Category: Daubert

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

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Fun fact:  There are 23 holidays that can be celebrated today, December 1st.  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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In Case You Missed It – Summer 2023

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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.

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

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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

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

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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

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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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