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Preview: LexisNexis® Mealey's™ Daubert Legal News

LexisNexis® Mealey's™ Daubert Legal News



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



Mississippi Panel Upholds Exclusion Of Opinions In Propane Explosion Case
JACKSON, Miss. - A Mississippi appeals court on Oct. 3 affirmed dismissal of negligence claims filed by a woman who says her home was damaged by a pipeline explosion, after finding that the trial court properly excluded opinions from the woman's metallurgical engineering expert (Edith Davis Elmore v. Dixie Pipeline Company, No. 2015-CA-01499-COA, Miss. App., 2017 Miss. App. LEXIS 580).



Expert's Testimony On Mine Subsidence Allowed By Federal Judge
WHEELING, W.Va. - An engineering expert can opine that nearby coal-mining operations caused subsidence damage to a couple's property in West Virginia, a federal judge held Sept. 18, finding that the expert's opinion is both reliable and helpful and that the late production of the expert's report is excusable (Christopher Clark, et al. v. McElroy Coal Company, et al., No. 5:16-cv-137, N.D. W.Va., 2017 U.S. Dist. LEXIS 152125).



Barter Industry Standards Testimony Allowed, But Not Legal Analysis
BOSTON - An expert witness can testify about the barter industry and how it operates but cannot give opinions on whether a jewelry-for-advertising deal between two companies was reasonable or met barter industry standards, as such statements amount to legal conclusions, a Massachusetts federal magistrate judge held Sept. 29 (Hearts on Fire Company, LLC v. CIRCA, Inc., No. 14-cv-11044, D. Mass., 2017 U.S. Dist. LEXIS 160872).



Company Awarded Judgment After Expert For Insurer Seeking Subrogation Excluded
GREENBELT, Md. - A Maryland federal judge on Sept. 15 awarded summary judgment to a utility contractor on an insurance company's claim that the contractor's negligence caused a house fire, after excluding the insurer's expert from testifying about the standard of care for the work at issue due to lack of a reliable methodology (American Strategic Insurance Corp. v. Scope Services, Inc., No. 15-2045, D. Md., 2017 U.S. Dist. LEXIS 149789).



Judge Curtails Opinion Testimony In Insurance Row Over Fatal Crash Settlement
ALBUQUERQUE, N.M. - Claims-handling experts for two insurers alleging bad faith against each other over settlement of a wrongful death action had their proposed testimony limited Sept. 30 by a New Mexico federal judge, who said the experts cannot offer opinions about whether either party acted in bad faith or unreasonably because such determinations are the province of the trier of fact (American Automobile Insurance Company v. First Mercury Insurance Company, et al., No. 13-cv-439, D. N.M., 2017 U.S. Dist. LEXIS 163346).



Expert Testimony Excluded; Insurer Granted Summary Judgment On Pollution Exclusion
CHICAGO - An Illinois federal judge on Sept. 25 granted an insurer's motion on the applicability of the pollution exclusion after determining that testimony offered by the insured's expert on the contamination at two of the insured's sites must be excluded because the expert's testimony does not support the insured's argument that the contamination was sudden and accidental as required for coverage to exist under the policies at issue (Varlen Corp. v. Liberty Mutual Insurance Co., et al., No. 13-5463, N.D. Ill., 2017 U.S. Dist. LEXIS 162110).



Reinsurer Opposes Motion To Bar Employee's Testimony In Asbestos Coverage Dispute
UTICA, N.Y. - In a dispute over an underlying $325 million settlement of asbestos claims, a reinsurer responds in a Sept. 13 opposition brief to an insurer's motion to exclude testimony from the reinsurer's former employee, arguing to a New York federal court that the former employee has extensive knowledge regarding reinsurance practices, policies and procedures (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-cv-00853, N.D. N.Y.).



Reinsurance Facultative Certificates Cover Defense Costs In Excess Of Cap
HARRISBURG, Pa. - Reinsurance facultative certificates covered defense expenses in excess of a liability cap, a Pennsylvania appeals panel ruled Oct. 17, affirming that insurers were entitled to interest on certain proofs of loss for asbestos claims issued before 2013 (Century Indemnity Co. v. OneBeacon Insurance Co., No. 1280 EDA 2016, Pa. Super., 2017 Pa. Super. LEXIS 806).



Kentucky Panel Upholds Exclusion Of Expert Testimony In Suit Against Nursing Home
FRANKFORT, Ky. - The Kentucky Court of Appeals on Oct. 13 shot down all of an estate's challenges to a jury's verdict in favor of a nursing home on the estate's wrongful death claims, including the estate's argument that the trial court abused its discretion by limiting testimony from the estate's expert witness (Jerry Stamper v. Berea Area Development, LLC, d/b/a The Terrace Nursing and Rehabilitation Facility, No. 2014-CA-000690-MR, Ky. App., 2017 Ky. App. Unpub. LEXIS 764).



Expert's Opinion On Paralysis Tossed When Evidence Shows Accuser Can Walk
SAN JUAN, Puerto Rico - An expert witness for a woman who says her paralysis was caused by medical malpractice was excluded from testifying by a Puerto Rico federal judge, who ruled Sept. 18 that the expert's opinion on the cause of the paralysis is useless because, despite the woman's claims to the contrary, the evidence shows that she is not in fact paraplegic (Aglaed Gonzalez Rivera v. Centro Medico Del Turabo, Inc. D/B/A Hospital Himacaguas, et al., No. 15-1538, D. Puerto Rico, 2017 U.S. Dist. LEXIS 151189).



Kentucky Appellate Majority Affirms Summary Judgment In Medical Malpractice Suit
FRANKFORT, Ky. - A majority of a panel of the Kentucky Court of Appeals on Oct. 13 affirmed a trial court's decision to grant summary judgment to a hospital after finding that a woman's negligence suit was based on medical malpractice and therefore required expert testimony over what options the hospital had to prevent a man from falling out of his hospital bed (Kathleen Chamis v. Ashland Hospital Corporation, No. 2015-CA-001071-MR, Ky. App., 2017 Ky. App. LEXIS 613).



Expert For Bankruptcy Fraud Defendant Cannot Testify, Federal Judge Rules
CHICAGO - An expert witness for a man charged with criminal bankruptcy fraud was barred from testifying at trial on Oct. 14 by an Illinois federal judge, who found that the expert's opinions are unreliable due to a lack of any methodology and amount to "legal conclusions that are not within the province of the expert" (United States of America v. Eric E. Neushwander, No. 15-cr-542, N.D. Ill., 2017 U.S. Dist. LEXIS 170130).



Battered Woman Testimony Permitted For Man's 3rd Domestic Assault Charge
BAY CITY, Mich. - An expert's testimony on domestic violence and victim recantation is reliable and will be helpful to a jury, a Michigan federal judge found Oct. 10 in denying a request by a domestic assault habitual offender to exclude the expert's opinions (United States of America v. James Daniel Bennett, No. 17-cr-20443, E.D. Mich., 2017 U.S. Dist. LEXIS 166732).



Mom Loses Suit Over Son's Death After Police Expert's Opinions Allowed
TOLEDO, Ohio - An Ohio federal judge on Oct. 17 awarded summary judgment to the city of Toledo and several of its police officers on a mother's claims that the officers violated her son's civil rights by getting him killed for being a drug informant, after finding that an expert for the city and police was qualified to testify and his methodology was reliable (Marcia Przybysz v. City of Toledo, et al., No. 3:16-cv-0353, N.D. Ohio, 2017 U.S. Dist. LEXIS 171631).



Transvaginal Mesh Expert's Opinions Mostly Allowed By Illinois Federal Judge
CHICAGO - An expert for a couple seeking damages for injuries caused by a transvaginal mesh can offer opinions on several topics, such as using other synthetic mesh devices as safer alternatives to the one in question, "but the testimony must be limited to his area of expertise, and his opinions must not involve legal or regulatory matters," an Illinois federal judge held Oct. 6 (Christine Wiltgen, et al. v. Ethicon, Inc., et al., No. 12-cv-2400, N.D. Ill., 2017 U.S. Dist. LEXIS 165932).



Expert Testimony Admitted For Both Sides In Defective Tire Action
SCRANTON, Pa. - Expert witnesses for both sides can testify in a design defect case involving an automobile tire that exploded and injured a mechanic, a Pennsylvania federal magistrate judge ruled Sept. 27 after finding that the challenged opinions are sound, relevant and helpful to the trier of fact (Vincent Dodson, et al v. Beijing Capital Tire Company, Ltd., et al., No. 3:14-cv-01358, M.D. Pa., 2017 U.S. Dist. LEXIS 158484).



Design Defect Opinions Admitted In Suit Over Rollover Crash Of Pickup
DENVER - A Colorado federal judge on Sept. 19 declined to exclude design defect opinions of an expert for a man who was paralyzed in a rollover crash of a pickup truck, saying the defendant manufacturers' objections relate to the weight that should be given to the expert's testimony and not whether the opinions are admissible (Daniel Pertile, et al. v. General Motors, LLC, et al., No. 15-cv-0518, D. Colo., 2017 U.S. Dist. LEXIS 152342).



Judgment Bid Snuffed By Admission Of Experts In MRSA Damages Action
COLUMBUS, Ohio - A cosmetics company is not entitled to summary judgment on a woman's claim that she contracted a methicillin-resistant Staph aureus (MRSA) infection from a makeover at one of the company's stores, an Ohio federal judge held Sept. 15 after finding that the opinions of the woman's causation experts are sufficiently reliable to be admitted at trial (Susan Welch Kelly, et al. v. Bare Escentuals Beauty, Inc., et al., No. 2:14-cv-1359, S.D. Ohio, 2017 U.S. Dist. LEXIS 150060).



Bar On Expert Testimony In Copyright Cases Not Cert Worthy, Video Maker Says
WASHINGTON, D.C. - The U.S. Supreme Court should deny certiorari in a copyright infringement action over the popular John Madden Football series computer game because the federal circuit courts agree that disputed works must be placed into evidence so a jury can compare them, and any ruling on the role of expert witnesses in software copying cases would not change the outcome of the case at hand, the video game maker argues in a Sept. 28 response brief (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 3769).



Judge: Motion Redacted To Protect 'Vulnerabilities' In Tainted Groundwater Case
CHARLESTON, W.Va. - A federal judge in West Virginia on Sept. 26 ruled that portions of a motion to exclude expert testimony in a groundwater contamination lawsuit should be redacted because the document contains information that "substantially risks exposing vulnerabilities" in the water supply system and the means by which the water company which is the defendant in the lawsuit would respond to an attack on the system (Crystal Good, et al. v. American Water Works Co. Inc., No. 14-1374, S.D. W.Va.).



Monsanto: Roundup MDL Cases Fail For Lack Of Causation Between Cancer, Glyphosate
SAN FRANCISCO - Monsanto Co. on Oct. 6 moved in California federal court for dismissal of the multidistrict litigation related to the herbicide Roundup on grounds that the plaintiffs have not satisfied their burden to present expert testimony that is "scientifically reliable and relevant" and that is sufficient to prove general causation concerning whether glyphosate - the active ingredient in Roundup - is capable of causing cancer (In re: Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).



Advocacy Group Wants Asbestos Experts Rejected, Asks Florida To Adopt Daubert
TALLAHASSEE, Fla. - The Florida Supreme Court should use an asbestos case to adopt the superior standard for reviewing evidence espoused in Daubert regardless of the constitutionality of the Legislature's attempt to do so and reject the opinion that any exposure to asbestos contributes to disease, an advocacy group told the court on Sept. 20 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Pennsylvania Judge Excludes Asbestos-Talc Experts As Unreliable
PHILADELPHIA - While portions of asbestos-talc experts' testimony regarding the presence of asbestos and causation may arise from generally accepted scientific methodology, they deviate enough from those methodologies to exclude their opinions, a Pennsylvania judge held Sept. 25 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. December Term, 2015, 2987, Pa. Comm Pls., Philadelphia Co.).



Oil Company: Fracking Operator's Motion To Exclude Expert Lacks 'Factual Basis'
OKLAHOMA CITY - An oil company on Oct. 16 filed a brief in Oklahoma federal court supporting its expert in a hydraulic fracturing well dispute it has with a fracking services company, arguing that the expert is "well credentialed" and the company opposing him does so "without a proper factual basis" (Singer Oil Company LLC v. Newfield Exploration Midcontinent Inc., et al., CIV-16-768, W.D. Okla.).