The judge presiding over the federal Zoloft multidistrict litigation said that she could benefit from a court-appointed, "truly neutral expert," but that it is too early in the life of the litigation for such an expert to be appointed.
U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania was speaking at the latest status conference Thursday in an MDL in which around 250 plaintiffs so far are prosecuting allegations that women’s use of the popular antidepressant during their pregnancies caused birth defects in their children.
When Pfizer defense counsel Robert C. Heim, of Dechert in Philadelphia, again raised the argument that Rufe should appoint an expert under Federal Rule of Evidence 706, Rufe said such an expert could help "because there will come a time in this case when I’ll have to make pure science determinations."
Heim said such an expert would be "salutary."
But Rufe said that, when reviewing complaints for conflicts of interests and other matters, that "I can’t tell from the complaints what the science is supposed to be" because there are so many varieties of allegations.
The science behind the plaintiffs’ allegations have to be "crystallized" more before a court-appointed expert would be of use, Rufe said.
It would not be too soon to line up an expert who does not have conflicts, Rufe said.
Co-lead plaintiffs’ counsel Dianne M. Nast, of NastLaw in Philadelphia, said the plaintiffs bar has not yet had an opportunity to discuss a court-appointed expert and would want to do so before they make any substantive response.
When Heim raised the issue before, Joseph J. Zonies, one of the members of the executive committee of the plaintiffs steering committee and of Reilly Pozner in Denver, said that considering how well Rufe ran the Avandia MDL "the court doesn’t need … an expert to understand complex science."
Defense counsel Mark S. Cheffo, of Skadden, Arps, Slate, Meagher & Flom in New York, has argued that there is not a lot of controversy among legitimate scientists about the "teratology of selective serotonin reuptake inhibitors like Zoloft," while Zonies has argued there are statistically significant risks for many injuries being alleged by the plaintiffs.
Teratology involves birth defects and abnormalities in development.
In another development, more cases are being centralized in the MDL from state courts around the country.
For example, Mark P. Robinson Jr., the other co-lead counsel of the plaintiffs steering committee’s executive committee and of Robinson Calcagnie Robinson Shapiro Davis in Newport Beach, Calif., said he is bringing five St. Louis, Mo., cases to the MDL. He also is bringing cases from California.
Zoloft cases are not clustering in the Philadelphia Court of Common Pleas after Judge John W. Herron, administrative judge of the trial division, decided against certifying a Zoloft mass tort program in state court.
While Cheffo said as a defense lawyer he can’t say he’s happy that cases are being filed, he added: "To the extent they should be filed, this is the place we think they should be filed."
In November, Rufe approved a discovery plan that the opposing sides negotiated to set relatively early trial dates while also setting early hearings over the science behind the allegations that women’s use of Zoloft during their pregnancies caused birth defects.
The early trial dates are something that favored the plaintiffs counsel’s position while the issue of relatively early Daubert hearings over the scientific evidence is something that favors the defense counsel’s position.
Robinson said in an interview last fall Pfizer wanted to talk about science and the plaintiffs counsel said, "’We’re not afraid of you wanting to focus on the science issues. We are agreeable as long as you give us discovery.’"
In exchange for early Daubert hearings on scientific experts, the plaintiffs wanted a trial within less than two years, Robinson said.
Cheffo said in a statement last fall that "the joint agreed scheduling and case management order reflected hard work and compromise by both sides to reduce inefficiencies and unnecessary disputes and delays. Judge Rufe has encouraged the MDL leadership to work to find joint solutions and proposals wherever possible."