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LexisNexis® Mealey's™ Daubert Legal News
Headline Daubert Legal News from LexisNexis®
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.).
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 ) 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 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).
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 ), 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).