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Preview: LexisNexis® Mealey's™ Daubert Legal News

LexisNexis® Mealey's™ Daubert Legal News



Headline Daubert Legal News from LexisNexis®



 



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



Federal Judge Bars Opinion On Policies, Practices For Cleaning Spills At Airport
SEATTLE - In a slip-and-fall case, an expert may testify as to the nature of an airport's floors when they become wet but cannot testify about the policies and practices for detecting and cleaning up spills, a Washington federal judge ruled Dec. 2 (Evelyne Suzanne Sudre, et al. v. The Port of Seattle, et al., No. 15-0928, W.D. Wash.; 2016 U.S. Dist. LEXIS 166882).



Federal Judge Bars Expert's Alternative Design Theory In Personal Injury Lawsuit
FORT WAYNE, Ind. - A licensed professional engineer may testify regarding a man's fall from a ladder and the sufficiency of the warnings and instructions but may not testify regarding a color banding alternative design because he failed to sufficiently substantiate his opinion for this alternative design beyond his conclusion, an Indiana federal judge ruled Dec. 5 (Joseph Costanza v. Vulcan Ladder Co., No. 13-260, N.D. Ind.; 2016 U.S. Dist. LEXIS 167470).



Judge Declines To Bar Medical Testimony On History Of Neck Pain In Auto Negligence Suit
SCRANTON, Pa. - In a negligence lawsuit stemming from an automobile accident, a Pennsylvania federal judge on Dec. 5 declined to exclude medical testimony on a man's history of neck pain and how any exacerbation of the neck would have resolved itself in a matter of months because any disagreement can be addressed through cross-examination (Daniel Broe and Heidi Broe v. Steven Manns, No. 15-985, M.D. Pa.; 2016 U.S. Dist. LEXIS 167593).



Biomechanical Engineer May Testify On Mechanics In Accident, Magistrate Judge Says
CHICAGO - A biomechanical engineer is qualified to testify about the mechanics and movements involved in a vehicle accident, an Illinois federal magistrate judge concluded Nov. 8, refusing to exclude an opinion that there was no mechanism that caused a man's injuries (Carlos R. Pike v. Premier Transportation & Warehousing Inc., et al., No. 13-8835, N.D. Ill.; 2016 U.S. Dist. LEXIS 155280).



Judge: Forensic Engineer's Testimony In Personal Injury Suit Is Unreliable, Inadmissible
MIAMI - A forensic engineer's expert testimony on why a woman fell from a plane's mobile stairway and why an airline should maintain information on the stairway's model is unreliable and inadmissible, a Florida federal judge ruled Nov. 8, excluding the testimony supporting the woman's claims that her injuries were not an accident (Esther Serrano v. American Airlines Inc., No. 15-23382, S.D. Fla.; 2016 U.S. Dist. LEXIS 154826).



Fire Investigator May Opine On Negligent Design In A Toaster, Federal Judge Says
CHICAGO - A fire and explosion investigator may opine that a negligent design in a toaster caused a fire and that it was unreasonable for the manufacturer to design a toaster that "would indefinitely heat food products to the point of combustion as a result of foreseeable failures and blockages" within the toaster, an Illinois federal judge ruled Nov. 16 (David Ostrinsky, as administrator of the estate of Michael Ostrinsky, deceased v. Black & Decker [U.S.] Inc., et al., No. 15-1545, N.D. Ill.; 2016 U.S. Dist. LEXIS 159447).



Judge: Engineer's Alternative Design Testimony Is Unreliable In Product Liability Suit
HATTIESBURG, Miss. - A mechanical engineer's testimony concerning a feasible alternative design is unreliable in a product liability case against Deere & Co. that alleges that a lawnmower rolling over caused a man's injuries and paralysis, a Mississippi federal judge ruled Nov. 8 (Ricky Barnett v. Deere & Co., No. 15-2, S.D. Miss.; 2016 U.S. Dist. LEXIS 154774).



Judge Bars Expert Testimony, Grants Judgment On Fraud, Breach Of Warranty Claims
CLEVELAND - Having excluded an expert's testimony on a pest device based on an unreliable methodology, an Ohio federal judge on Nov. 29 granted summary judgment to the device's manufacturers on fraud and breach of warranty claims in a class action lawsuit (Jeanne Steigerwald, individually and on behalf of all others similarly situated v. BHH LLC, et al., No. 15-741, N.D. Ohio; 2016 U.S. Dist. LEXIS 164308).



Damages Expert Barred From Opining On Certain Damages In Agreement Dispute, Judge Says
NEW YORK - A damages expert is excluded from testifying on a credit card company's damages for additional issuing and acquiring opportunities from a termination of a deal with MasterCard International Inc., a New York federal judge ruled Nov. 29, also granting summary judgment in part to MasterCard on a breach of contract claim (International Cards Company Ltd. v. MasterCard International Inc., No. 13-2576, S.D. N.Y.; 2016 U.S. Dist. LEXIS 165225).



Judge Denies Exclusion Of Expert Testimony In Fraudulent Misrepresentation Lawsuit
HATTIESBURG, Miss. - A Mississippi federal judge on Nov. 30 declined to exclude expert testimony that will help support fraudulent inducement, fraudulent misrepresentation and negligent misrepresentation claims against a window manufacturer and its retail seller (Joan Cravens Inc. and Jason V. Smith v. Deas Construction Inc. d/b/a Deas Millwork Co. and Weather Shield Manufacturing Inc., No. 15-385, S.D. Miss.; 2016 U.S. Dist. LEXIS 165146).



Expert's Report On Bankrupt Company's Transfer Of Assets Creates Fact Issue, Judge Finds
CHICAGO - A valuation expert's estimation of an engineering consulting firm's assets creates a genuine dispute as to whether the firm possessed valuable goodwill that it transferred during bankruptcy to a manufacturing company, an Illinois federal judge ruled Nov. 17, denying summary judgment to the manufacturing company (David Leibowitz, Chapter 7 Trustee of McDonough Associates Inc. v. Bowman International Inc. f/k/a Bowman International LLC and Bowman Consulting Group Ltd., No. 15-3021, N.D. Ill.; 2016 U.S. Dist. LEXIS 159071).



Judge: Nut Butter Company Fails To Allege False Advertising Without Expert Testimony
BIRMINGHAM, Ala. - Excluding testimony on a nut butter manufacturer's loss of sales as unreliable, an Alabama federal judge on Nov. 16 found that the manufacturer failed to establish a connection between its competitor's alleged false advertising and its own decline in sales (Snac Lite LLC d/b/a Naturally More v. Nuts 'N More LLC, No. 14-01695, N.D. Ala.; 2016 U.S. Dist. LEXIS 158328).



Illinois Federal Judge Allows Medical Testimony In Life Insurance Coverage Dispute
PEORIA, Ill. - In a life insurance payment dispute, a medical doctor may testify on behalf of an estate as to the diagnosis and treatment of a man when he arrived at the hospital and his death, an Illinois federal judge ruled Nov. 9 (Jamie Troeger, administrator of the estate of Gayle Mitchell v. Minnesota Life Insurance Co., No. 14-1083, C.D. Ill.; 2016 U.S. Dist. LEXIS 155334).



Judge: Cardiologist's Lack Of Holistic Training Does Not Bar Testimony
ALBUQUERQUE, N.M. - A cardiologist's proposed testimony about the appropriateness of diagnoses and treatment by a doctor accused of health care fraud is reliable and relevant under Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 597 [1993]), a federal judge in New Mexico ruled Dec. 1, finding that the proffered expert's lack of training in holistic medicine does not adversely affect his methodology (United States of America v. Roy Heilbron, No. 15-CR-2030, D. N.M.; 2016 U.S. Dist. LEXIS 166211).



Illinois Federal Judge Partially Bars Expert's Opinions In Patent Infringement Lawsuit
CHICAGO - In a patent infringement lawsuit, an Illinois federal judge on Nov. 28 partially granted in part and denied in part a patent owner's motion to exclude an expert's opinions on whether accused products infringed its patents related to agricultural equipment (Not Dead Yet Manufacturing Inc. d/b/a NDY MFG Inc. v. Pride Solutions LLC and May Wes Manufacturing, No. 13-3418, N.D. Ill.; 2016 U.S. Dist. LEXIS 163756).



Sprint Loses Motions To Bar Damages Experts In Patent Suits Against Comcast, Time Warner
KANSAS CITY, Kan. - A Kansas federal judge on Dec. 5 denied Sprint Communications Co. L.P. its attempts to exclude damages and patent experts in two consolidated patent infringement lawsuits filed against Comcast Cable Communications LLC and Time Warner Cable Inc. (TWC) (Sprint Communications Company LP v. Comcast Cable Communications LLC, et al., No. 11-2684 and Sprint Communications Company LP v. Time Warner Cable Inc., et al., No. 11-2686, D. Kan.; 2016 U.S. Dist. LEXIS 167849).



Judge Excludes Surgeon From Testifying On Standard Of Care In Medical Malpractice Suit
ANCHORAGE, Alaska - In a medical malpractice case, an Alaska federal judge on Dec. 1 excluded a general and colorectal surgeon from testifying about the standard of care a patient received before and following his diagnosis of colon cancer because the surgeon's board certification in surgery does not directly relate to the issue (Galen Swan v. United States of America, No. 15-0012, D. Alaska; 2016 U.S. Dist. LEXIS 166233).



Benicar MDL Judge Denies Plaintiffs Partial Summary Judgment On Causation
CAMDEN, N.J. - The New Jersey federal judge overseeing the Benicar multidistrict litigation on Nov. 9 denied without prejudice a plaintiffs' motion for partial summary judgment, saying that 14 deposition or document excerpts are not defense admissions that the hypertension drug causes sprue-like enteropathy (In Re: Benicar [Olmesartan] Products Liability Litigation, MDL Docket No. 2606, No. 15-2606, D. N.J.; 2016 U.S. Dist. LEXIS 156182).



Man Challenges Asbestos Expert Ruling, Investigation Into Juror In Appeal
CHICAGO - An asbestos defendant's conduct during a trial threatens to open "floodgates" to parties investigating jurors, a man told the Seventh Circuit U.S. Court of Appeals on Nov. 14. Plaintiff Charles Krik also told the court that had a subsequent judge not misapplied a previous ruling, an expert's testimony that cumulative exposures contributed to his development of lung cancer would have tipped the case in his favor (Charles Krik v. ExxonMobil Oil Corp., et al., No. 15-3112, 7th Cir.).



Chevron: Report On Impact Of Oil Rig Explosion Should Not Be Admitted As Evidence
SAN FRANCISCO - Chevron Corp., which was sued by Nigerian residents who contend that they have been injured as a result of an oil rig explosion, on Nov. 4 filed a brief in California federal court arguing that the court should exclude from evidence a research report regarding the impact of the explosion on grounds that it is inadmissible under federal evidentiary rules (Natto Iyela Gbarabe v. Chevron Corporation, No. 14-173, N.D. Calif.).



Summary Judgment For Purina Is Granted In Alleged Toxic Pet Food Case
SAN FRANCISCO - A California federal judge on Nov. 17 granted a summary judgment motion filed by Nestle Purina Petcare Co. and ordered the file closed in a proposed class complaint accusing the pet food maker of using toxic substances in its Beneful brand dog food (Frank Lucido v. Nestle Purina Petcare Co., et al., No. 15-569, N.D. Calif.; 2016 U.S. Dist. LEXIS 159569).



No Error In Admission Of Fingerprint Testimony In Criminal Case, Panel Finds
BOSTON - A trial judge did not err in admitting expert testimony concerning the absence of fingerprints on a gun that a jury found a defendant had possessed, the First Circuit U.S. Court of Appeals held Dec. 1, affirming a man's conviction of being a felon in possession of a firearm (United States of America v. Verissimo Tavares, No. 14-2319, 1st Cir.; 2016 U.S. App. LEXIS 21491).



Medical Examiner's Opinion Shows Death By Gunshots, Texas Appeals Panel Finds
CORPUS CHRISTI, Texas - Expert testimony by a medical examiner showed that a defendant's fired gunshots, along with a victim's genetic medical condition, caused the victim's death, a Texas appeals panel ruled Nov. 17, also holding that accomplice witness testimony corroborated by evidence supported the finding that the defendant committed the alleged offense (Johnny Juarez v. The State of Texas, No. 13-15-00248, Texas App., 13th Dist.; 2016 Tex. App. LEXIS 12299).



Appeals Panel: Objection To Detective's Testimony On Body Language Was Not Preserved
HARTFORD, Conn. - A defendant failed to preserve an argument that a detective's testimony on body language and other behavioral indicators of untruthfulness are not proper subjects for expert testimony, a Connecticut appeals panel held Nov. 15, declining to decide whether the testimony was inherently unreliable (State of Connecticut v. Josue Rivera, No. AC 36979, Conn. App.; 2016 Conn. App. LEXIS 420).



Panel Finds No Error In Admission Of DNA Testing Opinion In Criminal Case
RALEIGH, N.C. - In a criminal case, a trial judge did not err by admitting a DNA analyst's expert opinion concerning DNA profiling from a DNA sample discovered on a concrete slab in a defendant's apartment because the foundation for the opinion satisfied the requirements under North Carolina Rule of Evidence 702, a North Carolina appeals panel held Nov. 15 (State of North Carolina v. Lawrence Donell Flood Sr., No. COA16-252, N.C. App.; 2016 N.C. App. LEXIS 1121).



District Of Columbia Appeals Court Adopts Rule 702 For Expert Testimony Admissibility Test
WASHINGTON, D.C. - The District of Columbia Court of Appeals on Oct. 20 adopted the standards embodied in Federal Rule of Evidence 702 over its previous use of the test set forth in Dyas v. United States (376 A.2d 827 [D.C. 1977]) and Frye v. United States (293 F. 1013 [D.C. Cir. 1923]) to govern the admissibility of expert testimony (Motorola Inc., et al. v. Michael Patrick Murray, et al., No. 14-1350, D.C. App.; 2016 D.C. App. LEXIS 382).



3rd Circuit Finds No Error In Allowing Expert Testimony In Breach Of Agreement Suit
PHILADELPHIA - In a breach of a lease agreement lawsuit between a class of landowners and an exploration production company, the Third Circuit U.S. Court of Appeals ruled Oct. 24 that a trial judge did not abuse his discretion in refusing to reconsider allowing an expert to testify that natural gas sold to third-party buyers was made before any interstate transportation (David F. Pollock, as executor of the estate of Margaret F. Pollock, et al. v. Energy Corporation of America, Nos. 15-2648 & 15-2649, 3rd Cir.; 2016 U.S. App. LEXIS 19167).



Judge Allows Testimony On Leasing Logistics Of Rail Cars In Breach Of Contract Suit
HOUSTON - In a breach of contract lawsuit, an employee of a supply, trading and logistics company may testify as to the company's efforts "to lease, mobilize and manage the logistics of providing rail cars to a terminal," a Texas federal judge ruled Oct. 18, finding that the employee's experience and education qualify him as an expert (Musket Corp. v. Suncor Energy [U.S.A.] Marketing Inc., No. 15-100, S.D. Texas; 2016 U.S. Dist. LEXIS 143881).



Georgia High Court: Error In Admission Of Testimony In Medical Liability Suit
ATLANTA - An appeals court erred in holding that deposition testimony of an organizational representative taken under Official Code of Georgia Annotated (OCGA) Section 9-11-30 (b) (6) may be admitted into evidence at trial under OCGA Section 9-11-32 (a) (2) without regard to the rules of evidence governing admissibility of expert testimony, the Georgia Supreme Court ruled Oct. 31 (Dr. Patricia Yugueros v. Rudy Robles, No. S16G0619, Ga. Sup.; 2016 Ga. LEXIS 709).



Judge Declines To Exclude Treating Physician Testimony In Medical Malpractice Suit
SAN JUAN, Puerto Rico - In a medical malpractice lawsuit, a Puerto Rico federal judge on Oct. 19 refused to exclude a treating physician's testimony because it is relevant to establish the causal nexus between a man's prior treatment and his alleged injury (Martin Torres-Rivera v. Centro Medico Del Turabo Inc., et al., No. 13-1747, D. Puerto Rico; 2016 U.S. Dist. LEXIS 145129).



Magistrate Judge Precludes Expert Opinions On Damages In Medical Malpractice Suit
NEW YORK - A neurologist, a psychologist, an economist and a school principal may not testify as to damages from the loss of the role of an orthodox, Hasidic mother, a New York federal magistrate judge ruled Oct. 20, but he allowed the psychologist and economist to testify about the loss of household services that was experienced as a result of the mother's death (Arnold Hersko, individually and as administrator of the estates of Rochel Hersko and Arnold Hersko v. United States of America, et al., No. 13-CV-3255, S.D. N.Y.; 2016 U.S. Dist. LEXIS 145552).



Judge: Expert May Testify On Wal-Mart Store's Conditions In Personal Injury Lawsuit
ALBUQUERQUE, N.M. - A hazard analysis expert may testify as to whether the conditions present at a store created a dangerous situation, a New Mexico federal judge ruled Nov. 4, also denying summary judgment to Wal-Mart Stores East L.P. because there is sufficient evidence to create a genuine issue of material fact as to the company's alleged breach of duty (Patricia Cabrera v. Wal-Mart Stores East L.P., No. 15-597, D. N.M.; 2016 U.S. Dist. LEXIS 153664).



Federal Judge Allows Liability Expert Testimony On Safety Of Driveway, Need Of Repairs
JEFFERSON CITY, Mo. - A liability expert may testify on the reasonable safety of a driveway and whether it needed repairs, a Missouri federal judge ruled Nov. 3, also denying summary judgment to the property owners because fact issues exist as to whether they should have discovered the dangerous condition (Amy Fontaine and Todd Fontaine v. Columbia Properties Ozarks Ltd., et al., No. 15-04213, W.D. Mo.; 2016 U.S. Dist. LEXIS 152343).



Judge Allows Mechanical Engineer To Testify On Defects In Lawn Mower
BOSTON - A mechanical engineer may testify as to the defects in a lawn mower and the causation of a man's injuries while a doctor of bio-mechanics may testify as to the timing of the accident, a Massachusetts federal judge held Oct. 17 (Anthony Provanzano v. MTD Products Co. and Lowe's Home Centers LLC, No. 15-11720, D. Mass.; 2016 U.S. Dist. LEXIS 143402).



5th Circuit Affirms Defense Summary Judgment In Medical Negligence Case
NEW ORLEANS - A federal court in Texas did not abuse its discretion in excluding the testimony of the plaintiff's expert witness in a medical negligence case, a Fifth Circuit U.S. Court of Appeals panel found Oct. 19, affirming summary judgment for the defendants (Jewel Honey-Love, Individually and as a Representative of the Estate of Larry Lavon Love v. United States of America, et al., No. 16-20080, 5th Cir.; 2016 U.S. App. LEXIS 18829).



Magistrate Judge Bars Opinion On Company's Success In Trademark Infringement Suit
LOUISVILLE, Ky. - In a trademark infringement dispute, an internet marketing expert may not testify on whether a marketing consultant could determine the success of a startup company and whether the registration of a website domain name was "highly unusual and possibly unethical," a Kentucky federal magistrate judge ruled Nov. 4 (Louisville Marketing Inc. d/b/a Jewelry In Candles v. Jewelry Candles LLC v. P. Micah Buse, No. 15-00084, W.D. Ky.; 2016 U.S. Dist. LEXIS 153329).



Judge Partially Bars Expert Opinion On Fitness Brand In Trademark Infringement Suit
HOUSTON - In a trademark infringement lawsuit, an expert may testify on branding in the fitness industry but is not allowed to discuss whether an alleged brand meets various legal definitions related to trademark law, a Texas federal judge ruled Oct. 18, also denying summary judgment to a fitness training company on its fair use defense (Michael Jones v. American Council on Exercise, No. 15-3270, S.D. Texas; 2016 U.S. Dist. LEXIS 143882).



Judge Bars Employee From Testifying On Trademark Confusion In Trade Secrets Suit
PHILADELPHIA - In a misappropriation of trade secrets lawsuit, a company's employee in its marketing department is unqualified due to a lack of technical knowledge to testify on issues such as "branding, trademark confusion, customer reactions, business ethics, or trademark law," a Pennsylvania federal judge ruled Oct. 12, excluding the testimony (Alpha Pro Tech Inc. v. VWR International LLC, No. 12-1615, E.D. Pa.; 2016 U.S. Dist. LEXIS 141030).



Michigan Federal Judge Bars Damages Experts' Opinions In Patent Infringement Suit
DETROIT - In a patent infringement lawsuit concerning car navigational methods, a Michigan federal judge ruled Oct. 14 that damages experts failed to present a reliable methodology for a conjoint study to assist a jury in determining what portion of Garmin International Inc.'s profits could be attributed to the incremental value that the four patented features added to the overall value of the accused devices (Visteon Global Technologies Inc. and Visteon Technologies LLC v. Garmin International Inc., No. 10-10578, E.D. Mich.; 2016 U.S. Dist. LEXIS 142395).



Insurer Tells High Court No Error In Admission Of Expert Testimony
WASHINGTON, D.C. - An insurer argues in an Oct. 17 respondent opposition brief that the U.S. Supreme Court should not consider whether a district court may exclude expert testimony in a fraudulent transfer lawsuit based on flaws in the expert's application of a reliable methodology (Symons International Group Inc., et al. v. Continental Casualty Co., No. 16-220, U.S. Sup.).



Judge: Engineer's Testimony On Cause Of Fire Is Unreliable Due To Lack Of Testing
NEW ORLEANS - An electrical engineer's failure to test his hypothesis for the cause of a fire on a boat, combined with the engineer's failure to obtain the relevant data, renders his methodology unreliable, a Louisiana federal judge ruled Oct. 20, excluding the testimony (Atlantic Specialty Insurance Co. and Nicholas Chad Gonzalez v. Porter Inc. d/b/a Formula Boats, No. 15-570, E.D. La.; 2016 U.S. Dist. LEXIS 145415).



Judge Rules On Motions To Bar Competing Expert Witnesses In Bad Faith Dispute
CHICAGO - An Illinois federal judge on Nov. 2 granted in part dueling motions to bar expert witnesses in a breach of contract and bad faith coverage dispute arising from a $14 million consent judgment entered against an insured (Ray A. Fox, by and through his guardian, Rose Fox v. Admiral Insurance Co., No. 12-8740, N.D. Ill., Eastern Div.; 2016 U.S. Dist. LEXIS 151738).



No Error In Use Of Expert Testimony On Sexual Grooming, Oregon Appeals Panel Finds
SALEM, Ore. - An expert was qualified to present a jury with general testimony about the concept of sexual grooming, an Oregon appeals panel ruled Oct. 26, also finding that the testimony did not constitute scientific evidence requiring a foundation under State v. Brown (297 Or 404, 687 P2d 751 [1984]) and State v. O'Key (321 Or 285, 899 P2d 663 [1995]) (State of Oregon v. Robert Lewis Henley aka Sonny Henley, No. 523, Ore. App.; 2016 Ore. App. LEXIS 1341).



Panel Finds No Error In Use Of Expert Testimony On Retinal Hemorrhages, Abuse
LANSING, Mich. - A defendant failed to show any errors in his counsel's performance with regard to the admission of expert testimony on the connection between retinal hemorrhages in a child as symptoms of alleged abuse, a Michigan appeals panel held Nov. 1 (People of the State of Michigan v. Joshua Quincy Burns, No. 327179, Mich. App.; 2016 Mich. App. LEXIS 2008).



Iowa Appeals Panel Finds No Error In Admission Of Officer's Testimony On Phone Records
DES MOINES, Iowa - A trial judge did not err in allowing an officer to testify as an expert on cellphone records to establish a man's involvement in a burglary of a poker game, an Iowa appeals panel ruled Oct. 26, because the officer had sufficient knowledge and experience (State of Iowa v. Joseph William Rendon, No. 15-1832, Iowa App.; 2016 Iowa App. LEXIS 1114).



No Error In Admission Of Testimony On Forensic Child Interviewing, Panel Rules
LAKE CHARLES, La. - A Louisiana appeals panel on Nov. 2 found no error in the admission of testimony from a woman who interviewed a sexual abuse victim as an expert in forensic child interviewing because the woman had sufficient experience and there was enough independent evidence to support the criminal case (State of Louisiana v. Christopher Lance Washburn, No. 16-335, La. App., 3rd Cir.; 2016 La. App. LEXIS 2040).



10th Circuit Finds No Error In Allowing Sexual Assault Testimony In Criminal Case
DENVER - The 10th Circuit U.S. Court of Appeals on Oct. 24 affirmed that a district court did not abuse its discretion in admitting a certified sexual assault nurse examiner's testimony that a victim's scratching of herself was consistent with sexual assault and domestic abuse victims coping with the trauma they have experienced (United States of America v. Leslie Chapman, Nos. 15-2143 and 15-2173, 10th Cir.; 2016 U.S. App. LEXIS 19217).



Judge Bars Testimony On Human Memory In Criminal Case As 'Unnecessary'
CHICAGO - A defendant charged with providing a minor with a gun used in a crime failed to establish that her expert's testimony on perception and human memory is "necessary for adequate representation," an Illinois federal judge ruled Oct. 20, declining to appoint an expert under the Criminal Justice Act (United States of America v. Vandetta Redwood, No. 16-CR-80, N.D. Ill.; 2016 U.S. Dist. LEXIS 145307).



No Error In Holding Daubert Hearing Without Defendant, 1st Circuit Concludes
BOSTON - A trial judge did not err in continuing in the absence of a defendant a hearing under Daubert v. Merrell Dow Pharms. Inc. (509 U.S. 579 [1993]) to determine whether an arson investigator may testify in a criminal case because there was independent evidence that the fire was deliberately set, the First Circuit U.S. Court of Appeals ruled Oct. 28 (United States of America v. Kormahyah Karmue, No. 15-1990, 1st Cir.; 2016 U.S. App. LEXIS 19475).



Social Worker's Testimony On Sexual Abuse Was Admissible, Judge Finds
GRAND RAPIDS, Mich. - In a habeas corpus action, a man convicted of sex crimes failed to show that the admission of a social worker's expert testimony on the dynamics of sexual abuse and common characteristics was contrary to Daubert v. Merrell-Dow Pharmaceuticals (509 U.S. 579 [1993]), a Michigan federal judge ruled Oct. 17 (Duraid Haithem Fathi v. Bonita Hoffner, No. 13-835, W.D. Mich.; 2016 U.S. Dist. LEXIS 143132).



Federal Judge Finds Use Of Police Policies Does Not Make Testimony Irrelevant
ROANOKE, Va. - Expert testimony is relevant under Federal Rules of Evidence 401 and 402 because the expert's use of police policies was one factor in forming his opinion, a Virginia federal judge ruled Oct. 12, also finding that the testimony should not be excluded under Federal Rule of Evidence 403, provided that the testimony does not equate policy violations with constitutional violations (Michael E. Wyatt v. Johnny Owens, et al., No. 14-00492, W.D. Va.; 2016 U.S. Dist. LEXIS 140878).



Judge Excludes Testimony In Excessive Force Lawsuit Against City, Police Officers
HATTIESBURG, Miss. - In an excessive force lawsuit against a city and its police officers, a Mississippi federal judge excluded on Oct. 18 a police expert's testimony because the opinions consist of legal conclusions based on legal analysis (Sandra Willis, et al. v. City of Hattiesburg, Miss., et al., No. 2:14-CV-89-KS-MTP, S.D. Miss.; 2016 U.S. Dist. LEXIS 144060).



Judge Decides Motions To Exclude Expert Testimony In Employer Negligence Suit
MILWAUKEE - In an employer negligence lawsuit, a Wisconsin federal judge decided Nov. 3 several motions filed by the employer to exclude testimony offered by an ergonomist, an employee's former treating physician and a medical expert to support the employee's case that his diagnosis of osteoarthritis was caused by his work (David Rowley v. Union Pacific Railroad Co., No. 11-46, E.D. Wis.; 2016 U.S. Dist. LEXIS 153391).



Judge Declines To Strike Survey In False Ad Suit Between 2 Pharmaceutical Companies
BOSTON - In a false advertisement lawsuit between two pharmaceutical companies over a bowel prep for colonoscopies, a Massachusetts federal judge on Oct. 14 refused to strike a survey examining whether a "superior cleansing efficacy" advertisement conveys a certain message (Ferring Pharmaceuticals Inc. v. Braintree Laboratories Inc., No. 13-12553, D. Mass.; 2016 U.S. Dist. LEXIS 142636).



Judge Bars In Part Testimony In Land Easement Suit Between Owners, Natural Gas Company
SCRANTON, Pa. - In a land easement dispute, a Pennsylvania federal judge on Oct. 26 granted and denied in part motions to exclude testimony, noting the parties "who know the land and the subject natural gas operations best and who occupy a prime position to appropriately value the contested easements, even if such valuation ultimately requires compromise on both sides" should resolve the dispute rather than a jury (Columbia Gas Transmission LLC v. 101 acres and 41,342 sq. ft more or less in Heidelberg Township, York County, Pa., et al., No. 13-00783; Columbia Gas Transmission LLC v. 1,5561 acres more or less in Heidelberg Township, York County, Pa., et al., No. 13-00785, M.D. Pa.; 2016 U.S. Dist. LEXIS 148053).



Expert May Opine Cement Was Defective In Projects, Magistrate Judge Finds
PORTLAND, Ore. - A concrete manufacturer's expert may testify that a supplier's cement mix performed inadequately when applied at construction projects, an Oregon federal magistrate judge ruled Oct. 27, declining to exclude the testimony (Ross Island Sand & Gravel Co. v. Lehigh Southwest Cement Co., No. 15-01369, D. Ore.; 2016 U.S. Dist. LEXIS 148766).



Judge Bars Expert Opinion On Responsible Care Initiative In Tainted Water Supply Suit
CHARLESTON, W.Va. - Having found that American Chemistry Council's Responsible Care initiative is not an industry standard and does not impose an independent duty of care on a chemical distributor, a West Virginia federal judge on Oct. 13 excluded expert testimony on the initiative from both the distributor and plaintiffs accusing it of contaminating their water supply (Crystal Good, et al. v. American Water Works Company Inc., et al., No. 14-01374, S.D. W.Va.; 2016 U.S. Dist. LEXIS 141865).



Supreme Court Won't Revisit Daubert, Rule 702 Interaction In Denture Cream Case
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 17 denied a petition by 36 denture cream plaintiffs asking the high court to settle what they say is a conflict between the high court's expert testimony ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 [1993]) and Federal Rule of Evidence 702 (Ellenie Steele, et al. v. Proctor & Gamble Distributing LLC, et al., No. 16-338, U.S. Sup.).



9th Circuit Affirms Exclusion Of Nexium Bone Loss General Causation Expert
SAN FRANCISCO - The Ninth Circuit U.S. Court of Appeals on Oct. 27 affirmed summary judgment in the Nexium bone injury multidistrict litigation, agreeing with the MDL court that the plaintiff's sole general causation expert was unreliable (In Re: Nexium Esomeprazole, Susan Orrell, et al. v. AstraZeneca Pharmaceuticals LP, et al., No. 14-56845, In Re: Nexium Esomeprazole, Janice Allen, et al. v. AstraZeneca Pharmaceuticals LP, et al., No. 15-56848, 9th Cir.; 2016 U.S. App. LEXIS 19508).



Expert Out, Judgment Granted In 2nd NexGen Knee MDL Bellwether Case
CHICAGO - The Illinois federal judge overseeing the Zimmer NexGen knee multidistrict litigation on Oct. 21 excluded a plaintiff's sole specific causation expert in the second bellwether trial and granted summary judgment as a result (In Re: Zimmer NexGen Knee Implant Products Liability Litigation, MDL Docket No. 2272, No. 11-5468, Theodore Joas, et al. v. Zimmer, Inc., No. 13-9216, N.D. Ill., Eastern Div.; 2016 U.S. Dist. LEXIS 146008).



West Virginia Mass Tort Panel Excludes Zoloft Expert, Grants Summary Judgment
CHARLESTON, W.Va. - A West Virginia state court mass tort panel on Oct. 5 excluded the specific causation opinion of a plaintiff expert in a Zoloft birth defect case and granted summary judgment for defendant Pfizer Inc. (In Re: Zoloft Litigation, No. 14-C-7000, D.B., et al. v. Pfizer, Inc., No. 12-C-164, W.Va. Cir., Kanawha Co.).



Judge Allows Asbestos Expert's Testimony; Evidence Need Not Be Perfect Fit
NEW ORLEANS - Studies conducted in a more confined environment than the workplace in question are admissible because such evidence need not fit the facts of the case precisely under Daubert, a federal judge in Louisiana held Oct. 11 in largely declining to reject an asbestos expert's testimony (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La.).