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Preview: LexisNexis® Mealey's™ Daubert Legal News

LexisNexis® Mealey's™ Daubert Legal News

Headline Daubert Legal News from LexisNexis®


Woman Who Kept Girls As Slaves Fails In Attack On 'Trauma Bond' Testimony
NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Jan. 15 affirmed the guilty verdicts and six-year prison sentence for a woman who kept illegal Mexicans in her home, where she abused them and forced them to perform slave labor, after finding that the trial court did not abuse its discretion in allowing an expert to testify about "trauma bonds" between abusers and victims (United States of America v. Olga Sandra Murra, No. 17-10117, 5th Cir., 2018 U.S. App. LEXIS 906).

Incorrect Ruling On Expert Does Not Doom Conviction For Illegally Re-Entering U.S.
ATLANTA - A federal district court probably erred in admitting a fingerprint analyst's expert testimony in a woman's deportation case, but the error was harmless considering that there was plenty of other evidence to identify the woman, the 11th Circuit U.S. Court of Appeals held Jan. 5 in affirming the woman's conviction for illegally re-entering the United States (United States of America v. Stephanie Lois Watkins, a.k.a. Stephanie Harrell, No. 16-17371, 11th Cir., 2018 U.S. App. LEXIS 316).

Rulings On Expert Affirmed In $550,000 Verdict Against Insurer For Hail Damage
ATLANTA - The 11th Circuit U.S. Court of Appeals on Jan. 4 upheld a jury award of more than $550,000 for a Georgia apartment complex on its breach of contract claim against an insurer for not paying enough to replace hail-damaged shingles, finding that the trial court did not err or abuse its discretion in any of its Daubert rulings (The Grand Reserve of Columbus, LLC v. Property-Owners Insurance Company, No. 17-10264, 11th Cir., 2018 U.S. App. LEXIS 217).

Reliance On Expert Testimony About Hole In City Sidewalk Upheld
LANSING, Mich. - A Michigan trial court properly denied summary disposition to the city of Ann Arbor, Mich., on a woman's slip-and-fall action based on testimony from the woman's expert that a sidewalk was so poorly maintained that it meets the sidewalk exception to the municipality's immunity from suit, a state appeals court held Dec. 26 (Helen Levenson v. City of Ann Arbor, No. 336231, Mich. App., 2017 Mich. App. LEXIS 2133).

Assault Victim Loses Case Against Concert Organizers After Expert Excluded
MADISON, Wis. - The organizers of a music festival in Wisconsin were awarded summary judgment by a federal judge Dec. 29 on negligence claims filed by a man who was assaulted at the event after the judge found that the opinions of the plaintiff's expert were inadmissible, unsupported conclusions (Joshua Milligan v. Rock on the River, Inc., et al., No. 16-cv-498, W.D. Wis., 2017 U.S. Dist. LEXIS 213195).

Suit Over Man's Death In Farm Accident Proceeds Without Plaintiffs' Expert
VALDOSTA, Ga. - A Georgia federal judge on Dec. 28 declined to strike testimony from a toxicology expert for a couple accused of causing a man's death by failing to train him on how to use a farm tractor but excluded testimony from an expert for the dead man's relatives after finding that it is not relevant to the relatives' negligence action against the couple (Melissa Pearson, et al. v. Harold Dillingham, et al., No. 7:16-cv-54, M.D. Ga., 2017 U.S. Dist. LEXIS 212244).

Magistrate Limits Crash Expert's Testimony Due To Untimely Disclosure
SAN ANTONIO - An accident reconstruction expert in a personal injury case can testify only about the opinions he offered in his initial report because new opinions he offered while being deposed were not disclosed in a timely manner, and the "failure to do so is neither substantially justified nor harmless," a Texas federal magistrate judge ruled Jan. 4 (Benjamin Koenig v. Anthony Beekmans, No. 5:15-cv-00822, W.D. Texas, 2018 U.S. Dist. LEXIS 1407).

Lightning Strike Opinions Reliable, 11th Circuit Says In Faulty Pipe Case
ATLANTA - A metallurgy and engineering expert in a dispute over whether lightning striking a faulty gas line caused a fire that destroyed a home is abundantly qualified and his opinions are reliable and helpful, the 11th Circuit U.S. Court of Appeals held Jan. 10 in affirming a $1.4 million jury award against the pipe manufacturer (Mazen Hanna, et al. v. Ward Manufacturing, Inc., No. 16-14806, 11th Cir., 2018 U.S. App. LEXIS 703).

Reconsideration Denied For Ruling Barring Expert In Failure-To-Warn Case
TRENTON, N.J. - A New Jersey federal judge on Dec. 29 denied a bid by a woman seeking to hold a personal watercraft maker liable for injuries she received in a fall from a watercraft to have the judge reconsider his decision to exclude the woman's expert, finding that he "did not overlook or commit error as to any of the grounds raised for reconsideration" (Angela Ruggiero v. Yamaha Motor Corporation U.S.A., No. 1:15-cv-49, D. N.J., 2017 U.S. Dist. LEXIS 213635).

Judge Strikes Expert's Opinions, Denies Certification Of Class Over Siding
MINNEAPOLIS - A proposed class for consumers claiming that fiber cement siding on their homes prematurely fades and delaminates cannot be certified, a federal judge in Minnesota ruled Jan. 2, finding that individual issues involving each class member's home would require a mini-trial (In re: HardiePlank Fiber Cement Siding Litigation, MDL 2359, Case No. 12-md-2359, D. Minn.).

Judge Limits Engineering, Testing Testimony Of Plaintiffs' IVC Filter Experts
PHOENIX - A federal judge in Arizona overseeing litigation stemming from injuries and deaths caused by allegedly defective inferior vena cava (IVC) filters on Dec. 22 ruled that three plaintiffs' experts cannot testify about the engineering and testing of the products because they lack the proper qualifications (In re: Bard IVC Filters Products Liability Litigation, No. 15-02641, D. Ariz., 2017 U.S. Dist. LEXIS 211400).

Pennsylvania Supreme Court Won't Hear Appeal Of Zoloft Expert's Exclusion
PHILADELPHIA - The Pennsylvania Supreme Court on Dec. 13 denied a petition to review a Zoloft birth defect case that was dismissed when the plaintiffs' causation expert was excluded by the trial court (Robert and Katherine Porter, et al. v. SmithKline Beecham Corporation, et al., No. 257 EAL 2017, Pa. Sup., Eastern Dist., 2017 Pa. LEXIS 3661).

Ruling On Causation Expert In Nuclear Facility Injury Case Disputed In High Court
WASHINGTON, D.C. - A federal appeals court used the wrong standard in ruling on a trial court's admission of expert testimony, 137 residents of a Pennsylvania town say in their Dec. 20 U.S. Supreme Court petition seeking review of their claims that illegal releases from a nuclear materials processing plant caused their cancers and the deaths of their family members (Michelle McMunn, et al. v. Babcock & Wilcox Power Generation Group, Inc., et al., No. 17-907, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 5119).

Speculative Opinion Pared From Expert Testimony In Medical Malpractice Action
ST. LOUIS - An expert witness for a minor asserting medical malpractice claims cannot offer an opinion that injuries to the minor limit the youth's ability to stand or walk to "perhaps as much as a maximum of four hours per day" because it is only speculation, though the expert's other testimony is admissible, a Missouri federal judge ruled Jan. 12 (J.B. v. Missouri Baptist Hospital of Sullivan, et al., No. 4:16-cv-01394, E.D. Mo., 2018 U.S. Dist. LEXIS 5785).

Court: Expert Reports Collectively Satisfy Medical Liability Act's Requirement
AUSTIN, Texas - The Texas Supreme Court on Dec. 15 held that a trial court did not abuse its discretion in finding that four expert reports together satisfy the adequacy requirement under the Texas Medical Liability Act, overturning an appeals court's ruling that reversed the trial court's refusal to dismiss a health care liability lawsuit against an assisted-living facility, a mobile-imaging facility and a radiologist (Karen Miller v. JSC Lake Highlands Operations, LP, et al., No. 16-0986, Texas Sup., 2017 Tex. LEXIS 1147).

Magistrate Strikes Some Expert Testimony In Ticket Sales Patent License Row
MARSHALL, Texas - A Texas federal magistrate judge on Jan. 17 granted in part a motion by a patent holder to exclude testimony from a ticket distributor's computer-programming expert in a dispute over a license agreement, ruling that the expert cannot offer opinions about a key term in the agreement because the meaning of the term is a question of law for a jury to determine (CEATS, Inc. v. TicketNetwork, Inc., et al., No. 2:15-cv-01470, E.D. Texas, 2018 U.S. Dist. LEXIS 7214).

Oral Arguments Set In Florida Asbestos Case Over Daubert Applicability
TALLAHASSEE, Fla. - The Florida Supreme Court on Jan. 5 said it would hear oral arguments in March in an asbestos case involving whether Daubert can be applied in Florida and whether expert testimony that every exposure to asbestos leads to mesothelioma satisfies whatever standard the state uses (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

On Remand, Judge Permits Expert Opinions For Man Challenging Police Citations
BUTTE, Mont. - After the Ninth Circuit U.S. Court of Appeals' removal of a Montana federal judge for committing several errors, including excluding expert testimony without a sound basis, a different judge held on remand Dec. 11 that the opinions of the challenged expert for an environmentalist who was cited by local police during a buffalo-herding operation at Yellowstone National Park are reliable and relevant enough to be admitted (Anthony Patrick Reed v. Doug Lieurance, et al., No. 2:13-cv-17, D. Mont., 2017 U.S. Dist. LEXIS 203391).

Blood Spatter, Criminal Law Experts Can Testify In Excessive Force Suit
TAMPA, Fla. - A Florida federal judge on Dec. 12 allowed a blood spatter expert and a criminal law expert to testify for a couple in their excessive-use-of-force action against several police officers, though she did place limits on both experts' opinions (Michael Bratt, et al. v. Louis Genovese, et al., No. 8:13-cv-3210, M.D. Fla., 2017 U.S. Dist. LEXIS 204003).

Expert Ballistics Evidence Fair Game In Man's Gun Conviction, 9th Circuit Rules
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Nov. 27 upheld a man's conviction for being a felon in possession of a gun after finding that the trial court did not abuse its discretion in denying the man's request to exclude a firearms examiner's testimony and a written ballistics analysis (United States of America v. Valentino Johnson, Nos. 16-10184, 16-10225, 9th Cir., 2017 U.S. App. LEXIS 23911).

9th Circuit Denies Try By Ex-InterMune CEO To Revisit Expert Witness Issue
SAN FRANCISCO - Former InterMune Inc. CEO W. Scott Harkonen, M.D., on Dec. 4 lost another attempt to vacate his 2009 wire fraud conviction when the Ninth Circuit U.S. Court of Appeals said he and his trial counsel voluntarily decided not to present testimony by their own biostatistician and pulmonologist and there was no ineffective counsel (United States of America v. W. Scott Harkonen, M.D., No. 15-16844, 9th Cir., 2017 U.S. App. LEXIS 24475).

Teva Urges Justices To Overturn 9th Circuit Ruling On Admissibility Of Experts
WASHINGTON, D.C. - The Ninth Circuit U.S. Court of Appeals' reversal of summary judgment for a drugmaker on a claim that its immunosuppressant drugs caused a young man's death from cancer should be reviewed by the U.S. Supreme Court because the appeals court overstepped its bounds in reversing the exclusion of expert causation testimony, the drug company argues in a Nov. 20 petition for a writ of certiorari (Teva Pharmaceuticals USA, Inc. v. Stephen Wendell, et ux., No. 17-747, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4571).

Expert Testimony Limited In Suit Seeking Insurance Coverage For Emotional Distress
MISSOULA, Mont. - One medical expert cannot opine that the actions of a beauty school caused 16 students to suffer emotional distress due to lack of reliability in the expert's methods, but a second expert can offer her causation opinion based on her interviews with each of the students, a Montana federal judge held Dec. 4 in an insurance coverage declaratory judgment action (Breanne Walden, et al. v. Maryland Casualty Company, No. 13-222, D. Mont., 2017 U.S. Dist. LEXIS 198973).

With Expert Opinions Allowed, Insurer Denied Judgment On Home Damage Claims
NASHVILLE, Tenn. - A Tennessee federal judge on Dec. 4 denied summary judgment to an insurer in a lawsuit over coverage for a damaged home after finding that testimony by the homeowners' expert is admissible and raises a material factual dispute about whether a sinkhole caused the damage (Debra Daniels, et al. v. Erie Insurance Group, No. 3:16-cv-01977, M.D. Tenn., 2017 U.S. Dist. LEXIS 198906).

Judge Resolves Motions To Exclude Testimony, Evidence In Reinsurer, Insurer Dispute
UTICA, N.Y. - In a dispute over a $325 million settlement of asbestos claims, a New York federal judge on Nov. 16 addressed a number of motions filed by an insurer and a reinsurer to preclude expert testimony and certain arguments from trial (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-00853, N.D. N.Y., 2017 U.S. Dist. LEXIS 189911).

Airline Expert Permitted To Testify In Injured Worker's Negligence Action
MIAMI - An aviation industry expert can testify about whether the training received by a worker who was injured in an aircraft-moving tractor from an employee of the company that made the tractor was adequate but cannot offer opinions on the sales contract for the tractor because doing so involves issues of law, a Florida federal magistrate judge held Nov. 30 (Roy Maltez v. Trepel Airport Equipment GMBH, No. 16-24465, S.D. Fla., 2017 U.S. Dist. LEXIS 196458).

Airline Standards Relied On Do Not Support Opinion On Unsafe Condition, Judge Says
BROOKLYN, N.Y. - An airline expert's report is inadmissible in a woman's slip-and-fall action against British Airways because it would be more confusing than helpful to the trier of fact, a New York federal judge held Dec. 12 (Valentina Rodriguez v. British Airways PLC, et al., No. 17-cv-03691, E.D. N.Y., 2017 U.S. Dist. LEXIS 204217).

Expert Can Opine On Correctness Of Brain Injury Test, Magistrate Says
SAN ANTONIO - A neuropsychologist can testify as an expert witness on the appropriateness of using a computer-based test called the "Starry Night" test in diagnosing a traumatic brain injury because he is sufficiently qualified and his testimony is reliable, a Texas federal magistrate judge ruled Dec. 1 in a personal injury lawsuit (Benjamin Koenig v. Anthony Beekmans, No. 5:15-cv-00822, W.D. Texas, 2017 U.S. Dist. LEXIS 197558).

With Bench Trial Slated For Tribe's Tax Claims, Judge Allows 7 Experts To Testify
SEATTLE - A Washington federal judge on Nov. 27 denied seven motions to exclude expert testimony in an Indian tribe's efforts to avoid state and county taxes for the town it developed, saying that with a bench trial scheduled rather than a jury trial, he will be able to determine at trial whether the experts' testimony is proper (The Tulalip Tribes, et al. v. The State of Washington, et al., No. 2:15-cv-00940, W.D. Wash., 2017 U.S. Dist. LEXIS 194404).

Expert's Opinions Allowed In Class Action Over Fitbit's Sleep-Tracking Mode
SAN FRANCISCO - A California federal judge on Dec. 8, in denying summary judgment to Fitbit Inc. on class claims that the sleep-tracking functions on its devices do not work, ruled that the opinions of a plaintiffs' expert who tested the devices are reliable and relevant (James Brickman, et al. v. Fitbit Inc., No. 3:15-cv-02077, N.D. Calif., 2017 U.S. Dist. LEXIS 202568).

Talc Plaintiff: Asbestos Case Survives Exclusion Of Experts
PHILADELPHIA - The exclusion of two experts did little to change the state of a case as two other experts hold the same opinions regarding asbestos-contaminated talc's role in causing mesothelioma, a woman told a Pennsylvania judge on Dec. 4 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. 151202987, Pa. Comm. Pls., Philadelphia Co.).

Roundup MDL Plaintiffs: Monsanto's Experts Not Using 'Sound Science'
SAN FRANCISCO - The plaintiffs in the multidistrict litigation for the herbicide Roundup on Nov. 20 filed a brief in California federal court contending that "the methodology applied by Monsanto's experts turns not on sound science but rather on whether the evidence at issue is favorable or unfavorable to Monsanto's position" (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Preemption Summary Judgment Reversed By 9th Circuit In Incretin Mimetic MDL Appeal
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Dec. 6 unsealed its Nov. 28 opinion reversing summary judgment in the incretin mimetic multidistrict litigation, saying the MDL judge misapplied a U.S. Supreme Court precedent, improperly blocked discovery, misinterpreted what constituted new evidence and improperly disqualified a plaintiff expert (In Re: Incretin-Based Therapies Products Liability Litigation, Jean Adams, et al. v. Merck Sharp & Dohme Corp., et al., No. 15-56997, 9th Cir., 2017 U.S. App. LEXIS 24674).

Judge Certifies 6 Classes For Buyers Of Allegedly Defective Laminate Flooring
SAN FRANCISCO - A federal judge in California on Nov. 15 certified classes for purchasers from California, Florida, Illinois, Minnesota, Pennsylvania and West Virginia who claim that Lumber Liquidators Inc. violated state consumer protection laws when selling bamboo laminate flooring that prematurely warped, buckled, splintered, shrank and split before the expiration of the product's warranty (Dana Gold, et al. v. Lumber Liquidators, Inc., No. 14-cv-5373, N.D. Calif.).

Companies: Fracking Plaintiffs 'Take Liberty With The Facts' In Disposal Lawsuit
LITTLE ROCK, Ark. - Hydraulic fracturing companies on Nov. 16 filed a brief in Arkansas federal court contending that residents who have sued them alleging property damage as a result of the companies' disposal of fracking waste "consistently take liberty with the facts to add more baseless sanctions noise to this case" (Bobbie Hill, et al. v. Southwestern Energy Co., No. 12-500, E.D. Ark.).

Judge Excludes Expert, Awards Colgate Judgment In Suit By Expelled Student
SYRACUSE, N.Y. - An expert witness for a former college student who was kicked out of school for allegedly sexually assaulting three female students cannot testify about the "presumption of trauma" for rape victims or any other aspect of the accused's human rights case against the college because her testimony is "replete with speculation, improper legal conclusions, and opinions that she is unqualified to make," a New York federal judge ruled Oct. 31 (John Doe v. Colgate University, et al., No. 5:15-cv-1069, N.D. N.Y., 2017 U.S. Dist. LEXIS 180267).

Expert Testimony On Loss Fails To Save Attorney From Fraud Guilty Plea
MONTGOMERY, Ala. - An Alabama federal judge on Oct. 30 denied a request by an attorney to withdraw his guilty plea to defrauding the U.S. Department of Housing and Urban Development after excluding his accounting expert based on lack of qualifications, unreliable methodology and unhelpful opinions (United States of America v. Christopher Bernard Pitts, No. 2:16-cr-00023, M.D. Ala., 2017 U.S. Dist. LEXIS 178945).

DEA Agent's Opinions Allowed, As Long As Inferences Are Not Included
LAS CRUCES, N.M. - A federal agency can offer expert opinions on smuggling marijuana into the United States from Mexico in the government's case against two men because they are reliable and relevant, but he cannot make inferences based on those opinions about the defendants' guilt, a New Mexico federal judge held Oct. 23 (United States of America v. John Leroy Milne, et al., No. 17-cr-1923, D. N.M., 2017 U.S. Dist. LEXIS 175874).

Injured Teen Wins Split Ruling In Case Against Deputy, County
SHERMAN, Texas - Two out of four police officers in an excessive force action cannot testify as experts because they are not qualified to offer opinions on the use of force when deploying a police dog, a Texas federal judge ruled Oct. 27 while allowing one of the officers to testify as an expert but reserving a decision on whether the arresting officer can offer expert opinions on the reasonableness of his own actions (Guillermo Murillo Molina v. Collin County, Texas, et al., No. 4:17-cv-00017, E.D. Texas, 2017 U.S. Dist. LEXIS 178579).

Opinions That Accident Led To Death By Painkillers Allowed By Federal Judge
PHILADELPHIA - Three of four doctors offering expert opinions in a wrongful death action can testify that an accident on a U.S. military base caused a man's injuries and subsequent death from taking too many pain medications for the injuries, a Pennsylvania federal judge held Nov. 8, finding the causation opinions reliable enough to be admitted (Robert S. Evans v. United States of America, et al., No. 15-1839, E.D. Pa., 2017 U.S. Dist. LEXIS 185563).

Some Expert Opinions Permitted In Row Over Worker's Fall From Scaffold
KANSAS CITY, Kan. - A Kansas federal judge on Oct. 30 excluded four of seven opinions of an expert in a personal injury action over a contractor's fall from a scaffold, finding that the excluded opinions are based on inadequate evidence or would not be helpful to the trier of fact (Harold T. Fortner v. Jack G. Hansen, No. 16-2672, D. Kan., 2017 U.S. Dist. LEXIS 179163).

Orthopedic Surgeon's Opinions On Spine Injury Reliable, Magistrate Says
SAN ANTONIO - A doctor's expert opinion on whether a spinal injury was caused by an car crash "is sufficiently reliable for admissibility purposes," a Texas magistrate judge ruled Nov. 9 (Benjamin Koenig v. Anthony Beekmans, No. 5:15-cv-00822, W.D. Texas, 2017 U.S. Dist. LEXIS 185797).

Judge Orders Evidentiary Hearing In Groundwater Contamination Lawsuit
ASHEVILLE, N.C. - A federal judge in North Carolina on Nov. 6 ordered a hearing on evidentiary issues in a groundwater contamination lawsuit, as a North Carolina resident and the company he contends dumped toxic chemicals in his water supply continue to debate what evidence is admissible in the case (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Fire Chief's Testimony Tossed In Paramedic's Wrongful Termination Suit
SAN ANTONIO - A paramedic challenging his firing was successful in getting a fire chief's expert testimony excluded from the case when a Texas federal judge ruled Nov. 13 that the chief's testimony is not relevant and would not be helpful to a jury (Bryan Brightwell v. Bandera County, No. 5:16-cv-1216, W.D. Texas, 2017 U.S. Dist. LEXIS 186730).

Justices Will Not Review Role Of Expert Testimony In Copyright Infringement Cases
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 6 denied a petition for a writ of certiorari in a copyright infringement action over the popular John Madden Football series computer game in which the court was asked to determine the standard for the admissibility of expert testimony in copyright infringement disputes involving computer codes (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup.).

Most Of Mechanical Engineer's Opinions On Faulty Blender Admissible, Judge Rules
TAMPA, Fla. - Most of an expert's opinions on alleged defects in a food blender that overheated, causing burns to a woman, are based on sound methods and are reliable and helpful enough to be admitted, a Florida federal judge held Nov. 7 (Phyllis B. Cerrato, et al. v. Nutribullet, LLC, et al., No. 8:16-cv-3077, M.D. Fla., 2017 U.S. Dist. LEXIS 184220).

Expert Allowed To Opine That Ford Minivan Defect Caused Fire
CAMDEN, N.J. - With most testimony by a couple's expert on the cause of a fire that damaged their property allowed, summary judgment is not appropriate because there is a question of fact as to whether the fire started in a Ford minivan due to a design defect, a New Jersey federal judge held Oct. 27 (James Ford, et al. v. Ford Motor Company, et al., Plymouth Rock Assurance a/s/o James Ford v. Ford Motor Company, et al., No. 1:15-cv-357, D. N.J., 2017 U.S. Dist. LEXIS 178963).

Monsanto: Glyphosate Cancer Evidence Is 'Unreliable,' Constitutes 'Junk Science'
SAN FRANCISCO - Monsanto Co. on Nov. 10 filed a brief in the multidistrict litigation for the herbicide Roundup in California federal court, arguing that the evidence offered by the plaintiffs' expert concerning the carcinogenic properties of Roundup's active ingredient glyphosate is "unreliable" and constitutes "junk science" (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Glyphosate Exposure Causes Non-Hodgkin Lymphoma, Plaintiffs Say
SAN FRANCISCO - The plaintiffs in the multidistrict litigation for the herbicide Roundup on Oct. 27 filed a brief in California federal court, contending that there is "overwhelming evidence - whether it be the epidemiology, toxicology, or mechanistic data - that exposure to glyphosate-based formulations (GBFs) causes" non-Hodgkin lymphoma (NHL) (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

Architectural Expert's Testimony Restricted In Home Design Copyright Case
TOLEDO, Ohio - An architectural expert in a home design copyright infringement action cannot opine that a company's designs do not merit copyright protection because the opinion is an impermissible legal conclusion, though the expert can testify about the similarities and differences between the parties' designs, an Ohio federal judge held Nov. 14 (Design Basics LLC v. Forrester Wehrle Homes, Inc., et al., No. 3:15-cv-00666, N.D. Ohio, 2017 U.S. Dist. LEXIS 188005).

2nd Circuit Affirms Rejection Of DMCA Claim, Denial Of Attorney Fees
NEW YORK - A New York federal judge did not err in rejecting allegations that a licensee violated the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1201(a), when it modified security measures to prevent two software programs from self-enforcing certain licensing restrictions because the plaintiffs failed to demonstrate the copyrightability of the underlying programs, the Second Circuit U.S. Court of Appeals ruled Nov. 8 (Dynamic Concepts Inc. and Point 4 Data Corp. v. Tri-State Surgical Supply, et al., Nos. 15-0563, -3212, 2nd Cir., 2017 U.S. App. LEXIS 22348).

IT Specialist Can Opine On Falsity Of Investor Statements, Judge Says
SHERMAN, Texas - An information technology specialist can testify about whether statements made to investors by the CEO of a computer server development company were false, but cannot opine on whether the statements were misleading, a Texas federal judge ruled Nov. 14 (Securities and Exchange Commission v. William E. Mapp, III, No. 4:16-cv-00246, E.D. Texas, 2017 U.S. Dist. LEXIS 188083).

1 Testim Bellwether Trial Out, 1 Remains In Testosterone MDL; Preemption Denied
CHICAGO - An Illinois multidistrict litigation judge on Oct. 23 granted summary judgment in one of two testosterone replacement therapy bellwether cases but denied preemption in the second case (In Re: Testosterone Replacement Therapy Litigation, MDL Docket No. 2545, No. 14-1748, N.D. Ill., Eastern Div., 2017 U.S. Dist. LEXIS 176522).

Risperdal Gynecomastia Defense Verdict Reversed On Appeal For 'Expert' Testimony
PHILADELPHIA - A Pennsylvania state appeals court panel on Nov. 13 reversed a Risperdal gynecomastia defense verdict, finding that the trial court erred in not treating physician assistant's testimony as that of a causation expert (W.C. v. Janssen Pharmaceuticals, Inc., et al., No. 2451 EDA 2015, Pa. Super., 2017 Pa. Super. LEXIS 909).

Insurer Opposes Reinsurer's Bid For Exclusion Of Notice Argument, Expert Testimony
UTICA, N.Y. - In a dispute over a $325 million settlement of asbestos claims, an insurer in an Oct. 25 letter asks a New York federal court to deny a reinsurer's request to preclude a constructive notice argument, the use of prior court decisions and settlements and expert testimony (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-00853, N.D. N.Y.).

Pennsylvania Judge Won't Reconsider Judgments After Asbestos-Talc Expert Exclusions
PHILADELPHIA - A Pennsylvania judge considering two companies' motion for reconsideration in light of a ruling excluding plaintiffs' experts in an asbestos-tainted talc case denied the motions without prejudice to the filing of new ones in an order docketed Nov. 7 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. 151202987, Pa. Comm Pls., Philadelphia Co.).

Conn. Top Court: Asbestos Case Required Expert Specific Causation Opinion
HARTFORD, Conn. - To prevail on asbestos exposure claims against an aircraft adhesive manufacturer, a plaintiff needed expert testimony that sanding the product released asbestos in sufficient levels to cause mesothelioma, Connecticut's top court held in an opinion set for release Nov. 7 (Wayne Bagley, et al. v. Adel Wiggins Group, et al., No. S.C. 19835, Conn. Sup.).

Companies Want Daubert As Florida Law, Every Exposure Asbestos Testimony Rejected
TALLAHASSEE, Fla. - Two companies on Oct. 20 defended a ruling rejecting an $8 million judgment, telling the Florida Supreme Court that the state's Legislature is free to adopt the Daubert standard and that expert testimony that every exposure to asbestos leads to mesothelioma fails regardless of which standard the court applies (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

Judge: Petroleum Engineer Can Testify On Standard Of Care, Not Negligence
OKLAHOMA CITY - A federal judge in Oklahoma on Oct. 25 ruled that a petroleum engineer cannot proffer expert testimony as to whether a fracking services company was negligent when completing the construction of a disputed oil well but that he can testify regarding the standard of care and whether the standard of care was breached (Singer Oil Company LLC v. Newfield Exploration Midcontinent Inc., et al., CIV-16-768, W.D. Okla., 2017 U.S. Dist. LEXIS 176426).