If there’s a better place for filing Daubert motions than in the Eleventh Circuit, we don't know of it. Of course, we’re biased – we had great success with them ourselves in the Seroquel litigation and in the Ephedra litigation before that. Building on the Eleventh Circuit’s landmark decision in McClain v. Metabolife, International, Inc., 401 F.3d 1233 (11th Cir. 2005), defendants have had a lot of success fighting “junk science” peddlers in Eleventh Circuit courts.
And so it was with yesterday’s decision in In re Denture Cream Products Liability Litigation, No. 09-2051-MD-Altonaga, slip op. (S.D. Fla. June 16, 2011). The product is (surprise) a denture cream, Fixodent. The alleged defect is failure to warn that zinc compounds allegedly reduce the amount of copper in the blood, which in turn purportedly cause something called “copper deficiency myelopathy” (called a lot of other things, too, see slip op. at 2 n.3) – which we’ll call “CDM” for short. The very existence of such a thing as CDM is controversial. The court in Denture Cream found that the claims didn’t pass Daubert scrutiny.
The Denture Cream defense team went after this MDL pretty much using the Seroquel model – that is, take the MDL plaintiffs’ best case and beat it on Daubert grounds. The test plaintiff in Denture Cream claimed numbness in her hands and feet (a description suspiciously like diabetic neuropathy) leading to loss of function in her arms and legs, along with various blood abnormalities. Slip op. at 2-3.
These symptoms appeared after the test plaintiff allegedly used Fixodent – a lot of Fixodent.
How much Fixodent?
Please see full publication below for more information.
