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Amended FRE 702 Creates Path for Daubert Challenges in Talc Litigation

Ebony S Morris

Amended FRE 702 Creates Path for Daubert Challenges in Talc Litigation
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Amended Rule 702 of the Federal Rules of Evidence (FRE) recently created a path for Johnson & Johnson (J&J) to challenge evidence purportedly linking talcum powder to cancer. In Johnson and Johnson Talcum Powder Litigation, Docket No. 16:02738, U.S. District Court Judge Michael A. Shipp in Trenton, New Jersey, held that J&J could contest scientific evidence linking talc to ovarian cancer pursuant to Amended FRE 702.

The ruling was in response to Chief Judge Wolfson’s, Judge Shipp’s predecessor, previous Daubert opinion and the parties’ disagreement as to the scope of Daubert motions following Chief Judge Wolfson’s April 27, 2020, opinion. While brief, it was clear from Judge Shipp’s text order that the recent changes to Rule 702 warranted a refiling and review of J&J’s Daubert challenges to the plaintiffs’ expert evidence.

Amended FRE 702

Amended FRE 702, which became effective on December 1, 2023, provides courts with important tools for excluding unreliable opinions and now reads as follows, with additions underlined:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Under Amended FRE 702, 1) a court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence, and 2) a court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury. Previously, the rule did not include express language requiring the proponent to prove the reliability of an expert’s opinion, and the lack of express language consequently led to flawed rulings from numerous courts. In its notes, the Advisory Committee recognized the need for express language to correct certain courts’ failure to correctly apply the rule: “[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”

Implications on Talc Litigation

In talc litigation, as evidenced in Johnson and Johnson Talcum Powder Litigation, courts often lower the bar for admissibility and allow plaintiffs to present unreliable science and expert opinions, which leaves juries with determining the weight of an expert’s opinion. However, Amended FRE 702 seeks to remedy this issue.

Amended FRE 702 requires the proponent of the expert’s opinion to establish the criteria set forth in the rule by a preponderance of the evidence. In other words, the proponent must prove that the expert’s methods are “more likely than not” reliable. Amended FRE 702 also requires a deeper connection between the expert’s opinion and the methods used in reaching the conclusion. By adding the “preponderance of the evidence” standard and requiring the expert to demonstrate the reliability of her opinion, Amended FRE 702 requires courts to ensure that juries are presented with reliable expert testimony.

For talc defendants, Amended FRE 702 provides a gateway to challenging unreliable expert opinions from plaintiffs seeking to confuse the jury with junk science. Amended FRE 702’s impact remains to be seen, but the developments certainly cast doubt on the reliability of plaintiffs’ most well-known expert witnesses.

Although Amended FRE 702 raises the bar for plaintiffs aiming to introduce expert testimony, talc defendants seeking to exclude expert testimony must be diligent in embracing the rule’s new standards. Likewise, talc defendants must prepare their defense experts for heightened scrutiny, and ensure that the expert witnesses conform to basic scientific principles and rise to the standard outlined in Amended FRE 702.