78 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 79 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C consumers abused to produce methamphetamine. But in the plaintiffs’ view, attempts to provide consumers with a safer alternative was allegedly misleading because the producers “knew” phenylephrine was ineffective when delivered orally – even though the FDA disagreed for nearly 50 years and still has not made a final determination on the matter. These suits will consider the impact that interim agency actions have on primary jurisdiction and preemption defenses. See, e.g., In re Oral Phenylephrine Mktg. & Sales Pracs. Litig., No. MDL 3089, 2023 WL 8538831, at *2 (U.S. Jud. Pan. Mult. Lit. Dec. 6, 2023). The primary jurisdiction doctrine could allow the courts to either dismiss complaints or stay the proceedings pending the resolution of an issue that is within the special competence of an administrative agency, such as the FDA here, in reviewing the merits of an interim advisory decision. If, however, courts do not stay or dismiss the cases based on primary jurisdiction, then courts will be tasked with determining whether the FDA’s nearly fifty-yearlong holding that phenylephrine is effective is sufficient to preempt the plaintiffs’ state law claims, despite the new interim decision. Only time will tell whether courts will allow plaintiffs to maintain causes of action based on interim agency findings – even when those decisions conflict with decades of precedent and continued authorization. Rule 702: More Likely Than Not to Have a Big Impact As of December 1, 2023, Federal Rule of Evidence 702 – which governs the admissibility of expert opinions – looks slightly different, expressly providing that each of the underlying requirements be “more likely than not.” According to the Advisory Committee on Evidence Rules, emphasizing the preponderance standard was “necessary” because courts “have failed to apply correctly the reliability requirements” of Rule 702. Although characterized as a mere clarification – that does not impose any new, specific procedures – the amendment is already showing its teeth. In 2021 – well before the amendment went into effect – the Fourth Circuit took heed of the Advisory Committee’s gentle reminder and overturned a plaintiff’s jury verdict, holding that the district court improperly admitted the plaintiff’s experts. Sardis v. Overhead Door Corp., 10 F.4th 268, 284 (4th Cir. 2021). There, the trial court had incorrectly treated the Daubert requirements as questions of weight, rather than admissibility. Similarly, in the Acetaminophen MDL, the court excluded all five of plaintiffs’ experts, including multiple causation experts, because the experts failed to satisfy the Daubert requirements, including reliability, by the preponderance of the evidence. In re Acetaminophen - ASDADHD Prod. Liab. Litig., 2023 WL 8711617, at *16 n.27 (S.D.N.Y. Dec. 18, 2023). While the law around Rule 702’s new language remains in its infancy, early indications suggest this amendment might become a powerful tool for product liability defendants. And because the amendment applies not just to new cases, but also to all pending cases “insofar as just and practicable,” there is no time like the present to launch a Daubert challenge if grounds exist for doing so. Now (as always) critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of admissibility – not weight. Reducing the Risks of “Greenwashing” Litigation “Greenwashing”—the allegation that a company makes false or misleading claims about the environmental impact of a product—has become a major source of litigation over the last several years. As consumers increasingly demand environmentally friendly products, companies are increasingly advertising the sustainability of their brands, leaving them potentially vulnerable to greenwashing litigation. With states, Product Liability P R O
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