Saranac Hale Spencer, The Legal Intelligencer
Original Published in The Legal Intelligence
Hundreds of people who sued Pfizer alleging birth defects from its antidepressant Zoloft will be allowed to present another expert after the first one they offered to the court was tossed last summer.
U.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania, who is handling the multidistrict litigation case, decided to allow the plaintiffs a second try in offering a key expert to testify as to Zoloft’s causation of birth defects in babies born to mothers who took the drug while pregnant. Her decision came over the strong objections of Pfizer, which might have prevailed in barring the submission of a new expert in a less complex trial.
Referring to the lawyers on the plaintiffs’ steering committee, the PSC, Rufe said, “The court fully appreciates Pfizer’s argument that the PSC had every opportunity to select its expert witnesses and now seeks a ‘Daubert do-over’ after an unfavorable outcome. Had this issue arisen outside of the MDL context, this argument may have carried the day.”
The first Daubert hearing—which allows parties in a case to challenge expert testimony before the start of trial and is named for the 1993 U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals—lasted for about a week last April and focused mostly on Dr. Anick Bérard, who was the plaintiffs’ initial key expert.
In June, Rufe barred her testimony, finding several problems with Bérard’s research and proffered testimony.
Bérard’s research had linked Zoloft to a plethora of various birth defects, whereas the new expert, Nicholas Jewell, has proposed testimony on his research linking the use of Zoloft in pregnant women to only cardiac defects in their babies.
About 60 percent of the more than 600 cases that are currently part of the MDL involve claims of cardiac defects, Michael Fishbein estimated. Fishbein is a lawyer at Levin, Fishbein, Sedran & Berman and argued on behalf of the plaintiffs in front of Rufe in November.
Mark Cheffo of Quinn Emanuel Urquhart & Sullivan, who argued on behalf of Pfizer at that hearing, had characterized the plaintiffs’ motion to introduce a new expert as highly unusual, calling it a “Daubert do-over,” using language adapted from the U.S. Court of Appeals for the Seventh Circuit.
During the hearing, Rufe had fastened on the question of potential prejudice to Pfizer, saying to Cheffo, “I want to really know: How is Pfizer harmed and isn’t it just as harmful not to grant the right to have Dr. Jewell come in?”
In her opinion issued this week, Rufe settled her question by acknowledging that allowing the plaintiffs to introduce a new expert may slightly prejudice Pfizer, but not enough to justify barring him at this stage.
“Although there is some prejudice to Pfizer, in that it will be put to the additional expense required to litigate the admissibility of Dr. Jewell’s proposed testimony, this prejudice is not of a character sufficient to warrant denial of the motion,” the judge said.
“Had the PSC presented Dr. Jewell earlier, as Pfizer contends the PSC should have done, Pfizer would be in the same position with regard to the question of the admissibility of Dr. Jewell’s testimony,” Rufe said. “Although the PSC and Dr. Jewell have had the benefit of the court’s prior Daubert rulings in the formulation of the new expert report, that does not create prejudice to Pfizer. Either Dr. Jewell’s expert report and testimony will pass muster under Rule 702 or they will not.”
Rule 702 of the Federal Rules of Evidence governs admissability of expert testimony.
Beyond that, Rufe said, it is very likely that plaintiffs would present Jewell as an expert in other cases over Zoloft—either those currently pending in state courts or in future actions yet to be filed—so the company will have to address him at some point.
“The court weighs heavily the indisputable fact that the evidence is of critical importance to plaintiffs, as ‘the decision to admit or exclude scientific evidence and testimony … strongly affects the ability of a party to prevail,’” Rufe said, quoting from the Manual for Complex Litigation.
The judge emphasized that it is not to be considered an acceptable legal strategy to petition for a second expert after losing in a Daubert hearing, but, in this case the lawyers for the plaintiffs had acted in good faith.
“The court in no way suggests seeking to present an additional expert only after an unfavorable Daubert ruling is an appropriate litigation strategy,” she said.
“However, the court has no reason to conclude that the PSC has acted in bad faith or that its present predicament is the result of deliberate strategy instead of a miscalculation as to the persuasiveness of Dr. Bérard’s testimony,” Rufe said.
Pfizer issued a statement highlighting the fact that Rufe’s decision to allow the plaintiffs to present another expert doesn’t weigh on the merits of the case.
“Today’s ruling is procedural and not a determination on the merits of the claims, which the plaintiffs still must prove. The decision only enables the plaintiffs to put forward a new causation expert as to alleged cardiac injuries that the company will be permitted to challenge. Pfizer remains confident that there is no reliable scientific evidence demonstrating that Zoloft causes the injuries alleged by the plaintiffs,” according to the statement, which also noted that Zoloft is a U.S. Food and Drug Administration-approved drug for treating depression in pregnant women.
Fishbein said he had tried to emphasize during the argument in November that the nature of the case as an MDL, a complex litigation, changes its complexion and, he said, Rufe properly considered that. “This is the right result,” he said.
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