A $27 million mistake? Consider this expert witness’s testimony, preparation

by • September 1, 2008 • UncategorizedComments Off on A $27 million mistake? Consider this expert witness’s testimony, preparation1442

• The Gist: In case you were wondering if preparation and attentiveness to civil procedure makes a difference, look no further.

© 2008 The Medical-Legal News
By Dan Clifford, publisher

OPINION

Making the rounds on the internet recently was the fate of a hormone replacement case where a punitive damage award of $27 million against pharmaceutical company Wyeth was overturned after the defense moved for a judgment notwithstand-ing the verdict. What was not apparent at first glance was why the jury verdict was set aside.
If you want to know what can go wrong as an expert witness, or if you don’t know what the case name Daubert means, read on. In short, the court was wholly dissatisfied with the expert witness’s testimony on punitive damages.
In In re Prempro Products Liability Litigation, WL 2688576 (E.D. Ark. 2008), Judge Wilson rejected a dream verdict for plaintiffs based on procedural problems with expert testimony. Some highlights from the court order:
“I cannot accept Plaintiff’s position that [the expert witness] ‘didn’t just read a document,’ but ‘tie[d] pieces of the puzzle together.’ To the contrary, [witness] usually read selected portions of documents in evidence, without further comment. I did not anticipate that documents would be admitted via [witness] so that she could simply engage in recitation of those exhibits; jurors are capable of reading documents. Ironically, on cross-examination, [witness], on at least one occasion, took the position that the document ‘speaks for itself.’”
“If an expert does nothing more than read exhibits, is there really any point in her testifying as an expert? As was seen during the punitive damages stage, the use of the ‘regulatory expert’ to deal with large volumes of documents is subject to abuse. The expert did not explain the documents, provide summaries, or tie them in to her proposed regulatory testimony. [Witness] did not provide analysis, opinion or expertise.”
“Federal Rule of Evidence 702 permits expert testimony to assist a jury in understanding technical or scientific evidence. [Witness] was designated to testify on regulations and the standards and practice in the industry based on her experience. Yet, [witness’s] punitive damages stage testimony was hardly expert in nature. The question and answer sessions merely paid lip service to [witness] testifying from an expert standpoint.”
Ouch!
“[Witness’s] punitive damages stage testimony reveals ‘how vital it is that judges not be deceived by the assertions of experts who offer credentials rather than analysis.’ ‘An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.’ Expert opinion must be just that — expert opinion drawn from a special expertise. Opinion given through the mouth of an expert does not necessarily make it expert opinion.”
“During the punitive damages stage of the trial, [witness’s] testimony tracked Plaintiff’s legal arguments, and there was very little significant analysis. On numerous occasions, [witness] declared ‘this isn’t fair and balanced,’ but she provided no explanation. [Witness], no doubt has special knowledge and skill regarding FDA operations and regulations, but she did not apply this knowledge and skill to her testimony.”
“When [witness] actually elaborated on documents, her testimony did ‘no more than counsel for plaintiff [did] in argument, i.e., propound a particular interpretation of [defendant]’s conduct.’ Having an expert witness simply summarize a document (which is just as easily summarized by a jury) with a tilt favoring a litigant, without more, does not amount to expert testimony. Because [witness’s] testimony — or reading — invaded areas that required no expert assistance, it was inappropriate ‘expert’ testimony.”
“Since [witness] testified as to the bottom line without any explanation, failed to provide expert analysis, testified beyond limitations established by pretrial orders, testified in areas beyond her expertise, and invaded areas that required no expert testimony, most of [witness’s] punitive damages testimony should have been excluded.”
Double ouch!
The expert witness had been qualified under Daubert as a regulatory expert because of her work at the FDA. On several occasions in the order the judge expanded on the improper witness procedure, and noted her causative testimony and conclusions were lacking for various reasons.
Once Judge Wilson struck the witness’s testimony, the punitive argument was gutted. In addition to being unhappy with the witness’s testimony, the judge also concluded that Wyeth had not shown malice by not doing further tests for a link between cancer and its hormone replacement therapy drugs. Thus, without malice or anything to back it up, punitive damages were unwarranted.
Wilson, in overruling the lower court he had presided over, observed: “Since I have a deep and abiding faith in randomly selected juries, I am always reluctant to set aside a jury finding. This jury was very attentive throughout. I admitted much evidence that should not have been admitted. The fault is mine alone.” 

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