Alan Lazarus

About Alan Lazarus

Alan J. Lazarus is a Products Liability Partner residing in our San Francisco, California, office. Alan is an experienced trial and appellate attorney with a focus on products liability, consumer protection, toxic substances and environmental litigation. Alan writes and lectures frequently on products liability and appellate practice topics. Read Alan's full bio

Whither Roberti? The Cockroach Precedent − An Exercise in Magical, Wishful Thinking

Amateur philosophers, bar flies, and eulogists, among others, are known to wistfully observe that nothing dies so long as it is remembered and discussed. That’s a comforting sentiment when it comes to loved ones and legacies, but it can be mischievous and bothersome when applied to fallen case law. The long, drawn-out demise of Roberti v. Andy’s Termite & Pest Control. Inc., 113 Cal.App.4th 893 (2003) is a case in point, so to speak.

Pre-Roberti Expert Admissibility Standards – The Kelly/Frye Rule and a Suggestion of Daubert

Roberti is part of a much longer story about California’s journey to adoption of Daubert-style reliability gatekeeping for the testimony of expert witnesses.

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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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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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Keeping Summary Judgment Strong

In this age of exorbitant costs and increasingly high stakes in civil litigation, a robust summary judgment mechanism – one capable of terminating cases lacking in merit long before the extraordinary expense of final trial preparation and trial – is simply critical to a properly functioning civil litigation system.

Recently, Division 8 of the Second Appellate District, California Court of Appeal did its part by contributing to several ongoing debates in California law related to the admissibility of expert declarations offered to oppose motions for summary judgment. Fernandez v. Alexander, 2019 WL 336517 (Jan. 28, 2019)(certified for publication). The court weighed in, at least implicitly, on these important issues:

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Remembering Stengel and Celebrating the Arizona Supreme Court

Those familiar with his legend know that Hall of famer Casey Stengel managed the New York Yankees in their mid-century heyday and, for a short time at their inception, the New York Mets.  But he also is remembered as one of baseball’s great characters.

One story about Stengel was told by the great broadcaster Curt Gowdy.  He was having a beer with Stengel at a bar in Cleveland.  Stengel received his beer and quickly downed it in one long gulp, leading Gowdy to ask why he drank it so fast.  Stengel said he drank beer that way ever since “the accident.”

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California Confronts the High Liability Costs of Scientific Uncertainty

Much has been said about the eye-popping verdict and the post-trial rulings in the Roundup case tried in San Francisco earlier this year. Johnson v. Monsanto Co., 2018 WL 5246323 (S.F. Super. Ct. Oct. 22, 2018). The court sustained the jury’s award of ~$39 million in compensatory damages, including $37 million in non-economic damages, and its finding that Monsanto was liable for punitive damages. The court reduced the punitive award on due process grounds to a one-to-one ratio, slashing it from $250 million to approximately $39 million. Monsanto recently filed its notice of appeal, and as we await the briefing and argument, a few issues and takeaways merit further discussion, particularly several disturbing issues surrounding the award of punitive damages. We will save for another day (or post) other significant liability and damages issues.

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The California Supreme Court Addresses the Admissibility of Industry Custom and Practice Evidence In a Design Defect Case and Holds That … It Depends

In Kim v. Toyota Motor Corp., No. S232754 (August 27, 2018) the California Supreme Court broke with 40+ years of intermediate court of appeal precedents barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective.  Rather, the Court held, such evidence is no longer categorically inadmissible, but neither is it categorically admissible.  Admissibility depends on the nature of the evidence and the purpose for which it is offered.

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