“There is no expedient to which a man will not go to avoid the labor of thinking.” Sir Joshua Reynolds
Medical students study pathology not only to understand the nature, course, and causation of disease, but also to understand better normal tissue and cellular function and structure. Similarly, lawyers can improve their understanding of judicial decision making, not only from studying well-reasoned judicial opinions, but from also studying pathological opinions, with clear, demonstrable errors that help illustrate both the pathogenesis of intellectual and judicial error, as well as the normal, proper function of judging.
At the end of each year, bloggers and pundits traditionally call attention to the best and the worst decisions, usually from a partisan perspective. One federal judicial decision on Rule 702, however, stands out for special treatment as a veritable Berenstain Bears’ manual on how not to adjudicate so-called Daubert motions. Kiker v. Smithkline Beecham Corp., 2:14-cv-02164-EAS-TPK, (S.D. Ohio, Dec. 15, 2016) (Sairgus, C.J.) [cited below as Kiker slip op.] The Kiker opinion is as worthy of dissection as a judicial opinion for lawyers, as is the dissection of a cadaver by medical students in their first-year course on clinical anatomy.
The Kiker plaintiffs claimed that maternal use of paroxetine (tradename Paxil) caused her child to develop a ventricular septal defect. The defendant, GlaxoSmithKline LLC (GSK), invoking Federal Rule of Evidence 702, moved to exclude opinion testimony of several of plaintiffs’ expert witnesses, including Laura M. Plunkett, Ph.D., Ra-id Abdulla, M.D. Kiker slip op. at 1. The gravaman of the plaintiffs’ case is that GSK did adequately warn physicians of the risk to offspring of women who took paroxetine in pregnancy until September 2005. At that time, GSK revised its labeling for Paxil to warn of the “increased risk for cardiovascular malformations.” Kiker slip op. at 3.
The plaintiffs threw in the kitchen sink with their allegations, which included specific averments that GSK should have informed the medical community about “significant” adverse event reporting and the meaning of claimed deaths among rat pups in high-dose maternal toxicity testing. Not content with a failure to warn case, plaintiffs ratcheted their allegations into a fraudulent misrepresentation case, as well. Kiker slip op. at 3-4. Laura Plunkett and Ra-id Abdulla were the principal expert witnesses relied upon by plaintiffs for their hyperbolic claims.
The Standard
Chief Judge Sargus started his description of the governing law by insisting that the standard for expert witness gatekeeping was “flexible”; that is, he would follow the “Gumby Rule,” which allows the trial judge maximal flexibility and stretch to admit dubious expert witness opinions. Chief Judge Sargus employed the usual reductionist criteria for assessing “reliability.” Citing Kumho Tire, he explained that the court’s role was to ascertain whether
“an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, (1999). He also acknowledged that Daubert had provided some indicia of reliability in factors such as
“testing, peer review, publication, error rates, the existence and maintenance of standards controlling the technique’s operation, and general acceptance in the relevant scientific community.”
Kiker slip op. at 7, quoting from United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) (citing Daubert v. Merrell Dow Pharm, Inc., 509 US. 579, 593-94 (1993)).
Chief Judge Sargus was then quick to point out that the cited Daubert factors do not make up a definitive, dispositive test or checklist, which presumably gave him license to ignore these factors and their absence, all together. Nowhere later in his opinion on the contested reliability of plaintiffs’ expert witnesses’s causation opinions is there any discussion of the actual testing, its validity, its pre-publication and post-publication peer review, error rates, standards for assessing causation, or general acceptance of the claimed methodologies. And of course, the discretion permitted district judges in performing their gatekeeping function is not the discretion to abandon the gatekeeping function and to ignore relevant methodological criteria. See Kumho Tire, 526 U.S. 137, 158-59 (Scalia, J., concurring).
Semantic Legerdemain Substitutes for Demonstration of General Causation
Chief Judge Sargus acknowledged that there is a “specific methodology” used by scientists to assess a body of evidence for causation of birth defects, but then proceeded to ignore that methodology without bothering to describe or apply it. Kiker slip op. at 10. What gave the trial judge his argument for ignoring the “specific methodology” used by scientists, the Daubert factors, and indeed any and all factors for assessing the validity of a scientific claim and conclusion, was the language used by the Food and Drug Administration (FDA) and GSK, the NDA-holder, in various communications. Rather than engage in an intellectually challenging exploration and evaluation of the actual scientific evidence and analysis that underlay the plaintiffs’ expert witnesses’ causation opinions, Chief Judge Sargus pointed to the language used by the FDA in its original Public Health Advisory about the issue of congenital cardiac malformations in children of mothers who ingested paroxetine in their first trimester of pregnancy:
“[t]he FDA has determined that exposure to paroxetine in the first trimester of pregnancy may increase the risk for congenital malformations, particularly cardiac malformations. At the FDA’s request, the manufacturer has changed paroxetine’s pregnancy category from C to D and added new data and recommendations to the WARNINGS section of paroxetine’s prescribing information. FDA is awaiting the final results of recent studies and accruing additional data related to the use of paroxetine in pregnancy in order to better characterize the risk for congenital malformations associated with paroxetine.”
Kiker slip op. at 10, quoting from FDA Public Health Advisory (Dec. 8, 2005), available at <http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm051731.htm> (emphasis added).
Chief Judge Sargus apparently was oblivious to the difference between “X causes Y” and “X may increase the risk of Y.” As the trial judge, he also fixed on the FDA’s decision to change the pregnancy category labeling for paroxetine from Category C to Category D, with the latter category’s reflecting “positive evidence of human risk.” Kiker slip op. at 11. Again, the existence of evidence for risk is not, and never has been, the existence of evidence that would support a reasonable, reliable conclusion that paroxetine causes cardiac birth defects. Nothing can explain or justify this incredible reliance and misinterpretation of language, and Chief Judge Sargus makes no attempt to defend his linguistic contortions.
Chief Judge Sargus ends with an implied assertion that he, as trial judge, need not spend any time on assessing the quantity or quality of evidence for a conclusion of causality because GSK has admitted that paroxetine causes cardiac birth defects. The GSK Dear Healthcare Provider Letter, the FDA Safety Alert, along with the (preliminary) results of a single epidemiologic study
“combine in this instance to constitute an admission that Paxil can cause injury, and is sufficient to create an issue of fact regarding causation.”
Kiker slip op. at at 15.
Whence comes this incredible reliance upon the language of a package insert? Chief Judge Sargus points to Judge James Gwin’s decision in In re Meridia, and proceeds to provide two pages, single-spaced, of block quotation from the Meridia decision. Kiker slip op. at 13-15, quoting from In re Meridia Prods. Liab. Litig., 328 F. Supp. 2d 791, 800-01 (N.D. Ohio 2004).
Interspersed in the two pages of quotation from Meridia were citations to Ferebee and Wells, two of the most discredited, disreputable federal court decisions on biomedical causation, both of which were effectively overruled sub silentio by the Supreme Court in Daubert. Chief Judge Sargus argues that the Meridia decision held that “product inserts to both physicians and patients” constituted “admissions of Meridia’s potential to cause substantial increases in blood pressure in some patients. Meridia, 328 F. Supp. 2d at 810. Affirming the district court’s decision in Meridia, the Sixth Circuit specifically upheld the district court’s determination that the FDA warning label at issue in that case “constitutes an admission that Meridia can cause injury.” Meridia Prods. Liab. Litig. v. Abbott Labs, 447 F.3d 861, 866 (6th Cir. 2006).
This analytical shortcut has serious problems. First, as a first year law student might observe, the Meridia decision resulted in the exclusion of plaintiffs’ key expert witness and the grant of summary judgment to the defendant on adequacy of its warning, all of which the Sixth Circuit affirmed. Given that there was no liability, the comments about causation would seem to be dictum, not holding. Second, with respect to the issue of warnings as admissions, the Circuit agreed that the district court had construed the defendant’s package insert warning that the medication ‘‘substantially increases’’ blood pressure as an admission, but that such unequivocal language was quite different from warning language that states medication use ‘‘is associated with’’ an adverse event. 447 F.3d at 866. The FDA’s Public Health Advisory, the change to Category D, and GSK’s own sponsored study did not, individually or collectively, state a finding of anything more than an association, and that there “may be an increased risk.”
Of course, Chief Judge Sargus’s glib exercise eliminated all the difficult thought of evaluating actual scientific evidence. The indolent approach used in Kiker committed another blatant error. The approach not only relied incorrectly upon some language of the FDA and medication license holder, but it ignored all the contrary evidence, context, and analysis that kept the FDA from reaching a conclusion of causality in 2005, and most scientists to this very day. Furthermore, the Kiker approach conveniently ignored that over a decade of additional evidence, much of it exonerating paroxetine. Chief Judge Sargus has misidentified the weakest, incomplete, out-of-date, cherry-picked evidentiary display with reliable evidence that purports to support a causal conclusion.
Non-Specific Confusion on Specific Causation
Having announced that the court will not grant a hearing, or even an on-the-paper review of the actual evidence for plaintiffs’ causal claims, Chief Judge Sargus proceeded to make even shorter work of the issue of specific causation. The only support for specific causation in the case was in the proffered testimony of Dr. Ra-id Abdulla, a serial testifying expert witness in anti-depressant birth defects cases. Abdulla purported to conduct a differential diagnosis to discern the cause of the infant plaintiff’s birth defect, a ventricular septal defect. Kiker slip op. at 16.
The diagnosis of the infant Kiker’s birth defect, however, was never in doubt; rather it was the etiology of the septal defect, which was at issue. Abdulla claimed to have ruled out all other potential alternative causes. Kiker slip op. at 18. Even if Abdulla’s claim could be accepted for known causes of septal defects, he would still be faced with a situation in which there are baseline or background cases of septal defects, which occur in children with no known or even suspected risk factor. The court failed to explain how Abdulla ruled out such unknown, prevalent causes of septal defects in the Kiker plaintiff. To be sure, the court appeared to have fallen for the “treating physician” ruse, which suggests that treating a condition provides some magical insight into the cause of that condition. Kiker slip op. at 19-20.
No explanation was cited by the court for how Abdulla worked his magical clinical inference of specific causation. Sadly, there is no such magic, except in the form of the magic thinking evidenced here by Abdulla, and acquiesced in by Chief Judge Sargus. No biomarker of causal originst distinguishes the Kiker plaintiff’s septal defect from one caused by any other cause, whether or not established by current medical science. Moreover, Abdulla’s magical thinking cannot be swept under the Kumho Tire rug of appropriate level of rigor in the field. The Kiker court cited no evidence that pediatric cardiologists routinely and reliably make the specific causal attribution that Dr. Abdulla made in this case, as a paid, testifying expert witness. The court incredulously accepted Abdulla’s hand waving about the epistemic warrant of experience, education, training that has nothing to do with discerning individual causes.
GSK asked for oral argument, which may have been Chief Judge Sargus’s last clear chance to avoid these errors. Declaring that the record was fully developed, Judge Sargus denied the request for a hearing. Kiker slip op. at 1, 4. We are left with a profoundly flawed misunderstanding of scientific evidence and causal inference.
