A study released in 2008 first revealed the danger that certain denture creams may pose in terms of zinc poisoning, which can result in a host of neurological problems. Then the U.S. Food & Drug Administration issued a warning in late 2011 indicating possible adverse reactions, including nerve damage, linked to overuse of denture adhesives.
This gave way to a host of lawsuits, with some patients reporting pain and weakness in their limbs sometimes resulting in wheelchair dependency, poor balance, urinary incontinence and cognitive decline. Zinc toxicity can lead to copper deficiency, which in turn causes myeloneuropathy, which is damage to the nerves.
Still, our Boca Raton injury attorneys know proving these cases can be daunting. The recent ruling by the 11th Circuit Court of Appeals in Chapman, et al. v. The Proctor & Gamble Dist., et al. reveals why plaintiffs must be thoroughly prepared in such actions.
According to court records, patient was diagnosed with myelopathy affecting her upper and lower extremities. These symptoms developed over the course of three years, starting in April 2006. She and her husband, also a plaintiff suing for loss of consortium, alleged the condition was caused by copper deficiency resulting from zinc poisoning suffered as a result of her daily use of denture adhesive over the course of eight years.
Her symptoms include loss of feeling in the hands and feet, loss of balance, loss of finger dexterity and pain.
Plaintiffs originally filed action in Florida state court, but defendants (the manufacturer and distributor of the product) moved the case to federal court, where it joined a multi-district litigation action, In re Denture Cream Prods. Liab. Lit. in the Southern District of Florida. Following pretrial proceedings, plaintiffs were allowed to have their cases transferred back to their respective district courts, but this one continued in federal court.
In order to prove causation, plaintiffs brought four expert witnesses who would have testified generally whether the product, Fixodent, could cause plaintiff’s condition. A fifth expert was expected to testify that plaintiff’s condition was the direct cause of her use of the product.
Defendants moved to exclude the expert witnesses’ testimony on grounds it failed to adhere to the Daubert standard. This is a preliminary assessment of whether the scientific testimony of an expert witness is based on methodology or reasoning that is scientifically valid and properly applicable to the facts at hand. It involves weighing whether the technique or theory has been or can be tested, whether it’s subject to peer review, the potential or known error rate and whether it’s gained widespread acceptance within the scientific community.
The court sided with defendants in holding none of plaintiff’s experts, who were her treating physicians, qualified as “experts” under the Daubert standard, and therefore could not testify to causation.
Plaintiffs appealed, but the ruling was upheld by the federal appellate court.
Although plaintiffs argued there was a medical consensus, cited in medical textbooks and journals, as well as by their experts, indicating an association between zinc toxicity and copper deficiency resulting in illness, the court ruled those case reports alone don’t definitively prove causation of plaintiff’s illness. The court noted its 2005 ruling in McClain v. Metabolife Int’l, Inc. in which it identified cases where the medical community recognizes the toxicity of a certain substance.
For example, asbestos is known to cause asbestosis and mesothelioma. Cigarette smoke is known to cause heart disease and lung cancer. Silica causes silicosis. In these cases, the court may not need to consider expert opinions for diagnoses on the causation of the condition. It’s well-known and accepted by the medical community.
However, the same cannot be said of copper deficiency caused by the zinc contained in defendant’s product. A higher level of proof is necessary, and the 11th Circuit found in this case, it was not met.
Contact the Boca Raton product injury attorneys at the Hollander Law Firm by calling 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Chapman, et al. v. The Proctor & Gamble Dist., et al. , Sept. 11, 2014, U.S. Court of Appeals for the Eleventh Circuit
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