Category: Expert Admissibility

To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging

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Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the opinions of experts who may present evidence at trial. If the disclosures are inadequate, Rule 37(c) requires exclusion of the opinions “unless the failure was substantially justified or is harmless.” This almost automatic exclusionary rule can pose issues when deciding whether to depose an opposing expert. Although “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony,” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008), some courts nevertheless may consider an inadequate disclosure to be “harmless” once the expert’s opinions have been fully explored at deposition. On the other hand, although “[c]ourts have uniformly rejected the [idea] that the failure to depose an expert affects the right to object to the expert’s testimony,” Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 370 (D. Me. 2011) (collecting cases), a party may need to depose an opposing expert in order to properly set up a challenge to the expert’s opinions for purposes of Federal Rule of Evidence 702 or trial if the court deems the expert’s disclosure adequate. This issue becomes particularly acute as applied to nonretained experts, who need not provide a written report under Rule 26. A recent opinion from the Northern District of Indiana aptly illustrates the quandary.

In Macchia v. Landline Trans, LLC, No. 2:21-CV-398, 2024 WL 4751091 (N.D. Ind. Nov. 12, 2024), the plaintiff alleged that he was injured in a motor vehicle accident and proffered three of his treating physicians as experts to opine on his injuries and causation. The defendants filed a three-pronged motion to exclude the experts. Notably, the defendants elected not to take the depositions of any of the three physicians. Indeed, the court’s opinion repeatedly observed how the lack of deposition testimony made it “a bit of a challenge” to summarize the background facts and adjudicate the motion.

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Same Song, Different Verse — Causation Experts for Second Group of Bellwether Plaintiffs Excluded for Same Reason as First Group’s Expert in In re Deepwater Horizon BELO Cases

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Multidistrict litigation is meant to “promote the just and efficient conduct” of actions “involving one or more common questions of fact” by transferring those actions to a single district court “for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). In MDLs involving alleged physical injury or illness caused by a product, one “common question of fact” is general causation. Each plaintiff in the MDL must prove that the product is capable of causing the injury or illness. We think it is usually — if not always — most “just and efficient” to address general causation on an MDL-wide basis as early as practicable. Some courts disagree, testing general causation initially on just a subset of plaintiffs in the MDL; when those efforts fail, other plaintiffs may be permitted to try again, perhaps with new general causation experts. But the plaintiffs’ second attempt to establish general causation often fails to remedy the problems that doomed the first attempt (as we have discussed before), merely amplifying costs for both parties before reaching the same result. The In re Deepwater Horizon BELO (Back-End Litigation Option) Cases litigation, while not formally centralized as an MDL itself, provides another example. In re Deepwater Horizon BELO Cases, 119 F.4th 937 (11th Cir. 2024).

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Fifth Circuit Asks the Right Questions, Affirms Summary Judgment on Plaintiffs’ Herbicide Claims as Untimely and Lacking Admissible Expert Support for Causation

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As Nobel laureate Richard Feynman once observed, “[w]isdom is knowing when to ask the right questions.” A related proposition is that wise jurists know how to identify and focus on the right questions. Motion practice can turn not only on the facts and the law, but on how the court frames the question to be answered. It is rarely a good sign for a party when the court articulates the issue differently than the party framed it. A recent decision by the Fifth Circuit provides not one, but two prime examples of how correctly framing the inquiry can dictate the results of a motion.

In Whalen v. Monsanto Company, 2024 WL 4524170 (5th Cir. Oct. 18, 2024), the plaintiffs alleged that the decedent had developed squamous cell carcinoma as a result of exposure to the defendant’s herbicide. The decedent was a doctor who had treated employees at a plant where the herbicide’s active ingredient was manufactured and was also an avid gardener who regularly used the herbicide. Initially, the plaintiffs alleged that the herbicide’s active ingredient was itself carcinogenic. However, they ultimately argued instead that the herbicide contained arsenic, which they claimed had caused the decedent’s cancer. The defendant moved for summary judgment, first as to selected claims on a statute of limitations argument, and later as to the remaining claims on the ground that the plaintiffs’ sole causation expert had not offered an admissible opinion, and the trial court granted both motions.

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Can a Treating Physician’s Medical Testimony Be “Lay Opinion”? Divided Sixth Circuit Panel Disagrees on Where to Draw the Line

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Federal Rules of Evidence 701 and 702 govern the admissibility of lay and expert opinion testimony, respectively, in federal courts. Rule 701(c) helps paint the line between the two, providing that an opinion “based on scientific, technical, or other specialized knowledge within the scope of Rule 702” cannot be admitted as a lay opinion. This requirement was added in the 2000 Amendments to Rule 701 to address what the Advisory Committee described as a risk “that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Given this history, one might expect courts to err toward applying Rule 702 to any testimony that inherently draws on expertise that laypeople do not possess. But, as illustrated by the Sixth Circuit’s split decision in United States v. Betro, — F.4th —, 2024 WL 3811838 (6th Cir. 2024), some courts use a different approach.

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Ayotte v. National Basketball Association: Plaintiff Can’t Hide the Ball on Communications Between Counsel and Non-Retained Treater Expert

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Picture a deposition of a plaintiff’s treating physician. Early in the deposition, defense counsel asks the usual questions about the physician’s communications with the plaintiff’s counsel. But the plaintiff’s counsel, claiming that the physician is a non-retained expert whom the plaintiff’s counsel represents in connection with the action, objects on the basis of privilege and instructs the physician not to answer. That can’t be right, but exactly why not? And if such communications are discoverable, then why wouldn’t communications between defense counsel and a corporate defendant’s employee who is designated as a non-retained expert be discoverable as well? A recent order from the Southern District of New York offers clarity.

In Ayotte v. National Basketball Association, 2024 WL 3409027 (S.D.N.Y. Jul. 15, 2024), the plaintiffs designated a treating psychologist as a non-retained expert and claimed he was represented in connection with the action by the plaintiffs’ counsel. Thus, when the defendant sought to discover communications between the plaintiffs’ counsel and the treating psychologist, the plaintiffs argued they were privileged.

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Plaintiffs’ Second Bite at the General Causation Apple Fares No Better Than the First in Acetaminophen MDL

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In December 2023, back when the ink was still drying on the amendments to Federal Rule of Evidence 702, the Southern District of New York excluded all five general causation experts proffered by plaintiffs in the In re Acetaminophen MDL whose cases had been selected for trial.  We discussed that impressively detailed and painstaking decision here. Observing that all 50 states require proof of general causation in product liability cases and that the plaintiffs now had no experts to carry that water, the court instituted an order to show cause process that led to the dismissal of approximately 550 cases. However, over the defendants’ objections, the court permitted a small handful of new arrivals to the MDL to name their own general causation expert and try again. In yet another impressively meticulous opinion, the court recently doubled down on its Rule 702 “gatekeeping” role and excluded the new plaintiffs’ backup general causation expert in In re Acetaminophen – ASD-ADHD Prod. Liab. Litig., No. 22MC3043 (DLC), 2024 WL 3357608 (S.D.N.Y. July 10, 2024).

The plaintiffs in In re Acetaminophen allege that prenatal use of acetaminophen caused attention deficit hyperactivity disorder (ADHD) and/or autism spectrum disorder (ASD) in offspring. The plaintiffs’ first five proffered general causation experts were excluded in part because the court took issue with the experts’ “transdiagnostic” approach — combining literature of ADHD and ASD into a single analysis — because it merely “obscured limitations in the scientific literature.”   The new plaintiffs’ expert — number six overall — sidestepped the “transdiagnostic” issues and sought to opine solely on a supposed link between prenatal acetaminophen use and ADHD.  But the court, still mindful of acetaminophen’s critical role as the only pain reliever and fever reducer indicated for use during pregnancy and the FDA’s multiple reviews of its safety, remained vigilant in its Rule 702 obligation.

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