pharmaceutical mass tort

Mass Torts Litigation in California: Don’t Forget the Science

This past month, the California Supreme Court ruled on an important jurisdictional matter related to mass torts in Bristol-Myers Squibb Co. v. Superior Court (Anderson). The Court ruled that both local and out-of-state plaintiffs can file suit in California state courts related to product liability claims (and perhaps beyond). Specifically, they ruled that plaintiffs could sue Bristol-Myers Squibb Co. in state court over claims that its blood-thinner Plavix harmed or killed its users living outside of CA. It goes without saying that the decision represents a huge victory for the plaintiff's bar, and a large headache for the defense bar, which has preferred to consolidate cases in federal courts to reduce litigation costs and boost efficiency. While the court recognized that general jurisdiction did not apply in accordance with Daimler AG v. Bauman, there was sufficient cause to invoke specific jurisdiction. With this new decision, plaintiffs can bring product liability suits in what is perceived as plaintiff-friendly California courts.

Without a way to consolidate cases outside of plaintiff-friendly California, the defense bar will now have one less option in battling these claims. Importantly, and especially with product liability mass torts, the science will become more central to these claims as the parties will engage in a “battle of the experts” subject to the Kelly/Frye admissibility threshold (which some argue has become more Daubert-like after Sargon). Indeed, expert admissibility could become the next “dispositive” blow the defense will use to quash these claims. For plaintiffs and defendants alike, the general causation question will be even more critical to success. 

Although the exchange of expert reports is not mandatory in California, given the highly technical issues involved, large cases are likely to still produce them. Scientific expert witness reports and testimony are a major vehicle for counsel to show valid and reliable science to back a claim. These “novel” exposure theories will be ripe for challenge under Kelly/Frye by defendants. With such high stakes, it will make sense for both sides to ensure proper support from the mainstream science.

The issue is that even if the mainstream science is definitively for/against an alleged harm mechanism, the judge will be hard-pressed to ever find the mainstream perspective. Mired by adversarial bias and a lack of scientific expertise, judges are ill-equipped to make accurate admissibility rulings. After all, if we do not expect scientists to be experts in all fields from accounting to zoology, why do we expect judges to be universal experts?

As it turns out, there is a way for the mainstream scientific view to be credibly heard in court. Better, counsel can take it upon themselves to bring such a perspective to the court's attention (to their client's benefit). The answer requires independent, neutral, and blind peer review of an expert's opinions - what JuriLytics offers to litigators.

JuriLytics upends a party’s traditional approach to high-stakes admissibility issues. When a litigator wants to get an opposing expert excluded, a blind peer review of the opposing expert's report is arranged under work-product protection.  If the peer review is critical, work-product protection can be waived, resulting in a devastating basis for exclusion. Otherwise, no one will ever know and the motion to exclude can be filed without peer review support. 

In the inevitable mass tort claims to follow in CA, plaintiffs and defendants alike will place more resources in expert battles now that jurisdictional fights are diminished. Blind peer review can help plaintiffs bullet-proof their expert reports and anticipate lines of attack from the defense. Alternatively, for the defense, even weak expert opinions are difficult to challenge in the adversarial system. Blind peer review can reintroduce a dispassionate scientific analysis to the Frye hearing that the judge will appreciate and trust, rather than an advocative swearing contest, and increase the likelihood of ending the case before trial.

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