Fosamax is Merck’s blockbuster drug used to treat and prevent osteoporosis. Many lawsuits have been filed and are the subject of ongoing litigation, but Secrest v. Merck is a bellwether suit against the drug company by a patient who developed osteonecrosis of the jaw.
A ruling on the defense’s causation expert recently came down. Merck sought to bring in opinion that the plaintiff’s former dentist’s course of treatment may have been the cause of the injury, i.e. to provide an alternative theory to plaintiff’s contention that Fosamax caused her injury. The opinion testimony was to be based on admissions made by the plaintiff’s former dentist before a state disciplinary panel. The court ruled that the dentist’s statements were fair game for defense’s expert to rely upon to form an opinion. However, the court tempered this by limiting Merck from referring to the disciplinary nature of the proceeding so as to avoid prejudicing the fact-finder.
It is not enough to simply pick an expert with an advanced degree and expect to carry the day. Good expert testimony will never make it to a jury unless the expert is able to provide a report that is comprehensive and properly designed to stand up to the other side’s challenges. This was recently demonstrated in a pharmaceutical products liability case against Wyeth, Inc. in West Virginia.
The defense moved to exclude one of plaintiff’s experts asserting the testimony did not meet the governing Daubert standard that expert testimony be reliable and helpful to a jury. The judge’s analysis was an in-depth check as to whether the opinions were indeed supported by facts. Despite submitting a two-hundred plus page report, the judge determined that the facts submitted in the report, though factually relevant to the case, did not supply a basis from which the conclusions could be drawn. Ruling in defense’s favor, the expert was excluded, severely damaging plaintiff’s case.
Plaintiffs’ expert witnesses are bound in most jurisdictions to provide opinions of causation that are based on a reasonable certainty. Many use the ‘reasonable degree of medical probability’ standard to require plaintiffs’ experts to provide testimony as to causation only when the expert takes a firm stance that the product in question was the cause.
The bar is not so high for defendants’ experts. A recent Nevada Supreme Court case rejected a plaintiff’s arguments that defendants’ experts should only be able to testify as to causation where there is a reasonable degree of medical probability.
At first blush, this rule seems to treat plaintiffs and defendants unequally. However, the rationale for allowing defendants’ experts more latitude in causation testimony reflects the system of assigning burdens. It is the plaintiff’s burden to prove and persuade the trier of fact of the causation element. The defendant’s testimony is offered to weaken the plaintiff’s case. Even if it provides an alternate explanation, the alternate explanation of causation, the defense never seeks to prove an alternate explanation of causation, but merely to prove the plaintiff’s explanation wrong.