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Preview: LexisNexis® Mealey's™ Daubert Legal News

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9th Circuit Rebukes Judge For Dismissal Of Man's Claims Against Police
SEATTLE - The Ninth Circuit U.S. Court of Appeals on July 24 removed a Montana federal judge from a case involving an environmentalist who was cited by local police during a buffalo herding operation at Yellowstone National Park, after finding that the judge committed several errors and may have excluded expert testimony just because he disagreed with it (Anthony Patrick Reed v. Doug Lieurance, et al., Nos. 15-35018, 15-35179, 9th Cir., 2017 U.S. App. LEXIS 13272).



6th Circuit Reverses Exclusion Of Heat Stroke Diagnosis In Man's Death
CINCINNATI - Relatives of a man who died in his 93-degree apartment who sued a utility company for wrongful death for denying the man utility services due to lack of a photo ID can present testimony from a medical expert that the man died from "probable heat stroke," a divided Sixth Circuit U.S. Court of Appeals ruled July 27 (Dorothy Mae Johnson, et al. v. Memphis Light Gas & Water Division, No. 16-6143, 6th Cir., 2017 U.S. App. LEXIS 13765).



Judge Axes Expert's Late Report, Dismisses Negligence Claims Against Doctor
ALBUQUERQUE, N.M. - A New Mexico federal judge on Aug. 8 awarded summary judgment to a doctor and his employer on an estate's wrongful death claims after excluding a late-filed expert report as untimely and, therefore, prejudicial (John Faure v. Community Health Systems Professional Services Corporation, et al., No. 1:14-cv-559, D. N.M., 2017 U.S. Dist. LEXIS 125558).



Standard-Of-Care Opinions Allowed In Suit Over Veteran's Suicide
KANSAS CITY, Kan. - Three expert witnesses for the father of a veteran who killed himself after being discharged from a government hospital can testify that the suicide was caused by the U.S. Department of Veterans Affairs' failure to follow its guidelines and standard of care, a Kansas federal judge ruled Aug. 15 in deeming the experts' opinions reliable (Donald Draughon v. United States of America, No. 14-2264, D. Kan., 2017 U.S. Dist. LEXIS 129259).



Court Delineates Rules For Vetting 1 Expert Substituting For Another
ST. THOMAS, Virgin Islands - A Virgin Islands trial court erred in deciding a motion to substitute one expert for another by sua sponte looking at the qualifications of the first expert and not examining the qualifications and methodology of the substitute expert, the Virgin Islands Supreme Court held Aug. 1 in deciding issues on interlocutory appeal in a worker's suit to recover for job-related injuries (Francis Edward v. GEC, LLC, No. 2017-0025, Virgin Islands Sup., 2017 V.I. Supreme LEXIS 46).



Federal Magistrate Judge: Expert's Opinion On Bath Mat's Suitability Is Reliable
KNOXVILLE, Tenn. - A mathematician can provide expert testimony regarding the suitability of a bath mat that allegedly caused a woman to slip and fall after coming out of a shower stall in a condominium, a federal magistrate judge in Tennessee ruled Aug. 11, holding that the expert was qualified and that the methodology underlying his opinion is reliable (Phyllis G. Barnes, et al. v. Greg Malinak, et al., No. 15-cv-556-PLR-HBG, E.D. Tenn., 2017 U.S. Dist. LEXIS 127600).



9th Circuit Again Finds Fault In Expert Witness Rulings In Water Contamination Row
PASADENA, Calif. - A federal trial court abused its discretion twice when making two expert witness decisions against a California city, and the errors were prejudicial to the city in its claims that its groundwater was polluted by a chemical in a company's fertilizer products, the Ninth Circuit U.S. Court of Appeals held Aug. 7 in vacating the trial court's judgment and remanding for a new trial (City of Pomona v. SQM North America Corporation, No. 15-56062, 9th Cir., 2017 U.S. App. LEXIS 14491).



Split Maryland High Court: Plaintiff's Medical Expert May Testify In Lead Case
ANNAPOLIS, Md. - A divided Maryland Court of Appeals on July 11 ruled that a plaintiff's medical expert could testify in a lead-paint poisoning lawsuit despite the landlord's argument that the expert lacked the necessary qualifications and a sufficient factual basis for his opinion (Stewart Levitas v. Michael Davon Christian, No. 58, Sept. Term 2016, Md. App.; 2017 Md. LEXIS 464).



Drug Detection Testimony Properly Allowed, 11th Circuit Panel Says
ATLANTA - The 11th Circuit U.S. Court of Appeals on Aug. 1 upheld the convictions of five men on cocaine trafficking charges after affirming the trial court's allowance of expert testimony by a U.S. Coast Guard officer on technology used by law enforcement to detect trace amounts of drugs (United States of America v. Vanston Venner Williams, et al., No. 15-15360, 11th Cir., 2017 U.S. App. LEXIS 13906).



Credit Reporting Expert Excluded For Lack Of Proper Opinions
DETROIT - A Michigan federal magistrate judge on Aug. 2 excluded the opinions and testimony of an expert witness for a man alleging unfair credit reporting after finding that the expert's opinions are improper legal conclusions and his methods are unreliable (Ibrahim Barakat v. Equifax Information Services, LLC, et al., No. 16-10718, E.D. Mich., 2017 U.S. Dist. LEXIS 121377).



Police Expert's False Confession Opinions Barred In Wrongful Conviction Case
CHICAGO - An expert in police practices for a woman suing Chicago police after being wrongly convicted of murdering her young son cannot testify at trial about coercive interrogations and false confessions because he is not qualified to offer such testimony, an Illinois federal judge ruled July 27 (Nicole Harris v. City of Chicago, et al., No. 14-4391, N.D. Ill., 2017 U.S. Dist. LEXIS 117613).



Expert's Alternative Design Opinion Rejected; Ford Wins Summary Judgment
NEW ORLEANS - A federal judge in Louisiana on Aug. 7 found that the plaintiffs' expert's opinion that a modified vehicle would not have rolled over in an accident is unreliable, granting judgment to Ford Motor Co. in a design defect case (Kaylee Eveler, et al. v. Ford Motor Co., No. 16-14776, E.D. La., 2017 U.S. Dist. LEXIS 124084).



Deficient Expert Witnesses Doom Storm Damage Claims, Judge Rules
LOUISVILLE, Ky. - A Kentucky federal judge on Aug. 4 awarded an insurance company summary judgment on claims for additional coverage for storm damage after finding that the business owners' expert witness disclosures "were clearly deficient" and that even if they weren't, the experts' opinion are unreliable (Advanced Mechanical Services, Inc., et al. v. Auto-Owners Insurance Company, No. 3:14-cv-388, W.D. Ky., 2017 U.S. Dist. LEXIS 123277).



Expert Testimony In Patent, Trade Secrets Action Allowed By Federal Judge
SHERMAN, Texas - A Texas federal judge on Aug. 7 declined to exclude testimony from two experts for a pharmaceutical company asserting patent infringement and trade secret misappropriation claims against rival companies, ruling that the experts' opinions meet all standards for expert testimony (Tech Pharmacy Services, LLC v. Alixa Rx LLC, et al., No. 4:15-cv-766, E.D. Texas, 2017 U.S. Dist. LEXIS 124423, 2017 U.S. Dist. LEXIS 123990).



Accounting Expert Allowed In Action Over Failed Car Dealerships
OKLAHOMA CITY - A financial expert can testify for three former shareholders of failed car dealerships in their defense of a company's claims against them for repayment of a business loan, an Oklahoma federal judge said July 31after finding that the expert's opinions are reliable and based on sound methods (Southampton, Ltd., et al. v. Vahid Salalati, et al., No. 14-852, W.D. Okla., 2017 U.S. Dist. LEXIS 119598).



Plaintiff Urges Florida Court To Allow Asbestos Experts, Award, Reject Daubert
TALLAHASSEE, Fla. - Two amicus curiae parties on Aug. 15 joined a plaintiff in urging the Florida Supreme Court to reject the Daubert standard and reverse an appellate court's ruling excluding experts and negating an $8 million asbestos award (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Federal Judge Denies Defendants' Motion To Bar Expert In Asbestos Case
NEWARK, N.J. - A federal judge in New Jersey on Aug. 4 said a doctor called upon to be a plaintiff's expert witness in an asbestos exposure suit was qualified and used approved methodology, denying the defendants' joint motion to bar the expert's testimony (Judith L. Hoffeditz v. AM General LLC, et al., No. 09-0257, D. N.J., 2017 U.S. Dist. LEXIS 123493).



Reconsideration Of Exclusion Of Cumulative Exposure Asbestos Testimony Sought
CHARLESTON, S.C. - A medical expert's opinion that exposure to asbestos in gaskets substantially contributed to the entire dose that caused a man's mesothelioma simply reiterates scientific fact and is sufficiently case-specific to avoid being the "every exposure" theory, a man told a federal judge on July 24 in asking that he reconsider his ruling excluding the testimony (John E. Haskins and Mary L. Haskins v. 3M Co., et al., No. 15-2086, James Willson Chesher, et al. v. 3M., No. 15-2123, D. S.C., 2017 U.S. Dist. LEXIS 113657).



Judge: Cumulative Exposure, 'Every Exposure' Theories Are Equally Inadmissible
BALTIMORE - Expert testimony that asbestos "cumulates" in the body and leads to disease is indistinguishable from the theory that every exposure to asbestos leads to disease and is inadmissible under federal rules and Daubert v. Merrell Dow Pharm., Inc., a federal judge in Maryland held July 17 in granting summary judgment in a prominent attorney's case alleging bystander exposure (Jeffrey Rockman, et al. v. Union Carbide Corp., et al., No. 16-1169, D. Md., 2017 U.S. Dist. LEXIS 110181).



Ohio Court: Unsworn Asbestos Causation Testimony Meets Prima Facie Requirements
CLEVELAND - Expert asbestos medical testimony that echoes the requirements in Ohio law is sufficient to make a prima facie case and need not be a signed document, an Ohio appeals court held July 20 (Kevin E. Howell v. Consolidated Rail Corp., et al., No. 104554, Ohio App., 8th Dist., 2017 Ohio App. LEXIS 2984).



Preemption Summary Judgment Denied In Xarelto Bellwether Trial; All Experts Stay In
NEW ORLEANS - The Louisiana federal judge overseeing the Xarelto multidistrict litigation on July 21 denied the defendant partial summary judgment in the third bellwether case on the basis of federal preemption and on the basis of design defect (In Re: Xarelto Products Liability Litigation, No. 14-md-02592 [Dora Mingo v. Janssen Pharmaceuticals, Inc., et al., No. 15-3469], E.D. La., 2017 U.S. Dist. LEXIS 114338, 2017 U.S. Dist. LEXIS 113872).



Plaintiff Seeks Interlocutory Appeal On Expert Exclusion In Bypass Machine Case
SALT LAKE CITY - A Utah federal judge on July 18 vacated a trial date in a heart/lung bypass machine wrongful death case after the plaintiff indicated her desire to get an interlocutory appeal of the judge's order severely limiting the testimony of her causation expert at an upcoming trial (Buzzie Smith, et al. v. Terumo Cardiovascular Systems Corporation, Inc., et al., No. 12-998, D. Utah, Central Div., 2017 U.S. Dist. LEXIS 108205).



Lipitor MDL Plaintiffs Tell 4th Circuit Judge Erred In Expert Testimony Rulings
RICHMOND, Va. - Plaintiffs alleging that the statin drug Lipitor caused diabetes on July 28 told the Fourth Circuit U.S. Court of Appeals that a multidistrict litigation judge erred when he excluded causation opinions of two experts and granted summary judgment against more than 3,000 plaintiffs (In Re: Lipitor [Atorvastatin] Products Liability Litigation, Nos. 17-1140[L], 17-1136, 17-1137, 17-1189, 4th Cir.).



New Jersey Appeals Panel Reinstates 2 Accutane Experts, 2,076 Dismissed Cases
TRENTON, N.J. - A New Jersey appeals court panel on July 28 reversed the exclusion of two plaintiff experts from the state's Accutane multicounty litigation, reinstating 2,076 cases that had been dismissed (In Re: Accutane Litigation, Nos. A-4698-14T1 and A-0910-16T1, N.J. Super., App. Div., 2017 N.J. Super. LEXIS 116).



Bayer, Plaintiffs Say They've Agreed To Settle Mirena IUD Perforation Claims
NEW YORK - Despite the parties' Aug. 11 disclosure that they have agreed to resolve Mirena intrauterine device (IUD) secondary perforation claims, the Second Circuit U.S. Court of Appeals that day denied a motion to adjourn Aug. 14 oral arguments about the exclusion of all plaintiffs' causation experts and evidence by a New York federal multidistrict litigation judge (In Re: Mirena IUD Products Litigation, Mirena MDL Plaintiffs v. Bayer HealthCare Pharmaceuticals Incorporated, No. 16-2890 and 16-2012, 2nd Cir.).



Testosterone MDL Judge Won't Reconsider Allowing Adverse Event Testimony By Plaintiffs
CHICAGO - The Illinois judge overseeing the testosterone multidistrict litigation on July 11 refused to reconsider his ruling allowing plaintiff expert Dr. Hossein Ardehali to rely on adverse event reports (In Re: Testosterone Replacement Therapy Products Liability Litigation, No. 14-1748, N.D. Ill., 2017 U.S. Dist. LEXIS 106446).



Split 5th Circuit Affirms Exclusion Of False Confession Testimony In Murder Case
NEW ORLEANS - A divided Fifth Circuit U.S. Court of Appeals panel on July 17 upheld the denial of federal habeas relief for a man convicted of killing a motorist who stopped to give him a ride, with the majority affirming several trial court rulings, including the exclusion of the defendant's expert on confessions and interrogations (Jonathan Boyer v. Darrel Vannoy, No. 16-30487, 5th Cir., 2017 U.S. App. LEXIS 12764).



Domestic Violence Expert Properly Allowed In Wife Battering Case, 8th Circuit Says
ST. PAUL, Minn. - A man's 30-year prison sentence for beating and raping his wife on an Indian reservation was affirmed June 29 by the Eighth Circuit U.S. Court of Appeals, which found no error in the trial court's allowance of expert testimony about domestic violence victims (United States of America v. Denny Johnson, Sr., No. 16-3483, 8th Cir., 2017 U.S. App. LEXIS 11585).



Cellphone Tower Data Expert Allowed For 2 Defendants' Robbery Trial
NEW ALBANY, Ind. - A police expert can testify about cellphone towers, data dumping, pinging and triangulation during a trial for two men accused of committing a series of retail store robberies, an Indiana federal judge ruled June 23 after finding that the expert is qualified and his methods are sound (United States of America v. Jeffrey Antione Kemp, et al., No. 4:15-cr-00025, S.D. Ind., 2017 U.S. Dist. LEXIS 97230).



Expert's Opinions Blaming Cruise Line For Man's Death Stricken
MIAMI - A maritime law enforcement expert cannot opine that a cruise line is to blame for the 2015 death of a passenger who got drunk and fell from the balcony in his room to the deck below, a Florida federal magistrate judge ruled July 6 in mostly granting the cruise line's request to strike the expert's testimony (Nicole Webb v. Carnival Corporation, No. 15-24230, S.D. Fla., 2017 U.S. Dist. LEXIS 103856).



Opinions Of Experts For Parents Of Student Who Died After Fight Are Allowed
WHEELING, W. Va. - A West Virginia federal judge on July 14 denied requests by the friend of a college student who was killed during a fight with two other men to exclude testimony by medical and economic experts in a wrongful death action filed by the student's parents (Thomas G. Figaniak and Valerie A. Figaniak v. Fraternal Order Of Owl's Home Nest, Loyal Order Of Owls Nest Lodge 2558, d/b/a The Owl's Nest, et al., No. 5:15-cv-111, N.D. W. Va., 2017 U.S. Dist. LEXIS 109477).



Government Seeks To Have 6th Circuit Ruling On Doctor's Conviction Published
CINCINNATI - The U.S. government on June 16 asked the Sixth Circuit U.S. Court of Appeals to publish an opinion issued three days earlier in which a three-judge panel affirmed the conviction of an Ohio cardiologist on health care fraud charges, saying the decision, in which the panel upheld the allowance of testimony from several government experts, will assist trial courts in upcoming similar cases (United States of America v. Harold Persaud, Nos. 16-3105, 16-3427, 16-3578, 6th Cir.).



Defense Expert Excluded In Case Alleging Illegal Kickbacks For Lab Work
CHARLESTON, S.C. - An expert for health care defendants accused of running kickback schemes cannot testify because his opinion draws on legal conclusions that should be left to the court to decide, is based on unsound methodology and would mislead a jury, a South Carolina federal judge held June 26 in excluding the expert from the case (United States of America, et al. v. Berkeley Heartlab, Inc., et al., Nos. 9:14-cv-00230, 9:11-cv-1593 and 9:15-cv-2485, D. S.C., 2017 U.S. Dist. LEXIS 98147).



With Doctor's Opinion Barred, Judge Grants Judgment To Hernia Mesh Maker
DETROIT - The maker of a hernia mesh product was awarded summary judgment on July 5 by a Michigan federal judge on a couple's product liability claims after the judge found the opinions of the couple's medical expert inadmissible (Robert and Karol Avendt v. Covidien, Inc., No. 11-15538, E.D. Mich., 2017 U.S. Dist. LEXIS 103287).



Trial Court Did Not Err In Finding Expert's Testimony Was Not Scientific
MONTGOMERY, Ala. - The majority of the Alabama Supreme Court on July 7 determined that a trial court did not err in failing to apply the requirements of Rule 702(b) of the Alabama Rules of Evidence to an expert's testimony because the testimony was not subject to Rule 702(b) as it was not scientific testimony (Mazda Motor Corporation v. Jon Hurst and Barbara Hurst, as parents of Natalie J. Hurst, deceased, and Sydney McLemore, No. 1140545, Ala. Sup., 2017 Ala. LEXIS 66).



8th Circuit Upholds Exclusion Of Expert's Opinion On Defective Hip Implant Stem
ST. LOUIS - An Eighth Circuit U.S. Court of Appeals panel on July 5 affirmed a federal judge in Missouri's ruling excluding the testimony of a metallurgist who opined that a manufacturing defect in the stem of a hip implant caused it to fracture, holding that the expert did not consider other factors before reaching his conclusion (Judith A. Redd v. DuPuy Orthopedics Inc., No. 16-3428, 8th Cir., 2017 U.S. App. LEXIS 11930).



Judge Allows Most Of Plaintiff's Expert Testimony In Transvaginal Mesh MDL
CHARLESTON, W. Va. - A woman's medical expert in a transvaginal surgical mesh multidistrict litigation can offer testimony for the plaintiff because his opinions are "sufficiently relevant" and he conducted a proper differential diagnosis, a federal judge in West Virginia held July 14 in mostly denying the device maker's bid to exclude the expert's opinions (In re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327 [Rhonda Cooper v. Ethicon, Inc., et al., No. 2:12-cv-02532], S.D. W. Va., 2017 U.S. Dist. LEXIS 109546).



Ruling On Expert Upheld In Shooting Victim's Claims Against Police Officer
PHILADELPHIA - A man who was shot in his home by an off-duty police officer is not entitled to a new trial on his excessive force claims against the officer because the victim's attempt to discredit an expert based on alleged mismanagement of a prior job was properly denied, a Pennsylvania federal magistrate judge ruled June 19 (Joshua Taylor v. Police Officer Larry Shields, No. 13-2241, E.D. Pa., 2017 U.S. Dist. LEXIS 93669).



Architectural Expert's Testimony Mostly Allowed In Home Design Copyright Case
CLEVELAND - Most of an architectural expert's testimony in a home design copyright infringement case is reliable and will be helpful in deciding the key issues in dispute; however, he is not allowed to give legal opinions or "dictate the conclusion" of the case, an Ohio federal magistrate judge held July 3 (Design Basics LLC v. Petros Homes Inc., et al., No. 14-1966, N.D. Ohio, 2017 U.S. Dist. LEXIS 102931).



Judge: Plaintiffs' Proffered Expert Should Not Be Permitted To Testify At Trial
JACKSON, Miss. - A Mississippi federal judge on July 7 granted defendants' joint motion to exclude the testimony of the plaintiffs' proffered expert in a lawsuit alleging that the plaintiffs suffered damages to their houses and quality of life due to the construction and operation of a "frac sand plant" and an associated multitrack railroad spur (Jeffrey Cad Palmer, et al. v. Sun Coast Contracting Services Inc., et al., No. 15-34, S.D. Miss., 2017 U.S. Dist. LEXIS 105560).



Poor Methods Doom Opinions On Storm Wind Speed, Magistrate Judge Rules
WACO, Texas - A Texas federal judge on June 28 excluded testimony from two experts based on opinions of a third, undisclosed expert in a property damage insurance coverage dispute after finding that the opinions of the third expert regarding wind speed during a storm are unreliable due to flawed methodology (Spring Street Apts. Waco, LLC v. Philadelphia Indemnity Insurance Company, No. 6:16-cv-00315, W.D. Texas, 2017 U.S. Dist. LEXIS 99890).



Biomechanical Testimony In Crash Suit Sound, Helpful, Judge Rules
TAMPA, Fla. - A Florida federal judge on July 17 declined to strike testimony from an insurer's biomechanical expert on the forces required to cause a woman's alleged injuries in a rear-end car accident, finding that the expert meets the admissibility standards established by 11th Circuit U.S. Court of Appeals precedent (Lisa N. Bostick v. State Farm Mutual Automobile Insurance Company, No. 8:16-cv-1400, M.D. Fla., 2017 U.S. Dist. LEXIS 110370).



Texas Appeals Court Affirms Verdict Against Maker Of Defective Concrete
FORT WORTH, Texas - A Texas appellate court panel on June 15 affirmed a jury's verdict finding that a concrete manufacturer should indemnify a contractor that installed concrete that was defectively made, holding that the trial court judge did not err when striking the manufacturer's expert testimony and that the company did not clearly argue in its post-trial motions that the contractor that finished the concrete was a seller under the Texas Products Liability Act (TPLA) (RDJRLW, Inc. v. Bobby Elbert Miller, Jr., d/b/a Miller Construction, et al., No. 02-16-00132-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5494).



7th Circuit: Plaintiffs Forfeited Challenges To Ruling Barring Expert Testimony
CHICAGO - A proposed class of consumers who claimed that windows made by Kolbe & Kolbe Millwork Co. were defective because they allowed for water intrusion that caused property damage forfeited their ability to challenge a ruling by a federal judge barring the testimony of two experts, a Seventh Circuit U.S. Court of Appeals panel ruled July 11, explaining that the plaintiffs should have raised their arguments in response to the manufacturer's motion under Daubert v. Merrell Dow Pharmaceuticals, Inc. (Mary Haley, et al. v. Kolbe & Kolbe Millwork Co., No. 16-3192, 7th Cir., 2017 U.S. App. LEXIS 12381).



Couple Tells Court Community Exposure Opinions Were Improperly Rejected
SAN JOSE, Calif. - Having no way to avoid the conclusion that they caused a man's environmental asbestos exposures, a manufacturer and its supplier ask a court to arbitrarily impose a distance requirement for causation and to require experts to have personal knowledge prior to offering opinions, a couple told a California appeals court May 30 (Beverly Trapp, et al. v. Asbestos Corp. Limited, et al., No. H043867, Calif. App., 6th Dist.).



Florida High Court Will Review Asbestos Causation Experts, Resulting $8M Award
TALLAHASSEE, Fla. - The Florida Supreme Court agreed to decide the proper standard for admitting expert causation testimony in the state when on July 11 it accepted a case that originally resulted in an $8 million asbestos award against tobacco and gaskets companies (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Lipitor Defendants Tell 4th Circuit Plaintiff Experts Properly Excluded In MDL
RICHMOND, Va. - Defendants on July 13 told the Fourth Circuit U.S. Court of Appeals that a multidistrict litigation judge did not err when he excluded three plaintiff causation experts and granted summary judgment on claims that the cholesterol drug Lipitor causes type 2 diabetes (In Re: Lipitor [Atorvastatin Calcium] Marketing, Sales Practices and Products Liability Litigation, Nos. 17-1140, 17-1136, 17-1137, 17-1189, 4th Cir.).



Expert 'Unreliable,' Should Be Excluded From Groundwater Case, NL Industries Says
TRENTON, N.J. - NL Industries Inc. on June 20 filed a brief in New Jersey federal court seeking to exclude an expert for the plaintiffs who sued the company for allegedly contaminating the local groundwater, contending that the expert's opinion is "unreliable" (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).



With Experts Allowed, Suit Over Zoo's Care Of Old Elephant Proceeds
SAN ANTONIO - A Texas federal judge on June 8 mostly allowed expert testimony for three citizens who allege that the San Antonio Zoological Gardens and Aquarium is violating the Endangered Species Act (ESA) by harming and harassing a 57-year-old Asian elephant named Lucky (James Graham, et al. v. San Antonio Zoological Society, No. 5:15-cv-1054, W.D. Texas, 2017 U.S. Dist. LEXIS 88776).



Polygraph Expert Allowed In Civil Rights Case Alleging Wrongful Murder Conviction
CHICAGO - A woman suing Chicago police after being wrongly convicted of murdering her young son can present expert testimony that police erred in giving her a lie detector test during a lengthy interrogation and that her responses to the test were truthful, despite the police labeling the test results as "inconclusive," an Illinois federal judge ruled May 31 (Nicole Harris v. City of Chicago, et al., No. 14-4391, N.D. Ill., 2017 U.S. Dist. LEXIS 82698).



8th Circuit Reverses, Says Report On Spread Of Fracking Waste Is Reliable
ST. LOUIS - A federal court wrongly excluded an expert witness for an Arkansas couple accusing a hydraulic fracturing company of trespass and improperly awarded summary judgment to the company based on the couple's lack of sufficient evidence, the Eighth Circuit U.S. Court of Appeals held May 22 in reversing and remanding (Robbie Hill, et al. v. Southwestern Energy Company, et al., No. 15-3458, 8th Cir., 2017 U.S. App. LEXIS 8862).



Federal Judge Allows Medical Expert's Opinions In Deliberate Indifference Case
MACON, Ga. - A medical expert's simple opinions based on the simple facts of a malpractice case against two prison doctors are the product of a reliable analysis and will assist the jury, a Georgia federal judge held June 5 in denying a motion to exclude the expert (William Stoner v. Chiquita A. Fye, M.D., et al., No. 5:15-cv-102, M.D. Ga., 2017 U.S. Dist. LEXIS 85292).



Minnesota Appeals Panel Upholds Defense Verdict In Medical Malpractice Suit
ST. PAUL, Minn. - A Minnesota appellate panel on June 12 affirmed a defense verdict in a medical malpractice suit after finding that the trial court did not err in allowing the defendants' experts to testify (Anita J. Howard v. Shelly R. Svoboda, M.D., et al., No. A16-1232, Minn. App., 2017 Minn. App. Unpub. LEXIS 508).



6th Circuit: Toxicology Expert Properly Excluded For Lack Of Reliability
CINCINNATI - An Ohio federal court properly excluded expert testimony that people living near a steel mill "will suffer harm to their health" due to elevated levels of manganese on their properties because the expert failed to provide "any actual proof" to support his opinion, the Sixth Circuit U.S. Court of Appeals held May 25 (Michael Abrams, et al. v. Nucor Steel Marion, Inc., No. 15-4422, 6th Cir., 2017 U.S. App. LEXIS 9323).



Defendants Tell Court No Reason Exists To Review Asbestos Expert Ruling
FORT LAUDERDALE, Fla. - Two defendants freed from an $8 million verdict after a court found expert asbestos causation testimony improperly admitted at trial have told the Florida Supreme Court that there are no grounds for reviewing the decision (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Justice Receives Briefing On Import Of New York Asbestos Causation Ruling
NEW YORK - Parties filing post-trial motions after a $7 million asbestos-tainted talc verdict in New York briefed a justice on May 15 over whether a February ruling involving the state's causation standard eliminates the ability to prove asbestos cases using cumulative exposure and visible dust evidence or whether it simply reiterates the existing framework (Claudine Discala, as administrator of the estate of Joan Robusto v. Charles B. Chrystal Company Inc., et al., No. 190413/2013, N.Y. Sup., New York Co.).



Parties Debate Expert Witness Exclusion Before 9th Circuit In Groundwater Lawsuit
PASADENA, Calif. - Attorneys for the City of Pomona, Calif., and a chemical company debated before the Ninth Circuit U.S. Court of Appeals on May 10 whether the city's groundwater contamination lawsuit should be reopened due to the city's allegation that a district court improperly excluded some of the testimony of its expert witness while the court improperly permitted the defendant's expert to "confuse the jury" (City of Pomona, Calif. v. SQM North America Corp., No. 15-56062, 9th Cir.).



Exclusion Of Expert In Whirlpool Oven Action Sinks Class Certification
CHICAGO - An Illinois federal judge on May 9 denied class certification in a product liability case involving overheating Whirlpool Corp. kitchen ovens after finding that the plaintiffs' engineering expert failed to offer an opinion on whether there was a common defect in the ovens (Beth Kljajic, et al. v. Whirlpool Corp., No. 15-5980, N.D. Ill., 2017 U.S. Dist. LEXIS 70784).



Expert Needed In Design Defect Suit Over Oil Worker's Fatal Fall, 5th Circuit Says
NEW ORLEANS - A federal court did not err in holding that, lacking expert testimony that was excluded, the parents of a man who died in an oil rig fall failed to raise a genuine dispute of material fact as to whether a design defect in his safety harness was the proximate cause of his death, the Fifth Circuit U.S. Court of Appeals ruled May 30 in affirming the grant of summary judgment to the harness maker (Billy Stewart, et al. v. Capital Safety USA, No. 16-30993, 5th Cir., 2017 U.S. App. LEXIS 9474).



Expert Testimony On Doctor Teaching Contracts Suitable, 7th Circuit Says
CHICAGO - A federal court did not abuse its discretion in determining that a medical expert was qualified to provide testimony on the nature of physician teaching contracts in a podiatric residency program, the Seventh Circuit U.S. Court of Appeals held June 5 in affirming the conviction of a doctor for taking kickbacks to refer patients to a Chicago hospital (United States of America v. Shanin Moshiri, No. 16-1126, 7th Cir., 2017 U.S. App. LEXIS 9959).



Birth Defects Claims Against Drugmaker Doomed By Insufficient Expert Opinions
BROOKLYN, N.Y. - Two medical experts lack the qualifications and reliable methodology to opine that a mother's use of an anti-epileptic drug linked to birth defects caused her son's severe birth defects, so summary judgment for the drugmaker is warranted on the mother's failure-to-warn claims, a New York federal magistrate judge held May 22 (N.K., an infant, by his mother and natural guardian, Tanja Bruestle-Kumra v. Abbott Laboratories, No. 14-cv-4875, E.D. N.Y., 2017 U.S. Dist. LEXIS 77461).



3rd Circuit Affirms Expert Exclusion, Summary Judgment In Most Zoloft MDL Cases
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on June 2 affirmed the exclusion of plaintiffs' only general causation expert witness in the Zoloft birth defect multidistrict litigation and also affirmed summary judgment that, at the time, ended 93 percent of the cases (In Re: Zoloft [Sertraline Hydrochloride] Products Liability Litigation, No. 16-2247, 3rd Cir., 2017 U.S. App. LEXIS 9832).



9th Reverses Expert Exclusion, Judgment In Immunosuppressant Cancer Death Case
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on June 2 reversed summary judgment for Teva Pharmaceuticals USA Inc. in drug-caused cancer case, ruling that the plaintiffs expert was erroneously excluded by a district court (Stephen Wendell, et al. v. GlaxoSmithKline LLC, et al., No. 14-16321, 9th Cir., 2017 U.S. App. LEXIS 9787).



Testosterone Claims, Experts Largely Survive In MDL Bellwether Cases
CHICAGO - The Illinois federal judge overseeing the testosterone replacement therapy multidistrict litigation on May 8 issued four opinions largely denying summary judgment on the issues of failure to warn and off-label marketing and largely allowing expert testimony on causation in seven upcoming bellwether trials (In Re: Testosterone Replacement Therapy Products Liability Litigation, MDL Docket No. 2545, No. 14-1748, N.D. Ill., Eastern Div., 2017 U.S. Dist. LEXIS 69400, 2017 U.S. Dist. LEXIS 69399, 2017 U.S. Dist. LEXIS 69402).



Judgment Awarded To Winnebago In Defects Case After Failure Of Expert
TAMPA, Fla. - An expert's failure to offer a causation opinion and a plaintiff's dearth of damages evidence dooms breach of warranty claims over an allegedly defective Winnebago Industries Inc. recreational vehicle, a Florida federal judge reasoned May 30 (Steven Thomas v. Winnebago Industries, Inc., et al., No. 8:16-cv-177, M.D. Fla., 2017 U.S. Dist. LEXIS 81946).



Woman Loses Bid For Habeas Relief Based On Fire Expert's Arson Finding
DETROIT - A Michigan federal judge on May 25 upheld the conviction of a woman for setting fire to her house to collect insurance money after rejecting her challenge to an expert's opinion that the fire was caused by arson (Audrey Pruitt v. Anthony Stewart, No. 2:15-cv-10812, E.D. Mich., 2017 U.S. Dist. LEXIS 80162).



DEA Agent Allowed To Testify As Cocaine- Smuggling Expert
MIAMI - A federal narcotics officer can testify about cocaine trafficking and the drug trade in South America and Central America at trial for a man accused of running a cocaine-smuggling operation from Honduras to the United States, a Florida federal judge ruled June 12 (United States of America v. Juan Carlos Arvizu Hernandez, No. 17-cr-20130, S.D. Fla., 2017 U.S. Dist. LEXIS 90548).



Ruling On Gun Expert Sound, As Is Firearms Conviction, 4th Circuit Says
RICHMOND, Va. - A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agent's experience alone is sufficient to qualify him as an expert, and his use of a gun-tracing report prepared by other ATF employees does not violate a criminal defendant's confrontation rights, the Fourth Circuit U.S. Court of Appeals found June 12 in affirming the defendant's conviction (United States of America v. Jarelle McLean, No. 16-4673, 4th Cir., 2017 U.S. App. LEXIS 10380).



All Expert Testimony Trimmed In Negligence Suit Over Motorcyclist's Death
HAMMOND, Ind. - An Indiana federal judge on May 11 limited the testimony of all four expert witnesses in a lawsuit filed by the estate of a deceased motorcyclist alleging that the truck driver that hit him and the driver's company are liable for the biker's death (The Estate of John Arama v. Bryant Winfield, et al., No. 2:13-cv-381, N.D. Ind., 2017 U.S. Dist. LEXIS 71712).



Judge Gives Mixed Bag Ruling On Expert Opinions For Bouncer Shot At Bar
KANSAS CITY, Mo. - A medical expert can testify that gunshot wounds a nightclub bouncer received in a scuffle with an off-duty policeman caused the nerve disease and pain he suffers from, opening the door for two other experts to testify as to the man's alleged damages, a Missouri federal judge held June 1, while also severely limiting the testimony of the medical expert (Rodney Babbs, Jr. v. Bryan Block, No. 4:15-cv-0194, W.D. Mo., 2017 U.S. Dist. LEXIS 83587).



Indiana Appeals Panel Reverses Trial Court On Expert Witness In Negligence Suit
INDIANAPOLIS - A panel of the Indiana Court of Appeals on May 30 reversed a trial court's decision to bar a nurse practitioner who treated a man injured in a car crash from acting as an expert witness because there is no "blanket rule" barring a nurse practitioner from acting as an expert witness (Charles Aillones v. Glen D. Minton, No. 82A01-1609-CT-2138, Ind. App., 2017 Ind. App. LEXIS 226).



Expert Testimony Gets In Due To Missed Deadline, Mississippi Federal Judge Rules
HATTIESBURG, Miss. - A Mississippi federal judge on May 15 rejected competing requests to exclude evidence and testimony in an insurance coverage dispute over storm property damage claims, allowing two experts to testify for the property owner and saying laypersons can testify about the period of restoration for the property and the owner's loss of income (Corinthian Court Holdings, LLC v. State Farm Fire and Casualty Co., Nos. 2:15-cv-111, 2:16-cv-18, S.D. Miss., 2017 U.S. Dist. LEXIS 73395).



Judge Green-Lights Expert Opinions In Bad Faith Insurance Action
TAMPA, Fla. - Experts for both a driver injured in a crash and an insurance company accused of acting in bad faith in not settling the driver's claim can offer their opposing opinions based on their qualifications and sound methodology, as long as the opinions are not legal in nature, a Florida federal judge held May 12 (Nicky B. Dudash v. Southern-Owners Insurance Co., No. 8:16-cv-290, M.D. Fla., 2017 U.S. Dist. LEXIS 73002).



Legal Conclusions Out, Rest Of Testimony In, Judge Says In Coverage Row
MOBILE, Ala. - The legal nature of the opinions of one expert witness for an insurer in a coverage dispute over underlying trademark infringement claims precludes the expert from testifying about such opinions, but the expert's other opinions, and those of a second expert for the insurer, are admissible under Daubert, an Alabama federal judge held May 12 (Hibbett Patient Care, LLC, et al. v. Pharmacists Mutual Insurance Co., No. 16-0231, S.D. Ala., 2017 U.S. Dist. LEXIS 72786).



4th Circuit Affirms Man's Sentence, Finds Fraudulent Scheme Resulted In Deaths
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals panel on June 9 affirmed a man's convictions and 10-year sentence for health care fraud resulting in death, holding that a fraudulent health care scheme that involved untrained X-ray technicians reading radiology results caused the death of two patients (United States of America v. Rafael Chikvashvili, No. 16-4393, 4th Cir., 2017 U.S. App. LEXIS 10292).



Judge Declines To Strike Expert's Interest Analysis For Tribe's ERISA Claims
BAY CITY, Mich. - If an Indian tribe prevails on its claim that its health care plan administrator violated the Employee Retirement Income Security Act by charging hidden fees and pursues prejudgment interest, its expert on calculating the interest amount can offer his analysis at trial, a Michigan federal judge ruled May 16, while also blocking the tribe's request for discovery in the interest rate dispute (Saginaw Chippewa Indian Tribe of Michigan, et al. v. Blue Cross Blue Shield of Michigan, No. 1:16-cv-10317, E.D. Mich., 2017 U.S. Dist. LEXIS 56562).



Judge Bars Testimony In Reinsurance Risk Company's Breach Of Contract Case
SAN FRANCISCO - A California federal judge excluded on May 10 lay opinion testimony by a reinsurance risk management company's chief financial officer in a breach of contract lawsuit about funds that were improperly withdrawn from bank accounts (Les Fields/C.C.H.I. Insurance Services v. Stuart M. Hines, et al., No. 15-03728, N.D. Calif., 2017 U.S. Dist. LEXIS 71620).



Magistrate Allows Survey Of Taffy Shop Customers In Trademark Battle
DENVER - A taffy shop may have valid complaints about a survey conducted by an expert for a competing taffy shop in a trademark dispute, but the survey is reliable and relevant enough to not preclude it from trial, a Colorado federal magistrate judge ruled June 8 (Estes Park Taffy Company, LLC, et al. v. The Original Taffy Shop, Inc., No. 15-cv-01697, D. Colo., 2017 U.S. Dist. LEXIS 88113).



Artist's Wife's Testimony Excluded As Unreliable In Copyright Infringement Case
ATLANTA - A restaurant owner was awarded summary judgment in Georgia federal court on May 18 on an artist's copyright infringement claims over a drawing he did of the restaurant, with the artist also losing his bid to have his wife testify as an expert witness (Floyd Anthony Fey v. Panacea Management Group LLC, et al., No. 1:16-cv-2851, N.D. Ga., 2017 U.S. Dist. LEXIS 75637).



Couple Denied Cert For 4th Circuit's De Novo Daubert Review, Findings
WASHINGTON, D.C. - The U.S. Supreme Court on June 12 declined to review a case in which a couple claimed that the Fourth Circuit U.S. Court of Appeals erred when it overturned a $3 million jury award against Ford Motor Co. for design defect based on the appeals court's exclusion of the couple's expert testimony (Howard E. Nease, et ux. v. Ford Motor Company, No. 16-1333, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 1562).



Colorado Appeals Court: Setoff Should Be Applied To Verdict Before Limitation
DENVER - A Colorado appeals panel on May 18 reversed in part a trial court judge's decision to prevent a developer from obtaining a portion of a $9.5 million verdict entered against a grading company accused of breach of contract for providing services that resulted in defectively built homes, finding that the judge should have reduced the amount by first subtracting $592,500 the plaintiff company recovered from other contractors and then subtracting a $550,000 contractual limitation included in an agreement between the developer and the grading subcontractor (Taylor Morrison of Colorado, Inc., f/k/a Morrison Homes of Colorado, Inc. v. Terracon Consultants, Inc., No. 15CA1030, Colo. App., Div. 5., 2017 Colo. App. LEXIS 623).