Litigation in connection with pharmaceutical marketing has been a hot area for some time, and all signs point toward a continuation of this trend, with a corresponding escalation in billing rates for top talent. Pharmaceutical marketing expert witnesses often help litigators determine how certain pharmaceutical markets respond to the new entry of products, generic products, and price fluctuations. They also design, conduct and analyze surveys to support claims of false advertising, unfair competition, and intellectual property violations, among others. Expert witnesses in this discipline tend to be MBAs, JDs, MDs, and have many years of experience in hands-on sales and marketing within the pharmaceutical industry.

Most pharmaceutical marketing cases are quite large, often with huge stakes not just for clients involved but also for the industry as a whole. As such, pharmaceutical marketing expert witnesses command fairly high billing rates.  A sample survey reveals that the hourly non-testifying rates of pharmaceutical marketing expert witnesses range from a low of $200.00 an hour, to a high of $650.00 an hour, with an average rate of about $400.00 an hour. The average testifying rate was $95.00 higher. Expert witness referral firms are constantly recruiting in this area and are well prepared for an up tick in litigation. 

A U.S. District Court judge has prevented a medical expert witness from testifying on behalf of plaintiffs in cases involving Eli Lily's Zyprexa drug. The expert had previously testified in approximately 20 individual Zyprexa cases. The judge concluded that the expert was "shockingly careless about the facts in the cases he proposes to opine about." "He repeatedly and impermissibly stretched the truth to support findings of causality."

While it is useful for litigators to work with an expert witness who has extensive testifying experience on the issue at hand, it can also lead to problems. Seven of the 20 cases mentioned above where the doctor testified are now pending summary judgment by that same judge. Finding an equally knowledgeable and qualified medical expert witness with less exposure is a strategy worth exploring.

Several bills in the State Senate and House Judiciary committees would serve to tighten expert witness standards in Illinois. The first bill would align the state's expert witness standards more closely with those used in federal court. Another bill would limit the venue for a tort action to a county where the defendant has an office or headquarters.