The Fourth Circuit has upheld a lower court’s ruling that excluded expert testimony in a multidistrict litigation claiming that Lipitor causes Type 2 diabetes.

Lipitor Multidistrict Litigation

Lipitor is a cholesterol drug manufactured by Pfizer.  More than 3,000 women sued Pfizer, claiming that they developed diabetes as a result of taking Lipitor.  The women claimed that Pfizer was negligent in its design and promotion of Lipitor and that it failed to warn against Lipitor’s known risks.

The lawsuits were transferred to the district of South Carolina for consolidated proceedings and four plaintiffs were chosen to serve as bellwether cases.  The plaintiffs retained general causation experts to testify about the causal association between Lipitor and diabetes and specific causation experts to testify that Lipitor proximately caused the onset of diabetes for each of the bellwether patients.  The plaintiffs also retained an expert biostatistician to testify that taking Lipitor led to a statistically increased risk in diabetes.

Exclusion of Experts

Pfizer moved to exclude the plaintiffs’ expert witnesses under Daubert and Federal Rule of Evidence 702.  Following hearings and an opportunity for the experts to amend their reports, the lower court excluded testimony from three experts.  The court’s rulings left plaintiffs without their bellwether cases and limited them to a small subset of patients who had taken an 80 mg dose. The district court issued show cause orders asking any plaintiff to submit evidence that would enable her to survive summary judgment.  When no plaintiff was able to provide sufficient evidence, the district court granted summary judgment against all plaintiffs.

The plaintiffs appealed the lower court’s decision.  A panel from the Fourth Circuit Court of Appeals reviewed the district court’s decision and found that the lower court did not abuse its discretion.

The district court ruled that statistician Dr. Nicholas Jewell’s methodology was too tainted with potential bias and error.  The district court decided that Jewell was not qualified to make determinations about what data should have alerted Pfizer to a possible link between Lipitor and Type 2 diabetes.  The district court took issue with Jewell’s choice to include in his report only the test results that supported the plaintiffs.  The panel wrote, “The district court concluded (we think reasonably) that such an approach lacked the hallmark of science properly performed.”

The district court also excluded the testimony of Dr. Sonal Singh.  Singh testified about the association between various dosages of Lipitor and diabetes.  The district court found that Singh didn’t reliably apply the Bradford Hill criteria for causation to the data to determine if using Lipitor caused an increased risk in diabetes.  The panel agreed with the district court, “where, as here, each plaintiff took one of only several commercially available doses, clinical data exist that enable an expert to perform a causation analysis at each dose, and experts (including plaintiffs’ own) acknowledge that there is some relationship between dosage and harm, the district court doesn’t abuse its discretion in asking the expert to produce a dose-by-dose analysis.”

The district court also excluded the testimony of Dr. Elizabeth Murphy.  Murphy testified in a bellwether case that Lipitor specifically caused the patient’s diabetes.  The district court found that Dr. Murphy had dismissed other possible causes of the patient’s diabetes in a “cursory” fashion.  The panel concluded that the district court acted within its discretion in excluding Dr. Murphy’s testimony.

The Pennsylvania Supreme Court has ruled that when autopsy reports are used to substantiate cause of death in murder cases, the medical examiner who wrote that report must testify in court.

The Shooting

In December 2012, Darnell Brown attended a party in Philadelphia after hiding a revolver in a nearby parked car. At the party, Brown got into an argument with Cory Morton. Brown’s friend, Marcus Stokes, retrieved the gun and gave it to Brown, who shot Morton four times.

Dr. Marlon Osbourne of the Philadelphia Medical Examiner’s Office performed an autopsy on Morton and prepared a report of his findings. The autopsy report detailed four gunshot wounds that struck the victim’s ribs, heart, left lung and left shoulder. The report noted that three bullets entered the front of the victim’s body and one entered his back. The report concluded that the cause of death was multiple gunshot wounds and that the manner of death was homicide.

Case History

When Brown’s case went to trial, Dr. Osbourne was no longer employed by the Medical Examiner’s Office and he was not called as a witness. His autopsy report was entered into evidence. The Commonwealth called a different medical examiner who had not been present at the autopsy to provide expert testimony based on portions of the autopsy report and photos.

Defense counsel objected to the admission of the autopsy report and medical examiner’s testimony, arguing that the report was testimonial evidence and its admission violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. The trial court overruled the objection and Brown was convicted of third-degree murder and related offenses. Brown was sentenced to 25 to 50 years in prison.

Brown appealed, arguing that it was an error to let another medical examiner testify about the cause and manner of the victim’s death based on Dr. Osbourne’s autopsy report.

Commonwealth v. Brown

The Pennsylvania Supreme Court agreed with Brown that the autopsy report was testimonial. In the majority opinion, Justice Kevin Dougherty wrote that “the law requires the coroner or medical examiner charged with conducting and reporting the results of such autopsies to consult and advise the local district attorney to the extent practicable. . . . Accordingly, we determine the primary purpose for preparation of an autopsy report under these circumstances is to establish or prove past events potentially relevant to a later criminal prosecution and that any person creating the report would reasonably believe it would be available for use at a later criminal trial. Thus, we conclude the autopsy report in this case was testimonial.”

However, the court ruled that Osbourne’s absence was harmless. The majority explained that the report was inadmissible and that the medical examiner who testified based his testimony on other factors. “Here Dr. Chu formed an independent conclusion and testified to that conclusion based on his own review of both the otherwise inadmissible facts and data contained in the report and the data provided by the autopsy photographs. . . . Because Dr. Chu properly formed an independent opinion, and was available to be cross-examined regarding the basis of that opinion, we conclude there was no confrontation clause violation with respect to his opinion regarding the cause of death. Additionally, Dr. Chu’s testimony was sufficient to satisfy the commonwealth’s evidentiary burden regarding the victim’s cause of death.”

A child abuse expert has offered testimony in the trial of a California man who is charged with beating his 6-week-old daughter to death.

The Death

On November 12, 2012, emergency responders reported to a Visalia home for reports of a baby who was not breathing. The 6-week old baby girl was covered in bruises and had fractured ribs and legs. Peyton Rowe was rushed to Kaweah Delta Medical Center. The doctors said that Peyton had to be resuscitated by paramedics on her way to the hospital. Peyton died at the hospital less than an hour later.

Peyton’s parents were arrested in connection with her death. Peyton’s mother, Courtney Rowe, pleaded guilty to felony child abuse with an allegation of willful harm or injury causing death. Peyton’s father, 28-year-old Aaron Rowe, was charged with murder and proceeded to trial. Rowe faces the death penalty if convicted.

The Trial

At trial, Rowe’s defense attorneys argued that Peyton’s death was an accident. Rowe claims that he slipped while holding his daughter. The Tulare County Prosecutor Brenda Broker told the jurors, “The evidence will prove that Peyton was anything but daddy’s little girl. . . . Peyton throughout her short life had been continuously physically abused, ultimately tortured, and then intentionally murdered by her father who was a man with a propensity for violence.”

The prosecution called Dr. Frederic Bruhn to testify as an expert on child abuse. Dr. Bruhn has seen more than 1,000 children who suffered from some form of abuse. In preparation for his testimony, Bruhn reviewed Peyton’s X-rays and her autopsy report. Peyton’s autopsy revealed that she died from blunt force trauma to the head and her X-rays showed both fresh fractures and old breaks.

Dr. Bruhn testified about the injuries that doctors found on Peyton when she arrived at the hospital.  Bruhn labeled Peyton’s injuries “suspicious.” Bruhn said, “Her rib fractures led doctors at [Kaweah Delta Medical Center] to suspect abusive injuries.” Bruhn commented that the amount of fractures to Peyton’s ribs and back of rib cage are “rarely seen and highly correlates to abusive injuries in children. . . . The number [of fractured ribs] suggest abusive injury.”

Dr. Bruhn described bruising to Peyton’s cheek and ear as another “red flag.” Bruhn said, “Children as young as Peyton don’t do much. . . . If they don’t move they don’t bruise.” Bruhn said that facial bruises on children Peyton’s age are rarely accidental. Peyton’s left inner thigh was also bruised. According to Bruhn, the pattern of the bruises on Peyton’s body was consistent with fingers gripping.

Dr. Bruhn opined that Peyton suffered broken ribs as a result of shaking and squeezing around her chest and that the fractures to her leg and arm could not have been caused by a fall. He said, “You have the head injuries, you have the optic nerve injuries, you have the skeletal injuries, you have the bruising injuries. . . . Once you get to that amount of injuries, you can’t explain it all by one simple fall.”

The defense countered with medical experts who testified that Peyton may have suffered from a bone disease. They concluded that the evidence is consistent with Rowe’s statement that he fell with Peyton in his arms days, causing her death.

An expert in the field of environmental liability transfers has testified that the proposed sale of the Vermont Yankee nuclear plant will leave the public at risk for environmental liability.

The Proposed Sale

The Vermont Yankee nuclear power plant shut down in December, 2014. It had been active for 40 years. The plant’s current owner, Entergy, wants to sell the plant by the end of the year. The proposed sale is under review by the Federal Energy Regulatory Commission and Vermont Public Service Board.

NorthStar Decommissioning Holdings wants to buy the closed Vermont Yankee nuclear plant. Northstar claims that it can dismantle and decommission the plant much faster than the timetable that Entergy planned. NorthStar claims that it can decommission the site by 2030, which is decades earlier than planned by Entergy.

Numerous parties have expressed concern about the sale. State officials have said that the deal “raises numerous, thus-far-unanalyzed health, safety and environmental concerns.” The New England Coalition has argued that NorthStar is “pitching an untested method,” that it can’t guarantee a good outcome for the environment, and that it may run out of money before the work is done. Bill Irwin from the Vermont Department of Health has stated that, “There is a significant risk that, if approved, the sale of Vermont Yankee to NorthStar will lead to a shortfall in the amount of funding available to fully and safely decommission and radiologically decontaminate Vermont Yankee and manage its spent nuclear fuel. . . . This would place public health, safety and the environment at risk.”

The Hearing

The Public Utility Commission held a hearing on the proposed sale of the Vermont Yankee plant.

Under review is a recent settlement agreement between the state office that represents the ratepayers, Entergy, NorthStar, and several intervenors. The proposed settlement agreement provides that NorthStar will provide and additional $30 million plus payments totaling $25 million in escrow to pay for unanticipated costs. NorthStar also agreed to obtain a pollution liability policy with $30 million in coverage and a $140 million “support agreement” where NorthStar’s parent company will provide additional funds as needed. Entergy agreed to put an additional $60 million into a site restoration trust fund and an additional $40 million by 2023 if certain conditions are not met.

The Conservation Law Foundation has argued that sale of the plant could cause problems for taxpayers and the environment. The foundation brought Michael Hill to testify in support of its argument. Michael Hill is an attorney, insurance broker, and expert in the field of environmental liability transfers. Hill is critical of the proposed settlement package.

Hill testified that the additional insurance policy that the parties to the sale agreed to is insufficient to cover all of the potential liability issues involved. He said, “To present this to the commission, as something that should change its mind in terms of financial assurances, is in my opinion and speaking bluntly and under oath a terrible thing to do. . . . I think the commission would be very ill-advised to accept this as any sort of evidence of any sort of protection.”