Second Circuit Disappoints with Big Reversal
Litigation attorney Eric Alexander published a blog for Drug & Device Law discussing Rutledge v. Walgreen Co., a decision from the U.S. Court of Appeals for the Second Circuit that revived plaintiffs' general causation expert testimony in the acetaminophen autism/ADHD multidistrict litigation after a district court had excluded it under Federal Rule of Evidence 702. Mr. Alexander argues that the appellate court weakened the rigorous gatekeeping standards reinforced by the 2023 amendments to Rule 702 by focusing on whether the experts used generally accepted methodologies rather than whether those methodologies were reliably applied to the facts of the case and supported by sufficient evidence. He contends the district court properly found flaws in the plaintiffs' epidemiology and biological plausibility experts, including concerns over combining different developmental conditions to support causation opinions and failing to establish the reliability of those opinions as required under Rule 702. Mr. Alexander further asserts that the decision minimizes the burden on plaintiffs to demonstrate reliability and admissibility and leaves unresolved significant challenges for the litigation.