Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

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

For a printer-friendly PDf of this post click here.

The reliability standard that the Supreme Court articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc. is generally considered the touchstone for determining whether expert testimony is admissible in court. But although all federal courts (and most state courts) follow Daubert, a handful of states still adhere to the much older Frye standard, which looks to whether a scientific technique is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

In 2013, it appeared that Florida—one of these holdout states—had finally joined the ranks of Daubert jurisdictions when the Florida Legislature enacted legislation amending the Florida Rules of Evidence to incorporate the Daubert standard. But last month, in DeLisle v. Crane Co., the Supreme Court of Florida held that the legislature acted unconstitutionally, thwarting—at least for now—Florida’s entry into the league of Daubert jurisdictions. Continue reading “Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony”

New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

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

For a printer-friendly PDF of this post, click here.

Although regarded by many as a relatively plaintiff-friendly court, the New Jersey Supreme Court recently bucked the stereotype by largely adopting Daubert for civil cases.  The court’s decision in In re: Accutane Litigation is a behemoth, weighing in at 85 pages (not including the syllabus), but the background and outcome are pretty straightforward. Continue reading “New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases”

Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL

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.

For a printer-friendly PDF version of this post, click here.

Although courts don’t always apply Daubert with the rigor that is warranted, when they do, it is worth noting.  Such is the case with federal district court Judge Paul Engelmayer’s thorough and scholarly decision excluding the opinions of all the plaintiffs’ general-causation experts in an MDL involving Bayer’s Mirena IUD device, In re Mirena Ius Levonorgestrel-related Products. Liability Litigation (No. II).   Continue reading “Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL”

New Jersey: Now the Product-Liability Defendant’s Playground?

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Robert E. Johnston, Partner, Hollingsworth LLP.

Atlantic City, New Jersey—often called A.C. or America’s Playground—has the bright lights and casinos of Las Vegas set on the southern Jersey shore.  We confess that we have tried our luck rolling the bones at the Borgata on occasion, but our defense-side colleagues rolled a “natural” just last month in the New Jersey Supreme Court.

On August 1, 2018, New Jersey became the latest state to adopt (in civil cases) the principles governing the admissibility of scientific opinion evidence articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – a win made even sweeter because it comes in the In re Accutane Litigation Mass Tort litigation, which has been churning (outrageously) in A.C. for more than a decade.  In re Accutane Litigation, (A-25-17) (079958) slip op. (N.J. August 1, 2018) (“Accutane”).  The New Jersey Supreme Court’s decision is a full-throated endorsement of the trial judge’s gatekeeper role and offers the hope that defendants litigating scientific cases in New Jersey may find the courts more hospitable.   The Accutane decision also may represent a turning point in the erosion of the gatekeeping function that has occurred over the twenty-five years since Daubert was first handed down. Continue reading “New Jersey: Now the Product-Liability Defendant’s Playground?”

‘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”