Eric M. Friedman, Author at Faegre Drinker on Products

Eric M. Friedman

Eric Friedman guides clients through all stages of product liability litigation, particularly working with expert witnesses to present the science behind clients' products. By leaning on his pre-law history as a biochemist, he is able to identify key arguments for and against clients and craft winning strategies for both motion practice and trial.

View the full bio for Eric M. Friedman at the Faegre Drinker website.

Articles by Eric M. Friedman:

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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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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Indiana Court of Appeals Holds Product Misuse Unforeseeable in Light of Product Warnings, Reverses Denial of Summary Judgment

Key Takeaway: In Superior Oil Company, Inc. v. Labno-Fritchley, 207 N.E.3d 456 (Ind. Ct. App. 2023), the Indiana Court of Appeals reversed a trial court’s denial of summary judgment in a product liability case. The court held that summary judgment should have been granted because the defendant’s designated evidence related to the product’s warning label established the affirmative defenses of misuse and incurred risk as a matter of law. Notably, the opinion illustrates how failure to heed the warnings that accompany a product can amount to unforeseeable product misuse.

Background: Plaintiff’s decedent attempted to remove the top of an empty 55-gallon metal drum with a cutting torch when it exploded, resulting in his death. The top of the drum – at which the decedent had to have been looking as he cut – bore an 8” x 12” warning label that, among other things, warned of the dangers of an empty metal drum and advised “[d]o not flame cut, braze, or weld empty container.” Although not emphasized by the Labno-Fritchley court, a picture of the label in the court’s opinion suggests that this language comprised only a very small portion of the label and was not in boldfaced or underlined font.

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Court Finds Ship Has Sailed for Seaman to Disclose Expert’s Opinions, Resulting in Summary Judgment

Discovery deadlines exist for a reason. Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a timely, orderly fashion that avoids surprise. In the context of expert discovery, this means inter alia that witnesses who have been retained specifically to offer expert opinion testimony must author a written report (i.e., a Rule 26 report) setting out their opinions and the bases for those opinions. Fed. R. Civ. P. 26(a)(2)(B). Opinions that are inadequately disclosed may be excluded at trial. Fed. R. Civ. P. 37(c). In some cases, this can leave a litigant unable to make a prima facie case and survive summary judgment.

One recent example is Adkins v. Marathon Petroleum Company LP, — F. Supp. 3d. —, 2023 WL 3242432 (S.D. Ohio 2023). In Adkins, Plaintiff alleged that his exposure to hydrogen sulfide (H₂S) fumes while working as a tankerman on Defendant’s barge caused him permanent pulmonary injuries. He sued his employer, asserting three causes of action based on this theory: (1) a claim under the Jones Act, (2) Unseaworthiness, and (3) Maintenance and Cure. But each of these causes of action required Plaintiff to establish that his exposure to H₂S fumes caused his alleged injuries. Both parties agreed that H₂S fumes can cause pulmonary injuries at high enough concentrations, but there was a problem in Plaintiff’s case – both he and his coworkers routinely wore badges designed to alert the wearer if H₂S levels exceeded a certain threshold (which threshold was undisputedly below the OSHA regulatory limit and NIOSH short-term exposure limit), and there was no documentation that Plaintiff’s badge had ever alarmed. In short, it was not at all obvious that Plaintiff had been exposed to enough H₂S to cause his claimed injuries. Defendant moved for summary judgment, arguing Plaintiff was unable to establish general and specific causation.

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What Dose Makes the Poison? Where Expert Cannot Say, Eleventh Circuit Affirms Summary Judgment

A central tenet of toxicology is that “the dose makes the poison.” Every chemical is toxic if enough of it is consumed, and every chemical has some dose – even if miniscule – at which it poses no significant risk. A chemical must be given in sufficient amount – something exceeding the “threshold dose” – before it will cause effects. This has obvious implications for toxic tort litigation, where a plaintiff who alleges injury from exposure to a toxic chemical must prove at minimum that he or she was exposed to enough of the chemical to produce the alleged injury. This poses a problem for plaintiffs who have been exposed only to very small doses of the chemical at issue. What is a plaintiff to do when their exposure falls below the threshold dose? One approach that generally does not work is to reject the very concept of a threshold dose altogether.

In Pinares v. Raytheon Technologies Corporation, 2023 WL 2661521 (11th Cir. Mar. 28, 2023), Plaintiff alleged that she had developed kidney cancer after chemical compounds from the defendant’s facility made their way into the groundwater near her home. Plaintiffs relied on three experts to prove causation – a toxicologist to establish general causation and two physicians to establish specific causation. The district court excluded Plaintiffs’ toxicology expert, holding that the expert had not conducted a reliable dose-response assessment. The district court then also excluded each of Plaintiffs’ specific causation experts, noting that they had not performed an independent dose-response assessment of their own and therefore relied on the toxicology expert’s deficient opinion. Plaintiffs could not establish causation without expert opinion, and the district court therefore granted summary judgment.

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Where No Forum Contacts “Relate To” Claims at Issue, Ninth Circuit Affirms Dismissal for Lack of Specific Personal Jurisdiction

Specific personal jurisdiction can be a very straightforward concept. If a plaintiff claims to have been injured by a product that the defendant itself sold directly to plaintiff at a store within the forum state, disputes over specific personal jurisdiction would be rare. Other cases can be closer calls, particularly when a defendant has extensive contacts within a forum but none of them are causally related to the plaintiff’s claims. At what point does a defendant’s purposeful availment of a forum cease to be “related to” a plaintiff’s claims? The Ninth Circuit offered some helpful guidance on that issue in its decision in Yamashita v. LG Chem, Ltd., — F.4th —, 2023 WL 2374776 (9th Cir. Mar. 6, 2023).

Plaintiff in Yamashita was a Hawaii resident who brought a personal injury/products liability suit in Hawaii state court. The suit named two defendants. The first was a South Korean company that manufactured a battery that Plaintiff alleged had caused him injury. The second, which was a wholly owned subsidiary of the South Korean company, was a Delaware corporation with its principal place of business in Georgia. It did not manufacture the product at issue but distributed it within the United States. Both defendants denied ever selling the product directly to individual consumers. The defendants removed the case to the District Court for the District of Hawaii and moved to dismiss for lack of personal jurisdiction. The district court granted the motion, and Plaintiff appealed.

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