A Pennsylvania state court ruling that two causation experts were excluded in a Zoloft birth defect lawsuit was proper, according to a Philadelphia judge.
The judge based his decision in part upon the fact that one of the experts had also been prevented from testifying in a federal Zoloft multidistrict litigation.
Philadelphia Court of Common Pleas Judge Mark I. Bernstein opinion was a response to the plaintiffs’ appeal in the case of Porter v. SmithKline Beecham. The judge wrote that the plaintiffs’ experts, Dr. Michael Freeman and Dr. Robert Cabrera, came to conclusions that were based on flawed methodology, and that Cabrera’s testimony had already been excluded from Zoloft MDL in federal court in the Eastern District of Pennsylvania.
The plaintiffs in that case are without an expert because its expert, Dr. Nicholas Jewell, was barred from testifying, after Judge Cynthia Rufe ruled.
A summary judgment motion is still pending before Judge Rufe.
Freeman described himself as a forensic epidemiologist, meaning applying epidemiology in the legal setting for evaluating causation, Bernstein wrote explaining the validity of excluding both expert’s testimony. Freeman testified that the application of forensic epidemiology depended on which legal jurisdiction he was in.
Bernstein wrote: “Although Dr. Freeman believes the appropriate standard for a scientific conclusion in the field of ‘forensic’ epidemiology depends on ‘jurisdiction,’ only a legal standard depends on jurisdiction, and proper scientific methodology and conclusions do not vary whether testified to on the Pennsylvania side or the New Jersey side of the Benjamin Franklin Bridge.”
Bernstein contended that lumping different birth defects together in
relation to causation cannot be done, instead it violates standard
epidemiological analysis used for showing an association between a drug and a reaction it causes.
Apparently this was done by Freeman when using omphalocele birth defects. “Dr. Freeman improperly lumps the omphalocele birth defect with digestive system defects and assumes medical literature concerning digestive system defects supports his opinion,” Bernstein said. “However, omphalocele is not a digestive system birth defect.”
Bernstein said other factors such as poor nutrition, drug use, age and smoking also must be considered when analyzing birth defects. The judge explained that Freeman relied on forensic epidemiology, and that Cabrera used the same flawed methodology.