Plaintiffs in the national Zoloft MDL won a battle over expert testimony last month when Judge Rufe granted their motion for leave to identify and present Dr. Nicholas Jewell as their new general causation expert. The national Zoloft MDL (multidistrict litigation) in the Unites States District Court for the Eastern District of Pennsylvania includes over 600 cases claiming Zoloft use during pregnancy causes birth defects.
Last year, Plaintiffs’ original general causation expert, Dr. Anick Berard, was excluded by Judge Rufe after Daubert hearings. Plaintiffs appealed Dr. Berard’s exclusion and requested leave to introduce another expert. Defendant Pfizer, manufacturer of the SSRI antidepressant Zoloft, vehemently objected. In her recent Opinion, Judge Rufe found that Pfizer would not be harmed by the introduction of the new expert. She indicated that Pfizer could be prejudiced slightly, but would be in the same position as if the new expert had been presented earlier. She also found that there was no evidence that the Plaintiffs acted in bad faith.
Plaintiffs new expert is Dr. Nicholas Jewell. He holds a Ph.D. from the University of Edinburgh and is author of the textbook Statistics of Epidemiology. Dr. Jewell has been a Professor at the University of California, Berkeley in the School of Public Health, Department of Statistics, Division of Biostatistics for 33 years. Dr. Jewell was able to review existing studies that were in evidence at the initial Daubert hearing and the results of studies that were not available at the time Dr. Berard authored her report. It is likely that his proposed testimony will go only to the causation of heart defects for the unborn children whose mothers used Zoloft during pregnancy. At present, 60% of the more than 600 Zoloft lawsuits in the MDL deal with heart defects and cardiac problems.
Judge Rufe had considerable discretion in ruling on Plaintiffs’ Motion to present a new expert. Federal Rules provide that MDL courts must be given wide latitude due to the complexities of the litigation. There were five factors reviewed by Judge Rufe in determining whether to grant Plaintiffs’ Motion. The Judge first looked at whether the Defendant, Pfizer, would be prejudiced or surprised. The Judge indicated in her ruling that it was very likely that Dr. Jewell would testify in cases outside of the MDL and Pzifer would have to prepare for those cases and likely already was preparing to defend against Jewell’s testimony. The second factor dealt with the ability of Pfizer to cure the prejudice. The ruling stated that Dr. Jewell still had to be approved through Daubert hearings and again Pfizer likely already was preparing for this expert. Third, the judge looked at whether permitting the new expert would cause a disruption of the orderly and efficient trial. The Judge reasoned that even though new Daubert hearings will cause a delay, this MDL has moved along expeditiously through the diligence and cooperation of counsel. There also had to be a determination as to whether Plaintiffs were acting in bad faith. The Opinion states that there was no evidence of attorneys for Plaintiffs acting in bad faith. Finally, the Court had to look at the importance of the evidence. Judge Rufe found that the importance of the potential testimony of Dr. Jewell to the Plaintiffs outweighed Pfizer’s objections.
The national Zoloft MDL cases continue to move forward. Dates for new Daubert hearings have not yet been set.