It is not uncommon that terms are used without knowledge of their origin and that the origin is instructive about the meaning or proper application of the term. We offer two examples. Many lawyers who at least dabble in product liability litigation have heard the term “Bradford Hill criteria.” Was it named after two different
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 appliedthe 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
We learned about this 148-page decision late this afternoon. It’s very good from our defense-minded perspective, and one of the first, if not the first, expert evaluations to take place under newly amended Fed. R. Evid. 702. More to come, likely including a revision of our upcoming 2023 top ten blogpost, but we wanted our
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
We think Spring cleaning is all well and good, but our most frantic clean-up efforts take place at year end. Scrolling through our inbox in December, we always find cases from earlier in the year that somehow got lost. None of your intrepid DDL bloggers selected these cases for posting, perhaps because the cases were
In prescription medical product liability litigation, both sides invest a lot in their expert witnesses. In addition to spending time, money, and effort, we work out our legal theories with our experts, and share with them our views of the facts, both good facts and bad facts. Thus, when the other side inveigles one of ours to switch sides – usually with the promise of a lot more money for a lot more testimony – the result can be a lot of collateral litigation.
We’ve blogged a couple of times before about turncoat experts, so the recent decision in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our interest. Then we discovered that Hawkins was only the most recent of several decisions barring testimony by the same turncoat expert – one Stephen Li – due to his prior employment with the same defendant concerning product liability litigation involving the same product (and other similar products, as well). See also King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); but see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023). We note that a couple of other decisions (both precluding Dr. Li from testifying) apparently exist, but because they are either oral or under seal, we have not seen and do not discuss them. The plaintiffs in those cases were named Sheehy and England.Continue Reading Wrecked on a Li Shore – The Saga of a Turncoat Expert
Listen to your gut. Follow your instincts. Trust your intuition. Great advice in many situations. Like deciding whether to buy skinny jeans or whether to buy your forever home. Or, when things seem “off” or feel “dangerous.” Or, when your body is trying to tell you something about your health. These are all times to
We’ve discussed our Drug and Device Law Blog elder care duties before and how it has educated us about health issues faced by the senior population. Shingles is one health risk that increases as you get older. It is often described as a painful rash, but “painful rash” doesn’t really capture how bad shingles can
If a court tells you your only non-preempted claim is one based on a theory that your labeling does not comply with the Federal Food, Drug & Cosmetic Act (“FDCA”), it’s probably a good idea for your expert so opine. Opting instead for expert testimony based on a consumer’s perspective is risky and likely problematic.
Here is another guest post by Reed Smith‘s Kevin Hara examining the exclusion of a couple of slapdash expert witnesses, and the resultant grant of summary judgment. Since it is summer time, it is only fitting that he does so using baseball analogies. As always, our guest posters deserve 100% of the credit (and