Just a decade ago, it was still an open question whether parties could challenge the admissibility of expert testimony in class certification proceedings. The United States Supreme Court recognized the issue in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and suggested that experts should be scrutinized as usual, noting that “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that this is so . . .” Since then, multiple circuits have taken that hint and held that a court must conduct a full Rule 702 analysis before deciding whether to certify a class. The Fifth Circuit, in Prantil v. Arkema Incorporated, 986 F.3d 570 (5th Cir. 2021), became the fourth federal court of appeal to adopt this rule expressly. As the district court’s recent decision on remand in Prantil demonstrates, a full Rule 702 analysis can make the difference between certifying or rejecting a class.
It is axiomatic that a plaintiff must offer evidentiary support for each element of her claim in order to survive summary judgment. And a ubiquitous feature of product liability actions is the use of expert witnesses by both sides. These principles are, of course, related – the plaintiff usually must offer expert testimony in order to make a prima facie case, and the defense then attacks that prima facie case through expert testimony. But sometimes a plaintiff loses sight of the connection and, despite retaining an expert, fails to elicit the opinions she needs to make her case. As a recent decision from the Western District of Wisconsin illustrates, it pays for a defendant to carefully evaluate whether a plaintiff has checked all of the necessary boxes.
In Moore v. National Presto Industries, Inc., 2022 WL 1555875 (W.D. Wis. May 17, 2022), Plaintiff alleged that she was injured when she opened her pressure cooker while it was still pressurized, ejecting its contents onto her arm, causing burns. Plaintiff sued the cooker’s manufacturer, asserting strict liability claims for design defect and failure to warn as well as a claim for negligence. Defendant moved for summary judgment on each of these claims.
It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible connection to the issue at hand. Certainly, Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert’s report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” And, Federal Rule of Evidence 702 requires that an expert not only base an opinion on sufficient facts or data but also reliably apply his or her methodology to those facts or data. Yet all too often, courts decline to hold an expert to task and instead find that these deficiencies go to the weight, but not the admissibility, of an expert’s opinion. But, as recently observed by the First Circuit, an expert must do more than merely cite the existence of an injury if a res ipsa loquitur argument is not available. And regardless, an expert’s failure to link the literature cited to the opinions offered is not a matter of insufficiency, but rather of unreliability.
In López-Ramírez v. Toledo-González, — F.4th —, 2022 WL 1261299 (1st Cir. 2022), Plaintiff experienced hearing loss, facial paralysis and loss of balance following a neurosurgical procedure performed by the defendant neurosurgeon. Plaintiff sued the physician and the hospital, alleging that the defendant neurosurgeon’s failure to properly evaluate, treat and monitor her condition during the surgery amounted to medical malpractice. In support of that claim, Plaintiff disclosed a neurology expert who opined that the defendant neurosurgeon deviated from the standard of care and included with his report articles from the medical literature that he felt “may be helpful” in understanding his opinions.
A plaintiff who alleges that a product is defective usually has to offer expert testimony in support of that allegation. This should come as no surprise for complex products – if it took a team of scientists and engineers to bring the product to market, then a lay jury should not be asked to evaluate an alleged defect in that product without the aid of expert testimony. But what if a plaintiff alleges a defect in the design of a relatively simple, more familiar component of a complex product? The Third Circuit recently addressed that question in an opinion that, although nonprecedential and in some respects peculiar to New Jersey law, illustrates how a court should approach the issue.
In Kuhar v. Petzl Co., 2022 WL 1101580 (3d Cir. Apr. 13, 2022), Plaintiff fell and injured himself while using a safety harness that he had purchased as part of a kit seven years earlier. He alleged that the fall occurred because a bolt attached to the carabiner of the safety harness had snapped due to a design and/or “indeterminate” or manufacturing defect. In support of his claims, Plaintiff proffered a metallurgical and materials sciences expert who identified two alleged design defects – a “sharp profile change” and “sharp threads on the bolt” – and machining grooves that the expert deemed a manufacturing defect, some combination of which he claimed had caused the accident. But some of the expert’s defect and causation opinions were “net opinions” – New Jersey parlance for “ipse dixit” opinions – and were excluded for lack of supporting data. Other opinions were excluded because the expert failed to define his terms or explain his reasoning. The Third Circuit agreed with the district court that the expert’s opinions lacked both reliability and fit, and affirmed its exclusion of all of the expert’s opinions.
Continue reading “Third Circuit Confirms That Alleged Defect in “Simple” Component of More Complex System Must Be Proven by Expert Testimony When Facts Surrounding Defect Claim Are Beyond Common Knowledge”
Early last year, the In re: Incretin-Based Therapies MDL court held that the plaintiffs’ warnings claims were preempted, excluded plaintiffs’ general causation experts, and granted summary judgment to all defendants on dual preemption and causation grounds. In re: Incretin-Based Therapies Prods. Liab. Litig., 524 F. Supp. 3d 1007 (S.D. Cal. 2021). For context, that was the second time the defendants won summary judgment; the Ninth Circuit had reversed an earlier preemption victory in an opinion that predated the Supreme Court’s decision in Albrecht. In re Incretin-Based Therapies Prods. Liab. Litig., 721 F. App’x. 580 (9th Cir. 2017). Now, however, the Ninth Circuit has affirmed summary judgment as to one defendant (Novo Nordisk A/S (“Novo”)). In re: Incretin-Based Therapies Prod. Liab. Litig., 2022 WL 898595 (9th Cir. Mar. 28, 2022).
Multidistrict litigation is often criticized for enabling plaintiffs to file meritless cases and then hide in large inventories, hoping to be swept up in a settlement (whether global or otherwise) before the case is meaningfully probed through discovery. Traditional tools such as plaintiff profile sheets and early screening orders represent a partial solution, as they can help identify cases with more obvious flaws such as those that are clearly time-barred or lack proof of product use. But some issues, such as critical gaps in causation, are beyond the reach of the limited case-specific discovery permitted for most cases in an MDL. Enter the Lone Pine order, a case management order by which a court requires all plaintiffs to produce evidence establishing specific elements of their claim.