Zoloft Experts to Debate Effect of Drug on Assault

Vesselin Mitev

New York Law Journal

A man claiming the antidepressant Zoloft caused him to beat up his ex-girlfriend may tap an expert witness to back up his defense, a state judge has ruled.

But District Court Judge Rhonda E. Fischer of Nassau County also held that an expert witness for Pfizer, the maker of Zoloft, may take the stand in rebuttal.

"The defendant and the People have presented distinguished experts who possess differing opinions on the effect [the drug] may have on the population," Fischer wrote in People v. Hampson, 2006 NA 021294. "The Court should not look to see which expert is correct, but whether each expert's testimony is based on reliable methods."

Prosecutors had moved to reargue a bench ruling made by Fischer in April, allowing defense expert Dr. Stefan Kruszewski to testify about possible behavioral side effects caused by taking mood-altering drugs like Zoloft.

Kruszewski is a central witness for Brandon Hampson, 39, who is facing misdemeanor assault charges stemming from an altercation with an ex-girlfriend.

Hampson claims his actions were caused by "side effects or withdrawal" from Zoloft, according to Hampson's lawyer, Eric R. Bernstein of Manhattan.

Seeking to limit that defense, prosecutors had argued that Kruszewski's theories about Zoloft's potential negative side effects had not gained "general acceptance in the scientific community," and should be excluded under the standard set forth by Frye v. United States, 293 F 1013 (C.A.D.C. 1923).

At a pretrial hearing in January, Kruszewski testified that a small group of people who take antidepressants like Zoloft may suffer "significant side effects which may include impulsivity, agitation, excessive aggression, grandiosity and hypomania."

The doctor's testimony was based on published studies and reports that are "generally accepted" in the medical field, according to the decision.

The prosecution's expert, Dr. Douglas Jacobs, also testified at the pretrial hearing, claiming that Kruszewski's opinion was not generally accepted "by experts in the field as being supported by the relevant studies and reports," according to the decision.

Jacobs also told the court that Kruszewski's conclusions were based on flawed research methods. Also, Kruszewski had not relied on any clinical trials, which Jacobs called the "gold standard" when determining causation, in reaching the conclusion that Zoloft may cause possible negative behavior.

In "clear contrast" to Kruszewski, Jacobs opined that Zoloft and similar drugs "reduced aggression, reduced anger and reduced hostility," with none of the side effects claimed by the defense.

Reaffirming her April ruling, Fischer first noted that the U.S. Supreme Court had departed from the Frye standard in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993).

In that case, the Court set forth a different test to determine the admissibility of expert testimony, which included factors like whether a certain method had actually been subject to peer review, if known rates of error existed, and if the method had been tested outside of the lab.

But the Daubert holding was not binding here, Fischer wrote, since it was based on the Federal Rules of Evidence, "which are not applicable to New York court cases."

The judge cited the 2006 case of Parker v. Mobil Oil Corp., 7 NY3d 434, as evidence that the state Court of Appeals had "reaffirmed that Frye, not Daubert, is still the applicable standard in New York ... and this Court is obligated to adhere to that standard."

Under Frye, the test "is not whether a particular procedure is unanimously endorsed by the scientific community, but whether it is generally accepted as reliable," Fischer wrote, citing People v. Middleton, 54 NY2d 42.

Thus, it did not follow that only "conclusively established or unanimously supported" propositions should be allowed to reach the jury, the judge held, as long as they were based on "reliable methods."

Here, both experts met that standard and "the triers of fact should have an opportunity to weigh the credibility of the ... testimony under the crucible of cross-examination," Fischer wrote.

Bernstein praised the decision because the "drug is central to our case."

"Initially, I was disappointed that the prosecution even asked for reargument. I don't believe that was a remedy readily available to them," he said.

Eric Phillips, a spokesman for Nassau County District Attorney Kathleen M. Rice, said that Kruszewski's opinion "lacks any scientific credibility and is completely unsubstantiated from a pharmaceutical standpoint, so we strongly disagree with the court on this issue and we don't expect its adoption in future cases."

Pfizer did not respond to requests for comment.

The drug company's Web site for Zoloft lists its most common side effects as dry mouth, insomnia, sexual side effects, diarrhea, nausea and sleepiness. But it says that "not everyone gets side effects."

Jury selection in the case is set for Sept. 8.