Using Daubert to Defeat Causation in the Delayed Diagnosis Claim
<b>Part Two of a Two-Part Article.</b> The <i>McDowell</i> case discussed in the first part of this article presented the question of "whether it is so if an expert says it is so." <i>See Viterbo v. Dow Chem. Co.</i>, 826 F.2d 420, 421 (5th Cir. 1987). <i>Daubert</i> and its progeny answered in the negative and established that an expert may not present a bare causation conclusion to the jury when that expert has no scientific basis for that conclusion or for any of the predicate inferences leading up to it. The <i>McDowell</i> claim failed because a physician's personal clinical experience, sometimes called anecdotal experience, is simply not a proper scientific basis for causation opinion testimony.
In the Aftermath of Katrina
In the aftermath of Hurricane Katrina, people from all walks of life and from all corners of the world want to reach out to do what they can to help the victims of this unfathomable disaster. Schoolchildren are raising pennies to help those in need while relief organizations send supplies from all regions of the country. On the ground where this disaster struck in Louisiana and Mississippi, however, thousands of caring individuals have been providing emergency first aid and medical care to their neighbors in need. When licensed health care workers respond to the urgent needs of the hurricane's victims, what kinds of liability might they be opening themselves up to?
Company Agrees to Pay $74 Million to Resolve Allegations
Natick, MA-based Boston Scientific Corp. has agreed to pay $74 million to the United States to resolve an ongoing investigation concerning its 1998 distribution and subsequent recall of one of its coronary stent delivery systems. In agreeing to the settlement, the company did not admit to any wrongdoing.
First Vioxx Ruling What Does It Mean for Merck?
Merck & Co., founded in 1891, has a slogan — what it calls its "guiding philosophy." That philosophy is, "patients first." In the first of many Vioxx trials expected to be litigated in state and federal courts across the country, the jury wasn't buying it. On Aug. 19, after a month-long trial, ten out of 12 jurors — the number needed to return a verdict of guilty — found Merck liable to the plaintiffs, survivors of a man who took Vioxx for pain relief. The damages award was staggering: $24.5 million in economic losses and compensation for mental anguish and $229 million in punitive damages.
The Class Action Fairness Act: Implications for MDLs
On Feb. 18, 2005, President Bush signed into law the Class Action Fairness Act of 2005 ("CAFA"). The primary purpose of this legislation was to reduce forum shopping in class action-friendly state courts by granting federal courts greater jurisdiction over class action lawsuits. It is this primary purpose that received most of the attention in the mainstream media and in legal analyses of this legislation.
Case Briefs
Highlights of the latest insurance cases from around the country.
Documentation Requirements: No Right for Excess Carriers to Second-Guess Primary Carriers' Settlement Payments
Since 2001, numerous insurance companies have sought to impose on asbestos liability claims so-called "Documentation Requirements" ("DRs"), seeking to limit coverage provided by its policies to those claims that meet certain criteria. Those insurance companies assert that the DRs are necessary to counter the growing number of unsubstantiated asbestos-related bodily injury claims brought against policyholders. Generally, the DRs require a policyholder to provide medical documentation and data to show each asbestos injury for each claimant, as well as provide product identification and exposure history. <i>See</i> Scott Moser, Mealey's Seminar, 16 <i>Mealey's Litig. Rep.</i> 12 (Dec. 11, 2001) (an attorney for Equitas speaking about the documentation requirements). The policyholders, on the other hand, see the DRs as unreasonable conditions to coverage that are not found anywhere in the policy language. They argue that in many cases it may be reasonable for them or for their primary carriers to settle or to have settled claims for which there is not yet fully developed information, to avoid, <i>inter alia</i>, increased defense costs and the possibility of a much higher judgment if the information developed is unfavorable.
Verdicts
Recent rulings of interest to you and your practice.
