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“The BEST Defense … And Then There Are Wins Without Trial,” The National Law Journal

news | March 19, 2001

March 19, 2001
by Emily Heller

For litigators who defend, winning summary judgment is about as good as it gets. To many, it’s even more satisfying than a favorable jury verdict because it avoids the expense and uncertainty of a trial.

Still, though summary judgments are cause for celebration — particularly because they are seldom reversed on appeal — they often require as much work as taking a case to a jury, defenders say.

In seeking summary judgment, defenders argue that there is a lack of material facts at issue. Plaintiffs contend that there are disputed facts aplenty that a jury should resolve.

Take one of the more interesting summary judgment victories last year. It was featured in a hard-fought products liability case with millions at stake. In the case, a drug manufacturer successfully excluded the plaintiffs’ only causation evidence. Novartis Pharmaceuticals Corp. convinced the judge that the testimony of two experts wasn’t sufficiently reliable to allow them to testify before a jury.

Lawyers for Novartis challenged the admissibility of the testimony by citing the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  Under that decision, judges may screen scientific evidence by examining, among other things, what sources an expert uses for his or her theory.

But short-circuiting a tort case by using Daubert is not easy, says lead defense lawyer Joe G. Hollingsworth, a partner at the Washington, D.C., defense firm of Hollingsworth LLP.  Generally, he says, “there are easier summary judgment routes,” such as statute-of-limitations challenges.

“The key is the control of the other side’s expert witnesses,” he says.  “We totally immersed ourselves in the science.”

The facts:  After having a baby in 1993, plaintiff Tina Glastetter took Parlodel to prevent lactation.  Thereafter, she had a brain hemorrhage requiring surgery.  In a 1997 negligence suit in Missouri federal court, she alleged that Parlodel had caused her injury and sought at least $12.5 million in damages.

Her experts were prepared to testify at trial that they believed Parlodel constricted blood vessels in women after childbirth, although the drug has the opposite effect in other patients, says lead plaintiff’s trial lawyer Denise M. Dunleavy of New York’s Weitz & Luxenberg.

The plaintiff offered two medical experts to testify that Parlodel causes injury, bolstering the claim with a variety of evidence, including a Food and Drug Administration report finding that Parlodel carried a potential risk of stroke.

The plaintiff offered anecdotal reports of other women who developed similar problems after taking Parlodel following childbirth; Sandoz internal documents indicating that officials were beginning to believe Parlodel was causing problems; and the FDA’s conclusion that Parlodel was unsafe for women after childbirth because of reports of seizures and other problems.

The FDA approved Parlodel in 1980 for suppressing lactation, two years after its introduction for other uses.  The manufacturer withdrew the drug in 1994 for use by women after childbirth.

The defense’s strategy was to attack the plaintiff’s causation evidence, says Hollingsworth.  It worked.

The defenders won summary judgment by convincing the judge that the FDA report and all the other plaintiffs’ evidence was “without scientific reliability.”  Therefore, they said, it could not form the basis for the experts’ causation opinion, says Hollingsworth.

In an August summary judgment opinion, now on appeal, the judge said the plaintiff’s experts didn’t have a basis for their views because there was no clear evidence, such as an epidemiological study, showing that the drug causes injury.  Glastetter v. Novartis Pharmaceuticals Corp., No. 1:97CV00131 (E.D. Mo.).

In rejecting the plaintiff’s anecdotal evidence, the judge noted that it merely shows a time association between ingestion of the drug and the injuries. Unlike epidemiological studies, which determine whether a statistically significant positive association exists, anecdotal reports may be infected with chance associations, he wrote.

The opinion is the fourth federal district court decision since 1999 to shoot down plaintiffs’ experts in Parlodel cases under Daubert — all wins for defender Hollingsworth.

Judges in other Parlodel liability suits have allowed plaintiffs’ experts to testify.  One trial has just begun in Birmingham, Ala.  In 1994, a Kentucky jury awarded a Parlodel plaintiff more than $2 million.

Hollingsworth would not specify how many Parlodel cases he is handling, saying only that they are “numerous.”  He has handled a dozen Daubert hearings since 1997, and his firm has handled 20.

The case is a good example of how Daubert can be applied to the extreme, says Dunleavy.

Getting a reversal will be difficult because the high court recently held that appeals courts may reverse Daubert rulings only if the trial judge abused discretion.

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