Photo of Alexander L. Zodikoff

Alexander L. Zodikoff is an associate in MG+M's Boston, Massachusetts office, where he is a member of the Complex Litigation Practice Group

In Summerlin v. Philip Morris USA, et al., 1581-cv-5255, following a five-week trial before Judge Heidi Brieger, the jury returned a verdict in favor of the plaintiff amounting to $43,100,000. Three defendants remained through verdict; however, the jury found that only R.J. Reynolds was liable. The jury found that defendants, Hampden Automotive and Philip Morris USA, breached the implied warranty of merchantability for selling a defectively designed product, but neither were found to be a substantial contributing cause of Mr. Summerlin’s lung cancer. Plaintiff’s award was allocated as follows: $5,300,000 for pain and suffering; $3,500,000 for loss of consortium; $2,500,000 for loss of services to Joanna Summerlin (Spouse); $1,800,000 for loss of services to Christopher Summerlin (Son); and $30,000,000 in punitive damages.

Plaintiff was represented by Michael Shepard of the Shepard Law Firm, Boston, MA and Jerome Block of Levy Konigsberg, New York, NY. Philip Morris USA was represented by Bill Geraghty of Shook Hardy Bacon, Miami, FL; R.J. Reynolds was represented by Mark Belasic and Kaitlin Kline of Jones Day, Cleveland, OH; and Hampden Automotive was represented by David Governo and Vincent DePalo of Smith Duggan, Boston, MA.

Continue Reading Summary and Perspectives: Summerlin v. Philip Morris USA, et al.

The overwhelming majority of courts (including all seven federal circuits that considered the issue) have rejected the so-called “innovator liability” doctrine.[1]  In 2017, however, the California Supreme Court in T.H. v. Novartis Pharm. Corp.[2] unanimously recognized the doctrine holding that brand-name prescription drug manufacturers owe a duty to warn to consumers who use generic drugs.[3]  In March of 2018, the Massachusetts Supreme Judicial Court (SJC) considered the issue, and took a middle ground.  Specifically, in Rafferty v. Merck & Co., Inc.,[4] the SJC held that plaintiffs who ingest the generic form of a drug may bring failure to warn claims against the brand-name manufacturer of the drug if the brand-name defendant acted recklessly by “intentionally fail[ing] to update the label on its drug while knowing or having reason to know of an unreasonable risk of death or grave bodily injury associated with its use.”[5]  In so doing, the SJC reasoned that a plaintiff is, in fact, injured by a brand-name product’s label despite never having used said product because statutes require identical labeling of the generically manufactured version.[6]

 

The Facts

 

In 2010, a physician prescribed Finasteride, the generic version of the brand name drug Proscar, to treat Rafferty’s enlarged prostate.[7]  Rafferty experienced anticipated temporary side effects from the drug, causing him to stop taking the medication.[8]  Rafferty, however, continued to experience these side effects and his physician informed him that they could actually continue “indefinitely.”[9]  The potential lifelong side effects of this drug were not disclosed within the brand-name manufacturer’s nor the mirrored generic manufacturer’s warning label.[10]  Rafferty presented evidence that the brand-name manufacturer became aware of these potential long-term side effects by 2008, when it updated Proscar’s warning label in select European markets to include this risk.[11]

 

Rafferty filed suit against the brand-name manufacturer in 2013, asserting a claim of negligence for, inter alia, failure to warn and for violation of the Commonwealth’s Consumer Protection Statute, G.L. c. 93A.[12]  The Superior Court dismissed Rafferty’s claims, “ruling that [the brand-name defendant] owed no duty of care to [him].”[13]  The SJC took over the case by its own motion from the Appeals Court.[14]

 

The SJC Weighs In

 

Traditionally, Massachusetts has not recognized liability for products manufactured by others.[15]  However, the SJC noted that The Restatement (Third) of Torts allows a modification to this general rule in exceptional cases.[16] The SJC considered innovator liability to require such a modification given the certainty that a user of a generic drug will rely on the label fashioned by the brand-name manufacturer and as state law shields failure to warn claims from generic manufacturers, leaving plaintiffs without recourse for their injuries.[17] However, the SJC also recognized that imposing innovator liability could impact the public policy of encouraging innovation in the drug market and a potential increase in drug pricing.[18]

 

Balancing these competing interests, the court held that, “a brand-name manufacturer that controls the contents of the label on a generic drug owes a duty to consumers of that generic drug not to act in reckless disregard of an unreasonable risk of death or grave bodily injury.”[19]  As an added protection to the manufacturers, it will be the trial judge’s responsibility to determine whether an injury constitutes an “unreasonable risk of death or grave bodily injuries.”[20]  The court went on to define recklessness as an act performed while knowing or having reason to know of facts which would lead a reasonable person to realize that his or her conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make his conduct negligent.[21] In order to meet this threshold with regard to failure to act, there must be “an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result.”[22]

 

The court then vacated the dismissals and remanded the case to Superior Court where the plaintiff would be granted leave to amend his complaint should he believe his claims meet the newfound threshold.[23]

 

National Scope

 

In August of 2017, the United States District Court – District of Massachusetts held in In re Zofran[24] that a brand-name manufacturer is not liable for a generic version’s failure to warn claim spawning from an injury caused by the use of the generic.[25]  Judge Dennis F. Saylor IV articulated this point by emphasizing the consistency of the Circuit Courts’ decisions and citing to a Sixth Circuit multi-district litigation holding “affirming the dismissal of claims against brand-name manufacturers under the laws of 22 states.”[26]  Notwithstanding this majority view, in December of 2017, the Supreme Court of California held that a brand-manufacturer is liable for a failure to warn claim arising from “risks about which it knew of reasonably should have known, regardless of whether the consumer is prescribed the brand-name drug or its generic ‘bioequivalent.’”[27]  Here, the SJC has offered a compromise to the majority and minority viewpoints by adopting a recklessness standard, which is a higher threshold than the minority view, while still maintaining failure to warn liability against the brand-name manufacturer, in contrast with the majority.

 

The court’s concern that redress be available to those who ingest generic drugs by establishing liability to the controlling brand-name manufacturer carried the day.  Our hope is that innovators will continue to advance modern pharmaceutical products despite their increased potential for liability. We will be watching this space for further developments.

 

 

[1] In re Zofran (Ondansetron) Products Liability Litigation, 261 F.Supp.3d 62 (D. Mass. 2017) (citing In re Darvocet, Darvon, and Propoxyphene Products Liability Litigation, 756 F.3d 917, 938-939 (6th Cir. 2014)).

[2] 407 P.3d 18, 29 (Cal. 2017).

[3] Id. at 47.

[4] Rafferty v. Merck & Co., Inc. & Sidney Rubenstein, No. SJC–12347 (Mass. Mar. 16, 2018).

[5] Id. at 2-3.

[6]Rafferty v. Merck & Co., Inc., No. SJC–12347 at 3-4. The statutory and regulatory constructs pertaining to drug labeling are quite complicated.  Relevant to the matter considered by the SJC, the Drug Price Competition and Patent Term Restoration Act, informally known as the “Hatch-Waxman Act” requires the “manufacturer of a generic drug [to] provide its users with a warning label that is identical to the label of the brand-name counterpart.”  Id. at 4.  In accordance with the “federal duty of ‘sameness’” the two opportunities to alter a generic manufacturers preexisting warning are to: (1) update their label in response to their brand-name counterpart’s update; and (2) per specific FDA instruction. Id. at 6-7 (citing PLIVA, Inc. v. Mensing, 564 U.S. 604, 613-616 (2011)).  These federal laws makes it almost impossible for generic manufacturers to follow Massachusetts labeling laws because they do not have the unilateral power to act. See id.

[7] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 8.

[8] Id.

[9] Id.

[10] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 8-9.

[11] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 9.

[12] Id. Plaintiff also asserted a G.L. c.93A § 9 Consumer Protection Act claim and a negligent failure to obtain informed consent action against his physician.

[13] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 10; Rafferty v. Merck & Co., Inc. & Sidney Rubenstein, No. 2013–04459, 4 (Mass. Super. May 23, 2013) (emphasizing that because “Rafferty did not ingest the drug that Merck manufactured, Merck owes Rafferty no duty of care”).

[14] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 11.

[15] See e.g. Mathers v. Midland-Ross Corp., 403 Mass. 688, 691 (Mass. 1989); Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (Mass. 1986).

[16] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 16.

[17] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 17. This was especially so given generic products command approximately ninety percent of the market. Id.

[18] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 20-22.

[19] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 29.

[20] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 30.

[21] See Rafferty v. Merck & Co., Inc., No. SJC–12347 at 29 (citing Boyd v. National R.R. Passenger Corp, 446 Mass. 540, 546 (Mass. 2006); Restatement (Second) of Torts, § 500, 587 (1965)).

[22] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 30.

[23] Rafferty v. Merck & Co., Inc., No. SJC–12347 at 36. Additionally, Rafferty’s G.L. c. 93A § 9 claim was vacated because it did not satisfy the “any trade or commerce” provision, which requires that the unfair or deceptive practice is directly related to the advertising, selling, or trade of a Merck product.  Id. at 38.  Thus, because Rafferty used Finasteride, as opposed to Proscar, the claim is beyond the scope of G.L. c. 93A § 9.  Id. at 38-39

[24] 261 F.Supp.3d 62 (D. Mass. 2017). A multi-district litigation matter regarding side effects not purported within the label of Zofran and in-turn not purported on the label of the generic version, Ondansetron.

[25] In re Zofran, 261 F.Supp.3d at 64-65.

[26] In re Zofran, 261 F.Supp.3d at 71-72 (citing In re Darvocet, Darvon, and Propoxyphene Products Liability Litigation, 756 F.3d at 938-939.

[27] T.H. Novartis Pharm. Corp., 407 P.3d at 29 (citing Dolin v. SmithKline Beecham Corp., 62 F.Supp.3d 705 (N.D. Ill. 2014); Chatman v. Pfizer, Inc., 960 F.Supp.2d 641, 654 (S.D. Miss. 2013); Kellogg v. Wyeth, Inc., 762 F.Supp.2d 694, 704 (D. Vt. 2010); Wyeth, Inc. v. Weeks, 159 So.3d 649 (Ala. 2014)). See also Conte v. Wyeth, Inc., 168 Cal.App.4th 89 (Cal. Ct. App. 2008).

In Santiago[1] v. Rich Products Corp., et al.[2], the Massachusetts Appeals Court held that a finding of spoliation requires both: (1) the negligent and intentional loss or destruction of evidence; and (2) the awareness of the spoliator at the time the evidence is lost or destroyed of the potential for the evidence to help resolve the dispute. The Santiago Court’s strict interpretation of the doctrine of spoliation follows the trend of Massachusetts litigation, shifting focus from the first element, the spoliator’s conduct to the second element, its mental state. The opinion also accentuates the fact that non-compliance with a document retention policy does not equate to per se spoliation.

 

The underlying dispute arose in 2006, when the plaintiff, Kelvin Santiago, then a 7-year-old first grader at Lowell public schools, experienced traumatic brain damage after choking on meatballs that were served to him during school lunch. The plaintiffs (Kelvin Santiago and his parents) sued the city of Lowell and the entity that produced and sold the meatballs, Rich Products, asserting negligence, breach of the implied warranty of merchantability, and Chapter 93A consumer protection claims, amongst others. Id. at 2. By way of background, in 2004, as part of the Federal government’s initiative to provide healthy lunches to students through the National School Lunch Program, Rich Products began providing and producing meatballs that met the healthy-lunch specification guidelines. To comply with standards promulgated by the United States Department of Agriculture, Rich Products used Profam 974, a soy protein isolate, to achieve the requisite “two ounces of protein per student [per lunch].” Santiago, No. 16-P-504 at 3. The plaintiffs’ counsel argued that the inclusion of Profam 974 rendered the product unreasonably dangerous, because the soy protein produced a meatball whose texture made it a choking hazard. Id. at 6

 

Upon enduring substantial discovery and motion hearings, in 2014, the Superior Court awarded the city of Lowell summary judgment, and a jury found that Rich Products was not responsible, on the basis that its negligence was not a “substantial contributing factor to the plaintiffs’ injuries.” Id. at 2-3. On appeal, the plaintiffs argued that the trial court erred by, among other things, denying the plaintiffs’ request for an adverse-inference instruction regarding Rich Products’ alleged spoliation of evidence. Id. On December 28, 2017, the Appeals Court “conclude[d] that the trial judge did not abuse his discretion in declining to give a spoliation instruction because the plaintiffs failed to establish the necessary factual predicate that Rich Products lost or destroyed the missing evidence when it knew or should have known of a potential lawsuit.” Id. (emphasis added).

 

Spoliation is the destruction of evidence, negligently or intentionally, when the litigant is aware or should be reasonably aware that the evidence is relevant to a potential action, whether or not the action has officially commenced. Id. at 7 (citing Mass. G. Evid. § 1102 (2017)). “The doctrine does not extend to a fault-free destruction or loss of physical evidence;’” however, the purpose of the doctrine is to force accountability of a “party who culpably destroys evidence,” while providing a remedy to the other party “where unfair prejudice results.” Santiago, No. 16-P-504 at 7 (quoting Scott v. Garfield, 454 Mass. 790, 798 (Mass. 2009)); Keene v. Brigham and Women’s Hosp., Inc., 439 Mass. 223, 234 (Mass. 2003)(quoting Kippenhan v. Chaulk Servs., Inc. 428 Mass. 124, 127 (Mass. 1998)); Mass. G. Evid. § 1102 (2017). The court applies the reasonable person standard to determine whether the loss of evidence constitutes spoliation, by asking “at the time of spoliation, [did the party realize] the possible importance of the evidence to the resolution of the potential dispute?” Santiago, No. 16-P-504 at 7 (citing Kippenhan at 127)(emphasis added). The party seeking sanctions has the burden of proving that the spoliating party had the requisite knowledge by “producing evidence sufficient to establish certain preliminary facts.” Id. at 7 (citing Scott at 799). Should the sanction seeking party provide enough evidence to determine spoliation has occurred, a judge has a myriad of options to remedy the situation, so long as the sanction addresses, “the precise unfairness that would otherwise result” in the least severe way necessary. Santiago, No. 16-P-504 at 9 (citing Westover v. Leiserv, Inc., 64 Mass. App. Ct. 109, 113 (Mass. App. Ct. 2005) (quoting Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (Mass. 2002))); Santiago, No. 16-P-504 at 9 (quoting Keene 439 Mass. at 235).

 

Regarding the allegations at issue, the plaintiffs’ counsel claimed that Rich Products engaged in sanctionable conduct with respect to their “(1) laboratory notebooks and production records from 2004 relating to the development of the formula for the meatballs and (2) the results of product-development and production testing from 2004.” Santiago, No. 16-P-504 at 5. The plaintiffs’ counsel said that this evidence would highlight to the jury the unreasonably dangerous texture that Profam 974 created within the meatballs. Id. at 6. The plaintiffs, however, were able to recreate meatballs using Rich Products’ recipe provided in answers to interrogatories, and obtained expert testimony that identified those meatballs as unreasonably dangerous, and opined that “both the size and texture of the meatball presented a choking risk to children.” Id. at 6. Moreover, while articulating the alleged dangers of the product, the plaintiffs’ counsel neglected to identify whether or not Rich Products “at the time of spoliation” knew or should have reasonably known “the potential importance of the evidence to the resolution of the potential dispute.” Id. at 7. Judge Shin reinforced the Superior Court’s position that simply pointing to a document retention policy does not equate to a culpable or negligent destruction of documents with knowledge that the documents could solve a potential dispute. Id. at 6. Because the plaintiffs’ counsel ultimately could not bear this burden of proving intentional or negligent acts with knowledge as to their significance, there was no actionable spoliation. Id. at 8 (citing Vigorito v. Ciulla Builders, Inc., 57 Mass. App. Ct. 446, 454-455 (Mass. App. Ct. 2003)). Nevertheless, the Superior Court Judge acted within his discretion to allow the plaintiffs’ counsel to “argue [] the lack of evidence,” which “allow[ed] [the plaintiff] to make use of the fact the documents were missing,” ultimately painting the picture for the jury at each juncture of the trial. Santiago, No. 16-P-504 at 8, 11.

 

Thus, the standard that Massachusetts courts demand for proving spoliation requires a showing of knowing action, or failure to act, before the court will punish a party for failing to preserve evidence. At the same time, if critical pieces of evidence are missing, Massachusetts have the authority to allow counsel an opportunity to present this point to the jury without the imposition of sanctions such as an adverse inference instruction.  Id. at 11

[1] Kelvin Santiago & Julia Rivera and Juan Santiago, individually and as next friends of Kelvin Santiago

[2] Kelvin Santiago & Others v. Rich Products Corp., Casa Di Bertacchi Corp., and the city of Lowell, No. 16-P-504 (Mass. App. Ct. Dec. 28, 2017)

 

 

In the first case of its kind to go to trial, a jury recently returned a defense verdict against a plaintiff who claimed that exposure to Johnson & Johnson’s Baby Powder caused her to develop mesothelioma.

The plaintiff, Tina Herford, filed suit in the Los Angeles County Superior Court and alleged that her exposure to asbestiform fibers, through the inhalation of Johnson & Johnson’s Baby Powder, caused her to develop mesothelioma. In seeking 24 million dollars in damages, Ms. Herford alleged that Johnson & Johnson was aware that its talcum-based products, and specifically its baby powder, were contaminated with asbestos, and that the company concealed this information from the public for approximately 100 years.

Johnson & Johnson presented expert testimony from an oncologist that the proximate cause of Ms. Herford’s mesothelioma was her exposure to radiation from treatments for an unrelated, prior cancer. Johnson & Johnson also denied that its talcum-based products ever contained talc contaminated with asbestos, and stated that Johnson & Johnson complies fully with FDA regulations and standards regarding its baby powder and other products, as well as industry standards established by the Personal Care Products Council (formerly the Cosmetic Toiletries Fragrance Association) for testing crude talc.

After two days of deliberations following a trial that lasted approximately four weeks, a Pasadena, CA jury returned with a verdict for Johnson & Johnson and its co-defendant, Imerys Talc America Inc. The jury rejected the Plaintiffs’ allegations that Imerys had supplied and that Johnson & Johnson sold talc which was contaminated with asbestos. The jury found that J&J did not negligently design or sell its talc products, that the talc product did not fail to perform as safely as a reasonable consumer would have expected, that the talc product was not defective, and that Johnson & Johnson did not fail to warn of any potential risks, “known or knowable based on general scientific knowledge at time of sale.”  As a result, the jury never reached the issue of causation.

The Herford verdict comes in the wake of two rulings which reversed plaintiff verdicts in cases in which plaintiffs had alleged that Johnson & Johnson’s Baby Powder had caused ovarian cancer: Echeverria v. Johnson & Johnson, JCCP4872, Superior Court of Los Angeles, in which a $417M verdict was overturned; and Fox v. Johnson & Johnson, ED104580, Missouri Court of Appeals, Eastern District, where a $72-million verdict against Johnson & Johnson was thrown out.

There are currently more than 5,500 talc-related claims pending in state and federal courts in multiple jurisdictions throughout the United States. The Herford verdict is a reminder that reliable scientific evidence and facts, rather than rumors and rushed judgment, should decide these cases.

district court
Washington, D.C. District Court of Appeals

The District of Columbia Court of Appeals recently adopted the standards found in Federal Rule of Evidence 702 (“Rule 702”), regarding the admissibility of testimony by expert witnesses, thereby replacing the Frye (“Frye”) test.  See Motorola Inc., et al. v. Michael Patrick Murray, et al., 2016 WL 6134870 (October 20, 2016)(“Motorola”). Washington D.C. is now the most recent jurisdiction to adopt Rule 702, a trend that has continued since Rule 702 was amended in 2000 to reflect United States Supreme Court decisions pertaining to expert witness testimony, such as Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); and General Electric v. Joiner, 522 U.S. 136 (1997).

Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. the testimony is based on sufficient facts or data;
  3. the testimony is the product of reliable principles and methods; and
  4. the expert has reliably applied the principles and methods to the facts of the case.

In Motorola Plaintiffs in thirteen cases sued numerous cell phone manufacturers, service providers, and trade associations, alleging that long-term exposure to cell-phone radiation caused their brain tumors. The trial Judge Frederick H. Weisberg, held four weeks of evidentiary hearings on the admissibility of the expert testimony offered by the plaintiffs. He concluded that, based on the record before him, some, but not all, of Plaintiffs’ proffered expert testimony on general causation was admissible under the Frye evidentiary standard, but “most, if not all, of Plaintiffs’ experts would probably be excluded under the Rule 702/Daubert standard.” Judge Weisberg then certified the following question of law to the Circuit Court: “whether the District of Columbia should adopt Federal Rule of Evidence 702 (or a revised Frye standard) for the admissibility of expert evidence.”

In certifying the question, Judge Weisberg noted,

[A]t the risk of over-simplification[,] if a reliable, but not yet generally accepted, methodology produces ‘good science,’ Daubert will let it in, and if an accepted methodology produces ‘bad science,’ Daubert will keep it out; conversely, under Frye, as applied in this jurisdiction, even if a new methodology produces ‘good science,’ it will usually be excluded, but if an accepted methodology produces ‘bad science,’ it is likely to be admitted.

The District of Columbia Court of Appeals, en banc., heard the question, Plaintiffs’ appeal, and adopted the Rule 702 standards unanimously, with Judge Easterly providing a concurring opinion.

Associate Judge Fisher, writing for the Court, stated, “the ability to focus on the reliability of principles and methods, and their application, is a decided advantage that will lead to better decision-making by juries and trial judges alike.” Associate Judge Fisher highlighted the language in State v. Coon, deeming the Frye test, “as both unduly restrictive and unduly permissive” because the crux of the test is general acceptance as opposed to reliability. 974 2d. 386, 394 (Alaska 1999). The standards deriving from Rule 702, however, require trial court judges to act as “gatekeepers” in the determination of whether or not expert testimony is relevant and reliable. Associate Judge Fisher cited to the Daubert decision to emphasize, “the objective of the gatekeeping requirement is to make certain that an expert…employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”  Despite this, the Court explicitly stated that differing scientific opinions can be equally reliable. In so doing, the Court established that minority opinions within expert communities will not be per se unreliable.

The Court considered revising the Frye test, as some jurisdictions have done. It rejected doing so given their belief that Rule 702/Daubert analysis better ensures evidentiary reliability based upon scientific validity. It also found substantial benefits to be gained from adopting a test that is widely used.

The Court directed future litigants and judges to review closely the Advisory Committee Notes to Rule 702, and the cases cited therein when making Rule 702/Daubert challenges. See Fed. R. Evid. 702 advisory committee’s note (2000 Amendment); Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802 (3d Cir. 1997)(regarding newly founded expert theorems); Sheehan v. Daily Racing Form, Inc., 104 F.3d 940 (7th Cir. 1997)(demanding consistency between the expert’s professional and testimonial opinion); Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)(regarding expert’s consideration of “obvious alternative explanations”). It will apply Rule 702 to all civil and criminal cases in which the trial begins after the date of this opinion. The Court also indicated that it will consider at a later time whether the standard applies to cases that have already been tried but are not yet final on direct appeal.

The District of Columbia now joins twenty-seven states in adopting the factors of the Daubert standard and rejecting the Frye test. See Andrew Flake, Eric Harlan & James King, 50 State Survey of Applicability of Daubert, available here (last visited Oct. 28, 2016).

The full decision can be read here.

About the Author

Jonathan F. Tabasky is a partner with the firm. He has primary responsibility for the management, handling and defense of litigation brought against many different types of professionals. His clients include architects, attorneys, engineers, real estate brokers, real estate appraisers and independent insurance adjusters, among others. Since joining the firm, Jon has also been extensively involved in the defense of product liability and toxic tort claims. In this capacity, Jon represents a broad range of companies, including those that manufacture prescription drugs, protective clothing, fittings, heating devices, wire and cable, trucks, aircraft and turbines. As a result, Jon regularly works with renowned epidemiologists, pathologists, industrial hygienists, pulmonologists, radiologists, economists and others. Jon also defends product and premises liability cases brought against major retailers.

Alexander Zodikoff is a law clerk with Manion Gaynor & Manning LLP, and in his final year of law school at Suffolk University. Alexander received his B.A. from Virginia Tech.