Category: Expert Admissibility

Experts Who Cannot Articulate a Standard Cannot Opine that a Defendant Failed to Meet the Standard

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If you don’t know where a line is, you can’t say whether someone has crossed it.  That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where the lines are drawn in their field.  Thus, for example, a toxicology expert who cannot say how much chemical exposure is required to produce a toxic effect cannot opine that the plaintiff’s exposure was sufficient to cause that effect.  Likewise, an expert who criticizes a product’s warnings but cannot articulate an adequate warning does not pass muster under Federal Rule of Evidence 702.  See, e.g., Bourelle v. Crown Equip. Corp., 220 F.3d 532, 538-39 (7th Cir. 2000).

The Seventh Circuit recently gave yet another illustration of this principle at work.  In Burns v. Sherwin-Williams Co., — F.4th —, 2023 WL 5210857 (7th Cir. 2023), a plaintiff truck driver was injured while making a delivery at defendant’s store using a “walkie” (i.e., an electric forklift that the operator walks behind) owned by defendant.  Plaintiff was backing the walkie down a ramp and toward a dumpster with pallets laying on the ground nearby.  Unfortunately, he underestimated the walkie’s stopping distance.  He tried “plugging” – i.e., pushing the thumb switch in the opposite direction to slow and then reverse the walkie – and then engaged the emergency brake, but it was too late.  He trapped his foot against the pallets, then fell over and broke his ankle.

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Courts Are Citing the Rule 702 Amendments – And Litigants Should, Too

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Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory Committee on Evidence Rules, district courts will be asked to conduct more consistently rigorous gatekeeping for expert opinions offered in their courtrooms, and will be supported when they do.  Litigants can help usher in this change by citing the amendments themselves, following the pattern of courts that have been doing so.

The Advisory Committee unanimously approved the pending amendments to Rule 702 on April 30, 2021.  On May 6, 2022, following a comment period, the Committee issued a report reflecting public comments received. In October 2022, the Committee presented the amendments to the United States Supreme Court. On April 24, 2023, the Court sent revisions to Congress. Per 28 U.S.C. § 2074(a), the revisions will take effect on December 1, 2023, unless a law is passed otherwise.

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Can a Treating Physician Opine on Causation? Eleventh Circuit Says It’s About Intent, not Content

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Federal Rule of Civil Procedure 26(a)(2) outlines two different sets of pretrial disclosure requirements, imposing more onerous requirements on “retained” than “non-retained” experts.  Relatedly, when non-retained expert witnesses offer opinions based on information obtained outside the scope of their personal involvement in the facts of the case, most courts require them to submit a full Rule 26(a)(2)(B) report.  See, e.g., Goodman v. Staples The Office Superstore LLC, 644 F.3d 817, 826 (9th Cir. 2011).  Thus, for example, a physician who provided care to a personal injury plaintiff is treated as a retained expert for disclosure purposes when he or she bases a causation opinion on materials provided by an attorney and reviewed as part of the litigation.  Some courts, taking this rationale a step further, have required all experts who opine on certain topics – for example, causation – to submit a full Rule 26(a)(2)(B) report.  See, e.g., Muzaffarr v. Ross Dress for Less, Inc., 2013 WL 3850848 (S.D. Fla. July 26, 2013).  But according to the Eleventh Circuit’s recent opinion in Cedant v. United States, — F.4th —, 2023 WL 4986402 (11th Cir. 2023), such rules invert the Rule 26(a)(2) analysis.

The Plaintiff in Cedant alleged that he was injured in an accident with a U.S. Postal Service truck.  The parties agreed that, under applicable Florida law, Plaintiff had to support his claim with expert testimony showing that the accident caused his harm.  He proposed to satisfy that requirement solely by offering testimony from several doctors who treated him after the accident.  The district court, holding that experts who offer opinions on causation must satisfy Rule 26(a)(2)(B)’s disclosure requirements (including, inter alia, a Rule 26 report) and observing that none of Plaintiff’s treating physicians had satisfied those requirements, excluded the experts under Rule 37(c)(1).  Then, because Plaintiff had no admissible expert testimony to support causation, the court granted Defendant’s motion for summary judgment.  Plaintiff appealed.

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Court Finds Ship Has Sailed for Seaman to Disclose Expert’s Opinions, Resulting in Summary Judgment

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Discovery deadlines exist for a reason.  Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a timely, orderly fashion that avoids surprise.  In the context of expert discovery, this means inter alia that witnesses who have been retained specifically to offer expert opinion testimony must author a written report (i.e., a Rule 26 report) setting out their opinions and the bases for those opinions.  Fed. R. Civ. P. 26(a)(2)(B).  Opinions that are inadequately disclosed may be excluded at trial.  Fed. R. Civ. P. 37(c).  In some cases, this can leave a litigant unable to make a prima facie case and survive summary judgment.

One recent example is Adkins v. Marathon Petroleum Company LP, — F. Supp. 3d. —, 2023 WL 3242432 (S.D. Ohio 2023).  In Adkins, Plaintiff alleged that his exposure to hydrogen sulfide (H2S) fumes while working as a tankerman on Defendant’s barge caused him permanent pulmonary injuries.  He sued his employer, asserting three causes of action based on this theory:  (1) a claim under the Jones Act, (2) Unseaworthiness, and (3) Maintenance and Cure.  But each of these causes of action required Plaintiff to establish that his exposure to H2S fumes caused his alleged injuries.  Both parties agreed that H2S fumes can cause pulmonary injuries at high enough concentrations, but there was a problem in Plaintiff’s case – both he and his coworkers routinely wore badges designed to alert the wearer if H2S levels exceeded a certain threshold (which threshold was undisputedly below the OSHA regulatory limit and NIOSH short-term exposure limit), and there was no documentation that Plaintiff’s badge had ever alarmed.  In short, it was not at all obvious that Plaintiff had been exposed to enough H2S to cause his claimed injuries.  Defendant moved for summary judgment, arguing Plaintiff was unable to establish general and specific causation.

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What Dose Makes the Poison? Where Expert Cannot Say, Eleventh Circuit Affirms Summary Judgment

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A central tenet of toxicology is that “the dose makes the poison.” Every chemical is toxic if enough of it is consumed, and every chemical has some dose – even if miniscule – at which it poses no significant risk. A chemical must be given in sufficient amount – something exceeding the “threshold dose” – before it will cause effects. This has obvious implications for toxic tort litigation, where a plaintiff who alleges injury from exposure to a toxic chemical must prove at minimum that he or she was exposed to enough of the chemical to produce the alleged injury. This poses a problem for plaintiffs who have been exposed only to very small doses of the chemical at issue. What is a plaintiff to do when their exposure falls below the threshold dose? One approach that generally does not work is to reject the very concept of a threshold dose altogether.

In Pinares v. Raytheon Technologies Corporation, 2023 WL 2661521 (11th Cir. Mar. 28, 2023), Plaintiff alleged that she had developed kidney cancer after chemical compounds from the defendant’s facility made their way into the groundwater near her home. Plaintiffs relied on three experts to prove causation – a toxicologist to establish general causation and two physicians to establish specific causation. The district court excluded Plaintiffs’ toxicology expert, holding that the expert had not conducted a reliable dose-response assessment. The district court then also excluded each of Plaintiffs’ specific causation experts, noting that they had not performed an independent dose-response assessment of their own and therefore relied on the toxicology expert’s deficient opinion. Plaintiffs could not establish causation without expert opinion, and the district court therefore granted summary judgment.

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Texas Supreme Court Refocuses on Causation and Affirms Summary Judgment in Herbicide Drift Case

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The question of whether a particular application of herbicide on one property caused damage on another’s property requires expert testimony.  When a plaintiff claims that herbicide drift caused reduced crop yields, it is not enough for an expert to opine merely that the drift caused damage to plants – the plaintiff must establish that the defendant’s application of the herbicide caused the reduced crop yield.  The distinction may sound nuanced but can have profound ramifications on litigation.  This is well illustrated in the Texas Supreme Court’s recent decision in Helena Chemical Company v. Cox, — S.W. 3d –, 2023 WL 2335694 (Tex. Mar. 3, 2023), an important and highly followed case focusing on the causation requirement in cases alleging yield loss to a crop from alleged exposure to pesticides.

The plaintiffs in Cox were cotton farmers who alleged that the defendant had supervised an aerial application of herbicide that drifted onto plaintiffs’ properties and damaged their crops, causing reduced yields.  A government inspector conducted a visual inspection of the damaged crops and claimed to find “markers” for the herbicide’s two active ingredients, but no lab testing was performed.  The inspector also identified no “consistent pattern” or “drift pattern” of crop damage over the large area encompassing the various plaintiffs’ noncontiguous properties.  Plaintiffs disclosed a slate of experts to support their allegations, but the trial court excluded the experts and granted summary judgment to the defendant.  The court of appeals reversed, finding the experts admissible despite their inability to trace the alleged drift of the herbicide in question from defendants’ application site to plaintiffs’ properties.

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