Andrew Silverman is an associate at the firm’s Delaware office. Andrew’s practice focuses on counseling clients in products liability and commercial litigation matters. Andrew has regularly appeared before Delaware courts in defense of individuals and companies concerning a variety of complex civil litigation matters, including construction law, premises liability, and insurance coverage disputes.

Recently, the Delaware Supreme Court decided Tumlinson v. Advanced Micro Devices, Inc., No. 672, 2012 (Del. Nov. 21, 2013). This case provides a great example of the so-called “gatekeeper” function of the court when it comes to the admission of expert testimony in civil cases. More importantly, it provides context concerning the admissibility of expert epidemiological testimony under the Daubert standard in products liability cases. In Tumlinson, the Supreme Court affirmed a decision of the trial court that excluded an epidemiologist’s expert testimony on the ground that it failed to satisfy the reliability requirements of Delaware Rule of Evidence 702 and Del. R. Evid. 702.

The Facts

The defendant, Advanced Micro Devices, Inc. (“AMD”), a Delaware corporation with offices in several major U.S. and global cities, manufactures semiconductors used in computers. In 2008, the plaintiffs, who worked in AMD’s plants, filed suit against AMD based on their theory that chemicals used in the manufacture of AMD’s semiconductors caused birth defects in their children.

To support their claims, the plaintiffs retained an expert epidemiologist who concluded that the chemicals allegedly present in the AMD plant caused their children’s birth defects. AMD filed a motion in limine, wherein it argued that the epidemiologist’s opinion was unreliable because too many analytical gaps existed in her methodology to render a sound opinion. The trial court agreed.

Daubert Factor #1: Whether the expert’s opinion can be (and has been) tested.

The trial court first found that the expert’s opinion could not be tested because it lacked sufficient specificity. In this case, each of the plaintiffs’ children suffered birth defects that were very different in nature. The court observed that the epidemiologist was unable to identify which specific chemical or combination of chemicals caused the children’s different birth defects. The court further found that the expert did not distinguish between the differing work environments between the two plaintiffs or consider, specifically, how these different environments may have impacted the level of exposure.

Daubert Factor # 2: Whether the expert’s method has been subject to peer review and publication.

The court next considered whether the expert’s methods were subject to peer review and publication. The plaintiffs’ counsel argued that the expert’s opinion was peer reviewed because it was based on three studies that the expert synthesized before formulating her own conclusion. The court ruled that an expert’s opinion, even if based on the synthesis of peer reviewed studies, must demonstrate an independent indicia of reliability. The court found that there was nothing in the record to provide this independent reliability and, furthermore, the studies cited by the expert were produced in the context of other litigation and, themselves, unreliable.

Daubert Factor #3: Whether the methodology has attracted widespread acceptance within a relevant scientific community.

Finally, the trial court found that the epidemiologist failed to demonstrate that she relied on techniques that have gained acceptance in the scientific community. In reaching this conclusion, the court first observed that there are multiple scientific
Continue Reading Delaware Court Examines Admissibility of Epidemiology Experts in Product Liability Cases

Everybody Into The Digital PoolThere is little doubt that Facebook, LinkedIn, and Twitter have enhanced our ability to communicate with one another and express our ideas and feelings. These social networks—and countless others—make it easy to share photographs of our children at birthday parties, organize social events, or boast about our latest culinary creations. Often, we use social networking platforms to communicate our state of mind in real time (i.e., status updates). We expect that only our closest friends and family will be interested when posting a picture from last night’s party on Facebook or Instagram. It is a rare and litigious person, indeed, who understands that his or her status updates could be discoverable in a lawsuit.

In Romano v. Steelcase Inc., the Supreme Court of Suffolk County, New York granted a defendant’s motion to compel access to the plaintiffs’ social networking accounts. In doing so, the court reasoned that those “who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action … including a plaintiff’s claim for loss of enjoyment of life.” The plaintiffs posted images of themselves smiling outside their home to a publicly accessible Facebook page despite legal claims that they were restricted to bed by their injuries. The court found that, under such circumstances, “there is a reasonable likelihood that the private portions of [plaintiffs’ Facebook pages] contain further evidence” regarding their enjoyment of life.

Claims for personal injury, including products liability and complex tort actions, almost always demand relief for emotional pain and suffering. That being so, what defense litigation attorney would not cherish Instagram photos of the personal injury plaintiff dancing at a party? Employment disputes may also contain elements of emotional distress, suggesting discoverability of social network data. Certainly, a Tweet could be central to a defamation case. With so much of our lives online, it is hard to imagine many circumstances where social media evidence is not responsive to a narrowly tailored and reasonable discovery request.

The discovery rulings, much like the social networking sites, continue to develop. In July, the Southern District of Indiana decided that “tagged” photographs are discoverable (“Tagging” is a process by which a third party can take and post a photograph and digitally associate the photograph with the responding party, thereby making such photographs available on the responding party’s Facebook page).  The Employer Handbook: Facebook “tagging” adds a new wrinkle to social media discovery. Consequently, even the actions of third parties over which the responding party bears little control may be subject to a well-drafted and targeted discovery request.

Take Away

Of course, discovery of social networking data must have limits. Less than a year after the New York Supreme Court decided Romano, the court ruled that a demand to access a party’s social media account cannot amount to a “fishing expedition.” Caraballo v. City of New York. Generally, a discovery request is almost always successful when narrowly tailored and likely to result in
Continue Reading Social Media: #Discovery

As previously reported on Defense Litigation Insider, the United States House of Representatives is presently considering the “Furthering Asbestos Claims Transparency (FACT) Act.” (H.R. 982) Since our last report, the bill was approved by the House Judiciary Committee by a 17-14 vote despite efforts to amend its original form.

The bill, introduced by Rep. Blake Farenthold (R-TX) and co-sponsored by Rep. Jim Matheson (D-UT), would require asbestos bankruptcy trusts to file publicly available reports that include demands made against the trusts as well as the names and exposure history of the claimants. Although Congress tracking website, govtrack.us, projects that the bill has only a 14 percent chance of passing, defense attorneys in many jurisdictions can still take steps to pursue the information during litigation.

Bankruptcy claim information is helpful to defense attorneys because, often, plaintiffs in litigation against non-bankrupt asbestos defendants conceal claims made against bankruptcy trusts in an effort to obtain “double compensation.” In many jurisdictions, relief afforded by a bankruptcy trust, if known, would reduce the liability exposure to the non-bankrupt asbestos defendants.

Some jurisdictions have attempted to eliminate the possibility of fraud, abuse, and double compensation legislatively or by judicial order. An Ohio statute, for instance, requires disclosure of bankruptcy claim information. In Delaware, a standing case management order of the Superior Court likewise calls for asbestos plaintiffs to identify bankruptcy trust claims.

If a given jurisdiction does not have a legislative remedy available, many state and federal courts have held that bankruptcy trust claim information is available through discovery. This discovery might include claim forms, which occasionally contain factual allegations that are inconsistent with the plaintiff’s pleadings. The Eastern District of Pennsylvania, home of federal multi-district litigation, has allowed such discovery. So, too, has the State of California.

Conclusion

Defense attorneys must be vigilant in protecting their clients from increased exposure as a result of concealed asbestos claims. Until a national solution is in place, defense attorneys can likely stay on guard of potential double compensation scenarios through focused discovery and subpoena practice.
Continue Reading Furthering Asbestos Claims Transparency Act: Discovery of Bankruptcy Claim Information to Avoid Double Compensation