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We’ve written more than once that the recent (effective last December) amendment to Federal Rule of Evidence 702 qualifies as a Very Big Deal. An opinion in the J&J talc multidistrict litigation (MDL) proves that point.  

A little history is in order.  Many, many plaintiffs sued J&J, claiming that its talcum powder caused cancer. The science supporting this claim was pretty flimsy.  Once upon a time, a New Jersey state court judge wrote a lovely opinion taking a hammer and tongs to the plaintiffs’ junk talc science. (We applauded that opinion here.)

Things were a little less lovely in federal court. Judge Wolfson issued a Daubert opinion that did not perform as much junk science removal as the state court judge did. (Yes, yes – we know we’re not supposed to call them Daubert opinions anymore. We’re supposed to stick with Rule 702.  But we’re doing history right now, and the Daubert label works as a matter of history.) We didn’t like the MDL court’s opinion nearly as much as the state court opinion.  For now, we’ll leave it at this: it could have been better.  But we’ll let bygones be bygones, and now Judge Wolfson is gone. She retired. Judge Shipp took over the case. 

(Here is more history, but of a different nature. One of the plaintiff talc experts has been accused of doing utterly bogus research. J&J filed a lawsuit alleging business libel, and that case is pending. We wrote about that here.)

The defendants argued to Judge Shipp that the Daubert opinion authored by Judge Wolfson should be looked at again because (1) many years had gone by since that ruling and the restarting of the MDL (due to interim bankruptcy stays), (2) science had evolved, and (3) Rule 702 had changed. 

The plaintiffs’ must have enjoyed the original Daubert opinion, because they opposed any relook at it. The plaintiffs must have enjoyed rather less Judge Shipp’s reopening of the Rule 702 issue.  Judge Shipp was persuaded that new Rule 702 and new science made “a full refining of Daubert motions appropriate.”  The plaintiffs filed a motion to reconsider that text order. Judge Shipp denied the motion to reconsider. In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation, Civil Action No. 16-2738 (MAS) (D.N.J. April 20, 2024). 

In denying reconsideration, the court made clear that it was not throwing away Judge Wolfson’s prior Daubert ruling – yet. But fresh eyes, guided by new science and new Rule 702, were in order.  Indeed, Judge Wolfson’s original opinion contemplated “that her Daubert rulings may be subject to change as new scientific knowledge propagated over time.”  

The plaintiffs argued that the old Daubert rulings must be frozen in place because they were the “law of the case.”  But “interlocutory orders remain open to trial court reconsideration, and do not constitute the law of the case.”  The plaintiffs also argued that a full re-review of Rule 702 issues was unnecessary because the amendment “did not change evidentiary standards, but clarified them.”  The MDL court flipped the script, reasoning that the “fact that Rule 702 is not a change in the law but a clarification is precisely why it would be inappropriate for this Court to preclude Defendants from challenging this Court’s previous Daubert holdings.”  (Emphasis in original.) The amendment to Rule 702 clarified that the proponent of expert testimony bears the burden of showing that the expert opinions past muster. According to the MDL court, “[t]hese clarifications not only guide courts in the future, but outline a consistent and concerning misapplication of Rule 702 by courts in the past.”  Accordingly, the MDL court directed the parties to brief whether the previous Daubert opinion “demonstrably fails to adhere to Rule 702 as clarified by the 2023 amendments,” and whether “new science is shown to directly contradict or challenge Judge Wolfson’s previous findings.”  

John Adams said that “facts are stubborn things”. But courts needn’t be stubborn. Sometimes a redo is necessary.