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LexisNexis® Mealey's™ Daubert Legal News
Headline Daubert Legal News from LexisNexis®
District Of Columbia Appeals Court Adopts Rule 702 For Expert Testimony Admissibility Test
WASHINGTON, D.C. - The District of Columbia Court of Appeals on Oct. 20 adopted the standards embodied in Federal Rule of Evidence 702 over its previous use of the test set forth in Dyas v. United States (376 A.2d 827 [D.C. 1977]) and Frye v. United States (293 F. 1013 [D.C. Cir. 1923]) to govern the admissibility of expert testimony (Motorola Inc., et al. v. Michael Patrick Murray, et al., No. 14-1350, D.C. App.; 2016 D.C. App. LEXIS 382).
3rd Circuit Finds No Error In Allowing Expert Testimony In Breach Of Agreement Suit
PHILADELPHIA - In a breach of a lease agreement lawsuit between a class of landowners and an exploration production company, the Third Circuit U.S. Court of Appeals ruled Oct. 24 that a trial judge did not abuse his discretion in refusing to reconsider allowing an expert to testify that natural gas sold to third-party buyers was made before any interstate transportation (David F. Pollock, as executor of the estate of Margaret F. Pollock, et al. v. Energy Corporation of America, Nos. 15-2648 & 15-2649, 3rd Cir.; 2016 U.S. App. LEXIS 19167).
Judge Allows Testimony On Leasing Logistics Of Rail Cars In Breach Of Contract Suit
HOUSTON - In a breach of contract lawsuit, an employee of a supply, trading and logistics company may testify as to the company's efforts "to lease, mobilize and manage the logistics of providing rail cars to a terminal," a Texas federal judge ruled Oct. 18, finding that the employee's experience and education qualify him as an expert (Musket Corp. v. Suncor Energy [U.S.A.] Marketing Inc., No. 15-100, S.D. Texas; 2016 U.S. Dist. LEXIS 143881).
Georgia High Court: Error In Admission Of Testimony In Medical Liability Suit
ATLANTA - An appeals court erred in holding that deposition testimony of an organizational representative taken under Official Code of Georgia Annotated (OCGA) Section 9-11-30 (b) (6) may be admitted into evidence at trial under OCGA Section 9-11-32 (a) (2) without regard to the rules of evidence governing admissibility of expert testimony, the Georgia Supreme Court ruled Oct. 31 (Dr. Patricia Yugueros v. Rudy Robles, No. S16G0619, Ga. Sup.; 2016 Ga. LEXIS 709).
Judge Declines To Exclude Treating Physician Testimony In Medical Malpractice Suit
SAN JUAN, Puerto Rico - In a medical malpractice lawsuit, a Puerto Rico federal judge on Oct. 19 refused to exclude a treating physician's testimony because it is relevant to establish the causal nexus between a man's prior treatment and his alleged injury (Martin Torres-Rivera v. Centro Medico Del Turabo Inc., et al., No. 13-1747, D. Puerto Rico; 2016 U.S. Dist. LEXIS 145129).
Magistrate Judge Precludes Expert Opinions On Damages In Medical Malpractice Suit
NEW YORK - A neurologist, a psychologist, an economist and a school principal may not testify as to damages from the loss of the role of an orthodox, Hasidic mother, a New York federal magistrate judge ruled Oct. 20, but he allowed the psychologist and economist to testify about the loss of household services that was experienced as a result of the mother's death (Arnold Hersko, individually and as administrator of the estates of Rochel Hersko and Arnold Hersko v. United States of America, et al., No. 13-CV-3255, S.D. N.Y.; 2016 U.S. Dist. LEXIS 145552).
Judge: Expert May Testify On Wal-Mart Store's Conditions In Personal Injury Lawsuit
ALBUQUERQUE, N.M. - A hazard analysis expert may testify as to whether the conditions present at a store created a dangerous situation, a New Mexico federal judge ruled Nov. 4, also denying summary judgment to Wal-Mart Stores East L.P. because there is sufficient evidence to create a genuine issue of material fact as to the company's alleged breach of duty (Patricia Cabrera v. Wal-Mart Stores East L.P., No. 15-597, D. N.M.; 2016 U.S. Dist. LEXIS 153664).
Federal Judge Allows Liability Expert Testimony On Safety Of Driveway, Need Of Repairs
JEFFERSON CITY, Mo. - A liability expert may testify on the reasonable safety of a driveway and whether it needed repairs, a Missouri federal judge ruled Nov. 3, also denying summary judgment to the property owners because fact issues exist as to whether they should have discovered the dangerous condition (Amy Fontaine and Todd Fontaine v. Columbia Properties Ozarks Ltd., et al., No. 15-04213, W.D. Mo.; 2016 U.S. Dist. LEXIS 152343).
Judge Allows Mechanical Engineer To Testify On Defects In Lawn Mower
BOSTON - A mechanical engineer may testify as to the defects in a lawn mower and the causation of a man's injuries while a doctor of bio-mechanics may testify as to the timing of the accident, a Massachusetts federal judge held Oct. 17 (Anthony Provanzano v. MTD Products Co. and Lowe's Home Centers LLC, No. 15-11720, D. Mass.; 2016 U.S. Dist. LEXIS 143402).
5th Circuit Affirms Defense Summary Judgment In Medical Negligence Case
NEW ORLEANS - A federal court in Texas did not abuse its discretion in excluding the testimony of the plaintiff's expert witness in a medical negligence case, a Fifth Circuit U.S. Court of Appeals panel found Oct. 19, affirming summary judgment for the defendants (Jewel Honey-Love, Individually and as a Representative of the Estate of Larry Lavon Love v. United States of America, et al., No. 16-20080, 5th Cir.; 2016 U.S. App. LEXIS 18829).
Magistrate Judge Bars Opinion On Company's Success In Trademark Infringement Suit
LOUISVILLE, Ky. - In a trademark infringement dispute, an internet marketing expert may not testify on whether a marketing consultant could determine the success of a startup company and whether the registration of a website domain name was "highly unusual and possibly unethical," a Kentucky federal magistrate judge ruled Nov. 4 (Louisville Marketing Inc. d/b/a Jewelry In Candles v. Jewelry Candles LLC v. P. Micah Buse, No. 15-00084, W.D. Ky.; 2016 U.S. Dist. LEXIS 153329).
Judge Partially Bars Expert Opinion On Fitness Brand In Trademark Infringement Suit
HOUSTON - In a trademark infringement lawsuit, an expert may testify on branding in the fitness industry but is not allowed to discuss whether an alleged brand meets various legal definitions related to trademark law, a Texas federal judge ruled Oct. 18, also denying summary judgment to a fitness training company on its fair use defense (Michael Jones v. American Council on Exercise, No. 15-3270, S.D. Texas; 2016 U.S. Dist. LEXIS 143882).
Judge Bars Employee From Testifying On Trademark Confusion In Trade Secrets Suit
PHILADELPHIA - In a misappropriation of trade secrets lawsuit, a company's employee in its marketing department is unqualified due to a lack of technical knowledge to testify on issues such as "branding, trademark confusion, customer reactions, business ethics, or trademark law," a Pennsylvania federal judge ruled Oct. 12, excluding the testimony (Alpha Pro Tech Inc. v. VWR International LLC, No. 12-1615, E.D. Pa.; 2016 U.S. Dist. LEXIS 141030).
Michigan Federal Judge Bars Damages Experts' Opinions In Patent Infringement Suit
DETROIT - In a patent infringement lawsuit concerning car navigational methods, a Michigan federal judge ruled Oct. 14 that damages experts failed to present a reliable methodology for a conjoint study to assist a jury in determining what portion of Garmin International Inc.'s profits could be attributed to the incremental value that the four patented features added to the overall value of the accused devices (Visteon Global Technologies Inc. and Visteon Technologies LLC v. Garmin International Inc., No. 10-10578, E.D. Mich.; 2016 U.S. Dist. LEXIS 142395).
Insurer Tells High Court No Error In Admission Of Expert Testimony
WASHINGTON, D.C. - An insurer argues in an Oct. 17 respondent opposition brief that the U.S. Supreme Court should not consider whether a district court may exclude expert testimony in a fraudulent transfer lawsuit based on flaws in the expert's application of a reliable methodology (Symons International Group Inc., et al. v. Continental Casualty Co., No. 16-220, U.S. Sup.).
Judge: Engineer's Testimony On Cause Of Fire Is Unreliable Due To Lack Of Testing
NEW ORLEANS - An electrical engineer's failure to test his hypothesis for the cause of a fire on a boat, combined with the engineer's failure to obtain the relevant data, renders his methodology unreliable, a Louisiana federal judge ruled Oct. 20, excluding the testimony (Atlantic Specialty Insurance Co. and Nicholas Chad Gonzalez v. Porter Inc. d/b/a Formula Boats, No. 15-570, E.D. La.; 2016 U.S. Dist. LEXIS 145415).
Judge Rules On Motions To Bar Competing Expert Witnesses In Bad Faith Dispute
CHICAGO - An Illinois federal judge on Nov. 2 granted in part dueling motions to bar expert witnesses in a breach of contract and bad faith coverage dispute arising from a $14 million consent judgment entered against an insured (Ray A. Fox, by and through his guardian, Rose Fox v. Admiral Insurance Co., No. 12-8740, N.D. Ill., Eastern Div.; 2016 U.S. Dist. LEXIS 151738).
No Error In Use Of Expert Testimony On Sexual Grooming, Oregon Appeals Panel Finds
SALEM, Ore. - An expert was qualified to present a jury with general testimony about the concept of sexual grooming, an Oregon appeals panel ruled Oct. 26, also finding that the testimony did not constitute scientific evidence requiring a foundation under State v. Brown (297 Or 404, 687 P2d 751 ) and State v. O'Key (321 Or 285, 899 P2d 663 ) (State of Oregon v. Robert Lewis Henley aka Sonny Henley, No. 523, Ore. App.; 2016 Ore. App. LEXIS 1341).
Panel Finds No Error In Use Of Expert Testimony On Retinal Hemorrhages, Abuse
LANSING, Mich. - A defendant failed to show any errors in his counsel's performance with regard to the admission of expert testimony on the connection between retinal hemorrhages in a child as symptoms of alleged abuse, a Michigan appeals panel held Nov. 1 (People of the State of Michigan v. Joshua Quincy Burns, No. 327179, Mich. App.; 2016 Mich. App. LEXIS 2008).
Iowa Appeals Panel Finds No Error In Admission Of Officer's Testimony On Phone Records
DES MOINES, Iowa - A trial judge did not err in allowing an officer to testify as an expert on cellphone records to establish a man's involvement in a burglary of a poker game, an Iowa appeals panel ruled Oct. 26, because the officer had sufficient knowledge and experience (State of Iowa v. Joseph William Rendon, No. 15-1832, Iowa App.; 2016 Iowa App. LEXIS 1114).
No Error In Admission Of Testimony On Forensic Child Interviewing, Panel Rules
LAKE CHARLES, La. - A Louisiana appeals panel on Nov. 2 found no error in the admission of testimony from a woman who interviewed a sexual abuse victim as an expert in forensic child interviewing because the woman had sufficient experience and there was enough independent evidence to support the criminal case (State of Louisiana v. Christopher Lance Washburn, No. 16-335, La. App., 3rd Cir.; 2016 La. App. LEXIS 2040).
10th Circuit Finds No Error In Allowing Sexual Assault Testimony In Criminal Case
DENVER - The 10th Circuit U.S. Court of Appeals on Oct. 24 affirmed that a district court did not abuse its discretion in admitting a certified sexual assault nurse examiner's testimony that a victim's scratching of herself was consistent with sexual assault and domestic abuse victims coping with the trauma they have experienced (United States of America v. Leslie Chapman, Nos. 15-2143 and 15-2173, 10th Cir.; 2016 U.S. App. LEXIS 19217).
Judge Bars Testimony On Human Memory In Criminal Case As 'Unnecessary'
CHICAGO - A defendant charged with providing a minor with a gun used in a crime failed to establish that her expert's testimony on perception and human memory is "necessary for adequate representation," an Illinois federal judge ruled Oct. 20, declining to appoint an expert under the Criminal Justice Act (United States of America v. Vandetta Redwood, No. 16-CR-80, N.D. Ill.; 2016 U.S. Dist. LEXIS 145307).
No Error In Holding Daubert Hearing Without Defendant, 1st Circuit Concludes
BOSTON - A trial judge did not err in continuing in the absence of a defendant a hearing under Daubert v. Merrell Dow Pharms. Inc. (509 U.S. 579 ) to determine whether an arson investigator may testify in a criminal case because there was independent evidence that the fire was deliberately set, the First Circuit U.S. Court of Appeals ruled Oct. 28 (United States of America v. Kormahyah Karmue, No. 15-1990, 1st Cir.; 2016 U.S. App. LEXIS 19475).
Social Worker's Testimony On Sexual Abuse Was Admissible, Judge Finds
GRAND RAPIDS, Mich. - In a habeas corpus action, a man convicted of sex crimes failed to show that the admission of a social worker's expert testimony on the dynamics of sexual abuse and common characteristics was contrary to Daubert v. Merrell-Dow Pharmaceuticals (509 U.S. 579 ), a Michigan federal judge ruled Oct. 17 (Duraid Haithem Fathi v. Bonita Hoffner, No. 13-835, W.D. Mich.; 2016 U.S. Dist. LEXIS 143132).
Federal Judge Finds Use Of Police Policies Does Not Make Testimony Irrelevant
ROANOKE, Va. - Expert testimony is relevant under Federal Rules of Evidence 401 and 402 because the expert's use of police policies was one factor in forming his opinion, a Virginia federal judge ruled Oct. 12, also finding that the testimony should not be excluded under Federal Rule of Evidence 403, provided that the testimony does not equate policy violations with constitutional violations (Michael E. Wyatt v. Johnny Owens, et al., No. 14-00492, W.D. Va.; 2016 U.S. Dist. LEXIS 140878).
Judge Excludes Testimony In Excessive Force Lawsuit Against City, Police Officers
HATTIESBURG, Miss. - In an excessive force lawsuit against a city and its police officers, a Mississippi federal judge excluded on Oct. 18 a police expert's testimony because the opinions consist of legal conclusions based on legal analysis (Sandra Willis, et al. v. City of Hattiesburg, Miss., et al., No. 2:14-CV-89-KS-MTP, S.D. Miss.; 2016 U.S. Dist. LEXIS 144060).
Judge Decides Motions To Exclude Expert Testimony In Employer Negligence Suit
MILWAUKEE - In an employer negligence lawsuit, a Wisconsin federal judge decided Nov. 3 several motions filed by the employer to exclude testimony offered by an ergonomist, an employee's former treating physician and a medical expert to support the employee's case that his diagnosis of osteoarthritis was caused by his work (David Rowley v. Union Pacific Railroad Co., No. 11-46, E.D. Wis.; 2016 U.S. Dist. LEXIS 153391).
Judge Declines To Strike Survey In False Ad Suit Between 2 Pharmaceutical Companies
BOSTON - In a false advertisement lawsuit between two pharmaceutical companies over a bowel prep for colonoscopies, a Massachusetts federal judge on Oct. 14 refused to strike a survey examining whether a "superior cleansing efficacy" advertisement conveys a certain message (Ferring Pharmaceuticals Inc. v. Braintree Laboratories Inc., No. 13-12553, D. Mass.; 2016 U.S. Dist. LEXIS 142636).
Judge Bars In Part Testimony In Land Easement Suit Between Owners, Natural Gas Company
SCRANTON, Pa. - In a land easement dispute, a Pennsylvania federal judge on Oct. 26 granted and denied in part motions to exclude testimony, noting the parties "who know the land and the subject natural gas operations best and who occupy a prime position to appropriately value the contested easements, even if such valuation ultimately requires compromise on both sides" should resolve the dispute rather than a jury (Columbia Gas Transmission LLC v. 101 acres and 41,342 sq. ft more or less in Heidelberg Township, York County, Pa., et al., No. 13-00783; Columbia Gas Transmission LLC v. 1,5561 acres more or less in Heidelberg Township, York County, Pa., et al., No. 13-00785, M.D. Pa.; 2016 U.S. Dist. LEXIS 148053).
Expert May Opine Cement Was Defective In Projects, Magistrate Judge Finds
PORTLAND, Ore. - A concrete manufacturer's expert may testify that a supplier's cement mix performed inadequately when applied at construction projects, an Oregon federal magistrate judge ruled Oct. 27, declining to exclude the testimony (Ross Island Sand & Gravel Co. v. Lehigh Southwest Cement Co., No. 15-01369, D. Ore.; 2016 U.S. Dist. LEXIS 148766).
Judge Bars Expert Opinion On Responsible Care Initiative In Tainted Water Supply Suit
CHARLESTON, W.Va. - Having found that American Chemistry Council's Responsible Care initiative is not an industry standard and does not impose an independent duty of care on a chemical distributor, a West Virginia federal judge on Oct. 13 excluded expert testimony on the initiative from both the distributor and plaintiffs accusing it of contaminating their water supply (Crystal Good, et al. v. American Water Works Company Inc., et al., No. 14-01374, S.D. W.Va.; 2016 U.S. Dist. LEXIS 141865).
Supreme Court Won't Revisit Daubert, Rule 702 Interaction In Denture Cream Case
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 17 denied a petition by 36 denture cream plaintiffs asking the high court to settle what they say is a conflict between the high court's expert testimony ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 ) and Federal Rule of Evidence 702 (Ellenie Steele, et al. v. Proctor & Gamble Distributing LLC, et al., No. 16-338, U.S. Sup.).
9th Circuit Affirms Exclusion Of Nexium Bone Loss General Causation Expert
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Oct. 27 affirmed summary judgment in the Nexium bone injury multidistrict litigation, agreeing with the MDL court that the plaintiff's sole general causation expert was unreliable (In Re: Nexium Esomeprazole, Susan Orrell, et al. v. AstraZeneca Pharmaceuticals LP, et al., No. 14-56845, In Re: Nexium Esomeprazole, Janice Allen, et al. v. AstraZeneca Pharmaceuticals LP, et al., No. 15-56848, 9th Cir.; 2016 U.S. App. LEXIS 19508).
Expert Out, Judgment Granted In 2nd NexGen Knee MDL Bellwether Case
CHICAGO - The Illinois federal judge overseeing the Zimmer NexGen knee multidistrict litigation on Oct. 21 excluded a plaintiff's sole specific causation expert in the second bellwether trial and granted summary judgment as a result (In Re: Zimmer NexGen Knee Implant Products Liability Litigation, MDL Docket No. 2272, No. 11-5468, Theodore Joas, et al. v. Zimmer, Inc., No. 13-9216, N.D. Ill., Eastern Div.; 2016 U.S. Dist. LEXIS 146008).
West Virginia Mass Tort Panel Excludes Zoloft Expert, Grants Summary Judgment
CHARLESTON, W.Va. - A West Virginia state court mass tort panel on Oct. 5 excluded the specific causation opinion of a plaintiff expert in a Zoloft birth defect case and granted summary judgment for defendant Pfizer Inc. (In Re: Zoloft Litigation, No. 14-C-7000, D.B., et al. v. Pfizer, Inc., No. 12-C-164, W.Va. Cir., Kanawha Co.).
Judge Allows Asbestos Expert's Testimony; Evidence Need Not Be Perfect Fit
NEW ORLEANS - Studies conducted in a more confined environment than the workplace in question are admissible because such evidence need not fit the facts of the case precisely under Daubert, a federal judge in Louisiana held Oct. 11 in largely declining to reject an asbestos expert's testimony (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La.).
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.).