Subject: Causation

EU Reaches Legislative Deal on Proposed ‘Digital Age’ Updates to Product Liability Directive

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Last week, the European Union made a significant breakthrough towards its goal of overhauling the 40-year-old Product Liability Directive for the demands of the “digital” age and modern economy. To amend the directive, the elected European Parliament and the European Council (comprised of government representatives of the 28 member states) must agree on final language and separately pass the draft legislation through their respective bodies. After extensive legislative efforts and negotiations, the European Council (currently led by the Government of Spain) and the European Parliament issued press releases announcing that they have reached a political agreement regarding the proposed updates to the directive.

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Amended FRE 702 Arrives in MDL Practice: S.D.N.Y. Excludes Plaintiffs’ Experts in Acetaminophen MDL

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The Committee Notes to the newly implemented amendments to Federal Rule of Evidence 702 make clear that the “[j]udicial gatekeeping” of expert evidence is “essential.”  Federal courts in New York have played an important role in pioneering and developing this concept.  Indeed, the idea of courts as gatekeepers in the expert context finds its roots in the Eastern District of New York, with the late Chief Judge Weinstein coining the term in a 1985 opinion in In re Agent Orange Product Liability Litigation.  Three decades later, the Southern District of New York offered one of the most thorough illustrations of careful judicial gatekeeping in In re Mirena IUS Levonorgestrel-Related Prod. Liab. Litig. (No. II).  Now, New York can also call itself home to the first MDL-wide decision to exclude experts under Rule 702’s new formulation.

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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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Dismissal of a Broken Chair Claim Shows That Expert Testimony May Be Essential Even for a “Simple” Product

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In Mehner v. Furniture Design Studios, Inc., 2023 WL 2351688 (D. Neb. Mar. 3, 2023), the court granted summary judgment on product defect claims by a plaintiff allegedly injured by the collapse of a restaurant chair eight years after the manufacturer delivered it.  This well-reasoned decision reminds us that even for fairly simple products, expert proof may be required to establish a defect – and failure to develop the factual predicate in discovery may leave the plaintiff without an opinion (and without a case).  It also highlights important limitations in the “malfunction theory” that sometimes allows a plaintiff to proceed without expert proof or identification of a specific defect.

Plaintiff was eating at a restaurant in Omaha when his chair allegedly collapsed.  He sued Furniture Design Studios (FDS), which designed, manufactured and sold the chair, asserting strict liability and negligence design defect claims.

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