Expert testimony remains in lawsuit over allegations Vioxx caused heart attacks

By Scott Holland | Jun 5, 2019

KANSAS CITY – A federal judge refused to strike expert testimony in a product liability lawsuit.

In an opinion issued May 29, Judge Ortrie Smith of the U.S. District Court for the Western District of Missouri denied Merck & Co.'s motion to exclude a doctor's causation opinion in the case.

In September 2006, Jo Levitt sued Merck & Co. in federal court alleging the company’s drug Vioxx contributed to her two 2001 heart attacks. Two months later, the complaint was transferred to federal court in Louisiana as part of multidistrict litigation involving Vioxx, which retained jurisdiction during discovery.

Smith said Levitt retained Dr. David Egilman as an expert regarding injuries not related to her heart attacks.

“Dr. Egilman testified Vioxx is a significant contributing cause of (Levitt’s) acute coronary syndrome, which first presented as unstable angina,” Smith wrote. “He based this opinion on studies demonstrating a link between Vioxx and ACS as well as a statistical analysis of (Merck’s) data.”

Merck filed a motion in Louisiana to exclude Egilman’s testimony, saying the studies concerned ACS in general, not its initial presentation as unstable angina, and further that the U.S. Court of Appeals for the 5th Circuit requires a medical expert’s testimony to be based on studies that link a specific drug to specific symptoms. The Louisiana court said the 5th Circuit cases didn’t apply and deferred the matter to Missouri court for application of 8th Circuit law.

According to Smith, Levitt argued “Egilman is qualified because of his extensive training and experience … (and) has testified in numerous courts throughout the country on issues similar to his opinions presented in this case.” 

Smith also said Levitt maintained Egilman is allowed to cite a study agreeing with his own conclusions and that the study shouldn’t be limited to unstable angina data.

“Because acute coronary syndrome includes unstable angina, (Levitt) argues that Dr. Egilman should be allowed to use an analysis linking acute coronary syndrome to Vioxx as evidence that Vioxx caused (Levitt’s) injuries,” Smith wrote.

Smith further said there are several 8th Circuit cases calling for liberal admission of expert testimony and that the proper response is cross-examination and competing testimony from another expert, and also that “the 8th Circuit permits expert testimony on causation without the need to cite to studies linking the specific injury to the specific drug.”

Since the multidistrict litigation court in Louisiana already found Egilman qualified based on his professional experience, including in epidemiology, his conclusions based on another doctor’s report are admissible as evidence, Smith wrote.

“...Egilman’s opinions and testimony rest upon good grounds, are based upon what is known, are supported by medical records and (Levitt’s) testimony and may assist the jury,” Smith wrote. “Moreover, any doubts the court has with regard to Dr. Egilman’s opinions and testimony must be resolved in favor of admissibility.”

In addition to rejecting the motion to dismiss the testimony, Smith also denied as moot Levitt’s motion to strike Merck’s purportedly new arguments against her response to the motion to exclude Egilman’s testimony. Levitt also tried to file a sur-reply opposing Merck;s motion to exclude Egilman’s input, but Smith said that reply isn’t necessary to decide whether or not to keep the testimony and denied that motion as well.

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