Recently, Bexis was contacted by a reporter who had read the blog’s post on ghostwriting. Bexis explained that people at the top of any profession – medical, legal, engineering, whatever – have more reasons opportunities to publish than they could possibly have time to write from scratch on their own. Judges have law clerks, law firm partners have associates, law professors have students, and medical doctors have. . . . Nobody in the same capacity (medical residents are notoriously overworked), really, but if they’re conducting studies, the sponsors of the studies, to get things done in a timely fashion, are quite happy to provide for medical publication services to get things drafted in a timely fashion.
As long as: (1) the data are accurately portrayed, (2) the methods of analysis used are scientifically appropriate, and (3) the existence and extent of sponsor support are fully disclosed, the fact of ghostwriting is of no consequence. It’s a way to get properly conducted studies with results of interest to the medical/scientific community completed and into print as quickly as possible. That’s called “progress.”
Still, the reporter’s skepticism was not surprising. The other side likes to jump up and down and scream “fraud” whenever it can, even when the science being criticized is rock solid. Bendectin is perhaps the most thoroughly debunked mass tort in United States litigation history – it produced Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), among much else − but even there the purveyors of junk science were able to hoodwink an otherwise pretty solid justice of the Pennsylvania Supreme Court:
[B]oth the majority and the Superior Court overlook . . . the record fact that the “scientific” orthodoxy on Bendectin held up to silence the appellants’ experts was in many instances bought and paid for by [defendant] to further their litigation needs. . . . [W]ith untold millions of dollars at its disposal, and untold millions more at stake, [defendant] was able to create and influence a scientific subdiscipline devoted to result-driven studies that [it] could then cite to defeat lawsuits.
Blum v. Merrell Dow Pharmaceuticals, Inc., 764 A.2d 1, 14 (Pa. 2000) (Castille, J., dissenting). Fortunately, this was a lone dissent. The real science about Bendectin was such that the FDA never found any reason to take Bendectin – then the only effective treatment for morning sickness available – off the market. Id. at 4 n.5 (majority opinion); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 708 (Tex. 1997) (“FDA approval of Bendectin has never been revoked”). Only the exorbitant costs of defending scientifically baseless lawsuits like Blum did that.
But what about when the shoe is on the other foot? Plaintiffs love to take a holier-than-thou approach to scientific research, but sometimes they purport to do their own . . . science, that is. We took a look, and the academic misconduct we found on the other side makes any theoretical problems with practices such as ghostwriting pale by comparison. We’ll start with the aforementioned Bendectin litigation. It was too late to save that drug from destructive (albeit scientifically baseless) litigation, but ultimately it was revealed that the primary plaintiff’s expert was a fraud:
Moreover, by the late 1980s it was becoming increasingly obvious that Dr. McBride, who “occupied a central place in the Bendectin debate” as a frequent plaintiffs’ expert, had deliberately falsified his research so as to link the active ingredient in Bendectin to limb birth defects. Indeed, the same year that the Supreme Court’s Daubert v. Merrill Dow decision unofficially closed out the Bendectin litigation with the introduction of judicial gate-keeping, Dr. McBride was discharged from the practice of medicine for having falsified Bendectin research.
James M. Sabovich, “Petition Without Prejudice: Against the Fraud Exception to Noerr–Pennington Immunity from the Toxic Tort Perspective,” 17 Penn St. Envtl. L. Rev. 1, 30-31 (2008) (footnotes omitted). As we’ve already discussed, the same thing happened to Andrew Wakefield, a defrocked doctor who lost his licence to practice medicine for having falsified “research” – paid for by UK plaintiff lawyers – concerning vaccines and autism.
Remember the Mirena MDL litigation? As we discussed several times before, the plaintiffs’ causation evidence was exposed as junk science, the entire MDL was ultimately dismissed for lack of valid scientific basis, and the dismissal upheld on appeal. One of the reasons was the dodgy nature of “science” purportedly created by one of the plaintiffs’ experts. As pointed out by the court in In re Mirena IUD Levonorgestrel-Related Products Liability Litigation (No. II), 341 F. Supp.3d 213 (S.D.N.Y. 2018), “no medical organization, regulatory agency, article in peer-reviewed scientific literature, or other research has found that use of [that drug] is a cause of [the claimed injuries].” Id. at 226. So one of plaintiffs’ experts did his own study – while concealing his litigation ties from any and all readers:
At the time that he published the study, Dr. Etminan was serving as a retained expert for plaintiffs in the pre-MDL Mirena/IIH litigation. The Etminan study did not disclose this relationship. The study declared in its “conflict of interest statement” that the authors did not have any conflict of interest to declare.
Id. at 229. Predictably, it was junk science.
In 2016, the Etminan study came under attack. [An] author of various studies relating to IIH, published, in the same journal as the Etminan study, a letter critiquing on multiple grounds the Etminan study’s methodology. Centrally, she noted that Etminan’s disproportionality analysis − the part of his study that had pointed to an increased [disease] risk for Mirena use − had failed to adjust for age and gender, thus comparing Mirena patients (reproductive-age females) to populations like older men who almost never get [the condition at issue]. [The author] termed the Etminan study’s conclusions “erroneous and misleading.”
Id. at 230. After some further back and forth, plaintiffs’ expert surrendered.
Later in 2016, Dr. Etminan changed course. He repudiated much of his study’s analysis. On December 17, 2016, after being served with a notice of a deposition in a lawsuit against [defendant] that is now part of this MDL, Dr. Etminan furnished . . . a sworn affidavit retracting many of his study’s findings.
Id. at 232. We devoted an entire post to this contretemps at the time, and provided a copy of the affidavit later mentioned in the Mirena opinion. The opinion quoted the the conclusion of this expert’s extended mea culpa:
Based on the above, as the lead author of this article, I acknowledge that neither of the analyses in the article provide evidence that Mirena use increases the risk for [the condition at issue]. Therefore, there is no basis to say, based on these analyses, that the risk of [this condition] with Mirena use outweighs the risk of unplanned pregnancies.
Id. at 222-23.
Don’t think for a moment that Dr. Etminan folded of his own free will. The deposition (and other discovery) in the other lawsuit mentioned in the Mirena opinion was fiercely opposed by the plaintiffs – who lost. “[T]here is no blanket prohibition set forth in the discovery rules against discovery directed to third-party academics, and plaintiff has not cited to any cases binding on this court stating that there is any recognized privilege of an academic or scholar to avoid discovery.” Kellington v. Bayer Healthcare Pharmaceuticals, Inc., 2016 WL 5349801, at *2 (W.D. Va. Sept. 23, 2016).
There being no privilege or prohibition against disclosure, the discovery sought is governed by the general discovery rules, which the court concludes allow the discovery, particularly under the unique facts of this case. Those facts include that Etminan was previously identified and deposed as an expert, but then withdrew before all of his deposition testimony could be completed. The court also finds it significant that plaintiff’s other causation experts all rely on the Etminan Article. . . . As such, the Etminan Article is important and central to the crucial and disputed issue of causation in the case.
Id. The Etminan Mirena affidavit appears to have been prepared to forestall a wider deposition. Who knows what additional facts a full deposition would have discovered? Would it have had McBride/Wakefield-level consequences? We’ll never know.
Indeed, Dr. Etiminan could be a repeat player at this sort of thing. Other “research” of his recently squeezed by a Daubert challenge in In re Abilify (Aripiprazole) Products Liability Litigation, 299 F. Supp.3d 1291 (N.D. Fla. 2018), including arguments that it was “compromised by bias.” Id. at 1325. The “facts” were as follows:
This argument is based on the fact that Dr. Etminan contacted Plaintiffs’ counsel shortly after learning about this litigation on AboutLawsuits.com, before he developed the research protocol for the Study. The implication, of course, is that Dr. Etminan was predisposed towards results that would support Plaintiffs’ theory of general causation in this case. . . . According to Dr. Etminan, the conversation lasted only two minutes, during which he advised Plaintiffs’ counsel that he intended to conduct a study on Abilify, gambling, and impulse control disorders.
Id. Thus, the Abilify study at issue appears to have been an entrepreneurial initiative – a proposal made by an expert seeking additional business, to an attorney who could (and ultimately did) provide such business.
This particular study survived because “Plaintiffs’ counsel immediately ended the conversation,” had no “further discussions about the study with Dr. Etminan until after it was published,” and “did not fund the Etminan Study.” Id. Thus, “[w]hile contacting Plaintiffs’ counsel may have been a strange thing to do,” the court held that, “without more, it does not invalidate” the results. Id. at 1325-26. As in the Mirena litigation, the court in Abilify had to force plaintiffs to allow discovery into academic bias. “Defendants should be allowed to inquire of Dr. Etminan whether his communications with any plaintiffs’ counsel influenced the study in some way.” In re Abilify (Aripiprazole)Products Liability Litigation, 2017 WL 2225614, at *3 (N.D. Fla. May 15, 2017).
Another doozy of a plaintiff-side expert engaging in questionable academic conduct occurred in McClellan v. I-Flow Corp., 710 F. Supp.2d 1092 (D. Or. 2010), involving allegations that certain medical devices caused shoulder injuries (called “chondrolysis”). We ran across McClellan in preparing a recent post on differential diagnosis, but it’s even more relevant to the topic of this post. Testimony from an expert (named Matsen) based on an “ever-changing and unfinished study” was barred due to bias and related litigation misconduct. Id. at 1119. The unfinished study had its genesis in an earlier study by the same expert that could not be published due to pervasive litigation bias – specifically:
The idea for the study originated with [plaintiffs’ counsel], who provided [the expert] with patient records he had obtained from [another doctor] during the course of a state court pain pump litigation. [The expert] presented the 67-[patient] study for publication in a peer-reviewed journal, but it was repeatedly rejected because of selection and litigation bias. Journal reviewers were concerned that [the expert] provided no information about the population from which the 67 patients were selected and that the patient data had been obtained from a law firm.
Id. (record citations omitted). The 67-patient study was the “father” of the larger, 396-patient study that was excluded in McClellan. Id. at 1120.
After the 67-study was rejected for publication, [plaintiffs’ counsel] and [the expert] developed the idea for the 396-[patient] study to address the concern of selection bias. [Counsel] offered to provide [the expert] with a more complete set of patient data and obtained patient records from . . . surgeries performed by [the same other doctor].
Id. at 1119-20.
No dice. The court “f[ou]nd that litigation bias is ultimately what renders [the expert’s] testimony unreliable.” Id. at 1120. First:
[P]laintiffs retained Dr. Matsen as an expert before the 396-study’s genesis . . ., and [the expert] had no prior experience in [the surgery or the condition]. Thus, not only was [the expert] opinion developed for purposes of litigation, the study that was intended to support his opinion was designed and conducted during the course of litigation.
Plaintiffs do not dispute that [the expert] undertook his investigation in the course of litigation and his analysis has not yet been published. That [the expert] agreed to assert a causation opinion in this and other litigation − prior to the conclusion of his study that purportedly forms the basis of his opinion − evinces a preconceived belief that is not supported by a reliable, or even identifiable, basis.
Id. at 1121 (record citation and quotation marks omitted). Third:
[T]he circumstances under which the 396-study evolved give the court pause. First, the idea for the 396-study originated in part with . . . counsel for plaintiffs in this and other [similar] litigation. Second, the patient data for the study was provided by [counsel]. Third, [counsel] obtained the patient data from [the other doctor], a surgeon whose patients experienced a high incidence of [this particular injury] and who entered into settlement agreements with patients who were represented by [counsel]. . . . Finally, [plaintiffs’ counsel] and [the expert] developed the idea for the study and compiled the data to support it after [counsel] retained Dr. Matsen as an expert witness and during the course of litigation. These facts alone raise the disquieting specter of litigation bias.
Id. (various record citations and footnote omitted).
Once again, defense discovery into the relationship between counsel and the excluded expert was critical. The defendant forced the disclosure of a series of damning emails (quoted at length in McClellan) that established rampant litigation bias and attorney interference:
[N]ot only did [plaintiffs’ counsel] create the idea for the 396-study, provide the raw patient data for the study, and select the nurse to perform data extraction for the study, [counsel] also compared his (or his “team’s”) findings from the data with those of [the expert] and encouraged [the expert] to do the same, identified patients who should be diagnosed with [the condition], conferred with [the expert] to “correct” diagnoses of chondrolysis, and directed [the expert] to include certain patients in the study. Contrary to plaintiffs’ strenuous assertions, [their counsel] was more than a “mere conduit” for the delivery of raw data.
Putting to rest any doubt that these communications are not what they seem, [the expert] conceded at his deposition that he contacted [counsel] for information and in doing so disregarded protocol intended to insulate the study from ongoing litigation.
McClellan, 710 F. Supp.2d at 1123 (D. Or. 2010) (more record citations omitted).
McClellan fits the emerging pattern of plaintiff obstruction of discovery intended to unearth evidence of their experts’ litigation bias. This expert “entitled [plaintiffs’ counsel] to access information pertinent to the 396-study, even as defense counsel was denied such information on grounds that it was ‘proprietary.’” Id. at 1124.
[T]he e-mail communications that reflect [plaintiffs’ counsel’s] involvement were not produced by [counsel] or [the expert], even after plaintiffs were twice ordered to produce documents, including e-mail communications, relating to the subject matter of the 396-study. Instead, [a nurse] produced the documents in response to a deposition subpoena. Given that [counsel] eventually was advised by [the expert] “not to include [the nurse] on these e-mails,” the court is not confident the full extent of [counsel’s involvement or his communications with [the expert] have been disclosed. In any event, I find that counsel’s withholding of e-mail communications clearly violate the court’s discovery orders. . . .
Despite clear direction from two federal judges regarding the scope of discovery, plaintiffs nonetheless withheld e-mail communications between [their counsel] and [the expert] that discuss the diagnosis of [the condition] in certain patients involved in the 396-study − communications considered [the expert] that clearly discuss, address and/or pertain to the subject matter of his opinion.
Id. at 1124-25 (quotations from various discovery orders omitted).
In view of plaintiffs’ obstruction of discovery in McClellan, the court could have “rel[ied] solely on Rule 26 to exclude Dr. Matsen’s expert testimony,” but instead did so for substantive reasons – litigation bias. Id.
[T]he circumstances of the 396-study and its unfinished status render [the expert’s] opinion irreparably tainted by litigation bias and unreliable. At best, [the expert] sought “clarification” from [plaintiffs’ counsel] concerning his analysis of the patient data. At worst, [counsel] utilized [the expert] in an orchestrated attempt to design, conduct, and complete a research study for the purpose of supporting litigation in which he has a vested economic interest. Either way, the resulting litigation bias, combined with the ever-changing and still unfinished report that is the crux of [the expert’s] opinion, render his testimony unreliable and inadmissible.
Id. (footnote omitted).
The oldest case we found discussing academic misconduct by a plaintiff’s expert in product liability/toxic tort litigation is Wade-Greaux v. Whitehall Laboratories, Inc., 874 F. Supp. 1441 (D.V.I. 1994), aff’d mem., 46 F.3d 1120 (3d Cir. 1994). In Wade-Greaux, one plaintiff’s expert (named Gilbert), “conceived” of a rabbit study that might tie a certain drug to birth defects. However, from there things became rather questionable:
Once the study had been completed, [the expert] prepared a manuscript that she submitted to Teratology, [a] peer-reviewed journal. . . . Teratology rejected the manuscript and returned it with criticisms. Thereafter, [the expert] enlisted . . . another of plaintiff’s expert witnesses, to rewrite her report of the study. . . . [The first expert] sent [the second] two drafts of the manuscript of her study, but did not send him, and he did not see, any of the data underlying the rabbit study. [The second expert] simply revised [the original] draft, added his own name as an author and, with [the first expert’s] approval, submitted the revised draft to a veterinary publication, Veterinary and Human Toxicology.
[The experts] did not report either in her manuscript to Teratology or in the later manuscript to Veterinary and Human Toxicology that plaintiff’s counsel contributed to the costs of the study.
Id. at 1459 (lots of record citations omitted). In addition to concealing the plaintiffs’ financial sponsorship, the study itself (according to the court) was garbage:
- “Plaintiff’s experts demonstrated great confusion as to the number of rabbits used in the study.
- It was “a mere pilot study” that was “inappropriate for [the expert] or any other scientist to rely upon” for causation purposes.
- “[N]either [expert] was familiar with the underlying data of the study.”
- “[T]he required dose/response relationship does not exist.”
- The study was “compromised by the fact that the protocol’s directions . . . was [sic] not followed.”
- “[N]one of the reports of the study, especially the one rewritten by [the second expert] accurately reports the data underlying the study.”
Id. at 1459-62 (many other criticisms omitted). Affirming, the Third Circuit “agree[d] with the district court’s conclusion and s[aw] no reason . . . to repeat what the district court exhaustively explained.” Wade-Greaux v. Whitehall Laboratories, Inc., 1994 WL 16973481, at *1 (3d Cir. Dec. 15, 1994) (unpublished).
At the other end of the chronological spectrum, the most recent similar decision is a still ongoing saga, but (so far) looks like another doozy. In In re Zofran (Ondansetron) Products Liability Litigation, ___ F. Supp.3d ___, 2019 WL 3335967 (D. Mass. July 25, 2019), a study (see p. 19 for the expert’s “no outside involvement” conflict of interest statement) that was “a central piece of plaintiffs’ experts’ causation opinions” turned out to be extremely questionable. Id. at *1. Seeking to prevent discovery into the study’s provenence, “plaintiffs characterized Dr. Zambelli-Weiner as a research scientist. They did not reveal that she was a paid consulting expert for plaintiffs.” Id. at *2. That effort failed, so the expert next submitted a sworn affidavit while seeking a protective order, also to thwart discovery. Id. This affidavit proved most unfortunate, and eventually led “counsel for Dr. Zambelli-Weiner [to] file an emergency motion to withdraw his appearance, notifying the Court that he had learned that ‘factual representations’ made in her affidavit were ‘inaccurate.’” Id. That’s what’s known as a “noisy withdrawal,” an unusual procedure that lawyers use only in extreme circumstances.
A lawyer who knows or with reason believes that her services or work product are being used or are intended to be used by a client to perpetrate a fraud must withdraw from further representation of the client, and may disaffirm documents prepared in the course of the representation that are being, or will be, used in furtherance of the fraud, even though such a “noisy” withdrawal may have the collateral effect of inferentially revealing client confidences.
ABA Formal Ethic Opinion 92-366.
According to the Zofran decision, counsel’s noisy withdrawal was justified:
As events later proved, the affidavit contained at least three false statements. First, Dr. Zambelli-Weiner swore that she had “not been retained as an expert witness by any party in this case.” In fact, she had been a paid consulting expert to plaintiffs since at least [date]. Second, she swore that she had “no direct factual information about the litigation.” That, too, was false. Her work as a consulting expert clearly was focused on this litigation. . . . Third, she swore that none of the funds paid by the plaintiff law firms “were paid to directly fund the study”. . . . In fact, her company was paid more than $200,000 for her work on the study.
Id. at *2. Given these facts, the Zofran court ordered otherwise confidential “consulting expert” materials disclosed, finding “exceptional circumstance[s],” the defendant’s “‘substantial need’ for the materials,” and that “the protection of those rules has been waived by litigation misconduct.” Id. at *5.
Plaintiffs’ counsel paid for the study, and appear to have consulted with Dr. Zambelli-Weiner during the course of the study. It is troublesome, to say the least, for a party to engage a consulting, non-testifying expert; pay for that individual to conduct and publish a study, or otherwise affect or influence the study; engage a testifying expert who relies upon the study; and then cloak the details of the arrangement with the consulting expert in the confidentiality protections of Rule 26(b) in order to conceal it from a party opponent and the Court. . . . Furthermore, in this case, the consulting expert made false statements to the Court as to the nature of her relationship with plaintiffs’ counsel. The Court would not have been made aware of those falsehoods but for the fact that her attorney became aware of the issue and sought to withdraw.
Id. Under these circumstances, “the submission of those falsehoods effectively waived whatever protections might otherwise apply.” Id. At minimum, the bias and concealment was fodder for cross-examination of any testifying experts relying on the study:
[P]laintiffs’ testifying experts have relied heavily on Dr. Zambelli-Weiner’s study. . . . In order to effectively cross-examine plaintiffs’ experts . . . the documents shed additional light on the nature of the relationship between Dr. Zambelli-Weiner and plaintiffs’ counsel, and go directly to the credibility of Dr. Zambelli-Weiner and the reliability of her study results.
Id. See also In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, 2019 WL 4394812, at *10 n.13 (D. Minn. July 31, 2019) (even more recent decision noting attempt to conceal both authors’ litigation involvement; “[i]n the published study, the authors originally declared no conflicts of interest”).
Similarly, in Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316 (D. Or. 2013), the court ordered disclosure of otherwise confidential communications between plaintiff’s counsel and an expert due to counsel’s involvement in the creation of the expert’s opinions, after legitimate discovery requests were thwarted. Counsel had certified that no discoverable information existed without ever reviewing the expert’s file. Id. at 320. The expert’s testimony revealed that counsel was deeply involved in the drafting of his report:
[T]he record gives rise to the question whether Plaintiff’s counsel’s involvement in the creation of [the] expert report exceeded [permissible] limits. First, [the expert’s] deposition testimony suggests that Plaintiff’s counsel might have authored portions of [the] final report. [The expert] acknowledged Plaintiff’s counsel changed his preliminary report after [the expert] emailed it to him, and he could not identify the portions of his . . . final report that Plaintiff’s counsel wrote without comparing the final report to his . . . preliminary report. Although [the expert] testified the final report’s conclusions and opinions were his, that statement does not create a barrier to further inquiry.
Id. at 328. Relying on McClellan (discussed above), the court ordered production. “McClellan makes clear that the expert’s adoption or ratification of a lawyer’s changes and additions . . . does not preclude opposing counsel from learning how the lawyer’s contributions affected the expert’s final opinions.” Id.
[A]dditional disclosure is consistent with the privilege exceptions specified in Rule 26(b)(4)(C). [The expert’s] testimony suggests his final report contains facts, data, and assumptions provided by Plaintiff’s counsel. If [the expert] adopted that information as his own opinion and included it in his final report, . . . the facts, data, and assumptions provided by Plaintiff’s counsel might well have become [the expert’s] opinion or have formed part of it.
Id. at 328-29.
In Nelson v. Tennessee Gas Pipeline Co., 1998 WL 1297690 (W.D. Tenn. Aug. 31, 1998), aff’d, 243 F.3d 244 (6th Cir. 2001), the plaintiffs’ expert (named Kilburn) published the first ever study purporting to link the chemical in question to the condition claimed by the plaintiffs. Id. at *4. Every other study was contrary. Id. at *7. The expert’s study included “included the seven flagship plaintiffs and 91 other individuals from “the same town.” Id. at *4. Whether plaintiffs’ counsel was involved in recruiting the rest of the cohort isn’t discussed, however, “the fact that the study was performed in connection with litigation and funded by plaintiffs’ counsel does not militate in [the expert’s] favor.” Id. at *8. One would have expected such a groundbreaking result to have a high profile – but no:
[The expert’s] epidemiological study of the [town] residents has not been published or peer reviewed. . . . [It is] particularly significant [that] the expert had developed his conclusions as a result of independent research or for purposes of litigation testimony. . . . Where the proffered testimony did not arise from independent research, . . . the party seeking admission of the evidence [must] come forward with other objective, verifiable evidence that the testimony is based on scientifically valid principles.
Id. (citation and quotation marks omitted).
All of these cases arose in federal court, where the Daubert standard applies, and relatively broad discovery is usually available into expert testimony. Thus, defendants in federal court at least have some opportunity to investigate and expose the kinds of lawyer-generated junk science discussed above. Cf. Boren v. BOC Group, Inc., 895 N.E.2d 53, 61 (Ill. App. 2008) (allowing testimony by an expert who “admitted that his opinion was based in large part on information he gathered while participating in the lawyer-funded [union hall plaintiff] screenings”). This is a major reason that defendants usually prefer to litigate in a federal forum. Nonetheless, no post about dodgy conduct by plaintiff-side experts can be complete without some discussion of the shenanigans that went on in the Minnesota Bair Hugger litigation. We discussed the trial court’s Frye-based exclusion of the Bair Hugger plaintiffs’ experts in detail here, so this time around we’ll simply provide you with the summary written by the affirming appellate court (which we also reviewed, here):
In 1987, Scott Augustine, an anesthesiologist and the CEO of [defendant’s predecessor], invented . . . the Bair Hugger. . . . In 2002, Augustine was notified that he was under investigation for Medicare fraud [and] resigned. . . .
In 2003, Augustine formed [a competing company] and invented [a competing] device known as the HotDog. In 2004, he pleaded guilty to Medicare fraud, was fined $2 million, and was prohibited from participating in federal health-care programs for five years.
During those years, he deprecated the Bair Hugger in other countries, leading the UK [regulatory agency] to reject his claim that [it] increase[d] the risk of [the condition plaintiffs sue over] and a German court to enjoin him from making false claims. . . .
In 2009, Augustine hired a law firm to promote the use of [the HotDog] and agreed to work with the law firm as a nontestifying expert for individuals who brought lawsuits against [defendant’s predecessor]. The [FDA] investigated Augustine’s claims that the Bair Hugger increased the risk of [the risk at issue] and rejected them.
In 2010, [the predecessor] was acquired by [defendant]. Augustine repeatedly and unsuccessfully attempted to induce [defendant] to purchase the HotDog system, which he claimed reduced the [relevant risk] compared to . . . the Bair Hugger. The FDA warned Augustine that his claim lacked clinical support.
In 2013, the law firm that Augustine had hired began filing lawsuits against [defendant] claiming that the Bair Hugger was unsafe. In 2014, Augustine funded the [a medical study], which purported to find an association between the Bair Hugger and [the risk at issue]. One of the study’s authors, a former employee of Augustine, testified that “[t]he study does not establish a causal basis” and characterized it as marketing rather than research.
In re 3M Bair Hugger Litigation, 924 N.W.2d 16, 19 (Minn. App. 2019) (footnote omitted). So in Bair Hugger, we have the apotheosis of stupid expert tricks – a business competitor, acting as both a “consulting expert” and a litigation funder, not only financed the junk science upon which the plaintiffs’ testifying experts would base their opinions, but also hired the law firm that represented the plaintiffs.
Is Bair Hugger the Brave New World of mass torts, with litigation funders hiring would-be “experts” on a speculative basis to gin up something that passes for “research,” with the intent of using that research to create the very litigation in which they then plan to invest? We hope not, but it’s certainly another reason that such funding can be considered suspect.
Finally, we note that in none of these cases did the proponents of questionable expert testimony suffer anything worse than additional discovery and exclusion of evidence, and possibly a discovery-related fee award (we didn’t read the cases looking for that). Just imagine what the response would have been had a defendant expert or defense counsel engaged in such conduct.