Ipse Dixit – It’s Not Just for Analytical Gaps Anymore

There are few legal phrases more fun to say than “ipse dixit.” The phrase is most commonly used in motions to exclude experts who base their opinions on nothing more than their own say so.  As the Court noted in General Electric Co. v. Joiner, 522 U.S. 136 (1997), an ipse dixit – Latin for “he said it himself” – leaves an impermissible “analytical gap” between the expert’s opinion and the facts on which it is based.  But ipse dixit arguments can and should stretch beyond just the “basis” part of the expert argument. Courts should also exclude experts who provide unsupported and self-serving testimony to suggest that their method is accepted generally in the community.

That is precisely what happened in Knepfle v. J-Tech Corporation, 2022 WL 4232598, — F.4th — (11th Cir. 2022).  Plaintiff was injured in a motor vehicle accident when she ran her motorcycle into the side of a vehicle that had turned in front of her, causing her to be thrown from the motorcycle.  Although the helmet she was wearing protected her head during the initial impact with the other vehicle, she alleged that it came off and failed to protect her head when it struck the pavement.  She brought product liability claims against multiple defendants in the manufacturing and distributing chain of the helmet.

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Smart Contracts — A Few Tips to Avoid Being Outsmarted

Proponents of digital innovations such as blockchain, the Internet of Things (IoT) and smart devices have hailed the introduction of such technology as the Fourth Industrial Revolution. When used together, they may create self-executing “smart contracts” for a variety of transactions. Smart contracts do not need to rely on IoT devices, but when they do, these devices are critical to the system, most importantly because they collect and transfer the transaction-related data that triggers the execution of the contracts. But how is that data verified, and what happens if the IoT devices are wrong?

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Blurry Vision in Two Courts Leads to Denial of Preemption in Intraocular Lens Implant Case

A recent Second Circuit preemption decision illustrates the importance of a clear-eyed approach to medical device preemption issues.

In Glover v. Bausch & Lomb, Inc., 6 F.4th 229 (2d Cir. 2021), the district court dismissed as preempted a complaint concerning vision loss from defective intraocular lenses implanted during cataract surgery. Plaintiff developed “Z syndrome,” permanently impairing her vision, and sued the manufacturer under the Connecticut Product Liability Act (CPLA) for failing to warn.  She alleged the defendant had failed to report prior Z Syndrome cases to the FDA, as required by the Federal Food, Drug, and Cosmetic Act (FDCA).

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Sue Generous and the Laws of Legal Physics: Preventing Asbestos Mission Creep in California Courts

It is virtually a law of legal physics in California that liability tends to expand until a critical mass of appellate courts rule that it has reached its limit, or the Supreme Court puts up a stop sign (a vanishingly rare occurrence).

This judicial tendency reaches its zenith in asbestos litigation.  Asbestos cases feature a combination of factors that pressure-test the boundaries of traditional tort law.  Asbestos fibers, in most cases, are relatively fungible, and the exposures are anecdotal and undifferentiated.  The injuries have extremely long latency periods, leaving exposure details fuzzy, ancient lore.  The biological mechanisms are largely mysterious.  In many cases, the plaintiff can prove an asbestos injury but cannot reliably prove causation under traditional tort standards.

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District of New Jersey Finds Amazon to be “Seller” of Hoverboard under NJ Product Liability Act

The District of New Jersey has held that Amazon may be sued under New Jersey law for defective products sold by third-party sellers through its online marketplace.

The dispute in New Jersey Manufacturers Insurance Group v. Amazon.com Inc., Civil Action No. 16-cv-9014, involved an allegedly defective hoverboard purchased from a third-party seller by an insured of plaintiff New Jersey Manufacturers Insurance Group (“NJM”) via Amazon.com.  NJM filed suit as subrogee of the insured, asserting a strict lability claim under the New Jersey Product Liability Act (NJPLA), in addition to claims for breach of implied warranty and negligence.

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Illinois Court Finds Prejudgment Interest Statute Unconstitutional

On May 27, 2022, the Circuit Court of Cook County ruled that Illinois’ recently enacted prejudgment interest statute is unconstitutional. Hyland v. Advocate Health and Hospitals Corporation, et al., No. 2017-L-003541. We reported on the passage of that statute here. In Hyland, a wrongful death/medical malpractice case, the court ruled that the statute violated the right to trial by jury and the prohibition against special legislation. This order will surely face appellate scrutiny, but for now it raises some uncertainty over the valuation of personal injury and wrongful death cases pending within the state.

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