Daubert Standards

News & Analysis as of

Daubert Exclusion for Double Counting

Order Granting in Part Daubert Motion, Finjan, Inc. v. Sophos, Inc., Case No. 14-cv-1197 (Judge William Orrick) - Yogi Berra once said that “baseball is 90% mental; the other half is physical.” The humor in this...more

Florida Appellate Court Applies State Daubert Test Retroactively to Exclude Expert and Dismiss Case

In his poem “To Summer,” Blake begs the season to “curb thy fierce steeds, allay the heat/That flames from their large nostrils!” That is typical Blake; he takes our favorite time of the year and turns it into a satanic...more

A Symbolic Victory? FDA's Final Rule On Stand-Alone Symbols In Medical Device Labeling Raises Important Litigation Risk Questions

FDA this week released a final rule that will undoubtedly raise new litigation questions for medical device manufacturers in the context of product liability claims. The final rule, for the first time, permits medical device...more

First Circuit: Plaintiffs’ Specific Causation Expert Fails to Pass Muster in Benzene Case

Last week, we (along with many of you, we assume) attended the DRI Drug and Medical Device conference in Chicago. We re-connected with friends dating to the beginning of our lengthy career (literally – ran into the head of...more

Representative Evidence May Or May Not Be Sufficient

A recent U.S. Supreme Court case holding that representative evidence can be used in class/collective actions to the same extent that it could be used in an individual action may not have the broad application hoped for by...more

Defying Expectations, Supreme Court’s Tyson Decision Avoids “Broad and Categorical Rules” on Use of Statistical Evidence in Class...

Expectations were high in the class action world for the Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo. At first blush, however, Tyson seems to be neither the test case nor the blockbuster decision that...more

Testing for Junk Science in the Discovery Process

What is the “Daubert” standard supposed to test? Daubert v Merrill Dow Pharmaceuticals, 509 US 579 (1993). Daubert and the Federal Rule of Evidence 702 are intended to allow the court to act as a gatekeeper in keeping...more

Supreme Court Affirms Class Certification and Judgment Predicated upon "Representative Evidence"

On March 22, 2016, the Supreme Court issued a decision permitting class plaintiffs to rely on "representative" or "sample" evidence to satisfy the prerequisites to class certification and certain elements of their claims. ...more

The Supreme Court Charts a Narrow Course in the Use of Statistical Evidence at Class Certification

The United States Supreme Court recently ruled in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, --- S. Ct. ---, 2016 WL 1092414 (U.S. Mar. 22, 2016), as to when a plaintiff may use statistical sampling in seeking to certify a...more

Supreme Court Affirms Class Certification and Judgment Predicated upon "Representative Evidence"

On March 22, 2016, the Supreme Court issued a decision permitting class plaintiffs to rely on "representative" or "sample" evidence to satisfy the prerequisites to class certification and certain elements of their claims. ...more

Pork Processing Plant Employees Can Keep the Bacon: Supreme Court Affirms Jury Award and Permits Proof of Wage and Hour Class...

While the Supreme Court in Tyson Foods, Inc. v. Bouaphakeo dashed employers’ hopes that the Court would broadly preclude statistical evidence and severely limit wage and hour class actions in a fashion similar to its...more

Tyson Foods, Inc. v. Bouaphakeo: The Supreme Court Declines to Rule Out Representative Evidence in Class Actions

In Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. __ (2016), the Supreme Court considered whether a case could proceed as a class action under Rule 23(b)(3) when the plaintiffs relied upon statistical, representative evidence to...more

Defendants should embrace, rather than fear, Tyson Foods

As my colleague, Katherine Kayatta, alluded to in her detailed post earlier this week, much of the initial commentary on the Supreme Court’s Tyson Foods decision has been to the effect that the decision may crack open the...more

Class Averaging

The Supreme Court ruled today that Plaintiffs’ use of average donning and doffing times was proper and sufficient to affirm a $5.8 million judgment against Tyson Foods. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 (Mar. 22,...more

Missouri: Taking a Step Toward Digging Out of the "Judicial Hellhole"?

Missouri’s Legislature is deciding whether to change its current standard governing the admissibility of expert witness testimony to the Daubert standard. The bill to make this change has passed the Senate and is now being...more

New York Court of Appeals Rejects Litigation Science under Frye Standard

Put quotes around the phrase “litigation science” and Google it. Go ahead, we’ll wait. . . . . What did you find? Not good, right. You found a lot. Too much. The first Google page alone shows how controversial this...more

Res Ipsa Loquitur, Ipse Dixit, And A Non-Retained Expert

As a defendant manufacturer in a drug or device product liability case, it is one of the last things you want to see. The key treating physician concludes that your product was to blame for the plaintiff’s problems and...more

Plaintiffs’ Experts Out in Dietary Supplement Death Case

Recently, some of the more footloose of the Drug and Device Law Relatives auditioned for the game show Family Feud. The first step was a mock “round” of the game, played against another auditioning family. All were...more

Challenging Psychological Tests in Litigation – The Value and Limitations of The MCMI-III™

The Millon Clinical Multiaxial Inventory III (“MCMI-III”™) is a popular assessment tool used by clinical psychologists, that has been in use since approximately 1977. This instrument has been the subject of many articles and...more

Expert Patent Valuation Opinion Based on Forward Citation Analysis Survives Daubert Challenge

Plaintiff Better Mouse Company's ("Better Mouse") filed a motion to strike portions of the rebuttal expert report and exclude testimony of Richard Eichmann. Better Mouse asserted that the district court should exclude Mr....more

“May the Odds Be Ever in Your Favor” – The Ten Best Prescription Drug/Medical Device Decisions of 2015

The iconic Hunger Games line, “may the odds be ever in your favor” pretty much sums up how we feel about our top ten best decisions of 2015. These are results that put the “happy” in Happy New Year – which we wish all our...more

Bookends – Prof. Jewell’s Opinions Also Excluded in Lipitor MDL, and More

April might be the cruelest month according to T.S. Eliot, but the last month hasn’t been very kind to plaintiffs’ expert Nicholas Jewell, Ph.D. As we posted recently, at the beginning of December, Prof. Jewell was booted...more

Another Zoloft Daubert Win: How Many Strikes Before The Plaintiffs Are Out?

Everybody knows that it is three strikes and you are out in baseball. (Bexis and Ken Burns could discuss the history of baseball’s rules on balls and strikes in the nineteenth century, but we will stick with the public...more

Objections To Magistrate’s Order Regarding Daubert And Anticipation Are Reviewed

W.L. Gore & Associates, Inc. v. C.R. Bard, Inc., et al., C.A. No. 11-515 -LPS, November 24, 2015. Stark, C.J. The court rules on objections to Magistrate’s rulings on a Daubert motion and a Report and Recommendation on...more

The Florida Legislature’s Need to Control – the Daubert Rule

This is in response to the article in the Daily Business Review, Opponents of New Expert Witness Rule Rely on Outdated Authority [COMMENTARY] by Christopher Johnson, Daily Business Review. This recent article claims that...more

83 Results
|
View per page
Page: of 4
JD Supra Readers' Choice 2016 Awards

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
×