It’s a wonder we even bother to hold trials anymore. In the latest miscarriage of justice, a California judge overturned the verdict of a six-week jury trial by accepting defense arguments that an expert whom the jury had seen interrogated in court was not qualified to determine that Actos had caused plaintiff Jack Cooper’s bladder cancer.
On May 1, Judge Kenneth Freeman overturned $6.5 million dollar jury verdict (entered on April 26) for plaintiff Jack Cooper in Cooper vs. Takeda (Cooper v. Takeda Pharmaceuticals America Inc., CGC-12-518535, California Superior Court, Los Angeles). Freeman granted two key Takeda’s motions which lead to his reversal.
Freeman granted Takeda’s motion to exclude the opinions of Dr. Norm Smith, the plaintiff’s causation expert who had hypothesized that Actos was a substantial causal factor in Mr. Cooper’s bladder cancer. Granting that motion meant that no opinion supported the cancer causation finding; so the judge then granted Takeda’s motion for non suit, which threw out the verdict.
Judge Freeman dismissed Dr. Smith’s work thusly:
“[I]t is evident to the Court that the matter in which Dr. Smith conducted his differential diagnosis is based on speculation, is not reliable, not done with intellectual rigor expected of an expert, and is therefore inadmissible under prevailing California law.”
Absent Dr. Smith’s opinion that Actos specifically caused Mr. Cooper’s bladder cancer, there was no other evidence, according to Judge Freeman, to support the jury’s verdict against Takeda; therefore Freeman granted a non suit.
Mr. Cooper’s lawyers will appeal Freeman’s decision to an appellate court. One can only wonder how Judge Freeman could dismiss the jury verdict on an apparent technicality. The jury had six weeks to look at all the evidence, to hear the qualifications and the testimony of Dr. Norm Smith, and to hear him cross examined for hours by Takeda defense lawyers. The jury also heard all the testimony of all the experts hired by Takeda. The jury then decided, and then Judge Freeman decided the jury couldn’t be entrusted to do the job they were chosen to do. What’s the point of having a jury trial at all if the jury’s decision can be so easily dismissed by a judge?
What is this whole decision if not complete contempt for the entire jury system? If you want to ask what’s wrong in this country, you might start by asking why it’s ok for a judge to categorically dismiss the work of an impaneled jury who have heard six weeks of testimony from both sides.