Civil Procedure Archives - Faegre Drinker on Products

Category: Civil Procedure

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

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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In Case You Missed It – Summer 2023

Catch up on the latest developments of interest for product manufacturers. Here’s a quarterly compilation of the most popular blog posts on Faegre Drinker on Products.

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

By Eric M. Friedman

Burns v. Sherwin-Williams Co. is the latest in a line of cases that apply variations on a simple, common-sense theme — an expert who cannot articulate the applicable standard should not be allowed to opine that a defendant failed to meet the applicable standard. Such testimony is not a “shaky but admissible” opinion to be attacked on cross-examination; it is internally inconsistent, is inherently unreliable, and should be excluded under Rule 702.

Courts Are Citing the Rule 702 Amendments — And Litigants Should, Too

By Christin Jaye Eaton and Eric M. Friedman

Though the pending amendments to Federal Rule of Evidence 702 have not officially taken effect yet, courts already have begun to cite them, echoing the Advisory Committee’s sentiment that the amendments will not change the substance of the law as it was meant to be applied, but that many courts have not been applying it correctly. Litigants should follow suit, citing both the amendments and the Advisory Committee’s notes to alert courts that old precedent — particularly “weight, not admissibility” cases — may not be consistent with newly amended Rule 702.

Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, Not Content

By Eric M. Friedman and Ross W. Johnson

Rule 26(a)(2)(B) requires witnesses who are “retained or specially employed to provide expert testimony in the case” — i.e., “retained” experts — to prepare and sign a report that discloses “a complete statement of all opinions the witness will express and the basis and reasons for them.” In contrast, Rule 26(a)(2)(C) imposes less arduous disclosure requirements on non-retained experts and calls on the party, not the expert, to make those disclosures. As the Eleventh Circuit recently noted in Cedant v. United States, “an expert’s status as a retained witness depends on the original purpose of his retention.” As was the case before Cedant, litigants would be wise to support critical elements of their claims and defenses with testimony from a retained expert and not assume a court will allow a non-retained expert to supply what is needed.

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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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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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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Class Action Filings on the Rise in Europe, Especially in Product Liability Cases Ahead of Full Implementation of the EU’s Representative Actions Directive

Under the timeline imposed by the EU’s Directive of the European Parliament and of the Council on Representative Actions for the Protection of the Collective Interests of Consumers, the EU’s 27 member states were required to provide a collective litigation option to consumers by December 25, 2022, including by adopting or amending national law in jurisdictions where mechanisms for such litigation were not previously established. By June 25, 2023, member states are required to implement and begin applying these new mechanisms. But while that process is still ongoing, multiple EU member states have already taken legislative action to permit greater collective litigation mechanisms than previously available in their respective jurisdictions. Additionally, legal industry observers have already noted the increased presence of plaintiffs’ firms and litigation funders in the EU in response to the greater and increasing availability of representative and collective redress actions. See K. Henderson, Z. Okanyi, et al., European Class Action Report 2022, at 2, CMS (2022), available at https://cms.law/en/int/publication/cms-european-class-actions-report-2022.

In particular, one study noted that class action filings in Europe had increased more than 120% over the last five years (from 49 in 2018 to 110 in 2021), propelled by greater attention to potential mass actions by plaintiffs’ firms and increased availability of litigation funding. The data confirms what practitioners in this space already know: the plaintiffs’ bar in the EU is not waiting for the full implementation of the Representative Actions Directive. Of particular note, this rise is fueled, in significant part, by product liability, personal injury, and consumer mass actions.

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