We had the pleasure of talking on a panel at ACI final week, together with dialogue of the terrific order from the Zantac MDL excluding all of the plaintiffs’ common causation consultants.  That order basically did away with a whole MDL and got here in fourth on our checklist of greatest choices of 2022 .  Our completely pleasing panel dialogue of that Rule 702 order precipitated us to return by means of the information to see if there have been different good knowledgeable orders that we might have missed.  That assessment turned up an order from the Zostavax MDL that’s eminently blogworthy.

The order is In re Zostavax Merchandise Legal responsibility Litig., No. 18-md-2848, 2023 WL 6626581 (E.D. Pa. Oct. 11, 2023), and technically we didn’t “miss” it.  Bexis doesn’t miss something, and Lisa Baird posted a one-paragraph replace on this determination again when it got here out.  There are, nonetheless, a number of attention-grabbing angles we thought we might amplify. 

The Zostavax MDL has been primarily about shingles, however as we reminded you all simply the opposite day, the shingles instances basically went kaput as a result of the plaintiffs couldn’t show causation.  The leftovers have fared no higher, with the district courtroom dismissing a case alleging peripheral neuropathy and excluding knowledgeable causation opinions on persistent day by day complications. 

The plaintiff within the order we’re overlaying at this time alleged that he got here down with Guillian-Barré syndrome, a uncommon autoimmune dysfunction characterised by diffuse weak spot, simply days after he obtained a Zostavax vaccine.  However as we reported in our replace, the district courtroom excluded the plaintiff’s knowledgeable on particular causation as a result of his differential prognosis didn’t cross muster.  There are 4 factors we needed to focus on. 

First, the district courtroom handled common causation first and concluded that the plaintiffs’ consultants’ reliance on epidemiological research (or extra precisely, one epidemiological examine) was sound methodology.  The defendants clearly disagreed, and the courtroom freely acknowledged that there was scientific proof going the opposite approach.  However a minimum of the courtroom dominated on common causation earlier than it engaged in a differential prognosis.  We’ve got seen courts skip that step altogether, leaving us to marvel how a defendant’s product may be “dominated in” as a possible trigger when it has not but been established that the product is able to inflicting the alleged damage within the first place.  This courtroom didn’t make that mistake. 

Second, the courtroom credited the consultants’ reliance on epidemiology, however threw severe shade on one knowledgeable’s reliance on case stories and opposed occasion stories, that are “‘universally acknowledged as inadequate and unreliable proof of causation’ within the absence of different dependable proof.”  Id. at *5.  In different phrases, case stories are anecdotal and are make-weight proof at greatest.  Thus, whereas consultants can justifiably rely “partially” on them, “reliance on case stories needs to be minimized as a result of they don’t take note of the background price of illness.”  Id.

Third, the courtroom dominated that temporal proximity alone was inadequate to “rule in” the defendant’s vaccine as a possible trigger.  It is a vital ruling as a result of, in lots of instances, the solely foundation for the plaintiff’s case is that she or he skilled signs at a while after publicity to the defendant’s product.  Right here, the plaintiff’s particular causation knowledgeable “dominated in” the vaccine primarily based on the quick time (three days) between when the plaintiff obtained the vaccine and when his signs started.  However that might have been a coincidence, and even the plaintiff’s knowledgeable conceded that contracting Guillian-Barré syndrome “lower than one week after a triggering an infection is uncommon.”  Id. at *6.  The courtroom dominated that the knowledgeable’s “ruling in” of Zostavax failed due to his “after this, due to this fact due to this” reasoning.  Id.

Fourth, the courtroom dominated that the plaintiff’s knowledgeable’s differential prognosis was unreliable and inadmissible additionally as a result of he had not dominated out idiopathic causes.  It is a vital ruling too, as a result of many illnesses and circumstances happen for unknown or unexplained causes (see, for instance, mesothelioma).  This knowledgeable admitted that roughly one-third of Guillian-Barré syndrome instances resulted from unknown or unexplained causes, and his personal medical expertise was that one-half of the instances he had seen had been idiopathic.  Id. at *6.  But, the knowledgeable didn’t rule out idiopathic causes in his differential prognosis, which doomed his opinions.  We don’t take this ruling essentially to imply that an knowledgeable has to rule out idiopathic causes in each case.  When, nonetheless, a big variety of instances are idiopathic, it must be on the differential.

So take these helpful nuggets and run with them.  From a broader view, we are going to echo what we now have mentioned earlier than—that this MDL appears to be on its final legs, with a hodgepodge of allege accidents and choose who’s proactively steering the leftovers to a dignified conclusion.  We are going to hold you posted.