United States: Hoosier Daddy, Pt. 4: Plaintiff Who Refused IME Cannot Use Absence Of IME To Attack Defense Expert

Last Updated: November 30 2018
Article by Stephen J. McConnell

This will be the third consecutive week for us to discuss a favorable expert ruling out of the Cook Medical IVC filter litigation in the Southern District of Indiana. By this point, we really do expect some sort of remuneration from the Indiana Chamber of Commerce – maybe tickets for the surprisingly impressive Colts, or a reuben sandwich from fabulous Shapiro's delicatessen. (To our palate, the Shapiro's outpost at the Indy airport offers better corned beef than any you can find at LaGuardia, JFK, Newark, O'Hare, or even our hometown PHL. How weird is that?). Today's Daubert ruling is In re Cook Med., Inc., IVC Filters Mktg., Sales Practices & Prod. Liab. Litig., 2018 U.S. Dist. LEXIS 196637, 2018 WL 6047018 (S.D. Indiana Nov. 19, 2018), and, as with earlier orders from this court, is clear, concise, and eminently sensible. The Daubert motion at issue here was filed by the plaintiff, who wanted to shut down a defense psychiatrist from rendering opinions that the plaintiff's emotional injuries were not caused by the IVC filter. We won't make a secret of the fact that we think the plaintiff's Daubert arguments were uncommonly silly. For example, the plaintiff contended that the defense experts opinions were not offered to a reasonable degree of certainty when, in fact ... they were. Still, there are commonly silly courts out there that might have given some credence to some of the plaintiff's arguments. Thankfully, though, there is nothing silly about the In re Cook court.

The plaintiff attempted to preclude the defense expert's differential diagnosis because it listed several alternative causes, not just one, for the plaintiff's injuries. That position is a misfire in several respects. To begin with, the etiology of the plaintiff's injuries was multifactorial. If reality puts more than one cause in play, why must a defense expert be forced to pick one? Further, the defense, of course, does not bear the burden of showing any cause. That burden is on the plaintiff. It is powerful stuff for a defense expert to show that there are many other plausible causes out there for the plaintiff's injury, and those other causes exist independently of the defendant's product. Indeed, the defense expert does not even need to exclude the product as a possible cause; it is enough if the expert can show that there is no reasonable way to put the finger on the product as opposed to one of the other possible causes. The defendant has absolutely no obligation to alight upon only one alternative cause. At a minimum, the multiplicity of alternative causes is a multiplicity of confounders that undermines the plaintiff's false certainty.

The plaintiff also objected to the defense expert's differential diagnosis because that expert had never physically examined the plaintiff. First, the defense expert had done plenty of work to substantiate his opinions. He had reviewed the plaintiff's medical records, the plaintiff's two videotaped depositions, the depositions of five treating physicians, an independent medical examination, and the reports of the plaintiff's experts. That would be enough in pretty much any court to get to the jury. If the plaintiff wanted to make something out of the lack of a physical exam, that is fine fodder for cross-examination. But there is an additional wrinkle here. The court tells us that the defense expert "was not given the opportunity for an appropriate, direct, clinical examination" of the plaintiff. Apparently, there is a dispute between the parties as to why, exactly, that was so. Reading between the lines, we suspect that the plaintiff objected to the exam, or at least to some aspect of the exam. Obviously, then, the plaintiff cannot be heard to object to the absence of a medical examination that the plaintiff refused. Call it estoppel or fairs-fair, or whatever. (At this point, we cannot resist raising one of our chief gripes with other defense lawyers. In almost every mass tort litigation we've seen, there will be some defense lawyers who oppose having their defense experts perform physical examinations on the plaintiffs. Why? They are afraid of what the expert might find. Huh? Do you believe in your case or not? Plus, a good expert will be able to work with whatever the facts are. More information is better than less information. Our job is to deal with the facts, not alter or ignore them. Finally, as the In re Cook case demonstrates, you are simply in a much better position if you at least tried to perform the examination. Plaintiff lawyers often oppose these exams. Make them pay for that opposition. Anyway, the next time we hear from a plaintiff lawyer that this blog does nothing but bash plaintiff lawyers, we'll point them to this parenthetical.)

Finally, the plaintiff tendered a back-up position that, if the defense expert would be permitted to opine on alternative causes, then that expert should not mention opioid use disorder. Nice try. The court observed that the defense expert had found "ample evidence in the record" to suggest that the plaintiff met the criteria for opioid use disorder, and such condition could be a cause of the mental health injuries of which the plaintiff complained. As much as the plaintiff was trying to keep out evidence of alternative causes, this was the alternative cause that the plaintiff most feared. And with good reason. It is, no doubt, powerful evidence. It reminds us of the old prosecutor's joke about criminal defense lawyers objecting "Prejudicial, your Honor – tends to show guilt." The In re Cook court held that the evidence of opioid abuse was part of the plaintiff's medical record and was "essential" to the defense expert's differential diagnosis. It was, therefore, admissible.

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

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