Subject: Expert Witness

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

Share

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.

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

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

Share

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.

Continue reading “To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging”

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

Share

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.”

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

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

Share

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.

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

Ayotte v. National Basketball Association: Plaintiff Can’t Hide the Ball on Communications Between Counsel and Non-Retained Treater Expert

Share

Picture a deposition of a plaintiff’s treating physician. Early in the deposition, defense counsel asks the usual questions about the physician’s communications with the plaintiff’s counsel. But the plaintiff’s counsel, claiming that the physician is a non-retained expert whom the plaintiff’s counsel represents in connection with the action, objects on the basis of privilege and instructs the physician not to answer. That can’t be right, but exactly why not? And if such communications are discoverable, then why wouldn’t communications between defense counsel and a corporate defendant’s employee who is designated as a non-retained expert be discoverable as well? A recent order from the Southern District of New York offers clarity.

In Ayotte v. National Basketball Association, 2024 WL 3409027 (S.D.N.Y. Jul. 15, 2024), the plaintiffs designated a treating psychologist as a non-retained expert and claimed he was represented in connection with the action by the plaintiffs’ counsel. Thus, when the defendant sought to discover communications between the plaintiffs’ counsel and the treating psychologist, the plaintiffs argued they were privileged.

Continue reading “Ayotte v. National Basketball Association: Plaintiff Can’t Hide the Ball on Communications Between Counsel and Non-Retained Treater Expert”