In its decision filed on July 17, 2015, the Court of Appeal of the State of California Second Appellate District Division Three (“Appellate Court”) held that the trial court erred in striking the plaintiffs’ medical expert’s testimony (the trial court required that the expert rule out all other possible causes for the plaintiff’s bladder cancer, other than the defendants’ diabetes drug, Actos, even where there was no substantial evidence that other such causes might be relevant) and that the trial court exceeded the proper boundaries of its gatekeeping function in determining the admissibility of the complex scientific testimony.
The plaintiffs, husband and wife, had sued Takeda Pharmaceuticals America, Inc., Takeda Pharmaceuticals U.S.A., Inc. (formerly Takeda Pharmaceuticals North America, Inc.), and Takeda Pharmaceutical Company Limited (collectively, “Takeda”), alleging that Takeda’s diabetes drug, Actos, caused the husband to develop bladder cancer. In early 2013, a California jury found Takeda liable on causes of action for strict liability failure to warn, negligent failure to warn, and loss of consortium, finding that Takeda failed to adequately warn the husband’s treating physician of the risk of bladder cancer, and that this failure to warn was a substantial factor in causing the husband’s harm. The jury awarded damages to the husband in the amount of $5 million and damages to the wife in the amount of $1.5 million for loss of consortium.
At trial, the trial court permitted the plaintiffs’ expert to testify that, based on his performance of a differential diagnosis, he believed Actos was a substantial factor in causing the husband’s bladder cancer (“[A]fter review of all the potentials, differential diagnosis, ruling in, ruling out, carefully evaluating the occupational, environmental, and smoking, that it’s my opinion that the most substantial causative factor for [the husband] was his length of Actos and cumulative dose of Actos”), but later the court ordered the expert’s testimony stricken, concluding that the testimony was speculative and lacking in foundation and therefore granted Takeda’s motion for judgment notwithstanding the verdict. The trial court also granted Takeda’s alternative motion for new trial on the grounds that without the testimony of plaintiffs’ expert, the evidence was insufficient to support the verdict. The plaintiffs appealed.
The Appellate Court held that the trial court erred in striking the plaintiffs’ expert’s testimony – by requiring that the expert rule out all other possible causes for the husband’s bladder cancer, even where there was no substantial evidence that other such causes might be relevant, the trial court exceeded the proper boundaries of its gatekeeping function in determining the admissibility of the complex scientific testimony. The Appellate Court also held that the evidence supported giving a jury instruction on multiple causation.
The Appellate Court explained: “In the instant case, the trial court’s reasoning concerning the flaws in Dr. Smith’s differential diagnosis held Cooper’s expert to a more rigid standard than is required to prove causation in civil cases. Under the applicable substantial factor test, it is not necessary for a plaintiff to establish the negligence of the defendant as the proximate cause of injury with absolute certainty so as to exclude every other possible cause of a plaintiff’s illness, even if the expert’s opinion was reached by performance of a differential diagnosis. The jury here was required to determine whether there was any substantial evidence that other known risk factors for bladder cancer acted on plaintiff and provided an alternative explanation for his disease. But only if the existence of an alternative explanation, supported by substantial evidence and not mere speculation, as a matter of law defeated the explanation proffered by Cooper (i.e., Actos®) would JNOV be appropriate … because California has rejected the notion that a plaintiff must definitively “exclude all ‘possibilities’” other than the defendant’s conduct or product as the cause of plaintiff’s harm, clearly an expert, in reaching a specific causation opinion, need not exclude all other possibilities before he or she can express an opinion that defendant’s conduct or product caused the plaintiff’s harm … [t]o be admissible, an expert physician’s testimony, even in the context of the physician’s performance of a differential diagnosis, need not rule out the applicability of all other possible causes of disease where there is no substantial evidence that other known risk factors for bladder cancer acted on Cooper and provided an alternative explanation for his disease.”
The Appellate Court remanded the matter to the trial court with directions to enter a new judgment based on the jury’s verdict (“We find that the trial court erred in excluding Dr. Smith’s opinion testimony regarding specific causation as being clearly speculative, unreliable, lacking in intellectual rigor, and based only on studies that did not actually support his reasoning. Dr. Smith is one of the foremost experts in the world on bladder cancer, and provided helpful and appropriate expert testimony to assist the jury in deciding the complicated issue of whether Cooper’s cancer was caused by Actos®”).
Source Cooper v. Takeda Pharmaceuticals America CA2/3
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