2023 - Page 2 of 5 - Faegre Drinker on Products

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Courts Are Citing the Rule 702 Amendments – And Litigants Should, Too

Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory Committee on Evidence Rules, district courts will be asked to conduct more consistently rigorous gatekeeping for expert opinions offered in their courtrooms, and will be supported when they do. Litigants can help usher in this change by citing the amendments themselves, following the pattern of courts that have been doing so.

The Advisory Committee unanimously approved the pending amendments to Rule 702 on April 30, 2021. On May 6, 2022, following a comment period, the Committee issued a report reflecting public comments received. In October 2022, the Committee presented the amendments to the United States Supreme Court. On April 24, 2023, the Court sent revisions to Congress. Per 28 U.S.C. § 2074(a), the revisions will take effect on December 1, 2023, unless a law is passed otherwise.

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Ethylene Oxide Alert: Where Is Your Warehouse?

For over a year now, the U.S. Environmental Protection Agency (EPA) has been focused on reducing or eliminating ethylene oxide (EtO) emissions from industrial sites, commercial sterilizing facilities, and even hospitals. After a brief extension, the comment period for new proposed Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations closed at the end of June with over 1,000 unique written comments. It is anticipated that EPA is going to take some time to sort through those comments before issuing final rules, which are expected in March 2024. At the same time, EPA has forecasted releasing a proposed rule specific to hospital sterilizers in early 2024.

Next up on EPA’s agenda appears to be warehouses that store products sterilized with EtO. The looming question appears to be “where is your warehouse?” Onsite warehouses are the first to be in EPA’s crosshairs, but in classic agency style they are leaving the option to expand that focus open for the time being. Meanwhile, environmental groups are asking EPA not to wait to expand that focus, and states like California and Georgia are taking matters into their own regulatory hands.

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Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, not Content

Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts. Relatedly, when non-retained expert witnesses offer opinions based on information obtained outside the scope of their personal involvement in the facts of the case, most courts require them to submit a full Rule 26(a)(2)(B) report. See, e.g., Goodman v. Staples The Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011). Thus, for example, a physician who provided care to a personal injury plaintiff is treated as a retained expert for disclosure purposes when he or she bases a causation opinion on materials provided by an attorney and reviewed as part of the litigation. Some courts, taking this rationale a step further, have required all experts who opine on certain topics – for example, causation – to submit a full Rule 26(a)(2)(B) report. See, e.g., Muzaffarr v. Ross Dress for Less, Inc., 2013 WL 3850848 (S.D. Fla. July 26, 2013). But according to the Eleventh Circuit’s recent opinion in Cedant v. United States, — F.4th —, 2023 WL 4986402 (11th Cir. 2023), such rules invert the Rule 26(a)(2) analysis.

The Plaintiff in Cedant alleged that he was injured in an accident with a U.S. Postal Service truck. The parties agreed that, under applicable Florida law, Plaintiff had to support his claim with expert testimony showing that the accident caused his harm. He proposed to satisfy that requirement solely by offering testimony from several doctors who treated him after the accident. The district court, holding that experts who offer opinions on causation must satisfy Rule 26(a)(2)(B)’s disclosure requirements (including, inter alia, a Rule 26 report) and observing that none of Plaintiff’s treating physicians had satisfied those requirements, excluded the experts under Rule 37(c)(1). Then, because Plaintiff had no admissible expert testimony to support causation, the court granted Defendant’s motion for summary judgment. Plaintiff appealed.

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Supreme Court Reinstates Statutory “Consent” to General Personal Jurisdiction

On June 27, 2023, the United States Supreme Court decided Mallory v. Norfolk Southern Railway Co., 2023 WL 4187749, 600 U.S. ___ (June 27, 2023), a decision that likely will reinvigorate forum-shopping efforts by plaintiffs in the Commonwealth of Pennsylvania and possibly elsewhere. The decision—supported by a plurality of Justices and the concurrence of Justice Alito—upholds a Pennsylvania law that requires out-of-state corporations registering to do business in Pennsylvania to consent to general personal jurisdiction within the Commonwealth. Overlooking decades of personal jurisdiction jurisprudence, Mallory reinstates a form of personal jurisdiction previously cast by many courts as a dead letter: general jurisdiction by statutory “consent.”

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Pressure is Rising: Continued Moves to Ban or Limit Natural Gas Appliances

We continue to track litigation and legislations involving proposed or enacted bans or limitations on natural gas appliances. As anticipated, this area continues to evolve, and we are finding increased litigation regarding the enforceability of such laws, as well as the safety of natural gas appliances. We previously discussed the efforts to electrify America’s natural gas infrastructure in various markets here. This article provides updates and explains several nuances to these electrification efforts.

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Enforcement of Representative Actions is Here

It’s finally here. Enforcement of the Collective Redress / Representative Actions Directive (RAD) in the EU has now begun. At this time, six member states have adopted a national translation of this law and nineteen states are engaged in ongoing discussion and drafting. The landscape is changing rapidly and our team is tracking these developments.

Are you ready for this shift in litigation culture? Backed and supported by the growing EU third party litigation funding industry, the RAD will provide an unprecedented procedural mechanism to bring class and consumer actions on a mass scale against EU traders. These actions can be premised upon one or more of 66+ substantive regulations that cover everything from the finance industry to environmental regulations to product and artificial intelligence liability. If you have not prepared, now is the time.

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