Bar on Expert Testimony Puts Thousands of Accutane Cases in Jeopardy

Dr. Manges Ph.D. | Forensic Psychologist | Expert Witness

Last month we focused on expert witnesses – what to consider when hiring an expert and how expert witnesses are judged by a jury.

A recent decision in a high-profile case, however, highlights the importance of expert testimony and expert witnesses. A large class-action lawsuit in New Jersey has been pending for the past twelve years. The class, a group of 6,700 consolidated lawsuits, alleges that Accutane (an acne medication) causes harmful side effects such as IBD (inflammatory bowel disease), birth defects and extreme depression. Crohn’s, a chronic and painful gastrointestinal disease, is a type of IBD. Along with a host of extremely unpleasant symptoms, Crohn’s disease can also lead to cancer and other life-threatening complications.

On February 23, 2015, Judge Newlson Johnson ruled that the plaintiffs could not offer expert testimony to substantiate their claim that the acne medication causes Crohn’s disease. The judge concluded that the plaintiffs’ expert witnesses, medical researchers Dr. Arthur Kornbluth and Dr. David Madigan, “cherry-picked” available evidence to reach the conclusion that Accutane causes Chron’s disease. Dr. Kronbluth teaches at Mount Sinai Medical School and Dr. Madigan is a statistics professor at Columbia University. Before hearing the testimony, Judge Johnson asked both parties to present him with all reports, treatises, and other scientific literature on which the experts relied. The judge concluded that the plaintiffs’ experts were cherry picking evidence by noticing that the doctors relied heavily on two studies, one of which did not appear to actually support their conclusion and the other which had only 76 subjects. The judge ruled that the expert testimony must be precluded under rules of evidence for failing to meet the standards of scientific reliability. The rule requiring scientific reliability does not focus on consensus within the scientific community but requires that a conclusion is based on generally accepted scientific methods.

The judge functions as the “gate-keeper” and must keep out unsubstantiated “conclusion based” scientific expert testimony. Reflecting on this standard and the judge’s function, Judge Johnson wrote: “It is one thing to stand alone in the world of science, advancing a hypothesis that others do not accept. It is quite another thing to advance a hypothesis that can only be supported by disregarding valid scientific research.” Without the testimony of the plaintiff’s expert witnesses, it is unclear how the plaintiff’s lawsuits will prevail.

It will prove nearly impossible for the plaintiffs to show that there is a connection between their Crohn’s disease and Accutane without expert testimony. An estimated 2,500 to 3,000 cases in the class involve Crohn’s disease within the class. Legal experts anticipate that many of these cases will now quickly be dismissed. This ruling demonstrates how quickly a case can deteriorate without reliable and scientific expert testimony.

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Dr. Kenneth Manges is a Forensic Psychologist and vocational expert who offers consultation and comprehensive evaluations. His analyses have been recognized for their clarity and scientific rigor. He offers reasonably certain opinions about the psychological impact of physical injury or emotional trauma as they affect earning capacity and the impact of loss on future work and quality of life. Well regarded in the litigation arena, he is a trusted and respected authority and offers evaluations that have been consistently upheld in both state and federal courts.