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
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Posted by Ike Messmore (Guest Blogger) |
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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
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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
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From the same court (though different panel) that gave us Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419 (6th Cir. 2009)—reversing the Western District of Michigan’s summary judgment for a pest control company after concluding that the plaintiffs did not need expert testimony to get to a jury on their claims that they suffered a complex constellation of symptoms like black tongues and brain fog as a result of exposure to two squirts of benign pesticide—comes one of the most insightful analyses of the admissibility of causation testimony in recent years. In Tamraz v. Lincoln Elec. Co., Nos. 08-4015/4016, Slip op. (6th Cir. Sept. 8, 2010 ), the court, in a 2-1 decision, overturned a $20 million verdict for the plaintiff because the district court erred in admitting the testimony of the plaintiff’s principal expert that the plaintiff suffered a form of Parkinson’s Disease as a result of exposure to manganese in the defendants’ products.
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On August 12, in the case of Kilpatrick v. Breg, Inc., the Eleventh Circuit affirmed in a published opinion the rulings of Judge K. Michael Moore of the United States District Court for the Southern District of Florida excluding the general and specific causation testimony of plaintiff expert Gary Poehling, M.D., and granting summary judgment for pain pump manufacturer Breg, Inc. I argued the case in May.
Kilpatrick stands alone as the first appellate decision to reject the causation theories of plaintiffs in pain pump litigation waged against infusion pump and anesthetic manufacturers by a self-described “consortium” of plaintiffs’ lawyers across the country; several hundred cases are currently pending. By rejecting unscientific, unreliable causation theories, Kilpatrick deals a serious blow to the consortium’s industry-wide attack grounded in speculative and inconclusive science suggesting an unconfirmed association between continuous infusion of local anesthetic by pain pump and the development of post-arthroscopic glenohumeral chondrolysis, a condition marked by the deterioration of cartilage in the shoulder joint following arthroscopic surgery. read more
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