SAN FRANCISCO – A combination of ipse dixit statements and a temporal-based methodology may have left a jury unconvinced that Lipitor caused a victim’s Type 2 diabetes.
Dr. Elizabeth Murphy is a former Rhodes Scholar and the Chief of Endocrinology at the University of California-San Francisco.
During her deposition, Dr. Murphy made statements including, “if the patient was taking the Lipitor and they developed diabetes while on it … I would think that it would be a contributing factor” and “Lipitor has an increased risk, and that is why my conclusion is that it was a contributing cause.”
This testimony was likely meant to be summing-up points that would be easy to digest and therefore resonate with jurors, but drug and device manufacturers always attack them as statements that are mere assertions with no basis in fact.
Much of Dr. Murphy’s testimony focused on the temporal relationship between type 2 diabetes and Lipitor; in other words, if the patient took Lipitor and later developed Type 2 diabetes, the satin must have been at least partially responsible.
The choice of an expert witness is critical to the success of a defective drug case. The expert must be sufficiently credentialed, but not seem like a “know-it-all.” The witness must also be persuasive, but not appear overly coached or “slick.”
A 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, sets out the legal standard for evaluating scientific expert witnesses. In a nutshell, the proffered expert testimony must:
- Be empirically tested,
- Have been subject to peer review and publication,
- Have a discernible error rate,
- Use existing methods, to the greatest extent possible, and
- Be generally accepted in the scientific community.
Nearly all courts require plaintiffs in medical malpractice cases to have at least one expert witnesses, and jurors have similar expectations.
Although the expert must be sufficiently credentialed, this witness must also be able to convince 12 strangers to adopt a certain version of events that may be in conflict with common misconceptions about health and healthcare.
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