Opinion
2011-09-15
In re BAUSCH & LOMB CONTACT LENS SOLUTION PRODUCT LIABILITY LITIGATION.Plaintiffs in the New York Coordinated Proceeding, Plaintiff–Appellants,v.Bausch & Lomb, Defendant–Respondent.
Parker Waichman Alonso LLP, New York (Arnold E. DiJoseph of counsel), for appellants.Shook Hardy & Bacon, LLP, Kansas City, MO (Marie S. Woodbury of the bar of the State of Missouri, admitted pro hac vice, of counsel), and Heidel Pitton Murphy & Bach LLP, New York (Daniel S. Rattner of counsel), for respondent.
Parker Waichman Alonso LLP, New York (Arnold E. DiJoseph of counsel), for appellants.Shook Hardy & Bacon, LLP, Kansas City, MO (Marie S. Woodbury of the bar of the State of Missouri, admitted pro hac vice, of counsel), and Heidel Pitton Murphy & Bach LLP, New York (Daniel S. Rattner of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 15, 2009, which, following a Frye hearing, granted defendant's pretrial motion to exclude the general-causation opinions of plaintiffs' experts regarding non-Fusarium corneal infections, unanimously affirmed, without costs.
Plaintiffs failed to meet their burden of showing at the Frye hearing ( Frye v. United States, 293 F. 1013 [1923] ) that their experts' opinions that defendant's soft contact lens solution ReNu with MoistureLoc (ReNu ML) was causally related to a rise in non-Fusarium corneal infections were generally accepted by the relevant medical or scientific community ( see Pauling v. Orentreich Med. Group., 14 A.D.3d 357, 787 N.Y.S.2d 311 [2005], lv. denied 4 N.Y.3d 710, 797 N.Y.S.2d 817, 830 N.E.2d 1146 [2005]; Lara v. New York City Health & Hosps. Corp., 305 A.D.2d 106, 757 N.Y.S.2d 740 [2003]; see also Marso v. Novak, 42 A.D.3d 377, 840 N.Y.S.2d 53 [2007], lv. denied 12 N.Y.3d 704, 879 N.Y.S.2d 50, 906 N.E.2d 1084 [2009] ). They submitted no “controlled studies, clinical data, medical literature, peer review or supporting proof” of their theory ( Saulpaugh v. Krafte, 5 A.D.3d 934, 936, 774 N.Y.S.2d 194 [2004], lv. denied 3 N.Y.3d 610, 786 N.Y.S.2d 813, 820 N.E.2d 292 [2004]; Lara, 305 A.D.2d at 106, 757 N.Y.S.2d 740).
Plaintiffs' experts contended that testing showed a reduced biocidal efficacy of ReNu ML under certain conditions. The experts then extrapolated from those results the conclusion that ReNu ML increased the risk of non-Fusarium infections. However, one of the experts stated in a published article that “contamination is not consistently correlated with a higher rate of microbial keratitis” (Levey and Cohen, Methods of Disinfecting Contact Lenses to Avoid Corneal Disorders, Survey of Ophthalmology, Vol. 41, No. 3, at 296 [1996] ). In addition, from a certain study in which a film was found to protect Fusarium, plaintiffs' experts concluded that the film similarly would protect other microorganisms. However, plaintiffs' microbiologist conceded that different types of microorganisms have different needs and respond differently to different conditions.
Moreover, despite four studies conducted on keratitis infections during the relevant period, plaintiffs introduced no epidemiological evidence of a rise in non-Fusarium infections. The court properly excluded plaintiffs' epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony ( see CPLR 3101[d]; LaFurge v. Cohen, 61 A.D.3d 426, 876 N.Y.S.2d 391 [2009], lv. denied 13 N.Y.3d 701, 2009 WL 2621606 [2009]; Peguero v. 601 Realty Corp., 58 A.D.3d 556, 564, 873 N.Y.S.2d 17 [2009] ).
The court properly quashed plaintiffs' subpoena of defendant's expert and former chief medical officer, because the expert had been deposed on three occasions, and plaintiffs failed to articulate any legitimate need for his live testimony ( see Pena v. New York City Tr. Auth., 48 A.D.3d 309, 852 N.Y.S.2d 80 [2008] ).
We have considered plaintiffs' remaining arguments and find them unavailing.