Second Circuit – Expert testimony: Rutledge v. Walgreen Co.; Phippen v. Walgreen Co.

United States Court of Appeals for the Second Circuit

Expert testimony — Epidemiological testimony — Methodologies applied by scientists

Rutledge v. Walgreen Co.; Phippen v. Walgreen Co.

24-916(L); 24-2594

Judges Calabresi, Lynch, and Lee

Background: The plaintiffs appealed from the dismissal of their complaint alleging that the defendants failed to warn them that prenatal ingestion of their acetaminophen products could cause attention-deficit/hyperactivity disorder and autism spectrum disorder. The district court excluded the causation evidence offered by plaintiffs-appellants’ five experts in the Rutledge case, and it excluded the evidence offered by an additional expert in Phippen. At issue is what qualifies as admissible epidemiological testimony in support of a general causal relationship which has arisen against the backdrop of significant debate in the relevant scientific communities.

Ruling: The Second Circuit vacated and remanded. The court held that the district court exceeded its discretion by excluding the expert testimony of three doctors but was within its discretion in excluding the testimony of two doctors. In Rutledge, those qualified experts offered opinions that comport with methodologies applied by other scientists in their fields and constitute acceptable interpretations of scientific evidence where scientists may disagree on the issue of causal relationship. The two properly excluded scientists’ opinions did not weigh or properly synthesize the factors under the so-called Bradford Hill methodology employed.

Ashley C. Keller, of Keller Postman, and Daniel C. Burke, of Bernstein Liebhard, and Lindsey Scarcello, of Wagstaff & Carmell, for the plaintiffs-appellants; Jay P. Lefkowitz, of Kirkland & Ellius, Jeffrey S. Bucholtz & Amy R. Upshaw, of King & Spalding, Kristen L. Richer, of Barnes & Thornburg, Amanda Groves, of Winston & Strawn, Joseph A. Lara, of Stone & Dean, Lori B. Leskin & Mitchell Russell Stern, of Arnold & Porter Kaye Scholer, Anne A. Gruner, of Duane Morris, and Deanne E. Maynard, of Morrison & Foerster, for the defendants-appellees.

Oral argument audio