Growing Pains: The Story Behind Florida’s Daubert Arc – Part 3

You can find the first two parts of this story here and here.

In 2013, spurred by the decisions in Marsh and Hood, the Florida Legislature amended F.S. 90.702 to mirror Federal Rule of Evidence 702. In a preamble to the final bill, the Legislature expressed its intent to (1) adopt the standards set forth in the U.S. Supreme Court’s Daubert trilogy and (2) prohibit “pure opinion testimony as provided in Marsh…”

The Plaintiff’s Bar Parries

Ordinarily, this definitive a legislative adoption of Daubert and rejection of Frye and pure opinion would be the end of the story. But Florida plaintiffs’ lawyers immediately mounted a challenge to the amendment based on the separation of powers provisions of the Florida Constitution, and they had a liberal and receptive Supreme Court.

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9th Circuit Restores and Clarifies Standards for Certification of Settlement Classes

The Ninth Circuit’s recent en banc decision in In re Hyundai and Kia Fuel Economy Litigation, — F.3d —, 2019 WL 2376831 (9th Cir. Jun. 6, 2019), restored some much-needed balance to the class action universe. The court reversed the controversial 2018 panel decision that overturned a nationwide class settlement in a multidistrict litigation over car manufacturers’ fuel economy misrepresentations. The panel decision addressed the impact of potential variations in state law, holding the district court abused its discretion in approving the settlement and certifying a settlement class without conducting a rigorous choice-of-law analysis to determine whether the variations defeated predominance under FRCP 23(b)(3).

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Growing Pains: The Story Behind Florida’s Daubert Arc – Part 2

You can find the first part of this story here.

The Aftermath of Marsh

When the Marsh case was decided in 2007 its broad interpretation of the “pure opinion exception” and narrow vision of the role of Frye took Florida expert evidence admissibility law well out of the mainstream. Florida law was starkly at odds with the reliability concerns addressed by Daubert and its progeny and counterparts.

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Growing Pains: The Story Behind Florida’s Daubert Arc – Part 1

The steady but sometimes slow adoption by the states of the Daubert standard for expert admissibility, and the accompanying recession of the Frye standard, is something of a coming of age for the national jurisprudence. Frye has become outmoded and anachronistic in an era of dizzying technological and scientific advancement ─ and riddled with exceptions. Daubert’s focus on reliability and fit incorporates the necessary flexibility, rigor, and judicial engagement to warily allow the expert wheat while turning away the chaff. The transition has played a pivotal role in fine-tuning the tort system in search of well-founded fact-finding and more rational adjudications.

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Does Pennsylvania Recognize Strict Liability Claims Against Medical Device Manufacturers? A Pennsylvania federal court calls the question.

For at least two decades, Pennsylvania law has recognized an exemption from strict liability for prescription drug manufacturers based on the state Supreme Court’s interpretation of the Restatement (Second) of Torts Sec. 402A cmt. k.  Comment k carves out an exception to traditional strict product liability claims for “unavoidably unsafe products,” or those which bear inherent risks—such as medicines which must be prescribed by a doctor.  A less settled question is whether that exemption extends to manufacturers of prescription medical devices, specifically regarding manufacturing defect claims.  On June 25, 2019, Judge Robreno of the U.S.D.C. Eastern District of Pennsylvania asked the Third Circuit to answer it.

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Final Drug Pricing DTC Advertising Rule to Take Effect July 9 – But Faces Challenges from Pharmaceutical Companies

This winter we discussed new regulatory guidelines intended to increase transparency in Direct-to-Consumer (DTC) advertising including a proposed rule from the Centers for Medicare and Medicaid Services (CMS) that would require pharmaceutical manufacturers to list prices in DTC advertising for drugs costing $35 for a 30-day supply.

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Worth the Wait? Some Semi-Mature Thoughts on Albrecht

For some long-awaited events, a little time and distance can add a measure of clarity. Not always – many still are processing the Game of Thrones finale, with no end in sight. But over the past few weeks pharmaceutical products liability lawyers have had the opportunity to acquire some Zen and enlightenment about the Supreme Court’s highly anticipated preemption decision in Merck Sharp & Dohme, Inc. v. Albrecht, 2019 WL 2166393 (U.S. May 20, 2019). An initial description of the decision is here.

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District of Delaware Grants Motions for Summary Judgment in Three Risperdal Gynecomastia Cases

In a trio of recent decisions arising out of cases alleging that an antipsychotic medication, Risperdal, and its generic, risperidone, had caused gynecomastia (breast tissue growth) in men, the United States District Court for the District of Delaware granted motions for summary judgment for defendant Janssen Pharmaceuticals, Inc. The three opinions clarify that Delaware law would not impose innovator liability on a branded drug manufacturer when the plaintiff had used only a generic drug, and addressed “but-for” warnings causation and proximate cause in prescription drug products liability cases. [Disclosure: Drinker Biddle & Reath. LLP attorneys were co-counsel of record in these cases for Janssen.]

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Biometric Data Privacy: Why Illinois Regulation Is Relevant to Manufacturers Nationwide

Our federal system and the often dysfunctional nature of Congress can be vexing for cutting-edge manufacturers. Emerging technologies are rarely addressed at the federal level, leaving states to pass piecemeal regulations that can frustrate even the most attentive compliance officers. If you’re bringing a product to market nationwide, you need to be aware of which states have the most stringent regulations. When it comes to biometrics, Illinois tops that list.

The Illinois Biometric Information Protection Act (BIPA) generally is considered the most stringent in the United States, and lawmakers in Florida and New York City are currently working on passing similar measures. So just what is the current state of biometric data privacy in Illinois? The answer lies in three rather unexpected topics: roller coasters, robot dogs, and pizza.

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Third Circuit Tackles Third-Party Funding Issues in In Re: National Football League Players’ Concussion Injury Litigation

Third-party litigation funding has received increased scrutiny over the past several years, particularly in the context of mass torts, class actions, and multidistrict litigation. Most of this scrutiny has focused on pre-litigation or pre-resolution commercial loans to fund the litigation, and particularly whether parties are required to disclose such funding during the course of the litigation.
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