On Thursday the Ninth Circuit issued an opinion in a case brought by Ina Ann Rodman against Otuka America Pharmaceutical, Inc. The original case was for product liability against Otsuka America Pharmaceutical for failure to warn for the degree of incidence of tardive dyskinesia for people taking the drug Abilify.
Abilify is a product of Otsuka America Pharmaceutical and is used to treat schizophrenia. The packaging for Abilify specifically warns that tardive dyskinesia is a possible side-effect of taking the drug.
The plaintiff sued based on a failure to warn theory that the packaging did not warn of the true incidence of this side effect, which the plaintiff argued was much higher than labeling would suggest. The trial court excluded the plaintiff’s expert witness, stating that there was insufficient connection between the expert’s opinion and the factual evidence. The case was then dismissed due to a summary judgment motion.
The plaintiff appealed the dismissal to the Ninth Circuit. The district court’s opinion was affirmed, stating that there is no abuse of discretion in dismissing an expert witness when there is too great an analytical gap between the data and the opinion proffered. The 9th Circuit also affirmed the summary judgment motion.
Otsuka is represented by Winston & Strawn, while Rodman is represented by The Javier Law Firm and Taggart Morton.
