If you must go to court, be prepared

By The West Virginia Record | May 22, 2018

You have to wonder why some people bother going to court.

It’s not just a matter of luck like the lottery, where all you have to do is buy a ticket and wait for the results to be announced. The process isn’t automated, self-propelled. You can’t file suit and expect the case to win itself. 

Plaintiffs’ attorneys have to compile evidence and present it in a logical and compelling manner to the court: real evidence, not speculation or anecdotes. 

They must anticipate and be prepared to challenge the evidence presented by the defense, too. They must call witnesses to testify in their behalf and make sure they show up at the appointed  time. If the subject of dispute is a complex one, some of those witnesses need to be recognized experts.

The mothers who participated in mass litigation begun in 2012 against Pfizer, et al., claiming that their children has suffered birth defects from the mothers’ consumption of Zoloft during pregnancy, found out the hard way that they and their attorneys were not prepared.

The mothers claimed that Pfizer was negligent in failing to warn them of the risks of birth defects from taking Zoloft during pregnancy, but the key liability expert failed to show for his deposition. Given leave to reschedule, they were unable to get him to appear, whereupon the Mass Litigation Panel (MLP) issued an order excluding him as an expert.

Another expert was scheduled for deposition, but the plaintiffs moved to have him withdrawn with no explanation, at which point Pfizer filed a motion for summary judgment, arguing that the plaintiffs could not meet the evidentiary burden required of them.

When the MLP granted Pfizer’s motion, two of the mothers appealed to the West Virginia Supreme Court which, affirmed the panel’s decision, emphasizing the necessity of providing expert testimony in complicated cases such as this one.

Whether or not the mothers might have won, had they been prepared, is impossible to say -- and now is irrelevant.

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