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October 31, 2016 Practice Points

Denture Cream MDL Loses Its Bite

M. Joseph Winebrenner and Nicholas D. Teichen

In mid-October 2016, the U.S. Supreme Court declined to hear an appeal of a group of consumers alleging that prolonged use of Procter & Gamble’s Fixodent denture cream caused them to develop copper deficiency and neurological injuries. The Supreme Court’s denial comes after the Eleventh Circuit upheld the district court’s dismissal—and effective termination of an entire multidistrict litigation proceeding (MDL)—because the exclusion of inadmissible expert testimony gutted plaintiffs’ theory of the case. The decision provides yet another example of how a well-crafted Daubert challenge on a litigation-wide issue can be the death knell of an entire multidistrict litigation proceeding.

In January 2015, Judge Cecilia Altonaga of the U.S. District Court for the Southern District of Florida granted defendants’ Daubert motion to exclude the testimony of the plaintiffs’ general causation experts. See In re Denture Cream Prods. Liab. Litig., 2015 U.S. Dist. LEXIS 9653 (S.D. Fla. Jan. 28, 2015). The experts’ opinions relied on “factually inaccurate data and unsupported assumptions, and generally lack[ed] the sound scientific basis and intellectual rigor required by Daubert,” resulting in “significant gaps in Plaintiffs’ general causation theory.”

The district court held that the experts’ findings were “not based on sufficiently reliable and objective scientific methodology and could not serve as the basis for Plaintiffs’ general causation opinions.” The court also noted concerns over a flawed study design based on unreliable scientific methodology that was “a departure from sound scientific practice.” As a result, the district court found plaintiffs did not present “sufficient proof of general causation using the indispensable primary methodologies identified by the Eleventh Circuit” and granted the defendants’ Daubert motion.

Three months later, the district court dismissed the remaining MDL cases in light of the plaintiffs’ stipulation that the court’s January order excluding the testimony of plaintiffs’ general causation experts was case-dispositive. See, e.g., In re Denture Cream Prods. Liab. Litig., No. 1:09-MD-2051, slip op. (S.D. Fla. Apr. 1, 2015) (ECF No. 2312). “The court agrees with plaintiffs’ stipulation that the Jan. 28 order granting defendants’ motion to exclude all or part of the testimony of plaintiffs’ general causation expert witnesses…was case-dispositive,” Judge Altonaga wrote. “All of plaintiffs’ claims are predicated on proving an issue of general causation—namely, whether Fixodent can cause the claimed neurological injury.”

The Eleventh Circuit summarily affirmed the lower court’s Daubert order and dismissals without discussion in June 2016. See Jones v. SmithKline Beecham, 2016 U.S. App. LEXIS 10833 (11th Cir. June 15, 2016). The Supreme Court denied certiorari on October 17, 2016, effectively closing the door on the Denture Cream MDL.

Keywords: Daubert, mass torts, expert, dismissal, multidistrict litigation

M. Joseph Winebrenner is a partner and Nicholas D. Teichen is an associate with Faegre Baker Daniels LLP in Minneapolis, Minnesota.

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