Get a group of experienced lawyers together and it won’t be long before there is a one-upsmanship game of Crazy-Things-Judges-Have-Done. A learned and revered colleague tells the story of how he went to argue before a law and motion judge many years ago and low comedy ensued. Being a diligent sort of fellow, said learned
After eschewing our blogging duties during a very long trial—followed by short deliberations and a verdict for the good guys—we are back at it. Normally, a significant criterion in how we select a case for a post is the length of the decision—the shorter, the better for our normally busy work lives. After trial, there
“There is naked Nature, inhumanly sincere, wasting no thought on man, nibbling at the cliffy shore where gulls wheel amid the spray.”
We are presently on vacation, in the place that inspired Thoreau’s words above. The meeting of land and water, deceptive solidity sitting hard by the greatest force of caprice on the planet, has
We recently decried the Eighth Circuit’s continuing disregard of the expert gatekeeping function imposed by F.R. Evid. 702 in In re Bair Hugger Forced Air Warming Devices Products Liability Litigation, ___ F.4th ___, 2021 WL 3612753 (8th Cir. Aug. 16, 2021). Well, only four days later, the Fourth Circuit delivered a counterpoint in Sardis
We posted just the other day about widespread judicial reluctance to follow the expert admissibility standards imposed by Federal Rule of Evidence 702. We called out the Eighth Circuit as a prime example of that problem, and we discussed the committee-approved amendments to Rule 702 that are intended to reinforce the need for expert opinions
Back in May, we discussed the latest amendments proposed by the Advisory Committee on Civil Rules to Fed. R. Evid. 702. These amendments, while not changing the substance of Rule 702’s standards for admission of expert testimony – helpfulness, factual basis, reliability – are intended to reinforce other aspects of the Rule. These
This will be the last post we write for a while, as we are about to head to trial in a product liability case. The plaintiff says that a medical device has caused her to suffer pain and other injuries. What else would you expect? Her case has gotten as far as it has because
We don’t know much, but there are a few things we know for sure. One is that when a topic is complex and not within the knowledge of an ordinary lay person, you generally need an expert. A second is that determining the medical cause of a disease is almost always complex and not within
For almost as long as we’ve been blogging, we’ve complained about some courts’ flaccid and lackadaisical Daubert gatekeeping. It’s not just trial courts, but courts of appeals as well. Now it appears that the Advisory Committee on Civil Rules of the Federal Judicial Conference shares our frustrations. The Committee recently approved a couple of
Last week we brought you both the federal and state court decisions in the Incretin Litigation granting summary judgment on the grounds of preemption. But that was not the only obstacle in plaintiffs’ way. Even if the claims were not preempted, plaintiffs’ experts fell woefully short of the mark. Today we bring you part two