Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers

Evan M. Tager, Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

May a court exclude an expert opinion reliant on scientific studies that offer no meaningful support for the expert’s conclusions? Most federal decisions (including this S.D.N.Y. decision that we recently wrote about here) correctly say “yes.” But in many states, important questions remain about the extent to which a state court can scrutinize the studies that underpin an expert opinion. In Pennsylvania, which continues to apply the Frye general‑acceptance test that preceded Daubert, the Pennsylvania Supreme Court will soon decide how closely trial courts in Pennsylvania can scrutinize the scientific evidence that purportedly underlies the expert opinion.

In Walsh v. BASF, the estate of a long‑time golf‑course groundskeeper, Thomas Walsh, sued nearly three dozen pesticide manufacturers after Walsh died from acute myelogenous leukemia. Unlike in the typical toxic‑tort action, Walsh “kept a diary of the chemicals used on the courses and the dates of their applications.” 191 A. 3d 838, 840 (Pa. Super. Ct. 2018). After years of litigation, Monsanto, Bayer, and several other defendants moved to exclude the opinions of the estate’s two experts on causation. The defendants argued that the studies cited by the  experts failed to support their conclusions and that, at bottom, the experts attempted to pass off as science what amounted to pseudo‑scientific speculation. Continue reading “Pennsylvania Supreme Court to Decide Whether Trial Courts May Act as Gatekeepers”

Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved

Guest Commentary


By Michelle Visser, a Partner, David Cohen, Of Counsel, and Nicole Gelsomini, an Associate, with Orrick

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Two recent Supreme Court developments—within just a week of each other—highlight both the central role of Article III’s injury-in-fact requirement in privacy and cybersecurity cases and the still-fractured state of the law on the issue of what satisfies that requirement in this area.  First, on March 20, 2019 in Frank v. Gaos, the Court vacated and remanded the Ninth Circuit’s approval of a class action settlement between Google and a class of Google users, directing the lower courts to determine whether the named plaintiffs had suffered a sufficiently concrete injury before approving any settlement.  586 U.S. ___ (2019) (available here).  Frank reinforces that injury in fact is a requirement at all stages of a litigation, even class settlement, but declines to answer whether the plaintiffs, who alleged a statutory violation premised on Google’s sharing of their information but arguably no resulting harm, met that bar.

Five days later, the Court again declined to clarify the injury-in-fact standard in the privacy and cybersecurity context when it denied certiorari in v. Stevens.  Zappos had appealed a Ninth Circuit decision holding that consumers whose personal information was involved in a data breach, but who suffered no resulting financial losses, had Article III standing.  (We previously analyzed the Ninth Circuit’s Zappos decision here.)  A Supreme Court judgment in Zappos would have resolved a circuit split over whether the risk of identity theft or fraud in the wake of a data breach is sufficient to confer standing.  Unfortunately, that resolution will have to wait. Continue reading “Supreme Court Leaves Standing for Privacy and Cybersecurity Cases Unresolved”

Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?

Featured Expert Contributor, False Claims Act

Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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The False Claims Act confers upon the U.S. Department of Justice the express authority to seek dismissal of cases brought under the qui tam provisions of the Act.  Historically, the Department has exercised its dismissal prerogative exceedingly rarely, usually when the qui tam action disserved the DOJ’s or the affected agency’s interests in a significant way.  In 2018, the DOJ adopted a policy on dismissal of qui tam cases that attempts to standardize the use of this authority across the Department, identifying specific criteria by which to evaluate cases for dismissal.  These criteria by and large involve various circumstances that threaten or at least challenge government interests in some way.

In light of the significant numbers of qui tam cases that fail to make it past summary judgment, however, and the burdens associated with those cases, borne not just by federal agencies, but other involved parties and the courts, the DOJ should do more to seek dismissal of cases that lack merit.  In this sense, the DOJ’s policy on dismissals, although a step in the right direction, falls short of fostering a gatekeeping function that serves interests beyond those of the DOJ and other executive agencies.  A look at a recent example of the DOJ’s failure to pursue dismissal in a case where the evidence reflected lack of merit illustrates the costs of failing to dismiss and should inspire a new, more aggressive approach to the use of this authority. Continue reading “Does DOJ’s Qui Tam Dismissal Policy Go Far Enough?”

Update: Second Circuit Upholds Dismissal of Absurd Diet-Soda Class Action

diet pepsiNearly a year ago in Neither Reason nor Science Supports Class Actions against Diet Soda Makers, we applauded the dismissal of several copycat class-action lawsuits alleging that because the word “diet” in “diet soda” implies the beverage aids in weight loss, companies like Pepsi and Dr. Pepper were misleading consumers. Consumers were misled, the suits asserted, because the artificial sweetener being used causes weight gain. The plaintiffs cited scientific studies they said supported that conclusion.

One decision by the U.S. District Court for the Southern District of New York, Manuel v. Pepsi-Cola Co., thoroughly dismantled the studies plaintiffs relied upon, holding that at most the studies supported a correlation between the sweeteners and weight gain, not causation.

The U.S. Court of Appeals for the Second Circuit affirmed that decision last month. On April 17, the same court, in a curt summary order, affirmed the dismissal of another diet-soda suit by the Southern District of New York, Excevarria v. Dr. Pepper Snapple Group, Inc.  The order explained that even if the reasonable consumer believed that a product containing the word “diet” was making promises about weight management, the studies Excevarria cited did not establish a causal connection between the artificial aspertame and weight gain.

Several other dismissed diet-soda class actions are awaiting decisions from the Ninth Circuit. Because all these suits rely on the same flawed studies, Manuel and Excevarria should seal the fate of those pending appeals.

In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution

standardTo illuminate a modest living room for three hours a night for two months, you would need about a million lumen-hours of light. Now consider three inflation-adjusted numbers. One: in 1800 a subject of George III could get that much light for around £9,500. Two: in 1900 a subject of Queen Victoria could get it for around £230. Three: by 2000 it cost a subject of Elizabeth II less than £3.

What happened?

For one thing, Standard Oil happened. John D. Rockefeller was a fanatic. He kiln-dried barrel wood to save the expense of shipping trace amounts of water. He tested whether a drum needed 40 drops of sealant, or whether 39 would do. He relentlessly cut the cost of refining lamp oil. “Unlike the spermaceti candles of decades prior, sometimes wrapped in tissue paper fit for jewelry,” writes Bhu Srinivasan, “cheap tin cans filled with kerosene now allowed the common man to light his home.” These “cheap tin cans” fired the lamps of Britain. Continue reading “In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution”

Government’s Authority to Unilaterally Dismiss Qui Tam Fraud Suit Faces Court Test

whistleLast week, the United States filed its long-awaited motion to dismiss a major False Claims Act (FCA) lawsuit filed in the Northern District of California, U.S. ex rel. Campie v. Gilead Sciences, Inc. The Government argued that dismissal was warranted “to avoid the additional expenditure of government resources on a case that it fully investigated and decided not to pursue.” Last December in a U.S. Supreme Court filing, the Government promised that it would seek dismissal of the suit—filed by whistleblowers formerly employed by Gilead, a large brand-name drug manufacturer. The Government likely made that promise to ensure that the Supreme Court would not agree to hear Gilead’s appeal from a Ninth Circuit decision reinstating the case.

The motion could end up becoming a major test of the Granston Memo, a January 2018 Department of Justice memo that directed department lawyers who review FCA qui tam lawsuits to consider seeking dismissal. The FCA grants the Government a virtually unfettered right to dismiss FCA suits filed by private litigants in the name of the United States. Yet the Ninth Circuit and several other federal appeals courts have demonstrated their willingness to closely examine Government efforts to shut down relators’ FCA lawsuits. And the district judge hearing the Gilead case very recently rejected a similar motion to dismiss—ruling that the Government must demonstrate that it has undertaken an absolutely thorough investigation before he will even consider dismissal. Continue reading “Government’s Authority to Unilaterally Dismiss Qui Tam Fraud Suit Faces Court Test”

Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases

Featured Expert Contributor, Mass Torts—Asbestos

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

Last month, the United States Supreme Court rejected the “bare metal” defense to products liability claims in maritime cases.  Air & Liquid Systems v. DeVries, No. 17-1104, 2019 WL 1245520 (U.S. Mar. 19, 2019).  Some have predicted that the decision marks the beginning of the end for that defense even outside the maritime context.  But the prediction is premature.  The DeVries decision comes after the highest courts in some states have already embraced the “bare metal” defense and in doing so rejected the same arguments that the DeVries majority has now endorsed.  Those state decisions will continue to control in those jurisdictions, at least in non-maritime cases.  Further, those state courts are unlikely to reverse course and accept arguments that they so recently rejected.

In DeVries, the families of naval veterans who had died of cancer brought products liability claims against the manufacturers of pumps, blowers, and turbines used on naval ships, claiming that the manufacturers were negligent in failing to warn of the risks of asbestos-containing insulation the Navy used with their products.  The district court granted summary judgment for the manufacturers, holding that under the “bare metal” defense, the manufacturers were not liable for failing to warn about asbestos-containing products that they did not manufacture or supply.  The U.S. Court of Appeals for the Third Circuit reversed, holding that the manufacturers had a duty to warn because it was “foreseeable” that the asbestos-containing products would be used with their products. Continue reading “Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases”