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Weil Secures Third Consecutive Victory for Procter & Gamble in Denture Cream MDL

On January 28, 2015, Weil secured yet another significant victory for Procter & Gamble (P&G) in a long-running products liability multi-district litigation, in which hundreds of plaintiffs alleged that their use of Fixodent denture cream caused neurologic injury. U.S. District Court for the Southern District of Florida Judge Cecilia Altonaga granted P&G’s motion to exclude all of the plaintiffs’ general causation experts, thereby confirming P&G’s position that sound science does not support plaintiffs’ purported expert evidence regarding Fixodent. The Court’s decision on P&G’s Daubert motion comes just four months after the Eleventh Circuit affirmed earlier rulings by the same Court, excluding the lead plaintiff’s general causation experts and granting summary judgment in P&G’s favor in that case, Chapman, et al. v. Procter & Gamble Distributing LLC.

Since 2009, more than 150 individual cases were consolidated and transferred to the Southern District of Florida as part of MDL 2051, In re Denture Cream Products Liability Litigation. Weil was retained by P&G just weeks before the lead case, Chapman, was scheduled for trial.

In Chapman, plaintiffs proffered the opinions of various general and specific causation experts, in support of their allegations that the massive over-use of Fixodent allegedly was capable of causing neurologic injury. P&G believes that the weight of the sound science establishes that Fixodent is fully safe and effective when used as directed. In June 2011, the Court granted P&G’s motion to exclude plaintiffs’ general causation experts, leading the Court to issue summary judgment in P&G’s favor. The Court found that without the requisite expert testimony, plaintiffs could not sustain their burden of proof. The Court’s Daubert and summary judgment rulings were affirmed by the Eleventh Circuit Court of Appeals in September 2014.

While the Chapman case was on appeal, the remaining plaintiffs in MDL 2051 were granted an opportunity to proffer new experts and any new science in support of their causation theory. P&G again challenged plaintiffs’ new experts and purported new science through the submission of additional Daubert motions seeking to exclude those general causation experts. After considering thousands of pages of additional pleadings and new studies, the Court granted P&G’s motion to exclude plaintiffs’ general causation experts in the remaining cases, holding that “Plaintiffs have not presented sufficient proof of general causation using the indispensable primary methodologies identified by the Eleventh Circuit.” The Court further held that “While plaintiffs presented a superficially appealing hypothesis that prolonged use of very large amounts of Fixodent may cause copper deficiency, the law requires more than a general theme to support causation.” This ruling should have a significant impact on the final disposition of the entire MDL.

The Weil team consisted of partner and Co-Head of Weil’s Complex Commercial Litigation practice Ed Soto, and associates Erica Rutner and Lara Bueso Bach in the Miami office.