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:

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

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2023 – even a change to the Federal Rules of Evidence themselves might not be enough for a court to stop citing outdated but familiar precedents.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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Amended FRE 702 Arrives in MDL Practice: S.D.N.Y. Excludes Plaintiffs’ Experts in Acetaminophen MDL

The Committee Notes to the newly implemented amendments to Federal Rule of Evidence 702 make clear that the “[j]udicial gatekeeping” of expert evidence is “essential.” Federal courts in New York have played an important role in pioneering and developing this concept. Indeed, the idea of courts as gatekeepers in the expert context finds its roots in the Eastern District of New York, with the late Chief Judge Weinstein coining the term in a 1985 opinion in In re Agent Orange Product Liability Litigation. Three decades later, the Southern District of New York offered one of the most thorough illustrations of careful judicial gatekeeping in In re Mirena IUS Levonorgestrel-Related Prod. Liab. Litig. (No. II). Now, New York can also call itself home to the first MDL-wide decision to exclude experts under Rule 702’s new formulation.

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Something to Celebrate: A Brief Guide to the FRE 702 Amendments

Fun fact: There are 23 holidays that can be celebrated today, December 1^st. Some, like Rosa Parks Day and World AIDS Day, are solemn and serious. Others are silly and fun, like National Peppermint Bark Day and National Christmas Lights Day. And then there are those that are downright strange, like Bifocals at the Monitor Liberation Day. (No, we didn’t make that up.) But for those of us who practice in the federal courts, we can add one more celebration to this esteemed list.

Today, the long-anticipated amendments to Federal Rule of Evidence 702, governing admissibility of expert opinion evidence, finally take formal effect. The amendments were unanimously approved by the Advisory Committee over two and a half years ago. Courts have been citing the proposed amendments since shortly after they were first approved. On the surface, the amendments to the text of Rule 702 itself may appear relatively modest. Indeed, at least one court has observed that the new language “clearly echoes the existing law on the issue.” Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021). But there is more to these new amendments than initially meets the eye. In order to understand and effectively use the amendments, parties and litigators must understand and use the history and the Committee Note explaining the amendments.

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Experts Who Cannot Articulate a Standard Cannot Opine that a Defendant Failed to Meet the Standard

If you don’t know where a line is, you can’t say whether someone has crossed it. That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where the lines are drawn in their field. Thus, for example, a toxicology expert who cannot say how much chemical exposure is required to produce a toxic effect cannot opine that the plaintiff’s exposure was sufficient to cause that effect. Likewise, an expert who criticizes a product’s warnings but cannot articulate an adequate warning does not pass muster under Federal Rule of Evidence 702. See, e.g., Bourelle v. Crown Equip. Corp., 220 F.3d 532, 538-39 (7th Cir. 2000).

The Seventh Circuit recently gave yet another illustration of this principle at work. In Burns v. Sherwin-Williams Co., — F.4th —, 2023 WL 5210857 (7th Cir. 2023), a plaintiff truck driver was injured while making a delivery at defendant’s store using a “walkie” (i.e., an electric forklift that the operator walks behind) owned by defendant. Plaintiff was backing the walkie down a ramp and toward a dumpster with pallets laying on the ground nearby. Unfortunately, he underestimated the walkie’s stopping distance. He tried “plugging” – i.e., pushing the thumb switch in the opposite direction to slow and then reverse the walkie – and then engaged the emergency brake, but it was too late. He trapped his foot against the pallets, then fell over and broke his ankle.

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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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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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