GAINING INSIGHT INTO GAINING INSIGHT INTO LEGAL DEVELOPMENTSLEGAL DEVELOPMENTSGAINING INSIGHT INTO GAINING INSIGHT INTO LEGAL DEVELOPMENTSLEGAL DEVELOPMENTS
RECENT DEVELOPMENTS IN TOXIC TORT LAW
Eric L. Horne, Member, ESCM/Toxic Tort Litigation Group
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Course DescriptionCourse DescriptionCourse DescriptionCourse Description
Recent trends in mass tort litigation, Including old and new products at
issue, Expert testimony and evidentiary
considerations in toxic tort trials, How these trends impact
presentation and defense of these claims.
DISCLAIMER: Speaker defends these claims.
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SUMMARY OF TOPICSSUMMARY OF TOPICS
I. Introduction II. Expert and Evidentiary Issues III. Reforms in Toxic Torts IV. New Products at Issue V. Defending Toxic Torts
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I.I. INTRODUCTIONINTRODUCTIONI.I. INTRODUCTIONINTRODUCTION
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TOXIC TORTS ARE:TOXIC TORTS ARE:TOXIC TORTS ARE:TOXIC TORTS ARE:
TORTS: Personal and business losses…
CAUSED by EXPOSURES of land or persons to TOXIC SUBSTANCES
[Typically, personal injury cases, but they can involve business losses.]
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DAMAGES IN TOXIC TORTSDAMAGES IN TOXIC TORTS
Personal injury, illness, deathMedical expenses, wage loss, benefits
lossesGeneral (non-economic damages)
Medical Monitoring [Redland Soccer, 696 A.2d 137 (Pa 1997)]
Economic damagesCost of product, product replacement
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TOXIC SUBSTANCESTOXIC SUBSTANCESTOXIC SUBSTANCESTOXIC SUBSTANCES
Naturally occurring substances used in commerce:
Elements: nickel, berrylium, leadCompounds: asbestos, foods
ORMan-made or synthesized substances:
Latex, drugs, exhaust fumes, food additives, pesticides, nano-particles
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TOXIC TORTS LITIGATIONTOXIC TORTS LITIGATIONtakes several forms:
TOXIC TORTS LITIGATIONTOXIC TORTS LITIGATIONtakes several forms:
Mass Tort Litigation [large groupings of cases in “novel” trial settings]
Repetitive Tort Litigation [similar cases in succession]
Class Action Litigation
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MASS TORT LITIGATIONMASS TORT LITIGATIONMASS TORT LITIGATIONMASS TORT LITIGATION
Examples: MDL Litigation “Mass Consolidated Trials”
“Selected issues” only are tried: General causation, punitive damages
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REPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATIONREPETITIVE TORT LITIGATION
Examples: Asbestos cases VIOXX cases Individual plaintiffs or groups of
plaintiffs.
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II. EXPERT AND EVIDENTIARY II. EXPERT AND EVIDENTIARY ISSUES IN TOXIC TORT CASESISSUES IN TOXIC TORT CASESII. EXPERT AND EVIDENTIARY II. EXPERT AND EVIDENTIARY ISSUES IN TOXIC TORT CASESISSUES IN TOXIC TORT CASES
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Distinguish: Traditional TortsDistinguish: Traditional TortsDistinguish: Traditional TortsDistinguish: Traditional Torts
Auto driver runs a red light, hits another vehicle breaking the other driver’s leg.
Auto’s brakes fail, auto doesn’t stop, hits another vehicle breaking the other driver’s leg.
In the subsequent lawsuit, there is no question that the “broken leg” was CAUSED by the collision of vehicles.
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IN TOXIC TORT CASES “CAUSE” IS SELDOM IN TOXIC TORT CASES “CAUSE” IS SELDOM CLEAR-CUTCLEAR-CUT.
IN TOXIC TORT CASES “CAUSE” IS SELDOM IN TOXIC TORT CASES “CAUSE” IS SELDOM CLEAR-CUTCLEAR-CUT.
The suits resemble claims that: a car accident took place 30 years ago, had no witnesses, had no effect for 28 years, the “other driver” might be one of any
of 50 possible “other drivers”, and caused injury of a type possibly
also caused by any number of events.
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IN TOXIC TORT CASES EVERY ASPECT OF IN TOXIC TORT CASES EVERY ASPECT OF THE “COLLISION” CAN BE OBSCURETHE “COLLISION” CAN BE OBSCURE
IN TOXIC TORT CASES EVERY ASPECT OF IN TOXIC TORT CASES EVERY ASPECT OF THE “COLLISION” CAN BE OBSCURETHE “COLLISION” CAN BE OBSCURE
The offending “vehicles” are tiny, unobservable
The latency period between exposure and harm can be decades
The doses experienced by the claimant are unascertainable
The doses needed to generate injury are unclear
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SCIENCE PROVIDES THE BASIS TO ASSERT SCIENCE PROVIDES THE BASIS TO ASSERT LEGALLEGAL
EFFECT [INJURY] AND CAUSEEFFECT [INJURY] AND CAUSE
SCIENCE PROVIDES THE BASIS TO ASSERT SCIENCE PROVIDES THE BASIS TO ASSERT LEGALLEGAL
EFFECT [INJURY] AND CAUSEEFFECT [INJURY] AND CAUSE
EXPERTS ARE THE CENTRAL WITNESSES IN TOXIC TORT CASES
WHAT ARE THE EFFECTIVE, REAL LIMITS ON EXPERT TESTIMONY?
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GRADYGRADY (Pa Supreme Court) and Pa RCP (Pa Supreme Court) and Pa RCP 207.1207.1
GRADYGRADY (Pa Supreme Court) and Pa RCP (Pa Supreme Court) and Pa RCP 207.1207.1
ELIMINATING THE OPPONENT’S EXPERT ALTOGETHER
FRYE [DAUBERT] ChallengesGrady v. Frito-Lay, Inc., 839 A.2d 1038 (2003)
PA RCP 207.1 procedures
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GRADY’S INJURYGRADY’S INJURY
4.7.1993: Admitted through ER after “chief complaint of having thrown up blood”, lightheaded, weak
Upper endoscopy reveals “a tear in the lower esophagus” and blood clot
Hospitalized for 6 days TREATING PHYSICIAN DX: ”Mallory-Weiss Gastroesophageal
mucosal tear”
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MEDICAL DXMEDICAL DX
“A Mallory-Weiss tear occurs in the mucous membrane where the esophagus connects to the stomach, causing bleeding. Mallory-Weiss tears are usually caused by forceful or prolonged vomiting or coughing. Any condition that leads to violent and lengthy bouts of coughing or vomiting can cause these tears.”
“Medline Plus”: www.nnlm.nih.gov
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GRADY SUED (4.05.95) and EMPLOYED 2 EXPERTS
GRADY SUED (4.05.95) and EMPLOYED 2 EXPERTS
Dr. Beroes, PhD/ME (mechanical engineer) Mechanically tested Doritos (chewing
and fracturing), concluding “The test results establish that large pressures result when a few pounds of force are applied…the sharp triangular chip tips can readily pierce the esophagus when driven into the walls of the esophagus by peristaltic action…”
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Dr Beroes also cited to several medical journal articles such as “Esophageal Tear Caused by a Tortilla Chip”
N Engl J Med 1990 May 10; 322 (19): 1399-1400
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Dr. Delerme, MD, JD (otolaryngology, ?) “It is clear that the Doritos nacho
chips lacerated his esophagus…The absence of a history of severe retching or vomiting is against this…being a Mallory-Weiss tear… The hardness of the chips and the sharpness of their edges…as demonstrated in a report from Charles Beroes…are sufficient to cause the injuries reported.”
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GRADY TRIAL COURTGRADY TRIAL COURT
Granted MIL: Precluding Beroes, the engineer, from opining on medical dx and injury
Granted MIL: Beroes’ “science” didn’t satisfy PA/Frye standard
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Granted MIL: Delerme opinions dependent upon Beroes’
Granted: Delerme not “qualified” to opine on cause of injury
Granted M/Non-Suit: Without Beroes, neither “defect” nor causation could be proven
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GRADY TRIAL COURTGRADY TRIAL COURT
No “Frye” hearing held before Rule 207.1 became effective
July 1, 2001
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GRADY PA SUPERIOR COURTGRADY PA SUPERIOR COURT
REVERSED: 1. Board certified Delerme was
qualified to testify
2. Beroes’ testimony would be admissible as to the “physical characteristics of the chips as revealed by the standard test he ..conducted..”
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Beroes tests “did not involve any novel or new scientific principles…”
AFFIRMED: Beroes could not testify to medical causation
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SUPERIOR COURT DISSENTSUPERIOR COURT DISSENT (Judge (laterJustice) Eakin) “The majority concludes compressive
strength studies and the scientific principles involved in them are not novel. Assuming this it true in the abstract, I cannot say the trial court erred when it rejected Dr.Beroes’ methods…Beroes’ own report did not attempt to lay a foundation as to the general acceptance of his methods..[and] fails to address how his methods…translate to the human body.”
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GRADY, 839 A.2d 1038 (Pa. 2003)GRADY, 839 A.2d 1038 (Pa. 2003)
REVERSES THE SUPERIOR COURTCite to PaRE 702
Proponent bears burden to show “that the methodology an expert uses is generally accepted by scientists in the relevant field as a method for arriving at the conclusions the expert will testify to…”
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Under PaRE 702 expert must still be qualified: an independent factor to be ruled on
“Abuse of Discretion” is the standard (like any other evidentiary matter), not overruled absent “manifest unreasonableness, or partiality, prejudice, bias, ill-will or such lack of support as to be clearly erroneous.”
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CONCLUSION: Remand to Trial CourtPA Superior Court never determined if
“discretion abused”Plaintiff failed to satisfy Frye burden:
“Beroes’ calculations…are not necessarily a generally accepted method that scientists in the relevant field use for reaching a conclusion as to whether Doritos are too hard to be eaten safely.”
Discretion not abused: Beroes is out
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Justice Lamb (concurring)
Dichotomy of “generally accepted methods” v. “generally accepted conclusions” easy to say, hard to put into practice
“Consensus by the relevant scientific community that a particular methodology is appropriately employed to reach a particular conclusion, will also imply a consensus as to the conclusion itself.”
Really?
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GRADY on RemandGRADY on Remand
With Beroes excluded, MSJ for defendant GRANTED
MIL Exclude Delerme Causation OpinionGranted?
Couldn’t rely on BeroesCouldn’t rely on customer complaints
(HS, not similar)Couldn’t rely on medical articles (not
Doritos, not similar)
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POST-POST-GRADYGRADY CASES CASESPOST-POST-GRADYGRADY CASES CASES
Hansen v. Wyeth, Inc., 72 Pa.D&C 4th 225 (PCCP, 2005) (Judge Bernstein)
McMurdie v. Wyeth, Inc., (2005 PCCP LEXIS 336) (Judge Bernstein)
Vinitski v. Adler, 69 Pa.D&C4th 78 (PCCP, 2004) Folger v. Dugan, MD, et al., 876 A.2d 1049 (PaSuper
2005) Commonwealth v. Whitacre, 878 A.2d 96 (PaSuper
2005) Busy Bee, Inc. v. Corestates Bank, 72 Pa.D&C4th 533
(Lackawanna, 2004)(Judge Nealon) Campbell-Perfilo v. PennDOT, 67 Pa.D&C4th 31
(Lackawanna, 2004)(Judge Nealon)
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“Conduit” HEARSAY Issues“Conduit” HEARSAY Issues
See: Loeffel Steel Products Inc. v. Delta Brands, Inc. 387 FSupp2d 794 (ND Illinois 2005)
Learned treatise “non-exception”See: Alldridge v. Edmunds, 750 A.2d
292 (Pa 2000)
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Scope of Expert Testimony: Limitations?
Scope of Expert Testimony: Limitations?
In Pennsylvania: Are there any?ReportMCARE Act, 40 P.S. Sec. 1303.512
(“Expert Qualifications”) Pa RE 703 and 705
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FACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONSFACT WITNESS LIMITATIONS
Self contradictory testimonyWilson v. AP Green Industries, Inc.,
807 A.2d 922 (PaSuper 2002) The “not wholly credible” standard
for reviewing affidavits on MSJsStephens v. Paris Cleaners, Inc.,
885 A.2d 59 (PaSuper 2005)
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III.III. REFORMS IN TOXIC TORT REFORMS IN TOXIC TORT LITIGATIONLITIGATION
Special thanks to Special thanks to Arun ThomasArun Thomas, , ESCM Product Liability Group, ESCM Product Liability Group, for materialsfor materials
III.III. REFORMS IN TOXIC TORT REFORMS IN TOXIC TORT LITIGATIONLITIGATION
Special thanks to Special thanks to Arun ThomasArun Thomas, , ESCM Product Liability Group, ESCM Product Liability Group, for materialsfor materials
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LEGISLATIVE REFORMSLEGISLATIVE REFORMSLEGISLATIVE REFORMSLEGISLATIVE REFORMS
Federal Class Action Fairness Legislation28 USC Sec. 1332, 1711, 1715
[2.2005] PA Joint and Several Liability Reforms
Dead? Federal Asbestos Litigation Reform
but cf: new “values”
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ATTORNEY GENERALS: HELPING?ATTORNEY GENERALS: HELPING?
Court investigations of fraudulent “mass screenings” [TX]
Counter-suits: “impersonations” [WV] Investigations of claims handling [NY] But, cf:
New suits initiated
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APPELLATE COURTSAPPELLATE COURTS
US Sup.Ct. on PUNITIVE DAMAGES BMW of NA v. Gore, 517 US 559
(1996)State Farm v Campbell, 543 US 874
(2004)Phillip Morris v. Williams, Cert Granted
at 05-1256 (Williams v. Phillip Morris, 48 P.3d 824 (Or.App. 2002)
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IV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUEIV. NEW PRODUCTS AT ISSUE
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NEW CAUSAL CONNECTIONS ARISE FROM NEW CAUSAL CONNECTIONS ARISE FROM SCIENCESCIENCE
NEW CAUSAL CONNECTIONS ARISE FROM NEW CAUSAL CONNECTIONS ARISE FROM SCIENCESCIENCE
Good and bad scienceScientists assess risks, identify
diseases and recommend treatmentsLawyers and litigation “experts” assert
cause and effect
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SPECIFIC CAUSATION IN TOXIC TORTSSPECIFIC CAUSATION IN TOXIC TORTS
“An expert who opines that exposure to a compound caused a person’s disease engages in deductive clinical reasoning…The opinion is based on an assessment of the individual’s exposure, including the amount, the temporal relationship between the exposure and disease…This information is then compared with scientific data on the relationship between exposure and disease. The certainty of the expert’s opinion depends on the strength of the research data demonstrating a relationship between exposure to disease at the dose in question.
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Particularly problematic are generalizations made in personal injury litigation from regulatory positions. Regulatory standards traditionally include protective factors to reasonably ensure that susceptible individuals are not put at risk. Furthermore, standards are often based on the risk that is due to lifetime exposure. Accordingly, the mere fact that an individual has been exposed to a level above a standard does not necessarily mean that an adverse effect has occurred.”
Reference Manual on Scientific Evidence (2d Ed), pp. 422-424
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“THE SCIENCE” is always changing“THE SCIENCE” is always changing
Lower detection levels
Better epidemiology
New concepts: Biopersistence, bioaccumulation
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EXAMPLES OF “NEW” PRODUCTS AT EXAMPLES OF “NEW” PRODUCTS AT ISSUE IN TOXIC TORTSISSUE IN TOXIC TORTS
EXAMPLES OF “NEW” PRODUCTS AT EXAMPLES OF “NEW” PRODUCTS AT ISSUE IN TOXIC TORTSISSUE IN TOXIC TORTS
“Popcorn Butter Lung”: Microwave Popcorn additive (diacetyl) causes a unique lung condition
Nano-particles [see website material] Olestra (a fat substitute in snack foods which
allegedly inhibits vitamin absorption) [See: Lawyersandsettlements.com; center for science in the
public interst.com]
Berrylium [13 PennSt. Envtl.L. Rev. 239]
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Lead in toys [Lewis v. Exxon, 348 FSupp2d 932 (WD/TN 2004)]
Diesel exhaust Benzene (in soft drinks) Ipods
[In re Apple iPod nano Products Liability Litigation, MDL 1754; N.D CA]
VOCs Mold (?) Genetically-engineered Food
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““PFOA”: A TOXIC TORT IN THE MAKINGPFOA”: A TOXIC TORT IN THE MAKING““PFOA”: A TOXIC TORT IN THE MAKINGPFOA”: A TOXIC TORT IN THE MAKING
In March 2006, EPA/Scientific Advisory Board recommended that “Perfluorooctanoic acids” be labeled a “likely human carcinogen”
So what?
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PFOA’s ARE USED IN MAKING COUNTLESS PFOA’s ARE USED IN MAKING COUNTLESS CONSUMER PRODUCTSCONSUMER PRODUCTS
PFOA’s ARE USED IN MAKING COUNTLESS PFOA’s ARE USED IN MAKING COUNTLESS CONSUMER PRODUCTSCONSUMER PRODUCTS
DuPont Teflon© Stain and water resistant fabrics,
food wrappings, non-stick cookware Almost all Americans are using these
products
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EPA WAS PROMPTED TO CHANGE PFOA EPA WAS PROMPTED TO CHANGE PFOA STATUS BY RECENT RESEARCHSTATUS BY RECENT RESEARCH
EPA WAS PROMPTED TO CHANGE PFOA EPA WAS PROMPTED TO CHANGE PFOA STATUS BY RECENT RESEARCHSTATUS BY RECENT RESEARCH
EPA “preliminary” research findings show PFOA present in general population blood samples and in environment.
Animal studies indicate, according to EPA, systemic toxicity, carcinogenicity, reproductive toxicity and immunotoxicity.
See: www.epa.gov “Basic Information on PFOA”
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RESULT?RESULT? RESULT?RESULT?
EPA proceeding against DuPont IN RE Teflon Products Liability
Litigation, S.D. Iowa, MDL No. 1733 (filed 2/21/2006)
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Citing growing public health concerns, the United Steelworkers (USW) union has informed major carpet cleaning retailers and wholesalers, fast food chains, and major retail clothing companies that they may have "a legal duty to warn" their customers about potential harmful effects of products that may contain the chemical perfluorooctanoic acid, also ...
Steelworkers, Environmental, Consumer Groups Urge California To List Teflon Chemical As A Carcinogen
Listing would trigger California’s “Right to Know” law Pittsburgh, Pa.— On Wednesday, a coalition consisting of
the United Steelworkers (USW), Sierra Club, Environmental Law Foundation, Environment California, U.S. Public Interest Research Group (PIRG), Natural Resources Defense Council (NRDC) and Environmental Working Group (EWG) filed a petition to have PFOA listed as “a chemical that is known to the state to cause cancer” under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65.
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V. DEFENDING THE TOXIC TORT V. DEFENDING THE TOXIC TORT CASECASE
V. DEFENDING THE TOXIC TORT V. DEFENDING THE TOXIC TORT CASECASE
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EDUCATING THE COURTEDUCATING THE COURTEDUCATING THE COURTEDUCATING THE COURT
General and Specific Causation Avoiding the “Presumption of
Liability” Distinguishing your defendant among
the group
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INFLUENCING CASE MANAGEMENTINFLUENCING CASE MANAGEMENTINFLUENCING CASE MANAGEMENTINFLUENCING CASE MANAGEMENT
“Lone Pine” orders [Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000)]
Standard discovery Limitations on numbers of cases Bifurcation of issues [watch out!] ALWAYS PARTICIPATE FOR YOUR
DEFENDANT
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USING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSESUSING PROCEDURAL DEFENSES
Venue Considerations
Using Federal law: Pre-emption, removal
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““DEFENDING” INDUSTRY SCIENCEDEFENDING” INDUSTRY SCIENCE““DEFENDING” INDUSTRY SCIENCEDEFENDING” INDUSTRY SCIENCE
THE “Hot” Issue ? See: Justice Castille’s remarks
Blum v. Merrell Dow Pharm., 764 A.2d 1 (2000) dissent
Grady, pp. 1048-1049 “[defendant’s]..role in virtually creating, and
then slanting, the “scientific community” should be a relevant factor in the Frye analysis.”
Defendant as “guarantor” Defendant as “expert”
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WILD CARDSWILD CARDSWILD CARDSWILD CARDS
Monitoring the MonitorsExample: FDA “Drug Watch”Plaintiff’s counsel’s websites
New Experts: “TOXICO-GENOMICS” ?
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