[DISCLOSURE: Although I do not represent the defendant hospital in Jabbi v. Adventist Healthcare, Inc. No. 2071 (Sept. Term, 2023) (March 5, 2025) (reported), I often represent Maryland hospitals seeking to exclude causation...more
In a toxic tort case, plaintiffs must establish general causation. If a substance is incapable of causing the type of injury plaintiff claims, then it certainly didn’t cause theirs. Under Texas law, toxic tort plaintiffs must...more
As Nobel laureate Richard Feynman once observed, “[w]isdom is knowing when to ask the right questions.” A related proposition is that wise jurists know how to identify and focus on the right questions. Motion practice can...more
United States District Court for the Northern District of California - In this wrongful death action, it is claimed that Decedent William Ankiel Jr. had exposure to asbestos-containing equipment during his service aboard a...more
Product liability claims require proof of causation. To be sure, they also require proof of some defect in the product and/or its accompanying warnings and product literature. But defect and causation are separate elements...more
The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change. As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc.,...more
Discovery deadlines exist for a reason. Although there are exceptions to every rule – and often a rule dictating how to handle such exceptions – litigants in federal court are expected to show their evidentiary cards in a...more
A central tenet of toxicology is that “the dose makes the poison.” Every chemical is toxic if enough of it is consumed, and every chemical has some dose – even if miniscule – at which it poses no significant risk. A chemical...more
The question of whether a particular application of herbicide on one property caused damage on another’s property requires expert testimony. When a plaintiff claims that herbicide drift caused reduced crop yields, it is not...more
On opening an opinion, lawyers habitually roll their eyes when they see a table of contents. Even more so when they learn the opinion is over 300 pages. The MDL order granting defense motions to exclude experts and for...more
It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible...more
Early last year, the In re: Incretin-Based Therapies MDL court held that the plaintiffs’ warnings claims were preempted, excluded plaintiffs’ general causation experts, and granted summary judgment to all defendants on dual...more
For over two decades, dating back to Daubert and the ensuing amendments to Rule 702, federal district courts have been charged to act “as gatekeepers to exclude unreliable expert testimony.” Fed. R. Evid. 702 advisory...more
The Eleventh Circuit recently reinstated a case alleging a surgical tool caused internal burns during a hysterectomy surgery, holding that the district court erred in disqualifying an expert on the basis that he had never...more
The Aftermath of Marsh - When the Marsh case was decided in 2007 its broad interpretation of the “pure opinion exception” and narrow vision of the role of Frye took Florida expert evidence admissibility law well out of the...more