‘In re Lipitor’: Fourth Circuit Smacks Down Result-Oriented Expert Testimony

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.

Although often couched in gentile terms, the real concern underlying both Daubert’s core requirement of reliability and the gatekeeping role of district courts more generally is that all too often expert witnesses see their role as hired guns, offering—for a price—whatever opinions are necessary in order for their clients to prevail.  The U.S. Court of Appeals for the Fourth Circuit recently issued an extensive decision politely but firmly renouncing such testimony.

In re Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation arose out of multi-district litigation in which the plaintiffs alleged that the cholesterol-lowering drug Lipitor caused them to develop diabetes.  After excluding or sharply limiting the testimony of the bellwether plaintiffs’ expert witnesses, the district court granted summary judgment in favor of the defendant, Pfizer, Inc., on the ground that the plaintiffs lacked sufficient evidence of causation.  Continue reading “‘In re Lipitor’: Fourth Circuit Smacks Down Result-Oriented Expert Testimony”

Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports

obotA recent post here referenced the efforts of various activist groups’ and west-coast state and local governments—purportedly aimed at stopping foreign nations’ contribution to climate change—to create a “thin green line” against the export of coal and other fossil fuels.  As outlined in that post, Washington State officials refused to issue Lighthouse Resources several environmental certifications and permits needed for construction of an export terminal from which Montana- and Wyoming-mined coal would be shipped to customers in Asia.  A federal judge recently held that a lawsuit alleging that Washington’s interference with the terminal violated the U.S. Constitution could proceed.

But the effort to impede fossil fuel transportation is not limited to Washington.  After contracting with a developer to convert an old military base into a bulk cargo shipping center—the Oakland Bulk & Oversized Terminal (OBOT)—in 2016 the City of Oakland attempted to freeze the development because it learned that the center would primarily be used to facilitate the shipment of coal and other fossil fuels.  Continue reading “Contract Dispute Cracks the “Thin Green Line” Activists Are Drawing to Stop U.S. Fossil Fuel Exports”

Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible

Tager_09181Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

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

The Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes that “Rule 23 does not set forth a mere pleading standard.  A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  You would think that would mean that plaintiffs seeking class certification must support their motion with admissible evidence.  Indeed, in Dukes the Supreme Court observed that the district court had held that “Daubert did not apply to expert testimony at the certification stage of class-action proceedings” and commented: “We doubt that is so.”

Nevertheless, relying on a 1975 Ninth Circuit decision and a pre-Dukes decision of the Eighth Circuit, the Ninth Circuit recently held in Sali v. Corona Regional Medical Center that “[i]nadmissibility alone is not a proper basis to reject evidence submitted in support of class certification” and that a district court therefore abused its discretion by declining to consider a declaration “solely on the basis of inadmissibility.”  Continue reading “Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible”

Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

Anyone involved in asbestos litigation has come across the work of Barry Castleman.  By his own account, Castleman has testified for plaintiffs as an expert witness in over 400 trials in asbestos cases discussing the medical literature written about the mineral over the past 100+ years.  Castleman clearly possesses an encyclopedic knowledge of asbestos, but when considering whether his testimony is admissible, trial judges must ask:  is it all inadmissible hearsay? Continue reading “Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony”

Update: Court Imposes Injunction on Proposition 65 Listing of Glyphosate

On November 27, 2017, a WLF Legal Pulse post by WLF Senior Litigation Counsel Cory Andrews discussed a lawsuit filed by makers and users of pesticides that include the chemical glyphosate against the California agency that administers Proposition 65. That law requires warnings on products that contain substances “known to the state of California” to cause cancer. On February 26, Eastern District of California Judge William B. Shubb imposed a preliminary injunction preventing the state from listing glyphosate as a carcinogen under Prop 65. The court held that the plaintiffs were likely to prevail on the First Amendment arguments in their suit. National Ass’n of Wheat Growers, et al. v. Zeise.

Under Prop 65, a substance must be listed if it is identified as a potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. In 2015, IARC made that determination for glyphosate, triggering the automatic Prop 65 listing. IARC’s classification of glyphosate is contrary to the conclusions of many environmental regulators around the world, including the US EPA. Last November, a study published in the Journal of the National Cancer Institute reinforced those regulators’ conclusions that glyphosate was unlikely to pose a cancer hazard to humans.

To pass muster under the First Amendment, a commercial-speech mandate must require language that is “purely factual and uncontroversial.” The language must thus be factually accurate, and even if literally true, cannot be misleading. Judge Shubb found that the warning required for glyphosate is not factual or uncontroversial because it “conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glysophate causes cancer.”

“Big Coffee” Wins Another One in the Food Court

big coffeeFood Court Follies—A WLF Legal Pulse Series

Ed. Note: This is the first post for our blog by our newest Staff Attorney, Marc Robertson.

Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, et al. v. Starbucks Corp., holding the plaintiffs failed to raise a single triable issue of fact as to each of their eight claims.

Lead plaintiff Strumlauf alleged that Starbucks committed, among other wrongs, breach of express warranty, fraud, and false advertising by underfilling its lattes and mochas (collectively, “lattes”). If this case sounds familiar, it is because a little over a year ago the Central District of California dismissed a case alleging Starbucks misrepresented the specific number of ounces in an iced drink in Forouzesh v. Starbucks Corp. (discussed here). That argument failed, so it only made sense that the plaintiff (and her lawyers) raised the temperature in the fight against Starbucks. Continue reading ““Big Coffee” Wins Another One in the Food Court”

New First Amendment Challenge Takes Aim at California’s Listing of Glyphosate as a Potential Carcinogen Under Prop 65

warningLong the subject of much controversy, California’s Proposition 65 law prohibits businesses from exposing Californians to chemicals “known to the State of California to cause cancer” without first providing a warning. California’s Office of Environmental Health Hazard Assessment (OEHHA) publishes a list of chemicals “known to the State of California to cause cancer.” By statute, that list must include substances designated as potential carcinogens by the International Agency for Research on Cancer (IARC), an international non-governmental entity. Continue reading “New First Amendment Challenge Takes Aim at California’s Listing of Glyphosate as a Potential Carcinogen Under Prop 65”