“Indispensable” Methods for Admitting General Causation Experts in the Eleventh Circuit

BY ERICA W. RUTNER & LARA BUESO BACH, 69 U. Miami L. Rev. 999 (2015).

Introduction: Cases involving medical causation often turn on the plaintiff’s ability to offer admissible expert testimony. In fact, in products liability cases proceeding in the Eleventh Circuit, plaintiffs are required to have admissible expert testimony establishing both general causation—that the agent in question is capable of causing the type of harm alleged—and specific causation—that the agent did in fact cause the plaintiff’s injury. Given this requirement, plaintiffs in products liability cases routinely spend thousands (if not hundreds of thousands) of dollars searching for and engaging the leading scientists in the field in order to meet this burden. Defendants similarly undertake this same practice in search of expert testimony to rebut causation. Regardless of the experts’ qualifications, however, if they do not adhere to the reliability standards espoused under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., they will never be permitted onto the witness stand to convince a jury of their opinions. And without any expert testimony to offer the jury, a plaintiff’s case will necessarily be dismissed. Thus, products liability cases are often won or lost at the Daubert stage, making the court’s Daubert order the centerpiece of the litigation.

Pursuant to the basic tenets of Daubert, an expert must employ a scientifically reliable methodology in reaching its opinion. The Eleventh Circuit has had numerous opportunities to interpret and apply Daubert’s reliability requirements in the context of general causation testimony. Notably, the Eleventh Circuit initially adopted a much more lenient interpretation of Daubert, but was twice overturned by the Supreme Court in post-Daubert decisions. Since those reversals, the Eleventh Circuit has embraced an increasingly rigorous approach to the examination of experts, particularly with respect to causation testimony. The Eleventh Circuit now closely examines the bases for an expert’s general causation testimony, deeming certain types of methodologies scientifically reliable for establishing general causation and certain other types of methodologies inherently unreliable. Yet, prior to the decision in Chapman v. Procter & Gamble Distributing, L.L.C., the Eleventh Circuit had never clarified which methodologies, if any, were actually necessary in order for an expert to reliably opine on general causation. The decision in Chapman expounds upon Eleventh Circuit Daubert jurisprudence, labeling three methodologies “indispensable” to general causation: epidemiological studies, dose-response relationship, and background risk of disease. Presumably all three methodologies are not required, but it appears as though an expert must rely on at least one of these methodologies to survive Daubert.

In light of the recent decision in Chapman, this article details the methodologies deemed “indispensable” by the Eleventh Circuit, as well as those deemed unreliable as a basis for inferring general causation. These principles bear on all aspects of expert discovery, including retaining experts, developing and disclosing expert opinions, and preparing and responding to Daubert motions. In fact, they are so significant to the outcome of litigation that they should also inform any assessment of a case’s outlook and viability. Thus, practitioners facing products liability cases should pay close attention to the recent developments in Eleventh Circuit Daubert jurisprudence in developing and pursuing their litigation strategy. . . . Full Article.

Recommended Citation: Erica W. Rutner & Lara Bueso Bach, “Indispensable” Methods for Admitting General Causation Experts in the Eleventh Circuit, 69 U. Miami L. Rev. 999 (2015).

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