In Cooper v. Takeda Pharmaceuticals America, Inc., (filed 7/16/2015, published 8/13/2015, No. B250163) the California Court of Appeal, Second District, held a physician’s expert testimony attributing the defendant’s pharmaceutical as the cause of the plaintiff’s bladder cancer, was admissible and supported the jury’s verdict in plaintiff’s favor.
Plaintiffs Nancy and Jack Cooper filed suit against Defendant, Takeda Pharmaceuticals America, Inc. alleging that Takeda’s prescription drug, Actos, caused Jack Cooper to develop bladder cancer. At trial, the Coopers sought to introduce the testimony of Dr. Norm Smith, a urologic oncologist, which the trial court allowed. Dr. Smith testified that a patient taking Actos has a heightened chance of developing bladder cancer. Dr. Smith then testified, specifically, that Actos was a substantial factor in causing Jack Cooper to develop bladder cancer.
Dr. Smith’s opinions were based on 15 epidemiological and clinical studies showing an increased risk of bladder cancer among patients taking Actos for diabetes. Dr. Smith’s opinion, specific to Mr. Cooper, was based on having reviewed approximately 1,000 pages of Mr. Cooper’s medical records, and the reports indicating that Mr. Cooper had ingested over 50,000 milligrams of Actos over the course of approximately five years. Dr. Smith performed a differential diagnosis, and ruled out some, but not all, possible other causes of Mr. Cooper’s bladder cancer.
Takeda objected to the admission of Dr. Smith’s testimony, specific to Mr. Cooper, on the basis that it was speculative and unreliable. After trial, the jury returned a verdict in favor of Plaintiffs. Takeda moved for judgment notwithstanding the verdict, and for a new trial, again raising its objection to Dr. Smith’s testimony. The trial court, which had previously reserved ruling on Takeda’s objections and motion in limine, granted Takeda’s motions, holding that Dr. Smith’s testimony was speculative and unreliable because Dr. Smith had not ruled out all other possible causes of Mr. Cooper’s bladder cancer before concluding that Actos was the cause. Plaintiffs appealed.
The Second District Court of Appeal reversed, holding that the testimony was admissible pursuant to Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, the California Supreme Court’s landmark decision setting forth the appropriate standards for the admissibility of expert opinion.
The Second District held that Dr. Smith’s testimony, regarding the specific cause of Mr. Cooper’s bladder cancer, was properly admitted and should not have been stricken at the close of trial because it was premised on Dr. Smith’s extensive review of Mr. Cooper’s medical records, Dr. Smith’s review of numerous studies which resulted in a correlation between Actos and bladder cancer, and Dr. Smith’s differential diagnosis which ruled out other likely causes of bladder cancer. Of further significance, the Court of Appeal noted that the trial court erred in concluding Dr. Smith would need to conclusively eliminate all other possible causes of bladder cancer before the testimony would be admissible. The Court held such a standard was not implied by the Supreme Court in Sargon.
This case is significant as it further clarifies the necessary intellectual rigor which must be performed by an expert in formulating an opinion to be introduced at trial. The Cooper Court acknowledged that a standard requiring experts to eliminate all other possible causes of an injury or illness is neither practicable nor feasible. This ruling will effectively ease the burden on plaintiffs seeking to prove the element of causation in many different legal contexts.
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