”He that violates his oath profanes the divinity of faith itself.” — Cicero.
It might seem unlikely that, long ago, we noticed the above maxim inscribed on the south side of the Los Angeles City Hall while walking to our first jury trial (almost as unlikely as the fact that we were walking in L.A.). It
Today, the summer solstice, is one of our favorite days of the year. It’s the first official day of summer, and readers in the U.S. will have anywhere from 14-16 hours of daylight (the farther north, the more daylight). We hope you get to enjoy some of the summer sunshine today—or at least this weekend. As the late, great, Brian Wilson put it, “Sunshine, can’t get enough sunshine, I’m following the sunshine, everywhere I go.”Continue Reading Eighth Circuit Affirms Rule 702 Exclusion of Plaintiff Design Defect Expert
We’ve written a lot about the recent amendment to Federal Rule of Evidence 702. As noted here, the amendment (1) mandates that the court must determine the admissibility of evidence before presenting it to the jury, (2) integrates the preponderance of evidence standard—requiring the proponent of expert testimony to prove that it is more likely than not that all of Rule 702’s requirements are met, and (3) reinforces that each expert opinion must reliably apply the expert’s principles and methods to the facts of the case. These changes were driven by the fact that “many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.” Fed. R. Evid. 702 Advisory Committee’s Note to 2023 Amendment. The changes to Rule 702 are intended to prevent such erroneous “weight vs. admissibility” findings. We’re also fans of the Don’t Say Daubert movement that reminds lawyers that Rule 702 itself – not the Daubert decision – defines the applicable standard for the admission of expert testimony. Continue Reading Rule 702 Gatekeeping by En Banc Panel of the Federal Circuit
Today’s post is a little different, in that it involves not an order, but a Motion for Relief from Judgment and to File an Amended Complaint (the “Motion”) filed by Pecos River Talc (“Plaintiff”) against Dr. Jacqueline Miriam Moline (“Dr. Moline”). Pecos River Talc LLC v. Moline, 3:23-cv-02990, Doc. No. 47-1 (D.N.J. Apr. 29, 2025). Dr. Moline is a serial expert on behalf of plaintiffs in the cosmetic talcum powder litigation, and she was the lead author on a paper entitled “Mesothelioma Associated with the Use of Cosmetic Talc” (the “Article”). The article was faked, as we originally discussed, here, in our “Stupid Expert Tricks Redux” post. That’s even clearer now, as the Motion we discuss here identifies bombshell, newly discovered evidence that undercuts the foundation of the Article and Dr. Moline’s opinions. This is a true “smoking gun.”Continue Reading The Perils of Moline, Part II – Persistence Prevails in Re-Identifying Plaintiffs in Cosmetic Talc Article
For several years now, the Valsartan MDL has been something of a poster child for the problems with modern serial product liability litigation. It started with questionable data coming out of a questionable lab, leading to publicity and regulatory actions that outpaced reliable evidence of increased risk from an alleged carcinogenic contamination. It snowballed
As anyone who has read more than a paragraph of what we’ve written knows, this is a forthrightly pro-defense Blog. It is not our practice to criticize the strategy or tactics of defendants or their counsel. It’s not that what defendants do is always right, but to us its almost always understandable.
We were all
From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products. Innovator liability, first described in Conte back in 2008, is a good example of a bad idea. Its offspring, the so-called duty to innovate
We’ve written many blogposts kvetching about rulings in the Bair Hugger Multidistrict Litigation (MDL) out in Minneapolis. See here, for example. The rulings on expert admissibility in the Bair Hugger MDL were particularly weak. But surely the rulings would be much better in our home district of the Eastern District of Pennsylvania, right? And
This post is from the non-Butler Snow side of the blog.
When you represent medical device manufacturers in product liability litigation, you will deal with allegations that a device broke or failed because of what it was made from, and you will encounter both experts and “experts” (scare quotes intended) in materials science.
Materials science
Defendant in Beavan v. Allergan U.S.A., Inc., 2014 N.J. Super. Unpub. LEXIS 2898 (N.J. App. Nov. 21, 2024) made two solid arguments for summary judgment – preemption based on the FDCA’s recall regulations and plaintiff’s lack of admissible expert testimony. The trial court rejected both. The appellate court, however, saw the merit in the