Third Circuit Rejects Plaintiffs’ Attempt to Lower “Daubert” Standard in “In re Zoloft Products Liability Litigation”

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

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.

The US Court of Appeals for the Third Circuit recently rejected an attempt to substantially lower the standard for admission of expert testimony resting on studies that have not produced replicated and statistically significant findings. Specifically, the plaintiffs in In re Zoloft Products Liability Litigation argued that the district court erroneously imposed a rigid, bright-line rule that an expert must present replicable, statistically significant findings. The Third Circuit held that the district court had not established such a bright-line rule, but rather had made a factual finding that teratologists—scientists who study abnormalities in human development—“generally required replication of significant results.” After dispensing with the plaintiffs’ flawed interpretation of the district court’s decision, the Third Circuit affirmed the exclusion of the expert testimony on the ground that the expert had selectively chosen data that supported his opinion and inconsistently applied his methodology, thus rendering his opinions unreliable. Continue reading

Will the California Supreme Court Address the “Every Exposure” Theory of Causation?

Featured Expert Contributor: Mass Torts—Asbestos

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

*This is the inaugural post for the WLF Legal Pulse’s newest Featured Expert Contributor. We are pleased to have Rob join our 7 other Featured Experts.

In conflict with many other jurisdictions, the intermediate appellate courts in California have allowed expert testimony in toxic tort cases based on an “every exposure” theory of causation (or its variants such as the “every identified exposure” theory).  Under that theory, even a minuscule exposure attributable to a defendant is by definition a substantial factor in causing disease, regardless of the circumstances of exposure or comparison to greater exposures attributable to other sources.  The California Supreme Court has been asked to grant review to decide the admissibility of such expert testimony in the case Phillips v. Honeywell International Inc., California Supreme Court Case No. S241544.

The “every exposure” theory typically arises in toxic tort cases involving latent diseases.  The causation standard is critical in low-dose exposure cases, which often turn on disputed evidence about sporadic exposure decades ago, and controversial opinions about whether low-dose exposures are capable of causing disease.  Although the issue arises most frequently in asbestos cases like Phillips, it can arise in any case in which the plaintiff claims injury from minute exposure to an alleged toxin.  Continue reading

Missouri Governor Signs Law Adopting “Daubert” Standard for Expert Testimony in State’s Courts

Featured Expert Column—Judicial Gatekeeping of Expert Evidence

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 a victory for keeping junk science out of courtrooms, Missouri recently enacted H.B. 153, which adopts the Daubert standard.

H.B. 153 establishes four criteria for an expert witness’s testimony:

(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case.

These criteria mirror Federal Rule of Evidence 702 and the Daubert standard.

Although H.B. 153 applies broadly, it is not universally applicable. It does not apply in certain family and juvenile court proceedings. In addition, H.B. 153 does not permit an expert witness in a criminal case to testify “whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.” Continue reading

Reversing Four-Year Old Legislative Action, Florida Supreme Court Reduces Scrutiny of Expert Testimony

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

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 2013, the Florida Legislature replaced the Frye standard with the Daubert standard by enacting statutory language that mirrors Federal Rule of Evidence 702. Presumably, that should have been the end of the matter. Daubert should now govern the admissibility of expert testimony in Florida state courts.

The Florida Supreme Court, however, has a history of rejecting procedural aspects of the Florida Evidence Code that the legislature enacts. To do so, the court invokes its authority over the rules of practice in Florida’s courts under Article V, Section 2(a) of the Florida Constitution. In February 2017, the court again exercised its constitutional prerogative over procedural aspects of the state court system and rejected the legislature’s adoption of the Daubert standard, citing “grave constitutional concerns.” In re: Amendments to the Florida Evidence Code. Thus, unless the legislature overturns the court’s decision by a two-thirds vote, Frye will continue to govern in Florida state courts. Continue reading

Fourth Circuit Reaffirms “Daubert”’s Scope and Reliability Requirement in Important Products-Liability Case

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

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.

Even though Daubert v. Merrell Dow Pharmaceuticals, Inc. has been the law of the land for over two decades, questions about its scope and the responsibility of the district courts to serve as gatekeepers continue to abound. In Nease v. Ford Motor Co., a recent US Court of Appeals for the Fourth Circuit case, the district court allowed an engineer to testify as an expert even though he had never tested his hypothesis, had no examples of his hypothesis occurring in the real world (including in the instant case), and had relied on an outdated safety manual in forming his conclusions. This abdication of the district court’s gatekeeping responsibilities resulted in the admission of junk science masquerading as expert testimony and a $3 million jury verdict in the plaintiffs’ favor. The Fourth Circuit unanimously reversed in an opinion that strongly reaffirms Daubert’s breadth and importance. Continue reading

Third Circuit Hears Oral Argument in ‘In re Zoloft Products Liability Litigation’

Featured Expert Column –Judicial Gatekeeping of Expert Evidence

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.

A panel of the US Court of Appeals for the Third Circuit (Judges Chagares, Restrepo, and Roth) recently heard oral argument (audio recording here) in an important products-liability case that raises significant questions about the scope of Daubert.

In In re Zoloft Products Liability Litigation, plaintiffs allege that Zoloft—a prescription drug manufactured by Pfizer that is used to treat depression and anxiety—causes cardiovascular birth defects when used by a mother in the early stages of pregnancy. Because ethical concerns prohibit double-blind, randomized studies on pregnant women, research on birth defects must rely on less rigorous observational studies. Common scientific practice dictates that, even when a correlation has been found to be statistically significant within a narrow confidence interval, a single study remains insufficient to establish causation given the potential for random error, bias, confounding variables, or some other flaw with the study. Accordingly, scientists look to whether an observational study’s results can be replicated to determine whether causation exists. Continue reading

Ninth Circuit Holds Anti-GMO Regulations in Hawaii Preempted by Federal and State Law

9thCirOn November 18, the US Court of Appeals for the Ninth Circuit held that federal and state law preempted three county laws in Hawaii that put restrictions on commercial farmers’ planting of genetically-engineered seeds.  The WLF Legal Pulse blogged about the oral arguments this summer.  The decisions, Atay v. County of Maui, Hawaii Papaya Industry Assoc. v. County of Hawaii, and Syngenta Seeds, Inc. v. County of Kauai, collectively represent a win in the fight against unscientific regulations on so-called Genetically Modified Organisms (GMO), and highlight the need for uniform, national rules.

The cases arose when the three Hawaii counties, Maui, Hawaii, and Kauai, passed anti-GMO ordinances.  Those of Maui and Hawaii banned outright the growing of genetically modified crops, while Kauai’s ordinance created an extensive public-disclosure scheme for anyone using certain pesticides—the application of which is an essential part of modern commercial farming.  Local farmers and seed suppliers challenged the three ordinances, alleging that they were preempted by federal and state law. Continue reading