10-27 Kendall v. Wyeth (hormone therapy) Trial

2009-10-28 Kendall v. Wyeth (hormone therapy) Trial

2009-10-28 Kendall v. Wyeth (hormone therapy) Trial

2009-10-30 Lee v. Clinical Innovations (?) Deposition

2009-11-02 Gerber v. Bayer (?) Deposition

2009-11-04 McMurray v. GSK (Paxil) Deposition

2009-11-21 Ring v. Anne Arundel Health Systems, Inc. (?) Deposition

2010-01-08 Beale v. I-Flow (pain pump) Trial

2010-01-25 Singleton v. Wyeth, 2010 WL 4048206 (hormone therapy) Deposition

2010-01-26 Singleton v. Wyeth, 2010 WL 4053423 (hormone therapy) Trial

2010-01-27 Singleton v. Wyeth, 2010 WL 6465079 (hormone therapy) Trial

2010-01-27 Stephenson v. Wyeth, 2010 WL 7786424 (hormone therapy) Trial

2010-01-27 Cross v. Wyeth, 2010 WL 7507675 (hormone therapy) Trial

2010-01-27 Hines v. Wyeth, 2010 WL 7015407 (hormone therapy) Trial

2010-01-27 Hines v. Wyeth, 2010 WL 7015409 (hormone therapy) Trial

2010-01-27 In re Prempro PLL, 2010 WL 4048207 (hormone therapy) Deposition

2010-01-27 In re Prempro PLL, 2010 WL 4048208 (hormone therapy) Deposition

2010-01-27 LaFerrara v. Wyeth, 2010 WL 4268226 (hormone therapy) Trial

2010-01-27 Singleton v. Wyeth (hormone therapy) Trial

2010-01-28 Singleton v. Wyeth, 2010 WL 405342 (hormone therapy) Trial

2010-01-28 Singleton v. Wyeth, 2010 WL 4053425 (hormone therapy) Trial

2010-01-28 LaFerrara v. Wyeth, 2010 WL 4268236 (hormone therapy) Trial

2010-01-28 Hines v. Wyeth, 2010 WL 7507780 (hormone therapy) Trial

2010-01-29 Foust v. Wyeth (hormone therapy) Trial

2010-02-01 Foust v. Wyeth (hormone therapy) Trial

2010-02-02 Foust v. Wyeth (hormone therapy) Trial

2010-02-02 Foust v. Wyeth (hormone therapy) Trial

2010-02-02 LaFerrara v. Wyeth, 2010 WL 4268237 (hormone therapy) Trial

2010-02-02 Hines v. Wyeth, 2010 WL 7015403 (hormone therapy) Trial

2010-02-02 In re Prempro PLL, 2010 WL 4048214 (hormone therapy) Deposition

2010-02-03 Winter v. Novartis, 2010 WL 8241354 (Aredia-Zometa) Deposition

2010-02-03 Brodie v. Novartis, 2010 WL 6772532 (Aredia-Zometa) Deposition

2010-02-03 Fussman v. Novartis, 2010 WL 4688034 (Aredia-Zometa) Deposition

2010-02-15 Bryant v. Bayer, 2010 WL 2034578 (Trasylol) Deposition

2010-02-19 In re Kugel Mesh PLL (hernia patch) Deposition

2010-03-02 Bryant v. Bayer, 2010 WL 2709951 (Trasylol) Deposition

2010-03-03 In re Kugel Mesh PLL, 2010 WL 2798010, 2010 WL 3054366 (hernia patch) Trial

2010-03-03 Anderson v. St. Jude (heart valve) Trial

2010-03-29 Whitfield v. C.R. Bard, 2 vols. (hernia patch) Trial

2010-04-09 Fisher v. Pelstring, 2010 WL 8033965 (metoclopramide) Deposition

2010-04-12 In re Prempro PLL, 2010 WL 4048209, 2010 WL 4048210, 2010 WL 4048211, 2010 WL 4048212, 2010 WL 4048213 Deposition

2010-04-13 In re Trasylol PLL, 2010 WL 4256804 Daubert Hearing

2010-04-20 Maley v. Merck (Fosamax) Trial

2010-04-21 Maley v. Merck (Fosamax) Trial

2010-04-21 In re Aredia-Zometa PLL, 2010 WL 4114306 Deposition

2010-04-23 Bush v. Ethicon Endo (surgical stapler) Trial

2010-04-30 In re Aredia-Zometa PLL, 2010 WL 3198484, 2010 WL 3198485 Deposition

2010-05-19 LaFerrara v. Wyeth, 2010 WL 4268227, 2010 WL 4268228 (hormone therapy) Deposition

2010-06-03 LaFerrara v. Wyeth, 2010 WL 4268230 (hormone therapy) Deposition

2010-06-04 Phillipi v. Stryker, 2010 WL 4854085 (pain pump) Deposition

2010-06-04 Phillipi v. Stryker, 2010 WL 4955822 (pain pump) Deposition

2010-06-16 Boles v. Merck (Fosamax) Trial

2010-06-18 White v. Novartis, 2010 WL 2984547, 2010 WL 2984548 (Aredia-Zometa) Deposition

2010-07-07 Hansen v. DJO, 2010 WL 5241784 (pain pump) Deposition

2010-07-07 Scaccia v. Cgarlato Labs, 2010 WL 5597804 (pain pump) Deposition

2010-07-25 Singleton v. Wyeth, 2010 WL 7015406 (hormone therapy) Trial

2010-08-11 Davis v. Breg (pain pump) Trial

2010-08-12 Thorpe v. C. R. Bard (hernia patch) Trial

2010-08-21 Arvidson v. DJO, 2010 WL 3973171 (pain pump) Deposition

2010-08-21 McClellan v. I-Flow, 2010 WL 4781352 (pain pump) Deposition

2010-08-26 Meade v. Wyeth, 2010 WL 4970703 (hormone therapy) Deposition

2010-09-02 Lopez v. I-Flow, 2010 WL 8354885, 2010 WL 8354886 (pain pump) Deposition

2010-09-13 Fussman v. Novartis, 2010 WL 4688003 (Aredia-Zometa) Deposition

2010-09-15 Ingram v. Wyeth, 2010 WL 4048202, 2010 WL 4048204 (hormone therapy) Trial

2010-09-22 McClellan v. I-Flow (pain pump) Trial

2010-09-29 Hogan v. Novartis, 2010 WL721894 (Aredia-Zometa) Trial

2010-10-12 Young v. C.R. Bard (hernia patch) Deposition

2010-10-15 In re Kugel Mesh PLL, 2010 WL 4662988 (hernia patch) Trial

2010-11-01 Rodriguez v. Stryker, 2010 WL 5876764 (pain pump) Deposition

2010-11-01 Pavelko v. Breg, Inc., 2010 WL 6971968, 2010 WL 6971969 (pain pump) Deposition

2010-11-03 Hogan v. Novartis, 2010 WL 7212892, 2010 WL 7212893 (Aredia-Zometa) Trial

2010-11-05 Graves v. Merck (Fosamax) Trial

2010-11-05 Adams v. Wyeth, 2010 WL 6464468 (hormone therapy) Trial

2010-11-19 Torkie-Tork v. Wyeth (hormone therapy) Trial

2010-11-22 Torkie-Tork v. Wyeth (hormone therapy) Trial

2010-11-23 Torkie-Tork v. Wyeth (hormone therapy) Trial

2010-11-23 Torkie-Tork v. Wyeth (hormone therapy) Trial

2010-12-13 Rivera-Adams v. Wyeth (hormone therapy) Daubert Hearing

2010-12-14 Rivera-Adams v. Wyeth (hormone therapy) Daubert Hearing

2011-01-09 Bailey v. Medtronic (insulin pump) Deposition

2011-01-10 Hamilton v. Breg, Inc., 2011 WL 3583244 (pain pump) Deposition

2011-01-12 Davidson v. Wyeth, 2011 WL 343559 (hormone therapy) Partial Expert Testimony

2011-01-21 Scott v. Baxter, 2011 WL 2881908, 2011 WL 3583236 (heparin) Deposition

2011-01-27 Rosenberg v. Merck (Fosamax) Trial

2011-01-29 Foust v. Wyeth (hormone therapy) Trial

2011-01-31 In re Heparin PLL (heparin) Deposition

2011-02-01 Foust v. Wyeth (hormone therapy) Trial

2011-02-02 Foust v. Wyeth (hormone therapy) Trial

2011-02-11 Hogan v. Novartis, 2011 WL 3555931 (Aredia-Zometa) Trial

2011-02-16 Aredia-Zometa PLL, 2011 WL 3555935 Trial

2011-02-26 Aredia-Zometa PLL, 2011 WL 3555936 Trial

2011-02-26 Hogan v. Novartis, 2011 WL 3555937 (Aredia-Zometa) Trial

2011-04-07 Zimmerman v. Novartis, 2011 WL 6752468 (Aredia-Zometa) Deposition

2011-04-11 Deutsch v NPC (Aredia-Zometa) Daubert Hearing

2011-04-11 Winter v. Novartis, 2011 WL 6841253 (Aredia-Zometa) Trial

2011-04-11 Jenkins v. Novartis, 2011 WL 7143703 (Aredia-Zometa) Trial

2011-04-16 Davids v. Novartis, 2011 WL 7143312 (Aredia-Zometa) Deposition

2011-04-17 Davids v. Novartis, 2011 WL 7143311 (Aredia-Zometa) Deposition

2011-04-26 Bush v. Ethicon Endo-Surgical (surgical stapler) Trial

2011-04-28 Pierce v. Grand (Risperdal) Deposition

2011-05-02 Deutsch v NPC (Aredia-Zometa), 2011 WL 3533693 Trial

2011-05-02 Winter v. Novartis, 2011 WL 6841254 (Aredia-Zometa) Trial

2011-05-03 Hansen v. Wyeth, 2011 WL 7141420 (hormone therapy) Partial Expert Testimony

2011-05-31 Winter v. Novartis, 2011 WL 6841251 (Aredia-Zometa) Trial

2011-05-31- Winter v. Novartis, 2011 WL 6841252 (Aredia-Zometa) Trial

2011-06-17 Chandler v. Greenstone, 2011 WL 6982138 (hormone therapy) Trial

2011-07-06 Washington/Martin v.Endoscopy Center, 2011 WL 5118093 (propofol) Deposition

2011-07-13 Hines v. Wyeth, 2011 WL 2848335 (hormone therapy) Trial

2011-07-14 Hines v. Wyeth (hormone therapy) Trial

2011-08-12 Conklin v. Novartis, 2011 WL 7025571 (Aredia-Zometa) Deposition

2011-10-10 Hackett v. Breg, Inc., 2011 WL 7005832 (pain pump) Deposition

2011-10-12 Curtis v. Wyeth (hormone therapy) Trial

2011-10-13 Curtis v. Wyeth (hormone therapy) Trial

2011-11-07 Davids et al. v. Novartis, 2011 WL 7143312 (Aredia-Zometa) Partial Expert Testimony


Expert Reports


1997-11-13 Hepatix v. Amphioxus, 1997 WL 34639417 (liver support device)

1998-05-21 Greiner v. Sofamor, 1998 WL 35232983 (bone screw)

1998-06-24 Lennon v. Danek Medical, 1998 WL35232984 (bone screw)

2000 Parker v. Alcon, 2000 WL35536856 (imaging agent)

2001 Johnson v. Ethicon, 2001 WL 35959646 (suture)

2002-03-30 Parker v. Alcon, 2002 WL 34189694 (imaging agent)

2003 Hardy v. Bayer, 2003 WL 24574392 Baycol)

2003-03-07 Riggs v. Medtronic, 2003 WL 26062046 (pacemaker lead)

2004 Oray v. Wyeth, 2004 WL 5716531, 2004 WL 5716532 (hormone therapy)

2004 Rowatt v. Wyeth, 2004 WL 5626232 (hormone therapy)

2004 McCullough v. Aventis Pasteur, 2004 WL 5400441 (flu vaccine)

2004-03-15 Arnett v. TAP, 2004 WL 3557199 (Lupron)

2004-04-12 Reiling v. Zimmer, 2004 WL 5736301 (femoral hip implant)

2004-04-12 Lillebo v. Zimmer, 2004 WL 3630979, 2004 WL 5391482 (femoral hip implant)

2004-07-09 DeSouza v. TAP, 2004 WL 4203905 (Lupron)

2005 In re Prempro PLL, 2005 WL 4704976 (hormone therapy)

2005 In re Medtronic Implantable Defribrillators PLL, 2005 WL 4668503

2005 Meinhart v. Hoveround Corp., 2005 WL 4157955 (electric wheelchair)

2005 Reece v. Astrazeneca, 2005 WL 5155010 and 2005 WL 5718766 (Crestor)

2005 In re Guidant Corp. Implantable Defibrillators PLL, 2005 WL 5543471

2005 Wawrzynek, v. Statprobe, 2005 WL 5895111 (IDE scar removal device)

2005 Spell v. Medtronic, 2005 WL 4908670 (pacemaker lead)

2005-05-20 Renovitch v. Synthes, 2005 WL 5783498 (medullary exchange tube)

2005-07-08 DeSouza v. TAP, 2005 WL 6244846 (Lupron)

2005-07-27 DeSouza v. Tap, 2005 WL 4257814 (Lupron)

2005-10-06 Riggs v. Medtronic, 2005 WL 6705150 (defibrillator)

2005-10-06 Spell v. Medtronic, 2005 WL 3973891 (defibrillator)

2005-10-06 Ware v. Medtronic, 2005 WL 3722818 (defibrillator)

2005-10-06 Lane v. Medtronic, 2005 WL 3722817 (defibrillator)

2005-10-06 Pastor v. Medtronic, 2005 WL 3660183 (defibrillator)

2005-11-15 Doe v. Ortho Clinic Diagnostics, 2005 WL 4200148 (thimerosal)

2006 In Ortho Evra PLL, 2006 WL 5530469 (contraceptive patch)

2006-02-27 Weston v. Kim’s Dollar Store, 2006 WL 4843733 (contact lens)

2006-05-15 Jacob v. Caesars Entertainment, 2006 WL 6185485 (anti-infection practices)

2006-05-18 Rush v. Wyeth, 2006 WL 6632550 (hormone replacement)

2006-06-05 Rush v. Wyeth, 2006 WL 6632514 (hormone replacement)

2006-08-24 Weston v. Kim’s Dollar Store, 2006 WL 4843732 (contact lens)

2006-09-01 In re Guidant Defibrillators PLL, 2006 WL 6271413, 2006 WL 6454674

2006-11-09 Anderson v. Advanced Neuromodulation, 2006 WL 6472191 (percutaneous lead)

2006-11-10 Jacob v. Caesars Entertainment, 2006 WL 6185486 (anti-infection practices)

2006-11-13 In re Prempro PLL, 2006 WL 5925448 (hormone replacement)

2007 USA v. Gower, 2007 WL 4286127 (botulin toxin)

2007-01-08 Reece v. Astrazeneca, 2007 WL 580804 (Crestor)

2007-01-16 Jacob v. Caesars Entertainment, 2007 WL 5958318 (anti-infection practices)

2007-01-17 In re Human Tissue PLL, 2007 WL 6502170 (cadaver implants)

2007-02-04 In re Bextra & Celebrex PLL, 2007 WL 6908263

2007-05-23 Notmeyer v. Stryker, 2007 WL 1957371 (total hip implant)

2007-05-31 Nix v. GSK, 2007 WL 7047122 (Serevent)

2007-05-31 In re Human Tissue PLL, 2007 WL 2408063 (cadaver implants)

2007-07-02 Hansen v. Wyeth, 2007 WL 7632625 (hormone replacement)

2007-07-02 Aderhold v. Wyeth, 2007 WL 7611073 (hormone replacement)

2007-07-02 Scharff v. Wyeth, 2007 WL 7602377 (hormone replacement)

2007-07-02 Adams v. Wyeth, 2007 WL 7547212 (hormone replacement)

2007-07-02 LaFerrara, v. Wyeth, 2007 WL 7281613 (hormone replacement)

2007-07-02 Oray v. Wyeth, 2007 WL 6598966 (hormone replacement)

2007-07-02 In re Prempro Products Liab. Lit., 2007 WL 4985867, 2007 WL 7128548

2007-07-02 Rowatt v. Wyeth, 2007 WL 3235116 (hormone replacement)

2007-08-29 In re Prempro PLL, 2007 WL 7128543 (hormone replacement)

2007-09-25 Bracey v. CB Fleet, 2007 WL 2946352 (bowel preparation solution)

2007-12-17 Burk v. CB Fleet, 2007 WL 7237111 (bowel preparation solution)

2008-02-04 Haslam v. Pfizer, 2008 WL 5186631 (Bextra)

2008-03-13 In re Guidant Corp. Securities Lit., 2008 WL 2442672 (defibrillator)

2008-04-07 Cullor v. Pfizer, 2008 WL 5270855 (Bextra)

2008-06-11 In re Panacryl Sutures PLL, 2008 WL 6623754

2008-08-23 In re Prempro PLL, 2008 WL 8065338 (hormone replacement)

2008-10-06 Thorn v. Novartis, 2008 WL 8748289 (Aredia-Zometa)

2008-10-06 Jenkins v. Novartis, 2008 WL 8748288 (Aredia-Zometa)

2008-10-06 Burt v. Novartis, 2008 WL 8745678 (Aredia-Zometa)

2008-10-06 Conklin v. Novartis, 2008 WL 8741433 (Aredia-Zometa)

2008-10-06 Zimmerman v. Novartis, 2008 WL 8724673 and 2008 WL 8736949

2008-10-06 Wallace v. Novartis, 2008 WL 8724672 (Aredia-Zometa)

2008-10-06 Joslin v. Novartis, 2008 WL 8718803 (Aredia-Zometa)

2008-10-06 Bartoli v. Novartis, 2008 WL 8714030 (Aredia-Zometa)

2008-10-06 In re Aredia-Zometa PLL, 2008 WL 8654880

2009-04-06 Monroe v. Zimmer, 2009 WL 6574753(pain pump drugs)

2009-04-06 Meharg v. I-Flow, 2009 WL 3708223 (pain pump)

2009-04-17 Hackett v. Breg, Inc., 2009 WL 8519428 (pain pump)

2009-04-17 Hamilton v. Breg, Inc., 2009 WL 82463242009-04-17 (pain pump)

2009-04-17 Pavelko v. Breg, Inc., 2009 WL 8188668 (pain pump)

2009-04-17 Slavenski v. Stryker, 2009 WL 7446876 (pain pump)

2009-04-17 Kilpatrick v. Breg, Inc., 2009 WL 1850783 (pain pump)

2009-04-30 Howard, v. Mylan, 2009 WL1849755 (pain pump)

2009-05-27 Hansen v. DJO, 2009 WL 7252708 (pain pump)

2009-05-27 McClellan v. I-Flow, 2009 WL 7065005 (pain pump)

2009-05-27 Arvidson v. DJO, 2009 WL 6897894 (pain pump)

2009-06-11 Koor v. Merck, 2009 WL 6621886 (Fosamax)

2009-07-14 Vitatoe v. Mylan, 2009 WL 5736495 (phenytoin)

2009-08-18 Bryant v. Bayer, 2009 WL 6496385 (Trasylol)

2009-08-18 In re: Trasylol PLL, 2009 WL 6464665, 2009 WL 8491195

2010-01-25 Vitatoe v. Mylan, 2010 WL 412411, 2010 WL 412412 (phenytoin)

2010-02-24 Vitatoe v. Mylan, 2010 WL 741220 (phenytoin)

2010-02-25 Schrock v. PLIVA, 2010 WL 2709951 (metoclopramide)

2010-05-12 Finnicum v. Wyeth, 2010 WL 3117665 (hormone replacement)

2010-08-14 Rodriguez v. Stryker, 2010 WL 5876755 (pain pump)

2010-08-19 Lopez v. I-Flow, 2010 WL 8354910 (pain pump)

2010-10-29 Adams v. Wyeth, 2010 WL 6559254 (hormone replacement)

2010-12-17 Meade v. Parsley, 2010 WL 5477862 (metoclopramide)

2011-02-11 In re Heparin PLL, 2011 WL 2444690

2011-03-01 Smith v. I-Flow, 2011 WL 4433941 (pain pump)

2011-03-07 Hamilton, v. Breg, Inc. 2011 WL 3420662 (pain pump)

2011-04-11 Keffer v. Wyeth, 2011 WL 4434106 (hormone replacement)

2011-04-15 Cross v. Wyeth, 2011 WL 3665586 (hormone replacement)

2011-05-27 Hines v. Wyeth, 2011 WL 2848382 (hormone replacement)

2011-05-31 Scharff v. Wyeth, 2011 WL 5040578 (hormone replacement)

2011-06-03 Michael v. Wyeth, 2011 WL 3472347 (hormone replacement)

2011-06-17 Michael v. Wyeth, 2011-WL 3472355 (hormone replacement)

2011-06-27 Kammerer, v. Wyeth, 2011 WL 5113480 (hormone replacement)

2011-07-02 Hines v. Wyeth, 2011 2848386 (hormone replacement)

2011-08-05 Stephenson v. Wyeth, 2011 WL 5040532 (hormone replacement)

2011-08-24 Washington v. Teva Parenteral medicines, 2011 WL 5118089

2011-08-26 Grizzle v. Novartis, 2011 WL 6149898 (Aredia-Zometa)

2011-08-26 Knopf v. Novartis, 2011 WL 6330679 (Aredia-Zometa)

2011-09-12 Eddings v. Wyeth, 2011 WL 6961236, 2011 WL 6961237 (hormone therapy)

2011-09-12 Loewen v. Wyeth, 2011 WL 6330713 (hormone therapy)

2011-09-12 Aderhold v. Wyeth, 2011 WL 5893201 (hormone therapy)

2011-09-16 Sauls v. Wyeth, 2011 WL 7112565 (hormone therapy)


We’re sure this is not complete. Know of others? Send them to us. We’ll put them on this unfortunately way too long list.