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“‘Weight of the Evidence’ Approach: A Backdoor Attempt to Undermine the Court’s Daubert Gatekeeping Obligation,” DRI For the Defense

“Proof of causation is at the core of drug and device litigation battles. … Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), or a particular state’s equivalent standard, has posed significant challenges to the plaintiffs’ bar’s attempts to prove both general and specific causation,” write Michael D. Shalhoub, Joseph J. Welter, and Sean T. Stadelman, attorneys in Goldberg Segalla’s Life Sciences Practice Group. 

“Many times, perhaps most times, litigation centered on whether a product causes injury attempts to lead the science, rather than following the science. This is particularly true when the medical and scientific evidence does not prove that a particular agent causes disease generally, or that for whatever reason, an individual plaintiff’s condition is not due to that agent. 

“Always inventive, the plaintiffs’ bar continues to work diligently to limit the effect of Daubert. … Plaintiffs have more and more frequently started to rely on a ‘weight of the evidence’ approach as a purported ‘scientific methodology’ for offering opinions in courts on causation.”

In this article, the authors examine the gatekeeping function of courts under Daubert, traditional assessment of scientific and medical literature, and the emergence of the “weight of the evidence” nomenclature. The article examines how the “weight of the evidence” approach can lead courts to defer blindly to the subjective judgment of a proffered expert, the widespread dilution of credible scientific research, and six critical practice tips designed to handle the “weight of the evidence” approach when defending drug and medical device product liability lawsuits. 

Read the article here: