Expert Testimony based on temporal evidence and differential diagnosis can be admitted if they fulfill certain criteria

ELLA MAY CROSS, et al PLAINTIFFS VS. FOREST LABORATORIES DEFENDANT

2015 U.S. Dist. LEXIS 19730

In toxic tort cases the specialist who is called in as a causation expert is allowed to arrive at his conclusion by availing the method of differential diagnosis as long as it is reliable and established through a scientific method. There is no mandatory stipulation by the court or any rule book that requires such expert to explore all reasons and eliminate all factors that could have led to the concerned toxicity in the case if s/he can satisfactorily explain his opinion in spite of the presence of other unexplored alternative causes. Opinions can also be based on temporal proximity of the treatment with that of the act as long as it is also formed on a basis of a scientific method and supported by sufficient circumstantial evidence.

The present case is a diversity suit comprising tort claims. Inter alia the defendant sought to exclude the testimony of the plaintiff’s specific causation expert, Mr. George S. Glass (M.D).

One Mr. Leon Cross, aged 81 years old was suffering from tremendous stomach ache for quite a few months and had consulted a doctor for it on May 20, 2004. He was advised to undergo a colectomy (a surgery) which was scheduled for June 4, 2004. However while the surgery date was approaching he grew anxious about it and revisited his doctor with the complaint. The latter had prescribed him a selective serotonin re-uptake inhibitor or SSRI drug called Lexapro, to control this anxiety. This drug was manufactured by the defendant (Forest Laboratories).

After two days of having taken that medicine Mr. Cross killed himself by shooting in his stomach. Plaintiff Ella May Cross ; Ellis Donnell Cross; William Cross, Theodore Cross; and Sandra McFadden bought this suit against the defendant contending that had it not been for the intake of Lexapro Mr. Cross would not have had such a sudden mood swing and ventured to kill himself. They supported their claim by the following facts: three pills of lexapro were missing; the mishap had taken place two days after he was prescribed the drug and the toxicology report had also suggested the presence of lexapro in his blood sample. To prove the alleged connection between lexapro and the sudden suicidal tendency of Mr. Cross, the plaintiffs had brought in a specific causation expert, Mr. George S. Glass to depose in their favor.

As reiterated before, the toxicology report had revealed the presence of selective serotonin re-uptake inhibitor (SSRI) in his blood. Mr. Glass had used differential diagnosis to omit alternative risk factors and considered only two from the various possible factors that could have resulted in Mr. Cross taking his life. The expert had explained that stomach pain was one such factor that could have been considered; but since Mr. Cross had taken adequate measure to deal with it by visiting his doctor and agreeing to undergo the suggested surgery such potential risk could be logically excluded. The other risk specifically excluded by Mr. Glass was the risk of anxiety that Mr. Cross was experiencing as he moved close to the date of surgery. But there was nothing to suggest that such anxiety felt by Mr. Cross was unnatural from what another person in his position would have felt. Besides the defendant had not produced any evidence show what could have caused the abrupt

When the elimination of other risks is made to the satisfaction of the court, the next step for the expert witness is to establish the chain of causation. This is a two-pronged test-a general and a specific one. The general test requires the expert to show if there was enough evidence to show that Lexapro could cause suicidal tendency amongst general public. If the answer to this question is in the affirmative then the expert is laden with the task of showing whether the intake of the drug, lexapro actually contributed to Mr. Cross’s decision to terminate his life.

The court cited another case (In re Celexa & Lexapro Products Liab. Litig., 927 F. Supp. 2d 758, 768 (E.D. Mo. 2013) where the testimony of the causation expert Dr. Healy was accepted. Dr. Healy in that case had proved to the contentment of the court that Lexapro could develop the tendency to commit suicide in a person in three ways: (1) akathisia; (2) emotional blunting and disinhibition; and (3); psychotic decomposition. Dr. Glass specifically excluded mechanism 1 and 3 and identified a seemingly new mechanism called “egodystonia”; which essentially referred to an action not typical or consistent with the concerned person’s personality. But the court notes that in his deposition, Dr. Glass had consistently insisted upon the fact that it seemed that the deceased was experiencing “emotional blunting and disinhibition”  (i.e. mechanism 2)

Keeping all the above records in mind the United States District Court for the Northern District of Mississippi, Eastern Division rejected the arguments raised by the defendant. Forest Laboratories had also argued that Mr. Glass, it seemed was basing his entire opinion on “temporal connection evidence” that since Mr. Cross’ death was proximate to the ingestion of lexapro the latter must be the significant contributing cause.

But the court held that the expert had considered sufficient facts, (like how lexapro was the only new factor introduced in Mr. Cross’ lifestyle before he experienced the fatal mood swing, how traces of lexapro was detected in the blood sample through the toxicology report and how there was enough evidence to support the finding that exposure to SSRI to the general public, especially to elders could make patients feel the suicidal urge) before drawing the chain of causation. It was clarified by the court that a finding arrived at only through temporal connection would usually be given very little weightage in the determination of causation; unless, (like in this case) it is supplemented by adequate established scientific method and circumstantial evidence.

The Court therefore allowed and accepted the testimony of the causation expert, Mr. George S. Glass.

In toxic tort cases the specialist who is called in as a causation expert is allowed to arrive at his conclusion by availing the method of differential diagnosis as long as it is reliable and established through a scientific method. There is no mandatory stipulation by the court or any rule book that requires such expert to explore all reasons and eliminate all factors that could have led to the concerned toxicity in the case if s/he can satisfactorily explain his opinion in spite of the presence of other unexplored alternative causes. Opinions can also be based on temporal proximity of the treatment with that of the act as long as it is also formed on a basis of a scientific method and supported by sufficient circumstantial evidence.

The present case is a diversity suit comprising tort claims. Inter alia the defendant sought to exclude the testimony of the plaintiff’s specific causation expert, Mr. George S. Glass (M.D).

One Mr. Leon Cross, aged 81 years old was suffering from tremendous stomach ache for quite a few months and had consulted a doctor for it on May 20, 2004. He was advised to undergo a colectomy (a surgery) which was scheduled for June 4, 2004. However while the surgery date was approaching he grew anxious about it and revisited his doctor with the complaint. The latter had prescribed him a selective serotonin re-uptake inhibitor or SSRI drug called Lexapro, to control this anxiety. This drug was manufactured by the defendant (Forest Laboratories).

After two days of having taken that medicine Mr. Cross killed himself by shooting in his stomach. Plaintiff Ella May Cross ; Ellis Donnell Cross; William Cross, Theodore Cross; and Sandra McFadden bought this suit against the defendant contending that had it not been for the intake of Lexapro Mr. Cross would not have had such a sudden mood swing and ventured to kill himself. They supported their claim by the following facts: three pills of lexapro were missing; the mishap had taken place two days after he was prescribed the drug and the toxicology report had also suggested the presence of lexapro in his blood sample. To prove the alleged connection between lexapro and the sudden suicidal tendency of Mr. Cross, the plaintiffs had brought in a specific causation expert, Mr. George S. Glass to depose in their favor.

As reiterated before, the toxicology report had revealed the presence of selective serotonin re-uptake inhibitor (SSRI) in his blood. Mr. Glass had used differential diagnosis to omit alternative risk factors and considered only two from the various possible factors that could have resulted in Mr. Cross taking his life. The expert had explained that stomach pain was one such factor that could have been considered; but since Mr. Cross had taken adequate measure to deal with it by visiting his doctor and agreeing to undergo the suggested surgery such potential risk could be logically excluded. The other risk specifically excluded by Mr. Glass was the risk of anxiety that Mr. Cross was experiencing as he moved close to the date of surgery. But there was nothing to suggest that such anxiety felt by Mr. Cross was unnatural from what another person in his position would have felt. Besides the defendant had not produced any evidence show what could have caused the abrupt

When the elimination of other risks is made to the satisfaction of the court, the next step for the expert witness is to establish the chain of causation. This is a two-pronged test-a general and a specific one. The general test requires the expert to show if there was enough evidence to show that Lexapro could cause suicidal tendency amongst general public. If the answer to this question is in the affirmative then the expert is laden with the task of showing whether the intake of the drug, lexapro actually contributed to Mr. Cross’s decision to terminate his life.

The court cited another case (In re Celexa & Lexapro Products Liab. Litig., 927 F. Supp. 2d 758, 768 (E.D. Mo. 2013) where the testimony of the causation expert Dr. Healy was accepted. Dr. Healy in that case had proved to the contentment of the court that Lexapro could develop the tendency to commit suicide in a person in three ways: (1) akathisia; (2) emotional blunting and disinhibition; and (3); psychotic decomposition. Dr. Glass specifically excluded mechanism 1 and 3 and identified a seemingly new mechanism called “egodystonia”; which essentially referred to an action not typical or consistent with the concerned person’s personality. But the court notes that in his deposition, Dr. Glass had consistently insisted upon the fact that it seemed that the deceased was experiencing “emotional blunting and disinhibition”  (i.e. mechanism 2)

Keeping all the above records in mind the United States District Court for the Northern District of Mississippi, Eastern Division rejected the arguments raised by the defendant. Forest Laboratories had also argued that Mr. Glass, it seemed was basing his entire opinion on “temporal connection evidence” that since Mr. Cross’ death was proximate to the ingestion of lexapro the latter must be the significant contributing cause.

But the court held that the expert had considered sufficient facts, (like how lexapro was the only new factor introduced in Mr. Cross’ lifestyle before he experienced the fatal mood swing, how traces of lexapro was detected in the blood sample through the toxicology report and how there was enough evidence to support the finding that exposure to SSRI to the general public, especially to elders could make patients feel the suicidal urge) before drawing the chain of causation. It was clarified by the court that a finding arrived at only through temporal connection would usually be given very little weightage in the determination of causation; unless, (like in this case) it is supplemented by adequate established scientific method and circumstantial evidence.

The Court therefore allowed and accepted the testimony of the causation expert, Mr. George S. Glass.