Florida Appeals Court Invokes “Daubert” to Reject “Every Exposure” Causation in Asbestos Case

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Plaintiffs in asbestos cases often maintain that every asbestos exposure above background level is a substantial contributing factor to mesothelioma. That theory has been roundly rejected by courts. In a recent opinion, an intermediate appellate court in Florida joined the chorus of decisions refusing to credit the “every exposure above background level” theory.

In Crane Co. v. DeLisle, 2016 WL 4771438 (Fla. Dist. Ct. App. Sept. 14, 2016), the plaintiff developed mesothelioma after allegedly working around “Cranite” sheet gaskets containing chrysotile asbestos fibers and smoking asbestos-containing cigarettes in the 1950s. Following a trial involving multiple defendants, a jury awarded the plaintiff $8 million in damages. The Florida District Court of Appeal, however, reversed and remanded for entry of a directed verdict in favor of Crane Co., the manufacturer of the sheet gaskets, and a new trial for R.J. Reynolds, the cigarette manufacturer. Continue reading

Using “Daubert” to Exclude Plaintiffs’ Use of Flawed Surveys in Civil Litigation

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Expert testimony is typically thought of as providing an insight into the evidence in the case, or drawing a conclusion from the evidence, that requires knowledge beyond the ken of a typical judge or juror.  But expert testimony also can be used as a substitute for evidence that a party cannot, or does not want to, present through traditional evidentiary methods.  Although courts have allowed such expert testimony in certain contexts, there is cause for concern when a party offers an expert whose function is to fill a gap in the evidence.

Notable among this category of expert testimony are opinions offered during class-certification proceedings in an effort to show that a case can be efficiently managed on a class-wide basis.  Such testimony often takes the form of surveys or other statistical sampling techniques designed to establish liability or damages on a class-wide basis without requiring adjudication of each individual claim.  Continue reading

Crusade or Charade?: What’s Really Motivating Efforts to Mandate GMO-Labeling?


Because “public-interest” groups cloak themselves with the feel-good mantle of protecting consumers, the environment, animals, etc., the motives of such groups rarely get questioned. But several recent developments show that all too often, activists put their own self-interest before the public’s interest.

Consider, for example, environmental groups’ opposition to a Washington state ballot measure going before voters this fall. Initiative 732 pursues a major environmentalist goal—carbon-emissions reduction—by imposing an excise tax. Revenues from the carbon tax would in turn fund sales, manufacturing, and low-income-household tax cuts. In other words, it’s revenue neutral, and that doesn’t sit well with green activists who see climate change as an effective proxy for a broader ideological goal: expanding government. Continue reading

October Term 2015 Administrative-Law Rulings Heighten Significance of Next Supreme Court Appointment


New Faulk photoFeatured Expert Column − Toxic Tort and Environmental Litigation

Richard O. Faulk, Esq., a Partner with Alexander Dubose Jefferson & Townsend LLP serving clients in Texas and Washington DC.

*The views and opinions expressed in this article are those of the author and do necessarily represent or reflect the views of Alexander Dubose Jefferson & Townsend LLP.

Since the United States Supreme Court’s Skidmore v. Swift & Co., and Bowles v. Seminole Rock & Sand Co. rulings, the role of judicial deference in administrative law has expanded exponentially.  For example, agencies now receive deference, under the Court’s Auer v. Robins decision, even if their own drafting creates the very vagaries and ambiguities that require interpretation.  Courts also defer to agencies’ interpretations of statutes they are charged to administer (Chevron U.S.A. Inc. v. NRDC) and to scientific conclusions reached in the course of the regulatory process (Baltimore Gas & Electric Co. v. NRDC).  By indulging these perspectives, the courts necessarily surrender their constitutional authority to “say what the law is,”1 and contribute to an arrogation of administrative power that threatens not only our constitutional separation of powers, but also their balance.2

Regulatory agencies have grown into what some call a “fourth branch” of our federal government.3 The threat posed by this de facto branch, also known as the “Administrative State”4 or, more colorfully, our “Junior Varsity Congress,”5 has attracted the growing attention of a number of Supreme Court justices.  Continue reading

When Expert Testimony “Fits” with Causation

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

When there are multiple cumulative causes of an injury, an expert witness’s testimony attributing specific causation to one of those causes must employ a standard that at least crosses the threshold necessary to establish causation under the law. Otherwise, the testimony is unhelpful to the jurors—indeed, it may affirmatively mislead them. This principle was front and center in a decision released by the Georgia Supreme Court on July 5. In Scapa Dryer Fabrics v. Knight, the court held that an expert witness’s testimony must “fit” the pertinent causation inquiry for asbestos cases under Georgia state law.

In the late 1960s and early 1970s, the plaintiff worked at defendant Scapa Dryer Fabrics’ manufacturing facility as an independent contractor. During that time, the pipes and boilers in the defendant’s manufacturing facility were insulated with material containing asbestos, and the defendant used yarn containing asbestos to make textiles. Continue reading

North Carolina Supreme Court Grudgingly Adopts “Daubert” Standard for Expert Evidence Review

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Five years ago, the North Carolina General Assembly amended the North Carolina Rules of Evidence to mirror the Federal Rules of Evidence’s approach to expert testimony. In North Carolina v. McGrady, __ S.E.2d __, 2016 WL 3221096 (June 10, 2016), the Supreme Court of North Carolina finally confirmed that, as a result of the General Assembly’s adoption of language that mirrors that of the federal rules, the Daubert standard now governs the admission of expert testimony under state law.

The US Supreme Court first adopted the Daubert standard in 1993, interpreting Federal Rule of Evidence 702 to bestow a “gatekeeping role” on district courts. Shortly after Daubert, the Court elaborated on this standard in General Electric Co. v. Joiner and Kumho Tire Co. v. Carmichael. And in 2000, the Supreme Court adopted amendments to Rule 702 that, while not expressly mentioning Daubert in their text, were clearly intended to formally embed the Daubert standard in the Federal Rules of Evidence. Continue reading

The First Circuit Weighs Competing Studies About Relative Risk

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

When does an expert witness have an obligation to weigh competing studies and explain why she chose to rely on one study rather than another? On the one hand, this decision-making process goes to the core of whether an expert has employed a sound methodology in reaching her conclusions—a requirement that district courts must police under Daubert. But on the other hand, the selection of studies could be viewed as going to weight, not admissibility, and thus the jury, not the district court or the expert, should decide which study to credit.

This question was at the center of a recent U.S. Court of Appeals for the First Circuit decision. In Milward v. Rust-Oleum Corp., ___ F.3d ___, 2016 WL 1622620 (Apr. 25, 2016), a divided panel held that the district court did not abuse its discretion in excluding expert testimony on the ground that the expert failed to analyze conflicting epidemiological studies. Continue reading