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Preview: LexisNexis® Mealey's™ Daubert Legal News

LexisNexis® Mealey's™ Daubert Legal News



Headline Daubert Legal News from LexisNexis®



 



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.).



7th Circuit Upholds Ban On Term 'Expert' While Allowing Opinion Testimony
CHICAGO - A federal trial court properly barred litigants in a securities fraud case from referring to an accountant as an "expert" witness to safeguard against a bias jury, a Seventh Circuit U.S. Court of Appeals panel majority held Aug. 29 (United States of America v. Jaime C. Lopez, No. 16-2269, 7th Cir., 2017 U.S. App. LEXIS 16492).



Murder Conviction For 2011 Shooting Survives Daubert Challenge
CINCINNATI - An Ohio federal court correctly denied habeas relief to a man convicted of murder because a state trial court's admission of bullet trajectory testimony by a police officer did not provide a basis to challenge the conviction under Daubert v. Merrell Dow Pharmaceuticals, Inc., the Sixth Circuit U.S. Court of Appeals ruled July 3 (Michael P. Smith v. Warden, Ross Correctional Institution, No. 16-3157, 6th Cir., 2017 U.S. App. LEXIS 16936).



9th Circuit Affirms Verdict For Injured, Splits On Allowance Of Expert's Opinions
SEATTLE - A divided Ninth Circuit U.S. Court of Appeals panel on Aug. 31 upheld a $3.5 million verdict for a longshoreman who was injured while working on a ship, with the dissenting judge taking issue with the majority over the admittance of expert testimony on whether low-level shocks can cause certain injuries (Roger Murray, et al. v. Southern Route Maritime SA, et al., No. 14-36056, 9th Cir., 2017 U.S. App. LEXIS 16760).



Defense Expert Allowed In Deckhand's Negligence Suit Against Shipping Companies
NEW ORLEANS - An expert for maritime companies that are defendants in a negligence action filed by an injured deckhand can give his opinions at trial about whether the defendants followed proper practices and procedures because his testimony is reliable and does not include legal conclusions, a Louisiana federal judge ruled Sept. 8 (Carlos David v. C and G Boats, Inc., No. 15-1655, E.D. La., 2017 U.S. Dist. LEXIS 145614).



Expert's Life Care Plan For Injured Worker Admitted By Federal Judge
HUNTINGTON, W.Va. - A federal judge in West Virginia on Aug. 22 declined to exclude expert testimony and a life care plan for a man seeking damages for injuries he suffered in a work site accident after finding that the expert properly relied on medical reports to create the life plan (Richard Edwards, Jr. v. McElliotts Trucking, LLC, et al., No. 3:16-cv-1879, S.D. W.Va., 2017 U.S. Dist. LEXIS 133803).



Treating Physicians Allowed To Give Causation Opinions In Work-Related Injury Case
OMAHA, Neb. - Treating physicians for a man injured while working for a railroad company can offer expert opinions about the cause of the injury because their methods were sufficiently reliable, even though they did not reconstruct the accident, a Nebraska federal judge held Aug. 25 (Steven C. Logsdon vs. BNSF Railway Company, No. 8:15-cv-232, D. Neb., 2017 U.S. Dist. LEXIS 136770).



Washington Appeals Panel Affirms Defense Verdict In Birth Defect Suit
SPOKANE, Wash. - A Division I Washington Court of Appeals panel on Aug. 28 affirmed a defense verdict in a medical negligence suit after finding that a trial court did not err by allowing a midwife's expert to testify about the natural forces of labor (NFOL) theory (L.M., ex rel. William L.E. Dussault v. Laura Hamilton, et al., No. 76019-0-1, Wash. App., Div. 1., 2017 Wash. App. LEXIS 2041).



Judge Finds Fault With Life-Care Planner's Methods In Injured Hunter's Suit
EAST ST. LOUIS, Ill. - An Illinois federal judge on Sept. 5 disallowed testimony by a life-care-planning expert for a man injured in a deer-hunting accident after finding that the expert's opinions are not reliable or based on proper methodology; the judge then excluded testimony by the injured man's expert forensic economist because her opinions were based on the life care expert's now-excluded report (Jordan Queen v. W.I.C., Inc. d/b/a Sniper Treestands, No. 14-cv-519, S.D. Ill., 2017 U.S. Dist. LEXIS 143087).



Georgia Appeals Court Upholds Exclusion Of Injury Causation Testimony
ATLANTA - A woman cannot pursue negligence claims against a midwife alleging that she injured the woman's baby during labor and delivery because the mother failed to present admissible expert testimony on medical causation, a Georgia appeals court found Sept. 7 in affirming summary judgment for the midwife (T'Miaya Smith, et al. v. Lauren Braswell, et al., No. A17A1191, Ga. App., 3rd Div., 2017 Ga. App. LEXIS 402).



Black & Decker Loses Out On $54M Trademark Verdict Due To Expert's Flawed Survey
CHICAGO - Two companies got a $54 million trademark infringement verdict against them tossed Sept. 11 when an Illinois federal judge granted them a new trial based on the unreliability and irrelevance of expert testimony regarding the likelihood of consumer confusion about the products at issue, which the judge said probably "unfairly influenced the jury's verdict" (The Black & Decker Corporation, et al. v. Positec USA Inc., et al., No. 11-cv-5426, N.D. Ill., 2017 U.S. Dist. LEXIS 147463).



T-Mobile Gets Divided Ruling In Bid To Exclude Patentee's Expert Opinions
MARSHALL, Texas - An expert can opine that accused patent infringer T-Mobile "made" a product, rather than just "used" it, but cannot testify that the company never enabled a restoration feature because it was advised against doing so by counsel, a Texas federal magistrate judge ruled Sept. 4 (Huawei Technologies Co. Ltd. v. T-Mobile US, Inc., et al., No. 2:16-cv-00052, E.D. Texas, 2017 U.S. Dist. LEXIS 142606).



9th Circuit's Bar On Expert Testimony In Copyright Cases Before High Court
WASHINGTON, D.C. - The creator of the popular John Madden Football series computer game asked the U.S. Supreme Court on July 28 to decide whether expert testimony should be barred in copyright infringement cases because juries must assess infringement as an "ordinary reasonable person" would (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 2633).



Most Risperdal Claims Stand After Expert Causation Testimony Allowed
NEW YORK - A man who says an anti-psychotic drug he took during his teens caused enlargement of his breasts can pursue most of his products liability claims against the drugmaker, a New York federal judge ruled Aug. 30 after finding that the causation opinions of the man's medical expert are admissible and raise a triable issue of fact (Jamal Adeghe v. Janssen Pharmaceuticals, Inc., No. 16-2235, S.D. N.Y., 2017 U.S. Dist. LEXIS 139913).



Admitted Expert Opinions Doom Woman's Class Action Over Gingko Biloba Supplements
SAN DIEGO - A consumer cannot pursue a class action alleging that product claims on the label for nutritional supplements are false because admitted expert testimony that scientific evidence supports the claims on the label precludes the consumer's claims, a California federal judge ruled Aug. 23 after denying the consumer's bid to exclude the expert opinions (Tatiana Korolshteyn v. Costco Wholesale Corporation, et al., No. 15-709, S.D. Calif., 2017 U.S. Dist. LEXIS 135303).



Human Resources Expert Stricken For Lack Of Reliability, Relevance
SEATTLE - A human resources expert for tree-trimming business Asplundh Tree Experts Co. in a former worker's sexual harassment suit cannot testify at trial because his opinions are unreliable and irrelevant and do not offer any expertise to assist a jury, a Washington federal judge held Sept. 12 (Brittany Easton v. Asplundh Tree Experts, Co., No. 16-1694, W.D. Wash., 2017 U.S. Dist. LEXIS 147508).



Expert Qualified To Testify On Cleanup Costs' Reasonableness, Judge Says
SALT LAKE CITY - An engineer can proffer testimony that Chevron Pipeline Co. (CPL) spent approximately $4.4 million to $5.6 million in unnecessary costs when responding to two oil spills in 2010, a federal judge in Utah ruled Sept. 7, finding that he is qualified and that the methodology underlying his opinion is reliable (Chevron Pipeline Company v. Pacificorp, No. 12-CV-287, D. Utah).



Judge Limits Experts' Testimony On Migration Of Metals To River
TRENTON, N.J. - A federal judge in New Jersey on Aug. 16 granted in part NL Industries Inc.'s motion to exclude testimony from two experts for an environmental group accusing the company of violating the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA), finding that portions of each expert's testimony was unreliable (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J., 2017 U.S. Dist. LEXIS 131754).



Plaintiff Says His Experts Should Be Permitted To Testify In Groundwater Case
ASHEVILLE, N.C. - A North Carolina man who sued a company he contends contaminated his groundwater, causing him to develop cancer, on Aug. 25 filed a brief contending that a North Carolina federal court should deny the defendant's motions in limine seeking to exclude the man's experts (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).



Pella MDL Judge Denies Motion To Alter Ruling Excluding Plaintiffs' Experts
CHARLESTON, S.C. - The federal judge in South Carolina overseeing lawsuits filed by plaintiffs claiming that two designs of windows are defective because they allow for water intrusion on Aug. 24 denied the plaintiffs' request to alter or amend a December ruling excluding the testimony of three expert witnesses, holding that the experts did not consider alternative causes for what makes the windows leak and that the testing the experts used was unreliable (In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C., 2017 U.S. Dist. LEXIS 136848).



7th Circuit Rejects Asbestos Expert's Cumulative Exposure Testimony
CHICAGO - Expert testimony that cumulative asbestos exposures causes disease is not significantly different than the opinion that every exposure causes a disease, a Seventh Circuit U.S. Court of Appeals panel held Aug. 31. The panel also found no prejudice from a defendant company's investigation into a juror (Charles Krik v. ExxonMobil Oil Corp., et al., No. 15-3112, 7th Cir., 2017 U.S. App. LEXIS 16795).



Florida Court Allows Cumulative Exposure Opinion, Affirms $9M Asbestos Verdict
MIAMI - A court properly admitted an expert's testimony that cumulative asbestos exposures were sufficient to cause a man's mesothelioma, a Florida appeals court held Sept. 6 in differentiating the testimony from the opinion that every exposure leads to disease and affirming a $9 million verdict (Northrop Grumman Systems Corp., et al. v. Rosa-Maria Britt, et al., No. 3D16-2583, Fla. App., 3rd Dist., 2017 Fla. App. LEXIS 12834).



Panel Says Trial Court Erred In Striking Expert Testimony In Water, Mold Damage Suit
BATON ROUGE, La. - A trial court erred in granting an insurer's motion for summary judgment in a dispute over coverage for water and mold damage because the expert testimony proffered by the insureds was improperly excluded by the trial court, the First Circuit Louisiana Court of Appeal said Sept. 8 (Melvin and Anjeanette Adolph v. Lighthouse Property Insurance Corp., No. 2016 CA 1275, La. App., 1st Cir., 2017 La. App. LEXIS 1597).



Insurer Seeks To Exclude Expert Testimony From Reinsurer's Former Employee
UTICA, N.Y. - In a dispute over an underlying $325 million settlement of asbestos claims, an insurer argues in a Sept. 1 motion that a New York federal judge should exclude testimony from a reinsurer's former employee because he has no personal involvement in the contracts (Utica Mutual Insurance Co. v. Fireman's Fund Insurance Co., No. 09-cv-00853, N.D. N.Y.).