The case is part of the multidistrict ligation (MDL) proceedings in relation to Zometa and Aredia, drugs used to treat bone problems in cancer patients and produced by Novartis. To make her case, the plaintiff offered two experts — one of the treating oral and maxillofacial surgeons and a specially-retained oral surgeon — to testify on causation. Both experts were excluded by the trial court, and the plaintiff’s claims were dismissed for want of causation evidence.
The Sixth Circuit affirmed, continuing to take a hard look at the expert’s testimony. The Court upheld the exclusion of the treating surgeon because “the diagnosis is merely an hypothesis, which does not satisfy Daubert and Rule 702.” In a discussion reminiscent of the issues we reported on in Tamraz v. Lincoln Elec. Co., the Court rejected his opinion as a “differential diagnoses” because he did not effectively rule out all other causes of the jaw disease.
The specially-retained expert was excluded because he had no knowledge of the disease before being retained for this case, developed his knowledge based only on six articles supplied by the plaintiff’s lawyer, and did not rule out other cause of the disease. Not surprisingly, the court said that it “views with special caution expert testimony prepared solely for purpose of litigation, rather than flowing from an expert’s line of scientific or technical work.”