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Fourth Circuit agrees with Amicus Brief authored by Hollingsworth LLP, affirming exclusion of causation testimony and entry of summary judgment in entire MDL.

On June 12, 2018, the Fourth Circuit unanimously affirmed a decision excluding expert causation testimony and granting summary judgment in favor of Pfizer on claims that its drug Lipitor can cause diabetes.  In re: Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Prods. Liab. Litig., No. 17-1140 (4th Cir. June 12, 2018).  The appellate court agreed with the amicus brief Hollingsworth LLP filed on behalf of the American Tort Reform Association (“ATRA”) and the Pharmaceutical Research and Manufacturers of America (“PhRMA”) that the testimony offered three of plaintiffs’ experts failed to meet the strictures of Daubert and Fed. R. Evid. 702.  Without any expert testimony on causation, the district court properly granted summary regarding all the plaintiffs in the MDL.

The opinions of the three experts suffered from various failings.  First, the district court concluded that plaintiffs’ statistical expert, Dr. Nicholas Jewel, was unqualified to opine on diabetes and selectively used statistics to draw his conclusions, i.e., he engaged in cherry picking.  The Fourth Circuit held that the lower court “properly discharged its gatekeeping duty” in excluding this testimony.  Id. at 18.  The appellate court also affirmed the exclusion of plaintiffs’ general causation expert, Dr. Sonal Singh, as to doses of Lipitor less than 80 mg because of the lack of a statistically significant association between the drug and diabetes at those doses.  The appellate court agreed that “dose matters” and that Dr. Singh improperly sought to rely on the Bradford Hill criteria without adequate evidence of an association.  Finally, the court affirmed the exclusion of plaintiffs’ specific causation expert, noting that simply calling one’s methodology a differential diagnosis does not make it admissible and that her conclusion boiled down to the fact that the plaintiff developed diabetes after taking Lipitor, but, as the court explained, “Daubert requires more.”  Id. at 38.  Although plaintiffs claimed they could survive summary judgment without any expert testimony, the Fourth Circuit disagreed.

ATRA and PhRMA were represented by Hollingsworth LLP partners Eric Lasker, Kirby Griffis, and Greg Chernack.

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