Ruling Erases a Barrier for Product Liability Lawsuits

A federal appeals court has made it easier for consumers to pursue product liability lawsuits, ruling that plaintiffs do not have to rely on extensive scientific studies to show that a product caused their injuries.

The decision allows consumers suing pharmaceutical companies and other manufacturers to call experts to testify on their behalf--even when such testimony is unsupported by scientific studies.

“This case will definitely have an influence on product liability and civil cases,” said Edward J. Imwinkelried, who teaches at the UC Davis School of Law. “Plaintiffs now have a better chance of getting their cases before juries.”

The U.S. 9th Circuit Court of Appeals in Pasadena was ruling in an 11-year-old case involving Zyderm, a popular anti-wrinkle product made by Collagen Corp. of Palo Alto.

Like many other users, Charlotte Kennedy, an Atlanta woman in her 60s, had doctors inject Zyderm into her facial wrinkles for a smoother appearance.

Kennedy said the product--which is made from the skin and tissue of bovine animals--caused her to suffer lupus, an incurable autoimmune disease that can debilitate joints, muscles and other parts of the body.

U.S. District Judge Charles A. Legge in San Francisco had dismissed Kennedy’s suit. The judge reasoned that Kennedy’s expert witness, Dr. Joseph Spindler of Houston, could not testify because he could not cite epidemiological data or animal studies linking Zyderm to lupus.

But the three-judge appeals panel reversed that ruling. Legge failed to consider that Spindler relied on “a wide variety of objective, verifiable evidence”--laboratory tests, articles in academic journals and even clinical studies by Collagen--to form his opinion that Zyderm caused Kennedy’s lupus, the panel said.

The 9th Circuit’s decision can be cited as law in California, Arizona and seven other Western states.

The Kennedy case illustrates how courts across the nation are wrestling with how to decide when an expert’s judgment is reliable enough to allow in court. Often, the answer to that question can determine whether a case is thrown out before it reaches a jury.

Expert testimony is especially critical in cases where there is no clear scientific evidence that a product caused a consumer’s injuries, said Timothy Perrin, a professor at the Pepperdine University School of Law.

In a 1993 decision, the U.S. Supreme Court tried to clarify rules for judging when scientific expert testimony should be allowed.

The high court told judges to consider whether a theory or technique had been tested, whether it was reviewed by other experts, its possible rate of error, and whether it was generally accepted by the scientific community.

The rules aimed to allow judges to act as gatekeepers to keep unreliable “junk science” out of the courtroom.

But those rules have caused further confusion as federal courts across the nation have interpreted them differently, law experts said.

Federal courts in Texas, for example, still require experts to produce extensive scientific studies to support their testimony, said Michael M. Essmyer, a Houston attorney representing Kennedy.

Texas courts have dismissed a handful of similar suits against Collagen, Essmyer said.

In the Kennedy case, 9th Circuit Judge Warren Ferguson wrote that “judges in jury trials should not exclude expert testimony simply because they disagree with the conclusions of the experts.”

Jurors should be allowed to decide what weight to place on the expert’s testimony, he said.

Ferguson noted that other federal appeals courts have found that it is “scientifically permissible” to say a product caused a particular injury as long as their reasoning is based on methods reasonably relied on by experts in their field.

Frederick Baker, an attorney for Collagen, declined to comment on the ruling.