Monday, December 17, 2012

P2K and Dr. Parisian

It probably won’t surprise you to know that Bexis keeps a scorecard of the number of posts we’ve done over the years.  Bexis likes scorecards. This post will be a big one.  It’s the 2000th in Drug and Device Law Blog history.  It’s taken a lot of law – and a lot of other silly stuff – to get us here.  We’ve rehashed good preemption decisions and blasted bad ones, explained fraudulent joinder and complained that plaintiffs get away with it way too much, attached in limine decisions and explained what’s right and wrong with them, dissected Daubert decisions and pointed out the good experts, the bad ones and, even worse, Dr. Parisian.  We’ve gone round and round on the learned intermediary doctrine, heeding presumptions, Linsanity (which Bexis later described as Temporary Linsanity), good movies, bad movies, doomed personal injury class actions, and good barbecue.

That’s all taken us to here: post 2000.  And as P2K approached, we at the blog worried greatly about what might happen when we click the “publish” button and the scorecard flips over to 2000.  Would all the posts disappear?  Maybe just the really good ones, like the cheat sheets, the scorecards or heaven forbid the Parisian transcript list?  Would Mensing suddenly vanish, never actually having happened?  Or Buckman?  Or Caronia?  Would we lose Yeary’s invaluable posts on fraudulent joinder?  Would we unlearn what we’ve learned about McConnell’s admiration of Diane Keaton?  Would Bexis become a plaintiff’s lawyer?
 
All too terrifying to consider.  So we decided to just come out swinging and discuss one of our favorite topics: Dr. Parisian.  In some sense it’s appropriate.  Dr. Parisian’s seemingly unending expert witness career has provided constant material for this blog.  Plus, like the blog, we bet that Dr. Parisian is likely approaching her 2000th expert report. 

The recent decision on Dr. Parisian in the Aredia litigation – Jenkins v. Novartis Pharmaceuticals Corp., 2012 U.S. Dist. LEXIS 176697 (E.D. Tn. December 13, 2012) – is a good one.  Like many courts before it, the Eastern District of Tennessee decided that Dr. Parisian can’t talk about a lot of the stuff that she usually puts in her expert reports.  We’ll focus on two aspects of the opinion: Dr. Parisian’s proposed testimony about Novartis’s knowledge; and her proposed testimony about causation.  The court excluded both. 

Dr. Parisian almost always tries to tell juries what the defendant company knew.  She will usually go further and try to tell juries what the company intended, but the plaintiffs gave up on that opinion here even before the court had the chance to exclude it.  Id. at *15 (“the parties have agreed that Dr. Parisian cannot testify to . . . . the intent and/or motives of Novartis”).  But the plaintiffs still claimed that she was a “company knowledge” expert.  Of course, she isn’t.  She has no particular expertise that would allow her to know what Novartis, or really any company other than maybe her own, knows.  She certainly has no more expertise than a jury.  And the court said so:

She may not, however, decide what Novartis knew and did not know at various times during the relevant period. Novartis's knowledge is an issue for the jury. Dr. Parisian has no specialized knowledge or scientific/medical expertise that provides her with a superior ability to judge Novartis's knowledge, and there is no basis for finding that the jury needs her assistance in evaluating Novartis's knowledge.

Id. at *16.

What’s even more heartening is that the court saw that Dr. Parisian, who does not appear to have practiced medicine for decades, did not have the expertise to opine on causation.  The majority of her career has been spent addressing regulations, mostly while in litigation, not while practicing medicine.  And even the practical medical experience that she had years ago didn’t involve the type of medical issues involved in the Aredia litigation:

The Court finds that Dr. Parisian is not qualified to testify as to the mechanism by which Zometa and Aredia, or bisphosphonates generally, cause ONJ. While Dr. Parisian holds a doctor of medicine, she testified that the vast majority of her career has been spent in the field of medical regulation rather than the practice of even general medicine. Moreover, the Plaintiff has not presented any evidence indicating that Dr. Parisian has any special experience treating bisphosphonate-related disorders, jaw conditions, or bone conditions. Further, there is no evidence in the record to indicate that Dr. Parisian has either treated ONJ or studied ONJ in an academic setting.

Id. at *17.

Now, the court did allow Dr. Parisian to testify about certain FDA requirements, including the labeling process and requirements.  Id. at *16.  And, while we’d challenge even that expertise given that Dr. Parisian’s FDA experience was two decades ago, for barely 3 years, and on the device not the drug side, we’re happy with this decision.  Much of the bad stuff was ruled out by the court or conceded away by plaintiffs.  That’s a victory.   

Well, that’s all we have to say today.  So this is it.  We’re ready to click the “publish” button.  We hope everything’s still intact when we’re done and that Bexis is still on our side.  Alright.  Hold your breath.  Here goes . . . . . .

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