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Cross v. Forest Laboratories

United States District Court, N.D. Mississippi, Eastern Division

February 19, 2015

ELLA MAY CROSS, et al, Plaintiffs,


MICHAEL P. MILLS, District Judge.

This cause comes before the Court on the defendant's motion in limine to exclude the testimony of plaintiffs' specific causation expert, George S. Glass, M.D. [85]. The Court has reviewed the briefs and exhibits and is prepared to rule.

This is a diversity suit under a variety of Mississippi tort claims, including wrongful death, product liability, and personal injury. The plaintiffs are Ella May Cross, individually and as Personal Representative of the Estate of Leon Cross, deceased; Ellis Donnell Cross; William Cross, Theodore Cross; and Sandra McFadden. The defendant is Forest Laboratories.

Leon Cross was an 81 year-old resident of Kosciusko, Mississippi. On May 20, 2004, Mr. Cross scheduled a colectomy to deal with abdominal pain he had been suffering from for several months. The surgery was scheduled for June 4, 2004. In the weeks preceding the surgery, Mr. Cross began experiencing pre-surgery anxiety. On May 22, 2004, he was prescribed a selective serotonin re-uptake inhibitor (SSRI), Lexapro, which was manufactured by Forest, to help manage the anxiety.

On the morning of May 24, Mr. Cross told his wife that he intended to kill himself. Mr. Cross exited his home and fatally shot himself in the stomach. A toxicology report revealed the presence of an SSRI in Mr. Cross's blood sample. During the course of trial preparation, the plaintiffs retained Dr. George Glass to testify that in his opinion Lexapro was a significant contributing factor in Mr. Cross's suicide. Dr. Glass prepared a written report in which he laid out his methodology and bases for his conclusion. (Report of George Glass, M.D., ("Glass Rpt."), Ex. 58.) Forest has now moved to exclude Dr. Glass's testimony.


Expert testimony is admissible when it is "based on sufficient facts or data... is the product of reliable principles and methods and... [is] reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. In interpreting Rule 702, the Supreme Court has held that the trial court is tasked with ensuring that scientific testimony is both relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993). This entails a two part test. First, the court must decide "whether the reasoning or methodology underlying the testimony is scientifically valid, " and second, "whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. at 2796. Factors to consider include whether the theory has been subjected to peer review and publication, the known or potential rate of error, the existence and maintenance of standards controlling the technique's operation, or whether the technique has achieved general acceptance in the relevant scientific or expert community. Id. at 593-94, 113 S.Ct. at 2797.



Forest attacks the methodology of Dr. Glass's testimony by asserting that he failed to perform a proper differential diagnosis on the plaintiff. A differential diagnosis is an acceptable methodology when performed appropriately. See Johnson v. Arkema, Inc., 685 F.3d 452, 468 (5th Cir. 2012). It is defined as "a process of elimination by which medical practitioners determine the most likely cause of a set of signs or symptoms from a set of possible causes." Pick v. Am. Med. Sys., Inc., 198 F.3d 241 (5th Cir. 1999). It requires the expert to "rule out other potential causes for the injury at issue." Harris v. Spine, No. 3:12CV874TSL-JMR, 2014 WL 4179915, at *6 (S.D.Miss. June 23, 2014).

Forest's criticism of Dr. Glass's diagnoses is that he failed to properly rule out some risk factors and that he failed to consider other factors at all. While it is true the expert must provide objective reasons for eliminating alternative causes, Moore v. Ashland Chem. Inc., 151 F.3d 269, 289 (5th Cir. 1998), the expert need not consider every possible cause. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999). The testimony should only be excluded when "[the] expert utterly fails to consider alternative causes or fails to explain why the opinion remains sound in light of alternative causes suggested by the opposing party." Id. at 266, citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 764-65, 730 (3d Cir. 1994).

Dr. Glass's opinion, however, objectively provides reasons for eliminating the factors. Dr. Glass indicates that one factor, stomach pain, can be eliminated because Mr. Cross was taking steps to improve his condition by scheduling surgery. (Glass Rpt., pg. 19). Dr. Glass says another factor, Mr. Cross's anxiety over surgery (not his age as the defendant contends), is eliminated by a lack of evidence that Mr. Cross was experiencing anything beyond normal, anticipatory anxiety. ( Id. at 10.)

As to other factors, Dr. Glass does not "fail to explain why his opinion remains sound." He notes a lack of evidence that Mr. Cross was psychotic or hallucinating. ( Id. ) He also states that there is no evidence as to why Mr. Cross would have had a sudden shift in his psychological state except for taking the Lexapro. ( Id. )

Dr. Glass's report shows that he performed a reliable, scientific method to reach his conclusions by performing a differential diagnoses. Any criticism that Forest may have of his method goes to the weight of his testimony, not its admissibility. See ...

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