Category: Daubert

Pathologist Stopped Short of Offering Could-Have, Should-Have Opinions

In personal injury and wrongful death cases, the plaintiff bears the burden of proving medical causation, which almost universally requires testimony from a competent expert.  Some plaintiffs offer testimony from forensic pathologists—also known as medical examiners, or physicians specializing in postmortem cause-of-death determinations—to prove causation.  These forensic pathologists (or the parties proffering their testimony) may push evidentiary boundaries with respect to opinions corollary to their cause of death determinations. While some courts have allowed juries to hear these questionable corollary opinions, relying on cross examination to level the playing field, others have excluded such testimony on the basis of insufficient qualifications or lack of reliable methodology.  Recently, the Southern District of Georgia excluded a forensic pathologist’s opinions on both grounds in a wrongful death action. Although not a product liability case, the court’s well-reasoned holding is sure to affect product cases going forward.

In Griffin v. Coffee County et al., 2022 WL 2045650 (S.D. Ga. June 7, 2022), a man in custody at a county jail in Georgia died from a methamphetamine overdose. His estate brought claims for deprivation of rights and medical malpractice against the jail, the hospital, and various individuals associated with those entities. In support of its claims, the estate proffered testimony from a forensic pathologist who offered opinions about medical treatment.

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Exclusion of Damages Expert at Class Certification Stage Results in Partial Denial of Certification Motion

Just a decade ago, it was still an open question whether parties could challenge the admissibility of expert testimony in class certification proceedings.  The United States Supreme Court recognized the issue in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and suggested that experts should be scrutinized as usual, noting that “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings.  We doubt that this is so . . .”  Since then, multiple circuits have taken that hint and held that a court must conduct a full Rule 702 analysis before deciding whether to certify a class.  The Fifth Circuit, in Prantil v. Arkema Incorporated, 986 F.3d 570 (5th Cir. 2021), became the fourth federal court of appeal to adopt this rule expressly.  As the district court’s recent decision on remand in Prantil demonstrates, a full Rule 702 analysis can make the difference between certifying or rejecting a class.

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It’s not what happened, but why: First Circuit rejects conclusory, unsupported expert opinions

It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible connection to the issue at hand. Certainly, Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert’s report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” And, Federal Rule of Evidence 702 requires that an expert not only base an opinion on sufficient facts or data but also reliably apply his or her methodology to those facts or data. Yet all too often, courts decline to hold an expert to task and instead find that these deficiencies go to the weight, but not the admissibility, of an expert’s opinion. But, as recently observed by the First Circuit, an expert must do more than merely cite the existence of an injury if a res ipsa loquitur argument is not available. And regardless, an expert’s failure to link the literature cited to the opinions offered is not a matter of insufficiency, but rather of unreliability.

In López-Ramírez v. Toledo-González, — F.4th —, 2022 WL 1261299 (1st Cir. 2022), Plaintiff experienced hearing loss, facial paralysis and loss of balance following a neurosurgical procedure performed by the defendant neurosurgeon. Plaintiff sued the physician and the hospital, alleging that the defendant neurosurgeon’s failure to properly evaluate, treat and monitor her condition during the surgery amounted to medical malpractice. In support of that claim, Plaintiff disclosed a neurology expert who opined that the defendant neurosurgeon deviated from the standard of care and included with his report articles from the medical literature that he felt “may be helpful” in understanding his opinions.

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Third Circuit Confirms That Alleged Defect in “Simple” Component of More Complex System Must Be Proven by Expert Testimony When Facts Surrounding Defect Claim Are Beyond Common Knowledge

A plaintiff who alleges that a product is defective usually has to offer expert testimony in support of that allegation.  This should come as no surprise for complex products – if it took a team of scientists and engineers to bring the product to market, then a lay jury should not be asked to evaluate an alleged defect in that product without the aid of expert testimony.  But what if a plaintiff alleges a defect in the design of a relatively simple, more familiar component of a complex product?  The Third Circuit recently addressed that question in an opinion that, although nonprecedential and in some respects peculiar to New Jersey law, illustrates how a court should approach the issue.

In Kuhar v. Petzl Co., 2022 WL 1101580 (3d Cir. Apr. 13, 2022), Plaintiff fell and injured himself while using a safety harness that he had purchased as part of a kit seven years earlier.  He alleged that the fall occurred because a bolt attached to the carabiner of the safety harness had snapped due to a design and/or “indeterminate” or manufacturing defect.  In support of his claims, Plaintiff proffered a metallurgical and materials sciences expert who identified two alleged design defects – a “sharp profile change” and “sharp threads on the bolt” – and machining grooves that the expert deemed a manufacturing defect, some combination of which he claimed had caused the accident.  But some of the expert’s defect and causation opinions were “net opinions” – New Jersey parlance for “ipse dixit” opinions – and were excluded for lack of supporting data.  Other opinions were excluded because the expert failed to define his terms or explain his reasoning.  The Third Circuit agreed with the district court that the expert’s opinions lacked both reliability and fit, and affirmed its exclusion of all of the expert’s opinions.

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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.

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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.

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