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).
Eric M. Friedman
Articles by Eric M. Friedman:
Eastern District of Pennsylvania Issues Lone Pine Order in Zostavax MDL
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.
Continue reading “Eastern District of Pennsylvania Issues Lone Pine Order in Zostavax MDL”
Plaintiff Shoots an Airball Against Nike in Design Defect Case
In the wake of March Madness, it is only appropriate to call attention to an opinion laced with pithy basketball puns. In Nachimovsky v. Nike, Inc. et al., 2022 WL 943421 (E.D.N.Y. Mar. 29, 2022), Plaintiff injured his knee during a recreational basketball game. Blaming this injury on his new sneakers, he called foul and brought claims for negligence and products liability—specifically design defect—against Nike, which designed and manufactured the sneakers, and Shoe Fitters, which sold the sneakers.
To support his claims, Plaintiff proffered two one-page letters from a podiatrist who concluded that the sneakers were defective and a “major contributing factor” to Plaintiff’s injury. Nike (and Shoe Fitters, by incorporation) responded with a full-court press, seeking to exclude the podiatrist’s opinions under Federal Rule of Evidence 702, arguing that they were not reliable and he was not qualified to offer them.
Continue reading “Plaintiff Shoots an Airball Against Nike in Design Defect Case”
Eleventh Circuit Affirms Exclusion of Expert Opinion Based on Unjustified Analogy
In the space of a single paragraph, General Electric Co. v. Joiner softened Daubert’s comment that a court’s assessment of expert opinion admissibility should focus “solely on principles and methodology, not on the conclusions that they generate” and gave us two of the most heavily quoted snippets in this area of law: opinions are inadmissible when supported “only by the ipse dixit of the expert,” and courts may exclude opinions for which “there is simply too great an analytical gap between the data and the opinion proffered.” 522 U.S. 136 (1997). Joiner’s call to assess an expert’s factual basis and reasoning was incorporated into the text of Rule 702 itself via the 2000 amendments. Regrettably though, some courts have continued to ignore gaps in an expert’s reasoning, quoting Daubert and other pre-Joiner precedent for the proposition that a court should leave disputes over such fact-based issues for a jury to decide — the very argument that Joiner rejected.
Continue reading “Eleventh Circuit Affirms Exclusion of Expert Opinion Based on Unjustified Analogy”
Northern District of Illinois Excludes Engineering Expert’s Testimony and Grants Partial Summary Judgment, Fulfilling its Responsibility as Gatekeeper
For over two decades, dating back to Daubert and the ensuing amendments to Rule 702, federal district courts have been charged to act “as gatekeepers to exclude unreliable expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. However, some courts have not embraced that role, letting jurors weigh questions about an expert’s qualifications or methodology as though they go to credibility rather than admissibility. Indeed, the Advisory Committee on Evidence Rules proposed an amendment to Rule 702 to address the “pervasive problem” of courts holding that issues of admissibility are questions “of weight for the jury.” See, Sardis v. Overhead Door Corp., 10 F.4th 268, 282-84 (4th Cir. 2021). (quoting Advisory Comm. on Evidence Rules, Agenda for Committee Meeting (Apr. 30, 2021)).
A recent decision out of the Northern District of Illinois, however, provides an excellent example of a court discharging its duty to preclude inadmissible expert opinions. The Plaintiff in Pessman v. Trek Bicycle Corporation, 2021 WL 5769530 (N.D. Ill. Dec. 6, 2021) was injured in a bicycle accident. Plaintiff’s engineering expert opined that the cause of the accident was a crack in the carbon fiber frame of Plaintiff’s Trek bicycle attributable to a design defect. The engineer claimed that carbon fiber frames are prone to cracking and that the crack was mistaken for simple paint chipping by a dealer who had inspected the bicycle several days before the accident, allegedly due to Trek’s failure to train the dealer properly.
Seventh Circuit Holds that State Court Limit on Medical Expert Testimony Does Not Apply to FTCA Claim in Federal Court
Although product liability actions are governed by state tort law, they frequently find their way into federal court on diversity jurisdiction. In such actions, federal law provides the procedural rules and state law provides the rule of decision. Although the distinction between procedure and substance is often clear, it can sometimes be nuanced and unintuitive; for example, statutes of limitations are typically viewed as procedural, whereas statutes of repose are viewed as substantive. In Love v. United States, — F.4th — (7th Cir. 2021), 2021 WL 5119342, the Seventh Circuit Court of Appeals provides another such illustration of this nuanced distinction and further guidance on the subject in the context of the admissibility of expert opinions.
The Plaintiff in Love brought suit under the Federal Tort Claims Act (FTCA), alleging that a nurse employed by the Veterans Administration negligently failed to order additional tests after receiving the results of a urinalysis. Plaintiff alleged that the lack of testing allowed an infection to go undiagnosed and untreated, leading to a heart attack and extended hospitalization.