Plaintiff sued defendant after giving birth to two children with physical deformities and cognitive disabilities. She alleges that this occurred due to her taking Depakote while pregnant. Plaintiff hired three experts to assist in her case. The defendant filed motions to exclude these experts. The court granted one of these motions and denied two.
Facts: This case (Susan Kay Willis, Willie R. Willis, K.R.W. and K.W.W. v. Abbott Laboratories and AbbVie Inc. – United States District Court – Western District of Kentucky – December 1st, 2017) involves the medication Depakote. The Plaintiff (Susan Willis) took the medication while pregnant and her children were born with physical deformities and cognitive disabilities. They allege that taking Depakote attributed to these issues. In order to prove their case, the Plaintiffs hired three expert witnesses: Dr. Michael Cecil (neuropsychology expert witness), Dr. Robert J. Lerer (pediatrics expert witness), and Dr. Michael Privitera (neurology expert witnesses). The defendant has filed motion to exclude the testimony of these three experts.
Discussion: Dr. Lerer performed a pediatric assessment on the plaintiffs. In his expert report, he opined that the injuries to the children were caused by in utero exposure to Depakote. The defendant does not argue that Dr. Lerer is not qualified to offer an opinion or that his opinion is not relevant. The defendant alleges that the methodology used by Dr. Lerer is not reliable. The defendant argues that Dr. Lerer’s opinion was the result of an improper differential diagnosis. They argue that Dr. Lerer’s methodology did not rule out other possible causes of the injuries, such as potential genetic causes, family history, as well environmental and social factors. The court opined that Dr. Lerer did consider possible alternative causes that would explain the impairments. In addition, any arguments about how he ruled out these alternative causes go to the weight of the evidence, not the admissibility. Thus, the court ruled that Dr. Lerer’s expert witness testimony should not be excluded.
The defendant also argues that Dr. Cecil’s opinions should be excluded on three grounds: 1) Dr. Cecil is not qualified to offer an opinion in this case; 2) his methodology is unreliable; and 3) he changed his opinion that Depakote “may” have caused the injuries to “more likely than not”. The court opined that Dr. Cecil is not qualified to offer an expert opinion in this case as all of his experience has been diagnosing a neurological disorder, not what caused the disorder. Also, his knowledge of Depakote is the result of articles he read while working on his expert report for this case. In addition, the court opined that Dr. Cecil provides no methodology as to how the sustained injuries may have been caused by taking Depakote. In addition, Dr. Cecil does not rule out other possible causes of the injuries. Thus, the court ruled that Dr. Cecil’s expert testimony should be excluded.
Last, the defendant argued that Dr. Privitera’s expert testimony should be excluded because he does not rule out other potential causes of the injuries. The court opined that Dr. Privitera’s methodology is reliable as he adequately outlines his methodology in forming his opinions. Thus, the court opined that Dr. Priviteria’s opinions will be allowed.
Conclusion: The motion to exclude the expert opinions of Dr. Robert J. Lerer and Dr. Michael Privitera are denied and the motion to exclude the expert opinion of Dr. Michael Cecil is granted