Product Liability & Mass Torts Digest

A series of recent opinions by Judge Denise Cote of the U.S. District Court for the Southern District of New York exemplifies the effective judicial gatekeeping contemplated by Federal Rule of Evidence 702 and Daubert v. Merrel Dow Pharmaceuticals. In In re Acetaminophen – ASD-ADHD Products Liability Litigation, Judge Cote repeatedly excluded the plaintiffs’ general causation experts even though each was “eminently qualified” because they did not reliably apply their methodologies. 

The Southern District of Illinois's decision in In re Paraquat Products Liability Litigation underscores the critical importance of rigorous, transparent, and repeatable expert methodologies in court. The exclusion of plaintiffs' causation expert due to methodological flaws, resulting in a summary judgment for the defendants, highlights the escalating judicial scrutiny on expert reliability following the recent amendments to Rule 702.

For years, federal practitioners have referred to that standard as the “Daubert” standard, for the Supreme Court’s seminal decision in Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert made clear that judges must act as gatekeepers when it comes to expert testimony and articulated various factors that they are to consider when deciding whether particular expert testimony is admissible. Defendants generally like Daubert because it effectively raised the bar for expert testimony, making it harder for plaintiffs to rely on junk science to make their case.