In Cooper v. Takeda Pharmaceuticals, an appeal from the Court of Appeal for the State of California, Second Appellate District, a husband and wife filed a lawsuit against Takeda Pharmaceuticals in which they alleged defendant’s Actos drug was responsible for husband’s bladder cancer, with which he was diagnosed in 2011.
Takeda manufactures pioglitazone, which is the generic name for Actos, a drug used to treat and control Type 2 diabetes. The drug was first on the market following approval from the United States Food and Drug Administration, and husband took the medicine from 2006 until his diagnosis with bladder cancer in 2011.
As part of their lawsuit, husband and wife claimed defendant was negligent in failing to warn of a known danger, making fraudulent misrepresentation, and fraudulently concealing a known danger. They also filed a claim for punitive damages and loss of consortium. As our Boston Actos injury attorneys can explain, loss of consortium is a claim typically filed by a spouse when his or her spouse is no longer able to engage in a normal marital relationship after being injured or killed by defendant’s negligent act or omission. It is a common claim in cases involving dangerous or defective drugs.
Trial was held, and verdict was rendered in favor of plaintiffs. Following trial, defendant moved for what is known as judgment notwithstanding the verdict. Defendant also moved for a new trial on grounds of insufficiency of evidence. A motion for judgment notwithstanding the verdict means that the losing party is asking the judge to determine a jury could not have acted reasonably in making the finding it did, given the evidence before it. The judge granted both motions, and plaintiffs filed a timely appeal.
On appeal, the court looked at the reason trial court agreed to strike testimony from plaintiff’s expert. This deals with a trial judge’s role in allowing or disallowing a jury to hear expert testimony. Normal witnesses are not experts and can only testify as to facts, not their opinions. For example, a lay witness can say she saw the driver run a red light and continue through the intersection, causing an accident. This is a readily observable fact. On the other hand, this same witness could not say the driver ran the red light because he did not see the red light. This is not based on fact, but is her opinion of what happened. While she may be correct, she can’t testify to it, because it is an opinion. If she saw his head turned away, this would be a fact to which she could testify.
Experts are allowed to testify to opinion, if that opinion is based upon training and experience, and the trial court has certified witness as an expert in a relevant subject area. In the case of scientific evidence, the judge must determine the science is sound, accepted in the scientific community, and subject to peer review. In this role, the judge serves as a gatekeeper.
In this case, the appeals court found trial judge had gone beyond the scope of his authority in striking expert testimony, granted a new trial and ordered a new verdict be entered.
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Cooper v. Takeda Pharmaceuticals, In the Court of Appeal for the State of California, Second Appellate District, August 13, 2015
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