Photo of Bexis

Alabama has always had some rather unusual jurisprudence.  In product liability, the Yellowhammer State doesn’t have negligence or strict liability, but rather a hybrid called the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”).  See Casrell v. Altec Industries, Inc., 335 So.2d 128, 132-33 (Ala. 1976).  More recently, the Alabama Supreme Court twice adopted the extreme pro-plaintiff innovator liability theory in Wyeth, Inc. v. Weeks, 2013 WL 135753 (Ala. Jan. 11, 2013), withdrawn and superseded, Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014).  On that occasion, the Alabama legislature overruled the court.  See Ala. C. §6-5-530.  More recently than that, the same court authorized plaintiffs to perjure themselves and claim that they would have ignored their doctors’ recommendations in order to claim causation in learned intermediary cases.  Blackburn v. Shire U.S., Inc., ___ So.3d ___, 2022 WL 4588887, at *11-12 (Ala. Sept. 30, 2022).  Most recently, and most notoriously, the Alabama Supreme Court declared frozen embryos to be people – at least for the purposes of tort law.  LePage v. Center for Reproductive Medicine, P.C., ___ So.3d ___, 2024 WL 656591, at *4 (Ala. Feb. 16, 2024).  Who knows? By 2030, Alabama might attempt to count blastocysts as “people” for purposes of the census – although not for tort purposes, since the legislature appears to have stepped in again.

We read another bizarre – if not nearly as notorious – Alabama law decision recently.  Ahmed v. Johnson & Johnson Healthcare Systems, Inc., 2024 WL 693078 (S.D. Ala. Feb. 20, 2024), reconsideration & certification denied, 2024 WL 947447 (S.D. Ala. March 5, 2024).  What’s bizarre about it?  It allowed a plaintiff in a medical device product liability case (hip implant) get to the jury without any medical expert testimony on causation.  Id. at *16 (entitled “Summary Judgment is not Required on All of Plaintiff’s Claims Even Though She Offers No Expert Evidence Regarding Medical Causation”).Continue Reading Another Weird Alabama Decision

Photo of Bexis

In our recent post on the Onglyza affirmance, we mentioned that the Sixth Circuit rejected the plaintiffs’ attempt at a do-over after the expert they chose to ride into battle with was unhorsed by Rule 702.  The MDL plaintiffs flunked both “good cause” grounds for modifying the existing expert scheduling orders.  First, plaintiffs were not

Photo of Steven Boranian

The MDL and state court proceedings involving saxagliptin-based diabetes drugs (such as Onglyza and Kombiglyze) strike us as the mass tort that never should have been.  These proceedings initially followed a familiar model—a publication identified a signal of a risk (albeit an exceptionally weak signal), and plaintiffs’ lawyers took their cue to collect their inventories

Photo of Bexis

In our recent post describing the best prescription medical product liability litigation decisions of 2023, no fewer than three of the opinions we discussed:  #4 In re Acetaminophen-ASD-ADHD Products Liability Litigation, ___ F. Supp.3d ___, 2023 WL 8711617 (S.D.N.Y. Dec. 18, 2023), #5 Onglyza Products Cases, 307 Cal. Rptr.3d 480 (Cal. App. 2023)

Photo of Bexis

As readers of the Blog undoubtedly know, the amendments toughening up Fed. R. Evid. 702 became effective on December 1, 2023.  Here are the precise changes again:

Rule 702. Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

New language in italics; deleted language struck out.Continue Reading New Fed. R. Evid. 702 – Use This Stuff To Update Your Briefs