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2024-2025 Points of Light

This report’s Points of Light typically comprise noteworthy actions taken by judges to stem abuses of the civil justice system not detailed elsewhere in the report.

States Strengthen Expert Evidence Rules, Stay in Line with Newly Amended Federal Rule 702

State supreme courts in Arizona, Michigan and Ohio amended their states’ rules of evidence governing the admissibility of expert testimony to be consistent with the newly amended Rule 702 of the Federal Rules of Evidence. Louisiana made the change through legislation in 2024.

The amendments correct widespread misapplication of the rule in which many courts had improperly treated the reliability of an expert’s methods and data as going to its weight, rather than its admissibility. As a result, courts that took this approach allowed unreliable and misleading testimony based on faulty data to go to juries.

The amendments to Rule 702 require a party that seeks to introduce expert testimony to demonstrate to the judge that it is “more likely than not” that the testimony meets all of the rule’s requirements before it is admitted. The amendment also reminds courts that an expert cannot “make claims that are unsupported by the expert’s basis and methodology.” This amendment reinforces the role of judges to serve as gatekeepers responsible for keeping junk science out of courtrooms.

Federal Courts Stress Importance of Judicial Gatekeeping Under Newly Amended Rule 702

Following the enactment of amended federal Rule 702, a handful of courts threw out junk science that plaintiffs’ lawyers offered as the basis for mass torts. The amended rule places additional emphasis on the importance of judicial gatekeeping.

“[J]udicial gatekeeping is essential because just as jurors may be unable, due to lack of specialized knowledge, to evaluate meaningfully the reliability of scientific and other methods underlying expert opinion, jurors may also lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”

–— Judge Denise Cote, U.S. District Court for the Southern District of New York

Acetaminophen Litigation

One of the first decisions under the newly amended rule, which went into effect December 1, 2023, was entered by Judge Denise Cote of the U.S. District Court for the Southern District of New York. Judge Cote oversaw In re: Acetaminophen- ASD-ADHD Products Liability Litigation, a multidistrict litigation (MDL) proceeding probing the alleged effects on children of acetaminophen use during pregnancy.

In December 2023, Judge Cote demonstrated the gatekeeping her position requires by barring evidence from the plaintiffs’ experts. The MDL complaint asserted that maternal use of acetaminophen leads to attention deficit hyperactive disorder and autism spectrum disorder in children, Judge Cote underscored the “great public health significance” of the trial, emphasizing the profound consequences for families and communities.

By excluding testimony from the plaintiffs’ experts, she highlighted the responsibility of judges as gate- keepers, particularly under the reinforced guidelines of Rule 702. Judge Cote’s approach extended beyond evaluating experts’ qualifications, focusing keenly on methodologies — an additional emphasis under the amended guidelines.

Talc Litigation

In March, U.S. District Judge Michael Shipp, the federal judge overseeing over 53,000 talc cases in multidistrict litigation, agreed to rigorously re-examine the plaintiffs’ expert testimony under newly amended Federal Rule of Evidence 702. He observed that earlier Rule 702 decisions should be reassessed in light of both new science and the “recent changes to Federal Rule of Evidence 702.”

While the American Cancer Society additionally acknowledges mixed evidence on any link between talc use and ovarian cancer, emphasizing the minimal increase in risk, if any, this litigation still has resulted in multimillion-dollar verdicts.

Paraquat Multidistrict Litigation

In April, Chief U.S. District Judge Nancy Rosentengel excluded plaintiffs’ junk science in paraquat litigation. Chief Judge Rosenstengel, who is overseeing the multidistrict litigation that includes more than 5,000 cases, granted the companies’ motion for summary judgment, dismissing four cases that alleged paraquat can cause Parkinson’s Disease.

The cases had completed discovery and were ready for trial. However, Judge Rosenstengel found that expert testimony from a Cornell University professor must be excluded. She characterized the professor’s analysis as “a textbook example of the type of standardless presentation of evidence that courts have cautioned against.” “His proffered opinion required several methodological contortions and outright violations of the scientific standards he professed to apply.”

Additionally, Judge Rosenstengel indicated that the 2023 amendments “emphasized that the proponent bears the burden of demonstrating compliance with Rule 702 by a preponderance of the evidence, and that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.” She also aptly recognized that one of the reasons behind the amendments was that “courts had erroneously admitted unreliable expert testimony based on the assumption that the jury would properly judge reliability.”

Third Circuit Rules That Lawsuit Alleging Product Contained Insufficient Warnings, Despite Federal Approval, Cannot Proceed

In August 2024, the U.S. Court of Appeals for the Third Circuit ruled that state tort lawsuits that would require a weedkiller to carry cancer warnings that a federal agency has found unwarranted by science must be dismissed.

The lawsuit, brought by a landscaper, blamed Monsanto’s Roundup for his development of non-Hodgkin’s lymphoma and claimed the product should have warned of this risk.

Chief Judge Michael Chagares wrote the unanimous opinion for the Third Circuit panel, holding that Pennsylvania tort law claims that would require labeling that is in addition to or different from labeling approved by the EPA is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In this instance, the EPA had reviewed the health risks of the active ingredient in the product, glyphosate, and repeatedly found, based on the scientific consensus, that it is not likely to be carcinogenic.

An infamous International Agency for Research on Cancer (IARC) monograph is the foundation for much of the Roundup litigation. The 2015 report, which concluded that glyphosate is “probably carcinogenic,” stands in stark contrast to more than 800 scientific studies as well as analyses by the EPA and Health Canada.

The Third Circuit’s commonsense ruling avoids confusion that would result from unnecessary and conflicting warning labels stemming from state failure-to-warn lawsuits. It also allows the appropriate federal regulators to do their job and respects sound science.

Kentucky Court Of Appeals Overturns Problematic Ruling That Helped Land State on Watch List

Kentucky was placed on the Watch List last year due in part to a concerning trial court ruling that resulted in a verdict punishing an employer for investigating and reporting a suspicious surge of disability claims. In May 2024, the Kentucky Court of Appeals threw out a multi-million-dollar defamation verdict that followed, requiring a new trial.

A railroad, CSX Transportation, Inc. (“CSXT”), had a policy of providing furloughed employees up to four months of benefits, but allowing employees who are out of work due to a medical condition at the time of the furlough to continue to receive benefits for two years. In 2017, a surge of employees attempted to exploit this policy following announcements of expected workforce reductions. CSXT became suspicious when it received an unprecedented number of nearly identical injury claims filed on behalf of employees by two chiropractors who frequently treated CSXT railroad workers. Initiating an internal investigation, CSXT and its medical director, Dr. Heligman, sent a letter to the Railroad Retirement Board, as well as several private insurers and chiropractic boards, alerting them of the potential fraud involving the doctors and the employees. The investigation confirmed CSXT’s concerns, prompting the company to discontinue  accepting injury claims submitted by these doctors.

The doctors sued CSXT and Dr. Heligman in 2018, alleging that their letter cautioning other entities of potential fraud was defamatory, and that they tortiously interfered with the doctors’ business relationships with the employees. The trial court sent the case to the jury, but refused to instruct the jury that defamation law includes a “qualified privilege” that generally allows parties with a common interest, such as addressing potentially fraudulent claims, to share information without fear of liability absent a malicious intent.

Without this instruction, a Greenup Circuit Court jury returned $23 million verdict, including $21.4 mil- lion in punitive damages and $1.4 million in compensatory damages.

In May 2024, the Kentucky Court of Appeals overturned the verdict. The Court held that the evidence required the trial court to instruct the jury to consider the qualified privilege, as the insurers and licensing boards had a common interest with Dr. Heligman in investigating potential fraud.

Failing to apply this privilege to employers with legitimate suspicions of fraudulent claims would have deterred businesses and insurers from investigating lawsuit abuse. This is particularly relevant in mass tort litigation, where illegitimate claims can easily get mixed in with viable ones, making it susceptible to fraudulent conduct. Fraudulent claim schemes can also arise in a wide range of other contexts, from staged accidents to clinics that, working with attorneys, exaggerate injuries or inflate medical bills.

Utah Supreme Court Upholds Statute of Repose for Medical Liability Lawsuits

In September 2024, the Utah Supreme Court upheld a provision of the Utah Health Care Malpractice Act that requires lawsuits against healthcare providers to be filed no more than 4 years after the alleged malpractice, known as a statute of repose.

After a trial court dismissed a plaintiff’s claims against a doctor because they were filed ten years after the surgery at issue, her lawyers challenged the constitutionality of the statute of repose under both the Utah and U.S. Constitutions.

The Utah Supreme Court rejected the constitutional challenge, finding the legislature adopted the statute of repose, which had been in place since 1976, to address rising malpractice claims, judgments, and settlements that had substantially increased the cost of medical malpractice insurance and health care. The Court recognized that, in the medical liability context, statutes of repose provide a predictable end-date to the risk of lawsuits by eliminating the possibility that, many years after a doctor provides treatment, a patient will allege that he or she only recently discovered a health problem attributed to the earlier care (known as “long tail” liability).

The Court respected the legislature’s policymaking authority to draw lines in setting the length of time healthcare providers are exposed to liability. It found the statute of repose is a “reasonable means for achieving a legitimate legislative goal” — protecting the public from rising medical malpractice insurance costs by providing a reasonable time to bring lawsuits “while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated.” The Court properly declined the plaintiff’s invitation to second-guess the legislature’s decision to enact the law or to substitute its own policy views.

The Utah Supreme Court’s decision is in the mainstream, as most other state supreme courts have upheld similar laws. Some courts, however, such as the supreme courts of Pennsylvania (2019) and Washington (2023), have struck down statutes of repose in the medical liability context.

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