More than three years ago, back in February, 2008 we put up a post about e-discovery for defendants. After the usual lamentations about how e-discovery imposed asymmetrical burdens on defendants – since defendants have a lot more “e” to discover – we offered what we hoped were some helpful hints and observations about how that
One of the banes of our existence is the belatedly disclosed expert report. The rules allow, indeed encourage, judges to set time limits for expert disclosures. But we can’t count the number of times that, once the defense starts to make headway against a plaintiff’s theory after the time for disclosure has passed, the plaintiff
Here’s something that both sides of the “v.” can agree with. For the last several years Westlaw has been endeavoring to add “trial orders” to its computerized databases. That’s good. We’ve sent them plenty of such orders. It’s infinitely better than the old days, when nobody knew about these opinions.
However, we’ve complained repeatedly about
Seems to be Texas law.
The Third Restatement of Torts – controversially – includes an extremely limited form of “design defect” claim that it would allow against manufacturers of drugs and medical devices. That doesn’t really make sense in the drug context because, with some minor exceptions (such as quantity of active ingredient per dose,
We were at a conference in Chicago last week where, as usual, the most interesting part was the panel of judges. Whether you agree or disagree with what the judges say, their every word is important and interesting. The focus of last week’s panel was Daubert motions. Not to put too fine a point on it it, these judges were annoyed by burdensome Daubert motions. These judges thought most Daubert motions were a waste of time. Such motions often amount to huge stacks of paper full of science and peer-reviewed literature> If things are that complicated — so the thinking goes — maybe the jury should sort it out.
One of the lawyers in the audience had the temerity to ask the judges about the value of using Daubert motions to “educate” the judge, even if the motion is not ultimately successful. For a moment, we could have sworn that the panel morphed into Pink Floyd singing “we don’t need no education.” One of the judges said that maybe they only thing they’d be “educated” on is that the lawyer is a jerk for subjecting the judge to a difficult, mind-numbing exercise for no good reason. Here is what the judges tried to “educate” us on: judges are really, really busy. And not terribly patient.
Well, that’s a tad depressing to lions of the defense bar, isn’t it? We tend to view these cases as a magical mystery tour through preemption-learned intermediary-Daubert-summary judgment. Maybe the takeaway from what the judges said — for that matter, the takeaway if one just applies a little common sense — is to choose one’s battles carefully and wisely. Instead of robotically following the dance-steps laid out on the floor, or doing something just because that’s how we did it in the last case, we need to look through fresh eyes and do what’s appropriate for that particular case. Daubert might not work in every case. In fact, we might end up “educating” the plaintiff lawyers and their experts.
But sometimes Daubert is the right way to go. Sometimes it really does help the court to streamline a case. Sometimes it can be a well-thought out response to plaintiff experts who (speaking of doing things robotically) trot in to say pretty much what they say in every case — the actual science and facts be damned.
We saw an example of a shrewd use of Daubert last week in Hogan v. Novartis Pharmaceuticals Corp., No. 06-Civ-0260 (BMC) (EDNY April 24, 2011). In Hogan the plaintiff claimed breach of implied warranty and failure to warn of the risk of developing osteonecrosis of the jaw from the defendant’s intravenous drug, Zometa. The case presents an example of why the judges’ criticism of Daubert motions is so maddening. If defense lawyers are to be lambasted for filing overreaching Daubert motions, what about plaintiff lawyers who file overreaching expert designations? And is it possible to talk about overreaching plaintiff expert designations without mentioning Dr. Parisian?Continue Reading Rule 702 Read Right