Judge Abused Discretion in Striking Expert Evidence, NJ Appellate Court Finds
Reverses 2016 Summary Judgment in Ovarian Cancer Cases
On August 5, a three judge panel from the New Jersey state appeals court reversed a 2016 summary judgment granted in favor of defendants, talc manufacturer Johnson & Johnson and talc miner Imerys Talc America in cases brought by two women who allege J&J’s talc products caused their ovarian cancer.
In its opinion, the panel ruled that Atlantic County Superior Court Judge Nelson C. Johnson abused his discretion by serving as the fact finder in deciding the credibility of the plaintiffs’ experts’ opinions instead of merely assessing whether the doctors’ opinions were based on sound scientific methodology. The trial judge acknowledged that the experts, Dr. Graham Colditz and Dr. Daniel Cramer, were qualified but opined that their scientific studies and evidence were narrow and shallow, showing a preference for cohort studies and their larger sample sizes over the case studies relied on by the experts. In overturning the ruling by the trial court and discussing the studies cited by Colditz and Cramer, the appeals court stated that those studies satisfied the criteria outlined in the Federal Judicial Center’s Reference Manual on Scientific Evidence and also noted that size and the types of study are not the sole determinants of reliability.
As a result of the plaintiffs’ experts’ testimony being reinstated, a dispute over a material fact exists in the matter and the case will proceed.
The two cases, brought by plaintiffs Brandi Carl and Diana Balderrama, were the first two to be tried from the group of 100 lawsuits included in New Jersey’s multi-county litigation.
Beyond Predominance: Alternative Arguments Against Class Certification
Beyond Predominance: Alternative Arguments Against Class Certification Leverage the Latest Court Decisions to Challenge Class Membership and Defeat Certification. Class certification proceedings often focus on whether common issues predominate over individual issues. Recent decisions, however, highlight the importance of raising arguments beyond those afforded by Rule 23(b)(3)--including arguments arising from other subsections of Rule 23 and those originating in the case law. Join our panel as they discuss recent developments concerning several such avenues for defending against certification, including: Ascertainability. Ascertainability demands that class action plaintiffs present a mechanism for identifying prospective class members before the class is certified. Panelists will explain the federal circuit split on ascertainability issues, discuss recent decisions denying class certification on this ground, and provide insight regarding which arguments seem to be well received in different jurisdictions. Typicality and adequacy. Rule 23(a)'s typicality and adequacy requirements prevent certification if the claims of the named plaintiff(s) are subject to unique defenses not applicable to the class as a whole. Panelists will discuss recent case law in which class action defendants have used these requirements to their advantage and provide litigation strategies for setting up such arguments on class certification. Article III standing. Our panel will discuss the different approaches to applying Ramirez v. TransUnion L.L.C. and Spokeo v. Robins and consider the avenues available to challenge class certification on Article III grounds and to leverage standing issues in litigating the other requirements of Rule 23. Personal jurisdiction. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS) left open the question of whether absent class members must establish personal jurisdiction in class actions. The panel will discuss the different approaches being used to fill that gap, recent developments, and the potential effect of BMS on class litigation. Nina Rose Attorney Skadden Arps Slate Meagher & Flom Jordan Schwartz Counsel Skadden Arps Slate Meagher & Flom Geoffrey M. Wyatt Partner Skadden Arps Slate Meagher & Flom CLE On-Demand Recorded 5/18/2023 This Strafford production has been specially selected for HB audiences. The federal circuit split on the ascertainability requirement. Litigation strategies [...]
Rule 30(b)(6) Depositions in Class Action Litigation: Deposing or Defending Corporate Witnesses, Rule 30
Rule 30(b)(6) Depositions in Class Action Litigation: Deposing or Defending Corporate Witnesses, Rule 30 Class action plaintiffs rely on Rule 30(b)(6) depositions as a strategic tool to question corporate representatives about specific topics and bind the corporation to the testimony. There are frequent disputes over the Rule 30(b)(6) deposition notice's adequacy and now Rule 30 requires the parties to meet and confer about various aspects of the deposition. There are also frequent disputes over whether the corporation fulfilled its obligation to select an appropriate deponent and properly prepare the deponent for deposition. From the defendant's perspective, preparation for and defense of a corporate deposition directly impacts the case's success and potential future cases. Counsel must strategically determine who should represent the corporation at the deposition, how much preparation is adequate, and how to deal with privilege issues. Melanie Conroy Partner Pierce Atwood Michael McCarthy Shareholder Greenberg Taurig Robert Neary Of Counsel Kozyak Tropin & Throckmorton LIVE Webinar June 29th 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What are some best practices for crafting a deposition notice that adequately identifies the scope of the 30(b)(6) deposition? What is the best way to employ the "meet and confer" requirement? What strategies are effective when questioning the corporate representative and handling objections during the deposition? How should defense counsel respond to a Rule 30(b)(6) deposition notice that appears to be vague, overbroad, or seeks privileged information? What are the particular dangers of designating a lawyer, or someone else with extensive privileged information, as a 30(b)(6) witness? Plaintiff perspectives When to take a Rule 30(b)(6) deposition Notice requirements under Rule 30(b)(6) Preparing for the deposition Questioning the corporate representative Responding to objections Dealing with evasive or difficult corporate representatives Understanding the party's obligations in designating witnesses Effects of amended Rule 30(b)(6) Defense perspectives Responding to the deposition notice Selecting the 30(b)(6) witness Preparing for the deposition Problem areas When to take a Rule 30(b)(6) deposition of the plaintiff Effects of amended Rule 30(b)(6) [...]
Excluding Epidemiological Evidence Under FRE 702 in Toxic Tort, Medical Device, and Pharmaceutical Cases
Excluding Epidemiological Evidence Under FRE 702 in Toxic Tort, Medical Device, and Pharmaceutical Cases Strategies for Exposing an Expert's Serious Methodological Deficiencies In every toxic tort, medical device, and pharmaceutical product liability case, a threshold issue is whether the product, device, or substance is even capable of causing the alleged harm in some part of the population. To establish this, lawyers rely first and foremost on epidemiological experts and research, the "gold standard" of general causation evidence. Causation, however, is a continuum, and no single study can prove causation. If the plaintiff's epidemiological testimony and related studies are excluded under Federal Rule of Evidence 702 and Daubert, the litigation will most likely end, or at least be significantly narrowed. Thus, admissibility under FRE 702 and Daubert is fiercely litigated in most cases. Courts are increasingly taking a "hard look" at experts' methodologies and assessing whether the expert's opinion reflects a reliable application of the principles and methods to the facts of the case. For example, courts are analyzing experts' logic, asking if their final opinions exceed the limits of applicable studies, and being sensitive to when experts are "cherry-picking" the evidence to fit the desired conclusions. Christopher Campbell Partner DLA Piper Stephen McConnell Partner Reed Smith Sarah Carrier Attorney DLA Piper Christian Castile Attorney Reed Smith CLE On-Demand Webinar This Strafford production has been specially selected for HB audiences. What is epidemiology? Can epidemiological studies support specific causation? When considering admissibility, does rebuttal expert evidence have to meet the same standards as the plaintiff's evidence? What factors show that an expert's opinion does not reflect a reliable application of the principles and methods to the facts of the case? General, specific, and legal causation Role of differential diagnosis Science of epidemiology and the hierarchy of evidence Association vs. causation Bradford Hill criteria International Agency for Research on Cancer (IARC) Assessing admissibility under FRE 702 Assist trier of fact Sufficient facts or data Product of reliable principles and methods Expert has reliably applied the principles and methods to the [...]
Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches
Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies. Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story. Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases. Laurie Webb Daniel Partner Webb Daniel Friedlander Kathryn Lehman Partner King & Spalding CLE On-Demand Webinar July 18th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. Why do motions to dismiss or for summary judgment usually fail? How can defense counsel give the jury a reason not to award punitive damages? Why must defense counsel, when punitive damages are alleged, think like a plaintiff's lawyer? How can anchoring be used effectively? How can counsel use FRE 407 to show that punitive damages are unnecessary? Finding and telling the defendant's story Focusing on the "why" of the defendant's actions Countering plaintiff's likely strategies and themes Deciding whether to bifurcate Strategic use of pretrial motions and objections Building the defense with jury selection, jury instructions, and anchoring Using appellate and punitive damages experts Introducing subsequent remedial measures under FRE 407
Influencing the Jury Using and Objecting to Demonstrative Exhibits
Influencing the Jury Using and Objecting to Demonstrative Exhibits Developing a Visual Strategy for Trial, Recognizing Misleading or Inaccurate Exhibits, Proposed Amendments to FRE 611 Lawyers throw away an important opportunity to influence the jury if they do not offer their own demonstrative exhibits and object to misleading or inaccurate exhibits offered by their opponents. Jurors routinely create their own diagrams, charts, lists, etc. to visually organize and understand what they believe they heard and saw in the courtroom. Creating both an affirmative and defensive "visual strategy" for trial is as important as picking the theme for trial and requires planning and the proper foundation. Demonstrative exhibits are powerful tools that can be inaccurate or misleading--accidentally or intentionally. Too much, and the jury can be overwhelmed. The issue of misleading and inaccurate demonstrative exhibits and visual aids has fueled proposed amendments to Federal Rule of Evidence 6ll that could curtail their use or at least heighten the hurdles to using them. Professor Colin Miller Professor of Law University of South Carolina School of Law Justin Watkins Attorney Langdon & Emison Live CLE Webinar July 11th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What is the difference between an exhibit and visual aid? Are demonstratives presumed acceptable unless objected to? In what ways can demonstrative exhibits be misleading and what are best strategies for objecting? What happens if an exhibit used in depositions becomes inaccurate by the time of trial? Purposes of demonstrative evidence/aids Using demonstratives in depositions Using demonstratives at trial Foundations for demonstrative evidence Document excerpts Computer Day-in-the-life video Video/animation Experiments/demonstrations Models Objections Objection strategies Adopting opponent's exhibits Relevance, probative value Changes circumstances/not substantially similar Federal Rule of Evidence 611 Current practice Proposed amendments
Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis
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