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

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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Supreme Court Reinstates Statutory “Consent” to General Personal Jurisdiction

On June 27, 2023, the United States Supreme Court decided Mallory v. Norfolk Southern Railway Co., 2023 WL 4187749, 600 U.S. ___ (June 27, 2023), a decision that likely will reinvigorate forum-shopping efforts by plaintiffs in the Commonwealth of Pennsylvania and possibly elsewhere. The decision—supported by a plurality of Justices and the concurrence of Justice Alito—upholds a Pennsylvania law that requires out-of-state corporations registering to do business in Pennsylvania to consent to general personal jurisdiction within the Commonwealth. Overlooking decades of personal jurisdiction jurisprudence, Mallory reinstates a form of personal jurisdiction previously cast by many courts as a dead letter: general jurisdiction by statutory “consent.”

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Pressure is Rising: Continued Moves to Ban or Limit Natural Gas Appliances

We continue to track litigation and legislations involving proposed or enacted bans or limitations on natural gas appliances. As anticipated, this area continues to evolve, and we are finding increased litigation regarding the enforceability of such laws, as well as the safety of natural gas appliances. We previously discussed the efforts to electrify America’s natural gas infrastructure in various markets here. This article provides updates and explains several nuances to these electrification efforts.

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Enforcement of Representative Actions is Here

It’s finally here.  Enforcement of the Collective Redress / Representative Actions Directive (RAD) in the EU has now begun.  At this time, six member states have adopted a national translation of this law and nineteen states are engaged in ongoing discussion and drafting.  The landscape is changing rapidly and our team is tracking these developments.

Are you ready for this shift in litigation culture?  Backed and supported by the growing EU third party litigation funding industry, the RAD will provide an unprecedented procedural mechanism to bring class and consumer actions on a mass scale against EU traders.  These actions can be premised upon one or more of 66+ substantive regulations that cover everything from the finance industry to environmental regulations to product and artificial intelligence liability.  If you have not prepared, now is the time.

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Amendments to Minnesota Wrongful Death and Survival Statutes Open the Door to Pain and Suffering Claim

On May 20, 2023, the amendments to the Minnesota wrongful death and survival statutes, Minn. Stat. §§ 573.01, 573.02, became effective. This means that duly appointed administrators can now bring claims for “all damages suffered by the decedent resulting from the injury prior to the decedent’s death” – on top of the pecuniary losses that have traditionally been available. While the meaning of the term “all damages” has yet to be fully hashed out, this new change appears to open the door to claims for pre-death personal injuries, pain and suffering, and more.

Traditionally, Minnesota law has not provided compensation for personal injuries following the death of a decedent—including in wrongful death cases. See Holtegaard v. Soo Line R.R. Co., No. A13-2079, 2014 WL 3396871, at *3 (Minn. Ct. App. July 14, 2014). In fact, the applicable jury instructions have specifically excluded amounts “for the pain and suffering” of the decedent before death. CIVJIG 91.75 Wrongful Death, 4A Minn. Prac., Jury Instr. Guides (6th ed.). Instead, Minnesota historically allowed damages only for what courts have interpreted to be pecuniary losses “created by the decedent’s death.” Regie de l’Assurance Auto. du Quebec v. Jensen, 399 N.W.2d 85, 89 (Minn. 1987). These have included the financial losses associated with death (e.g., medical expenses and funeral costs), as well as the loss of advice, comfort, assistance, and protection previously provided by the decedent. Fussner v. Andert, 113 N.W.2d 355, 363 (1961).

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Indiana Court of Appeals Holds Product Misuse Unforeseeable in Light of Product Warnings, Reverses Denial of Summary Judgment

Key Takeaway:  In Superior Oil Company, Inc. v. Labno-Fritchley, 207 N.E.3d 456 (Ind. Ct. App. 2023), the Indiana Court of Appeals reversed a trial court’s denial of summary judgment in a product liability case.  The court held that summary judgment should have been granted because the defendant’s designated evidence related to the product’s warning label established the affirmative defenses of misuse and incurred risk as a matter of law.  Notably, the opinion illustrates how failure to heed the warnings that accompany a product can amount to unforeseeable product misuse.

Background:  Plaintiff’s decedent attempted to remove the top of an empty 55-gallon metal drum with a cutting torch when it exploded, resulting in his death.  The top of the drum – at which the decedent had to have been looking as he cut – bore an 8” x 12” warning label that, among other things, warned of the dangers of an empty metal drum and advised “[d]o not flame cut, braze, or weld empty container.”  Although not emphasized by the Labno-Fritchley court, a picture of the label in the court’s opinion suggests that this language comprised only a very small portion of the label and was not in boldfaced or underlined font.

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