As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability. That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their
Evidence
Lessons Learned From The Latest Zostavax Expert Order
We had the pleasure of speaking on a panel at ACI last week, including discussion of the terrific order from the Zantac MDL excluding all the plaintiffs’ general causation experts. That order essentially did away with an entire MDL and came in fourth on our list of best decisions of 2022 . Our thoroughly enjoyable…
Perfect Defense §510(k) Compliance Win in New Jersey May Be Pyrrhic
We’ve finished reading through the New Jersey Supreme Court’s unanimous decision in Hrymoc v. Ethicon, Inc., ___ A.3d ___, 2023 WL 4714042 (N.J. July 25, 2023) (which should really be captioned “McGinnis” because plaintiff Hrymoc settled, see n.1). The good – really good – news is that an abusively obtained nuclear ($68 million+) verdict goes bye-bye. That alone is grounds for celebration.Continue Reading Perfect Defense §510(k) Compliance Win in New Jersey May Be Pyrrhic
Guest Post – More on Expert Gatekeeping in West Virginia
Shortly after we recently posted our 50-state survey of state law concerning expert “gatekeeping,” we received a thoughtful email from friend-of-the-Blog Tom Hurney, of Jackson Kelly, informing us that there were additional gatekeeping-related issues in West Virginia that our search – limited to cases using the word “gatekeeping” – did not reflect. His…
Another Decision Admitting Evidence of FDA §510(k) Clearance
Kelley v. C.R. Bard, Inc., 2023 WL 2565853 (N.D. Ga. March 17, 2023), reconsideration denied, 2023 WL 3032063 (N.D. Ga. April 21, 2023), became the latest decision to follow what used to be (before the Pelvic Mesh litigation used the law in this area as a settlement tool) the overwhelming majority rule, that FDA decisions to allow products to be marketed – including §510(k) clearance – were routinely admissible.Continue Reading Another Decision Admitting Evidence of FDA §510(k) Clearance
50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
A little while ago, Bexis attended a Lawyers for Civil Justice semi-annual meeting, at which he received that organization’s “Outstanding Contributor Award” (in full disclosure, so did a half dozen other members). With the soon-to-be-adopted amendments to Fed. R. Evid. 702 having now been approved by the Supreme Court (with only the unlikely step of a congressional veto remaining), the question was what happens next.
These amendments expressly enshrine the expert “gatekeeper” function in the text of Rule 702. The next step is whether they can be duplicated – or paralleled − in state rules of evidence. We think that they can, and for a state (like Pennsylvania and a number of others) that still follows the “Frye” standard looking to the “general acceptance” of expert testimony as the touchstone to admissibility, a Rule 702 state-law equivalent might look something like this:Continue Reading 50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
Pennsylvania Law, Federal Rules, and FDA Standards
Starting with our comprehensive post lambasting Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448 (W.D. Pa. 2019), for ignoring 75 years of hitherto unbroken Pennsylvania precedent and allowing a “strict liability” design defect claim against an FDA-regulated prescription medical product, we have both chronicled and opposed the other side’s attempt to infiltrate strict liability into Pennsylvania litigation involving such products (primarily medical devices). That attempt disregards seven Pennsylvania Supreme Court decisions between 1948 (Henderson) and 2014 (Lance), as well as the Pennsylvania Superior Court (an intermediate appellate court in Pennsylvania) (Creazzo), all rejecting application of strict liability principles to prescription medical products. For the gory details, see the prior post.Continue Reading Pennsylvania Law, Federal Rules, and FDA Standards
Don’t Wait – The Rule 702 Amendments Can Be Used Now
We’ve chronicled the path of the 2023 amendments to Fed. R. Evid. 702 pretty much from the beginning. As we’ve discussed, those amendments reiterate what had always been (at least since 2000) the Rule’s requirements for analyzing the admissibility of expert witness testimony. But courts had been ignoring critical elements – such as the burden of proof – that had been in comments rather than the black letter of Rule 702 itself. So, as of December 2023, Rule 702 will provide that the proponent of expert testimony must meet all of the Rule’s substantive standards for admissibility by a preponderance of the evidence, and in particular that an adequate basis for such testimony is a prerequisite to admissibility. Continue Reading Don’t Wait – The Rule 702 Amendments Can Be Used Now
S.D. Ohio Rejects Discovery Re Other Products and Corporate Parent
Evidence of other similar acts can be devastatingly effective. It’s easier for us to believe somebody did something wrong on a specific occasion if we hear they have a prior history of doing the same thing. Federal Rule of Evidence 404(b) addresses this issue, and it is one that comes up in both civil and…
Irrelevant and Prejudicial Long-Ago Evidence Excluded in IVC Filter Case
We write in a state of annoyed frustration (so different from our normal sunshiny sweetness – lol). We have a bat mitzvah to attend next weekend – dear friend’s daughter. And we knew exactly what to wear to the evening festivities: a great dress with a skirt is slightly poufed, because it has a bit…