Miami, FLA legal setback has affected some plaintiffs alleging Accutane inflammatory bowel disease, otherwise known as Accutane IBD—an adverse reaction to the acne medication that was recently recalled by the manufacturer in the US but is still available in Canada. Various legal actions alleging Accutane side effects were consolidated in a multidistrict litigation in the US District Court for the Middle District of Florida.
Earlier this month, the 11th Circuit US Court of Appeals affirmed summary judgment in six federal Accutane cases (Julia Bishop et al v. Hoffman-LaRoche, Inc.) due to an earlier court's exclusion of a plaintiff causation expert.
It was in 2008 that the 11th Circuit Court affirmed the exclusion of Dr. Ronald Fogel on general causation in earlier cases. However, that didn't stop the six more recent cases from recruiting Dr. Fogel as their causation expert, citing new scientific evidence.
The plaintiffs in the most recent case, according to the 5/10/10 issue of the Torts and Personal Injury Law Center Blog, moved to supplement the record with a newly discovered abstract, "Accutane Use Is Associated with Inflammatory Bowel Disease: A Case Control Study Using Administrative Data," produced by Seth Crockett, MD and others, and presented at that time as a study poster for a medical conference.
However, US District Court Judge James S. Moody Jr. was of the view that Dr. Fogel's opinion in the six cases largely relied on the same scientific data as the first group of cases (for whish he was excluded by an earlier court), with one exception, which Judge Moody felt was insufficient to overturn the earlier exclusion. He denied the motion to supplement without explanation and granted summary judgment to defendant Hoffman-La Roche Inc.
The plaintiffs appealed to the 11th Circuit US Court of Appeals, putting forth the view that if the Crockett study was allowed to be admitted, their causation expert could have relied on the data to show causation, clearing the way for his admission as an expert and precluding the summary judgment.
However, the 11th Circuit Court of Appeals did not share that view.
"We need not evaluate plaintiffs long string of hypotheticals because, even if the district court had admitted the study, plaintiffs never submitted evidence that Dr. Fogel adopted the study or would have included it in his evaluation," the panel said in a per curiam decision. "We can find no abuse of discretion in the exclusion of Fogel[']s testimony, and without Dr. Fogel, the district court did not err in concluding that, [w]ithout expert testimony suggesting Accutane can cause IBD, the plaintiffs are unable to prove liability."
Julia Bishop, Christopher M. Perronne, Eileen Baril, Kenneth S. Palmer, Clay R. Seymour and Jason S. Adkins are the six plaintiffs that filed federal cases falling under the Accutane multidistrict litigation in the US District Court for the Middle District of Florida. The appeals court, at the end of the day, agreed with the earlier ruling that the plaintiffs had not adequately shown that Dr. Fogel relied on a new study linking Accutane to inflammatory bowel disease.
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