USA March 18 2019
Every time we think about addressing ghostwriting as a recurrent plaintiff-side jury distraction in drug/device product liability litigation, we get earwormed by “Ghost Riders in the Sky.” Whether one prefers the Johnny Cash or Outlaws version of the song – or one of who knows how many other covers of the song (originally written by Stan Jones in 1948), it’s hard to stop thinking about it once you start.
The most inveterate ghostwriters are, of course, lawyers themselves. Gives us a chance (and a fee) and we’ll ghostwrite anything: opinions for judges, reports for expert witnesses (e.g., McClellan v. I-Flow Corp., 710 F. Supp.2d 1092, 1118 (D. Or. 2010)), and (most annoyingly) pleadings for supposedly “pro se” parties. But let a drug/device company provide authorship assistance to a busy doctor or a scientist, and the same plaintiffs’ lawyers who routinely massage (if not outright create) their experts’ opinions start screaming and yelling that something terrible is happening. And yet, there’s no proof (and often not even an allegation) that any of the actual science in the “ghostwritten” article was misstated.
So-called “ghostwriting” is “a fairly common, but little known practice, with a pejorative name would distract the jury and needlessly consume time.” Okuda v. Wyeth, 2012 WL 12337860, at *1 (D. Utah July 24, 2012). Plaintiffs regularly attempt to convince juries that routine “ghostwriting” is something nefarious. Defendants, just as often, try to keep this smoke-and-mirrors type evidence out. We haven’t blogged about this issue before, so we thought we’d take a look at decisions excluding ghostwriting allegations.
Perhaps the most notorious ghostwriting testimony was the inflammatory rhetoric initially admitted in In re Prempro Products Liability Litigation, 554 F. Supp.2d 871, 885 (E.D. Ark. 2008), to support punitive damages. There aren’t many judges – especially MDL judges in bellwether cases – willing to admit they were wrong and reverse a verdict, but this was one. In Prempro “Dr. Parisian testified that the FDA would not be aware of ghostwriting” but “provided no testimony linking FDA regulations and ghostwriting.” Id. at 885. Plaintiffs used these (and other) allegations to bamboozle a jury into awarding punitive damages. Id. at 889, 893, 897 (“Plaintiff asserted that ghostwriting is ‘exactly the type of conduct that necessitates punitive damages.’”) (footnote omitted). Holding that ghostwriting testimony should never have been admitted, the court granted a new trial:
[T]here is no evidence that this practice is inappropriate or that [defendant] supported articles that it knew were false or misrepresented the science. Rather, the articles supported [defendant’s] position on the state of the science. Additionally, there was evidence that ghostwriting was a common practice in the industry.
Id. at 888 (footnotes omitted). On appeal, the Court of Appeals affirmed. In re Prempro Products Liability Litigation, 586 F.3d 547, 571 (8th Cir. 2009) (“we cannot say that the district court abused its discretion”).