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LexisNexis® Mealey's™ Daubert Legal News

Headline Daubert Legal News from LexisNexis®


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).

Florida High Court Answers Stipulation Is Binding On Criminal Case's Daubert Issue
TALLAHASSEE, Fla. - Stipulations of dispositiveness are binding in appeals from conditional no contest pleas, the Florida Supreme Court ruled April 13, allowing a man to appeal the denial of his request to exclude testimony about the results of chemical field tests under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) (Roger Dennis Churchill Jr. v. State of Florida, No. SC16-654, Fla. Sup., 2017 Fla. LEXIS 829).

Judge Excludes Testimony For Lack Of Reliability, Noncompliance With Court Rules
SEATTLE - A man who was shot by a police officer during a burglary arrest cannot present expert opinions on the officer's use of force in making the arrest because he failed to prove the reliability of the expert's testimony and because his response to the officer's motion to exclude "falls far below the standard of practice in" a Washington federal court, a judge ruled May 8 (Giljon Johnson v. Benjamin Kelly, No. 16-0635, W.D. Wash., 2017 U.S. Dist. LEXIS 70049).

Expert Witness Rulings In Police Shooting Case Proper, 11th Circuit Finds
ATLANTA - The 11th Circuit U.S. Court of Appeals on May 5 affirmed rulings, including determinations on expert witnesses, during a trial in which a jury acquitted Florida police officers of civil rights violations in the shooting death of a man and wounding of a woman in the man's car (Michael Knight, et al. v. Miami-Dade County, et al., No. 15-10687, 11th Cir., 2017 U.S. App. LEXIS 8036).

Child Sex Abuse Opinion Properly Allowed, North Carolina Panel Rules
RALEIGH, N.C. - Sufficient physical evidence of sexual abuse was presented by prosecutors for a medical expert to tell a jury that a 10-year-old girl had in fact been repeatedly abused by her father, a North Carolina appeals court held May 2 in affirming the father's conviction and sentence of more than 100 years in prison (State of North Carolina v. Dawayne David Knolton, No. COA16-671, N.C. App., 2017 N.C. App. LEXIS 332).

Judge Limits Testimony Of Robbery Defendant's Expert On Eyewitness Identifications
NEWARK, N.J. - A federal judge in New Jersey on May 1 limited the testimony of a robbery defendant's expert on eyewitness identification so that the expert's testimony will assist, not impinge upon, the jury's fact-finding role (United States of America v. Gregory A. Jones, No. 16-516, D. N.J., 2017 U.S. Dist. LEXIS 65721).

Special Agent Is Excluded From Testifying On Drug Code, Federal Judge Says
ALBUQUERQUE, N.M. - In a criminal case, a Drug Enforcement Agency special agent may not provide expert opinion testimony regarding drug code generally because the agent was not properly designated as an expert witness, a New Mexico federal judge ruled April 17; however, the special agent may provide lay opinion testimony "limited to his personal perceptions of the investigation and intercepted communications" (United States of America v. Fidal Abdeljawad and Ashley Watson, No. 15-cr-3394, D. N.M., 2017 U.S. Dist. LEXIS 58122).

Vermont High Court Remands For Sentencing Hearing To Allow Expert Mitigation Testimony
MONTPELIER, Vt. - While a man's convictions for drunken driving resulting in death were upheld, the Vermont Supreme Court on April 14 remanded the matter for resentencing because the trial court abused its discretion by not continuing a sentencing hearing to allow expert mitigation testimony to be presented (State of Vermont v. Christopher Sullivan, No. 2015-292, Vt. Sup., 2017 Vt. LEXIS 27).

Judge Allows Fingerprint Specialist Expert Testimony In Government's Criminal Case
ATLANTA - A fingerprint specialist may testify based on his qualifications and reliable method on the identification of a man charged with the violation of procuring naturalization and citizenship contrary to U.S. law, a Georgia federal judge held April 18 (United States of America v. Olu Kanni Sanyaolu, No. 16-cr-126, N.D. Ga., 2017 U.S. Dist. LEXIS 59294).

Arizona Court Finds Detectives' Testimony Satisfies Evidence Rule
PHOENIX - An Arizona court on April 20 affirmed a man's convictions and sentences, finding that a trial court did not err when it allowed two detectives to testify that a substance they found in his car was marijuana (State of Arizona v. Shamar Terrek Norris, No. 16-0238, Ariz. App., Div. 1, 2017 Ariz. App. Unpub. LEXIS 446).

Judge Considers Expert's Opinion, Then Rules For Shipper In Trucker's Suit
CHICAGO - After allowing a trucking industry expert's opinions on the custom and practice in the shipping industry regarding securing loads in trailers, an Illinois federal judge on May 5 awarded a shipping company summary judgment on a truck driver's claims that the company was responsible for injuries he suffered when an unsecured load of pallets fell on him (Jerzy Kucharski, et al. v. Orbis Corporation, No. 14-cv-05574, N.D. Ill., 2017 U.S. Dist. LEXIS 68611).

Newton's Third Law Supports Admission Of Expert's Testimony, Judge Rules
TRENTON, N.J. - An expert who believes that Newton's Third Law, every action has an equal or opposite reaction, caused a rubber mallet used as part of an amusement park game to strike a man in the face is reliable and should not be precluded from admission, a federal judge in New Jersey ruled May 8 (Jonathon Crowley, et al. v. Six Flags Great Adventure, et al., No. 14-cv-2433-BRM-TJB, D. N.J., 2017 U.S. Dist. LEXIS 69703).

New Jersey Panel Bars Expert Opinions To Juries On 'Symptom Magnification'
NEWARK, N.J. - The New Jersey Superior Court Appellate Division created a "bright-line" rule April 27 that forbids expert witnesses from presenting an opinion in a civil personal injury case heard by a jury on the concepts of symptom magnification and malingering in an attempt to impeach a party's credibility (Alexandra Rodriguez v. Wal-Mart Stores, Inc., No. A-4137-14T3, N.J. Super. App. Div., 2017 N.J. Super. LEXIS 56).

Causation Testimony From Treating Physicians Allowed Despite No Expert Reports
ORLANDO, Fla. - The plaintiff in a slip-and-fall suit can proceed with causation testimony from her treating physicians despite not filing expert reports, but the physicians can provide testimony only on the medical summary and records the plaintiff provided, a Florida federal judge ruled April 19 (Lola Jones v. Discount Auto Parts, LLC, No. 16-138, M.D. Fla., 2017 U.S. Dist. LEXIS 59890).

Nurse Practitioners May Opine On Cause Of Injury, Washington High Courts Finds
OLYMPIA, Wash. - The Washington Supreme Court on April 27 unanimously held that nurse practitioners may determine the cause of an injury in medical malpractice suits and reversed summary judgment in a medical malpractice suit that was dismissed on summary judgment after the trial court said a nurse practitioner was not qualified to determine how a man developed pressure ulcers (Rudy Frausto v. Yakima HMA LLC, No. 93312-0, Wash. Sup., 2017 Wash. LEXIS 442).

Judge Rules On Experts Before Certifying 3 Classes In Telemarketing Practices Suit
OAKLAND, Calif. - A California federal judge on May 5 struck one expert report for lack of any actual analysis, declined to strike another expert report and a paralegal's declaration and certified three classes of consumers in a class action alleging that a burglar alarm company illegally used telemarketing calls to drum up business (Abante Rooter and Plumbing, Inc., et al. v., Inc., et al., No. 4:15-cv-6314, N.D. Calif., 2017 U.S. Dist. LEXIS 69307).

Epinephrine Causation Opinions Barred In Dental Malpractice Case
DOTHAN, Ala. - Two medical doctors cannot testify that the epinephrine used in a dental anesthetic caused a man with high blood pressure to have a stroke that killed him, but they can offer other causation opinions and testify about the alleged breach of the standard of care by the dentist who pulled four of the man's teeth just before he suffered the fatal stroke, an Alabama federal magistrate judge ruled April 28 (Cynthia Rushing Murphy v. Robert C. Precise, D.M.D., No. 1:16-cv-143, M.D. Ala., 2017 U.S. Dist. LEXIS 64721).

Pennsylvania Appeals Court Affirms Exclusion Of Zoloft Birth Defect Expert
PHILADELPHIA - A Pennsylvania state appeals panel on May 8 affirmed summary judgment in a Zoloft birth defect case, agreeing with the trial court that one causation expert relied on peer-reviewed articles that did not necessarily support his opinion (Robert and Katherine Porter, et al. v. SmithKlineBeecham Corporation, et al., No. 3516 EDA 2015, Pa. Super.).

Aleve Kidney Injury Experts Excluded; Bayer Gets Summary Judgment
EAST ST. LOUIS, Ill. - An Illinois federal judge on April 21 granted Bayer Corp.'s motion for summary judgment in an Aleve case after excluding the plaintiff's two experts from testifying that the over-the-counter pain reliever caused permanent kidney damage (Kenneth Hale, et al. v. Bayer Corporation, et al., No. 15-745, S.D. Ill., 2017 U.S. Dist. LEXIS 61077).

Judge Excludes Testimony On Mirena As Scientifically Unreliable Under Daubert
CHICAGO - An Illinois federal judge on April 25 granted a pharmaceutical company's motion to exclude the expert testimony of a physician in relation to an infection allegedly caused by an intrauterine device, finding that the testimony was not admissible because it was not scientifically reliable (Ivette Mercado v. Bayer Healthcare Pharmaceuticals Inc., No. 14-6699, N.D. Ill., 2017 U.S. Dist. LEXIS 62550).

2 Plaintiff General Causation Experts Excluded From New Jersey Accutane Litigation
ATLANTIC CITY, N.J. - The New Jersey state court judge overseeing the Accutane multicounty litigation on April 13 granted a motion by defendant Hoffman-La Roche (Roche) to bar the general causation testimony of two plaintiff experts, one of whom has been with the litigation for most of its existence (In Re: Accutane Litigation, No. 271 (MCL), N.J. Super., Atlantic Co.).

Kentucky Supreme Court Upholds Reliability Of Neurologist In Disability Ruling
FRANKFORT, Ky. - A neurologist used proper methodology and produced sufficient documentation to support his opinion that a man is suffering from toxic encephalopathy caused by his exposure to the chemical toluene in the spray paint he used at work, the Kentucky Supreme Court held April 27 in affirming a ruling on the man's disability in a workers' compensation case (Armstrong Coal Company, Inc. v. Nathan Attebury, et al., No. 2016-SC-000368-WC, Ky. Sup., 2017 Ky. Unpub. LEXIS 10).

4th Circuit Affirms Use Of Damages Expert's Opinion In Investment Trust Dispute
RICHMOND, Va. - Even though plaintiffs in a breach of contract action over a family's investment strategy violated disclosure rules for their damages expert, the violations caused no harm to the financial company defendant because information that was not disclosed actually decreased the damages amount, the Fourth Circuit U.S. Court of Appeals held April 20 (Fleur S. Bresler v. Wilmington Trust Co., No. 15-2086, 4th Cir., 2017 U.S. App. LEXIS 6880).

Judge: Expert Unqualified To Testify On Dewatering Industry's Standard Practices
OMAHA, Neb. - A proposed expert who planned to testify on the standard of care for dewatering companies in Council Bluffs, Iowa, is unqualified to offer his opinion in support of claims brought by a construction company, a federal judge in Nebraska ruled April 20, finding that the man only worked for the company that was subsequently hired by the plaintiff company to provide dewatering services for a construction site (Judds Brothers Construction Co. v. Mersino Dewatering, Inc., No. 16CV1, D. Neb., 2017 U.S. Dist. LEXIS 60367).

Judge Refuses To Reconsider Ruling Excluding Plaintiffs' Stucco Expert
ORLANDO, Fla. - A federal judge in Florida on April 17 denied a motion filed by plaintiffs seeking reconsideration of a decision excluding the testimony of their expert, who opines that Pulte Home Corp.'s violations of the Florida Building Code caused the stucco on their homes to crack, finding that plaintiffs are attempting to present a new theory of liability (Shaun Gazzara, et al. v. Pulte Home Corp., No. 16-cv-00657, M.D. Fla.).

Shingle Buyers Seek Stay Pending Appeal Of Ruling Denying Class Certification
TRENTON, N.J. - Purchasers of cedar shingles that allegedly cup and curl due to water retention asked a federal judge in New Jersey on May 3 to stay proceedings pending their appeal of a March 28 decision denying their motion for class certification and striking testimony from an expert (Ilene Stern, et al. v. Maibec, Inc., No. 11-3951, D. N.J.).

Damages Testimony Is Barred In Patent Infringement Suit Against IBM, Judge Says
WILMINGTON, Del. - An expert did not offer any developed damages theory relating to International Business Machines Corp.'s (IBM) use of its website, and there were "serious methodological and reliability problems" in his assumptions, a Delaware federal judge held April 17, excluding testimony in a patent infringement lawsuit (Parallel Networks Licensing LLC v. International Business Machines Corp., No. 13-2072, D. Del., 2017 U.S. Dist. LEXIS 58394).

Nonobviousness Testimony Is Allowed; Judgment Granted On Invalidity In Patent Suit
PORTLAND, Ore. - While allowing expert testimony on objective considerations of nonobviousness, an Oregon federal judge also granted in part summary judgment on April 12 to a sportswear company that certain prior art references do not anticipate utility patents relating to heat-directing elements to a garment's innermost surface (Columbia Sportswear North America Inc. v. Seirus Innovative Accessories Inc., No. 15-00064, D. Ore., 2017 U.S. Dist. LEXIS 55714).

Federal Judge Denies Securities Broker's Motion To Bar Expert Testimony
WEST PALM BEACH, Fla. - An expert is qualified to testify regarding a rule under Financial Regulatory Authority Inc. (FINRA), a Florida federal judge ruled April 14, denying a motion to exclude filed by a securities broker-dealer (UBS Financial Services Inc. v. Bounty Gain Enterprises Inc., No. 14-81603, S.D. Fla., 2017 U.S. Dist. LEXIS 57502).

Ala. Federal Judge Strikes Insurer's Expert Witness In Environmental Coverage Suit
MOBILE, Ala. - An Alabama federal judge on April 24 granted a motion to strike an insurer's proposed expert witness after determining that the expert's testimony relates to claims that were already decided in an underlying environmental contamination suit (Heartland Catfish Co. Inc. et al., v. Navigators Specialty Insurance Co., No. 15-368, S.D. Ala., 2017 U.S. Dist. LEXIS 62379).

Plaintiff Who Lost $8M Asbestos Verdict Wants Causation Cases Consolidated
FORT LAUDERDALE, Fla. - A motion by an asbestos plaintiff seeking to consolidate her appeal of a ruling excluding expert causation testimony involving cigarette filters with a second case challenging application of the Daubert standard is inappropriate because the court previously stayed her case and because the Florida Supreme Court has not accepted either case for review, Crane Co. told the court on March 14 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

9th Circuit Permits Expert's Testimony Regarding Origin Of Asbestos Insulation
SAN FRANCISCO - An expert's knowledge regarding U.S. Navy practices and procedures qualifies him to testify that the asbestos-containing insulation to which a man was exposed was likely original to the boilers in question, and he need not have firsthand knowledge, a Ninth Circuit U.S. Court of Appeals panel held April 26 (Geraldine Hilt, et al. v. Foster Wheeler LLC, FKA Foster Wheeler Corp., No. 15-17301, 9th Cir.).

Judge Rejects Challenge To Causation Testimony In Asbestos Case
NEW YORK - Requiring experts to actually sample and test the release of [ee]asbestos fibers from products would be fatal to almost all cases, given the lack of existing products to test and their inherent hazards, a New York justice held in allowing the testimony of three experts in an opinion posted April 20 (Jeanne Evans, et al. v. 3M Co., et al., No. 190109/2015, N.Y. Sup., New York Co.).

Company: Causation Lacking In Lawsuit Related To Cancer From Benzene Exposure
ASHEVILLE, N.C. - A company being sued by a North Carolina man who contends that he contracted cancer as a result of groundwater contamination for which the man says the company is liable on April 17 filed a brief in North Carolina federal court, arguing that the case should be dismissed because the plaintiffs cannot show causation (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

Judge: Experts Not Permitted To Testify In Benzene Exposure Lawsuit
OKLAHOMA CITY - A federal judge in Oklahoma on March 31 ruled that the testimony of experts on which a woman was going to rely in her lawsuit against oil and gas companies for injuries she allegedly suffered from exposure to airborne benzene did not meet the standard requirements for reliability of testimony (Samantha Hall v. ConocoPhillips, et al., No. 14-0670, W.D. Okla; 2017 U.S. Dist. LEXIS 56458).