The United States District Court, E.D. Pennsylvania IN RE: ZOLOFT (SERTRALINE HYDROCHLORIDE) PRODUCTS LIABILITY LITIGATION. No. 12-MD-2342. January 7, 2015 is in the midst of highly contested multidistrict litigation action claiming taking Zoloft during pregnancy causes birth defects. After one key expert witness was excluded under Daubert the plaintiffs attempted to submit a new expert witness. The defendants objected saying this was a non-permitted “Daubert do-over.”
The court permitted the substitution of the new expert and stated:
In assessing the relevant factors in this context, the Court finds that although there is some prejudice to Pfizer, in that it will be put to the additional expense required to litigate the admissibility of Dr. Jewell’s proposed testimony, this prejudice is not of a character sufficient to warrant denial of the motion. Had the PSC presented Dr. Jewell earlier, as Pfizer contends the PSC should have done, Pfizer would be in the same position with regard to the question of the admissibility of Dr. Jewell’s testimony. Although the PSC and Dr. Jewell have had the benefit of the Court’s prior Daubert rulings in the formulation of the new expert report, that does not create prejudice to Pfizer. Either Dr. Jewell’s expert report and testimony will pass muster under Rule 702 or they will not. In addition, there is every possibility that Dr. Jewell will be presented as an expert witness in Zoloft cases currently pending in state courts, or in cases that may be filed in the future and therefore Pfizer likely must address his expert testimony at some point. Although additional Daubert proceedings will of necessity extend the trial schedule, the MDL has moved expeditiously through the diligence and cooperation of all counsel and any delay can be addressed through the use of appropriate orders to avoid unfairness to any parties.
The Court weighs heavily the indisputable fact that the evidence is of critical importance to Plaintiffs, as “[t]he decision to admit or exclude scientific evidence and testimony . . . strongly affects the ability of a party to prevail.” The Court fully appreciates Pfizer’s argument that the PSC had every opportunity to select its expert witnesses and now seeks a “Daubert do-over” after an unfavorable outcome. Had this issue arisen outside of the MDL context, this argument may have carried the day. The Court in no way suggests seeking to present an additional expert only after an unfavorable Daubert ruling is an appropriate litigation strategy. The Court recognizes that “[s]ince Daubert, . . . parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.” However, the Court has no reason to conclude that the PSC has acted in bad faith or that its present predicament is the result of deliberate strategy instead of a miscalculation as to the persuasiveness of Dr. Berard’s testimony. The Court also notes that the initial Daubert hearing was not futile, as the testimony of Drs. Cabrera, Sadler, and Levin has been limited, and as it appears that Dr. Jewell’s proposed expert testimony encompasses a significantly more limited range of birth defects than did Dr. Berard’s. This MDL Court must consider the broader ramifications of barring an attempt to present Dr. Jewell, and has concluded that the interests ofjustice do not support such a step. The Court will grant the PSC’s motion to permit the opportunity to offer for vetting the testimony of Dr. Jewell. The PSC’s motion will be granted.