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A favorable decision on causation and late expert reports

By James M. Beck and Mark Herrmann

We can?t comment very much because our firm is involved in the case (and we can?t avoid that by shipping it off to Herrmann any more), but we wanted to direct your attention to an interesting opinion in the Baycol litigation. Flesner v. Bayer AG, 2010 WL 711972 (8th Cir. Mar. 3, 2010). The Eighth Circuit affirmed summary judgment and nicely explained why the mere fact that some symptoms occurred during the months after the plaintiff took the defendant?s drug is insufficient to support an expert?s opinion that the drug caused the symptoms. Id. at *5-7. The court also affirmed the trial court?s refusal to consider a supplemental expert report submitted long after the court?s deadline. Id. at *3. Expert opinions based on the ?post hoc ergo propter hoc? fallacy and belated expert reports occur frequently in drug and device cases, and we did not want our involvement in the case to keep you from knowing about this useful decision.

Full post as published by Drug and Device Law on March 09, 2010 (boomark / email).