Just a decade ago, it was still an open question whether parties could challenge the admissibility of expert testimony in class certification proceedings. The United States Supreme Court recognized the issue in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), and suggested that experts should be scrutinized as usual, noting that “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that this is so . . .” Since then, multiple circuits have taken that hint and held that a court must conduct a full Rule 702 analysis before deciding whether to certify a class. The Fifth Circuit, in Prantil v. Arkema Incorporated, 986 F.3d 570 (5th Cir. 2021), became the fourth federal court of appeal to adopt this rule expressly. As the district court’s recent decision on remand in Prantil demonstrates, a full Rule 702 analysis can make the difference between certifying or rejecting a class.
Category: Toxic Torts
It’s an MDL World: Agreement is enough, or is it?
The JPML held its second hearing of 2022 at the end of March. We addressed the results of the first hearing recently here, and further observed the JPML’s trend over the course of the last several years in forming fewer MDL proceedings each year. As we move further into 2022, it is clear this trend has continued.
In April, the JPML formed two new MDLs out of four total petitions, bringing the cumulative total of new MDLs in 2022 to four (out of seven petitions considered)—well below the typical quarterly pace for new MDLs, including that of 2021. Through its orders, the JPML provided insights into the circumstances that justify MDL formation, and those that do not. We briefly discuss these orders below:
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Updated EPA Analysis on Long-Term Health Effects of Formaldehyde Exposure Could Have Lasting Implications for Manufacturers
On April 14, 2022, the Environmental Protection Agency (EPA) released draft conclusions in a report updating its analysis regarding formaldehyde exposure, suggesting that long-term exposures to small amounts of formaldehyde in the environment can increase the risk of rare head and neck tumors, leukemia, and other threats to health. The conclusions are not final agency action. Still, manufacturers should be aware of the potential for EPA’s analysis to influence both regulation and litigation at both the state and federal levels.
For over a decade, there has been much debate and study on the long-term effects of exposure to formaldehyde. The EPA’s new analysis is an update of a 2010 draft EPA report that was heavily panned by scientists, legislators, and chemical manufacturers and that drove the EPA back to the drawing board. For example, the National Academies of Sciences, Engineering, and Medicine criticized the 2010 draft EPA report for failing to describe the rationale behind its methodology and failing to sufficiently support its conclusions.
Can a Person Marry Into Consortium Damages in a Wrongful Death Claim? Florida’s Fourth and Fifth District Courts of Appeal Are in Conflict
As things stand, a spouse who marries a decedent post-injury cannot recover wrongful death damages in the Fourth District but can recover such damages in the Fifth District. All eyes are on the Florida Supreme Court to resolve the confusion, contradiction and uncertainty facing some Florida litigants related to wrongful death claims.
New Phthalates Study Garnering Media Attention Purports to Show Only an Association – Not Causation – with Certain Mortalities
A new study regarding phthalates has garnered media attention this month, but readers should recognize the study’s limitations. Some media coverage of this study blurs the important distinction between “association” and “causation.”
What Are Phthalates?
Phthalates, sometimes called plasticizers, are a group of chemicals generally used to make plastics more durable, or to dissolve other materials. Phthalates may be found in products such as vinyl flooring, food wraps, intravenous tubing, lubricating oils, and some personal care products such as shampoos, soaps, and hairsprays.
The Rule 702 Toolbox: How Do You Solve a Problem Like the Ninth Circuit?
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.
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