Category: Expert Admissibility

Peer Review Can’t Save “Junk Science” from FRE 702 Judicial Gatekeeping – In re: Roundup Court Excludes Expert Whose Opinions Had Been Published in Peer-Reviewed Literature

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When tasked with assessing the admissibility of expert testimony under Federal Rule of Evidence 702, courts often cite the so-called Daubert factors as criteria that guide the inquiry.  Among those factors is “whether the [expert’s] theory or technique has been subjected to peer review and publication.”  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).  The Daubert Court observed that, although publication “is not a sine qua non of admissibility,” peer review “increases the likelihood that substantive flaws in methodology will be detected.”  But peer review is not coterminous with the Rule 702 inquiry that federal courts are called upon to make, especially with the rise of so-called predatory publishing and journals with relaxed (or absent) peer review processes.  As one court recently observed, “a court can’t wave junk science through the Daubert gate simply because it survived some prepublication peer-review process.”  In re: Roundup Products Liability Litigation, 2024 WL 3074376 (N.D. Cal. June 20, 2024).

In In re: Roundup, the plaintiff claimed to have developed non-Hodgkin’s lymphoma (NHL) as a result of using the defendant’s herbicide.  In support of that claim, he offered a single expert on the issue of whether glyphosate, the active ingredient in the herbicide, can cause NHL in humans.  The expert’s opinions were all contained in two peer-reviewed and published articles that the expert had co-authored.  But only one of the two—a 2019 meta-analysis of six epidemiological studies addressing the link between glyphosate and NHL, which had been published before the expert became involved in the litigation—grappled with the available epidemiological evidence.  The defendant attacked that paper on multiple grounds, and the court agreed that it constituted “junk science” with several flaws each independently justifying its exclusion.

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Northern District of Illinois Holds that Seventh Circuit Precedent is Incompatible with Rule 702 as Amended

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In explaining the December 2023 amendments to Federal Rule of Evidence 702, the Advisory Committee called out several ways in which “many courts” had “incorrectly” applied Rule 702 and failed to adequately discharge their duty as gatekeepers with regard to expert witness testimony.  The import of those comments is that existing precedent on Rule 702 may be “incorrect” and must be re-examined.

A case pending in the Northern District of Illinois serves as a fine illustration of how this re-examination should work in practice.  In West v. Home Depot U.S.A., Inc., 2024 WL 1834112 (N.D. Ill. Apr. 26, 2024), the plaintiff alleged that she was injured when portions of a store display fell on her.  She offered a trio of experts to opine that her claimed injuries had been caused by the incident, but none of them “were aware of, let alone reviewed, [her] highly salient medical history prior to issuing their causation opinions.”  Rather, they were treating physicians who based their opinions solely on their post-incident treatment of the plaintiff.

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A KIND Result After Insufficient and Biased Consumer Perception Evidence

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Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable consumer would expect may lead to its exclusion.  The Second Circuit, in Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir. May 2, 2024), provides an illustrative example of this, affirming the Southern District of New York’s exclusion of plaintiffs’ experts and grant of summary judgment to a snack foods manufacturer in a false advertising class action.

In Bustamante, Plaintiffs alleged they were deceived by the packaging of KIND snack bars as “All Natural” despite the inclusion of certain “non-natural” ingredients, and their lawsuit asserted warranty, unjust enrichment, negligent misrepresentation, and state consumer protection statute claims.  Although there were differing elements to Plaintiffs’ various claims, they were narrowed for the purposes of summary judgment to deception, materiality, and injury, with only the element of deception at issue on appeal.

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

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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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Missing the Mark: Summary Judgment Granted Where Plaintiff’s Experts Opine on Defect but Fail to Support Causation

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Product liability claims require proof of causation.  To be sure, they also require proof of some defect in the product and/or its accompanying warnings and product literature.  But defect and causation are separate elements of a prima facie claim, and both must be established – usually, through expert testimony.  As we have discussed on multiple occasions (for example, here and here), a plaintiff’s failure to offer admissible expert testimony on each element can lead to summary judgment.  A recent decision from the Eastern District of Pennsylvania offers yet another illustration.

In Slatowski v. Sig Sauer, Inc., 2024 WL 1078198 (E.D. Pa. Mar. 12, 2024), the plaintiff was an Immigration and Customs Enforcement (“ICE”) officer who was injured when his pistol fired unintentionally during a marksmanship training exercise.  He sued the gun manufacturer, alleging that a design defect in the gun’s integral safety feature – specifically, the lack of a tabbed trigger – caused the firearm to discharge unintentionally. The plaintiff proffered two experts in support of the claim:  a gunsmith and a certified firearms instructor and range safety officer with a Ph.D. in ergonomics.  The defendant moved to exclude both experts’ opinions and also moved for summary judgment, arguing that the plaintiff had no admissible expert testimony to establish causation.

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Old Habits Die Hard: First Circuit Cites Newly Amended Language of FRE 702 But Follows Abrogated Precedent Instead

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The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change.  As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc., 91 F.4th 59 (1st Cir. 2024) – the first reported appellate decision to cite the language of the newly-amended Federal Rule of Evidence 702 since it took effect in December 2023 – even a change to the Federal Rules of Evidence themselves might not be enough for a court to stop citing outdated but familiar precedents.

Some background is in order.  In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ushered in a new paradigm for evaluating the admissibility of expert opinion evidence.  Courts seized on Daubert’s comment that a court’s “focus, of course, must be solely on [an expert’s] principles and methodology, not on the conclusions that they generate.”  But just four years after Daubert was decided, the Supreme Court rejected an argument that a lower court had erred by evaluating an expert’s conclusions.  Because “conclusions and methodology are not entirely distinct from one another,” the lower court had not abused its discretion in evaluating whether the expert’s opinion was warranted by the data on which it was based.  General Electric Co. v. Joiner, 522 U.S. 136 (1997).

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