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Weil Wins Another Significant Appeal for P&G in Denture Cream Products Liability MDL

On June 15, 2016, Weil achieved a significant victory on behalf of Procter & Gamble when the Eleventh Circuit affirmed a lower court’s exclusion of plaintiffs’ expert testimony in the In re Denture Cream Products Liability Litigation MDL pending in the U.S. District Court for the Southern District of Florida. Weil has now won two critical appellate rulings in this action – including a prior victory in the lead case of the MDL – that together have eliminated all of plaintiffs’ experts.

Plaintiffs alleged that their use of Procter & Gamble’s denture cream product (Fixodent) caused neurological injuries. Previously, in June 2011, the district court granted Procter & Gamble’s motion to exclude the lead plaintiffs’ general causation experts and issued summary judgment in Procter & Gamble’s favor. The Eleventh Circuit affirmed that ruling in September 2014.

Thereafter, the remaining approximately 60 plaintiffs attempted to establish general causation by proffering new experts and commissioning their own clinical study. Once again, Procter & Gamble challenged plaintiffs’ new causation experts and purported new science by submitting additional Daubert motions in all remaining cases. Procter & Gamble argued that plaintiffs’ experts failed to employ reliable methodologies and that the new studies were litigation-driven and did not reliably support their theory of causation. After considering thousands of pages of briefing and related materials, the district court granted Procter & Gamble’s motion to exclude the plaintiffs’ experts in the remaining cases in February 2015. The district court held, among other things, that “while plaintiffs presented a superficially appealing hypothesis that prolonged use of very large amounts of Fixodent may cause [neurological injuries], the law requires more than a general theme to support causation.” Plaintiffs subsequently appealed, and in June 2016, just two days after oral argument, the Eleventh Circuit affirmed the district court’s rulings, finding no reversible error.

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