United States: Southern District of Illinois Excludes Plaintiff's Experts in OTC NSAID Kidney Injury Case

Next week, we are traveling to Budapest, with a side trip to Vienna. We are visiting the Drug and Device Law Rock Climber, who is spending this semester abroad studying computer science (in Budapest) and climbing rocks (in Majorca, etc.).  Aside from the beloved visage of our only child, we are most excited about seeing the Lipizzaner stallions perform at the Spanish Riding School in Vienna.  When we were eleven years old, we read "My Dancing White Horses" by Colonel Alois Podhajsky, director of the School.  This wonderful autobiography recounts Podhajsky's extraordinary efforts to save the Lipizzaners during World War II.  It was (and is) a compelling read, and it led us to "My Horses, My Teachers," Podhajsky's homage to his stunning equine mentors.  Since that time, the Lipizzaners have occupied a permanent spot atop our bucket list, and we are beyond thrilled to hold tickets to one of their performances.  Beyond that, we had to start from scratch to plan this trip.  We Googled and researched, and our takeaway was how much we didn't know about Budapest's history and culture.

Perhaps the plaintiff's would-be experts in today's case should have engaged in similar assessments of their knowledge bases. Regular readers of this blog are familiar with our ongoing rant against "experts" who aren't, and with the cases that nonetheless ride on the "experts'' unqualified shoulders.  In this case, the Court agreed with us.

In Hale v. Bayer Corporation, 2017 WL 1425944 (S.D. Ill. Apr. 20, 2017), the plaintiff alleged that the defendant's product, an over-the-counter ("OTC") non-steroidal anti-inflammatory drug ("NSAID") caused him to develop a permanent kidney injury known as "Minimal Change Disease" ("MCD"). He asserted the usual product liability claims sounding in strict liability and negligence, and identified three experts.  The defendant moved to exclude all three – the plaintiff's primary care physician, the plaintiff's treating nephrologist, and a pharmacist — under Daubert, arguing that none had rendered an opinion that was "properly founded in or based upon sufficiently reliable medical, scientific, or other specialized knowledge." Hale, 2017 WL 1425944 at *1 (citation omitted).

Plaintiff's Primary Care Physician

The plaintiff's primary care physician testified that he referred all kidney patients to a nephrologist and that he had never studied whether NSAIDs may cause particular kidney injuries. Naturally, the defendants moved to exclude him because he was unqualified to offer causation opinions and because he relied on the plaintiff's treating nephrologist's opinions and diagnosis as the basis of his opinions.  In their response, the plaintiffs stated that they would not offer the expert to testify about causation,  but only to discuss his care and treatment of the plaintiff.  The Court agreed that the doctor would be permitted to testify about his treatment of the plaintiff but would not be permitted to offer causation opinions.

Plaintiff's Treating Nephrologist

Next, the plaintiff offered his treating nephrologist, who diagnosed the plaintiff with NSAID-induced MCD.  The defendants argued that the nephrologist's opinions were "insufficiently supported by medical science" and that he was "not able to definitively establish by any medical or laboratory test that the plaintiff's consumption [of the NSAID] was the cause of his MCD." Id. at *3.  They also argued that the nephrologist's purported "differential diagnosis" was based on insufficient scientific data.  The plaintiffs argued that the doctor had 30 years of experience as a nephrologist, that he managed the plaintiff's case, and that he relied on scientific literature in reaching his causation conclusion.

The court cited case law confirming that, while a properly-performed differential diagnosis can constitute a reliable methodology, such diagnosis must go "beyond the mere existence of a temporal relationship" between the plaintiff's ingestion of the defendant's product and the onset of his symptoms. Id. at *4.  Analyzing the doctor's methodology, the court observed that the doctor had ruled out certain diseases that can cause MCD.  He also ruled our food poisoning and some infections.  But most MCD is idiopathic.  (Idiopathic means nobody knows what causes it.)  To rule out idiopathic MCD in the plaintiff's case, the doctor testified that he relied on the temporal relationship and on scientific literature that had acknowledged "for the last 25 years that NSAIDs can cause renal injury or renal malfunctions." But the data the doctor cited involved prescription-strength NSAIDs, and he testified that he did not know of studies involving lower-strength OTC NSAIDs and had never read an article linking the defendant's specific NSAID to renal injury.  The court concluded that the doctor could not "provide any scientific and/or medical data with regard to the relationship of over-the-counter NSAIDs and kidney disease," let alone any specific data related to the defendant's product.  As such, the doctor's opinions were "unreliable based on the lack of supporting medical science as required by" Fed. R. Evid. 702.  Moreover, though the doctor had general knowledge about the diagnosis and treatment of kidney disease, he lacked "expert knowledge with the specific subset of over-the-counter NSAIDs" and MCD.  And so, like the PCP, the nephrologist was permitted to testify about his care of the plaintiff but was precluded from offering causation testimony.

The Pharmacist

Finally, the plaintiff offered a pharmacist to testify, as an element of Illinois's "consumer expectation test," that the plaintiff's particular kidney injury was foreseeable to the defendant and that the danger of this injury went beyond that which would be contemplated by the "ordinary patient with ordinary knowledge common to the community." The pharmacist was qualified to offer this opinion, they argued, "based on many years of educating and working with healthcare providers and providing healthcare services to patients." Id. at *6.  He said that he "regularly interacted with [patients] and understood their level of awareness regarding OTC . . . NSAIDs and kidney injury." Id. at *7.

The court pointed out that the pharmacist was not a physician, had never participated in clinical trials involving any NSAID, and was not aware of any cases of MCD associated with OTC use of the defendant's product. Though he had reviewed 203 case reports, none involved MCD, and, in any event, the court had previously rejected expert opinions based on case reports.  As the court emphasized, "Because of their limitations, case reports have been repeatedly rejected as a scientific basis for a conclusion regarding causation. Such case reports are not reliable scientific evidence of causation, because they simply describe reported phenomena without comparison to the rate at which the phenomena occur in the general population or in a defined control group. . . [T]hey do not isolate and exclude potentially alternative causes . . . and do not investigate or explain the mechanism of causation."  Id. at *8 (citation omitted).

Finally, the court held that the pharmacist "clearly [did] not have the necessary background to offer an opinion of whether the risk and danger of [the product] outweighed its benefits."  His entire opinion was "based on the fact that there are alternative [products] that may achieve the same relief benefit.  That is like saying that an individual could safely ride the train to work and thus have avoided a car accident, [but] . . . there is no indication of a complete risk/benefit analysis being conducted by [the pharmacist] or that [he] relied on any studies" conducting such an analysis.  Id. at *7.  (We have posted on this issue before.  You can see some of the posts here.)  The court concluded that the pharmacist had "provided no support – other than his general experience – of the opinions" he had offered. As such, the court held that the pharmacist's opinions were "unreliable based on the lack of supporting data as required by Federal Rule of Evidence 702." Id. at *8.

And then there were none. And with no experts, the plaintiffs could not meet their burden of proof of causation.  Moreover, while the court acknowledged that Illinois had not decided whether the consumer expectation test required expert testimony, the plaintiff had not demonstrated that the defendant's product was unsafe, because "every expert deposed stated that they believed [the product] to be safe when used as directed." Id. at *11.  Check and mate – summary judgment granted for defendants.

Sometimes, when we write this stuff, we have trouble keeping a straight face because the plaintiffs' arguments so lack merit as to verge on silliness. It continues to puzzle us that these experts – and these cases – even see the light of day.  But we are grateful for the sensible judges who extinguish them.

We'll be back in a week or so, with pictures of beautiful white stallions (and one beautiful daughter) in hand. E-mail us – we'll send you copies.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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