Subject: Summary Judgement

Fifth Circuit Clouds Threshold Dose Analysis in Ruffin v. BP

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Plaintiffs in toxic tort cases must prove both general and specific causation, generally through the testimony of experts. Experts must establish that a specific chemical exposure can (and did) cause the specific injury at issue. In order to make that showing, the plaintiff’s exposure must at least have exceeded the minimum harmful level of the chemical — the “threshold dose.” As the Eleventh Circuit made clear last year in its handling of In re Deepwater Horizon BELO litigation (which we discussed here), threshold dose is a concept that straddles general and specific causation. A more recent BELO case, Ruffin v. BP Exploration & Production, Inc., — F.4th —, 2025 WL 1367185 (5th Cir. May 12, 2025), shows how isolating an expert’s general causation opinion from its implications on specific causation can cloud the analysis.

In Ruffin, the plaintiff worked for five months as a clean-up worker following the Deepwater Horizon oil spill. He was diagnosed with prostate cancer five years later and sued the defendant, claiming he was exposed to chemicals that caused his cancer. He described two instances of exposure: one when oil splashed onto his face while travelling by boat and another when he fell in the water. The plaintiff had a known genetic risk for prostate cancer, but his expert claimed the oil exposures were a “second and necessary hit to initiate his prostate cancer.” The defendant moved to exclude the plaintiff’s causation expert, a genetic and molecular epidemiologist, under Federal Rule of Evidence 702. The district court had excluded both the expert’s general and specific causation opinions as unreliable, largely for failure to specify a threshold dose, and then granted summary judgment for want of admissible expert evidence.

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A Change Is Gonna Come — Amendments to California Summary Judgment and Summary Adjudication Procedures Take Effect January 1, 2025

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Those who litigate in California state courts, take note: Changes are coming to the state’s summary judgment statute for the first time in 20 years. Assembly Bill 2049 (AB 2049), signed into law this summer, introduces logistical changes and clarifications to the summary judgment process that attorneys should be aware of before the law takes effect on January 1, 2025.

First, AB 2049 will change the notice period — and thus the timing — of summary judgment and summary adjudication motions. Code of Civil Procedure section 437c prescribes the timeline for summary judgment and summary adjudication motions. Under the longstanding statute: notice of a summary judgment or summary adjudication motion and supporting papers needed to be served at least 75 days before the hearing, oppositions were due at least 14 days before the hearing, and replies at least five days before the hearing.

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Upcoming Changes to Florida’s Civil Procedure Rules: What Litigators and their Clients Need to Know

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Last week, the Florida Supreme Court released two opinions [here and here] announcing changes to its rules of civil procedure in an attempt “to promote the fair and timely resolution of civil cases.” The amendments are broad and apply to many aspects of case management, scheduling, and discovery. Thus, Florida practitioners will want to familiarize themselves with the new variants before they go into effect on January 1, 2025. The following discussion highlights a subset of the changes that appear most likely to have an impact throughout a case’s lifetime.

Litigators will feel the impact right from the jump. While the current rules permit the courts more leeway when scheduling deadlines, the newly re-written Rule 1.200 will give courts 120 days to assign each case to one of three case management tracks—complex, general, or streamlined. The court may customize the process according to its needs, but the judge must set an actual or projected trial period according to the specified case management track. These buffed requirements will provide litigants with clearer expectations in their case’s timeline, and other changes work to ensure those dates—including trial—are delayed as little as possible. For example, under the modified Rule 1.200, attorneys must follow specific steps to modify case management deadlines, otherwise deadlines “must be strictly enforced unless changed by court order.” Moreover, one noteworthy change to Rule 1.460 provides that “motions to continue trial are disfavored and should be rarely granted and then only upon good cause shown.” [No. SC2023-0962 at 7–8.]

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A KIND Result After Insufficient and Biased Consumer Perception Evidence

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Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable consumer would expect may lead to its exclusion.  The Second Circuit, in Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir. May 2, 2024), provides an illustrative example of this, affirming the Southern District of New York’s exclusion of plaintiffs’ experts and grant of summary judgment to a snack foods manufacturer in a false advertising class action.

In Bustamante, Plaintiffs alleged they were deceived by the packaging of KIND snack bars as “All Natural” despite the inclusion of certain “non-natural” ingredients, and their lawsuit asserted warranty, unjust enrichment, negligent misrepresentation, and state consumer protection statute claims.  Although there were differing elements to Plaintiffs’ various claims, they were narrowed for the purposes of summary judgment to deception, materiality, and injury, with only the element of deception at issue on appeal.

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Missing the Mark: Summary Judgment Granted Where Plaintiff’s Experts Opine on Defect but Fail to Support Causation

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Product liability claims require proof of causation.  To be sure, they also require proof of some defect in the product and/or its accompanying warnings and product literature.  But defect and causation are separate elements of a prima facie claim, and both must be established – usually, through expert testimony.  As we have discussed on multiple occasions (for example, here and here), a plaintiff’s failure to offer admissible expert testimony on each element can lead to summary judgment.  A recent decision from the Eastern District of Pennsylvania offers yet another illustration.

In Slatowski v. Sig Sauer, Inc., 2024 WL 1078198 (E.D. Pa. Mar. 12, 2024), the plaintiff was an Immigration and Customs Enforcement (“ICE”) officer who was injured when his pistol fired unintentionally during a marksmanship training exercise.  He sued the gun manufacturer, alleging that a design defect in the gun’s integral safety feature – specifically, the lack of a tabbed trigger – caused the firearm to discharge unintentionally. The plaintiff proffered two experts in support of the claim:  a gunsmith and a certified firearms instructor and range safety officer with a Ph.D. in ergonomics.  The defendant moved to exclude both experts’ opinions and also moved for summary judgment, arguing that the plaintiff had no admissible expert testimony to establish causation.

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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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