Category: Expert Admissibility

In Case You Missed It: Faegre Drinker on Products — Summer 2025

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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.

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

By Elizabeth A. Wurm, Jenna Seiler & Elizabeth C. Christen

Some states that are home to “Judicial Hellhole” venues, often known for producing nuclear verdicts, have 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.

 

Message Received — Delaware Follows Federal Rule of Evidence 702

By Eric M. Friedman & Emma DeLaney Strenski

The Delaware Superior Court took the mass tort world by surprise with its refusal to exclude the plaintiffs’ experts’ causation opinions in the Zantac litigation. But the Delaware Supreme Court granted the defendants’ request for interlocutory appeal and has reversed the Superior Court’s decision and remanded for further proceedings.

 

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

By Nikolas G. Spilson & Eric M. Friedman

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. One of the newer fights concerns the admissibility of machine-generated “expert” opinions.

Close, But Not Quite: Eastern District of North Carolina Excludes Experts Whose General Expertise Does Not Enable Specific Opinions Offered

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Even “[a] supremely qualified expert cannot waltz into the courtroom and render opinions” unless those opinions pass muster under Federal Rule of Evidence 702. Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999). As a recent case from the Eastern District of North Carolina illustrates, this principle is at play not only when critiquing an expert’s methodology, but also the expert’s expertise.

In Williams v. Sig Sauer, Inc., — F. Supp. 3d —, 2025 WL 2643400 (E.D.N.C. Sept. 8, 2025), the plaintiff was an “enforcer” for his motorcycle club who “protect[ed]” and “monitor[ed]” the club members. He alleged that his pistol discharged and injured him while he was adjusting his position on his motorcycle. In support of his product liability claims against the manufacturer of the pistol, he proffered two expert witnesses: a gunsmith and a mechanical engineer. The defendant moved to exclude both experts and filed a motion for summary judgment.

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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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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:

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

Clearing the Weeds: The Ninth Circuit Confirms that There is Not (And Never Has Been) a Presumption of Admissibility in Its Case Law Addressing Rule 702

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The judge overseeing the In re Roundup Products Liability Litigation MDL once remarked that “When you [consider] Ninth Circuit law, you come away with a pretty strong feeling that the Ninth Circuit is more tolerant of shaky expert opinions than other circuits.”  But that was before the 2023 amendments to Federal Rule of Evidence 702, and appellate courts around the country have gradually been addressing how the amendments impact pre-amendment case law. The Ninth Circuit recently joined the ranks in a way, affirming that same judge’s exclusion of an expert’s causation opinion while harmonizing Ninth Circuit case law with the purposes of the 2023 amendments. The opinion is Engilis v. Monsanto Company, — F.4th —, 2025 WL 2315898 (9th Cir. 2025), and the headlines may come as a surprise to some.

The case-specific underpinnings of the holding are relatively straightforward. The plaintiff alleged that he developed cancer due to exposure to a product manufactured by the defendant. His expert, however, had failed to consider the plaintiff’s obesity as a potential cause of the cancer when conducting the differential etiology that formed his specific causation opinion. He tried to get around this omission by claiming that the plaintiff was not obese, and the plaintiff argued that this was a disputed fact because his plaintiff’s fact sheet was marked “negative” for obesity.  However, the expert failed to cite any medical records indicating that the plaintiff was not obese and did not engage with records that showed he was obese. Translated to Rule 702 terms, any opinion that the plaintiff was not obese was not “based on sufficient facts or data.”  So, the expert argued that obesity is not a risk factor for the kind of cancer at issue and thus did not need to be considered. But his report cited no support for that proposition, which he manufactured at the hearing on the defendant’s Rule 702 motion. The Ninth Circuit agreed with the district court that these issues rendered the expert’s specific causation opinion inadmissible.

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Defining the Limits of Lay Testimony in Complicated Products Cases

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“So when is a question too complicated for the jury?” That is the question the Third Circuit sought to answer recently in Slatowski v. Sig Sauer, Inc., ___ F. 4th ___, 2025 WL 2178533 (3d Cir. 2025), reversing a district court’s grant of summary judgment despite affirming its exclusion of the plaintiff’s causation experts. Ironically, the Third Circuit’s analysis of when an expert opinion is required is itself so nuanced that it may require expert interpretation. Upon close inspection, the Slatowski panel’s holding is not nearly as broad as the headings might suggest.

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