In re Denture Adhesive Cream Litigation

38 Pa. D. & C.5th 129, 2014 Phila. Ct. Com. Pl. LEXIS 135
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 11, 2014
DocketNo. 4534
StatusPublished

This text of 38 Pa. D. & C.5th 129 (In re Denture Adhesive Cream Litigation) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Denture Adhesive Cream Litigation, 38 Pa. D. & C.5th 129, 2014 Phila. Ct. Com. Pl. LEXIS 135 (Pa. Super. Ct. 2014).

Opinion

NEW, J,

— For the reasons set forth below, the court grants the global motion to exclude general causation expert testimony filed by defendants The Procter & Gamble Manufacturing Company, Procter & Gamble Distributing, LLC, and Rite-Aid Corporation (hereinafter “moving defendants”).

FACTUAL AND PROCEDURAL HISTORY

On July 2, 2009, the coordinating judge of the vomplex litigation center created the In re Denture Adhesive Cream mass tort master-docket. The third amended master long form complaint contains allegata against eight defendants, which can easily be distilled into three groups - 1) The Procter & Gamble Manufacturing Company and its subsidiaries, which manufacture and distribute Fixodent, 2) GlaxoSmithKline and its subsidiaries, which manufactured and distributed Super Poligrip, and 3) defendant Rite-Aid Corporation, which sold both Fixodent and Super Poligrip. See third amended master long form complaint at ¶¶ 17-52.

By September 2013, only twelve cases, all filed by the law firm of Chaffin and Luhana LLP, remained in the In re Denture Cream mass tort program, and GlaxoSmithKline and its subsidiaries were no longer defendants in these cases. On September 17, 2013, Moving defendants filed an omnibus motion to exclude all of plaintiffs general causation experts in these remaining cases. Following extensive briefing by the parties and the reception of live testimony from Dr. Lautenbach, the court heard oral argument on the motion.

In these cases, the individual plaintiffs allege their use of zinc containing denture adhesive creams manufactured by [132]*132Procter & Gamble caused them to develop an irreversible neurologic condition known as “copper deficiency myeloneuropathy.1” The parties agree each gram of Fixodent contains approximately 17 milligrams of zinc bound within a Gantrez polymer. From this starting point, the plaintiffs allege the following causal chain: 1) Fixodent contains zinc, 2) some zinc from Fixodent is absorbed into the blood, 3) excessive zinc in the blood blocks copper absorption, causing copper deficiency, 4) sustained copper deficiency for a prolonged period of time results in copper deficiency myeloneuropathy.

The plaintiffs identified eight causation experts, Martyn T. Smith. PhD. Frederick K. Askari, M.D., PhD, Ebbing Lautenbach, M.D., M.P.H., Carl F. Cranor, PhD, M.S.L., David Grainger, PhD, Steven A. Greenberg, M.D., M.S., Joseph R. Prohaska, PhD, and Elizabeth A. Shuster, M.D. Although plaintiffs offer eight experts to support their theory of causation, only four experts, Dr. Smith, Dr. Lautenbach, Dr. Askari, and Dr. Greenberg, submitted opinions linking Fixodent to copper deficiency myeloneuropathy. Three of the remaining experts, Dr. Cranor, Dr. Grainger, and Dr. Prohaska authored expert reports which buttress the conclusions of those experts who do link Fixodent to copper deficiency myeloneuropathy. For example. Dr. Prohaska’s report discusses how excess zinc ingestion can lead to copper deficiency; however, Dr. Prohaska’s report does not link Fixodent to excessive zinc ingestion. Since their opinions do [133]*133not link Fixodent to copper deficiency myeloneuropathy, but serve only to bolster the testimony of the experts who do make such a link, this opinion will not address the testimony of Dr. Cranor, Dr. Grainger, and Dr. Prohaska.

Plaintiffs’ also present the testimony of Dr. Shuster, who treated one of the patients in the contemporaneous Federal Multi-District Litigation, In re Denture Cream Products Liability Litigation, 795 F. Supp. 2d 1345 (S.D.F.L. 2011). In the Multi-District Litigation, Dr. Shuster opined Fixodent caused her patient to develop copper deficiency myeloneuropathy. Notably, Dr. Shuster did not file an expert report offering an opinion as to general causation in these cases; rather, plaintiff attaches excerpts of her deposition transcript from the Multi-District Litigation. See moving defendants motion at Ex. 13. The fact Dr. Shuster did not author a general causation expert report is hardly surprising in light of the fact plaintiffs’ candidly admit Dr. Shuster’s employment contract prohibits her from serving as a general causation expert. See plaintiffs response in opposition at p. 103 n.33. Nonetheless plaintiffs’ argue Dr. Shuster’s prior testimony supports general causation because it logically follows if Fixodent caused Dr. Shuster’s patient to develop copper deficiency myeloneuropathy, then Fixodent must cause copper deficiency myeloneuropathy generally. In light of the fact Dr. Shuster did not author a report offering an opinion as to general causation in any of the cases currently pending before this court. Dr. Shuster’s opinions will not be addressed. Accordingly, this opinion only addresses the expert opinions of Dr. Lautenbach, Dr. Askari, Dr. Smith, and Dr. Greenberg.

This is not the first time the Philadelphia Court of Common Pleas has been asked to consider the expert testimony of some of these experts as it relates to the denture cream litigation. In the matter of Mark Jacoby v. Rite Aid Corp., et al., February [134]*134Term 2011 No. 24, the Honorable Sandra Moss granted the defendants’ Frye motion and corresponding motion for summary judgment. The court struck the reports of the plaintiff’s causation experts, Dr. Lautenbach, Dr. Askari, and Dr. Smith. The court found the opinions expressed by Dr. Lautenbach, Dr. Askari, and Dr. Smith to be novel science and therefore subject to Frye inquiry. Jacoby, February Term 2011 No. 24, opinion at pp. 7-8 (Ct. Com. Pl. April 12, 2012). After the Frye inquiry, the court found Dr. Smith’s “Weight of the Evidence” methodology to be unreliable because analytical gaps existed in the underlying data; specifically, it was uncertain 1) how much zinc is absorbed by the body as a result of Fixodent ingestion, 2) how much zinc is required to cause copper deficiency, and 3) how low a person’s copper level must be or for how long a duration before it potentially results in copper deficiency myeloneuropathy. Id. at 8-9. The court found Dr. Askari’s “Totality of Evidence” methodology to be unreliable because it relied on the same data Dr. Smith relied on. Id. at pp. 10-11. Finally, the court found Dr. Lautenbach’s epidemiologic analysis to be insufficient because 1) he relied exclusively on case reports and case series, which are disfavored by the appellate courts in this Commonwealth, and 2) his use of the Naranjo scale in a non-clinical context was unreliable since he relied on the same flawed data as Dr. Smith and Dr. Askari, Id. at pp. 11-12. On December 9, 2013, the Superior Court affirmed Judge Moss’ decision in an unpublished memorandum opinion. See Jacoby v. Rite Aid Corp., et al., 1508 EDA 2012, 2013 WL 6556773 (Pa. Super. Dec. 9, 2013).

In light of the analytical gaps found in Jacoby, plaintiffs produced supplemental evidence which they argue cures the deficiencies. This supplemental evidence falls into two categories: 1) Dr. Lautenbach’s cohort study based on data [135]*135he mined from the “Gabreyes article,”2 and 2) the Fixodent Copper Blockade Study, or “India Study.”

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Bluebook (online)
38 Pa. D. & C.5th 129, 2014 Phila. Ct. Com. Pl. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-denture-adhesive-cream-litigation-pactcomplphilad-2014.