Although product liability actions are governed by state tort law, they frequently find their way into federal court on diversity jurisdiction. In such actions, federal law provides the procedural rules and state law provides the rule of decision. Although the distinction between procedure and substance is often clear, it can sometimes be nuanced and unintuitive; for example, statutes of limitations are typically viewed as procedural, whereas statutes of repose are viewed as substantive. In Love v. United States, — F.4th — (7th Cir. 2021), 2021 WL 5119342, the Seventh Circuit Court of Appeals provides another such illustration of this nuanced distinction and further guidance on the subject in the context of the admissibility of expert opinions.
The Plaintiff in Love brought suit under the Federal Tort Claims Act (FTCA), alleging that a nurse employed by the Veterans Administration negligently failed to order additional tests after receiving the results of a urinalysis. Plaintiff alleged that the lack of testing allowed an infection to go undiagnosed and untreated, leading to a heart attack and extended hospitalization.
A series of recent rulings out of the Southern District of Texas in an inferior vena cava (IVC) filter case reflect how well-planned discovery can lead to a successful multipronged summary judgment motion and can effectively prune a plaintiff’s ambitious product defect claims. Conn v. C.R. Bard, Inc., No. 4:14-CV-298.
In 2006, plaintiff’s physicians discovered a blood clot in his inferior vena cava. An IVC filter was inserted to prevent the blood clot from causing potentially fatal further injury. Because of plaintiff’s young age, the physician chose a removable filter. Plaintiff reported abdominal pain just four days after the IVC filter was placed. The blood clot was found to have moved and extended through and above the recently placed filter, and the physicians initiated anticoagulant therapy.
There has been much discussion recently about how Rule 702 is in need of a tune-up to better guide district courts’ gatekeeping. More about that soon.
But a case now pending before the Supreme Court, Monsanto Company v. Hardeman, No. 21-241, demonstrates that it’s not always the fault of the district courts. (Disclaimer: This firm (and this author) filed an amicus brief supporting certiorari.) Sometimes it’s about a lack of stewardship at the circuit level. Absent direct and unequivocal guidance from the Supreme Court, appellate courts call the tune, and the district courts are required to follow it. And in the interstices, district judges read the tea leaves and try to follow the circuit court’s leads and signals. No one likes to get reversed. Even if the district judges think the circuit has gotten it wrong, they honor the hierarchy and follow the commands of stare decisis, human nature and common sense.
The Eleventh Circuit recently reinstated a case alleging a surgical tool caused internal burns during a hysterectomy surgery, holding that the district court erred in disqualifying an expert on the basis that he had never before used the tool. The decision is a reminder of the importance of asserting and maintaining precise and strategic Daubert challenges.
In Moore v. Intuitive Surgical, Inc., No. 19-10869, the plaintiff underwent a laparoscopic hysterectomy in which her surgeon used a robotic miniature electrified scissor tool manufactured by the defendant. Following surgery, the plaintiff experienced, among other things, abdominal pain and eventually learned she had sustained internal burns to her left ureter during the surgical procedure. The tool was recalled by the manufacturer a few months after the plaintiff’s procedure, and the plaintiff filed suit.
The nature of advocacy makes it hard sometimes for lawyers to focus solely on the outcome and the bottom line result. How a court gets there may not matter much to the prevailing party in the dispute as they celebrate the win, but it may have an impact on later cases. A recent example is the opinion in Burton et al. v. E.I. DuPont de Nemours and Co., Inc., 2021 WL 1422814 (7th Cir. Apr. 15, 2021). The court found the winner’s circle, but it dented the car a bit along the way.
[Disclosure/disclaimer: The author filed an amicus brief in support of defendants in the case.]
Federal Rule of Civil Procedure 26(a)(2) requires retained expert witnesses to provide an expert report which gives “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). If a party fails to disclose information required under Rule 26(a)(2), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). As a plaintiff in the Western District of Washington recently learned, failure to adhere to Rule 26 can be fatal to a case.