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had no examples of his hypothesis occurring in the real world (including in the instant case), and had relied on an outdated safety manual in forming his conclusions.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

District of Columbia’s Court of Appeals Adopts “Daubert” as Test for Expert Testimony

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

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

Nearly a century ago, in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the federal appeals court in the District of Columbia—the US Court of Appeals for the DC Circuit—announced the general acceptance test for evaluating the admissibility of expert testimony. Over the next several decades, the general acceptance test itself became generally accepted. But since the US Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the adoption of that standard in Federal Rule of Evidence 702, many states have replaced Frye with Daubert. In Motorola, Inc. v. Murray, __ A.3d __, 2016 WL 6134870 (D.C. Oct. 20, 2016), the en banc District of Columbia Court of Appeals (the District of Columbia’s appellate court, distinct from the federal DC Circuit) expressly dispensed with the Frye standard and adopted Rule 702. Continue reading

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