Expert testimony at trial is very important to my work as a defective drug attorney. Because individual jurors rarely have a background in the medical field, an expert is not only a good idea but sometimes even required, in order to explain the issues the jury is being asked to decide. But in hotly contested pharmaceutical cases, disputes sometimes arise over the standards for which evidence is admissible — who is qualified to testify. That was the issue in Williams et al. v. Baxter Healthcare Corp. et al., a Nevada Supreme Court decision filed by two families with members infected by hepatitis C. The Williams, Allen, Bilger and Pagan plaintiffs allege that the infections were caused by contaminated doses of the anesthetic propofol, and claim that the four pharmaceutical defendants were partly at fault for marketing it in sizes big enough to reuse and thus contaminate.
The four plaintiffs brought two separate actions against the drug makers in response to an outbreak of hepatitis C at an endoscopy clinic in Las Vegas. The medical personnel allegedly spread the disease by inserting contaminated needles into containers of propofol, then reusing the containers with new needles and patients. They alleged defendants’ 50 mL containers were so big that they encouraged this type of unsafe reuse, and their claims alleged design defects, failure to warn and breach of implied warrantly of fitness. Defendant pharmaceutical companies sought to rebut these claims with expert testimony from David Hambrick, a registered nurse, and Dr. Jonathan Cohen, a professor of medicine. Both sets of plaintiffs moved to exclude the testimony, with the Williams plaintiffs arguing that nurses cannot give testimony, and both sets arguing that the experts could not pinpoint a cause with a reasonable degree of medical probability. The Pagan plaintiffs’ motion to exclude was granted. Both cases were appealed to the Nevada Supreme Court, where they were consolidated.
The high court first ruled that a nurse is qualified under Nevada law to give expert testimony, though only within his or her field of expertise. The court said caselaw sets forth the standards for who may give expert testimony, and those standards look for relevant skills, experience and knowledge. Under some circumstances, the Supreme Court said a nurse could meet those guidelines; it called on courts to evaluate each nurse’s qualifications on a case-by-case basis. However, it said Hambrick does not meet the guidelines because he has no experience diagnosing the cause of hepatitis C, which was the subject of his testimony. The court turned next to whether Cohen, the medical professor, can testify with a reasonable degree of medical probability as to the cause of the infection. It found that this standard should be applied when the defense is offering an independent alternative theory of causation, but not when the defense is rebutting the plaintiffs. In this case, the court found, the defense does not need to show that its theory is more likely than not, as long as it’s competent and supported by relevant research or evidence. Thus, it ordered the lower courts to exclude Hambrick’s testimony on causation but allow Cohen’s testimony.
As a pharmaceutical liability lawyer, I would have preferred not to split the standard of evidence for expert testimony. Though the Nevada court took pains to emphasize that the stricter standard still applies to alternative theories of causation, it’s not hard to imagine this ruling muddying the waters. One might argue that it’s also unwise to split the standard of evidence between rebuttals and new theories because both are evidence submitted to the jury — and thus, both should be required to be relevant enough to be useful to the jury. The split allows rebuttals to be introduced regardless of whether they are more likely than not, and relies on juries to sort out probability. As a dangerous drug attorney, I believe juries are usually made of reasonably intelligent people who do their best to decide cases fairly — but they aren’t composed entirely of medical experts.
If you believe a defective or unreasonably dangerous medication is responsible for an injury in your family, you should call Carey, Danis & Lowe to discuss how we can help. For a free, confidential case evaluation, send us an email or call 1-877-678-3400.
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