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
Evidence
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…
Federal Court: No Evidence that Allergan’s Textured Breast Implants Had a Higher Incidence of Cancer Than Other Manufacturers’ Implants
This post is from the non-Reed Smith side of the blog.
We don’t usually report on securities-law cases, but today we do. That is because the well-reasoned decision in question, In re Allergan PLC Securities Litigation, 2022 WL 17584155 (S.D.N.Y. 2022), has major implications for the parallel Textured Breast Implant MDL now pending in…
Mixson Somewhat Mixed, But We’ll Take It
The defendants in Mixson v. C.R. Bard, Inc., ___ F. Supp.3d ___, (N.D. Fla. Sept. 16, 2022) (“Mixson I”), and Mixson v. C.R. Bard, Inc., 2022 WL 7581737 (N.D. Fla. Sept. 23, 2022) (“Mixson II”), by no means won everything, but what they won was more important than what they didn’t, so we’re OK with the results.Continue Reading Mixson Somewhat Mixed, But We’ll Take It
Nicholson – Not So Harmless
For a decision that affirmed not just a verdict, but an award of punitive damages, against a device manufacturer, Nicholson v. Biomet, Inc., 46 F.4th 757 (8th Cir. 2022), is not as bad as it could have been. That’s because most of the decision was about evidentiary rulings that the court found to be “harmless” error, and one might even have some benefit for our clients in the long run.
Still, Nicholson was pretty darn depressing.Continue Reading Nicholson – Not So Harmless
Plaintiff Loses Motion for New Trial in N.D. Illinois Hernia Mesh Case
This post is from the non-Dechert side of the blog.
Before we get to today’s case, we fondly tip our hat to the Westminster Kennel Club Dog Show, held (and televised) last week. Regular readers know how much we love this annual event and also may recall that our “heart breed” is the Standard Poodle. …
Subsequent Remedial Measures, Rule 407, and . . . Causation?
Federal Rule of Evidence 407, dealing with the inadmissibility of subsequent remedial measures, isn’t all that complicated – as Federal Rules go. It’s only 73 words long:
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- negligence;
…
California Curtails Overuse of Discovery Depositions
Counsel defending depositions have a decision to make – whether, after opponent’s the direct examination of the witness is complete, whether to “cross-examine” a witness aligned with our own client. Usually, the answer will be “no,” because such questioning usually offers no advantages and could well undermine the witness (who may lose focus under friendly…
Out of Africano – Hernia Mesh Win Produces More Good Law
This post is from the non-Dechert side of the blog.
We previously discussed some favorable motion in limine rulings in the hernia (not pelvic) mesh case, Africano v. Atrium Medical Corp., 2021 WL 4477867 (N.D. Ill. Sept. 30, 2021). They were a welcome change from the appalling MDL choice of law rulings against…