After more than five years of uncertainty, the Florida Supreme Court’s opinion in DeLisle v. Crane finally settled the debate over the standard for determining the admissibility of expert witness testimony in Florida state courts. Case No. SC16-2182 (Fla. Oct. 15, 2018). In a narrow 4-3 decision, the court rejected Daubert and adopted Frye. The outcome should come as no surprise. In 2017, in a rarely exercised move, the Florida Supreme Court declined to adopt the legislature’s 2013 revisions to the Florida Evidence Code codifying Daubert.

Continue Reading Frye Is Now, and Once Again, the Standard for Expert Opinion Admissibility in Florida

In this third and last installment of our three-part series examining the type of deposition questioning that can derail your opponent’s expert and set up a successful Daubert challenge, we will look at Daubert’s insistence that the expert’s opinions be based on “reliable methodology” before opinions can be presented to the jury.

What exactly does a reliable methodology under Daubert mean? Essentially, it requires that the expert’s opinions be based on information gathered in the same manner as a scientist would undertake before he or she reaches a conclusion about the design of the product at issue. The distinction is between using sound scientific procedures as opposed to unsupported speculation to develop a hypothesis, analyze and test against it, and reach a conclusion.

Continue Reading Cross-Examining the Expert Witness in a PL Case Part III: Challenging the Methodology

In the first part of this series, we examined how effective deposition questioning about an expert’s education, training and experience can ultimately call into serious question the expert’s qualifications to serve as an expert witness at trial and survive a subsequent Daubert motion. We examined how some experts, despite their seemingly extensive and impressive credentials, may actually have no experience in the relevant field or may be exaggerating the depth of their past work experience. This may ultimately lead to the Court finding that the expert is offering opinions in an area about which they know nothing.
Continue Reading Cross-Examining the Expert Witness in a PL Case Part II: What Are the Relevant Facts & Data?

87531931Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.
Continue Reading WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk

Assorted Pills_SS_46658200Plaintiff’s expert is excluded for relying on a “novel” methodology to support opinion that antidepressant drug causes birth defects. 

On June 27, 2014, in In Re: ZoloftU.S. District Judge Cynthia Rufe of the Eastern District of Pennsylvania issued an opinion excluding an expert in a case that bears a striking resemblance to the facts of Daubert v. Merrell Dow. We think Judge Rufe’s decision in Zoloft will serve as useful precedent to the defense bar and their clients in future pharmaceutical product liability litigation.

Continue Reading Daubert Déjà Vu