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

The New Era of “Daimler” Yields Confusion in the Lower Courts

bnsfPrior to the US Supreme Court’s 2014 decision in Daimler AG v. Bauman, general jurisdiction existed over a business defendant in any state where it was incorporated, had its principal place of business, or its contacts were so “continuous and systematic” as to render them essentially at home in the forum state.  Under this expansive interpretation, corporations could be subject to lawsuits in unpredictable and often remote jurisdictions.

Daimler significantly narrowed the reach of general jurisdiction by holding that because Daimler and MBUSA were neither incorporated nor had their principal place of business in California, Daimler’s contacts with California were not enough to render it at home in the state. 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

The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

supreme courtThis Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.

As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari.  Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes.  From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading

Federal Court in NY Cites Obstacle Preemption in Dismissing State-Law Fraud Suit Against Organic Producer

Cruz-Alvarez_FFeatured Expert Contributor — Civil Justice/Class Actions

Frank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P. with Ravika Rameshwar, an Associate with the firm.

On August 23. 2016, the US District Court for the Eastern District of New York dismissed a class-action suit that alleged the makers of Similac® Advance® Organic Infant Formulas fraudulently misrepresented the products as “organic,” holding that the state claims are preempted by federal law—specifically, the Organic Foods Production Act of 1990.  Marentette et. al. v. Abbott Laboratories, Inc., 2016 WL 4444787 (E.D.N.Y Aug. 23, 2016).  The court stated that Congress designed the OFPA to create a national standard for organic labeling that would be “disrupted, if not thwarted,” by inconsistent state and federal court decisions.  Marentette, 2016 WL 4444787, at *8. Continue reading

California Supreme Court Continues Its “Grasping” and “Exorbitant” Personal Jurisdiction over Nonresident Defendants

California supreme courtIn its seminal 2014 decision, Daimler AG v. Bauman, the U.S. Supreme Court imposed strict limits on the authority of courts to exercise personal jurisdiction over out-of-state corporate defendants.  It condemned as “grasping” and “exorbitant” a California court’s efforts to exercise jurisdiction over claims lacking any connection with the State based solely on a corporate defendant’s regular conduct of business there.  But apparently the California Supreme Court did not get the message.  This week it ruled 4-3 that out-of-state plaintiffs whose tort claims arose outside the State could sue an out-of-state corporation in California courts simply because other plaintiffs who live in California have filed similar claims against the corporation.  Bristol-Myers Squibb Co. v. Superior Court (BMS).  That decision conflicts both with Daimler and basic notions of due process.  The U.S. Supreme Court ought to reverse it in short order. Continue reading