By Thomas P. Branigan, Bowman and Brooke, LLP
Whether a district court must apply a full “Daubert” review of expert testimony or opinions offered at the class certification stage continues to be a point of question and debate in the wake of Wal-Mart Stores Inc. v. Dukes et al., 131 S.Ct. 2541 (2011). In Dukes, The court suggested in dicta that Daubert likely applies to expert evidence used in the class-cert. process. “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so … ” [emphasis added]. But the scope of Daubert [Read More]
Yesterday the California Supreme Court chipped away at its version of the general acceptance test for admissibility of expert testimony in deciding Sargon Enters., Inc. v. Univ. of S. Cal., 2012 WL 5897314 (Cal. Nov. 26, 2012).
Time and time again, the California Supreme Court has emphasized that it is not adopting the Daubert test, all the while quoting, citing, and relying upon Daubert precedent in defining the contours of California’s test. In my view, the court ought to simply scrap the general acceptance test outright and embrace the Daubert principles it has relied upon for [Read More]
Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is known for his intellect, legal and economics scholarship, and often biting wit. After all, who can forget his opinion in Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011), in which he wrote:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially [Read More]
“If at first you don’t succeed, try try again.” While this maxim may lead to success on the playground, the Seventh Circuit recently reminded litigants that it typically won’t lead to success in the courtroom. See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887 (7th Cir. 2011).
Plaintiff Bielskis was injured when the scaffolding he was working on collapsed. He brought suit against Louisville Ladder for design and manufacturing defects, among other claims. Bielskis’s expert concluded that the scaffolding collapsed because of a brittle fracture to a roller [Read More]
Litigants have long been on notice that the testimony of scientific experts which relies too heavily on animal testing is excludable. The most well-known example of this is General Elec. Co. v. Joiner, 522 U.S. 136 (1997). In Joiner, the Supreme Court held it was not an abuse of discretion for the trial court to exclude expert testimony which relied in part on animal testing. The infant mice in the study had been given “massive doses of PCB’s” which were injected directly into their stomachs, whereas Joiner was an adult human being whose alleged PCB contact was at a much [Read More]
PriceWaterhouse Coppers (PwC) recently released a new study, which takes an in-depth look at Daubert challenges to financial experts. The report analyzes post-Kumho Tire challenges to financial expert witnesses under the Daubert standard. The study identifies a number of observable trends in the frequency and outcome of these challenges based on federal and state court opinions issued over the past 11 years.
“Daubert Challenges to Financial Experts: An 11-year study of trends and outcomes” highlights nine main trends over the past 11 years.
1. Although the number of Daubert challenges to [Read More]
Please join me on Wednesday, January 12, in Waukesha, Wisconsin, for “Daubert Comes to Wisconsin,” a one-day seminar presented by Wisconsin Civil Justice Council, Inc. I will be speaking alongside a distinguished group of practitioners and the Honorable Rudolph Randa, Judge of the U.S. District Court for the Eastern District of Wisconsin. See the brochure here and the agenda here. It should be a very interesting—and informative—day.
Kapps v. Biosense Webster, Inc., et al., No. 09-cv-1039 PJS JSM (D. Minn. Sept. 27, 2011) involves a medical device, manufactured and sold by Biosense, cleared for “single use only,” but routinely “remanufactured” for reuse by an unrelated company through a process cleared by FDA on a “substantially equivalent” basis. Sidestepping for the moment several rich questions of regulatory compliance and “product identification,” a couple of discrete components of D. Minn.’s September 27th Order deserve special highlight: the exclusion of an expert opinion and the facile dismantling of plaintiff’s attempt to dress up an FDCA violation as negligence per se.
Facts. After the cardiac [Read More]
The Federal Judicial Center has published the third edition of its Reference Manual on Scientific Evidence, with an introduction by Supreme Court Justice Stephen Breyer and several new reference guides, including guides on forensic identification, mental health, and neuroscience. The Manual is an indispensable tool for practitioners to use in attacking or defending the admissibility of expert testimony in a variety of disciplines. A full copy of the Manual (along with the first and second editions) can be found here.
The Arizona Supreme Court amended the Arizona Rules of Evidence earlier this month to adopt the principles underlying Daubert and the current version of Fed. R. Evid. 702:
The 2012 amendment of Rule 702 adopts Federal Rule of Evidence 702, as restyled. The amendment recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue. The amendment is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge [Read More]