In yet another decision reflecting the crucial role that expert testimony on causation plays in pharmaceutical cases (see here), a New Jersey State Judge recently excluded two plaintiff experts whose testimony sought to connect the acne medication Accutane to Irritable Bowl Disease (“IBD”), particularly Crohn’s disease (“CD”).  Given that this case is one of approximately 6,700 related cases that plaintiffs filed against Hoffman-La Roche Ltd., the Judge instructed defendants to submit a list of related cases that his ruling might affect.

The Court’s opinion followed a hearing examining the expert testimony of four witnesses under the New Jersey standard articulated in Kemp v. State of New Jersey, 174 N.J. 412 (2002).  As Judge Nelson Johnson explained, a Kemp hearing applies a flexible inquiry that examines whether an expert can identify the factual basis for his conclusion, explain his methodology, and demonstrate that both are scientifically reliable, even if the expert’s opinion is not generally accepted by his peers.

Though acknowledging that the four witnesses examined at the Kemp hearing, including the two excluded witnesses, are “exceptionally learned and accomplished professionals,” the Court still found that the experts were “highly selective, looking no further than they wanted to – cherry picking evidence – in order to find support for their conclusion-driven testimony in support of a hypothesis made of disparate pieces, all at the bottom of the medical evidence hierarchy.”  Indeed, the Court explained that the opinions of one of the experts were not “‘methodology based,’ but rather are conclusion-driven.  This is an expert on a mission.  As cautioned by our Supreme Court, trial courts must attend to ‘the hired gun phenomenon.’”  The Court, noting that its review of the scientific literature did not reveal a single study that set out a precise biological mechanism for the development of IBD and CD, firmly stated that:  “It is one thing to stand alone in the world of science, advancing a hypothesis that others do not accept.  It is quite another thing to advance a hypothesis that can only be supported by disregarding valid scientific research.”

The New Jersey court’s opinion has potentially enormous implications on the thousands of cases that have been brought alleging that Accutane causes CD.  In any event, the case provides us with yet another affirmation that disputes over expert testimony are—and should remain—at the forefront of any litigation strategy.

Whether cities and towns can regulate hyrdaulic fracturing, or “fracking,” through zoning or permitting ordinances has been a hot topic over the past several years.  Pennsylvania’s and New York’s highest courts have both ruled that localities in the respective states have the right to enact zoning regulations that effectively ban fracking.  In contrast, a Colorado judge overturned a Colorado town’s five-year moratorium, ruling that the moratorium violates the Colorado Oil and Gas Conservation Act, which prioritizes the development of natural resources.  Meanwhile, the validity of local bans is currently being litigated in Texas.  Just this week we also blogged about a New Mexico federal court’s ruling striking down a local ordinance.

In contrast to the rulings in Pennsylvania and New York, the Ohio Supreme Court ruled last week that local towns cannot pass zoning or permitting ordinances that conflict with the state’s authorization of fracking.  The defendant in the case was an energy company that had received a state permit to conduct fracking activities on private property within the town of Munroe Falls.  Munroe Falls sued the energy company because the company did not obtain a local permit.  The town argued that the local permitting ordinances were an exercise of the town’s “home rule” powers, that is, an exercise of local self-government.  The town argued that its regulations were therefore protected by the Home Rule Amendment to the state constitution.

On appeal to the Ohio Supreme Court, the high court found for the defendant energy company, invalidating the local ordinance.  In a 4-3 decision, the court ruled that the local ordinance was an exercise of the town’s police power, not its home rule powers, and thus that it was not protected by the Home Rule Amendment.  Moreover, the court ruled that local permitting ordinances are preempted by the state’s oil and gas law, Ohio Revised Code 1509.02, which gives the state “sole and exclusive authority” over the permitting process.

Comparing the rulings in Colorado and Ohio to those in New York and Pennsylvania, the courts have overturned local bans where there is a clear indication from the state legislature that oil and gas development is a high state priority, such as through the Colorado Oil and Gas Conservation Act or Ohio Revised Code 1509.02.  The existence of this type of declaration of legislative intent will likely continue to be a prominent factor in forthcoming court battles over the legality of local regulations.  We will continue to monitor how this issue plays out across the United States, especially as the legal battle over local ordinances heats up in Texas.

One critical topic that continues to arise in the fracking arena is the hotly discussed issue of preemption and attempts to regulate or outright ban fracking at the local level.  In fact, in just the last few months, this charged issue has come up in New York and Colorado and as expected, there were more preemption suits to come.  Next up: New Mexico, where the fight over local regulation of fracking continued, but this time, at the federal level.  Indeed, most recently, a federal court in New Mexico struck down a local fracking ordinance in SWEPI, LP v. Mora County, New Mexico et al., on the basis of not only preemption, but also on constitutional grounds.

In April 2013, Mora County voted to adopt the “Mora County Water Rights and Local Self-Government Ordinance,” which effectively banned corporations from engaging in fracking activities in the county.  SWEPI, LP filed suit against the County, alleging various state and federal claims including violations of the Supremacy Clause, Due Process, Equal Protection, First Amendment, and preemption.  Notably, SWEPI argued that the ordinance “contravene[d] over two hundred years of Supreme Court precedent squarely establishing that corporations have protected constitutional rights.” Id. at 15.

After addressing preliminary issues such as standing and ripeness, the Court found that the ban violated the Supremacy Clause by conflicting with federal law and violated First Amendment rights by chilling protected activities since the law entirely stripped corporations of their First Amendment rights if they violated or sought to violate the ordinance.  The Court found, however, that the ordinance did not violate Due Process or Equal Protection rights since there was a rational, legitimate county interest for enacting the ordinance.  Further, the Court found that the County lacked the authority to enforce zoning laws on New Mexico state lands and therefore, could not enforce the ordinance.  Lastly, although the Court found that state law did not preempt the entire field of oil and gas production since there is concurrent jurisdiction between state and local laws, the Court did find that the ordinance conflicted with New Mexico state law by banning fracking activities that New Mexico state law permits.  The Court explained that the fact that state law heavily regulated oil and gas production was proof that state law permitted such activities.  Consequently, the Court found that a complete ban on fracking would be “antagonistic” to state law.  Finally, since the invalid provisions of the ordinance could not be severed from the remaining law, the Court found that the entire ordinance was invalid.

Although this decision may have limited impact beyond New Mexico given the broad and far-reaching scope of the ordinance and the Court’s reliance on state law, it is a strong message to local governments that they may face significant challenges if they try to enact similarly expansive fracking bans.

Smells Like A Win in the Ninth Circuit: Specific Causation Required

February 20, 2015

Earlier this month, the Ninth Circuit affirmed a California district court’s orders excluding two expert witnesses for failure to prove specific causation, and granting defendant’s motion for summary judgment. The decision affirms the continued importance of expert witness opinions in allowing—or preventing—a plaintiff’s cause of action to proceed to trial. The case is Nelson v. Matrixx […]

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Are Your Foreign Clients Blowing Attorney-Client And Work Product Protections?

February 19, 2015

At a time where business is increasingly global and borderless, foreign clients may be laying the tracks for a very unfortunate situation if litigation in the United States strikes.  I’m talking about attorney-client privilege and work product protection – two doctrines that we attorneys adore, and sometimes take for granted. As The Wall Street Journal […]

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