Contrivance Standard Applied to Gatekeepers and Expert Witnesses

In Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005), the Eleventh Circuit’s articulated a “contrivance standard,” which suggested that a district court “may properly consider whether the expert’s methodology has been contrived to reach a particular result.” Id. at 1293 & n.7; see alsoThe Contrivance Standard for Expert Witness Gatekeeping” (Sept. 28, 2014).

Although this standard has some appeal, it raises questions of motives that can complicate the Rule 702 inquiry into whether an purported opinion is “knowledge.” A less psychoanalytic inquiry into the expert witness’s motivation should generally be the first line of approach.

In the Zoloft MDL, the trial court banished Dr. Anick Bérard from federal court birth defect cases because of her unprincipled and inexplicable cherry picking of data, relied upon for her causation opinions. See In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig. MDL No. 2342; 12-md-2342, 2014 U.S. Dist. LEXIS 87592; 2014 WL 2921648 (E.D. Pa. June 27, 2014) (Rufe, J.). The “contrivance” was objectively obvious and manifest in double-counting data points, and ignoring point estimates that were contrary to the desired outcome, even from papers that provided point estimates that were selectively embraced.

In the Chantix MDL, the trial court found the defendant to have harped on methodological peccadilloes but obviously did not like the beatific music (3x). Cherry picking was going on, but it was perfectly acceptable to this MDL court:

“Why Dr. Kramer chose to include or exclude data from specific clinical trials is a matter for crossexamination, not exclusion under Daubert.

In re Chantix (varenicline) Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1288 (2012) (MDL No. 2092) (permitting Dr. Shira Kramer to testify on causation despite her embracing a “weight of the evidence” method that turned largely on‘‘subjective interpretations’’ of various, undescribed, non-prespecified lines of evidence).

The differing approaches to cherry picking are hard to reconcile other than to note that Chantix had drawn a “black box” warning from the FDA, and the SSRIs involved in Zoloft had not been given any heightened warning from the FDA, foreign agencies, or any professional society. FDA labeling, of course, should not have been determinative of the causation question. The mind of the gatekeeper, however, is inscrutable.



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