We confess: we spend much too much time on a prominent social media platform. We post way too many pictures of the Drug and Device Little Rescue Dogs. We follow the progress of our impending addition, a Standard Poodle show puppy, currently in utero. We engage in pointless, angry, political debate. And we look at
Rule 702
Never Say Daubert Again: Amendments to Fed. R. Evid. 702 Unanimously Approved

On this gorgeous late-spring Philadelphia day, we are excited about a couple of things. The Drug and Device Law Dowager Countess is home, after an improbable recovery from a horrific fall. We just learned that the Colorado Symphony is resurrecting an (also improbably) cool tribute to John Denver we saw a few years ago, featuring…
Expert’s “Ipse Dixit” Opinion Excluded in North Carolina Femur Fracture/Compression Plate Case

When we were small – ten or so – our father worked twenty miles from our home, in the town in which we now live. The town was – and is – a few miles from the Devon Horse Show, a world-famous affair held for eleven days each spring spanning Memorial Day Weekend. For one…
Summary Judgment for Defendants in Hip Implant Case out of the District of Oregon

For the first time in two years, we write from the confines of our office in downtown Philadelphia. While we loved the full-time “work from home” regime, we have fondly re-embraced the near-forgotten view from our 30th-floor window, along with our Dancing Barney doll, our RBG action figure, and our solar-powered effigy of…
Something To Keep an Eye on
It more or less came out of nowhere, but we’re now watching what’s going on in the Martinez v. Coloplast Corp., No. 2:18-CV-220-JTM-JEM (N.D. Ind.), pelvic mesh case. Recently, we’ve come across a number of interesting, and generally favorable, Fed. R. Civ. P. 702 expert gatekeeping decisions bearing that caption, as Martinez approaches trial…
Differential Diagnosis At Its Worst In Vaccine Litigation

Recently, when we have spoken of vaccine litigation, it has mostly been about challenges to public health policies requiring vaccination against COVID-19 for healthcare workers, students at public universities, etc. We have been pleased to report that these challenges have been failing without lingering too long at the trial court level, like here, here…
You Gotta Have Methodology: Expert’s Ipse Dixit Opinion Excluded in C.D. Cal. Hernia Mesh Case

We are headed to New York on Monday for the A.C.I. Drug and Medical Device Conference. We love this conference – we always see so many old friends and former colleagues – and we are delighted that it is back “in person” this year. We are speaking on a panel about the proposed amendments to…
Exclusion of Expert Causation Evidence Sounds Familiar

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…
Counterpoint to Bair Hugger Decision
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 …
Eight Circuit Abdicates Gatekeeper Role For Expert Opinions

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…