Causation Archives - Faegre Drinker on Products

Subject: Causation

Foundation, Not Façade — The Fifth Circuit Affirms the Proper Basis Requirement for Admissibility of Expert Opinions in Newsome v. International Paper Co.

In a toxic tort case, plaintiffs must establish general causation. If a substance is incapable of causing the type of injury plaintiff claims, then it certainly didn’t cause theirs. Under Texas law, toxic tort plaintiffs must prove general causation either by “direct, scientifically reliable proof,” or by “indirect” epidemiological evidence. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1977). In Newsome v. International Paper Company, plaintiff attempted to bypass this foundational requirement, and neither the district court, nor the Fifth Circuit was fooled. WL 5117195 (5th Cir. Dec. 16, 2024).

In Newsome, plaintiff was a truck driver for a company that supplied International Paper with sodium hydrosulfide (NaHS). Under certain conditions, NaHS releases hydrogen sulfide (H2S), an invisible gas with a characteristic rotten-egg odor. During a delivery in January 2019, plaintiff alleged he “smelt something” then “came to” on the ground. He presented to an urgent care clinic the following day but was diagnosed with only a rash. He did not visit a doctor again for four months. Then, more than a year later, plaintiff sued International Paper claiming “a host of life-threatening injuries” related to his alleged exposure to H2S.

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

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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Plaintiff’s Half-Baked Attempt to Prove Defect and Causation With Photographs of Moldy Bread Shows the Knead for Expert Testimony

A picture may be worth a thousand words, but that doesn’t make the camera an expert witness. Product liability actions usually require expert testimony to prove defect and causation. Pictures, like other documents, can be central to an expert’s opinion on those points. But as a plaintiff in the Eastern District of Pennsylvania recently learned, pictures alone are insufficient. Defect and causation still require an expert’s testimony — even in cases involving products as simple as a loaf of bread.

In Kovalev v. Lidl US, LLC, 2024 WL 4642982 (E.D. Pa. Oct. 31, 2024), the plaintiff alleged that he became ill after consuming bread sold and/or baked by the defendants. He claimed to have bought eight loaves initially and experienced abdominal pain and difficulty breathing after spending two days eating the first loaf. He claimed to have thereafter discovered that the loaf was “extensively contaminated with dangerous disease-causing toxic mold.” He took pictures. Later, the plaintiff ate from a second loaf and developed nausea, vomiting, abdominal pain/cramps, general malaise, and respiratory issues “for days.” Once again, he allegedly inspected the bread after eating it and “discovered various-colored mold.” And once again, he took pictures. (As an aside, if we became ill after eating a loaf of bread and then discovered “extensive” mold on it, we would spend the foreseeable future carefully checking all our bread for mold before digging in. We might do so simply because we have read this case. But we digress.) Three months later, the plaintiff purchased four more loaves of bread from another of defendants’ stores. He claimed that while eating that bread he discovered “a large piece of black substance” inside it. Once again, he took pictures. Because he did not know what the substance was or whether he had consumed part of it, he claimed to be “severely traumatized” and afraid of developing future “cancer or damage to his organs,” “suffer[ing] a physical impact,” and losing his “enjoyment of life.”

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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

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

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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In re Taxotere (Docetaxel) MDL Court Rejects Plaintiffs’ Argument that Lone Pine Order is Unfair

We think Lone Pine orders are pretty fair. Lone Pine orders are case management orders that require plaintiffs in multidistrict litigation (MDL) to produce specific evidence without which the plaintiffs cannot make a prima facie case. There is nothing unfair about dismissing a case that is fatally flawed for want of critical evidence that cannot be obtained. Yet Lone Pine orders rarely sit well with plaintiffs who cannot (or do not want to have to) make the showing required of them. Rather than accept their fate, these plaintiffs often attack the Lone Pine order in an effort to delay the inevitable. We discussed one such effort in the In re Zostavax MDL in 2022 and earlier this year. The In re Taxotere (Docetaxel) MDL now provides another example, not only of how plaintiffs attack Lone Pine orders but also of how courts should respond to these unmerited attacks. In re Taxotere (Docetaxel) Prods. Liab. Litig., 2024 WL 4362982 (E.D. La. Oct. 1, 2024).

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