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Preview: LexisNexis® Mealey's™ Daubert Legal News

LexisNexis® Mealey's™ Daubert Legal News

Headline Daubert Legal News from LexisNexis®


U.S. Supreme Court Denies Review Of Testimony On Wiretapped Conversations
WASHINGTON, D.C. - The U.S. Supreme Court on Feb. 21 denied review of a convicted drug dealer's petition on whether inadmissible layperson testimony was presented from an investigating officer on his own interpretations of language contained in wiretapped telephone conversations (Clarence Williamson Jr. v. United States of America, No. 16-882, U.S. Sup.).

West Virginia High Court: Cell Data Testimony Was Allowed In Error But Not Harmful
CHARLESTON, W.Va. - Although a police officer improperly testified as a lay witness regarding historical cell site data to support a conviction against a woman for felony murder and conspiracy to commit robbery, the West Virginia Supreme Court of Appeals held March 2 that the testimony did not create a prejudicial impact on the jury's finding (State of West Virginia v. Tulsa Johnson, No. 16-0265, W.Va. Sup.; 2017 W. Va. LEXIS 120).

Retrograde Extrapolation Testimony Fails Daubert's 'Fit' Test, Appeals Panel Says
RALEIGH, N.C. - Although a police officer's retrograde extrapolation testimony failed to satisfy the "fit" test under Daubert v. Merrell Dow Pharmaceuticals Inc. by not being properly tied to the facts, a North Carolina appeals panel on March 7 found no prejudicial error because there was sufficient evidence that a woman was "appreciably impaired" (State of North Carolina v. Lori Lee Babich, No. COA16-762, N.C. App.; 2017 N.C. App. LEXIS 133).

Panel Finds No Error In Admission Of Medical Examiner's Testimony
CORPUS CHRISTI, Texas - Finding no error in the admission of a medical examiner's testimony based on reliable evidence, a Texas appeals panel on Feb. 9 affirmed a woman's conviction for injury to a child causing bodily injury (Smita Chakravarthy v. The State of Texas, No. 13-14-00086-CR, Texas App., 13th Dist., 2017 Tex. App. LEXIS 1114).

Court Affirms Injury To Child Conviction, Finds Testimony On Head Trauma Reliable
AUSTIN, Texas - Expert testimony from three medical doctors on the subject of abusive head trauma was reliable, the Texas Court of Criminal Appeals ruled Feb. 15, upholding a woman's conviction in a bench trial for first-degree-felony injury to a child after an infant under her care sustained serious internal head injuries (Jennifer Banner Wolfe v. The States of Texas, No. PD-0292-15, Texas App., Crim., 2017 Tex. Crim. App. LEXIS 215).

8th Circuit Affirms Daubert, Evidence Suppression Rulings In Child Porn Case
OMAHA, Neb. - A trial court properly found that a procedural notice error in the application of a warrant that led to a child pornography conviction did not prejudice the defendant, an Eighth Circuit U.S. Court of Appeals panel ruled Feb. 17, upholding the denial of the defendant's motion to suppress evidence obtained via the warrant (United States of America v. Kirk Cottom, No. 16-1050, 8th Cir., 2017 U.S. App. LEXIS 2789).

Panel Affirms Conviction For Cocaine Possession, Finds Lack Of Objection To Testimony
TOPEKA Kan. - Affirming a man's conviction for possession of cocaine, the Kansas Court of Appeals ruled Feb. 10 that the man failed to timely object at trial to the admission of expert testimony and a lab report that both established that the white powdery substance discovered in his wallet was cocaine (State of Kansas v. Oscar C. Rodriguez-Mendez, No. No. 114,985, Kan. App., 2017 Kan. App. Unpub. LEXIS 82).

Judge Partially Bars Police Captain's Testimony In Constitutional Rights Suit
CHARLESTON, S.C. - In a married couple's lawsuit alleging violation of their constitutional rights by a police officer during a traffic stop, a South Carolina federal judge on March 2 excluded in part testimony from a police captain who is also an attorney that served to bolster the credibility of the police officer (Jerome C. Newkirk Sr. v. James B. Enzor, individually and as an officer of the South Carolina Highway Patrol, and the South Carolina Department of Public Safety, No. 13-1634, Catherine B. Newkirk v. James B. Enzor, individually and as an officer of the South Carolina Highway Patrol, and the South Carolina Department of Public Safety, No. 13-1635, D. S.C., 2017 U.S. Dist. LEXIS 29333).

Judge Restricts Expert From Testifying On Legal Conclusion To Detective's Probable Cause
TAMPA, Fla. - An expert may testify as to his knowledge of police procedures and investigative techniques and whether they were followed by a detective in his mortgage fraud investigation of a married couple, a Florida federal judge ruled Feb. 16; however, the expert may not testify as to the ultimate legal conclusion of whether probable cause existed (Ricky Shew and Frances Shew v. William Horvath, No. 16-766, M.D. Fla., 2017 U.S. Dist. LEXIS 21748).

Judge Finds Fact Issue On Police Officer's Liability With Admission Of Expert Opinions
MADISON, Wis. - Based on admitted opinions from police practices experts and forensic pathology experts, a Wisconsin federal judge ruled Feb. 13 that what happened between a police officer and a deceased man is "sharply and genuinely disputed" and thus, whether the officer's use of force was objectively unreasonable is an issue that must be resolved at trial (The Estate of Tony Robinson Jr., ex rel. personal representative Andrea Irwin v. The City of Madison, Wis., and Matthew Kenny, No. 15-502, W.D. Wis., 2017 U.S. Dist. LEXIS 20733).

Expert Testimony Supports Burden On Prisoner's Religious Exercise, Magistrate Judge Says
CORPUS CHRISTI, Texas - With the admission of a retired prison official's expert testimony, a Texas federal magistrate judge found March 7 that a prison's grooming policy requiring short hair imposes "a substantial burden" on prisoners' religious exercise (Teddy Norris Davis, et al. v. Lorie Davis, director, TDCJ-CID, No. 12-166, S.D. Texas; 2017 U.S. Dist. LEXIS 31944).

Judge Allows Testimony On Lost Profits, Royalty Damages In Patent, Trademark Suit
SAN JOSE, Calif. - In a patent and trademark infringement dispute between competitors in the fitness and exercise equipment industry, a California federal judge on March 6 refused to exclude expert testimony on lost profits damages and royalty damages (Fitness Anywhere LLC v. WOSS Enterprises LLC, No. 14-01725, N.D. Calif.; 2017 U.S. Dist. LEXIS 31505).

Judge Decides Motions To Exclude Testimony In Patent Infringement Suit
MINNEAPOLIS - A Minnesota federal judge on Feb. 24 decided several motions to exclude expert testimony on damages, lost profit and opinions on claim construction in an infringement lawsuit over patents related to frames and seating positions of snowmobiles (Bombardier Recreational Products Inc. and BRP U.S. Inc. v. Arctic Cat Inc. and Arctic Cat Sales Inc., No. 12-2706, D. Minn.; 2017 U.S. Dist. LEXIS 26517).

Federal Judge Rejects Motorola's Request For Daubert Hearing
MARSHALL, Texas - A Texas federal judge on Feb. 21 partially granted a motion to exclude testimony on damages in a patent infringement case, but found that most of the expert's opinions did not justify exclusion under Daubert v. Merrell Dow Pharms. Inc. before trial (Saint Lawrence Communications LLC v. ZTE Corp., et al., No. 2:15-cv-349, E.D. Texas, 2017 U.S. Dist. LEXIS 23505).

Judge Excludes Expert In Trademark Lawsuit For Lack Of Experience
GREENBELT, Md. - A federal judge in Maryland on Feb. 21 excluded the testimony of an expert in a trademark infringement lawsuit on grounds that his opinions were "non-substantiated proclamations on the ultimate questions of law and he lacked the requisite training education or experience in the relevant field of proffered expertise" (JFJ Toys Inc., et al. v. Sears Holdings Corporation, et al., No. 14-3527, D. Md.).

Insurer's Case On 'Collapse' Issue On Retrial Fails Without Expert Testimony, Judge Says
SEATTLE - Having excluded an insurer's expert testimony in a retrial as inadmissible, a Washington federal judge on March 1 ruled that the insurer cannot establish whether alleged "collapse" conditions observed in 2008 at an insured's condominium complex were present during another insurer's policy periods (Houston General Insurance Co. v. St. Paul Fire & Marine Insurance Co., et al., No. 11-2093, W.D. Wash.; 2017 U.S. Dist. LEXIS 29177).

Judge Rejects Insurer's Request To Exclude Testimony On Sinkholes
TAMPA, Fla. - A Florida federal judge on Feb. 22 denied an insurer's motion to exclude expert testimony on sinkhole damage, finding that the expert's methodology is reliable and that the testimony will assist a trier of fact (Goetz D. Vehse v. Liberty Mutual Fire Insurance Company, No. 8:16-cv-599, M.D. Fla., 2017 U.S. Dist. LEXIS 24483).

Judge Excludes Causation Testimony From Homeowners' Expert On Stucco Installation
ORLANDO, Fla. - A civil engineer's education, experience and expertise in stucco installation was not enough to show that his testimony in support of a proposed class action filed by homeowners against Pulte Home Corp. satisfied the requirements of Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), a federal judge in Florida ruled March 3 in granting the home builder's motion to exclude (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla., 2017 U.S. Dist. LEXIS 30251).

Couple Cannot Pursue Personal Injury Claims From Spray Foam Fumes, Judge Rules
NEW HAVEN, Conn. - A federal judge in Connecticut on Feb. 17 held that a couple could pursue claims that allegedly improper installation of spray polyurethane foam (SPF) insulation in their home resulted in property damage requiring remediation but that they failed to provide causation evidence to show that they suffered respiratory problems after being exposed to volatile organic compound (VOC) vapors from the products (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn., 2017 U.S. Dist. LEXIS 23434).

Federal Judge Allows Expert Testimony From Both Sides In Wrongful Death Lawsuit
NEW BERN, N.C. - Two medical doctors may testify that a decedent suffered a cardiac event before falling from his wheelchair, a North Carolina federal judge held March 1, also allowing an expert for the decedent's side to testify as to the cause of death (Gwendolyn Jackson Pinnix and Warren Ivan Jackson, executors of the estate of David W. Jackson Sr. v. SSC Silver Stream Operating Company LLC, No. 14-00161, E.D. N.C.; 2017 U.S. Dist. LEXIS 28679).

Judge: Expert Testimony Is Reliable For Strict Products Liability Case
SAN ANTONIO - A plaintiff's expert sufficiently relied "upon his engineering background, knowledge of basic principles and inspection of the winch at issue in this case in formulating his testimony," a Texas federal judge ruled March 1, declining to exclude the testimony in a strict products liability lawsuit (Christopher Villegas v. Cequent Performance Products Inc., No. 15-473, W.D. Texas; 2017 U.S. Dist. LEXIS 28597).

Judge Bars Testimony On Education Lead-Generation Industry's Customs, Practices
TAMPA, Fla. - A lawyer is not qualified to opine on the educational lead-generation industry's customs and practices because the lawyer failed to explain why her experience is a sufficient basis for her opinion and how her experience is reliably applied to the facts of a trade secrets and breach of contract case, a Florida federal judge ruled Feb. 13, excluding the testimony (Connectus LLC v. Ampush Media Inc., et al., No. 15-2778, M.D. Fla., 2017 U.S. Dist. LEXIS 19829).

Judge Says Trade Secret Damages Valuation Expert Testimony Will Be Allowed
DETROIT - A federal judge in Michigan on Feb. 13 adopted a special master's recommendation that the testimony of a certain expert should not be excluded from a trade secrets damages suit (MSC.Software Corporation v. Altair Engineering, Inc., et al., No. 07-cv-12807, E.D. Mich., 2017 U.S. Dist. LEXIS 19733).

Judge: Securities Investment Adviser's Opinion On Mortgage Lending Practices Is Barred
RALEIGH, N.C. - Excluding a securities investment adviser's testimony because he is not qualified as an expert on mortgage lending practices and policies, a North Carolina federal judge ruled Feb. 14 that genuine issues of fact exist concerning negligence, breach of fiduciary duty and bad faith claims against a bank to survive summary judgment (Paul B. Hetzel v. JPMorgan Chase Bank, N.A., No. 13-236, E.D. N.C., 2017 U.S. Dist. LEXIS 20293).

Illinois Federal Judge Won't Exclude Expert In Case About Bone-Lengthening Device
CHICAGO - An Illinois federal judge on Feb. 15 denied a motion by an orthopedic device manufacturer to exclude the testimony of a plaintiff expert about an alleged flaw in the device (Timothy Bellas v. Orthofix Inc., No. 14-9623, N.D. Ill., Eastern Div., 2017 U.S. Dist. LEXIS 21166).

Panel Upholds Lanham Act Judgment Without Expert Testimony On Actual Injury
RICHMOND, Va. - Without expert testimony, a seller of internet domain names could not establish the elements of its Lanham Act claim, the Fourth Circuit U.S. Court of Appeals ruled Feb. 8, finding that there was no evidence that the seller suffered an actual injury as a direct result of a competitor's conduct (Verisign Inc. v. LLC and Daniel Negari, No. 15-2526, 4th Cir., 2017 U.S. App. LEXIS 2264).

Judge Refuses To Bar Fire Investigators' Opinions In Strict Products Liability Suit
HOUSTON - In a strict products liability lawsuit, a Texas federal judge on Feb. 7 declined to exclude testimonies from fire investigators because the expert opinions rely on acceptable methodology (Harris Caprock Communications Inc. v. Trippe Manufacturing Co. d/b/a Tripp Lite d/b/a Tripp Lite Holdings Inc., No. 15-0130, S.D. Texas, 2017 U.S. Dist. LEXIS 16857).

Panel: Judge Did Not Perform Gatekeeping Duties On Testimony In Product Liability Suit
RICHMOND, Va. - A judge erred in allowing an electrical engineer's testimony that a Ford Motor Co. vehicle was reasonably unsafe and that alternative designs existed because he did not perform his gatekeeping duties with regard to the testimony, the Fourth Circuit U.S. Court of Appeals ruled Feb. 1, finding that without other expert testimony, a couple cannot prove their product liability case under West Virginia law (Howard E. Nease and Nancy Nease v. Ford Motor Co., No. 15-1950, 4th Cir., 2017 U.S. App. LEXIS 1781).

Oklahoma Federal Judge Bars Testimony In Aviation Products Liability Lawsuit
TULSA, Okla. - In an aviation negligence and products liability lawsuit filed by two passengers, an Oklahoma federal judge on Feb. 3 excluded an electrical expert's opinion as to defects in an alternate landing gear system, as well as to the aircraft flight manual's (AFM) instructions on that alternate landing gear system (James Rodgers, et al. v. Beechcraft Corp. f/k/a Hawker Beechcraft Corp., et al., No. 15-0129, N.D. Okla., 2017 U.S. Dist. LEXIS 15372).

Car Manufacturer Prevails On Negligence Claim As Judge Excludes Causation Testimony
LAS VEGAS - Having excluded an expert's testimony on the cause of a vehicle collision as inadmissible under Daubert v. Merrell Dow Pharmaceuticals Inc., a Nevada federal judge on Jan. 24 granted summary judgment to a car manufacturer on a negligence claim (Marilyn Ellen Prall v. Ford Motor Co., No. 14-001313, D. Nev.; 2017 U.S. Dist. LEXIS 9647).

Judge: Claims Against Drug Manufacturer Fail In Absence Of Reliable Expert Testimony
BRIDGEPORT, Conn. - In the absence of reliable medical expert opinion on specific causation, no reasonable fact finder could come to the conclusion that Paxil, an antidepressant drug, caused a baby's birth defect, a Connecticut federal judge ruled Feb. 1, granting summary judgment to the drug's manufacturer on numerous claims (K.E., a minor by his parent and natural guardian, Nichole El-Massri v. GlaxoSmithKline LLC formerly SmithKline Beecham Corp. d/b/a GlaxoSmithKline, No. 14-1294, D. Conn., 2017 U.S. Dist. LEXIS 13705).

Judge Excludes Causation Expert Testimony In Reclast Lawsuit Against Novartis
BIRMINGHAM, Ala. - An Alabama federal judge on Jan. 26 excluded causation expert testimony in a medical liability lawsuit against Novartis Pharmaceutical Corp. over its drug, Reclast, finding that the experts did not use a reliable methodology (Ernesteen Jones v. Novartis Pharmaceuticals Corp., No. 13-624, N.D. Ala., 2017 U.S. Dist. LEXIS 10849).

California Appeals Court Affirms Exclusion Of Plaintiff Expert In Nexium Cases
LOS ANGELES - A California appeals panel on Jan. 26 affirmed the exclusion of a plaintiff expert causation witness in a multiplaintiff Nexium bone injury case, saying the trial court properly found the expert was not an epidemiologist and properly granted summary judgment (Joelena Wilson, et al. v. McKesson Corp., et al., No. B266990, Calif. App., 2nd Dist., Div. 3).

Panel Affirms $7.2M Award, Finds No Error In Use Of Damages Expert Testimony
BOSTON - A trial judge did not err in allowing a damages expert's testimony on lost profits following the discovery of a fault in bulk containers used to transport and store a chemical agent for crude oil, the First Circuit U.S. Court of Appeals held Feb. 1, upholding a jury award of $7.2 million in damages to the manufacturer of the bulk container (Packgen v. Berry Plastics Corp. and Covalence Specialty Coatings LLC, No. 16-1348, 1st Cir., 2017 U.S. App. LEXIS 1793).

Magistrate Judge Excludes Liability Expert Testimony, Finds No Foreseeable Harm
BALTIMORE - A liability expert is unqualified to offer opinions on railroad industry safety practices based on his lack of experience, a Maryland federal magistrate judge held Jan. 19, further finding that in the absence of that testimony, an injured employee failed to demonstrate reasonable foreseeability of harm in his employer's liability lawsuit (Lou Montgomery, et al. v. CSX Transportation, et al., No. 14-1520, D. Md.; 2017 U.S. Dist. LEXIS 7299).

Judge Excludes Testimony On Inapplicable OSHA Regulation In Marine Negligence Suit
NEW ORLEANS - In a negligence lawsuit an employee filed against his employer over injuries incurred on a boat, a Louisiana federal judge on Feb. 3 excluded a marine operations and safety expert from testifying about an inapplicable Occupational Safety and Health Administration regulation to determine the standard of care (In the matter of M&M Wirelines & Offshore Services LLC, No. 15-4999, E.D. La., 2017 U.S. Dist. LEXIS 15321).

Federal Judge: Accident Reconstruction Expert's Report Lacks Methodology
NASHVILLE, Tenn. - An insurer's motor vehicle accident investigation and reconstruction expert failed to provide reliable methodology in his report concerning an automobile accident involving its insured, a Tennessee federal judge ruled Jan. 30, excluding the testimony (Will Neal Jr. v. John Fort, No. 15-0425, M.D. Tenn., 2017 U.S. Dist. LEXIS 12411).

Judge Partially Excludes Testimony On Standard Of Care In Personal Injury Suit
JEFFERSON CITY, Mo. - A Missouri federal judge on Jan. 19 granted in part and denied in part motions to bar testimony from a licensed architect and an expert property manager regarding the standard of care two property owners owed to a man prior to his death from injuries related to a fall at their property (John P. Lipp and Stephanie S. Lipp v. Ginger C LLC, et al., No. 15-04257, W.D. Mo.; 2017 U.S. Dist. LEXIS 7415).

6th Circuit Rules No Error In Admission Of Expert Testimony On Victim Recantation
CINCINNATI - Finding no error in the admission of expert testimony on domestic violence and victim recantation, the Sixth Circuit U.S. Court of Appeals on Feb. 3 affirmed the conviction of man for charges related to a sexual assault of his girlfriend who recanted at trial the testimony she gave before a grand jury about an abusive relationship (United States of America v. Lynn Michael LaVictor, No. 15-1580, 6th Cir., 2017 U.S. App. LEXIS 1958).

Panel: No Error In Admission Of Expert Testimony Supporting Blood Test In Man's Conviction
WAUKESHA, Wis. - A trial judge did not err in allowing expert testimony to lay the foundation for the admission of a blood test that helped convict a man for operating a motor vehicle while intoxicated (OWI), the District II Wisconsin Court of Appeals ruled Jan. 25 (State of Wisconsin v. Michael Chough, No. 2016AP406-CR, Wis. App., Dist. 2; 2017 Wisc. App. LEXIS 49).

1st Circuit Upholds Conviction Based On Firearms Expert's Testimony On Illegal Arms
BOSTON - Finding no error in the admission of a firearms expert's testimony related to illegal possession counts, the First Circuit U.S. Court of Appeals on Jan. 20 affirmed the conviction and sentencing of a man for illegal possession of firearms during a crime of violence (United States of America v. Joseph Martinez-Armestica, No. 14-1674, 1st Cir.; 2017 U.S. App. LEXIS 1100).

Panel Upholds Exclusion Of Testimony In Sex Trafficking Case For Lack Of Helpfulness
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Jan. 26 affirmed the exclusion of expert testimony with regard to background on the culture of sex trafficking because it would not assist in helping a jury determine the guilt as to the offenses charged (United States of America v. Anthony F. D'Ambrosio, et al., No. 16-1844, 3rd Cir.; 2017 U.S. App. LEXIS 1388).

Judge Declines To Bar Expert Testimony In Constitutional Violation Suit Against Officers
FORT WAYNE, Ind. - In deciding a summary judgment motion on constitutional violation and state law claims against a town and police officers, an Indiana federal judge on Jan. 11 refused to exclude expert testimony because it was unnecessary to rule on summary judgment (David Marshall III and LaMisa Marshall v. Town of Merrillville, et al., No. 14-50, N.D. Ind.; 2017 U.S. Dist. LEXIS 3977).

Federal Judge Bars Partial Testimony In Disability Discrimination Lawsuit
DALLAS - In a disability discrimination suit, a Texas federal judge on Jan. 24 excluded an expert's opinion that "audism and phonocentric views may have prevented accommodations" from being made to two women (Equal Employment Opportunity Commission v. S&B Industry Inc. d/b/a Fox Conn S&B, No. 15-0641, N.D. Texas; 2017 U.S. Dist. LEXIS 9259).

Judge Bars Insurance Claims Consultant's Opinions On If Insurer Acted 'Unreasonably'
DENVER - An insurance claims consultant may offer testimony about an auto insurer's industry standards and practices but may not offer legal conclusions about whether the insurer acted "unreasonably" in its claims handling, a Colorado federal judge ruled Feb. 7, granting in part and denying in part the insurer's motion to exclude the expert testimony (Donald O'Sullivan v. Geico Casualty Co., No. 15-1838, D. Colo., 2017 U.S. Dist. LEXIS 17186).

Florida Panel: Court Erred In Allowing Prejudicial, Undisclosed Expert Testimony
DAYTONA BEACH, Fla. - Finding that a lower court erred in permitting a plaintiff to argue and present evidence that a doctor breached her duty of care by providing samples of the antibiotic Levaquin to a patient who later died of meningitis, a Florida appeals panel on Jan. 20 reversed the wrongful death medical malpractice dispute and remanded for a new trial (Doctors Company, et al. v. Nancy Plummer, individually and as personal representative of the estate of William Plummer, and on behalf of B.A.P. and L.J.P., minors, No. 5D15-1963, Fla. App., 5th Dist.).

Holistic Doctor's Expert Unqualified To Testify, Judge Finds
ALBUQUERQUE, N.M. - A federal judge in New Mexico on Jan. 11 granted the federal government's motion to exclude the testimony of an expert designated to discuss the medical necessity of tests administered by a holistic doctor who is accused of fraudulently billing Medicare and other insurers, after finding that the proposed testimony is not relevant and does not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 597 [1993]) (United States of America v. Roy Heilbron, No. 15-CR-2030, D. N.M.; 2017 U.S. Dist. LEXIS).

Judge Allows Certified Public Accountant To Testify On Value Of Transferred Assets
MOBILE, Ala. - A certified public accountant may testify as to the value of assets and liabilities of a husband and wife at the time of their transfers and the value of the assets when they were transferred, an Alabama federal judge ruled Jan. 19 (SE Property Holdings LLC v. Tammy T. Center, et al., No. 15-0033, S.D. Ala.; 2017 U.S. Dist. LEXIS 7224).

Judge Orders New Deposition, Imposes Fees And Costs In Asbestos Witness Dispute
NEW ORLEANS - Producing an unprepared corporate witness who failed to answer almost 100 noticed matters despite months of preparation time was akin to offering no witness at all, a federal judge in Louisiana held Jan. 31 in ordering a new deposition and imposing costs and fees (Martha Denmon Storer, et al. v. Crown Cork & Seal Co., et al., No. 14-2488, W.D. La., 2017 U.S. Dist. LEXIS 13349).

Judge: Report 'Sufficiently Reliable' As Evidence In Tainted Groundwater Case
CHICAGO - A federal judge in Illinois on Jan. 25 ruled that an expert opinion provided by a village that sued two companies alleging groundwater contamination from vinyl chloride that leaked into the water system was "sufficiently reliable," and he refused to exclude it from evidence (Village of Sauk Village v. Roadway Express Inc., et al., No. 15-9183, N.D. Ill.; 2017 U.S. Dist. LEXIS 10478).

Judge: Expert May Testify, But Written Reports Not Allowed As Evidence
SHELBY, N.C. - A North Carolina judge on Dec. 16 partially granted and partially denied a motion to exclude an expert economic witness in a trade secret misappropriation case, ruling that the expert could testify but that the admissibility of his written reports "shall be limited" (Safety Test & Equipment Company Inc. v. American Safety Utility Corporation, et al., No. 13-CVS-1037, N.C. Super., Cleveland Co.; 2016 NCBC LEXIS 100).

Couple: Expert's Supplemental Report Clarified Remediation Plan, Costs
NEW HAVEN, Conn. - A couple who claims that they suffered physical injuries and property damage as a result of spray polyurethane foam (SPF) insulation in their home say in a brief filed Feb. 1 in Connecticut federal court that a supplemental report submitted by one of their experts should not be stricken from the record because it contains new information about the remediation plan for their home that was added to the report to clarify any ambiguities (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).

Wisconsin High Court Finds Medical Malpractice Testimony Was Reliable Under Daubert
MADISON, Wis. - An expert's medical testimony on the standard of reasonable care based on his personal experiences was reliable, the majority of the Wisconsin Supreme Court ruled Jan. 6, upholding an $885,000 medical malpractice judgment against a doctor (Braylon Seifert, by his Guardian ad litem, Paul J. Scoptur, Kimberly Seifert and David Seifert v. Kay M. Balink, M.D. and Proassurance Wisconsin Insurance Co., No. 2014AP195, Wis. Sup.; 2017 Wisc. LEXIS 2).

Judge Excludes Testimony On Nurse's 'Indifference' To Inmate's Health Care
GULFPORT, Miss. - An expert may not testify that a nurse "was deliberately indifferent" to an inmate's health care, which led to his wrongful death, but the expert may testify that the nurse breached the relevant standard of care, a Mississippi federal judge ruled Jan. 3, also finding that the expert is not qualified to give medical causation opinions (Dorothy Lee and John Morris Lee III v. Jackson County, Miss., et al., No. 13-441, S.D. Miss.; 2017 U.S. Dist. LEXIS 295).

3rd Circuit Vacates Order Barring Statistics Testimony In Discrimination Suit
PHILADELPHIA - In an employer discrimination lawsuit, the Third Circuit U.S. Court of Appeals on Jan. 10 vacated a trial court's order excluding testimony of a statistics expert and remanded for further proceedings under Daubert v. Merrell Dow Pharmaceuticals Inc. (509 U.S. 579 [1993]) because the court ignored subsequent analysis (Rudolph A. Karlo, et al. v. Pittsburgh Glass Works LLC, No. 15-3435, 3rd Cir.; 2017 U.S. App. LEXIS 406).

Judge Grants In Part, Denies In Part Motions To Exclude Testimony In Discrimination Suit
CHICAGO - An Illinois federal judge on Dec. 8 addressed several motions to exclude testimony prior to a trial date set in a doctor's lawsuit against a university for discrimination that resulted in her contract not being renewed (Dr. Maria Artunduaga v. The University of Chicago Medical Center, No. 12-8733, N.D, Ill.; 2016 U.S. Dist. LEXIS 169460).

Judge Bars Certain Testimony In Breach Of Contract Suit Between Gun Companies
KANSAS CITY, Kan. - A Kansas federal judge on Jan. 4 excluded in part various testimony offered by a gun manufacturer in a breach of contract dispute with two gun stores because the expert did not meet qualification and reliability standards for some of the testimony (Signature Marketing Inc. d/b/a Signature Manufacturing v. New Frontier Armory LLC and EXTAR LLC, No. 15-7200, D. Kan.; 2017 U.S. Dist. LEXIS 1130).

Judge Excludes Testimony In Breach Of Contract Suit Over Supply Of Crude Oil
HOUSTON - In a breach of contract lawsuit, a Texas federal judge on Dec. 20 excluded in part testimony from both parties involved in a dispute over an agreement for the supply of crude oil (Musket Corp. v. Suncor Energy [U.S.A.] Marketing Inc., No. 15-100, S.D. Texas; 2016 U.S. Dist. LEXIS 175601).

Panel Upholds Finding Of No Negligence By Hospital, Doctor With Admission Of Testimony
TEXARKANA, Texas - Finding no error in the admission of two medical professionals' testimony concerning the medical care and treatment a patient received, a Texas appeals panel on Dec. 19 upheld a take-nothing judgment and finding of no negligence on the part of a hospital and one of its doctors (Kay Plunkett, et al. v. Christus St. Michael Health System, et al., No. 06-16-00010-CV, Texas App., 6th Dist.; 2016 Tex. App. LEXIS 13427).

Judge Declines To Exclude Economic Damages Testimony In A Negligence Suit
JACKSON, Tenn. - A Tennessee federal judge on Dec. 14 refused to exclude economic damages testimony in a man's negligence lawsuit arising from his injuries from his employment and subsequent inability to return to work because an industrial company failed to show that the testimony was based on unreliable methods (Dale Berman, et al. v. Unimin Corp., No. 15-1255, W.D. Tenn.; 2016 U.S. Dist. LEXIS 172769).

Judge Bars Expert Testimony On Retail Safety Operations In Suit Against Grocery Store
TRENTON, N.J. - Although excluding an expert from testifying on retail safety operations, a New Jersey federal judge on Dec. 19 declined to grant summary judgment to Whole Foods Market because fact issues exist as to whether it showed "reasonable or due care" by placing a yellow warning sign near a spill until an employee returned with a mop (Gabriela Puerto v. Whole Foods Market, et al., No. 14-5118, D. N.J.; 2016 U.S. Dist. LEXIS 174714).

Judge Allows, Bars Certain Expert Testimony In A Product Defect Lawsuit
ST. LOUIS - A Missouri federal judge on Dec. 30 granted in part and denied in part various motions to exclude medical expert testimony from a woman who is accusing a company of defects in a surgical aesthetics product as well as the company (Andrea Rachelle Clinton v. Mentor Worldwide LLC, No. 16-00319, E.D. Mo.; 2016 U.S. Dist. LEXIS 180223).

Product Defect Plaintiff Tells High Court: Rights Were Violated By Testimony Exclusion
WASHINGTON, D.C. - In a product defect lawsuit arising out of silicone in a breast implant, a woman on Dec. 5 petitioned the U.S. Supreme Court to answer whether her right to fundamental fairness under the Seventh and 14th amendments were violated when a district court's exclusion of expert testimony was affirmed "based upon disingenuous legal legerdemain" (Beverly Ezra v. DCC Litigation Facility Inc., No. 16-740, U.S. Sup.).

Magistrate Judge Allows Doctor's Testimony On Diminished Quality Of Life
KNOXVILLE, Tenn. - A doctor may testify regarding a decedent's diminished quality of life before his death from in a fire, a Tennessee federal magistrate judge held Dec. 27, finding that the opinion will be helpful to a jury in understanding how the decedent's medical conditions affected his life (Kenneth Kelley, as the son, next of kin and heir at law of Jimmy L. Kelley, deceased v. Apria Healthcare Inc., No. 13-96, E.D. Tenn.; 2016 U.S. Dist. LEXIS 178685).

Judge Bars Testimony From Plaintiffs' Experts On Pella Windows' Leakage Paths
CHARLESTON, S.C. - Three experts retained by plaintiffs claiming that Pella Corp.'s Architect Series and Designer Series windows are defective cannot testify about "leakage paths" that allow water to penetrate into vulnerable areas of the windows, a federal judge in South Carolina ruled Dec. 12, finding that the testing done by the experts to support their theory did not conform with American Society for Testing and Materials (ASTM) standard E2128 (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.; 2016 U.S. Dist. LEXIS 171502).

Judge Refuses To Reconsider Ruling Allowing Warranty Claim Against Window Maker
GULFPORT, Miss. - A federal judge in Mississippi on Jan. 3 denied a window manufacturer's motion to reconsider his Nov. 30 decision denying the defendant company's request for summary judgment on plaintiffs' breach of implied warranty of merchantability claim, holding that he properly applied the Mississippi Supreme Court's ruling in Hargett v. Midas International Corp. (508 So.2d 663 [Miss. Sup. 1987]) (Joan Cravens Inc., et al. v. Deas Construction Inc., d/b/a Deas Millwork Co., et al., No. 15-cv-00385, S.D. Miss.).

Texas Magistrate Judge Largely Rules Against Google In Chrome Patent Case
MARSHALL, Texas - Efforts by patent infringement defendant Google Inc. to bar an expert witness from calculating reasonable royalty damages based upon the number of users who access Google Chrome in a seven-day period were unsuccessful on Jan. 9, when a Texas federal magistrate judge found that the methodology "appears sound" (Alfonso Cioffi, et al. v. Google Inc., No. 13-103, E.D. Texas; 2017 U.S. Dist. LEXIS 2614).

Judge Rules On Motions To Exclude Testimony On Officers' Excessive Use Of Force
SANTA FE, N.M. - A New Mexico federal judge on Dec. 14 decided several motions to exclude testimony on whether police officers used excessive force when handling a paraplegic man (Jackie Martinez, as personal representative on behalf of the estate of Russell Martinez v. Joseph Salazar, et al., No. 14-534, D. N.M.; 2016 U.S. Dist. LEXIS 173137).

Mississippi High Court Reverses Conviction Despite No Error In Ballistic Expert Testimony Admission
JACKSON, Miss. - A trial judge did not err in allowing a ballistic expert to give definitive testimony matching bullets from a crime scene to a gun linked to a man later convicted of deliberate design murder, the majority of the Mississippi Supreme Court ruled Dec. 8; however, the majority overturned the conviction based on the judge's error in answering a question posed by a jury during deliberations (James Douglas Willie a/k/a James D. Willie a/k/a James Willie v. State of Mississippi, No. 2014-KA-01041-SCT, Miss. Sup.; 2016 Miss. LEXIS 509).

No Error In Allowing Special Agent Testimony On Sex Trafficking, 8th Circuit Says
ST. LOUIS - There was no error in permitting a special agent to testify from her training and experience on the operation of sex-trafficking rings and the terms used, the Eighth Circuit U.S. Court of Appeals ruled Jan. 3 (United States of America v. Rahmad Lashad Geddes, Nos. 15-3731 & 16-3898, 8th Cir.; 2017 U.S. App. LEXIS 8).

Panel Finds No Prejudice In State Trooper's Testimony, Upholds Drug Conviction
BOSTON - Finding abuse of discretion but no prejudice in the admission of a state trooper's testimony on the personal habits of drug addicts, a Massachusetts appeals panel on Dec. 7 affirmed a conviction of intent to distribute 100 oxycodone pills because there was ample evidence to support that finding by a jury (Commonwealth of Massachusetts v. Raymond Parker, No. 15-P-1034, Mass. App.; 2016 Mass. App. Unpub. LEXIS 1169).

Panel: No Error In Admission Of Cellphone Record Testimony In Criminal Case
CHICAGO - A trial judge did not err in allowing testimony from a cellphone record expert that placed a man at the location of illegal gun purchases in one state with illegal sales in another state, the Seventh Circuit U.S. Court of Appeals affirmed Dec. 9 (United States of America v. David Lewisbey, No. 14-2236, 7th Cir.; 2016 U.S. App. LEXIS 21935).

Panel Finds No Error In Accident Reconstruction Expert Testimony Admission
JACKSON, Miss. - Finding no error in the admission of accident reconstruction expert testimony, a Mississippi appeals panel on Jan. 10 affirmed the felony conviction of a woman for her drunken driving, which caused a death (Sara Jane Koch a/k/a Sarah Koch a/k/a Sara J. Koch v. State of Mississippi, No. 2015-KA-01228-COA, Miss. App.; 2017 Miss. App. LEXIS 15).