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LexisNexis® Mealey's™ Daubert Legal News
Headline Daubert Legal News from LexisNexis®
Florida High Court Rejects Daubert Issue But Vacates Death Sentence On Other Law
TALLAHASSEE, Fla. - Although the Florida Supreme Court on March 9 rejected a convicted man's argument that his death sentence is unconstitutionally arbitrary as a result of the Florida Legislature's adoption of the standard in Daubert v. Merrell Dow Pharmaceuticals Inc., it vacated the death sentence based on other case law and remanded for a new penalty phase (Charles L. Anderson v. State of Florida, No. SC12-1252, Charles L. Anderson v. Julie L. Jones, et al., No. SC14-881, Fla. Sup.; 2017 Fla. LEXIS 508).
Connecticut High Court: Error In Admission Of Police Testimony Was Harmless
HARTFORD, Conn. - Although a trial court improperly allowed a police officer to present certain testimony regarding cellphone records and maps without qualifying him as an expert, the Connecticut Supreme Court ruled April 11 that the error was harmless and, thus, affirmed a man's conviction for home invasion, robbery, larceny and assault of an elderly person (State of Connecticut v. Eugene Edwards Jr., No. SC 19735, Conn. Sup., 2017 Conn. LEXIS 80).
No Error In Admission Of Testimony On Firearm Parts Sold, 11th Circuit Finds
ATLANTA - A trial court did not err in allowing testimony that firearm parts sold by a police officer were of the same type as firearms listed on a police department's property destruction logs, the 11th Circuit U.S. Court of Appeals ruled March 9 (United States of America v. Tammy Lynn Valdes and Rafael Oscar Valdes, No. 14-10252, 11th Cir.; 2017 U.S. App. LEXIS 4142).
Judge Denies Exclusion Of Expert Testimony In Patent Infringement Lawsuit
BOWLING GREEN, Ky. - After refusing to exclude expert testimony from both sides in a patent infringement case involving disposable pants-type diapers, a Kentucky federal judge on April 10 granted and denied in part summary judgment of noninfringement to a baby diaper manufacturer on certain accused products (SCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products LLC, et al., No. 10-00122, W.D. Ky., 2017 U.S. Dist. LEXIS 54167).
Judge: Expert Testimony Is Relevant, Reliable In Weight Loss Drug Trademark Suit
SAN DIEGO - A California federal judge on March 29 allowed rebuttal expert testimony in a trademark lawsuit over the quality of a weight loss supplement because the expert is qualified and her testimony is relevant and based on reliable methods (Obesity Research Institute LLC v. Fiber Research International LLC, et al., No. 15-595, S.D. Calif., 2017 U.S. Dist. LEXIS 46999).
Magistrate Judge Allows Testimony On Claimed Process In Patent Infringement Suit
TYLER, Texas - In a patent infringement lawsuit, an expert may provide opinions "based on his technical knowledge and expertise" as to the technical advantages of a claimed process of forming circuitry used in controlling liquid crystal displays (LCDs), a Texas federal magistrate judge ruled March 22 (Eidos Display LLC and Eidos III LLC v. Chi Mei Innolux Corp., et al., No. 11-00201, E.D. Texas, 2017 U.S. Dist. LEXIS 41040).
Judge Excludes Urologist's Testimony On Inefficacy Of Remedies In Drug Patent Suit
MARSHALL, Texas - Although a urologist's testimony on the inefficacy of natural and herbal remedies was barred in a patent infringement case over a drug's marketing, a Texas federal judge on March 17 allowed the urologist to testify as to the drug's marketing (Erfindergemeinschaft UroPep GbR v. Eli Lilly and Co., No. 15-1202, E.D. Texas, 2017 U.S. Dist. LEXIS 38512).
Judge Rules On Motions To Exclude Testimony In Patent Infringement Suit
SAN DIEGO - In a patent infringement lawsuit, a California federal judge on April 3 addressed several motions to exclude testimony on damages and reasonable royalty with regard to the alleged infringement by wireless companies to a patent relating to a mobile communication system with a moving base station (Carucel Investments L.P. v. Novatel Wireless Inc., et al., No. 16-118, S.D. Calif., 2017 U.S. Dist. LEXIS 50855).
Magistrate Judge Bars In Part Testimony On Terms In Patent Infringement Suit
TYLER, Texas - A Texas federal magistrate judge on April 1 granted and denied in part testimony from a noninfringement expert and an invalidity expert on the constructions of "metal film" and "gate wiring" in a patent infringement lawsuit (Eidos Display LLC and Eidos III LLC v. Chi Mei Innolux Corp., et al., No. 11-00201, E.D. Texas, 2017 U.S. Dist. LEXIS 50167).
Judge Bars Damages Opinion In Insurance Coverage Dispute On Bad Faith, Contract Claims
WACO, Texas - After excluding testimony on damages for failing to determine whether property damage "is cosmetic or functional damage," a Texas federal judge on April 6 granted summary judgment to an insurer on breach of the duty of good faith and fair dealing and statutory claims but denied summary judgment on a breach of contract claim (Stephen Hahn v. United Fire and Casualty Co., No. 15-00218, W.D. Texas, 2017 U.S. Dist. LEXIS 53178).
Judge Rules On Insurer's Duty To Hurricane Sandy Claims Based On Expert Testimony
TRENTON, N.J. - After finding expert testimony on the scope and value of damages incurred by two supermarkets during Hurricane Sandy to be admissible, a New Jersey federal judge on March 28 granted in part and denied in part summary judgment to an insurer (MD Retail Corp. d/b/a Monmouth Beach Supermarket and MS Retail Corp. d/b/a Sea Bright Supermarket v. AmGuard Insurance Group, No. 14-6589, D. N.J., 2017 U.S. Dist. LEXIS 44996).
Expert Allowed To Opine On Compliance Of Insurance Marketing Industry Standards
SAN ANTONIO - An expert is qualified to testify on independent marketing organizations (IMOs) in the insurance industry and regarding an IMO's "compliance or lack of compliance with industry standards," a Texas federal magistrate judge ruled March 24 (Wealthmark Advisors Inc. and David Shields v. Phoenix Life Insurance Co. and PHL Variable Insurance Co., No. 16-00485, W.D. Texas, 2017 U.S. Dist. LEXIS 42978).
Judge Allows Testimony On Cause Of Damages In Bad Faith Suit Against Insurer
CHARLESTON, S.C. - An additional insured may offer layman testimony about the cause of damages or cost of repairs at a condominium association for purposes of its bad faith lawsuit against an insurer, a South Carolina federal judge ruled April 6 (UFP Eastern Division Inc. f/k/a Universal Forest Products Eastern Division Inc. v. Selective Insurance Company of South Carolina, No. 15-2801, D. S.C., 2017 U.S. Dist. LEXIS 53190).
Federal Judge Bars Expert Testimony On Some Repair Costs For Insureds' Damages
TULSA, Okla. - An Oklahoma federal judge on March 14 excluded testimony from an expert on estimates to repair a master control center (MCC) and electrical costs as a result of insureds' damages caused by a contractor and subcontractor's inadequate design and installation of the concrete columns but allowed other estimates to be admitted (Lexington Insurance Co., et al. v. Newbern Fabricating Inc. and Baucom Concrete Construction Inc. & Newbern Fabricating Inc. v. Doveland Engineering Co., No. 14-0610, N.D. Okla.; 2017 U.S. Dist. LEXIS 36133).
Panel Upholds Breach Of Contract Award, Reverses Bad Faith Awards Against Insurer
BEAUMONT, Texas - A Texas appeals panel on March 9 affirmed a jury's $15,000 award for breach of contract damages but reversed the jury's $20,000 award of actual damages that resulted from an insurer's alleged unfair settlement practices and the jury's award of additional damages of $60,000 that resulted from the finding that the insurer knowingly engaged in unfair settlement practices, rendering judgment that an insured take nothing as to the claims (State Farm Lloyds v. Dennis Webb, No. 09-15-00408-CV, Texas App., 9th Dist.; 2017 Tex. App. LEXIS 1997).
Expert Opinions Allowed In Putative Products Liability Class Action Against Volvo
TRENTON, N.J. - In a putative class action against Volvo Cars of North America LLC for defects in sunroofs, a New Jersey federal judge on April 3 refused to dismiss three experts' opinions with regard to issues of damages and the cause of the damages (Joanne Neale, et al. v. Volvo Cars of North America LLC, et al., No. 10-4407, D. N.J., 2017 U.S. Dist. LEXIS 50259).
Without Expert Testimony, Judge Grants Judgment On Product Liability Claims
HARTFORD, Conn. - Finding that a plaintiff's expert is not qualified to testify about "handheld circular saw safety, the efficacy or necessity of riving knives on such products, or the sufficiency of warning labels" to support design defect and failure-to-warn claims, a Connecticut federal judge on March 20 granted summary judgment to the manufacturer of a circular saw (Eustathios Karavitis v. Makita U.S.A. Inc., No. 14-00913, D. Conn., 2017 U.S. Dist. LEXIS 39830).
Judge: Plaintiffs' Negligence, Products Liability Claims Fail Without Expert Testimony
MILWAUKEE - Excluding expert testimony on the cause and origin of a fire, a Wisconsin federal judge ruled March 21 that plaintiffs cannot prevail on their claims of strict products liability or negligence because "without competent expert testimony, the jury would be forced to speculate about the cause of the fire" (S.V. Gopalratnam and Hemalatha Gopalratnam, et al. v. Hewlett Packard Co. and ABC Insurance Co. v. Samsung SDI Co. Ltd. and Dynapack Technology Corp., No. 13-618, E.D. Wis., 2017 U.S. Dist. LEXIS 40386).
Judge Bars Testimony As Unreliable, Denies Judgment On Failure-To-Warn Claim
TRENTON, N.J. - Finding an expert's testimony on the placement of a warning label on a watercraft unreliable, a New Jersey federal judge on March 31 ruled that summary judgment is still not appropriate on a failure-to-warn claim because there is a genuine dispute of material fact as to whether the two existing warnings on the watercraft were adequate (Angela Ruggiero v. Yamaha Motor Corporation U.S.A., No. 15-49, D. N.J., 2017 U.S. Dist. LEXIS 48908).
Oklahoma Federal Judge Bars Pilot's Testimony In Products Liability Lawsuit
TULSA, Okla. - Rendering moot a federal magistrate judge's report and recommendation that a pilot's expert testimony in an aviation negligence and products liability lawsuit should be partially excluded under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), an Oklahoma federal judge ruled March 14 that the entire testimony should be excluded for the pilot's failure to prepare the report himself (James Rodgers, et al. v. Beechcraft Corp. f/k/a Hawker Beechcraft Corp., et al., No. 15-0129, N.D. Okla., 2017 U.S. Dist. LEXIS 36131).
Judge Allows Testimony From Mechanical Engineer, Accident Reconstructionist, Metallurgist
EAST ST. LOUIS, Ill. - In a products liability suit, an Illinois federal judge on March 31 permitted expert testimony from a metallurgist, a hunting accident reconstructionist and a mechanical engineer because they offered credible opinions based on reliable methodology (Jordan Queen v. W.I.C. Inc. d/b/a Sniper Treestands, No. 14-519, S.D. Ill., 2017 U.S. Dist. LEXIS 49506).
Panel: No Error In Admission Of Doctor's Testimony On Treatment After Collision
TYLER, Texas - A judge did not err in allowing a physician's testimony that a woman involved in a car accident needed "neurotomies, stem cell injections, and topical cream," a Texas appeals panel held March 15, because it was reliable under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) (Jeremy Oney and Horizon Cable Service Inc. v. William Crist and Heather Crist, No. 12-16-00045-CV, Texas App., 12th Dist.; 2017 Tex. App. LEXIS 2216).
Judgment Denied In FELA Lawsuit Based Upon Admission Of Expert's Testimony
NEW YORK - Finding an expert's testimony on the ergonomics factors of a plaintiff's job in relation to his injuries to be admissible, a New York federal judge on March 24 denied partial summary judgment to a railroad company in a Federal Employers' Liability Act (FELA) lawsuit because it is premised on the exclusion of that testimony (Donovan G. Hewitt v. Metro-North Commuter Railroad, No. 14-8052, S.D. N.Y., 2017 U.S. Dist. LEXIS 43383).
Federal Judge Excludes Engineer's Testimony On Safety In Area At Sea World
SAN DIEGO - A safety engineer and accident reconstruction expert may not testify regarding Sea World LLC's liability relating to the safety of an area at the time of a woman's accident while visiting the park, a California federal judge held March 17 (Eusebia Baltazar v. Sea World Parks Entertainment LLC, No. 15-2893, S.D. Calif., 2017 U.S. Dist. LEXIS 39039).
Judge Declines To Preclude Medical, Liability Testimony In Personal Injury Lawsuit
TULSA, Okla. - An Oklahoma federal judge on March 31 refused to exclude medical and liability expert testimony in a personal injury lawsuit against BNSF Railway Co. because the experts are qualified and they used reliable methodology (Tyler D. Malinski and Paula Smith v. BNSF Railway Co., No. 15-502, N.D. Okla., 2017 U.S. Dist. LEXIS 48962).
Judge Decides Motions To Exclude Causation Testimony In Personal Injury Lawsuit
KANSAS CITY, Kan. - A Kansas federal judge on March 13 granted in part and denied in part motions to exclude expert testimony from both sides involved in a personal injury lawsuit on the issue of causation for injuries a woman allegedly sustained in a vehicle collision (Wendy L. Delgado v. Lyle J. Unruh, et al., No. 14-01262, D. Kan.; 2017 U.S. Dist. LEXIS 35790).
Federal Judge Declines To Bar Testimony On Accident Scenario In Personal Injury Suit
SHREVEPORT, La. - A licensed mechanical and biomedical engineer relied on a sufficient methodology and factual basis to testify in support of proving that an accident scenario "is physically possible," a Louisiana federal judge ruled March 15, declining to exclude the testimony in a personal injury lawsuit against Greyhound Lines Inc. (Yolanda Dennis v. Ernest Collins II, et al., No. 15-2410, W.D. La.; 2017 U.S. Dist. LEXIS 37614).
Expert Testimony Partially Excluded But Fact Issues Exist On Police Indifference
CHICAGO - While partially excluding testimony on an alleged history of indifference by the Chicago Police Department (CPD), an Illinois federal judge ruled March 31 that fact issues remain as to whether the city of Chicago was responsible for a fatal drunken driving accident involving one of its officers (Jose Andres Cazares, as special administrator of the estate of Andrew Cazares, and Fausto T. Manzera, as special administrator of the estate of Fausto A. Manzera, et al. v. Joseph Frugoli, et al., No. 13-5626, N.D. Ill., 2017 U.S. Dist. LEXIS 49938).
Judge Rules On Motions To Exclude Testimony In Putative Class Action
TRENTON, N.J. - A New Jersey federal judge on March 17 decided several motions to exclude testimony in a putative class action against the manufacturer and retailers of a washer that was not energy efficient despite a label on the product (Charlene Dzielak, et al. v. Whirlpool Corp., et al., No. 12-0089, D. N.J., 2017 U.S. Dist. LEXIS 39232).
Judge Bars Damages Opinion On Flooding, Grants Judgment On Classwide Stigma Damages
PENSACOLA, Fla. - Allowing expert testimony on the cause of flooding to neighborhoods but excluding testimony on damages due to an error in methodology, a Florida federal judge on March 25 simultaneously granted homeowners class certification on the issue of liability and granted summary judgment to a paper mill company as to classwide stigma damages (John Navelski, et al. v. International Paper Co., No. 14-445, N.D. Fla., 2017 U.S. Dist. LEXIS 44411).
Judge Bars Testimony In Inmate's Medical Negligence Suit Against Prison Doctors
MACON, Ga. - Medical testimony in support of an incarcerated man's medical negligence claims against prison doctors fails to satisfy Federal Rule of Evidence 702, a Georgia federal judge ruled March 31, noting that a psychiatrist cannot testify "as the be-all-and-end-all global damages expert" and as "a standard of care expert" (William Stoner v. Chiquita A. Fye, M.D., and Norman Howard Fitz-Henley, M.D., No. 15-102, M.D. Ga., 2017 U.S. Dist. LEXIS 48701).
Bayer Tells 2nd Circuit Mirena Experts, 'Admissions' Evidence Properly Excluded
NEW YORK - Bayer HealthCare Pharmaceuticals Inc. on March 8 told the Second Circuit U.S. Court of Appeals that the Mirena multidistrict litigation court did not err in excluding the plaintiffs' three causation expert witnesses and said the plaintiffs' "proof of general causation" is legally inadequate (In Re Mirena IUD Products, Mirena MDL Plaintiffs v. Bayer HealthCare Pharmaceuticals Incorporated, No. 16-3012, 2nd Cir.).
Judge Refuses To Strike Widow's Expert's Testimony On Access To Data
CHICAGO - A federal judge in Illinois overseeing a trial claiming that a former Reed Smith partner's use of the antidepressant Paxil caused him to commit suicide in 2010 on March 20 denied the drug maker's motion to strike portions of testimony from a plaintiff's expert of the amount of data he had access to that purportedly showed that suicidal events were underreported during studies (Wendy Dolin v. SmithKline Beechman Corporation, d/b/a GlaxoSmithKline, No. 12-cv-6403, N.D. Ill.).
Federal Magistrate Judge Refuses To Exclude Real Estate Appraisal Testimony
CHICAGO - An Illinois federal magistrate judge on April 4 declined to bar testimony from real estate appraisers in a dispute over a lease's purchase option between a gasoline retailer and a landlord because excluding either appraisal would upset the current balance (Buchanan Energy [N] LLC v. Lake Bluff Holdings LLC, No. 15-3851, N.D. Ill., 2017 U.S. Dist. LEXIS 51403).
Fluidmaster MDL Judge Denies Class Certification, Limits Experts' Testimony
CHICAGO - The federal judge in Illinois presiding over litigation over allegedly defective connector nuts in plumbing hoses manufactured by Fluidmaster Inc. on March 31 denied certification of a nationwide class and a number of subclasses, finding that they failed to satisfy the requirements of Federal Rule of Civil Procedure 23, and limited the testimony proffered by experts on both sides (In re: Fluidmaster, Inc., Water Connector Components Products Liability Litigation, MDL 2575, No. 14-cv-5696, N.D. Ill., 2017 U.S. Dist. LEXIS 48792).
Stucco Remediation Expert's Methodology Not Reliable, Relevant, Judge Rules
ORLANDO, Fla. - A stucco remediation expert's methodology for calculating the cost to repair homes made by Pulte Home Corp. that have improperly installed stucco is not reliable or relevant, a federal judge in Florida ruled March 10 in granting the builder's motion to exclude the testimony (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla.).
Federal Judge Allows Expert Opinion On Stock Trade In Class Action Securities Suit
COLUMBUS, Ohio - An economic expert may opine as to whether the market in which a company's stock traded was efficient during a class period and whether it is possible to calculate damages on a classwide basis for purposes of liability, an Ohio federal judge ruled March 17 (Alan Willis v. Big Lots Inc., et al., No. 12-0604, S.D. Ohio, 2017 U.S. Dist. LEXIS 38933).
Testimony On Accounting Malpractice Is Reliable, Federal Judge Concludes
MINNEAPOLIS - A causation and liability expert "provides a meaningful summary of his accounting malpractice opinion," a Minnesota federal judge held March 28, also granting in part summary judgment to accounting firms to preclude recovery as to damages related to certain penalties, payment for delinquent taxes and attorney fees (Boris A. Miksic v. Boeckermann Graftsrom Mayer LLC, et al., No. 15-539, D. Minn., 2017 U.S. Dist. LEXIS 46906).
Federal Judge Says Expert Testimony Is Permitted In Racial Discrimination Suit
CHICAGO - Expert testimony on sociological and statistical analysis is allowed in a racial discrimination lawsuit between an employer and its former employees to discuss whether minority employees received disparate treatment, an Illinois federal judge held March 24, finding that the testimony meets the standards set forth in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) (Kenneth Martin, et al. v. F.E. Moran Inc. and Fire Protection of Northern Illinois, No. 13-03526, N.D. Ill., 2017 U.S. Dist. LEXIS 42974).
Town's PCB Claim Against Monsanto Fails, Judge Says; Expert Exclusions 'Moot'
BOSTON - A federal judge in Massachusetts on April 7 granted a motion for summary judgment dismissal of claims for breach of warranty brought by a town against Monsanto and its affiliates related to polychlorinated biphenyls (PCBs) in a school building on grounds that the town failed to show that an alternate design was feasible. As a result of that dismissal, the judge ruled that motions to exclude expert witness testimony were "moot" (Town of Westport v. Monsanto Company, No. 14-12041, D. Mass.; 2017 U.S. Dist. LEXIS 53815).
Court: Causation Opinion Admissible, Punitives OK In $6.5M Asbestos Verdict
FRESNO, Calif. - A judge properly admitted expert testimony that every identifiable exposure to asbestos contributes to mesothelioma, a California appeals court held March 17, while also rejecting challenges involving tobacco use and an award of punitive damages (Charity Faith Phillips, et al. v. Honeywell International Inc., No. F070761, Calif. App., 5th Dist.).
Court Rejects Mandamus Challenge To Texas Asbestos MDL Expert Ruling
DALLAS - Two asbestos defendants have not shown that a traditional appeal could not remedy their complaints about a judge's ruling regarding the admissibility and sufficiency of experts, a Texas appeals court held March 2 in denying a petition for writ of mandamus (In re Exxon Mobil Corp., f/k/a Exxon Corp., SeaRiver Maritime Inc. and SeaRiver Maritime Financial Holdings Inc., et al., No. 14-17-00133-CV, Texas App., 14th Dist.).
Judge: Expert's Report Satisfactory, But Must Limit Opinion To General Causation
NEW ORLEANS - An expert's conclusion that six defendants' products couldn't have caused a man's mesothelioma impermissibly leaps to specific causation from his general causation opinion regarding chrysotile asbestos' role in the disease, a federal judge in Louisiana held March 6 (William C. Bell, et al. v. Foster Wheeler Energy Corp., et al., No. 15-6394, E.D. La., 2017 U.S. Dist. LEXIS 31117).
Judge Nixes Class In Insureds' Suit Claiming Pharmacy Gouged On Generic Drugs
SAN FRANCISCO - The variety of contracts at issue and evidence that at least some of the contracted pharmacy benefit managers (PBMs) understood that a pharmacy's usual and customary rate did not include the rate offered for generic drugs in its membership program defeat a motion for class certification of insured purchasers of generic drugs, a federal judge in California held March 21 (Christopher Corcoran, et al. v. CVS Health, et al., No. 15-3504, N.D. Calif., 2017 U.S. Dist. LEXIS 40783).
U.S. Supreme Court Denies Review Of Testimony On Wiretapped Conversations
WASHINGTON, D.C. - The U.S. Supreme Court on Feb. 21 denied review of a convicted drug dealer's petition on whether inadmissible layperson testimony was presented from an investigating officer on his own interpretations of language contained in wiretapped telephone conversations (Clarence Williamson Jr. v. United States of America, No. 16-882, U.S. Sup.).
West Virginia High Court: Cell Data Testimony Was Allowed In Error But Not Harmful
CHARLESTON, W.Va. - Although a police officer improperly testified as a lay witness regarding historical cell site data to support a conviction against a woman for felony murder and conspiracy to commit robbery, the West Virginia Supreme Court of Appeals held March 2 that the testimony did not create a prejudicial impact on the jury's finding (State of West Virginia v. Tulsa Johnson, No. 16-0265, W.Va. Sup.; 2017 W. Va. LEXIS 120).
Retrograde Extrapolation Testimony Fails Daubert's 'Fit' Test, Appeals Panel Says
RALEIGH, N.C. - Although a police officer's retrograde extrapolation testimony failed to satisfy the "fit" test under Daubert v. Merrell Dow Pharmaceuticals Inc. by not being properly tied to the facts, a North Carolina appeals panel on March 7 found no prejudicial error because there was sufficient evidence that a woman was "appreciably impaired" (State of North Carolina v. Lori Lee Babich, No. COA16-762, N.C. App.; 2017 N.C. App. LEXIS 133).
Panel Finds No Error In Admission Of Medical Examiner's Testimony
CORPUS CHRISTI, Texas - Finding no error in the admission of a medical examiner's testimony based on reliable evidence, a Texas appeals panel on Feb. 9 affirmed a woman's conviction for injury to a child causing bodily injury (Smita Chakravarthy v. The State of Texas, No. 13-14-00086-CR, Texas App., 13th Dist., 2017 Tex. App. LEXIS 1114).
Court Affirms Injury To Child Conviction, Finds Testimony On Head Trauma Reliable
AUSTIN, Texas - Expert testimony from three medical doctors on the subject of abusive head trauma was reliable, the Texas Court of Criminal Appeals ruled Feb. 15, upholding a woman's conviction in a bench trial for first-degree-felony injury to a child after an infant under her care sustained serious internal head injuries (Jennifer Banner Wolfe v. The States of Texas, No. PD-0292-15, Texas App., Crim., 2017 Tex. Crim. App. LEXIS 215).
8th Circuit Affirms Daubert, Evidence Suppression Rulings In Child Porn Case
OMAHA, Neb. - A trial court properly found that a procedural notice error in the application of a warrant that led to a child pornography conviction did not prejudice the defendant, an Eighth Circuit U.S. Court of Appeals panel ruled Feb. 17, upholding the denial of the defendant's motion to suppress evidence obtained via the warrant (United States of America v. Kirk Cottom, No. 16-1050, 8th Cir., 2017 U.S. App. LEXIS 2789).
Panel Affirms Conviction For Cocaine Possession, Finds Lack Of Objection To Testimony
TOPEKA Kan. - Affirming a man's conviction for possession of cocaine, the Kansas Court of Appeals ruled Feb. 10 that the man failed to timely object at trial to the admission of expert testimony and a lab report that both established that the white powdery substance discovered in his wallet was cocaine (State of Kansas v. Oscar C. Rodriguez-Mendez, No. No. 114,985, Kan. App., 2017 Kan. App. Unpub. LEXIS 82).
Judge Partially Bars Police Captain's Testimony In Constitutional Rights Suit
CHARLESTON, S.C. - In a married couple's lawsuit alleging violation of their constitutional rights by a police officer during a traffic stop, a South Carolina federal judge on March 2 excluded in part testimony from a police captain who is also an attorney that served to bolster the credibility of the police officer (Jerome C. Newkirk Sr. v. James B. Enzor, individually and as an officer of the South Carolina Highway Patrol, and the South Carolina Department of Public Safety, No. 13-1634, Catherine B. Newkirk v. James B. Enzor, individually and as an officer of the South Carolina Highway Patrol, and the South Carolina Department of Public Safety, No. 13-1635, D. S.C., 2017 U.S. Dist. LEXIS 29333).
Judge Restricts Expert From Testifying On Legal Conclusion To Detective's Probable Cause
TAMPA, Fla. - An expert may testify as to his knowledge of police procedures and investigative techniques and whether they were followed by a detective in his mortgage fraud investigation of a married couple, a Florida federal judge ruled Feb. 16; however, the expert may not testify as to the ultimate legal conclusion of whether probable cause existed (Ricky Shew and Frances Shew v. William Horvath, No. 16-766, M.D. Fla., 2017 U.S. Dist. LEXIS 21748).
Judge Finds Fact Issue On Police Officer's Liability With Admission Of Expert Opinions
MADISON, Wis. - Based on admitted opinions from police practices experts and forensic pathology experts, a Wisconsin federal judge ruled Feb. 13 that what happened between a police officer and a deceased man is "sharply and genuinely disputed" and thus, whether the officer's use of force was objectively unreasonable is an issue that must be resolved at trial (The Estate of Tony Robinson Jr., ex rel. personal representative Andrea Irwin v. The City of Madison, Wis., and Matthew Kenny, No. 15-502, W.D. Wis., 2017 U.S. Dist. LEXIS 20733).
Expert Testimony Supports Burden On Prisoner's Religious Exercise, Magistrate Judge Says
CORPUS CHRISTI, Texas - With the admission of a retired prison official's expert testimony, a Texas federal magistrate judge found March 7 that a prison's grooming policy requiring short hair imposes "a substantial burden" on prisoners' religious exercise (Teddy Norris Davis, et al. v. Lorie Davis, director, TDCJ-CID, No. 12-166, S.D. Texas; 2017 U.S. Dist. LEXIS 31944).
Judge Allows Testimony On Lost Profits, Royalty Damages In Patent, Trademark Suit
SAN JOSE, Calif. - In a patent and trademark infringement dispute between competitors in the fitness and exercise equipment industry, a California federal judge on March 6 refused to exclude expert testimony on lost profits damages and royalty damages (Fitness Anywhere LLC v. WOSS Enterprises LLC, No. 14-01725, N.D. Calif.; 2017 U.S. Dist. LEXIS 31505).
Judge Decides Motions To Exclude Testimony In Patent Infringement Suit
MINNEAPOLIS - A Minnesota federal judge on Feb. 24 decided several motions to exclude expert testimony on damages, lost profit and opinions on claim construction in an infringement lawsuit over patents related to frames and seating positions of snowmobiles (Bombardier Recreational Products Inc. and BRP U.S. Inc. v. Arctic Cat Inc. and Arctic Cat Sales Inc., No. 12-2706, D. Minn.; 2017 U.S. Dist. LEXIS 26517).
Federal Judge Rejects Motorola's Request For Daubert Hearing
MARSHALL, Texas - A Texas federal judge on Feb. 21 partially granted a motion to exclude testimony on damages in a patent infringement case, but found that most of the expert's opinions did not justify exclusion under Daubert v. Merrell Dow Pharms. Inc. before trial (Saint Lawrence Communications LLC v. ZTE Corp., et al., No. 2:15-cv-349, E.D. Texas, 2017 U.S. Dist. LEXIS 23505).
Judge Excludes Expert In Trademark Lawsuit For Lack Of Experience
GREENBELT, Md. - A federal judge in Maryland on Feb. 21 excluded the testimony of an expert in a trademark infringement lawsuit on grounds that his opinions were "non-substantiated proclamations on the ultimate questions of law and he lacked the requisite training education or experience in the relevant field of proffered expertise" (JFJ Toys Inc., et al. v. Sears Holdings Corporation, et al., No. 14-3527, D. Md.).
Insurer's Case On 'Collapse' Issue On Retrial Fails Without Expert Testimony, Judge Says
SEATTLE - Having excluded an insurer's expert testimony in a retrial as inadmissible, a Washington federal judge on March 1 ruled that the insurer cannot establish whether alleged "collapse" conditions observed in 2008 at an insured's condominium complex were present during another insurer's policy periods (Houston General Insurance Co. v. St. Paul Fire & Marine Insurance Co., et al., No. 11-2093, W.D. Wash.; 2017 U.S. Dist. LEXIS 29177).
Judge Rejects Insurer's Request To Exclude Testimony On Sinkholes
TAMPA, Fla. - A Florida federal judge on Feb. 22 denied an insurer's motion to exclude expert testimony on sinkhole damage, finding that the expert's methodology is reliable and that the testimony will assist a trier of fact (Goetz D. Vehse v. Liberty Mutual Fire Insurance Company, No. 8:16-cv-599, M.D. Fla., 2017 U.S. Dist. LEXIS 24483).
Judge Excludes Causation Testimony From Homeowners' Expert On Stucco Installation
ORLANDO, Fla. - A civil engineer's education, experience and expertise in stucco installation was not enough to show that his testimony in support of a proposed class action filed by homeowners against Pulte Home Corp. satisfied the requirements of Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993), a federal judge in Florida ruled March 3 in granting the home builder's motion to exclude (Shaun Gazzara, et al. v. Pulte Home Corporation, No. 16-cv-657-Orl-31TBS, M.D. Fla., 2017 U.S. Dist. LEXIS 30251).
Couple Cannot Pursue Personal Injury Claims From Spray Foam Fumes, Judge Rules
NEW HAVEN, Conn. - A federal judge in Connecticut on Feb. 17 held that a couple could pursue claims that allegedly improper installation of spray polyurethane foam (SPF) insulation in their home resulted in property damage requiring remediation but that they failed to provide causation evidence to show that they suffered respiratory problems after being exposed to volatile organic compound (VOC) vapors from the products (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn., 2017 U.S. Dist. LEXIS 23434).
Federal Judge Allows Expert Testimony From Both Sides In Wrongful Death Lawsuit
NEW BERN, N.C. - Two medical doctors may testify that a decedent suffered a cardiac event before falling from his wheelchair, a North Carolina federal judge held March 1, also allowing an expert for the decedent's side to testify as to the cause of death (Gwendolyn Jackson Pinnix and Warren Ivan Jackson, executors of the estate of David W. Jackson Sr. v. SSC Silver Stream Operating Company LLC, No. 14-00161, E.D. N.C.; 2017 U.S. Dist. LEXIS 28679).
Judge: Expert Testimony Is Reliable For Strict Products Liability Case
SAN ANTONIO - A plaintiff's expert sufficiently relied "upon his engineering background, knowledge of basic principles and inspection of the winch at issue in this case in formulating his testimony," a Texas federal judge ruled March 1, declining to exclude the testimony in a strict products liability lawsuit (Christopher Villegas v. Cequent Performance Products Inc., No. 15-473, W.D. Texas; 2017 U.S. Dist. LEXIS 28597).
Judge Bars Testimony On Education Lead-Generation Industry's Customs, Practices
TAMPA, Fla. - A lawyer is not qualified to opine on the educational lead-generation industry's customs and practices because the lawyer failed to explain why her experience is a sufficient basis for her opinion and how her experience is reliably applied to the facts of a trade secrets and breach of contract case, a Florida federal judge ruled Feb. 13, excluding the testimony (Connectus LLC v. Ampush Media Inc., et al., No. 15-2778, M.D. Fla., 2017 U.S. Dist. LEXIS 19829).
Judge Says Trade Secret Damages Valuation Expert Testimony Will Be Allowed
DETROIT - A federal judge in Michigan on Feb. 13 adopted a special master's recommendation that the testimony of a certain expert should not be excluded from a trade secrets damages suit (MSC.Software Corporation v. Altair Engineering, Inc., et al., No. 07-cv-12807, E.D. Mich., 2017 U.S. Dist. LEXIS 19733).
Judge: Securities Investment Adviser's Opinion On Mortgage Lending Practices Is Barred
RALEIGH, N.C. - Excluding a securities investment adviser's testimony because he is not qualified as an expert on mortgage lending practices and policies, a North Carolina federal judge ruled Feb. 14 that genuine issues of fact exist concerning negligence, breach of fiduciary duty and bad faith claims against a bank to survive summary judgment (Paul B. Hetzel v. JPMorgan Chase Bank, N.A., No. 13-236, E.D. N.C., 2017 U.S. Dist. LEXIS 20293).
Panel Upholds Lanham Act Judgment Without Expert Testimony On Actual Injury
RICHMOND, Va. - Without expert testimony, a seller of internet domain names could not establish the elements of its Lanham Act claim, the Fourth Circuit U.S. Court of Appeals ruled Feb. 8, finding that there was no evidence that the seller suffered an actual injury as a direct result of a competitor's conduct (Verisign Inc. v. XYZ.com LLC and Daniel Negari, No. 15-2526, 4th Cir., 2017 U.S. App. LEXIS 2264).
Judge Refuses To Bar Fire Investigators' Opinions In Strict Products Liability Suit
HOUSTON - In a strict products liability lawsuit, a Texas federal judge on Feb. 7 declined to exclude testimonies from fire investigators because the expert opinions rely on acceptable methodology (Harris Caprock Communications Inc. v. Trippe Manufacturing Co. d/b/a Tripp Lite d/b/a Tripp Lite Holdings Inc., No. 15-0130, S.D. Texas, 2017 U.S. Dist. LEXIS 16857).
Panel: Judge Did Not Perform Gatekeeping Duties On Testimony In Product Liability Suit
RICHMOND, Va. - A judge erred in allowing an electrical engineer's testimony that a Ford Motor Co. vehicle was reasonably unsafe and that alternative designs existed because he did not perform his gatekeeping duties with regard to the testimony, the Fourth Circuit U.S. Court of Appeals ruled Feb. 1, finding that without other expert testimony, a couple cannot prove their product liability case under West Virginia law (Howard E. Nease and Nancy Nease v. Ford Motor Co., No. 15-1950, 4th Cir., 2017 U.S. App. LEXIS 1781).
Oklahoma Federal Judge Bars Testimony In Aviation Products Liability Lawsuit
TULSA, Okla. - In an aviation negligence and products liability lawsuit filed by two passengers, an Oklahoma federal judge on Feb. 3 excluded an electrical expert's opinion as to defects in an alternate landing gear system, as well as to the aircraft flight manual's (AFM) instructions on that alternate landing gear system (James Rodgers, et al. v. Beechcraft Corp. f/k/a Hawker Beechcraft Corp., et al., No. 15-0129, N.D. Okla., 2017 U.S. Dist. LEXIS 15372).
Car Manufacturer Prevails On Negligence Claim As Judge Excludes Causation Testimony
LAS VEGAS - Having excluded an expert's testimony on the cause of a vehicle collision as inadmissible under Daubert v. Merrell Dow Pharmaceuticals Inc., a Nevada federal judge on Jan. 24 granted summary judgment to a car manufacturer on a negligence claim (Marilyn Ellen Prall v. Ford Motor Co., No. 14-001313, D. Nev.; 2017 U.S. Dist. LEXIS 9647).
Judge: Claims Against Drug Manufacturer Fail In Absence Of Reliable Expert Testimony
BRIDGEPORT, Conn. - In the absence of reliable medical expert opinion on specific causation, no reasonable fact finder could come to the conclusion that Paxil, an antidepressant drug, caused a baby's birth defect, a Connecticut federal judge ruled Feb. 1, granting summary judgment to the drug's manufacturer on numerous claims (K.E., a minor by his parent and natural guardian, Nichole El-Massri v. GlaxoSmithKline LLC formerly SmithKline Beecham Corp. d/b/a GlaxoSmithKline, No. 14-1294, D. Conn., 2017 U.S. Dist. LEXIS 13705).
Judge Excludes Causation Expert Testimony In Reclast Lawsuit Against Novartis
BIRMINGHAM, Ala. - An Alabama federal judge on Jan. 26 excluded causation expert testimony in a medical liability lawsuit against Novartis Pharmaceutical Corp. over its drug, Reclast, finding that the experts did not use a reliable methodology (Ernesteen Jones v. Novartis Pharmaceuticals Corp., No. 13-624, N.D. Ala., 2017 U.S. Dist. LEXIS 10849).
California Appeals Court Affirms Exclusion Of Plaintiff Expert In Nexium Cases
LOS ANGELES - A California appeals panel on Jan. 26 affirmed the exclusion of a plaintiff expert causation witness in a multiplaintiff Nexium bone injury case, saying the trial court properly found the expert was not an epidemiologist and properly granted summary judgment (Joelena Wilson, et al. v. McKesson Corp., et al., No. B266990, Calif. App., 2nd Dist., Div. 3).
Panel Affirms $7.2M Award, Finds No Error In Use Of Damages Expert Testimony
BOSTON - A trial judge did not err in allowing a damages expert's testimony on lost profits following the discovery of a fault in bulk containers used to transport and store a chemical agent for crude oil, the First Circuit U.S. Court of Appeals held Feb. 1, upholding a jury award of $7.2 million in damages to the manufacturer of the bulk container (Packgen v. Berry Plastics Corp. and Covalence Specialty Coatings LLC, No. 16-1348, 1st Cir., 2017 U.S. App. LEXIS 1793).
Magistrate Judge Excludes Liability Expert Testimony, Finds No Foreseeable Harm
BALTIMORE - A liability expert is unqualified to offer opinions on railroad industry safety practices based on his lack of experience, a Maryland federal magistrate judge held Jan. 19, further finding that in the absence of that testimony, an injured employee failed to demonstrate reasonable foreseeability of harm in his employer's liability lawsuit (Lou Montgomery, et al. v. CSX Transportation, et al., No. 14-1520, D. Md.; 2017 U.S. Dist. LEXIS 7299).
Judge Excludes Testimony On Inapplicable OSHA Regulation In Marine Negligence Suit
NEW ORLEANS - In a negligence lawsuit an employee filed against his employer over injuries incurred on a boat, a Louisiana federal judge on Feb. 3 excluded a marine operations and safety expert from testifying about an inapplicable Occupational Safety and Health Administration regulation to determine the standard of care (In the matter of M&M Wirelines & Offshore Services LLC, No. 15-4999, E.D. La., 2017 U.S. Dist. LEXIS 15321).
Federal Judge: Accident Reconstruction Expert's Report Lacks Methodology
NASHVILLE, Tenn. - An insurer's motor vehicle accident investigation and reconstruction expert failed to provide reliable methodology in his report concerning an automobile accident involving its insured, a Tennessee federal judge ruled Jan. 30, excluding the testimony (Will Neal Jr. v. John Fort, No. 15-0425, M.D. Tenn., 2017 U.S. Dist. LEXIS 12411).
Judge Partially Excludes Testimony On Standard Of Care In Personal Injury Suit
JEFFERSON CITY, Mo. - A Missouri federal judge on Jan. 19 granted in part and denied in part motions to bar testimony from a licensed architect and an expert property manager regarding the standard of care two property owners owed to a man prior to his death from injuries related to a fall at their property (John P. Lipp and Stephanie S. Lipp v. Ginger C LLC, et al., No. 15-04257, W.D. Mo.; 2017 U.S. Dist. LEXIS 7415).
6th Circuit Rules No Error In Admission Of Expert Testimony On Victim Recantation
CINCINNATI - Finding no error in the admission of expert testimony on domestic violence and victim recantation, the Sixth Circuit U.S. Court of Appeals on Feb. 3 affirmed the conviction of man for charges related to a sexual assault of his girlfriend who recanted at trial the testimony she gave before a grand jury about an abusive relationship (United States of America v. Lynn Michael LaVictor, No. 15-1580, 6th Cir., 2017 U.S. App. LEXIS 1958).
Panel: No Error In Admission Of Expert Testimony Supporting Blood Test In Man's Conviction
WAUKESHA, Wis. - A trial judge did not err in allowing expert testimony to lay the foundation for the admission of a blood test that helped convict a man for operating a motor vehicle while intoxicated (OWI), the District II Wisconsin Court of Appeals ruled Jan. 25 (State of Wisconsin v. Michael Chough, No. 2016AP406-CR, Wis. App., Dist. 2; 2017 Wisc. App. LEXIS 49).
1st Circuit Upholds Conviction Based On Firearms Expert's Testimony On Illegal Arms
BOSTON - Finding no error in the admission of a firearms expert's testimony related to illegal possession counts, the First Circuit U.S. Court of Appeals on Jan. 20 affirmed the conviction and sentencing of a man for illegal possession of firearms during a crime of violence (United States of America v. Joseph Martinez-Armestica, No. 14-1674, 1st Cir.; 2017 U.S. App. LEXIS 1100).
Panel Upholds Exclusion Of Testimony In Sex Trafficking Case For Lack Of Helpfulness
PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Jan. 26 affirmed the exclusion of expert testimony with regard to background on the culture of sex trafficking because it would not assist in helping a jury determine the guilt as to the offenses charged (United States of America v. Anthony F. D'Ambrosio, et al., No. 16-1844, 3rd Cir.; 2017 U.S. App. LEXIS 1388).
Judge Declines To Bar Expert Testimony In Constitutional Violation Suit Against Officers
FORT WAYNE, Ind. - In deciding a summary judgment motion on constitutional violation and state law claims against a town and police officers, an Indiana federal judge on Jan. 11 refused to exclude expert testimony because it was unnecessary to rule on summary judgment (David Marshall III and LaMisa Marshall v. Town of Merrillville, et al., No. 14-50, N.D. Ind.; 2017 U.S. Dist. LEXIS 3977).
Federal Judge Bars Partial Testimony In Disability Discrimination Lawsuit
DALLAS - In a disability discrimination suit, a Texas federal judge on Jan. 24 excluded an expert's opinion that "audism and phonocentric views may have prevented accommodations" from being made to two women (Equal Employment Opportunity Commission v. S&B Industry Inc. d/b/a Fox Conn S&B, No. 15-0641, N.D. Texas; 2017 U.S. Dist. LEXIS 9259).
Judge Bars Insurance Claims Consultant's Opinions On If Insurer Acted 'Unreasonably'
DENVER - An insurance claims consultant may offer testimony about an auto insurer's industry standards and practices but may not offer legal conclusions about whether the insurer acted "unreasonably" in its claims handling, a Colorado federal judge ruled Feb. 7, granting in part and denying in part the insurer's motion to exclude the expert testimony (Donald O'Sullivan v. Geico Casualty Co., No. 15-1838, D. Colo., 2017 U.S. Dist. LEXIS 17186).
Florida Panel: Court Erred In Allowing Prejudicial, Undisclosed Expert Testimony
DAYTONA BEACH, Fla. - Finding that a lower court erred in permitting a plaintiff to argue and present evidence that a doctor breached her duty of care by providing samples of the antibiotic Levaquin to a patient who later died of meningitis, a Florida appeals panel on Jan. 20 reversed the wrongful death medical malpractice dispute and remanded for a new trial (Doctors Company, et al. v. Nancy Plummer, individually and as personal representative of the estate of William Plummer, and on behalf of B.A.P. and L.J.P., minors, No. 5D15-1963, Fla. App., 5th Dist.).
Holistic Doctor's Expert Unqualified To Testify, Judge Finds
ALBUQUERQUE, N.M. - A federal judge in New Mexico on Jan. 11 granted the federal government's motion to exclude the testimony of an expert designated to discuss the medical necessity of tests administered by a holistic doctor who is accused of fraudulently billing Medicare and other insurers, after finding that the proposed testimony is not relevant and does not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579, 597 ) (United States of America v. Roy Heilbron, No. 15-CR-2030, D. N.M.; 2017 U.S. Dist. LEXIS).
Judge Allows Certified Public Accountant To Testify On Value Of Transferred Assets
MOBILE, Ala. - A certified public accountant may testify as to the value of assets and liabilities of a husband and wife at the time of their transfers and the value of the assets when they were transferred, an Alabama federal judge ruled Jan. 19 (SE Property Holdings LLC v. Tammy T. Center, et al., No. 15-0033, S.D. Ala.; 2017 U.S. Dist. LEXIS 7224).
Judge Orders New Deposition, Imposes Fees And Costs In Asbestos Witness Dispute
NEW ORLEANS - Producing an unprepared corporate witness who failed to answer almost 100 noticed matters despite months of preparation time was akin to offering no witness at all, a federal judge in Louisiana held Jan. 31 in ordering a new deposition and imposing costs and fees (Martha Denmon Storer, et al. v. Crown Cork & Seal Co., et al., No. 14-2488, W.D. La., 2017 U.S. Dist. LEXIS 13349).
Judge: Report 'Sufficiently Reliable' As Evidence In Tainted Groundwater Case
CHICAGO - A federal judge in Illinois on Jan. 25 ruled that an expert opinion provided by a village that sued two companies alleging groundwater contamination from vinyl chloride that leaked into the water system was "sufficiently reliable," and he refused to exclude it from evidence (Village of Sauk Village v. Roadway Express Inc., et al., No. 15-9183, N.D. Ill.; 2017 U.S. Dist. LEXIS 10478).
Judge: Expert May Testify, But Written Reports Not Allowed As Evidence
SHELBY, N.C. - A North Carolina judge on Dec. 16 partially granted and partially denied a motion to exclude an expert economic witness in a trade secret misappropriation case, ruling that the expert could testify but that the admissibility of his written reports "shall be limited" (Safety Test & Equipment Company Inc. v. American Safety Utility Corporation, et al., No. 13-CVS-1037, N.C. Super., Cleveland Co.; 2016 NCBC LEXIS 100).
Couple: Expert's Supplemental Report Clarified Remediation Plan, Costs
NEW HAVEN, Conn. - A couple who claims that they suffered physical injuries and property damage as a result of spray polyurethane foam (SPF) insulation in their home say in a brief filed Feb. 1 in Connecticut federal court that a supplemental report submitted by one of their experts should not be stricken from the record because it contains new information about the remediation plan for their home that was added to the report to clarify any ambiguities (Richard Beyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).