No “Daubert”-Style Gatekeeping in Alabama for Expert Testimony Based on Technical or Specialized Knowledge

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Tager_09181Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.

In federal courts, Daubert v. Merrell Dow Pharmaceuticals, Inc. applies not only to scientific testimony but also to technical and other specialized knowledge. That principle stems from the text of Federal Rule of Evidence 702(a)—which expressly references an “expert’s scientific, technical, or other specialized knowledge”—and the US Supreme Court’s holding in Kumho Tire v. Carmichael, which extended Daubert’s gatekeeping responsibilities to technical and specialized knowledge. Put simply, Daubert provides a generally applicable rule for how federal judges should ascertain the reliability of expert testimony.

The same is not true in Alabama. In 2011, the Alabama Legislature adopted the Daubert standard and modified Alabama Rule of Evidence 702 to provide: Continue reading

“U.S. v. Martoma”: Second Circuit’s Latest, but Perhaps not Last, Word on Insider-Trading Tippee Liability

Featured Expert Contributor, Corporate Governance/Securities Law

bainbridgeStephen M. Bainbridge, William D. Warren Distinguished Professor of Law, UCLA School of Law.

Matthew Martoma was a portfolio manager at S.A.C. Capital Advisors, LLC, a hedge fund owned and managed by Steven A. Cohen, which had been the subject of numerous insider trading investigations. One of those investigations resulted in Martoma being charged with insider trading on the stocks of a pair of drug companies developing a new Alzheimer’s disease drug treatment. Martoma had received tips of material nonpublic information about the treatment from two drug company employees. Martoma was convicted and appealed.

In a 2-1 opinion by Chief Judge Katzmann, the Second Circuit affirmed Martoma’s conviction. Its decision in United States v. Martoma is the first major interpretation of the Supreme Court’s decision in Salman v. United States, and the first effort to determine the remaining scope, if any, of the Second Circuit’s 2014 decision in United States v. Newman. Continue reading

Court Ruling in Pharma Case Calls into Question Consumer Expectations Test’s Use in Asbestos Suits

Featured Expert Contributor, Mass Torts—Asbestos

RobertWright

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

A recent appellate decision rejecting the consumer expectations test for strict liability in a pharmaceutical case calls into question the use of that same test in cases involving low-dose exposures to asbestos.  Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 117 (2017), petition for review filed, (Aug. 8, 2017) (No. S243672).

Much like in pharmaceutical cases, the trials in low-dose asbestos cases invariably center on competing expert-opinion testimony regarding scientific matters beyond the everyday experience of ordinary consumers.  As a result, such cases should proceed not under a consumer expectations theory, but instead under the alternative risk-benefit theory, which is recognized in many states and has long been applied to hold that a product is defectively designed if “‘the benefits of the challenged design outweigh the risk of danger inherent in such design.’”  Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1310 (Haw. 1997), quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 455-56 (1978); see, e.g., Lamkin v. Towner, 563 N.E.2d 449, 457 (1990) (applying Barker). Continue reading

Seventh Circuit Judge Posner Rides into the Summer Sunset

posnerWe begin Fall 2017 blogging with an appreciative farewell.

This past Friday, September 1, US Court of Appeals for the Seventh Circuit Judge Richard Posner announced his retirement, effective immediately. He served on the circuit for 36 years, having been appointed by President Ronald Reagan in 1981.

Judge Posner was a principled skeptic of lawyer-driven litigation which, not surprisingly, led us to discuss a number of his opinions here at the WLF Legal Pulse.

Most recently, in Eye Drops, Water Fountains for Cats, and the Demise of a No-Injury Class Action, we recounted the unusual analogy Judge Posner used in his majority opinion to support the court’s dismissal of an especially officious no-injury class action filed against the makers of eye drops. Continue reading

California Supreme Court Expands Scope of Discovery in Representative Actions under Private Attorneys General Act

JohnQuieroLE - resized [45] 170504_0034_1a_square2Guest Commentary

By John F. Querio, a Partner, and Lacey L. Estudillo, an Appellate Fellow, with Horvitz & Levy LLP.

On July 13, 2017, the California Supreme Court decided Williams v. Superior Court, which expanded a plaintiff’s discovery rights in actions brought pursuant to California’s Private Attorneys General Act (PAGA).  PAGA permits an employee to bring a representative action “‘on behalf of himself or herself and other current or former employees’ to recover civil penalties” for wage-related violations of California’s Labor Code—penalties that were previously recoverable solely by the state’s labor-law enforcement agencies.  Amalgamated Transit Union, Local 1756 v. Superior Court, 46 Cal. 4th 993, 1003 (2009). Continue reading

Florida Supreme Court, Casting Separation of Powers Aside, Invalidates Medical Malpractice Damages Limits

Andy-Bolin-Color-HiRes-420x280Guest Commentary

By Andrew S. Bolin, Beytin, McLaughlin, McLaughlin, O’Hara, Bocchino & Bolin, P.A.

In 2003, the Florida Legislature undertook the arduous task of examining the impact of medical malpractice lawsuits in the State of Florida. Governor Jeb Bush appointed a Select Task Force on Healthcare Professional Liability Insurance that consisted of a distinguished group of non-partisan scholars and public servants, including the former Secretary of the Department of Health and Human Services under President Clinton. Over one regular and four special sessions, Florida’s Legislature reviewed over 1,600 sworn affidavits from medical providers, heard hundreds of hours of testimony during public hearings, and analyzed empirical evidence provided by those studying the issues.

The results of this rigorous undertaking were shocking. Four-hundred Broward County physicians cited the soaring costs of medical malpractice insurance as a reason they left the state or retired early. The task force pointed to examples of obstetrical centers closing due to increased premiums and residency graduates being forced to practice outside of Florida because they were unable to obtain or afford malpractice insurance. In 2003, 80% percent of obstetricians in Miami stated that they had been forced to practice without the protection of malpractice insurance. Ten percent of OB/GYNs in Orlando chose to leave the practice. Continue reading

Class Actions Clothed in Righteousness: Appeals Court Rejects Bargain-Hunters’ Suits for Lack of Injury

nordstrom rackBy Abbey Coufal, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Bargain shopping is not for the weary, but there is something thrilling about combing through items on tightly-packed circular racks, with the hope of hunting down the desired piece of clothing at a good price. Landing the perfect deal usually brings a feeling of satisfaction, and does not give rise to conflict with the retailer. But in America, even a bargain-finder who bought an unblemished sweater can turn around and sue the business on behalf of herself and countless other shoppers, claiming they were all fooled into making their purchases. Continue reading