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Old Habits Die Hard: First Circuit Cites Newly Amended Language of FRE 702 But Follows Abrogated Precedent Instead

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The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change.  As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc., 91 F.4th 59 (1st Cir. 2024) – the first reported appellate decision to cite the language of the newly-amended Federal Rule of Evidence 702 since it took effect in December 2023 – even a change to the Federal Rules of Evidence themselves might not be enough for a court to stop citing outdated but familiar precedents.

Some background is in order.  In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ushered in a new paradigm for evaluating the admissibility of expert opinion evidence.  Courts seized on Daubert’s comment that a court’s “focus, of course, must be solely on [an expert’s] principles and methodology, not on the conclusions that they generate.”  But just four years after Daubert was decided, the Supreme Court rejected an argument that a lower court had erred by evaluating an expert’s conclusions.  Because “conclusions and methodology are not entirely distinct from one another,” the lower court had not abused its discretion in evaluating whether the expert’s opinion was warranted by the data on which it was based.  General Electric Co. v. Joiner, 522 U.S. 136 (1997).

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How to Succeed in Business (in Philadelphia) Without Really Trying (Your Case There, Because Venue Isn’t Proper)

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Venue rulings in Pennsylvania affect many defendants in products cases.  Those incorporated here, and those sued on allegations that their products caused harm here, of course.  And, for now at least, it includes corporate defendants registered to do business in Pennsylvania.  They are subject to general jurisdiction, including for claims unrelated to the Commonwealth, under Pennsylvania’s unique “consent to jurisdiction” statute.  That statute was upheld as consistent with due process in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023).

And with many serious personal injury cases being filed in Philadelphia – a venue described in a Mallory concurring opinion as “reputed to be especially favorable to tort plaintiffs” – the stakes involved in venue disputes are higher than ever.  That is even more evident after several recently reported verdicts in product cases, one approaching $1 billion and one exceeding $2 billion.

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Michigan Repeals Pharma Immunity Provision

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Michigan recently signed into law a repeal of the immunity provision under its Product Liability Act, presenting a new litigation risk in Michigan for pharmaceutical companies. The provision had granted near-complete immunity to pharma for the past 30 years, as the only of its kind nationwide.  Michigan’s new law—Senate Bill 410 (SB 410)—removes this immunity, leaving intact a rebuttable presumption of non-liability and caps on non-economic damages.

SB 410 goes into effect on February 13, 2024, and is likely non-retroactive, meaning alleged injuries would have to occur after that date for the new law to apply.  Commentators predict increased Michigan litigation relating to opioid use, insulin price gouging, and Medicaid fraud.

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