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 review at the class cert. stage of class action litigation remains an open question. 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). read more

Judge Richard Posner of the Seventh Circuit does not apply Daubert in rote fashion.  No, he applies Daubert in his own inimitable way.  Some notable Posner-isms on Daubert, deserving of citation in just about any case, follow. read more

In Weisgram v. Marley Co.,528 US 440 (2000), the Supreme Court warned, "Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.  It is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail."  But the "second bite" approach is more common than you think. 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). The third edition of the Manual on Scientific Evidence, however, advocates for broader admission of that testimony. 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.

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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. read more

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. read more

The Federal Judicial Center recently published the third edition of its Reference Manual on Scientific Evidence. read more

By order filed September 7, 2011, the Arizona Supreme Court adopted Daubert as expressed through the current version of Fed. R. Evid. 702.  The Supreme Court also amended Rules 701 and 703, governing lay witness testimony and the bases for expert testimony, consistent with their federal counterparts.  The order amending the rules, Supreme Court No. R-10-0035, can be found here. read more

While Madison, WI captured the nation's attention this spring during the legislature's highly-charged budget battle, a dramatic change in Wisconsin's standards for the admission of expert testimony received little notice. In late January, Governor Scott Walker signed into Law Wisconsin Act 2 (Senate Bill 1, Special Session Jan. 2011), a tort reform bill that also changed the requirements for the admissibility of expert testimony in Wisconsin state courts. Prior to the law's enactment, Wisconsin had clung to an extremely permissive pre-Daubert judicial "gatekeeping" standard for the admission of expert testimony. read more

If two cases a trend make, then the Sixth Circuit has established a welcomed on of deciding Daubert cases in ways that return to the bedrock principles articulated by the Supreme Court. On the heels of Tamraz v. Lincoln Elec. Co., the Sixth Circuit recently decided Pluck v. BP Oil Pipeline Co., 640 F.3d 671 (6th Cir. 2011), in which it affirmed the exclusion of the specific causation testimony of famed toxicology expert James Dahlgren (of Erin Brockovich infamy).

Bowman and Brooke has faced Dahlgren before. In Babin v. Ecolab Inc., Dahlgren opined that the defendant's product caused fatal birth defects in the plaintiffs' fetuses. The district court rejected Dahlgren's testimony, in part, because Dahlgren got the chemical wrong. After excluding Dahlgren's testimony, the district court granted the defendant's motion for summary judgment.

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Last month, the Supreme Court denied certiorari in the matter of Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010) (you can read John Sear's thoughts on that decision here). The plaintiff sought to overturn the Sixth Circuit's ruling that the testimony of the plaintiff's primary medical expert should have been excluded due to its speculative and hypothetical nature. The plaintiff's petition for a writ of certiorari took issue with two aspects of the Sixth Circuit's opinion: that it ran afoul of Daubert's flexible standard for admitting expert testimony, and that it usurped the district judge's "gatekeeping" function by applying a de novo standard of review. read more

In early May, the Ninth Circuit handed down its opinion in Goodman v. Staples, a case that examined when a treating physician becomes an expert witness for purposes of the written disclosure requirements of Federal Rule of Civil Procedure 26(a)(2). Rule 26(a)(2) requires parties to disclose a written report for each expert witness the party intends to call, stating the opinions they plan to express and the scientific basis for those opinions. Traditionally, treating physicians are exempt from providing the opposing parties with this written report because they aren’t "specifically retained to provide expert testimony." FED. R. CIV. P. 26(a)(2)(B). Instead, treating physicians testify on what they actually saw or did with a given patient. read more

Late last month, the Western District of Arkansas lifted the curtain on a classic bait-and-switch. In In re Prempro Products Liability Litigation[1], plaintiffs relied heavily on a study by the Women’s Health Initiative (“WHI”), to create a causal connection between Prempro use and breast cancer. Plaintiffs, and their experts, called the WHI study “the gold standard,” “[t]op of the heap in terms of the hierarchy of evidence or reliability,” and “the mother of all clinical trials.” read more

Just because a jury can add 2+2 does not mean expert testimony that the answer is 4 is too pedestrian under Daubert, according to the Eighth Circuit yesterday in WWP, Inc. v. Wounded Warriors Family Support, Inc., slip op., No. 10-1794 (8th Cir. Jan. 12, 2011). 

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Last week significant amendments to expert disclosure provisions of Fed. R. Civ. P. 26 took effect.  Time will tell whether these amendments will have a significant effect on the way attorneys work with experts and on Daubert practice and procedure in general. 

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In July 2009 in Shalaby v. Newell Rubbermaid, Inc., the Southern District of California granted the defendant’s Daubert motion to exclude the testimony of the plaintiff’s causation expert, and subsequently granted summary judgment because the plaintiff could not carry his burden, imposed by California state law, to present expert testimony on causation.  The plaintiff appealed to the Ninth Circuit, arguing that the district court erred in excluding the evidence after finding, allegedly, that the expert’s testimony satisfied California’s Frye general acceptance standard.  The Ninth Circuit would have nothing to do with that theory, and readily affirmed the district court’s ruling.  The Supreme Court refused to grant certiorari, for good reason.

 

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IMMEDIATE RELEASE

Bowman and Brooke Launches New Daubert Blog

Leading Authority in Product Liability Litigation Creates the Daubert Uncensored Blog as a Resource for Legal Professionals Nationwide

Minneapolis, MN (October 26, 2010) – Bowman and Brooke LLP, a nationally recognized law firm in product liability matters, is pleased to announce the launch of its new blog on the Daubert standard, www.daubertuncensored.com. The Daubert Uncensored blog is designed to provide corporate executives and in-house counsel with up-to-date news and commentary on relevant Daubert cases and trends across the country.
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Daubert recognizes that peer review and publication are factors courts may consider in determining the reliability and, hence, admissibility, of expert testimony:

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

But how do these considerations affect the admissibility analysis? Significantly. Experts testifying in large-scale litigation are usually leaders in their field—when the outcome depends upon compelling expert testimony, parties ordinarily retain first-string experts. Challenging the experts’ qualifications will almost always be futile, so focusing on peer review and publication will strengthen any challenge to the testimony.

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