11th Circ. Dismantles Fixodent Myelopathy Class Action Lawsuit

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A sharp-eyed jurist’s order granting a motion for summary judgment regarding a Fixodent myelopathy class action lawsuit was upheld by the 11th U.S. Circuit Court of Appeals.

The Fixodent class action lawsuit revolved around the denture adhesive sold and manufactured by Procter & Gamble which incorporates zinc into the mixture. There is scientific evidence linking it to certain precursors of myelopathy, such as reducing serum copper levels. However, the U.S. District Court judge who was hearing the case found significant issues with the expert witnesses Marianna Chapman expected to use at trial.

Under the Daubert standard used in federal court, witnesses must be considered preeminent in their field, a box that all of Chapman’s doctors and scientists were able to check off, according to the appeals court. However, a secondary but no less important qualification is the stringency of the methodology employed. The lower court judge found that each of these experts failed to adequately address causation and the “but-for” test.

The standard does not require perfect proof, but it does require rigor and the doctors used by Chapman to link Fixodent to her myelopathy diagnosis did not apply this, according to the lower court judge. The 11th Circuit panel agreed, noting that the witnesses were willing to testify on the general hazards of excess zinc or that there is a probable link.

However, none addressed the fact that the woman had neurological symptoms similar to myelopathy before, during and after her use of Fixodent. In fact, under questioning from the judge, one doctor was unable to state how much the denture adhesive would be required to cause a copper deficiency, a precursor of myelopathy.

Even though the class action lawyers also offered up alternative witnesses, they had similar issues regarding their conclusions. As a result, “With the district judge’s properly analyzed Daubert order, the Chapmans lost their designated general and specific-expert witnesses, because of deficiencies in the experts’ scientific-methodology reliability,” the 11th Circuit panel wrote in affirming the order granting summary judgment, releasing Proctor & Gamble from the Fixodent class action lawsuit.

Chapman is represented by class action lawyers Derek T. Ho and David C. Frederick of Kellogg Huber Hansen Todd Evans & Figel PLLC and Raymond Silverman Melanie H. Muhlstock and Matthew J. McCauley of Parker Waichman LLP.

The Fixodent Myelopathy Class Action Lawsuit is Marianne Chapman, et al. v. Procter & Gamble Distributing LLC, et al., Case No. 12-cv-14502, in the 11th U.S. Circuit Court of Appeals.