Evidence Archives - Faegre Drinker on Products

Category: Evidence

Expert’s Results-Driven Methodology Leads to Exclusion and Summary Judgment in Paraquat MDL

An expert witness is not supposed to pick a desired result and then reverse engineer inputs and methods that reach that result. As the Ninth Circuit observed 30 years ago, “[c]oming to a firm conclusion first and then doing research to support it is the antithesis of [the scientific] method.” Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 502-03 (9th Cir. 1994). A recent opinion from the Southern District of Illinois offers a fine example of an expert with a results-driven approach and a court that called him out on it.

In re Paraquat Products Liability Litigation, 2024 WL 1659687 (S.D. Ill. Apr. 17, 2024), arises from a multidistrict litigation (“MDL”) in which the plaintiffs claim to have developed Parkinson’s disease as a result of exposure to an herbicide, paraquat. Four plaintiffs whose cases had been chosen for the MDL’s first trials offered a statistician (the parties disputed whether he also qualified as an epidemiologist) as their sole expert to establish general causation. He had a difficult task, as no peer-reviewed literature established a link between paraquat exposure and Parkinson’s disease. Indeed, when the court asked the plaintiffs to identify such literature, the plaintiffs could cite only a single opinion article. That article had been shared with another of the plaintiffs’ experts before it was published, leading the court to conclude in deciding a prior discovery dispute that there was reason to investigate “whether counsel for the MDL plaintiffs, their experts, or other third parties may have influenced the contents of the article for the benefit of one side in the MDL.” 2023 WL 8372819 (S.D. Ill. Dec. 4, 2023).

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Pennsylvania Stays in a Minority of Two States in Prohibiting Evidence of Compliance With Government and Industry Standards in Products Liability Design Defect Cases

Just before Christmas, the Pennsylvania Supreme Court delivered a lump of coal to products liability defendants: Sullivan v. Werner Co., 2023 WL 8859656 (Pa. Dec. 22, 2023), affirming a lower court ruling that barred evidence of a product manufacturer’s compliance with government and industry standards in a strict liability design defect case. The lower courts held that such evidence goes to due care and is relevant only to negligence, not strict liability. The affirmance appears to support the exclusion of such evidence in design defect cases based on a risk-utility theory, but leaves uncertainty for the future because only three justices joined the principal opinion; a fourth justice concurred with the result but concluded the record was inadequate to resolve the legal issue, while two others dissented.

Plaintiff sued the maker of a mobile scaffold which collapsed. Defendant served an expert report that relied in part on government (OSHA) and industry (ANSI) standards. Plaintiff filed a motion in limine to exclude evidence of compliance with those standards, relying mainly on Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987), which excluded such evidence in strict liability cases. But Defendant argued the Supreme Court’s later ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), undermined Lewis by overruling Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), a decision that had taken an extremely narrow view of the relevant facts in strict liability claims under section 402A of the Second Restatement of Torts. Tincher held that section 402A remained Pennsylvania law but “overruled Azzarello’s narrow construction . . . that prevented the jury from considering negligence-related rhetoric and concepts . . . .” Nevertheless, the trial court in Sullivan granted the motion in limine and an appellate court affirmed. Sullivan v. Werner Co., 253 A.3d 730 (Pa. Super. 2021).

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EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

Last week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the elected European Parliament and the European Council (comprised of government representatives of the 28 member states) must agree on final language and separately pass the draft legislation through their respective bodies. After extensive legislative efforts and negotiations, the European Council (currently led by the Government of Spain) and the European Parliament issued press releases announcing that they have reached a political agreement regarding the proposed updates to the directive.

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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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Dismissal of a Broken Chair Claim Shows That Expert Testimony May Be Essential Even for a “Simple” Product

In Mehner v. Furniture Design Studios, Inc., 2023 WL 2351688 (D. Neb. Mar. 3, 2023), the court granted summary judgment on product defect claims by a plaintiff allegedly injured by the collapse of a restaurant chair eight years after the manufacturer delivered it. This well-reasoned decision reminds us that even for fairly simple products, expert proof may be required to establish a defect – and failure to develop the factual predicate in discovery may leave the plaintiff without an opinion (and without a case). It also highlights important limitations in the “malfunction theory” that sometimes allows a plaintiff to proceed without expert proof or identification of a specific defect.

Plaintiff was eating at a restaurant in Omaha when his chair allegedly collapsed. He sued Furniture Design Studios (FDS), which designed, manufactured and sold the chair, asserting strict liability and negligence design defect claims.

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Supreme Court to Resolve Attorney-Client Privilege Split

For the first time in 25 years, the U.S. Supreme Court is considering the scope of the attorney-client privilege in the case In re Grand Jury, No. 21-1397. The Court heard oral arguments earlier this week about when the attorney-client privilege protects communications involving both legal and nonlegal advice (dual-purpose communications).

In re Grand Jury

A grand jury subpoenaed documents from the petitioner, a tax law firm, related to a criminal investigation into the law firm’s client. In re Grand Jury, 23 F.4th 1088, 1090 (9th Cir. 2021). The law firm withheld documents that had dual-purpose communications based on the attorney-client privilege. After the government moved to compel, the district court used the “primary purpose test” to determine whether the dual-purpose communications were privileged. The court used the test to determine “whether the primary purpose of the communication [was] to give or receive legal advice, as opposed to business or tax advice.” Id. at 1091 (citation omitted). In the end, the district court ordered the law firm to produce documents to the government after redacting tax-related legal advice. When the law firm refused, the court held it in contempt, and the Ninth Circuit affirmed the contempt order.

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