On January 31, 2017, President Trump nominated Judge Neil Gorsuch to the U.S. Supreme Court. Although time will tell, this post assumes he will make it through the Senate confirmation process, and take his place at 1 First Street, Northeast. Currently, Judge Gorsuch sits on the United States Court of Appeals for the Tenth Circuit, having been appointed to same by President George W. Bush on July 20, 2006.  While at the Tenth, Judge Gorsuch issued two interesting decisions which may prove instructive as to how he views the Court’s role as the evidentiary gatekeeper[1] of expert testimony. A discussion of those two cases, and what they foretell with regard to “all exposures contribute” testimony follows.

Graves v. Mazda Motor Corp., 2010 WL 5094286.

This case arises out of Mrs. Graves’ trip to Hattiesburg, Mississippi. Upon arriving at the Hattiesburg airport, she picked up her rental car—a Mazda 6 with an automatic transmission. At the end of her stay and while en route to the airport to depart for home, Mrs. Graves got lost and pulled over to ask for directions. When exiting the car, Mrs. Graves left the engine running but thought she had placed the car’s shifter in “park.” As it turns out, the gear shifter was in “reverse” and, when she stepped out, the car rolled backwards, knocked her to the ground, and ran her over. Mrs. Graves sought damages from Mazda for the injuries she suffered, alleging that the company’s gear shifter was defectively designed. In support of her claim, she offered expert testimony from an expert human factors engineer. The district court, however, excluded the expert’s testimony as unreliable and then, given the absence of any other probative evidence of liability, granted Mazda’s summary judgment motion. On appeal, the plaintiff sought to undo the district court’s decision.

The district court noted that the expert failed to provide any data or industry standard, or to conduct any testing to confirm his view that Mazda’s gear shift design was defective. Instead, the expert’s proffered testimony that merely described how the Mazda shifter works, and from this, his leap to the conclusion that Mazda’s design fails to allow for “smooth” shifting and so is defective and unreasonably dangerous.

Judge Gorsuch, writing for the three judge panel (Kelly, J., Ebel, J.) noted that without any reference to data suggesting how “smoothly” an ordinary consumer would expect a gear shift to move, without any confirming evidence indicating how Mazda’s design might cause shifting troubles for ordinary drivers, without any reference to how engineering standards might have counseled against Mazda’s gear shift design, and without any other evidence suggesting its reliability, the district court was right to exclude the expert’s testimony. Judge Gorsuch noted that the expert did provide a list of “safety systems analysis” techniques that, he contended, Mazda should have used in assessing its design, but even here, the expert failed to offer any evidence suggesting that Mazda actually failed to use these techniques, or if it
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House Bill 4123 makes two changes to Massachusetts Superior Court procedure, both of which favor plaintiffs.  The first, addressed by Section 1 of the bill, allows plaintiffs’ attorneys to request a specific monetary amount of damages at trial.  The second, addressed by Section 2 of the bill, allows attorneys to conduct voir dire.

The Language of the Bill

Section 1 of the bill states that “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial.”

Section 2 of the bill requires the court, upon the request of any party or any party’s attorney, to permit “the party or the party’s attorney to conduct, under the direction of the court, an oral examination of the jury venire.”  This examination is not unlimited, however.  Instead, “[t]he court may impose reasonable limitations upon the questions allowed during such examination.”  The court may provide additional time to the parties at its discretion.

Examination by a party or a party’s counsel does not replace voir dire conducted by the court.  Instead, such examination is “[i]n addition to whatever jury voir dire of the jury venire [that] is conducted by the court.”  Also, the bill does “not limit the number of peremptory challenges a party is entitled to by statute or court rule.”

Massachusetts’s Jury Trial Statistics

 

In a 2005 study, the Department of Justice analyzed plaintiff success rates in the United States’ seventy-five most populous counties.  Four Massachusetts counties were included in this study: Essex, Middlesex, Suffolk, and Worcester.  The study revealed that plaintiffs prevailed approximately 53.2 percent of the time nationwide.  However, in the four Massachusetts counties, plaintiffs prevailed in only 79 of the 321 jury trials, for a success rate of approximately 24.6 percent.

 

Potential Impact of the Bill

 

The Massachusetts Academy of Trial Attorneys, an organization of Massachusetts plaintiffs’ attorneys, believes that the implementation of House Bill 4123 will make Massachusetts a more plaintiff-friendly jurisdiction.  After the governor signed the bill into law, the Academy’s president posted a letter to the group’s website calling the bill “a cultural shift in Massachusetts.”  The letter further stated that “the ability to state a dollar amount at trial is also a huge advance” for plaintiffs’ attorneys.

If the Academy is correct, House Bill 4123 could make Massachusetts a particularly problematic jurisdiction for toxic tort and products liability defendants.  According to the Department of Justice’s 2005 study of nationwide trial statistics, plaintiffs prevailed in jury trials less than half as frequently in Massachusetts as they do throughout the country.  If plaintiffs in Massachusetts jury trial begin winning more often because House Bill 4123 (1) gives their attorneys a better chance to influence the jury through attorney-conducted voir dire and (2) strengthens their attorneys’ presentation to the jury by authorizing them to request a specific amount of monetary damages, then Massachusetts could become an appealing jurisdiction for plaintiffs, and plaintiffs’ attorney might be emboldened to push cases to the
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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
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Co-authored by Brian Gross

The Texas legislature recently enacted a major tort reform law which would make the losing party pay the opposing party’s “costs and reasonable and necessary attorney’s fees.”  In its true form, this rule, also known as the “English Rule,” requires that a losing party in litigation pay the fees and the costs of the prevailing party.  To date, this law is employed in its “pure” form only in Alaska, but it is common in much of Europe, Great Britain and Canada.  Although the final version of the Texas law differs substantially from the English Rule in that it applies only to a party who prevails on a motion to dismiss, and not to a party who prevails at summary judgment or trial, it may signal a growing trend to punish those who unnecessarily overburden limited court resources.  The current budget crises faced by courts across the country provide strong support for the English Rule, at least in some form, in an effort to streamline courts’ dockets.  And although Texas just recently statutorily adopted a form of the English Rule for all tort cases, a form of the English Rule has apparently already made its way into asbestos litigation.

New Jersey Appellate Court Makes Losing Asbestos Defendant Pay Plaintiff’s Attorney Fees

Last month, a New Jersey Appeals Court ruled that an asbestos defendant who failed to reach settlement, and subsequently lost at trial, is responsible to pay all of plaintiff’s attorney fee related to the trial and appeal.  In Buttitta v. Allied-Signal Inc., et al., No. A-6117-09T4, 2011 WL 3180455 (N.J. Super. Ct. App. Div. July 28, 2011), Susan Buttitta filed a wrongful death lawsuit against multiple defendants in which she alleged that her husband’s mesothelioma was caused by his exposure to asbestos-containing products while employed in a General Motors Corporation warehouse.  Plaintiffs sued several companies, including Asbestos Corporation Ltd. (“ACL”), a Quebec-based asbestos mining company.

Prior to trial, Buttitta settled with or dismissed all of the defendants, with the exception of ACL and Borg-Warner Corp.  Plaintiff subsequently made a settlement demand of $10 million to the two companies, which each rejected prior to trial. Ultimately, the jury returned a verdict of approximately $30 million against the two remaining defendants.

ACL unsuccessfully appealed the verdict, and plaintiff then moved for reimbursement of the costs of trial and appeal, including her attorneys fees and expenses.  The trial judge granted Buttitta’s motion, and awarded $655,000 in attorney fees and $59,000 in expenses against ACL.  ACL appealed.  On appeal, the New Jersey Appellate Court held that New Jersey state law provides for the imposition of reasonable attorneys fees against a losing party that declines to settle a case before trial, and is applicable when a final judgment is more than 120% of the amount of the settlement offer.  The Appeals Court concluded that the plain language of the law required finding ACL responsible for all of Buttitta’s reasonable costs and attorneys fees because of its refusal to
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