Subject: Daubert

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

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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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Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That Change Over Time

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Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are questions of law or fact common to the class.” And Rule 23(b) authorizes money damages class actions only where the legal or factual questions common to the class predominate over questions that may be addressed differently for individual class members. In class actions involving claims about product performance, class proponents almost always cite the existence of a “defect” as common issue. But why is the generic question of “defect” even the right question, and what if the product has experienced a significant change over the time period covered by the class action? When a product is updated, is it still the same “product” for purposes of Rule 23? The Sixth Circuit, in In re: Nissan North America, Inc., — F.4th —, 2024 WL 4864339 (6th Cir. 2024), addressed not only these questions but also joined the growing list of circuits that expressly require expert testimony offered at the class certification stage to satisfy Rule 702 of the Federal Rules of Evidence.

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

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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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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

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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

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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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Can a Treating Physician’s Medical Testimony Be “Lay Opinion”? Divided Sixth Circuit Panel Disagrees on Where to Draw the Line

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Federal Rules of Evidence 701 and 702 govern the admissibility of lay and expert opinion testimony, respectively, in federal courts. Rule 701(c) helps paint the line between the two, providing that an opinion “based on scientific, technical, or other specialized knowledge within the scope of Rule 702” cannot be admitted as a lay opinion. This requirement was added in the 2000 Amendments to Rule 701 to address what the Advisory Committee described as a risk “that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Given this history, one might expect courts to err toward applying Rule 702 to any testimony that inherently draws on expertise that laypeople do not possess. But, as illustrated by the Sixth Circuit’s split decision in United States v. Betro, — F.4th —, 2024 WL 3811838 (6th Cir. 2024), some courts use a different approach.

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