Ephedra distachya

The McClain decision is a watershed for counsel defending dietary supplement manufacturers in products liability cases. In almost all such cases, the plaintiff relies upon expert testimony to make a causal connection between the ingredients in a supplement and his or her alleged injuries. In McClain, the Eleventh Circuit reversed a $4,178,500.00 plaintiffs’ verdict in a case alleging that the defendant’s ephedra diet drug caused heart attacks and strokes.

The McClain decision reads like a how-to guide on excluding junk science testimony where the plaintiff seeks to create a link between herbal supplements and injuries such as heart attacks and strokes. Not only did the court in McClain hold that the plaintiff’s expert testimony should have been excluded, it did so without relying on any expert testimony offered by the defendant. In fact, McClain is persuasive authority that a defendant does not even need to present its own expert testimony to exclude the plaintiff’s expert.

In addition to providing a roadmap for challenging a plaintiff’s expert in a dietary supplement product liability case, the McClain decision suggests a litigation strategy that focuses on the plaintiff’s experts rather than the plaintiff’s injuries. In most litigations, discovery regarding the plaintiff’s injuries is dealt with at the outset, and challenging experts is left to the end of the case (after significant attorneys fees and costs have been incurred). However, if a defendant was successful in challenging the plaintiff’s experts at the outset, a speedier and more cost-effective resolution might be obtained.

The McClain case also covers critical issues attorneys need to address in any toxic tort case such as the dose-response relationship, the necessity for unequivocal evidence of causation, and the need to demonstrate significant levels of exposure to the allegedly toxic substance in order to obtain a recovery.

McClain v. Metabolife International, Inc., No. 03-12776 (11th Cir. March 2, 2005).

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.