QuackBusters – A Judge's View
by Judge Haley J. Fromholz
I couldn’t resist posting this article. Hopefully, the final days of Stephen Barrett and his QuackBusters are close at hand. – Dennis
The legitimacy of the (so called) “National Council Against Health Fraud” (and Stephen Barrett, MD from Allentown PA) took a serious pounding in a decision rendered against the “quackbusters” on December 17, 2001 by Judge Haley J. Fromholz in California Superior Court. Excerpted from Judges decision rendered against NCAHF 12/17/01 by Judge Framholz in California Superior Court.
Stephen Barrett, M.D.
Dr. Barrett was offered on several issues by the Plaintiff, but the Court found that there was substantial overlap on the issues that he and Dr. Sampson were asked to address. Thus, in order to avoid duplicative or cumulative evidence (see Cal. Evidence Code �� 352, 411, 723), Dr. Barrett’s testimony was limited by the Court to the sole issue of FDA treatment of homeopathic drugs. The relevancy of this issue was questionable at best, since the Plaintiff had previously asserted that its case did not depend on or seek to establish any violation of federal food and drug laws or regulations. Nevertheless, Plaintiff elicited testimony from Dr. Barrett on his experience with the FDA as it relates to regulation of homeopathic drugs.
Dr. Barrett was a psychiatrist who retired in or about 1993, at which point he contends he allowed his medical license to lapse. Like Dr. Sampson, he has no formal training in homeopathic medicine or drugs, although he claims to have read and written extensively on homeopathy and other forms of alternative medicine. Dr. Barrett’s claim to expertise on FDA issues arises from his conversations with FDA agents, his review of professional literature on the subject and certain continuing education activities.
As for his credential as an expert on FDA regulation of homeopathic drugs, the Court finds that Dr. Barrett lacks sufficient qualifications in this area. Expertise in FDA regulation suggests a knowledge of how the agency enforces federal statutes and the agency’s own regulations. Dr. Barrett’s purported legal and regulatory knowledge is not apparent. He is not a lawyer, although he claims he attended several semesters of correspondence law school. While Dr. Barrett appears to have had several past conversations with FDA representatives, these appear to have been sporadic, mainly at his own instigation, and principally for the purpose of gathering information for his various articles and Internet web-sites. He has never testified before any governmental panel or agency on issues relating to FDA regulation of drugs. Presumably his professional continuing education experiences are outdated given that he has not had a current medical license in over seven years. For these reasons, there is no sound basis on which to consider Dr. Barrett qualified as an expert on the issues he was offered to address.
Moreover, there was no real focus to his testimony with respect to any of the issues in this case associated with Defendants’ products.
Credibility of Plaintiff’s Experts
Furthermore, the Court finds that both Dr. Sampson and Dr. Barrett are biased heavily in favor of the Plaintiff and thus the weight to be accorded their testimony is slight in any event. Both are long-time board members of the Plaintiff; Dr. Barrett has served as its Chairman. Both participated in an application to the U.S. FDA during the early 1990s designed to restrict the sale of most homeopathic drugs. Dr. Sampson’s university course presents what is effectively a one-sided, critical view of alternative medicine. Dr. Barrett’s heavy activities in lecturing and writing about alternative medicine similarly are focused on the eradication of the practices about which he opines.
Both witnesses’ fees, as Dr. Barrett testified, are paid from a fund established by Plaintiff NCAHF from the proceeds of suits such as the case at bar. Based on this fact alone, the Court may infer that Dr. Barrett and Sampson are more likely to receive fees for testifying on behalf of NCAHF in future cases if the Plaintiff prevails in the instant action and thereby wins funds to enrich the litigation fund described by Dr. Barrett.
It is apparent, therefore, that both men have a direct, personal financial interest in the outcome of this litigation.
Based on all of these factors, Dr. Sampson and Dr. Barrett can be described as zealous advocates of the Plaintiff’s position, and therefore not neutral or dispassionate witnesses or experts. In light of these affiliations and their orientation, it can fairly be said that Drs. Barrett and Sampson are themselves the client, and therefore their testimony should be accorded little, if any, credibility on that basis as well.