Ten Things to Know About the European Union’s New Product Liability Directive

After it was initially proposed more than two years ago, the European Union passed a new product liability directive (PLD) on Dec. 9, 2024, which prescribes a new legislative framework to expand and modify product liability laws created by the current PLD (originally enacted in 1985). As with other EU directives, the PLD sets legislative and policy goals that the EU’s 27 member states are obligated to implement into national law. For the PLD, they must do so within two years — by December 2026.

The new PLD was presented during the legislative phase as a modernization of pre-Internet Age laws from the 1980s. But beneath that exterior, the new PLD makes various substantive changes that are likely to increase litigation risk and costs for companies doing business in Europe. These changes will impact not only manufacturers of consumer products traditionally subject to product liability law, but also other businesses such as technology and software companies, which will be subjected to product liability law for the first time.

Continue reading “Ten Things to Know About the European Union’s New Product Liability Directive”

You Can Buy Me Dinner, But Don’t Expect to Choose My Entrée: Motion to Disqualify for Non-Party Litigation Funding Conflicts of Interest

You can pay for the dinner, but you cannot pick when, where or what we’re eating. At least that’s what a Magistrate Judge in the District of New Jersey decided last week in Harish v. Arbit, No. CV 21-11088-EP-AME, 2025 WL 354434 (D.N.J. Jan. 31, 2025), a patent dispute that resulted in the disqualification of two law firms from representing two defendants because the defense was funded, at least in part, by a non-party with an interest in the patent.

Adversarial Standing

Plaintiff maintained that defense counsel violated N. J. Rule of Professional Conduct 1.8(f) when they represented defendants and a non-party payer. The Court held that the plaintiff, as an adversary, had standing to raise a potential conflict of interest and bring a motion to disqualify. While the Court noted that the Third Circuit had not ruled on the issue directly, “this District has held that ‘[a]dversaries, as well as former clients, may raise conflict of interest concerns.’”

Continue reading “You Can Buy Me Dinner, But Don’t Expect to Choose My Entrée: Motion to Disqualify for Non-Party Litigation Funding Conflicts of Interest”

Foundation, Not Façade — The Fifth Circuit Affirms the Proper Basis Requirement for Admissibility of Expert Opinions in Newsome v. International Paper Co.

In a toxic tort case, plaintiffs must establish general causation. If a substance is incapable of causing the type of injury plaintiff claims, then it certainly didn’t cause theirs. Under Texas law, toxic tort plaintiffs must prove general causation either by “direct, scientifically reliable proof,” or by “indirect” epidemiological evidence. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1977). In Newsome v. International Paper Company, plaintiff attempted to bypass this foundational requirement, and neither the district court, nor the Fifth Circuit was fooled. WL 5117195 (5th Cir. Dec. 16, 2024).

In Newsome, plaintiff was a truck driver for a company that supplied International Paper with sodium hydrosulfide (NaHS). Under certain conditions, NaHS releases hydrogen sulfide (H2S), an invisible gas with a characteristic rotten-egg odor. During a delivery in January 2019, plaintiff alleged he “smelt something” then “came to” on the ground. He presented to an urgent care clinic the following day but was diagnosed with only a rash. He did not visit a doctor again for four months. Then, more than a year later, plaintiff sued International Paper claiming “a host of life-threatening injuries” related to his alleged exposure to H2S.

Continue reading “Foundation, Not Façade — The Fifth Circuit Affirms the Proper Basis Requirement for Admissibility of Expert Opinions in Newsome v. International Paper Co.“

Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That Change Over Time

Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are questions of law or fact common to the class.” And Rule 23(b) authorizes money damages class actions only where the legal or factual questions common to the class predominate over questions that may be addressed differently for individual class members. In class actions involving claims about product performance, class proponents almost always cite the existence of a “defect” as common issue. But why is the generic question of “defect” even the right question, and what if the product has experienced a significant change over the time period covered by the class action? When a product is updated, is it still the same “product” for purposes of Rule 23? The Sixth Circuit, in In re: Nissan North America, Inc., — F.4th —, 2024 WL 4864339 (6th Cir. 2024), addressed not only these questions but also joined the growing list of circuits that expressly require expert testimony offered at the class certification stage to satisfy Rule 702 of the Federal Rules of Evidence.

Continue reading “Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That Change Over Time”

To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging

Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the opinions of experts who may present evidence at trial. If the disclosures are inadequate, Rule 37(c) requires exclusion of the opinions “unless the failure was substantially justified or is harmless.” This almost automatic exclusionary rule can pose issues when deciding whether to depose an opposing expert. Although “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony,” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008), some courts nevertheless may consider an inadequate disclosure to be “harmless” once the expert’s opinions have been fully explored at deposition. On the other hand, although “[c]ourts have uniformly rejected the [idea] that the failure to depose an expert affects the right to object to the expert’s testimony,” Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 370 (D. Me. 2011) (collecting cases), a party may need to depose an opposing expert in order to properly set up a challenge to the expert’s opinions for purposes of Federal Rule of Evidence 702 or trial if the court deems the expert’s disclosure adequate. This issue becomes particularly acute as applied to nonretained experts, who need not provide a written report under Rule 26. A recent opinion from the Northern District of Indiana aptly illustrates the quandary.

In Macchia v. Landline Trans, LLC, No. 2:21-CV-398, 2024 WL 4751091 (N.D. Ind. Nov. 12, 2024), the plaintiff alleged that he was injured in a motor vehicle accident and proffered three of his treating physicians as experts to opine on his injuries and causation. The defendants filed a three-pronged motion to exclude the experts. Notably, the defendants elected not to take the depositions of any of the three physicians. Indeed, the court’s opinion repeatedly observed how the lack of deposition testimony made it “a bit of a challenge” to summarize the background facts and adjudicate the motion.

Continue reading “To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging”