Category: Evidence

Nothing Shocking Here – Eleventh Circuit Affirms Defense Win in Electroconvulsive Therapy Case

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When a case involves electroconvulsive therapy (ECT), one might think it originated out of the Twilight Zone. Despite the misrepresentation of such therapies in popular media, modern ECT serves as a valuable option for patients with certain severe mental health conditions who have tried other therapies without success. Although ECT is far safer today than it was when the stigma attached to it was formed, it still carries risks such as confusion, memory loss, and some physical side effects. One need not enter another dimension to envision why a plaintiff might claim damages arising from those risks. Much like Rod Serling’s anthology, the Eleventh Circuit recently closed the door on one such episode.

In Thelen v. Somatics, LLC, — F.4th —, 2025 WL 2749888 (11th Cir.), the plaintiff suffered from depression and mental health issues so severe that he attempted to take his life numerous times in numerous ways. During a two-year span, he received 95 ECT treatments to address his conditions. He was later diagnosed with a neurocognitive disorder that caused severe memory loss.

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No Defect, No Negligence: Lessons from Rudzinskas v. Retractable Technologies, Inc.

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A recent summary judgment decision out of the Southern District of Georgia illustrates the critical role of defect evidence (or lack thereof) in negligence claims involving medical devices. As the plaintiff in Rudzinskas v. Retractable Technologies, Inc., No. 4:24-cv-009, 2025 WL 22772490 (S.D. Ga. Sep. 29, 2025) recently learned, allegations that a medical device malfunctioned are not sufficient evidence to survive summary judgment on negligent manufacturing and failure to warn claims.

In Rudzinskas, the plaintiff alleged that on two different occasions, when her husband injected her with vitamin B12 at home, the needles shot off their syringes and became dislodged inside her body (first in her buttock, and a few months later, in her arm). Plaintiff asserted that the syringes were marketed as containing needles that automatically retract from a patient into the barrel of the syringe when the plunger handle is fully depressed. Plaintiff sought medical attention following the alleged incidents. Plaintiff’s physicians confirmed the presence of the first needle and attempted to surgically extract it, but the surgery was unsuccessful. After the second incident two months later, the same surgeon attempted to confirm the presence of the second needle, but did not see it and did not perform surgery. Arising from these allegations, the plaintiff asserted two claims against the defendant for (1) negligent manufacture and (2) negligent failure to warn.

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ChatGPT As Your New Testifying Expert Under Proposed Federal Rule of Evidence 707? Maybe Not.

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Artificial intelligence is taking the world by storm, and the legal community is no exception. Tools that can reduce the time and cost of litigation have long been in high demand by both clients and counsel. But the tool must be fit for its purpose, and tools that generate evidence or other outputs that will be submitted to the court must pass judicial scrutiny. As video cameras became smaller and less expensive, there were fights over the admissibility of deposition videos that attorneys had recorded themselves to avoid videographer fees. Practitioners who focus on e-discovery can tell stories of hotly litigated technology-assisted review protocols. One of the newer fights concerns the admissibility of machine-generated “expert” opinions.

The U.S. Courts Advisory Committee on the Federal Rules of Evidence (the “Committee”) proposes to address the issue by adding a new rule, Federal Rule of Evidence 707. The prospect of adding a new rule to regulate the admissibility of machine-generated evidence was first raised at the Committee’s November 2024 meeting. Since then, the Committee has proposed the following language for Rule 707:

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Tort Reform is Top of Mind in 2025: Legislative Updates in Georgia, South Carolina, Louisiana and Arkansas

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The American Tort Reform Foundation’s list of “Judicial Hellholes” often are all-too-familiar jurisdictions for product liability defendants. Some states who are home to these infamous venues, often known for producing nuclear verdicts, have recently rallied for successful tort reform. In the most recent state legislative sessions, Georgia, South Carolina, Louisiana and Arkansas implemented tort reform bills which may serve to neutralize the nuclear verdicts coming out of their courts.

Georgia

Following several nuclear verdicts, including a $1.7 billion verdict in Hill v. Ford Motor Co. and a $2.5 billion verdict in Brogdon v. Ford Motor Co., Georgia has recognized the impact that excessive tort costs have on Georgia’s economy and its ability to attract businesses. Georgia Governor Brian Kemp unveiled a tort reform package in early 2025 that sought to address these issues.

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Defective Logic: Why Recall Evidence Falls Short in Court

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In product liability litigation, plaintiffs often treat a product recall as though it is conclusive proof that the product is defective or that its warnings are inadequate. Some plaintiffs even cite clearly inapplicable recalls — for example, lot-specific recalls spurred by a manufacturing or labeling issue that did not impact the unit that the plaintiff received — in an effort to bolster their case before a court or in settlement discussions. Federal Rule of Evidence 407’s prohibition on the use of recall evidence to prove those points seems to do little to quell the enthusiasm. Of course, Rule 407 is grounded in part on “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s note. But Rule 407 is not the only grounds on which recall evidence can (and should) be excluded.

For example, in Pecan Trust v. Nexus RVs, LLC, 2025 WL 1503940 (N.D. Ind. May 27, 2025), the plaintiffs sued the manufacturers of an RV and certain component parts alleging, among other things, that a defect in the brake pressure switch represented a fire risk. In support of that claim, they pointed solely to a safety recall for the part due to a possible fire risk and an expert witness who, based on the recall alone, concluded that the issue might pose a fire risk. The parts manufacturer moved for summary judgment, and the court granted the motion as to the breach of warranty claim after concluding that the plaintiffs had not proffered sufficient evidence of a defect. As the court noted: “That a recall has occurred may be evidence of certain things—namely as a subsequent remedial measure—but it cannot show a product defect. In reality, products subject to a recall might have a defect or might not, as a recall implements a safety campaign to ensure that none do or will manifest one.” (internal citations omitted). And, as the court noted in the specific context of the warranty claim, the fact that the plaintiffs had never presented the RV for work under the recall posed a second, equally problematic obstacle to their claim.

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Fifth Circuit Clouds Threshold Dose Analysis in Ruffin v. BP

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Plaintiffs in toxic tort cases must prove both general and specific causation, generally through the testimony of experts. Experts must establish that a specific chemical exposure can (and did) cause the specific injury at issue. In order to make that showing, the plaintiff’s exposure must at least have exceeded the minimum harmful level of the chemical — the “threshold dose.” As the Eleventh Circuit made clear last year in its handling of In re Deepwater Horizon BELO litigation (which we discussed here), threshold dose is a concept that straddles general and specific causation. A more recent BELO case, Ruffin v. BP Exploration & Production, Inc., — F.4th —, 2025 WL 1367185 (5th Cir. May 12, 2025), shows how isolating an expert’s general causation opinion from its implications on specific causation can cloud the analysis.

In Ruffin, the plaintiff worked for five months as a clean-up worker following the Deepwater Horizon oil spill. He was diagnosed with prostate cancer five years later and sued the defendant, claiming he was exposed to chemicals that caused his cancer. He described two instances of exposure: one when oil splashed onto his face while travelling by boat and another when he fell in the water. The plaintiff had a known genetic risk for prostate cancer, but his expert claimed the oil exposures were a “second and necessary hit to initiate his prostate cancer.” The defendant moved to exclude the plaintiff’s causation expert, a genetic and molecular epidemiologist, under Federal Rule of Evidence 702. The district court had excluded both the expert’s general and specific causation opinions as unreliable, largely for failure to specify a threshold dose, and then granted summary judgment for want of admissible expert evidence.

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