winnie

Most people when they hear about “junk science” assume that plaintiffs’ attorneys are trying to fabricate some pseudo-science to make out a case, usually in the context of a novel class action theory.

But those of us in the trenches know otherwise, that this isn’t the main problem. Junk science, on a day-to-day basis, is far more likely to spill from the mouths of defense experts in routine cases. I showed this a few years ago in a multi-part series dedicated to quickie medical exams by doctors hired by the defense. A three minute exam and presto!  — a finding that the plaintiff either isn’t injured, or that any injuries s/he has were pre-existing.

Some doctors are doing 1,000+ exams per year like this in the service of the insurance defense industry, which is quite the living if you don’t mind sacrificing your conscience.

Today I turn my sights on the biomechanical engineer. This is the person that will generally look at the vehicles in a crash (not an accident), and deconstruct it in such a way to determine that the victim wasn’t really injured by it. Four years ago Justice Arlene Bluth deconstructed that collision deconstruction for one such engineer, essentially showing the bogusosity of it all. (Is bogusosity a word? It should be.)

Last week the Appellate Division (Second Department) weighed in on that subject. And they were no more kind to the defense “expert” than Justice Bluth was.

Dovberg v Laubach was a hit-in-the-rear collision on the Long Island Expressway that pushed the plaintiff’s car into a tow truck in front of her:

The accident occurred when [the defendants’ vehicle] struck a vehicle operated by Scott Ramunni in the rear, propelling it into the rear of the plaintiff’s vehicle. The plaintiff’s vehicle was then propelled into a tow truck in front of her.

The key part of the story was how the plaintiff said that the injuries to her knees occurred — by striking the steering wheel or dashboard.

So far, nothing out of the ordinary, right? But then the defendants said they would produce Dr. Alfred Bowles as an expert, he being a biomechanical engineer and board-certified surgeon. And he would testify “that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic activities.”

And how would Dr. Bowles do that? By looking at the medical records and the depositions.

Really. According to the decision of the appellate court, that was what he would rely upon. Not even an analysis of the damage to the vehicles themselves? Or the position of the body? This is science?

Oh, and some books. As per the decision, Dr. Bowles would also rely upon:

scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth. [emphasis added]

The trial court permitted this dubious testimony to go forward, allowing him to testify “with a reasonable degree of engineering certainty, [that] the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.”

A defense verdict resulted on the issue of causation.

But on appeal the Second Department was, shall we say, less than impressed with this testimony. And this was likely the reason:

Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision.

So no one asked the plaintiff how far forward the seat was — which is to say the actual position of the injured driver  — and then the expert testified that it didn’t matter? Distance to the dashboard didn’t matter? One inch and twelve inches are the same? Can you say bogusosity?

After a brief discussion of the long-recognized rule of Frye v United States — in that expert testimony must be based on scientific principles or procedures and is admissible only after a principle or procedure has gained general acceptance in its specified field — the court swiftly deconstructed Dr. Bowles’ testimony.

The court noted that the

“expert disclosure notice simply stated that Bowles analyzed the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard.

The court didn’t use the phrase “junk science,” or bogusosity, but I will. Because that’s the way I read this opinion.  Your mileage may vary but, frankly, I don’t see how.

So the next time you hear about junk science, you should understand and appreciate that, on a day to day basis, this is not some plaintiffs’-side invention.

The essential business model of insurance companies is to collect as much as possible in premiums and pay out as little as possible (while investing the money in the interim). Many insurance companies, and adjusters, and their syncofantic witnesses who profit from this form of testimony, don’t seem to particularly care how that preservation of premiums is accomplished. Or who gets screwed by their process.

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winnie

View Postmagnacarta, on 02 November 2017 – 08:03 AM, said:

I am interested in the views of members in relation to the following issues relevantly applying to ACC:-

Fraud on a Power – Such an exercise of power as defeats the intention of the person(s) creating it – (Authority is Butterworths Law Dictionary Fourth Edition page 122)

Therefore, is ACC’s exercise of a power against claimants defeating the intention of the Parliament who created the power?

First off, the [Butterworths] dictionary is not an ‘authority’. It provides legal definitions and can certainly be used in argument, but it is not an authority.

The authority from which the definition was taken is likely Vatcher v Paull [1915] AC 372 [1914-1915] All ER Rep 609.

The full principle is: a power exercised for the purpose or with an intention beyond the scope of or not justified by the instrument creating the power. This opens the door to the consideration of the principle of ‘mistake’ and of the correct legal interpretation [and application] of the disputed power created by the instrument. This once again brings one back to the legislation [in an ACC context] and asking what is the correct interpretation of the legislative language.

It does not mean: fraud, as defined by the common law meaning of that term or of any conduct which could be properly termed dishonest or immoral. Therefore your second authority, does not relate to your first issue as this is a criminal application defined pursuant to the Crimes Act 1961 and is ‘dishonest’.

Fraudulent Action – An accused person must act deliberately and with knowledge that they are acting in breach of their legal obligations – (As Per Richmond P, R v Coombridge [1976] 2 NZLR 381,387()

One does not preclude the other, but it is simply incorrect to believe that they are analogous to one another

winnie

Useful resource to have, the ACC Bench Book.

Provides the case law that ACC will rely on. This could give a claimant a small tactical advantage when preparing legal arguments.

I’ve only just recently downloaded a copy, so I haven’t been through it in any detail yet. I will start looking at it over the next few days.

pooh-bear-wind

I have been in touch with the Ministry of Justice and they are willing to entertain my proposal of ‘distance supervision’ due to the dearth of legal aid providers for ACC in NZ.

I have secured a provider who is willing to provide limited supervision, due to the distance issues.

All that remains now is to put in an application and see if it flies.

winnie

After a bit of research, the bad news is that there are only three [3] legal aid providers for ACC in the entire country.

That is a pretty shocking statistic.

winnie

30 July 2015 – By Don Rennie

The articles and comments in LawTalk 868 (3 July 2015) highlight only some of the issues arising from Dame Margaret Bazley’s controversial report “Transforming the Legal Aid System”.

The report was intended to overhaul a system described as being open to “abuse by lawyers and defendants”.

The government’s transformation of the legal aid system by disestablishing the Legal Services Agency and rolling its services into the Ministry of Justice, was described by the Associate Justice Minister Simon Bridges as making changes to “ensure the quality of legal advice, and alter the way lawyers are paid to avoid any incentive to keep cases in the system for longer than necessary”.

Although not covered in the Bazley report, the changes to legal aid have had a devastating consequence on legal representation of accident victims who have disputes with the ACC regarding their cover and/or entitlements.

Highly complex

ACC law is highly complex and complicated and only a few lawyers practise extensively in this field. As rightly observed by Liz Bulger: “Eligibility thresholds are so high that there are many in genuine need who simply do not fulfill the criteria required to be eligible for legal aid”.

The result has been that without obtaining funding from legal aid, few lawyers practising in the field of ACC law can afford to undertake cases to ensure that accident victims receive their statutory rights and entitlements.

Simple and straight forward disputes are usually handled by the claimant themselves or by an advocate or friend but experienced lawyers are nearly always involved in more complicated cases like sensitive claims, treatment injuries (medical misadventure), claims for brain damage, long term incapacity, gradual process injuries, occupational diseases, medical and vocational independence issues and other complex issues.

Only a few lawyers take on these cases on a pro bono basis and they do so at great personal cost. Those who do have significant success in overturning ACC decisions.

Claimants are often encouraged to believe that in challenging an ACC decision the review process is relatively simple and straightforward and provides an opportunity for the claimant to put his/her views and arguments before an independent reviewer who will decide the issues in dispute.

What is not understood is that preparation for a review hearing is extremely important. It means, at the very least, obtaining and reading a copy of the complete ACC claim file (which may be in electronic form or in papers filling a wine box or two), ensuring that there is agreement on the facts, reading the statutory provisions (including relevant regulations) so as to understand the basis of the ACC decision, reading the case law, obtaining evidence from relevant witnesses including up-to-date medical reports and usually, specialist medical evidence commenting on the ACC medical evidence and preparing and developing arguments in support of the disputed issues. The claimant may have to pay up to $2,000 or more to obtain a specialist medical report.

Daunting task

Preparation for a review hearing is a daunting task for a lawyer let alone for an unrepresented accident victim who is likely to be suffering not only from the consequences of the injury, but also from frustration with, or lack of understanding of, the reasons for the decision made by the ACC leading to the need for the review application in the first place.

It is important that the case is properly prepared for the review hearing because if the reviewer’s decision is unfavourable and the claimant wishes to appeal to the District Court, without the leave of the Court the claimant has no right to put evidence before the Court on appeal if it was not presented to the reviewer at the review hearing.

Proper presentation of the case is also important because decisions of the District Court have legal precedent value and are followed by other Courts, the ACC, and lawyers, under the doctrine of stare decisis (the decision has authority until overturned by a higher Court).

With fewer lawyers being involved at the review or appeal stage in ACC cases, more and more claimants will be representing themselves without a knowledge of the law or the review and appeal process. Reviewers and District Court judges will therefore have a much more onerous task to ensure unrepresented claimants receive fair and just treatment.

Restricting legal aid for those who have a genuine need amounts, in my personal view, to a denial of access to justice. It would be made even worse by Cabinet proposals to abolish the right to appeal to the District Court from ACC review decisions and establish a new ACC Appeal Tribunal system. If that goes ahead, the right of appeal from a Tribunal decision, which has no legal precedent value, will be to the High Court but only on a question of law. Unrepresented claimants will therefore be further penalised.

The Ministry of Justice website has guidelines about how an unrepresented litigant can bring a case before the High Court but the High Court has less experience with dealing with unrepresented litigants, especially those suffering from injuries about which they want to address the Court but who can do so only on strict questions of law.

winnie

I’ve written about the Supreme Court’s Daubert opinion many times before, tagging it with the label “junk science.” The phrase “junk science” never actually appeared in Daubert, but rooting it out has been the animating concern behind the application of Daubert. See, e.g., Amorgianos v. National RR Passenger Corp., 303 F. 3d 256, 267 (2nd Cir., 2002)(“The flexible Daubert inquiry gives the district court the discretion needed to ensure that the courtroom door remains closed to junk science while admitting reliable expert testimony that will assist the trier of fact.”)

In federal courts today, Daubert has become a magical incantation for defense lawyers in product liability lawsuits. Drug companies gleefully get drugs approved by the FDA with the thinnest of scientific evidence—often relying on “surrogate markers” or underpowered clinical trials—and then claim that plaintiffs injured by their drugs cannot present their case to a jury until they have produced vastly more scientific evidence than the company or the FDA would use. Car manufacturers regularly demand plaintiffs conduct testing that the companies themselves never did.

Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.

All of these cases have one thing in common: the defendants framed Daubert as a matter of pseudoscientific absolutes, and the Courts of Appeals rejected the defendants at every turn. In the cases that follow, defendants argued that any difference between a test and an accident renders the test unreliable, that plaintiffs cannot go to a jury without statistically significant evidence, that opinions developed in litigation are inherently unreliable, that a doctor’s differential diagnosis is an unacceptable scientific methodology, that plaintiffs’ experts must completely eliminate all potential alternative causes, and that case studies are scientifically irrelevant—and the appellate courts rejected each and every one of those arguments.

Like the Supreme Court intended, Daubert is “flexible” because science itself is flexible. Daubert is a means by which courts ensure that juries aren’t subjected to unsupported speculation; it’s not a grocery list of arbitrary requirements.

Adams v. Toyota (Eighth Circuit)

Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017) is a product liability case, one of many unintended acceleration cases brought against Toyota. The plaintiff’s expert testified that, at high temperatures, the throttle pulleys would fuse together, and that this thermal-induced sticking defect had caused the accident. Toyota raised two Daubert challenges, arguing that the expert rendered his own test invalid by repositioning the cruise control arm and that the expert’s analysis was insufficient to conclude that same defect had caused the accident.

The Eighth Circuit rejected both arguments, reiterating that “the inquiry envisioned by Rule 702 is … a flexible one,” and that these issues could all be addressed with “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id. at *5 quoting Daubert at 549 and 596. Put simply, the expert explained what he did:

Though the parties dispute the significance of Stilson’s repositioning the cruise control arm during his thermal testing, Stilson thoroughly explained how he modified the cruise control system and why he did so. He testified that, in his opinion as an engineer, the modification did not affect the validity of the thermal testing because the cruise control system operated independently of the throttle mechanism that was the subject of his testing. He explained that his testing supported the conclusion that the throttle pulleys fused together when subjected to high temperatures.

Id. at *5. At first blush this seems rather obvious—of course the expert should explain what they did—but an expert’s failure to explain their work is often at the root of a Daubert exclusion, whereas an expert’s explanation is often the key in avoiding exclusion of an expert.

In light of that explanation, the Eighth Circuit had no trouble affirming the District Court, with the usual reminders that the Daubert “gatekeeper” function is about excluding junk science, and isn’t about demanding scientific certainty from experts:

“[T]he district court must … function as a gatekeeper who ‘separates expert opinion evidence based on good grounds from subjective speculation that masquerades as scientific knowledge.’ ” Presley, 553 F.3d at 643 (quoting Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001)). However, Stilson’s opinion as to causation need not be a “scientific absolute in order to be admissible.”Bonner v. ISP Tech., Inc., 259 F.3d 924, 929 (8th Cir. 2001). We conclude that Stilson’s opinions represented more than “vague theorizing based on general principles,” Pro Serv. Auto., LLC v. Lenan Corp., 469 F.3d 1210, 1216 (8th Cir. 2006), or “unsupported speculation,” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The district court did not abuse its broad discretion in allowing Stilson’s expert opinion pursuant to Rule 702.

Id. (emphasis added).

The Adams case was also notable for its discussion of “other similar incidents” evidence. The defendants argued that “proponents must show that the other-incidents were caused by the same or similar defect,” essentially forcing plaintiffs into holding a mini-trial over each incident, something that is often not possible. The Eighth Circuit rejected that rule, reiterating again “[t]here are no hard or fast rules as to what degree of similarity there must be to make the evidence admissible.” Id. at *3 (quoting Henwood v. Chaney, 156 F.2d 392, 397 (8th Cir. 1946).

In re Zoloft (Third Circuit)

In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig.,, No. 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017) involved the Zoloft birth defects MDL, in which the trial court excluded the plaintiffs’ epidemiological expert from testifying. I wrote about the District Court’s opinion back when it came out in March 2016, criticizing the District Court’s reliance on “statistical significance” when deciding Daubert. As I noted then, the American Statistical Association agrees that “statistical significance” is more a term of art than an actual scientific principle. The bedrock principles of “p ≤ 0.05” and “95% confidence interval” are hardly “scientific.” Instead, they were pulled out of thin air decades ago by a eugenicist. (More about that in this post.)

Here’s the good news: the Third Circuit refused to establish a “bright-line rule” requiring “statistical significance.” As the Court wrote,

Central to this case is the question of whether statistical significance is necessary to prove causality. We decline to state a bright-line rule. Instead, we reiterate that plaintiffs ultimately must prove a causal connection between Zoloft and birth defects. A causal connection may exist despite the lack of significant findings, due to issues such as random misclassification or insufficient power. Conversely, a causal connection may not exist despite the presence of significant findings. If a causal connection does not actually exist, significant findings can still occur due to, inter alia, inability to control for a confounding effect or detection bias. A standard based on replication of statistically significant findings obscures the essential issue: a causal connection. Given this, the requisite proof necessary to establish causation will vary greatly case by case. This is not to suggest, however, that statistical significance is irrelevant. Despite the problems with treating statistical significance as a magic criterion, it remains an important metric to distinguish between results supporting a true association and those resulting from mere chance. Discussions of statistical significance should thus not understate or overstate its importance.

Id. at *3 (emphasis added). The Third Circuit took great care to explain, “the course of the proceedings make clear that the replication of significant results was not dispositive in establishing whether the testimony of either Dr. Bérard or Dr. Jewell was reliable. In fact, the District Court expressly rejected Pfizer’s argument that the existence of a statistically significant, replicated result is a threshold issue before an expert can conduct the Bradford–Hill analysis.” Id. at *5.

Also more good news: the Third Circuit specifically recognized that a plaintiff can establish causation with a variety of methodologies, including the “weight of the evidence,” the “Bradford Hill criteria,” or a “differential diagnosis.” Id. at *5. These are all “flexible methodologies … [that] can be implemented in multiple ways.” Id. The critical part for Daubert purposes isn’t whether or not an expert applied a general methodology in a particular way, but whether they applied the methodology they chose consistently. As the Third Circuit described its prior opinion, In re Paoli R.R. Yard PCB Litigation, “[w]hile we did not require the expert to run specific tests or ascertain full information in order for the differential diagnosis to be reliable, we did require him to explain why his conclusion remained reliable in the face of alternate causes.”

The Third Circuit laid down a common sense, clear roadmap for plaintiffs to follow:

In short, despite the fact that both the Bradford Hill and the weight of the evidence analyses are generally reliable, the “techniques” used to implement the analysis must be 1) reliable and 2) reliably applied. In discussing the conclusions produced by such techniques in light of the Bradford Hill criteria, an expert must explain 1) how conclusions are drawn for each Bradford Hill criterion and 2) how the criteria are weighed relative to one another. Here, we accept that the Bradford Hill and weight of the evidence analyses are generally reliable. We also assume that the “techniques” used to implement the analysis (here, meta-analysis, trend analysis, and reanalysis) are themselves reliable.

Id. at *6.

Here’s the bad news: the expert hadn’t followed that roadmap. He “did not 1) reliably apply the ‘techniques’ to the body of evidence or 2) adequately explain how this analysis supports specified Bradford Hill criteria.” Id.

Wendell v. GlaxoSmithKline (Ninth Circuit)

Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017), involved a non-MDL medication product liability claim that two anti-inflammatory drugs (Purinethol and Remicade) that were prescribed to treat inflammatory bowel disease causes Hepatosplenic T-cell lymphoma, a rare and aggressive form of non-Hodgkin’s lymphoma. The district court excluded the plaintiff’s experts on Daubert grounds and granted summary judgment, which the Ninth Circuit reversed.

The district court opinion reads like a wish-list for defense lawyers in drug and medical device cases. The district court:

  • “focused on the fact that the experts developed their opinions specifically for litigation, and had never conducted independent research on the relationship between 6–MP and anti-TNF drugs and the development of HSTCL.”
  • “noted that both doctors conceded that although their opinions were based on a reasonable degree of medical certainty, they ‘would not satisfy the standards required for publication in peer-reviewed medical journals.’”
  • “determined that the lack of animal or epidemiological studies showing a causal link between HSTCL and the combination of 6MP and anti-TNF drugs also undermined the experts’ methodology.”
  • “found that the experts did not show ‘that all of the observed differences in these incidence rates are statistically significant or that they account for plausible alternative causes of HSTCL, such as IBD itself.’ Further, the doctors did not present scientific evidence to support their opinion that IBD is not a risk factor for HSTCL.”

Id. at *4. I’ve seen defense lawyers for drug and medical device companies raise all of these arguments before, all with the implication that Daubert imposes an arbitrary barrier requiring independent research, peer-reviewed publications, epidemiological studies, statistically significant results, and an indisputable refutation of all other alternative causes the defense lawyers dream up.

The Ninth Circuit was having none of it:

The district court looked too narrowly at each individual consideration, without taking into account the broader picture of the experts’ overall methodology. It improperly ignored the experts’ experience, reliance on a variety of literature and studies, and review of Maxx’s medical records and history, as well as the fundamental importance of differential diagnosis by experienced doctors treating troubled patients. The district court also overemphasized the facts that (1) the experts did not develop their opinions based on independent research and (2) the experts did not cite epidemiological studies. We hold that all together, these mistakes warrant reversal.

Id. at *4. The plaintiff’s experts were two “highly qualified doctors” with ample experience in researching and treating non-Hodgkin’s lymphoma, and they applied the same differential diagnosis they regularly do while treating patients. The methodologies applied were simple and straightforward. As for the first expert,

Dr. Shustov based his opinions “on medical records as well as [his] education, training and experience, knowledge of the pertinent medical literature and [his] knowledge of the epidemiology, diagnosis and natural history of HSTCL.” He explained: “I reviewed the literature, I pulled the facts out of the literature.” He found that the literature shows there is an increased risk of HSTCL in patients taking 6–MP over the general population. After reviewing the literature, he “compiled the numbers about frequency of diseases, about frequency of inflammatory bowel disease and [he] looked at the biological causation of lymphoma pertaining to this case.”

Dr. Shustov stated that he performs differential diagnosis in attempting to diagnose every patient, and that he has applied the same technique to determine the cause of a disease. When performing a differential diagnosis, he first assumes the pertinence of all potential causes, then rules out the ones as to which there is no plausible evidence of causation, and then determines the most likely cause among those that cannot be excluded. We have recognized that this method of conducting a differential diagnosis is scientifically sound.

Id. at *5 (emphasis added). As for the second,

Dr. Weisenburger based his opinion on “a summary of the medical records of [Maxx] as well as copies of the pathology reports, and the original slides of the diagnostic bone marrow,” which he evaluated with over 30 years of experience diagnosing non-Hodgkin lymphoma. He stated that he considered that Maxx’s HSTCL might have been idiopathic, and that although he was not entirely able to rule that possibility out, “[w]hen you have a patient with obvious and known risk factors, you tend to assume that those risk factors were the cause.” He did not base that assumption on pure conjecture. As he discussed throughout his deposition testimony and in his expert report, the literature shows that patients exposed to 6–MP and anti-TNF drugs are at an increased risk for HSTCL. Dr. Weisenburger also weighed other risk factors, including Maxx’s sex and age, and determined that those were “weak risk factors; whereas, the disease he had, particularly in the setting of the drugs he received would be considered very strong risk factors.”

Id. at *6 (emphasis added).

Nothing more was needed. “The proposed testimony was sufficiently reliable that the Plaintiffs’ experts should have been allowed to testify under Daubert. The district court improperly required more. The Supreme Court in Daubert aimed at screening out unreliable or bogus expert testimony. Nothing in Daubert, or its progeny, properly understood, suggests that the most experienced and credentialed doctors in a given field should be barred from testifying based on a differential diagnosis.” Id.

As the Ninth Circuit explained at length,

  • there is no requirement for expert opinions being “developed independently of litigation,”
  • the “district court also wrongly conflated the standards for publication in a peer-reviewed journal with the standards for admitting expert testimony in a courtroom,”
  • neither animal nor epidemiological studies are “necessary for an expert’s testimony to be found reliable and admissible,”
  • that case studies are useful in “support[ing] other proof of causation” (citing Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1199 (11th Cir. 2002)),
  • there is no need for a plaintiff to identify the exact “mechanism whereby a particular agent causes a particular effect,” because “[c]ausation can be proved even when we don’t know precisely how the damage occurred, if there is sufficiently compelling proof that the agent must have caused the damage somehow,” (citing Daubert II, 43 F.3d 1311, 1314 (9th Cir. 1995)), and,
  • “We do not require experts to eliminate all other possible causes of a condition for the expert’s testimony to be reliable. It is enough that the proposed cause ‘be a substantial causative factor,’” (quoting Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014).

Defendants are fond of quoting Rosen v. Ciba-Geigy Corp., 78 F. 3d 316 (7th Cir., 1996), “Law lags science; it does not lead it.” This quote was always dubious: the full quote begins with “the courtroom is not the place for scientific guesswork” and ends with “[t]here may be evidence to back up Fozzard’s claim, but none was presented to the district court.” In Wendell, the Ninth Circuit delivered an even more potent retort:

Perhaps in some cases there will be a plethora of peer reviewed evidence that specifically shows causation. However, such literature is not required in each and every case. “The first several victims of a new toxic tort should not be barred from having their day in court simply because the medical literature, which will eventually show the connection between the victims’ condition and the toxic substance, has not yet been completed.” Clausen, 339 F.3d at 1060 (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1209 (8th Cir. 2000)). In the case of a rare disease like HSTCL, the Supreme Court’s mandate that in determining the admissibility of expert testimony, the focus “must be solely on principles and methodology, not on the conclusions that they generate,” is especially important. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.

Id. at *7 (emphasis added).

Nease v. Ford (Fourth Circuit)

Finally, there’s Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017), another unintentional acceleration product liability case involving a 2001 Ford Ranger pickup truck and the claim that the speed control cable became stuck, preventing him from slowing down. The plaintiff’s expert opined that the speed control assembly allows contaminants in that cause the throttle to become stuck open.

As the Fourth Circuit said, “[t]esting was of critical importance in this case as Sero conceded that the speed control cable in the Neases’ Ranger was not bound or wedged; the cable ‘moved freely’ when Sero performed a post-accident inspection of the Neases’ Ranger. Id. at 231. In other words, because there really wasn’t anything for the expert to base their opinion on, neither inspection, nor literature, nor industry practice, nor other similar incidents, testing would have been the only way to demonstrate his theory. Unfortunately, “Sero, however, conducted no testing whatsoever to arrive at his opinion.” Similarly, “he offered no data from any other studies or accident records to prove that the older designs were less likely to bind than the one incorporated in the Neases’ 2001 Ranger.” Id.at 234. The Fourth Circuit recognized “Daubert is a flexible test and no single factor, even testing, is dispositive,” id. at 232, but found that the expert’s testimony simply couldn’t pass any of Daubert’s “reliability markers.”