New Alternative Causation for Pharma Defendants in Surgeon General’s Smoking Report?

Last month, the Office of the Surgeon General of the U.S. Department of Health and Human Services released a new report on the health consequences of smoking on the 50th anniversary of the first Surgeon General’s report on smoking and health.

The 2014 report – entitled “The Health Consequences of Smoking—50 Years of Progress” – adds colorectal and liver cancer to the list of cancers causally linked to smoking.  The report also adds several non-cancers to the list of chronic diseases causally linked to smoking, including diabetes, erectile dysfunction, ectopic pregnancy, age-related macular degeneration, rheumatoid arthritis, and impaired immune function. 

While there is relatively little litigation in New Jersey related to the health consequences of smoking, it goes without saying that this new report from the Surgeon General may be a benefit for those plaintiffs — regardless of where they are — seeking to link one of those health conditions to smoking.  Although the report does not break new science on these diseases, it seeks to serve as a broad review of the scientific literature on these issues, and thus could be used to lend support to plaintiffs’, or their experts’, efforts to establish a causal connection.

So, why are we writing about this?  Two words:  alternative causation.

Unlike smoking and health lawsuits, there is a substantial amount of pharmaceutical litigation in New Jersey, and a key issue in many pharmaceutical product liability cases (as well as in some medical device and in many toxic-exposure cases) is the question of alternative causation.  In other words, in assessing the illness that a plaintiff is alleging was caused by the particular drug (or other product) at issue, are there other potential medical causes of that illness, and can any of those potential causes be said to be responsible for that particular plaintiff’s condition?

Thus, to the extent that the Surgeon General’s report newly adds some diseases that a plaintiff may be seeking to blame on his or her use of a particular drug or other product, this report may well add some strength to an alternative causation defense if that plaintiff was or is a smoker.

For example, the report includes diabetes as a chronic disease linked to smoking.  However, diabetes has also been claimed as an injury allegedly suffered by plaintiffs who used statins and atypical antipsychotics.  To the extent that any such plaintiff was also a smoker, this report could be used to bolster the defense that that plaintiff’s diabetes was not caused by the drug, but rather by smoking.

This is but one possible example; the list of cancers and chronic illnesses linked to smoking is long, and the list of diseases claimed by plaintiffs in pharmaceutical, medical device, and other product liabiilty cases is even longer.  Prudence and best practices dictate that, when defending a product liability claim involving a smoking plaintiff, a careful evaluation be done of the potential for an alternative causation defense.  In the right circumstances, the 2014 report from the Surgeon General may be a helpful boost for that effort.

 

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