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Finding that there were insufficient factual bases for a number of conclusions reached by a pharmacology expert for a group of three Utah fen-phen plaintiffs, a Philadelphia judge has ordered a new trial as to liability in the trio’s litigation against Wyeth. According to Judge Mark I. Bernstein’s opinion in Hansen v. Wyeth, Harris Busch — a longtime professor of pharmacology who argued at trial that Wyeth failed to recognize signals that the drug Pondimin was associated with a risk of valvular heart disease — was the only expert as to Wyeth’s negligence at a November 2004 jury trial that resulted in damages totaling roughly $1.35 million for Lucy Hansen, Mildred Hill and Joyce Jensen. While concluding that Busch was highly qualified as a pharmacology expert, Bernstein found that Busch’s testimony did not meet the factual basis standard of Pennsylvania Rule of Evidence 705. Bernstein granted Wyeth’s post-verdict motions for a new trial on the issue of liability. (Fen-phen cases tried in Philadelphia follow a reverse-bifurcation process, with damages being decided before liability.) “Dr. Busch may in fact have a scientific, medical and factual basis for his opinions,” Bernstein wrote in an opinion filed Tuesday. “If so it was never explained to the jury. … Expert testimony is intended to assist, not supercede, the jury. Expert opinion testimony should explain and clarify the facts so that correct conclusions may be reached by lay jurors. Experts are not advocates regardless of how much a party pays them. The trial is a search for truth and may not be castrated and corseted into a battle of experts.” In March, Bernstein had set aside the $780,000 verdict awarded to a co-plaintiff of the Hansen trio. In his opinion in McMurdie v. Wyeth, Bernstein held that Geri McMurdie, also a Utah resident, had “knowingly and voluntarily” assumed the risks of heart damage after being warned by her physician of the potential negative side-effects of ingesting Pondimin in order to lose weight. The judge’s decision Tuesday in Hansen centered on his interpretation of Rule 705, which took effect in 1998 and requires that during direct examination, an expert witness provide the jury with the factual evidence upon which his or her opinions is based. “Without a clear disclosure,” Bernstein wrote, “the jury has no basis for determining whether the facts as understood or assumed by the expert are compatible with the facts as the jury finds them to be. Thus, Rule 705 was adopted to preserve the exclusive fact-finding function of the jury.” Addressing the witness’s qualifications, Bernstein noted that Busch has been a research scientist for 45 years and a professor for 38, and has been employed at Baylor College of Medicine, Yale University and the University of Illinois. Busch has consulted for pharmaceutical giants such as Eli Lilly, SmithKline and Bristol-Myers, advising them about drug safety and labeling, according to the opinion. “There is no question that Dr. Busch meets the minimal requirements to render an opinion as to the appropriate response of a prudent pharmaceutical company reviewing medical literature and evaluating adverse drug event reports,” Bernstein wrote. “On cross-examination, however,” he added later, “it was systematically demonstrated that many of the scientific bases on which his opinion supposedly relied were illogical, inapplicable or employed circular reasoning. It was also demonstrated that his employer, the plaintiffs, had failed to provide him with information he reasonably required and had specifically asked for.” Bernstein quoted testimony in which defense lawyers asked Busch whether he was provided with certain documentation he had requested. Busch acknowledged he “received very few” of one type of documents that he asked the plaintiffs for. Bernstein also found that Busch had reviewed only attorney summaries of the plaintiffs’ medical records, and that he did not offer factual bases for his comments that the surveillance department at Wyeth was not adequately staffed, trained or qualified. Later, recalling what he deemed an instance of “meaningless recitation,” Bernstein recounted an incident during Busch’s time on the stand in which plaintiffs’ counsel led Busch through an exhibit line by line. Ultimately, Bernstein concluded that while Busch’s testimony had clearly violated Rule 705 in several different ways, JNOV was not warranted. The Hansen plaintiffs were represented by attorneys from Houston-based personal injury firm Williams Bailey. Calls to the firm seeking comment were not immediately returned. Michael Scott of Reed Smith in Philadelphia was lead defense counsel. Scott said Bernstein’s opinion “demonstrates how extraordinarily weak the evidence is as to Wyeth’s alleged negligence.”

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