Pennsylvania Court Allows Plaintiff To Switch Experts Mid-Trial In Risperdal Gynecomastia Case


Plastic Surgery Expert

Court: Superior Court of Pennsylvania
Jurisdiction: State
Case Name: Pledger v. Janssen Pharms., Inc.
Citation: 2018 Pa. Super. LEXIS 1167

Facts

In 2002, at age 6, Phillip Austin Pledger was diagnosed with Autism. Pledger was taken to see Dr. Jan Mathisen, a pediatric neurologist in Birmingham, for treatment of his behavioral symptoms. Dr. Mathisen prescribed Pledger Risperdal and warned that weight gain was a possible side effect of the medicine. In 2006, Pledger’s mother decided to refer her son to another doctor, Dr. Donald Paoletti, who discontinued the use of Risperdal in April 2007.

Around October 2011, Mrs. Pledger saw a commercial on television which discussed the possible connection between Risperdal and gynecomastia. She subsequently sued Janssen Pharmaceuticals, Inc., the manufacturer of Risperdal, for its negligence in failing to warn physicians and patients about gynecomastia as a side effect of Risperdal.

The Endocrinology Expert

In 2014, a pediatrician and endocrinology specialist licensed in Missouri, examined Pledger at the request of his attorneys. The expert prepared a report and concluded that the treatment of children and adolescents with Risperidone causes gynecomastia. He also concluded that Pledger had very enlarged breasts, primarily due to gynecomastia, and that his Risperidone treatment between 2002 and 2007 was a substantial contributing factor.

The defendant moved to exclude the endocrinology expert’s testimony altogether on the grounds that violated Alabama law. Alabama law provides that a doctor who is not licensed in Alabama can only practice medicine in Alabama in consultation with a physician who is licensed to practice in-state. Upon discovering this, the expert was unwilling to testify because of concern about his potential for criminal legal exposure.

Pledger’s counsel requested that the trial court permit them to reopen discovery and let Pledger be examined by a new expert. The trial court agreed to permit the Pledgers to switch experts mid-trial over Janssen’s objections and demand for a mistrial.

The Plastic Surgery Expert

The plaintiff’s new expert was a plastic surgeon who specialized in reconstructive surgery. The expert explained that diagnosing gynecomastia depends on determining whether breast tissue is present. He further explained that breast tissue is biologically distinct from fat tissue and demonstrated such to the jury with slides. Following the expert’s live testimony, the jury awarded Pledger damages of $2.5 million.

Court Discussion

Janssen appealed arguing that it was entitled to a new trial. The defendant alleged that the trial court erred in its discretion by allowing the Pledgers to substitute their witness mid-trial — a violation of the rules of discovery. The court noted that if the failure to disclose the identity of the witness is the result of extenuating circumstances which are beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

The trial court, in allowing the substitution, had noted that if Janssen’s late motion to exclude the plaintiff’s original endocrinology expert were granted, the Pledgers would have no choice but to move for a voluntary nonsuit, and if the motion were denied, then the endocrinology expert would likely choose to take the Fifth Amendment or testify with predictable damage to his credibility. The court held that the trial court did not abuse its discretion in permitting the Pledgers to change experts in the middle of the trial.

Janssen also argued that the trial court erred by qualifying the plaintiff’s plastic surgery expert to opine regarding the causes of gynecomastia. It contended that being a board-certified plastic surgeon may qualify the expert to diagnose gynecomastia in an appropriate clinical setting, or to testify about treatment options, but the causation testimony would be solely within the expertise of an endocrinology expert witness.

The plastic surgery expert testified that he had diagnosed patients with drug-induced gynecomastia, and that he was an expert in the physiology and pathology of the breast. The experts in one area of medicine earlier have been ruled qualified to address other areas of specialization where the specialized area overlap the practice or where the specialist has some  experience in the related medical field. Therefore, it was held that the trial court did not abuse its discretion in admitting testimony from the plaintiff’s plastic surgery expert about the potential causes of gynecomastia.

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