Federal courts in three separate pharmaceutical products liability actions recently excluded plaintiffs’ expert testimony concerning causation of damages.
In Ervin v. Johnson & Johnson, Inc., No. 06-2820, 2007 WL 1966796 (7th Cir. Jul. 9, 2007), the Seventh Circuit upheld the exclusion of expert testimony in an action involving Remicade, a drug used to treat Crohn’s disease. The Seventh Circuit affirmed the practice of using “differential diagnosis” techniques in support of an expert opinion. However, the court also held, among other things, that reliance by the plaintiff’s expert on case reports to establish causation was insufficient where the reports did little more than suggest a mere temporal relationship between Remicade use and the type of injury suffered by the plaintiff. A copy of the Ervin opinion can be found here.
That same day, in the multidistrict litigation regarding Bayer’s cholesterol drug Baycol, a federal district court in Minnesota excluded testimony of 13 out of 14 experts designated by plaintiffs on causation issues. In re: Baycol Products Litigation, No. MDL-1431, 2007 WL 2004432 (D. Minn. Jul. 9, 2007). In reaching its decision, the court held, among other things, that the analyses of certain experts had not been tested, peer-reviewed or published, and was therefore not reliable. A copy of the Baycol opinion can be found here. Plaintiffs appealed the trial court’s decision to the United States Court of Appeals for the Eighth Circuit on August 8, 2007.
Finally, a few days later, the United States District Court for the Southern District of New York excluded the opinion testimony of a plaintiff’s expert regarding the alleged link between the plaintiff’s ephedra use and a subsequent brain hemorrhage. In re Ephedra Products Liability Litigation, No. 04-MD-1598-JSR, 2007 WL 2020036 (S.D.N.Y. Jul. 13, 2007). The court held that, because the expert neurologist based his opinion on an assumed daily dosage three times higher than the plaintiff’s actual dosage as shown by evidence, the expert’s report was not a reliable case-specific opinion as to causation. A copy of the Ephedra opinion can be found here.
