Thursday, April 18, 2013
A Blond Not Having More Fun in Trasylol Litigation
This is our second post in as many months about Dr. Blond and the Trasylol MDL, and he’s not faring any better in April than he did in March. Of course, with a name like Blond, we thought of all the “blondisms” in our culture. We opted to take the high road and go with “blondes have more fun.” (a sentiment with which both women who write for this blog strenuously disagree). But Dr. Blond certainly has not been having any fun of late.
Like so many of plaintiff’s experts, he purported to use differential diagnosis as his methodology for arriving at his conclusion that Trasylol was a substantial contributing factor in causing plaintiff’s injuries. Now, we told you last month about our feelings on differential diagnosis, and the truth remains that it has been adopted by many courts as an acceptable methodology. And, while we may not be as embracing as the courts have been, we do welcome decisions such as Javian v. Bayer Corp. (In re: Trasylol Products Liability Litigation, MDL 1928), 2013 U.S. Dist. LEXIS 49139 (S.D. Fla. Apr. 2, 2013) which require the differential diagnosis be properly performed. Id. at *49-50.
The opinion contains a thorough discussion of what a properly performed differential diagnosis should look like – and it’s not what was done here. It is essentially a two-step process and both steps require “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at *53. Step one is the “rule in” process: “the expert must compile a comprehensive list of theories that could explain the patient's symptoms.” Id. at *51. Step two of a properly performed differential diagnosis is the “rule out” process: the expert “must at least consider other factors that could have been the sole cause of the plaintiff's injury.. . . [A] differential diagnosis that fails to take serious account of other potential causes may be so lacking that it cannot provide a reliable basis for an opinion on causation.” (citations and quotation marks omitted). Id. at *52.
Plaintiff’s expert report failed on both counts. Dr. Blond conceded that plaintiff’s injury was most likely “multifactorial in nature;” he identified numerous “contributing factors” (such as “cardiopulmonary bypass, congestive heart failure, hypotension, pressor agents, . . . acute kidney injury, chronic inflammation, and possibly his antirejection drugs”), including the use of Trasylol; and then concluded that Trasylol “tipped the scale” resulting in plaintiff’s injury. Id. at *47-48. First, the court noted several other risk factors “which either alone or in combination could explain [plaintiff’s] alleged renal injury.” Id. at *54. Factors that the expert didn’t “rule in.” Moving to step-two, the court found that “[e]ven to those factors which Dr. Blond did rule in, he either gives them short shrift at the rule-out stage, or dismisses them without discussion.” Id.
The court found that the only explanation Dr. Blond offered “for why he concluded that [plaintiff’s] various risk factors other than exposure to Trasylol were not the sole cause of his injuries,” id. at *57, was temporality -- and that’s not good enough. The court stated that not only should temporality be “entitled to little weight in determining causation” but “[t]emporal proximity is especially unreliable in circumstances such as this where a patient’s conditions independent of exposure to the drug could have been the sole cause of the plaintiff's injury, and the expert fails to explain the relative contribution of the drug to the injury.” Id. at *58-59.
The bottom line is that the plaintiff had numerous other risk factors for renal injury and failed to proffer an expert opinion that reliably explained how ingestion of Trasylol was a substantial factor in causing that injury. Without such evidence, defendant was entitled to summary judgment on all claims. Plaintiff’s expert’s failure to properly perform a differential diagnosis is ultimately what led to his opinion being excluded, but he made several other missteps along the way that didn’t garner any favor with the court. In fact, the court made a point of noting that the report “contained many spelling and grammatical errors, id. at *47 n.12, as well as several material substantive errors (such as misstating that plaintiff had received Trasylol during a prior surgery when he had not). Id. at *60 n.16. Leading the court to note: “These type of material errors do not reflect the level of intellectual rigor contemplated by Daubert.” Id.
So, while we posted today to primarily inform you of another Daubert-based victory, we also offer the judge’s words as a reminder that diligence pays off. While we always believe our experts have the better argument, it doesn’t hurt when our experts come to the table more prepared, more knowledgeable, and above all else – not sloppy. Being neat, organized, and well-informed alone are not enough to carry the day. But slip-ups, omissions, and mistakes -- well, you see where they lead. That’s not a road we want our experts traveling down.