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LexisNexis® Mealey's™ Daubert Legal News
Headline Daubert Legal News from LexisNexis®
No Error In Allowing DEA Agent's Testimony On Drug Trade Codes, 4th Circuit Says
RICHMOND, Va. - A trial judge did not err in refusing to suppress evidence seized from a storage unit or in permitting an agent of the Drug Enforcement Agency (DEA) to testify regarding drug trade codes, the Fourth Circuit U.S. Court of Appeals ruled Oct. 7 (United States of America v. Lateef Fisher, Nos. 15-4471 & 15-4550, 4th Cir.; 2016 U.S. App. LEXIS 18271).
Judge Orders Government To List Firearms Expert's Opinions In Criminal Case
SEATTLE - A Washington federal judge on Oct. 4 ordered the U.S. government to provide more information on what its firearms expert will be testifying on in a criminal case but refused to exclude the testimony on the basis that the government stated only the general topics covered by the expert (United States of America v. Santos Peter Murillo, No. CR16-0113, W.D. Wash.; 2016 U.S. Dist. LEXIS 138595).
Wisconsin Court Affirms Exclusion Of Testimony On Anomalies In Blood Tests
WAUKESHA, Wis. - A single judge for a Wisconsin appeals court on Oct. 5 upheld a trial judge's exclusion of expert testimony to refute blood test results showing a "substantial amount of alcohol" in a defendant's system because the experts could not say what effect the presence of anomalies in the tests had upon the reliability of the results (State of Wisconsin v. Ali Garba, No. 2015AP1243-CR, Wis. App., Dist. 2; 2016 Wisc. App. LEXIS 653).
Judge Permits Testimony On Ingestion Of Lethal Amount Of Cyanide In Criminal Case
PORTLAND, Maine - Email statements made by a deceased man are not hearsay and are admissible in a case of mail fraud and retaliation, a Maine federal judge ruled Sept. 30, also refusing to exclude an expert's testimony that the man died from his own ingestion of a lethal amount of potassium cyanide (United States of America v. Sidney P. Kilmartin, No. 14-00129, D. Maine; 2016 U.S. Dist. LEXIS 135299).
Delaware High Court Upholds Use Of Officer's Testimony On Smell Of Marijuana Odor
WILMINGTON, Del. - The Delaware Supreme Court on Sept. 29 found no error in the allowance of a police officer's testimony on the smell of marijuana odor, which led to a search of a vehicle, because establishing an intent to deliver drugs requires "something else" such as the officer's testimony beyond proving possession, quantity or packaging (Kenneth Fowler v. State of Delaware, No. 595,2015, Del. Sup.; 2016 Del. LEXIS 506).
Kentucky High Court Finds No Error In Exclusion Of Testimony On Gender Transformation
FRANKFORT, Ky. - A trial judge did not err in excluding testimony of a victim's alleged prior acts of violence and sexual misconduct or by barring a psychologist's testimony regarding transgender identity transformation, the Kentucky Supreme Court ruled Sept. 22, upholding a murder conviction (Matthew Smith a/k/a Maddie Smith v. Commonwealth of Kentucky, No. 2015-SC000451-MR, Ky. Sup.; 2016 Ky. Unpub. LEXIS 73).
Drug Agent's Testimony On Code Language Was Properly Allowed, 11th Circuit Finds
ATLANTA - A special drug agent's testimony regarding the fact that drug dealers use coded language was lay testimony that was properly allowed, the 11th Circuit U.S. Court of Appeals ruled Sept. 21, upholding a man's conviction for one count of conspiracy to distribute cocaine and one count of possession with intent to distribute cocaine (United States of America v. Curtis Jones, No. 15-14514, 11th Cir.; 2016 U.S. App. LEXIS 17235).
Panel Reverses Conviction Based On Preclusion Of Firearms Expert Testimony
TUCSON, Ariz. - The State of Arizona has not proven beyond a reasonable doubt that a jury would have convicted a defendant of second-degree murder even had it heard expert testimony criticizing the methods used by firearms examiners to match a gun to a crime, an Arizona appeals panel majority held Sept. 13, reversing the conviction (The State of Arizona v. Joseph Javier Romero, No. 2 CA-CR 2012-0378, Ariz. App., Div. 2; 2016 Ariz. App. LEXIS 217).
Panel Finds No Error In Forensic Chemist's Procedure For Drug Visual Inspection
RALEIGH, N.C. - A trial judge did not err in allowing a special agent and forensic chemist to testify on his visual inspection of drugs, the North Carolina Court of Appeals held Sept. 6, finding no error in the expert's use of "administrative procedure for sampling" (APS) (State of North Carolina v. Henry Datwane Hunt, No. COA 16-143, N.C. App.; 2016 N.C. App. LEXIS 922).
Judge Limits Expert Testimony To 2 Out Of 3 Golf Courses On Cause Of Damage From Ice
DETROIT - A college professor may testify to the cause of damage from winter conditions to two golf courses he examined but not to a third, which he did not, a Michigan federal judge ruled Oct. 11 (Bloomfield Hills Country Club, et al. v. The Travelers Property Casualty Company of America, et al., No. 15-11290, E.D. Mich.; 2016 U.S. Dist. LEXIS 140449).
5th Circuit: Exclusion Of Expert Testimony Is Fatal To Products Liability Case
NEW ORLEANS - The exclusion of expert testimony on the mechanics of how a vehicle's fuel tank struck a flange and whether safer alternative designs existed was fatal to prove products liability claims, the Fifth Circuit U.S. Court of Appeals ruled Oct. 5, affirming summary judgment for the vehicle's manufacturers (Henry Lee Sims Jr., individually and as legal heir to the Estate of Henry Lee Sims Sr., et al. v. Kia Motors of America and Kia Motors Corp., No. 15-10636, 5th Cir.; 2016 U.S. App. LEXIS 18116).
Judge Tells Employer To Provide Expert Witnesses' Previous Case Compensation
NEW YORK - In a personal injury lawsuit, an employer must provide information concerning its expert witnesses' past compensation in previous cases, a New York federal judge ruled Sept. 29, granting in part motions to exclude (Daniel Whalen v. CSX Transportation Inc., No. 13-3784, S.D. N.Y.; 2016 U.S. Dist. LEXIS 135061).
Rehabilitation Expert Barred From Testifying On Available Jobs, Magistrate Judge Finds
BALTIMORE - A vocational rehabilitation expert is precluded from testifying on the availability of teaching jobs in western Maryland in an employee's lawsuit related to a workplace injury, a Maryland federal magistrate judge held Sept. 27 (Lou Montgomery, et al. v. CSX Transportation, et al., No. 14-1520, D. Md.; 2016 U.S. Dist. LEXIS 131970).
Judge Allows Expert To Testify On Driver's Ability To Stop Before Collision
ST. LOUIS - In a motor vehicle accident lawsuit, a trucking company's expert may testify that a driver had enough time and distance to come to a complete stop before colliding with the company's employee, a Missouri federal judge ruled Sept. 8 (Susan E. Jackson v. Asplundh Construction Corp. and Anthony Michael Rogers, No. 15-00714, E.D. Mo.; 2016 U.S. Dist. LEXIS 121301).
Accident Reconstruction Expert Did Not Inspect Cars Involved In Collision, Judge Says
NEW ORLEANS - An accident reconstruction expert may not opine on the nature of a collision because the expert did not inspect the vehicles involved in the accident, a Louisiana federal judge ruled Sept. 8, excluding the testimony along with any medical causation testimony (Alan Brown, et al. v. Regions Insurance Inc., et al., No. 14-813, E.D. La.; 2016 U.S. Dist. LEXIS 121165).
Federal Judge Limits Expert's Opinion In Negligence Suit To Marine Safety Field
NEW ORLEANS - In a negligence lawsuit an employee filed against his employer over injuries on a boat, a Louisiana federal judge on Sept. 7 limited a marine safety expert's testimony to that stated in his opinion and not matters that fall out of his field (In the matter of M&M Wirelines & Offshore Services LLC, No. 15-4999, E.D. La.; 2016 U.S. Dist. LEXIS 120542).
Judge Partially Bars Damages Testimony In Tempur-Pedic Misrepresentation Lawsuit
ST. PAUL, Minn. - A Minnesota federal judge on Sept. 28 excluded in part some testimony from damages experts and technical experts in a misrepresentation lawsuit between Select Comfort Corp. and Tempur Sealy International Inc., doing business as Tempur-Pedic (Select Comfort Corp. v. Tempur Sealy International Inc. d/b/a Tempur-Pedic and Mattress Firm Inc. d/b/a Mattress Firm, No. 13-2451, D. Minn.; 2016 U.S. Dist. LEXIS 133828).
Judge: Psychiatrist Allowed To Opine On Causation For Athlete's Eating Disorder
WHITE PLAINS, N.Y. - A psychiatrist may opine on the cause and exacerbation of a young female tennis player's bulimia while she was participating in a residential program, a New York federal judge ruled Sept. 28, declining to grant summary judgment on causation (Natalie O'Loughlin and Julia O'Loughlin v. USTA Player Development Inc., et al., No. 14-2194, S.D. N.Y.; 2016 U.S. Dist. LEXIS 133586).
Accident Reconstruction Expert's Testimony Meets Daubert Standard, Judge Says
PHILADELPHIA - An accident reconstruction expert's testimony that one party's actions more than likely caused a vehicle collision meets the reliably requirement for Daubert v. Merrell Dow Pharmaceuticals Inc. (509 U.S. 579 ), a Pennsylvania federal judge ruled Sept. 28 (Dale Miller v. Wheeler Brodie, et al., No. 15-4992, E.D. Pa.; 2016 U.S. Dist. LEXIS 133120).
Judge Bars Opinion On How Slower Speed Would Have Resulted In Minor Collision
MEMPHIS, Tenn. - An engineer and accident reconstructionist failed to present evidence to support his opinion that a driver would have avoided a collision or had "only a minor collision" if he had been driving at a slower speed, a Tennessee federal judge ruled Sept. 7, excluding in part the expert's testimony (Christopher Stephen Johnson and Melissa Johnson v. Trans-Carriers Inc. and Gordon A. Newsome, No. 15-2533, W.D. Tenn.; 2016 U.S. Dist. LEXIS 120374).
Michigan Federal Judge Allows Damages Testimony In Patent Infringement Suit
DETROIT - An expert may offer damages testimony on behalf of Garmin International Inc. in a patent infringement lawsuit concerning car navigational methods, a Michigan federal judge ruled Sept. 12 (Visteon Global Technologies Inc. and Visteon Technologies LLC v. Garmin International Inc., No. 10-10578, E.D. Mich.; 2016 U.S. Dist. LEXIS 122922).
Judge: Surgeon's Opinion On Procedure Creates Genuine Issue In Medical Malpractice Case
NEW YORK - A urological surgeon may testify on the performance of a ureteroscopy procedure and its expected risks and outcomes, a New York federal judge ruled Sept. 26, finding that this testimony creates a genuine issue of dispute concerning a medical malpractice claim (John Bosco v. United States of America, No. 14-3525, S.D. N.Y.; 2016 U.S. Dist. LEXIS 131563).
Magistrate Judge Excludes Gastroenterologist's Opinion On Psychiatric Standard Of Care
NEW YORK - A gastroenterologist may testify regarding an incarcerated woman's standard of care to support negligence and medical malpractice claims, a New York federal magistrate judge ruled Sept. 21; however, the gastroenterologist may not testify as to the standard of psychiatric care or postoperative wound care (Lana Stelman v. United States of America, No. 14-05363, S.D. N.Y.; 2016 U.S. Dist. LEXIS 129420).
Toxicologist May Testify On Cause Of Woman's Death, Federal Magistrate Judge Says
OMAHA, Neb. - A toxicology expert may testify on his opinion regarding the alleged wrongful death of a woman as a result of negligent drug prescription care, a Nebraska federal magistrate judge held Sept. 22, refusing to exclude the testimony because it is not speculative (Brian Crawford as personal representative of the estate of Hilary Crawford, deceased v. Safeway Inc., No. 14-5001, D. Neb.; 2016 U.S. Dist. LEXIS 129674).
Florida Court Reverses $8M Verdict, Orders Retrial For Tobacco Defendant
FORT LAUDERDALE, Fla. - After rejecting an expert's testimony that every exposure to asbestos substantially contributes to developing mesothelioma, a Florida appeals court on Sept. 14 granted a directed verdict to a gasket company and ordered a new trial for a tobacco company (Crane Co., R.J. Reynolds Tobacco Co., and Hollingsworth & Vose Co. v. Richard DeLisle and Aline DeLisle, Nos. 4D13-4351, 4D14-146, Fla. App., 4th Dist.).
Louisiana Federal Judge Allows Causation Testimony In Workplace Accident Case
NEW ORLEANS - A Louisiana federal judge on Sept. 6 permitted expert testimony on causation of injuries in a workplace accident, as well as economic-loss testimony on the worker's future earning capacity while excluding any testimony on the worker's recent arrest (Steven Granger v. Bisso Marine and Bollinger Shipyards, No. 15-477, E.D. La.; 2016 U.S. Dist. LEXIS 119868).
Expert May Testify Screen On Salt Spreading Device Was Dangerous, Federal Judge Says
BOSTON - An expert may testify that an opening in a screen over a salt spreading mechanism created an unreasonably dangerous condition, a Massachusetts federal judge ruled Sept. 2, also denying summary judgment to the mechanism's manufacturer on a failure to warn claim (Ronald Linhares v. Buyers Products Co., No. 15-11881, D. Mass.; 2016 U.S. Dist. LEXIS 119128).
Neurosurgeon Barred From Opining On Woman's Back Condition, Judge Concludes
PORTLAND, Ore. - A neurosurgeon may not testify in a strict product liability lawsuit that a woman would not have suffered significant injury were it not for her chronic degenerative condition, an Oregon federal judge ruled Aug. 10, barring the opinion that the woman would have become paralyzed at some point in the future as irrelevant (Jeanie Chong v. STL International Inc. and Costco Wholesale Corp., No. 14-244, D. Ore.; 2016 U.S. Dist. LEXIS 105512).
Expert Testimony Fails To Support Atmosphere Of Violence Claim, Panel Finds
JACKSON, Miss. - A woman who suffered injuries during a robbery in a parking lot failed to provide sufficient testimony from a safety and security expert to support an atmosphere-of-violence claim, a Mississippi appeals panel affirmed Aug. 30, noting that an incident of robbery in the previous five years was not enough to put a company on notice of foreseeable danger (Pearlie Wright v. R.M. Smith Investments, L.P., No. 2015-CA-00199-COA, Miss. App.; 2016 Miss. App. LEXIS 566).
Federal Judge Allows Expert Testimony On Delamination Of Pools To Establish Cause
ST. CROIX, Virgin Islands - A pool expert's testimony that application of a waterproofing manufacturer's product caused the delamination in affected pools is relevant for the purpose of establishing causation for the pool surfacing company's damages, a Virgin Islands federal judge ruled Aug. 30 (Poolworks Inc. v. Aquafin Inc., No. 14-0037, D. Virgin Islands; 2016 U.S. Dist. LEXIS 116112).
Panel Upholds Judgment On Lead-Paint Injuries Based On Medical, Economic Loss Testimony
BALTIMORE - Finding no error in the use of testimony from a medical doctor, a vocational counselor and economic loss expert, a Maryland special appeals panel on Sept. 1 affirmed a judgment against an apartment building owner for negligence arising out of a woman's injuries from deteriorating lead paint (Stanley Rochkind v. Starlena Stevenson, No. 418, Md. App.; 2016 Md. App. LEXIS 100).
Widow: U.S. Supreme Court Should Hear Benzene Death Case Due To Circuit Split
WASHINGTON, D.C. - The U.S. Supreme Court on Aug. 24 put on its docket a widow's appeal of an appellate court ruling that affirmed the dismissal of her wrongful death lawsuit against Shell Oil Co. for her husband's alleged exposure to gasoline containing benzene (Yolande Burst v. Shell Oil Company, et al., No. 16-241, U.S. Sup.).
Expert Allowed To Testify On Cause Of Damage To Golf Courses From Ice, Judge Says
DETROIT - An expert for three insured golf courses may testify that the weight of ice killed the turfgrass by prohibiting a gaseous exchange by the turfgrass, leading to anoxia, a Michigan federal judge held Aug. 30, declining to exclude the testimony because the expert provided documentation (Bloomfield Hills Country Club, et al. v. The Travelers Property Casualty Company of America, et al., No. 15-11290, E.D. Mich.; 2016 U.S. Dist. LEXIS 116172).
Judge Bars Partial Testimony On Floodplain Location In Insurance Coverage Dispute
DETROIT - A Michigan federal judge on Aug. 26 excluded partial testimony in an insurance coverage dispute on the remaining issue as to whether an insured's property was located within a 100-year floodplain at the time of its loss (Federal-Mogul Corp. v. Insurance Company of the State of Pennsylvania, No. 12-12005, E.D. Mich.; 2016 U.S. Dist. LEXIS 114573).
Judge Partially Bars Expert's Testimony On Damages In Patent Infringement Lawsuit
SAN FRANCISCO - In a patent infringement lawsuit concerning computer security technology, a damages expert's apportionment methodology is unreliable as it improperly inflates the apportionment base, a California federal judge ruled Aug. 15, partially excluding the testimony (Finjan Inc. v. Sophos Inc., No. 14-01197, N.D. Calif.; 2016 U.S. Dist. LEXIS 107831).
Judge Bars Medicine Specialist From Opining On Link Between Emotional Distress, Medications
KANSAS CITY, Kan. - An internal medicine specialist may not offer testimony on how a woman's emotional distress could be linked to medications she was taking at the time of alleged sexual harassment during her employment at Pittsburg State University (PSU), a Kansas federal judge ruled Aug. 17 (Martha Fox v. Pittsburg State University, No. 14-2606, D. Kan.; 2016 U.S. Dist. LEXIS 109861).
Judge Bars Damages Expert From Testifying On Factors Of Asset Purchase Agreement
CHICAGO - A damages expert may not testify on whether a company would have reduced the value of an asset purchase agreement (APA) had it known about prior credits to alcohol beverage distributors and local marketing funds (LMF), an Illinois federal judge ruled Sept. 6, noting that the statements were speculative and subjective opinions (Luxco Inc. v. Jim Beam Brands Co., No. 14-0349, N.D. Ill.; 2016 U.S. Dist. LEXIS 119615).
Judge Excludes Testimony On Loan Modification Application Process For Failure To Interpret
CONCORD, N.H. - Expert testimony on homeowners' loan modification application with mortgage lenders fails to offer interpretation of process outside of paraphrasing subsections of the Real Estate Settlement and Procedures Act (RESPA), a New Hampshire federal judge ruled Aug. 31, barring the testimony (Jason S. Dionne and Denise C. Dionne v. Federal National Mortgage Association and JPMorgan Chase Bank N.A., No. 15-056, D. N.H.; 2016 U.S. Dist. LEXIS 117352).
Judge Allows Economics Opinion In Price-Fixing Conspiracy Suit Against Egg Industry
PHILADELPHIA - In a price-fixing conspiracy lawsuit against egg producers, an economics expert may opine regarding the existence of a unitary egg industry, a Pennsylvania federal judge ruled Aug. 15, denying the motion to exclude the testimony (In re: Processed Egg Products Antitrust Litigation, No. 08-md-2002, MDL No. 2002, E.D. Pa.; 2016 U.S. Dist. LEXIS 107399).
Panel Upholds Child Abuse Conviction Based On Shaken Baby Syndrome Testimony
TUCSON, Ariz. - There was no error in allowing expert testimony concerning the diagnosis of abusive head trauma, formerly known as shaken baby syndrome, because the diagnosis was reliable, an Arizona appeals panel held Aug. 11, affirming a man's conviction of reckless child abuse that could cause death or serious physical injury (The State of Arizona v. Steven James Brown, No. 2 CA-CR 2015-0154, Ariz. App.; 2016 Ariz. App. Unpub. LEXIS 1032).
Expert's Opinion On Lack Of Suicide Prevention Policy Backed By Evidence, Federal Judge Says
ST. LOUIS - An expert provided sufficient documentation to support his opinion that the St. Louis County, Mo., Justice Department failed to develop and implement an effective suicide prevention policy and effective suicide prevention training and supervision program for correctional officers prior to an inmate's suicide, a Missouri federal judge ruled Aug. 15 (A.H., et al. v. St. Louis County, Mo., et al., No. 14-2069, E.D. Mo.; 2016 U.S. Dist. LEXIS 107487).
Judge Finds Expert's Use Of Discounted Cash Flow Method Valid To Opine On Damages
ORLANDO, Fla. - A financial adviser's discounted cash flow method is appropriate to determine the lost damages in a telecommunications agreement, a Florida federal judge ruled Aug. 24, declining to exclude the adviser's testimony (Local Access LLC and Blitz Telecom Consulting LLC v. Peerless Network Inc. v. Local Access LLC, No. 14-399, M.D. Fla.; 2016 U.S. Dist. LEXIS 112885).
Illinois Federal Judge Allows Expert's Opinion On Sole Cause Of Admiralty Accident
CHICAGO - In an admiralty case, an expert may opine that the sole cause of an incident was a lockmaster's failure to reduce the flow of water through a dam so that a vessel and a tow could safely enter a canal, an Illinois federal judge ruled Aug. 16 (In the matter of the complaint of Ingram Barge Co. as owner of the M/V Dale A. Heller and the IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513, petitioning for exoneration from or limitation of liability, No. 13-3453 c/w In the matter of American Commercial Lines, LLC, as owner and Inland Marine Service, Inc., as owner pro hac vice of the M/V Loyd Murphy for exoneration from or limitation of liability, No. 13-4292, N.D. Ill.; 2016 U.S. Dist. LEXIS 107984).
Google Seeks Summary Judgment, Expert Exclusion In Google Wallet Class Action
SAN JOSE, Calif. - In a pair of reply briefs filed Aug. 10 in California federal court, Google Inc. seeks to support its pending motions for summary judgment in a putative privacy class action over its Google Wallet feature and to exclude the lead plaintiff's expert's testimony on damages (Alice Svenson v. Google Inc., et al., No. 5:13-cv-04080, N.D. Calif.).
Judge Bars ACA Testimony; Jury Awards Defense Verdict In Medical Negligence Case
HARRISBURG, Pa. - A federal jury in Pennsylvania on Aug. 19 found no negligence in a doctor's failure to properly diagnose and treat a woman's herpes zoster virus after a judge ruled that the jury would not hear testimony regarding the potential availability of Patient Protection and Affordable Care Act (ACA) benefits (Tami Bernheisel v. Martin Mikaya, M.D., Memorial Hospital Inc., et al., No. 13-1496, M.D. Pa.).
Ethicon Pelvic Mesh MDL Judge Issues Daubert Rulings For 32 Plaintiff, Defense Experts
CHARLESTON, W.Va. - The West Virginia federal judge overseeing the Ethicon pelvic mesh multidistrict litigation on Aug. 25, 26 and 30 issued 32 mostly split decisions on expert witness challenges raised by both plaintiffs and the defense in Wave I cases (In Re: Ethicon Inc. Pelvic Repair Systems Product Liability Litigation, MDL Docket No. 2327, No. 12-md-2327, S.D. W.Va.; 2016 U.S. Dist. LEXIS 115087).
Zoloft Heart Defect Plaintiffs Tell 3rd Circuit MDL Judge Exceeded Daubert Bounds
PHILADELPHIA - Women who claim that their babies were born with heart defects caused by the antidepressant Zoloft on Aug. 10 told the Third Circuit U.S. Court of Appeals that a federal multidistrict litigation judge erred by ruling that the plaintiffs' causation expert's opinion must be supported by "multiple replicated observational studies showing a statistically significant association between the drug and the disease" (In Re: Zoloft [Sertraline Hydrochloride] Products Liability Litigation, Jennifer Adams v. Wolters Kluwer Health Inc., et al., No. 16-2247, 3rd Cir.).
Panel: No Error In Use Of Testimony On Murder Defendant's Demeanor
RALEIGH, N.C. - A trial judge did not err in allowing the admission of an investigator's testimony concerning a man's demeanor when questioned about a murder, the North Carolina Court of Appeals ruled Aug. 2 (State of North Carolina v. Travis Lamont Daughtridge, No. COA15-1160, N.C. App.; 2016 N.C. App. LEXIS 805).
9th Circuit: No Error In Admission Of Psychiatrist's Testimony On Medical Exam
SAN FRANCISCO - Finding no error in the admission of testimony from a psychiatrist regarding a plaintiff's "exaggerated" answers during a medical exam, the Ninth Circuit U.S. Court of Appeals on July 12 affirmed a verdict in favor of the City of Los Angeles and officers of the Los Angeles Police Department (LAPD) (Ronald Weekley, Jr. v. City of Los Angeles, et al., No. 14-56210, 9th Cir.; 2016 U.S. App. LEXIS 12806).
Federal Judge Allows Detective's Testimony On Drug Deal Code Language
LOS ANGELES - A police detective may testify on interpreting coded language in conversations between an alleged drug dealer and a confidential informant (CI), a California federal judge ruled July 29, refusing to exclude his testimony (United States of America v. Brian Sawyers, No. 15-00070, C.D. Calif.; 2016 U.S. Dist. LEXIS 99688).
No Error In Social Worker's Testimony On Sexual Abuse, Ohio Appeals Panel Finds
CINCINNATI - A social worker was allowed to testify as an expert witness regarding whether children's statements were consistent with sexual abuse, as she was sufficiently qualified for this purpose, an Ohio appeals panel held July 13, affirming a domestic violence civil protection order (DVCPO) against the children's father (Angela Sanchez v. Hugo Sanchez, No. C-150441, Ohio App., 1st Dist.; 2016 Ohio App. LEXIS 2744).
Judge Permits Experts To Opine On Heat Age Testing In Patent Infringement Suit
MINNEAPOLIS - Experts may testify on heat age testing using the "dome" method and opinions relying on certain indirect evidence in a patent infringement lawsuit, a Minnesota federal judge ruled July 22, also denying summary judgment to defendants on claims of noninfringement, invalidity and no lost profits (3M Innovative Properties Co. and 3M Co. v. GDC, Inc. and Monadnock Non-Wovens, LLC, No. 13-1287, D. Minn.; 2016 U.S. Dist. LEXIS 96253).
Judge Allows Damages Testimony In Copyright Infringement Lawsuit
MADISON, Wis. - In a copyright infringement lawsuit, an expert may testify that a software company did not suffer any damages at all, a Wisconsin federal judge ruled July 8 (Epic Systems Corp. v. Attachmate Corp., No. 15-179, W.D. Wis.; 2016 U.S. Dist. LEXIS 88572).
Judge Defers Decision On Excluding Expert Testimony On Lost Wages In Maritime Suit
NEW ORLEANS - A Louisiana federal judge on July 25 deferred ruling on a motion to exclude an expert's calculations of lost wages beyond the statistical average in a general maritime lawsuit following injuries sustained during employment (James A. Miller, et al. v. Marine Spill Response Corp., et al., No. 15-1049, E.D. La.; 2016 U.S. Dist. LEXIS 96669).
Federal Magistrate Judge Excludes Partial Expert Testimony In Admiralty Suit
CHICAGO - In an admiralty case, an Illinois federal magistrate judge on July 14 excluded an expert from testifying that boat captains could have requested that gates again be closed as they were approaching the protection cells (In the matter of the complaint of Ingram Barge Co. as owner of the M/V Dale A. Heller and the IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513, petitioning for exoneration from or limitation of liability, No. 13-3453 c/w In the matter of American Commercial Lines, LLC, as owner and Inland Marine Service, Inc., as owner pro hac vice of the M/V Loyd Murphy for exoneration from or limitation of liability, No. 13-4292, N.D. Ill.; 2016 U.S. Dist. LEXIS 91411).
Judge: Treating Physician May Testify On Relationship Between Accident, Surgeries
HATTIESBURG, Miss. - A treating physician is qualified to testify as to the causal relationship between a car accident and a man's subsequent surgeries, a Mississippi federal judge ruled Aug. 3, finding that it does not matter that the physician is unable to decide whether the man's need for surgery was the result of the accident (Kelvin Anderson v. United States of America, No. 15-55, S.D. Miss.; 2016 U.S. Dist. LEXIS 101758).
Trucking Safety Expert May Opine On Company's Power Carrier Program, Judge Says
HARRISBURG, Pa. - In a personal injury lawsuit arising out of an auto collision, a trucking industry safety expert may testify that a trucking company's power carrier program did not act as a freight broker, a Pennsylvania federal judge ruled Aug. 3, finding that the expert qualifies to testify on the Federal Motor Carrier Safety Regulations (FMCSRs) related to brokers of property (Francisco Ramos-Becerra and Louisa Ramos v. Ricky L. Hatfield, et al., No. 14-0917, M.D. Pa.; 2016 U.S. Dist. LEXIS 101579).
Judge Bars Nurse's Opinion Of $3M In Future Health Needs In Wal-Mart Slip-And-Fall Case
LAS VEGAS - A registered nurse may not testify that a woman injured in a slip and fall at a Wal-Mart store will need a life-care plan valued at more than $3 million because the nurse did not consult with the woman's treating physicians, a Nevada federal judge ruled July 29, excluding the testimony (Robbin L. Lologo and Vincent J. Lologo v. Wal-Mart Stores, Inc. and Advantage Sales & Marketing, LLC, No. 13-1493, D. Nev.; 2016 U.S. Dist. LEXIS 100559).
10th Circuit: Causation Testimony Reliable For Insurance Collision Suit
DENVER - A trial court properly allowed expert testimony on causation in an insurance coverage dispute over injuries suffered in an auto collision, the 10th Circuit U.S. Court of Appeals held July 19, affirming that the insured presented evidence that a reasonable jury could find that his claim for benefits was fairly debatable (Donald L. Etherton v. Owners Insurance Co., No. 14-1164, 10th Cir.; 2016 U.S. App. LEXIS 13156).
Police Expert Barred From Testifying On Injuries, Florida Federal Judge Says
MIAMI - A police expert may not testify to the nature and extent of plaintiffs' injuries and on the use of force where plaintiffs were completely under a train car when apprehended by a police dog (K-9), a Florida federal judge ruled July 12 (Humberto Pellegrino and Pedro Claveria v. Gerald Wengert, et al., No. 15-60535, S.D. Fla.; 2016 U.S. Dist. LEXIS 90178).
Judge Allows Expert To Testify In Part On Commercial Premises Safety, Security
AUGUSTA, Ga. - An expert for plaintiffs in a negligence lawsuit is qualified as an expert to testify on most of his opinions concerning commercial premises safety and security, a Georgia federal judge ruled July 8, granting and denying in part a motion to exclude (Tammy Padgett and Joey Padgett v. Kmart Corp. and Colony Mill Enterprises, LLC, No. 15-048, S.D. Ga.; 2016 U.S. Dist. LEXIS 88734).
GM MDL Judge Will Allow Results Of Blood Test In Trial
NEW YORK - The judge overseeing the General Motors ignition switch multidistrict litigation on Aug. 1 partially granted and partially denied motions to exclude filed by the automaker and the plaintiff in the fifth bellwether trial by saying that the automaker will be allowed to present testimony about the results of a blood test that indicates that the plaintiff may have had alcohol in her system when her car crashed (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-0254; Stephanie Cockram v. General Motors LLC, No. 14-CV-8716, S.D. N.Y.).
GM MDL Bellwether Plaintiff Seeks To Exclude Expert Testimony
NEW YORK - The plaintiff in the final bellwether trial in the General Motors ignition switch multidistrict litigation says in an Aug. 2 brief that the automaker should not be able to present expert testimony from a doctor who claims that she was under the influence of drugs when she crashed her car (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-02543, Amy Ladon Norville v. General Motors LLC, No. 14-cv-8176 S.D. N.Y.).
Magistrate Judge Finds Plaintiffs' Expert's Additional Report Was Not Supplemental
NEW HAVEN, Conn. - A federal magistrate judge in Connecticut on July 6 granted defendants' motion to strike the additional report of a doctor who examined a couple who claim that they sustained injuries as a result of exposure to volatile organic compounds (VOCs) emitted by spray polyurethane foam (SPF), finding that the expert's opinions did not supplement his original report (Richard Breyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Ohio Appeals Panel Majority Says No Error In Admission Of Medical Malpractice Testimony
WARREN, Ohio - A trial court did not err in allowing expert testimony as to causation for an injury to the femoral nerve in a medical malpractice lawsuit, a majority of an Ohio appeals panel ruled July 18 (Jane L. Gordon v. Trumbull Memorial Hospital c/o National Registered Agents, Inc., et al., No. 2015-T-0080, Ohio App., 11th Dist.; 2016 Ohio App. LEXIS 2802).
Judge: Doctors Allowed To Testify On Use Of Medicine In Wrongful Death Suit
LAS VEGAS - Doctors may testify that by not instructing a patient to discontinue Probenecid or nonsteroidal anti-inflammatory drugs (NSAIDs), the government and one of its Veterans Affairs doctors reduced a substantial chance for a more favorable recovery, a Nevada federal judge ruled July 28, denying a request to exclude the testimony in a medical malpractice lawsuit (Rosa Carrion, as surviving spouse and heir of Jose Carrion, deceased v. United States of America and Dr. William Dodge, No. 13-00419, D. Nev.; 2016 U.S. Dist. LEXIS 99519).
Exclusion Of Testimony On Other Causes For Child's Injury Was Error, Panel Says
WAUSAU, Wis. - A trial judge erred in excluding defense experts from testifying that maternal forces of labor caused a child's permanent brachial plexus injury in a lawsuit alleging that a doctor's negligence caused the injury, a Wisconsin appeals panel ruled July 6 (Unity Bayer by her guardian ad litem, Vincent R. Petrucelli, et al. v. Brian D. Dobbins, M.D., et al., No. 2015AP1470, Wis. App., Dist. 3; 2016 Wisc. App. LEXIS 412).
Judge Won't Exclude Tylenol Liver Injury Study From 1st MDL Bellwether Case
PHILADELPHIA - The Pennsylvania federal judge overseeing the Tylenol multidistrict litigation on July 14 denied a defense motion to exclude a key study from the plaintiff's case in the first bellwether trial and excluded testimony by defense experts who criticized the reliability of the study (In Re: Tylenol [Acetaminophen] Marketing, Sales Practices, and Products Liability Litigation, MDL Docket No. 2436, No. 13-md-2436, E.D. Pa. 2016 U.S. Dist. LEXIS 92334).
Mirena IUD Judge Rejects Alternative Causation Claims, Dismisses All 1,377 Cases
WHITE PLAINS, N.Y. - A New York federal judge on July 28 granted summary judgment and dismissed all 1,377 Mirena intrauterine device (IUD) multidistrict litigation cases, saying the plaintiffs cannot prove without an expert that the device can move about the body after insertion and that the plaintiffs cannot rely on lay understanding by jurors or infer admission by defendant Bayer Healthcare Pharmaceuticals Inc. (In Re: Mirena IUD Products Liability Litigation, MDL Docket No. 2434, No. 13-mc-2434, S.D. N.Y.).
Federal Judge Allows Expert Testimony On Project Survey, Alleged Improper Plans
WASHINGTON, D.C. - A federal claims judge on July 21 allowed expert testimony on the topographical survey for a project showing that it was incomplete and that the project plans and specifications were improperly copied from a prior project (Magnus Pacific Corp. v. The United States, No. 13-859 C, Fed. Clms.; 2016 U.S. Claims LEXIS 974).
Judge Permits Testimony On Use Of Scaffolding In Work Negligence Lawsuit
NEW ORLEANS - An expert may testify that a scaffolding should have been erected to provide workers a safe platform to work from as they attempted to catch leaking oil from a pipe, a Louisiana federal judge ruled July 21, finding that he will be in a better position at trial to assess whether the expert in fact reaches improper legal conclusions (Darrel J. Singleton, Jr., et al. v. Fieldwood Energy, LLC, et al., No. 15-5558, E.D. La.; 2016 U.S. Dist. LEXIS 95427).
Art Historian May Testify To Market Value Of Work, Illinois Federal Judge Finds
CHICAGO - An art historian may opine that if a signature were authenticated, the market value for a piece of art would be between $6 million and $8 million, an Illinois federal judge ruled July 21, declining to exclude the historian's testimony (Robert Fletcher and Bartlow Gallery Ltd. v. Peter Doig, No. 13-3270, N.D. Ill.; 2016 U.S. Dist. LEXIS 95081).
Judge Allows Opinions Challenged As Inadmissible 'Every Exposure' Testimony
MIAMI - Expert testimony challenges from both an asbestos plaintiff and a friction defendant confuse the distinction between admissibility and credibility, a federal judge in Florida said July 11 while also declining to take a third look into whether jurisdiction exists over a different defendant (James John Waite Jr. and Sandra Waite v. AII Acquisition Corp., et al., No. 15-62359, S.D. Fla.).
Company Tells 3rd Circuit Dismissal Of Injury Claims Against It Was Proper
PHILADELPHIA - A power company that was sued by a group of Pennsylvania residents who contend that it is liable for their injuries, including cancer, that stem from exposure to radioactive materials filed a brief in the Third Circuit U.S. Court of Appeals on July 15, arguing that it should let stand a lower court's summary judgment ruling in the company's favor because the plaintiffs lack admissible evidence of specific causation (Michelle McMunn, et al. v. Babcock & Wilcox Power Generation Group Inc., No. 15-3506 [consolidated], 3rd Cir.).