Preview: LexisNexis® Mealey's™ Daubert Legal News
LexisNexis® Mealey's™ Daubert Legal News
Headline Daubert Legal News from LexisNexis®
Louisiana Federal Judge Allows Causation Testimony In Workplace Accident Case
NEW ORLEANS - A Louisiana federal judge on Sept. 6 permitted expert testimony on causation of injuries in a workplace accident, as well as economic-loss testimony on the worker's future earning capacity while excluding any testimony on the worker's recent arrest (Steven Granger v. Bisso Marine and Bollinger Shipyards, No. 15-477, E.D. La.; 2016 U.S. Dist. LEXIS 119868).
Expert May Testify Screen On Salt Spreading Device Was Dangerous, Federal Judge Says
BOSTON - An expert may testify that an opening in a screen over a salt spreading mechanism created an unreasonably dangerous condition, a Massachusetts federal judge ruled Sept. 2, also denying summary judgment to the mechanism's manufacturer on a failure to warn claim (Ronald Linhares v. Buyers Products Co., No. 15-11881, D. Mass.; 2016 U.S. Dist. LEXIS 119128).
Neurosurgeon Barred From Opining On Woman's Back Condition, Judge Concludes
PORTLAND, Ore. - A neurosurgeon may not testify in a strict product liability lawsuit that a woman would not have suffered significant injury were it not for her chronic degenerative condition, an Oregon federal judge ruled Aug. 10, barring the opinion that the woman would have become paralyzed at some point in the future as irrelevant (Jeanie Chong v. STL International Inc. and Costco Wholesale Corp., No. 14-244, D. Ore.; 2016 U.S. Dist. LEXIS 105512).
Expert Testimony Fails To Support Atmosphere Of Violence Claim, Panel Finds
JACKSON, Miss. - A woman who suffered injuries during a robbery in a parking lot failed to provide sufficient testimony from a safety and security expert to support an atmosphere-of-violence claim, a Mississippi appeals panel affirmed Aug. 30, noting that an incident of robbery in the previous five years was not enough to put a company on notice of foreseeable danger (Pearlie Wright v. R.M. Smith Investments, L.P., No. 2015-CA-00199-COA, Miss. App.; 2016 Miss. App. LEXIS 566).
Federal Judge Allows Expert Testimony On Delamination Of Pools To Establish Cause
ST. CROIX, Virgin Islands - A pool expert's testimony that application of a waterproofing manufacturer's product caused the delamination in affected pools is relevant for the purpose of establishing causation for the pool surfacing company's damages, a Virgin Islands federal judge ruled Aug. 30 (Poolworks Inc. v. Aquafin Inc., No. 14-0037, D. Virgin Islands; 2016 U.S. Dist. LEXIS 116112).
Panel Upholds Judgment On Lead-Paint Injuries Based On Medical, Economic Loss Testimony
BALTIMORE - Finding no error in the use of testimony from a medical doctor, a vocational counselor and economic loss expert, a Maryland special appeals panel on Sept. 1 affirmed a judgment against an apartment building owner for negligence arising out of a woman's injuries from deteriorating lead paint (Stanley Rochkind v. Starlena Stevenson, No. 418, Md. App.; 2016 Md. App. LEXIS 100).
Widow: U.S. Supreme Court Should Hear Benzene Death Case Due To Circuit Split
WASHINGTON, D.C. - The U.S. Supreme Court on Aug. 24 put on its docket a widow's appeal of an appellate court ruling that affirmed the dismissal of her wrongful death lawsuit against Shell Oil Co. for her husband's alleged exposure to gasoline containing benzene (Yolande Burst v. Shell Oil Company, et al., No. 16-241, U.S. Sup.).
Expert Allowed To Testify On Cause Of Damage To Golf Courses From Ice, Judge Says
DETROIT - An expert for three insured golf courses may testify that the weight of ice killed the turfgrass by prohibiting a gaseous exchange by the turfgrass, leading to anoxia, a Michigan federal judge held Aug. 30, declining to exclude the testimony because the expert provided documentation (Bloomfield Hills Country Club, et al. v. The Travelers Property Casualty Company of America, et al., No. 15-11290, E.D. Mich.; 2016 U.S. Dist. LEXIS 116172).
Judge Bars Partial Testimony On Floodplain Location In Insurance Coverage Dispute
DETROIT - A Michigan federal judge on Aug. 26 excluded partial testimony in an insurance coverage dispute on the remaining issue as to whether an insured's property was located within a 100-year floodplain at the time of its loss (Federal-Mogul Corp. v. Insurance Company of the State of Pennsylvania, No. 12-12005, E.D. Mich.; 2016 U.S. Dist. LEXIS 114573).
Judge Partially Bars Expert's Testimony On Damages In Patent Infringement Lawsuit
SAN FRANCISCO - In a patent infringement lawsuit concerning computer security technology, a damages expert's apportionment methodology is unreliable as it improperly inflates the apportionment base, a California federal judge ruled Aug. 15, partially excluding the testimony (Finjan Inc. v. Sophos Inc., No. 14-01197, N.D. Calif.; 2016 U.S. Dist. LEXIS 107831).
Judge Bars Medicine Specialist From Opining On Link Between Emotional Distress, Medications
KANSAS CITY, Kan. - An internal medicine specialist may not offer testimony on how a woman's emotional distress could be linked to medications she was taking at the time of alleged sexual harassment during her employment at Pittsburg State University (PSU), a Kansas federal judge ruled Aug. 17 (Martha Fox v. Pittsburg State University, No. 14-2606, D. Kan.; 2016 U.S. Dist. LEXIS 109861).
Judge Bars Damages Expert From Testifying On Factors Of Asset Purchase Agreement
CHICAGO - A damages expert may not testify on whether a company would have reduced the value of an asset purchase agreement (APA) had it known about prior credits to alcohol beverage distributors and local marketing funds (LMF), an Illinois federal judge ruled Sept. 6, noting that the statements were speculative and subjective opinions (Luxco Inc. v. Jim Beam Brands Co., No. 14-0349, N.D. Ill.; 2016 U.S. Dist. LEXIS 119615).
Judge Excludes Testimony On Loan Modification Application Process For Failure To Interpret
CONCORD, N.H. - Expert testimony on homeowners' loan modification application with mortgage lenders fails to offer interpretation of process outside of paraphrasing subsections of the Real Estate Settlement and Procedures Act (RESPA), a New Hampshire federal judge ruled Aug. 31, barring the testimony (Jason S. Dionne and Denise C. Dionne v. Federal National Mortgage Association and JPMorgan Chase Bank N.A., No. 15-056, D. N.H.; 2016 U.S. Dist. LEXIS 117352).
Judge Allows Economics Opinion In Price-Fixing Conspiracy Suit Against Egg Industry
PHILADELPHIA - In a price-fixing conspiracy lawsuit against egg producers, an economics expert may opine regarding the existence of a unitary egg industry, a Pennsylvania federal judge ruled Aug. 15, denying the motion to exclude the testimony (In re: Processed Egg Products Antitrust Litigation, No. 08-md-2002, MDL No. 2002, E.D. Pa.; 2016 U.S. Dist. LEXIS 107399).
Panel Upholds Child Abuse Conviction Based On Shaken Baby Syndrome Testimony
TUCSON, Ariz. - There was no error in allowing expert testimony concerning the diagnosis of abusive head trauma, formerly known as shaken baby syndrome, because the diagnosis was reliable, an Arizona appeals panel held Aug. 11, affirming a man's conviction of reckless child abuse that could cause death or serious physical injury (The State of Arizona v. Steven James Brown, No. 2 CA-CR 2015-0154, Ariz. App.; 2016 Ariz. App. Unpub. LEXIS 1032).
Expert's Opinion On Lack Of Suicide Prevention Policy Backed By Evidence, Federal Judge Says
ST. LOUIS - An expert provided sufficient documentation to support his opinion that the St. Louis County, Mo., Justice Department failed to develop and implement an effective suicide prevention policy and effective suicide prevention training and supervision program for correctional officers prior to an inmate's suicide, a Missouri federal judge ruled Aug. 15 (A.H., et al. v. St. Louis County, Mo., et al., No. 14-2069, E.D. Mo.; 2016 U.S. Dist. LEXIS 107487).
Judge Finds Expert's Use Of Discounted Cash Flow Method Valid To Opine On Damages
ORLANDO, Fla. - A financial adviser's discounted cash flow method is appropriate to determine the lost damages in a telecommunications agreement, a Florida federal judge ruled Aug. 24, declining to exclude the adviser's testimony (Local Access LLC and Blitz Telecom Consulting LLC v. Peerless Network Inc. v. Local Access LLC, No. 14-399, M.D. Fla.; 2016 U.S. Dist. LEXIS 112885).
Illinois Federal Judge Allows Expert's Opinion On Sole Cause Of Admiralty Accident
CHICAGO - In an admiralty case, an expert may opine that the sole cause of an incident was a lockmaster's failure to reduce the flow of water through a dam so that a vessel and a tow could safely enter a canal, an Illinois federal judge ruled Aug. 16 (In the matter of the complaint of Ingram Barge Co. as owner of the M/V Dale A. Heller and the IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513, petitioning for exoneration from or limitation of liability, No. 13-3453 c/w In the matter of American Commercial Lines, LLC, as owner and Inland Marine Service, Inc., as owner pro hac vice of the M/V Loyd Murphy for exoneration from or limitation of liability, No. 13-4292, N.D. Ill.; 2016 U.S. Dist. LEXIS 107984).
Google Seeks Summary Judgment, Expert Exclusion In Google Wallet Class Action
SAN JOSE, Calif. - In a pair of reply briefs filed Aug. 10 in California federal court, Google Inc. seeks to support its pending motions for summary judgment in a putative privacy class action over its Google Wallet feature and to exclude the lead plaintiff's expert's testimony on damages (Alice Svenson v. Google Inc., et al., No. 5:13-cv-04080, N.D. Calif.).
Judge Bars ACA Testimony; Jury Awards Defense Verdict In Medical Negligence Case
HARRISBURG, Pa. - A federal jury in Pennsylvania on Aug. 19 found no negligence in a doctor's failure to properly diagnose and treat a woman's herpes zoster virus after a judge ruled that the jury would not hear testimony regarding the potential availability of Patient Protection and Affordable Care Act (ACA) benefits (Tami Bernheisel v. Martin Mikaya, M.D., Memorial Hospital Inc., et al., No. 13-1496, M.D. Pa.).
Ethicon Pelvic Mesh MDL Judge Issues Daubert Rulings For 32 Plaintiff, Defense Experts
CHARLESTON, W.Va. - The West Virginia federal judge overseeing the Ethicon pelvic mesh multidistrict litigation on Aug. 25, 26 and 30 issued 32 mostly split decisions on expert witness challenges raised by both plaintiffs and the defense in Wave I cases (In Re: Ethicon Inc. Pelvic Repair Systems Product Liability Litigation, MDL Docket No. 2327, No. 12-md-2327, S.D. W.Va.; 2016 U.S. Dist. LEXIS 115087).
Zoloft Heart Defect Plaintiffs Tell 3rd Circuit MDL Judge Exceeded Daubert Bounds
PHILADELPHIA - Women who claim that their babies were born with heart defects caused by the antidepressant Zoloft on Aug. 10 told the Third Circuit U.S. Court of Appeals that a federal multidistrict litigation judge erred by ruling that the plaintiffs' causation expert's opinion must be supported by "multiple replicated observational studies showing a statistically significant association between the drug and the disease" (In Re: Zoloft [Sertraline Hydrochloride] Products Liability Litigation, Jennifer Adams v. Wolters Kluwer Health Inc., et al., No. 16-2247, 3rd Cir.).
Panel: No Error In Use Of Testimony On Murder Defendant's Demeanor
RALEIGH, N.C. - A trial judge did not err in allowing the admission of an investigator's testimony concerning a man's demeanor when questioned about a murder, the North Carolina Court of Appeals ruled Aug. 2 (State of North Carolina v. Travis Lamont Daughtridge, No. COA15-1160, N.C. App.; 2016 N.C. App. LEXIS 805).
9th Circuit: No Error In Admission Of Psychiatrist's Testimony On Medical Exam
SAN FRANCISCO - Finding no error in the admission of testimony from a psychiatrist regarding a plaintiff's "exaggerated" answers during a medical exam, the Ninth Circuit U.S. Court of Appeals on July 12 affirmed a verdict in favor of the City of Los Angeles and officers of the Los Angeles Police Department (LAPD) (Ronald Weekley, Jr. v. City of Los Angeles, et al., No. 14-56210, 9th Cir.; 2016 U.S. App. LEXIS 12806).
Federal Judge Allows Detective's Testimony On Drug Deal Code Language
LOS ANGELES - A police detective may testify on interpreting coded language in conversations between an alleged drug dealer and a confidential informant (CI), a California federal judge ruled July 29, refusing to exclude his testimony (United States of America v. Brian Sawyers, No. 15-00070, C.D. Calif.; 2016 U.S. Dist. LEXIS 99688).
No Error In Social Worker's Testimony On Sexual Abuse, Ohio Appeals Panel Finds
CINCINNATI - A social worker was allowed to testify as an expert witness regarding whether children's statements were consistent with sexual abuse, as she was sufficiently qualified for this purpose, an Ohio appeals panel held July 13, affirming a domestic violence civil protection order (DVCPO) against the children's father (Angela Sanchez v. Hugo Sanchez, No. C-150441, Ohio App., 1st Dist.; 2016 Ohio App. LEXIS 2744).
Judge Permits Experts To Opine On Heat Age Testing In Patent Infringement Suit
MINNEAPOLIS - Experts may testify on heat age testing using the "dome" method and opinions relying on certain indirect evidence in a patent infringement lawsuit, a Minnesota federal judge ruled July 22, also denying summary judgment to defendants on claims of noninfringement, invalidity and no lost profits (3M Innovative Properties Co. and 3M Co. v. GDC, Inc. and Monadnock Non-Wovens, LLC, No. 13-1287, D. Minn.; 2016 U.S. Dist. LEXIS 96253).
Judge Allows Damages Testimony In Copyright Infringement Lawsuit
MADISON, Wis. - In a copyright infringement lawsuit, an expert may testify that a software company did not suffer any damages at all, a Wisconsin federal judge ruled July 8 (Epic Systems Corp. v. Attachmate Corp., No. 15-179, W.D. Wis.; 2016 U.S. Dist. LEXIS 88572).
Judge Defers Decision On Excluding Expert Testimony On Lost Wages In Maritime Suit
NEW ORLEANS - A Louisiana federal judge on July 25 deferred ruling on a motion to exclude an expert's calculations of lost wages beyond the statistical average in a general maritime lawsuit following injuries sustained during employment (James A. Miller, et al. v. Marine Spill Response Corp., et al., No. 15-1049, E.D. La.; 2016 U.S. Dist. LEXIS 96669).
Federal Magistrate Judge Excludes Partial Expert Testimony In Admiralty Suit
CHICAGO - In an admiralty case, an Illinois federal magistrate judge on July 14 excluded an expert from testifying that boat captains could have requested that gates again be closed as they were approaching the protection cells (In the matter of the complaint of Ingram Barge Co. as owner of the M/V Dale A. Heller and the IB9525, IN025300, IN085089, IN095041, IN096081, IN107057, and IN117513, petitioning for exoneration from or limitation of liability, No. 13-3453 c/w In the matter of American Commercial Lines, LLC, as owner and Inland Marine Service, Inc., as owner pro hac vice of the M/V Loyd Murphy for exoneration from or limitation of liability, No. 13-4292, N.D. Ill.; 2016 U.S. Dist. LEXIS 91411).
Judge: Treating Physician May Testify On Relationship Between Accident, Surgeries
HATTIESBURG, Miss. - A treating physician is qualified to testify as to the causal relationship between a car accident and a man's subsequent surgeries, a Mississippi federal judge ruled Aug. 3, finding that it does not matter that the physician is unable to decide whether the man's need for surgery was the result of the accident (Kelvin Anderson v. United States of America, No. 15-55, S.D. Miss.; 2016 U.S. Dist. LEXIS 101758).
Trucking Safety Expert May Opine On Company's Power Carrier Program, Judge Says
HARRISBURG, Pa. - In a personal injury lawsuit arising out of an auto collision, a trucking industry safety expert may testify that a trucking company's power carrier program did not act as a freight broker, a Pennsylvania federal judge ruled Aug. 3, finding that the expert qualifies to testify on the Federal Motor Carrier Safety Regulations (FMCSRs) related to brokers of property (Francisco Ramos-Becerra and Louisa Ramos v. Ricky L. Hatfield, et al., No. 14-0917, M.D. Pa.; 2016 U.S. Dist. LEXIS 101579).
Judge Bars Nurse's Opinion Of $3M In Future Health Needs In Wal-Mart Slip-And-Fall Case
LAS VEGAS - A registered nurse may not testify that a woman injured in a slip and fall at a Wal-Mart store will need a life-care plan valued at more than $3 million because the nurse did not consult with the woman's treating physicians, a Nevada federal judge ruled July 29, excluding the testimony (Robbin L. Lologo and Vincent J. Lologo v. Wal-Mart Stores, Inc. and Advantage Sales & Marketing, LLC, No. 13-1493, D. Nev.; 2016 U.S. Dist. LEXIS 100559).
10th Circuit: Causation Testimony Reliable For Insurance Collision Suit
DENVER - A trial court properly allowed expert testimony on causation in an insurance coverage dispute over injuries suffered in an auto collision, the 10th Circuit U.S. Court of Appeals held July 19, affirming that the insured presented evidence that a reasonable jury could find that his claim for benefits was fairly debatable (Donald L. Etherton v. Owners Insurance Co., No. 14-1164, 10th Cir.; 2016 U.S. App. LEXIS 13156).
Police Expert Barred From Testifying On Injuries, Florida Federal Judge Says
MIAMI - A police expert may not testify to the nature and extent of plaintiffs' injuries and on the use of force where plaintiffs were completely under a train car when apprehended by a police dog (K-9), a Florida federal judge ruled July 12 (Humberto Pellegrino and Pedro Claveria v. Gerald Wengert, et al., No. 15-60535, S.D. Fla.; 2016 U.S. Dist. LEXIS 90178).
Judge Allows Expert To Testify In Part On Commercial Premises Safety, Security
AUGUSTA, Ga. - An expert for plaintiffs in a negligence lawsuit is qualified as an expert to testify on most of his opinions concerning commercial premises safety and security, a Georgia federal judge ruled July 8, granting and denying in part a motion to exclude (Tammy Padgett and Joey Padgett v. Kmart Corp. and Colony Mill Enterprises, LLC, No. 15-048, S.D. Ga.; 2016 U.S. Dist. LEXIS 88734).
GM MDL Judge Will Allow Results Of Blood Test In Trial
NEW YORK - The judge overseeing the General Motors ignition switch multidistrict litigation on Aug. 1 partially granted and partially denied motions to exclude filed by the automaker and the plaintiff in the fifth bellwether trial by saying that the automaker will be allowed to present testimony about the results of a blood test that indicates that the plaintiff may have had alcohol in her system when her car crashed (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-0254; Stephanie Cockram v. General Motors LLC, No. 14-CV-8716, S.D. N.Y.).
GM MDL Bellwether Plaintiff Seeks To Exclude Expert Testimony
NEW YORK - The plaintiff in the final bellwether trial in the General Motors ignition switch multidistrict litigation says in an Aug. 2 brief that the automaker should not be able to present expert testimony from a doctor who claims that she was under the influence of drugs when she crashed her car (In Re: General Motors LLC Ignition Switch Litigation, No. 1:14-md-02543, Amy Ladon Norville v. General Motors LLC, No. 14-cv-8176 S.D. N.Y.).
Magistrate Judge Finds Plaintiffs' Expert's Additional Report Was Not Supplemental
NEW HAVEN, Conn. - A federal magistrate judge in Connecticut on July 6 granted defendants' motion to strike the additional report of a doctor who examined a couple who claim that they sustained injuries as a result of exposure to volatile organic compounds (VOCs) emitted by spray polyurethane foam (SPF), finding that the expert's opinions did not supplement his original report (Richard Breyer, et al. v. Anchor Insulation Co. Inc., et al., No. 13 CV 1576, D. Conn.).
Ohio Appeals Panel Majority Says No Error In Admission Of Medical Malpractice Testimony
WARREN, Ohio - A trial court did not err in allowing expert testimony as to causation for an injury to the femoral nerve in a medical malpractice lawsuit, a majority of an Ohio appeals panel ruled July 18 (Jane L. Gordon v. Trumbull Memorial Hospital c/o National Registered Agents, Inc., et al., No. 2015-T-0080, Ohio App., 11th Dist.; 2016 Ohio App. LEXIS 2802).
Judge: Doctors Allowed To Testify On Use Of Medicine In Wrongful Death Suit
LAS VEGAS - Doctors may testify that by not instructing a patient to discontinue Probenecid or nonsteroidal anti-inflammatory drugs (NSAIDs), the government and one of its Veterans Affairs doctors reduced a substantial chance for a more favorable recovery, a Nevada federal judge ruled July 28, denying a request to exclude the testimony in a medical malpractice lawsuit (Rosa Carrion, as surviving spouse and heir of Jose Carrion, deceased v. United States of America and Dr. William Dodge, No. 13-00419, D. Nev.; 2016 U.S. Dist. LEXIS 99519).
Exclusion Of Testimony On Other Causes For Child's Injury Was Error, Panel Says
WAUSAU, Wis. - A trial judge erred in excluding defense experts from testifying that maternal forces of labor caused a child's permanent brachial plexus injury in a lawsuit alleging that a doctor's negligence caused the injury, a Wisconsin appeals panel ruled July 6 (Unity Bayer by her guardian ad litem, Vincent R. Petrucelli, et al. v. Brian D. Dobbins, M.D., et al., No. 2015AP1470, Wis. App., Dist. 3; 2016 Wisc. App. LEXIS 412).
Judge Won't Exclude Tylenol Liver Injury Study From 1st MDL Bellwether Case
PHILADELPHIA - The Pennsylvania federal judge overseeing the Tylenol multidistrict litigation on July 14 denied a defense motion to exclude a key study from the plaintiff's case in the first bellwether trial and excluded testimony by defense experts who criticized the reliability of the study (In Re: Tylenol [Acetaminophen] Marketing, Sales Practices, and Products Liability Litigation, MDL Docket No. 2436, No. 13-md-2436, E.D. Pa. 2016 U.S. Dist. LEXIS 92334).
Mirena IUD Judge Rejects Alternative Causation Claims, Dismisses All 1,377 Cases
WHITE PLAINS, N.Y. - A New York federal judge on July 28 granted summary judgment and dismissed all 1,377 Mirena intrauterine device (IUD) multidistrict litigation cases, saying the plaintiffs cannot prove without an expert that the device can move about the body after insertion and that the plaintiffs cannot rely on lay understanding by jurors or infer admission by defendant Bayer Healthcare Pharmaceuticals Inc. (In Re: Mirena IUD Products Liability Litigation, MDL Docket No. 2434, No. 13-mc-2434, S.D. N.Y.).
Federal Judge Allows Expert Testimony On Project Survey, Alleged Improper Plans
WASHINGTON, D.C. - A federal claims judge on July 21 allowed expert testimony on the topographical survey for a project showing that it was incomplete and that the project plans and specifications were improperly copied from a prior project (Magnus Pacific Corp. v. The United States, No. 13-859 C, Fed. Clms.; 2016 U.S. Claims LEXIS 974).
Judge Permits Testimony On Use Of Scaffolding In Work Negligence Lawsuit
NEW ORLEANS - An expert may testify that a scaffolding should have been erected to provide workers a safe platform to work from as they attempted to catch leaking oil from a pipe, a Louisiana federal judge ruled July 21, finding that he will be in a better position at trial to assess whether the expert in fact reaches improper legal conclusions (Darrel J. Singleton, Jr., et al. v. Fieldwood Energy, LLC, et al., No. 15-5558, E.D. La.; 2016 U.S. Dist. LEXIS 95427).
Art Historian May Testify To Market Value Of Work, Illinois Federal Judge Finds
CHICAGO - An art historian may opine that if a signature were authenticated, the market value for a piece of art would be between $6 million and $8 million, an Illinois federal judge ruled July 21, declining to exclude the historian's testimony (Robert Fletcher and Bartlow Gallery Ltd. v. Peter Doig, No. 13-3270, N.D. Ill.; 2016 U.S. Dist. LEXIS 95081).
Judge Allows Opinions Challenged As Inadmissible 'Every Exposure' Testimony
MIAMI - Expert testimony challenges from both an asbestos plaintiff and a friction defendant confuse the distinction between admissibility and credibility, a federal judge in Florida said July 11 while also declining to take a third look into whether jurisdiction exists over a different defendant (James John Waite Jr. and Sandra Waite v. AII Acquisition Corp., et al., No. 15-62359, S.D. Fla.).
Company Tells 3rd Circuit Dismissal Of Injury Claims Against It Was Proper
PHILADELPHIA - A power company that was sued by a group of Pennsylvania residents who contend that it is liable for their injuries, including cancer, that stem from exposure to radioactive materials filed a brief in the Third Circuit U.S. Court of Appeals on July 15, arguing that it should let stand a lower court's summary judgment ruling in the company's favor because the plaintiffs lack admissible evidence of specific causation (Michelle McMunn, et al. v. Babcock & Wilcox Power Generation Group Inc., No. 15-3506 [consolidated], 3rd Cir.).
Georgia High Court: Real Estate Appraisal Testimony Establishes Nuisance Injuries
ATLANTA - Homeowners presented sufficient real estate appraisal testimony to show that past discomfort and annoyance caused by a nuisance and the diminution in their property's market value constitute two separate injuries, the Georgia Supreme Court ruled June 6, finding that they may recover damages for both their injuries (Toyo Tire North America Manufacturing, Inc. v. Lynn Davis and Duron Davis, No. S15G1804, Ga. Sup.; 2016 Ga. LEXIS 402).
Iowa Supreme Court Finds Bullet Lead Analysis Still Relevant For Murder Case
DES MOINES, Iowa - The Iowa Supreme Court on May 20 upheld a defendant's conviction of first-degree murder in connection with a death, finding that recent scientific developments have not discredited compositional bullet lead analysis (CBLA), which was used in expert testimony (Glendale More Jr. v. State of Iowa, No. 14-1623, Iowa Sup.; 2016 Iowa Sup. LEXIS 60).
W.Va. High Court: Fire Science, Arson Advances Do Not Constitute New Evidence
CHARLESTON, W.Va. - The advancement in fire science and arson investigation over 20 years does not constitute newly discovered evidence, a majority of the West Virginia Supreme Court ruled June 2, upholding a conviction to a man for first-degree murder and arson based upon fire expert testimony (Samuel Anstey v. David Ballard, No. 15-0067, W.Va. Sup.; 2016 W. Va. LEXIS 428).
Panel Upholds Admission Of Cell Phone Mapping Testimony In Murder Case
MILWAUKEE - A judge did not err in allowing an intelligence analyst to give expert testimony about cell phone mapping, a Wisconsin appeals panel ruled June 7, upholding a man's conviction for armed robbery, first-degree intentional homicide, attempted first-degree intentional homicide, bail jumping and possession of a firearm by a felon (State of Wisconsin v. Robert Lavern Cameron, No. 2015AP1088-CR, Wis. App., Dist. 1; 2016 Wisc. App. LEXIS 345).
Appeals Panel Finds Judge Erred In Excluding Polygraph Pretest Interview Videotape
HARTFORD, Conn. - A trial judge improperly barred a polygraph pretest interview videotape, a majority of a Connecticut appeals panel held in an opinion to be released June 14, reversing a murder and capital felony conviction and remanding for a new trial (State of Connecticut v. George Michael Leniart, No. AC 36358, Conn. App.; 2016 Conn. App. LEXIS 259).
Panel: Daubert Does Not Change Rule On Lay Person's Identification Of Marijuana
LAKELAND, Fla. - Because the standard in Daubert v. Merrell Dow Pharm., Inc. (509 U.S. 579 ) regarding the admissibility of expert testimony does not change the long-established rule that lay persons can identify marijuana based on their personal experience and knowledge, a Florida appeals panel on May 25 affirmed a juvenile's conviction for possession of marijuana (R.C. v. State of Florida, No. 2D15-1738, Fla. App., 2nd Dist.; 2016 Fla. App. LEXIS 8107).
Appeals Panel Finds No Error In Admission Of Identity Testimony In Child Porn Case
ATLANTA - A trial court did not err in admitting identification testimony of an investigating officer based solely on his observations of photographs and webcam videos that were unavailable to a jury, a Georgia appeals panel ruled May 26, affirming convictions for three counts of computer or electronic pornography and child exploitation (Phillip Patch v. The State, No. A16A0524, Ga. App., 5th Div.; 2016 Ga. App. LEXIS 302).
6th Circuit Finds No Error In DNA Analyst's Testimony On Identification Process
CINCINNATI - A DNA analyst presented reliable testimony in a criminal lawsuit when he said the process used to identify a defendant as the likely major DNA profile found on three dust masks has no known error rate or accepted procedure for determining an error rate, the Sixth Circuit U.S. Court of Appeals held May 18 (United States of America v. James J. Eastman, No. 14-6459, 6th Cir.; 2016 U.S. App. LEXIS 9290).
No Error In Allowing Sexual Assault Nurse Examiner To Testify, Appeals Panel Affirms
LINCOLN, Neb. - A trial judge did not err in allowing an expert opinion from a sexual assault nurse examiner regarding a victim's alleged bruises into evidence at trial, a Nebraska appeals panel ruled May 17, upholding a conviction of first-degree sexual assault (State of Nebraska v. Dwan D. Harden, No. A-15-536, Neb. App.; 2016 Neb. App. LEXIS 99).
No Error In Use Of DNA Test Results In Rape Case, Wyoming High Court Says
CHEYENNE, Wyo. - A trial judge did not err in allowing DNA test results in a rape and murder case, the Wyoming Supreme Court affirmed May 11, finding that issues of contamination, secondary transfer and whether the police followed adequate collection protocols went to the weight of the evidence and were properly presented to the jury (Lance David Bean v. The State of Wyoming, No. S-15-0177, Wyo. Sup.; 2016 Wyo. LEXIS 52).
Panel Finds No Error In Denying Expert Testimony On Interview Techniques
WAUSAU, Wis. - A defendant was not constitutionally entitled to present his desired expert testimony regarding suggestive interview techniques, and a trial court did not err in excluding it, a Wisconsin appeals panel ruled May 10, also finding that the defendant failed to establish that his expert's testimony constituted relevant evidence (State of Wisconsin v. Daniel L. Schmidt, No. 2015AP457, Wis. App.; 2016 Wisc. App. LEXIS 284).
No Error In Admission Of Gunshot Residue Testimony In Murder Case, Panel Says
TROY, Mich. - A trial court did not err in admitting gunshot residue evidence because the evidence, both of the gunshot residue particles and of the one-component and two-component particles, was reliable, a Michigan appeals panel held May 10 (People of the State of Michigan v. Andy James Brown, No. 323887, Mich. App.; 2016 Mich. App. LEXIS 926).
Magistrate Judge Strikes Expert's Declaration In Product Fraud Lawsuit
MIAMI - A Florida federal magistrate judge on June 2 struck a declaration from an expert in a fraud and negligent misrepresentation lawsuit with regard to diesel engine generator sets (gensets), finding that the supplemental report was untimely (Companhia Energetica Potiguar v. Caterpillar, Inc., et al., No. 14-24277, S.D. Fla.; 2016 U.S. Dist. LEXIS 72102).
5th Circuit Finds Error In Court's Failure To Decide On Expert's Qualifications
NEW ORLEANS - A district court erred in allowing a chiropractor to give expert testimony in a product liability lawsuit without first making a determination about his qualifications, the Fifth Circuit U.S. Court of Appeals held May 16, reversing and remanding a jury's verdict (David Carlson and Betsey Carlson v. Bioremedi Therapeutic Systems, Inc. and Light Emitting Designs, Inc., No. 14-20691, 5th Cir.; 2016 U.S. App. LEXIS 8951).
Judge Bars Expert Testimony On Conveyance Of Safety Warnings In Negligence Suit
PHILADELPHIA - A plaintiffs' expert is precluded from testifying that it was unreasonable for the manufacturer of a motorcycle to rely on its dealers to convey safety warnings, a Pennsylvania federal judge ruled May 12, dismissing in part testimony in a strict liability and negligence lawsuit (Parvez and Razia Yazdani v. BMW of North America, LLC and BMW Motorrad USA, No. 15-01427, E.D. Pa.; 2016 U.S. Dist. LEXIS 63006).
Panel: No Error In Exclusion Of Causation Testimony In Products Liability Suit
WEST PALM BEACH, Fla. - A trial judge did not abuse her discretion in excluding a plaintiff's causation testimony in a products liability lawsuit, a Florida appeals panel affirmed June 1 (Simona Bunin v. Matrixx Initiatives, Inc. f/k/a Gumtech International, Inc., et al., Nos. 4D14-3579 & 4D15-86, Fla. App., 4th Dist.; 2016 Fla. App. LEXIS 8353).
Magistrate Judge Precludes Treating Physicians' Testimony Due To Failure To Disclose
BATON ROUGE, La. - A Louisiana federal magistrate judge on June 2 excluded testimony from plaintiff's treating physicians in a slip-and-fall lawsuit because the plaintiff failed to properly disclose the experts under Federal Rule of Evidence 26(a)(2)(C) (Russia Williams v. Aramark Services, Inc., No. 14-705, M.D. La.; 2016 U.S. Dist. LEXIS 71891).
Georgia Federal Judge Bars Some Evidence In Motor Vehicle Accident Lawsuit
ATLANTA - A Georgia federal judge on May 26 granted in part and denied in part various motions to exclude evidence on medical expenses, insurance coverage and traffic citations in a motor vehicle accident lawsuit (Fedon Mavromatis and Elisabeth Mavromatis v. Duncan Scott Murphy, No. 14-3469, N.D. Ga.; 2016 U.S. Dist. LEXIS 68988).
Federal Judge Limits Marine Liability Expert's Testimony To Opinions In Original Report
NEW ORLEANS - In a negligence lawsuit, a marine liability expert is limited to testifying on opinions raised in an original report, a Louisiana federal judge ruled May 23, finding that the second report is not based on newly discovered evidence (Joseph Walton v. Enterprise Marine Services, LLC, No. 14-2468, E.D. La.; 2016 U.S. Dist. LEXIS 67408).
Judge Excludes Portions Of Police Expert Reports On Reasonableness Of Force
HATTIESBURG, Miss. - A Mississippi federal judge on May 24 excluded portions of defendants' police expert reports speaking to the reasonableness of the force and any testimony relating to such opinions as well as a plaintiff's police expert's report discussing the legality of an arrest and any related testimony (Jordan Chase Borgognoni v. City of Hattiesburg, Mississippi, et al., No. 13-241, S.D. Miss.; 2016 U.S. Dist. LEXIS 67925).
Judge Bars Evidence Of Intoxication In Civil Suit Against Police Officers
BROOKLYN, N.Y. - A New York federal judge on May 23 excluded in part evidence of a plaintiff's intoxication in a civil lawsuit brought against police officers; however, the judge denied the plaintiff's request to preclude evidence of his guilty plea to his traffic violation (Imran Ali v. Police Officer William Connick and Sergeant Donald Kipp, No. 11-5297, E.D. N.Y.; 2016 U.S. Dist. LEXIS 67466).
Federal Magistrate Judge Allows Insurer's Expert To Testify On Cause Of Fire
PHILADELPHIA - An insurance company's expert may testify on the cause of a fire to property, a Pennsylvania federal magistrate judge ruled May 23, finding that although the expert failed to collect some relevant information and perform tests that would have strengthened the opinion's basis, the challenges go to the weight of his opinions (Allstate Insurance Co. v. Rosa-Lee Anderson and Deandre Patterson, No. 15-2651, E.D. Pa.; 2016 U.S. Dist. LEXIS 66481).
Judge Bars Insured's Expert From Testifying On Regulatory Experience In Coverage Suit
ORLANDO, Fla. - An insured's expert may not testify on his regulatory or legislative experience regarding procurement of insurance, a Florida federal judge ruled May 11 (American K-9 Detection Services, Inc. and American K-9 Detection Services LLC v. Rutherford International, Inc. and Sara Payne, No. 14-1988, M.D. Fla.; 2016 U.S. Dist. LEXIS 62279).
8th Circuit: Exclusion Of Evidence Did Not Prejudice Insured's Hail Coverage Suit
ST. LOUIS - The exclusion of certain portions of an insured's expert's report did not unfairly prejudice the insured in his lawsuit against his insurer for hail storm damages, the Eighth Circuit U.S. Court of Appeals ruled May 25 (Maria Amplatz v. Country Mutual Insurance Co., No. 15-2645, 8th Cir.; 2016 U.S. App. LEXIS 9540).
Judge Declines To Exclude Expert Report In Insurers' Defense Of Bond Payment
WASHINGTON, D.C. - A District of Columbia federal judge on May 25 refused to strike an expert report regarding completion-related construction costs that was filed in support of insurers' defense that a subcontractor's request for payment under a bond should be reduced by earlier made payments (Paige International, Inc. v. XL Specialty Insurance Co., et al., No. 14-1244, D. D.C.; 2016 U.S. Dist. LEXIS 68363).
Federal Judge Bars Some Medical Expert Testimony In Wrongful Death Suit
PADUCAH, Ky. - A Kentucky federal judge on May 20 excluded certain testimony from a medical expert in a wrongful death lawsuit, finding that the expert may not opine about the standard of care to which the law holds a reasonably prudent maritime outfit (Donna Tindle, as administrator of the Estate of Jimmie W. Tindle v. Hunter Marine Transport, Inc., No. 14-00110, W.D. Ky.; 2016 U.S. Dist. LEXIS 66418).
Judge Finds Evidence To Support Expert Report On Future Earning Capacity
MEMPHIS, Tenn. - Evidence exists to establish that a plaintiff made efforts to become an aircraft mechanic to support an expert's testimony on the plaintiff's future earning capacity in a wrongful death lawsuit against the City of Memphis, a Tennessee federal judge ruled May 12 (Sterling Askew and Sylvia Askew v. City of Memphis, et al., No. 14-02080, W.D. Tenn.; 2016 U.S. Dist. LEXIS 62683).
Asbestos Expert Excluded; Judge Grants General Electric Summary Judgment
BALTIMORE - A couple failed to properly disclose the full range of products an expert would testify to, and their argument that the defense was to blame is "preposterous," a federal judge in Maryland held May 18 in excluding the testimony and granting summary judgment (Charles Lemuel Arbogast Jr. v. A.W. Chesterton Co., et al., No. 14-4049, D. Md.).
Auto Maker Urges Judge To Reject Experts' 'Every Exposure' Opinions
MIAMI - A federal judge in Florida must reject two experts' "every exposure" asbestos testimony and see through the unqualified interpretations regarding state of the art from a third, Ford Motor Co. argues in a May 10 brief (James John Waite Jr. and Sandra Waite v. AII Acquisition Corp., et al., No. 15-62359, S.D. Fla.).
Judge: DuPont May Not Question Plaintiff's Treating Physician In C8 Injury Trial
COLUMBUS, Ohio - A federal judge in Ohio on May 19 granted a plaintiff's motion in limine to prevent E.I. du Pont de Nemours and Co. from questioning his treating physician regarding causation in his claim that DuPont is liable for his cancer from exposure to perfluorooctanoic acid (known as C8) (In re E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation, MDL No. 2433, No. 13-2433, S.D. Ohio).
Judge: Halliburton's Expert May Testify In Radioactive Materials, Perchlorate Case
OKLAHOMA CITY - A federal judge in Oklahoma on May 16 ruled that an expert for Halliburton Energy Services Inc. (HESI) is permitted to testify at a trial for personal injuries claimed by residents who are suing HESI for releasing radioactive materials and perchlorate into the environment (Mitchell L. McCormick v. Halliburton Energy Services Inc., No. 11-01272, W.D. Okla.).
Massachusetts Justice Bars Podiatry Expert From Opining On But-For Causation
BOSTON - A podiatry expert may not testify that a doctor's alleged negligence was a cause of a plaintiff's leg amputation and that the plaintiff would likely have been spared that outcome had the doctor complied with the governing standard of podiatric care, a Massachusetts justice ruled May 13 (Cheryl Lavina, individually and as administratrix of the estate of Paul Lavina v. Adam R. Satin, Esq., et al., No.: SUCV2013-01012-C, Mass. Super., Suffolk Co.; 2016 Mass. Super. LEXIS 46).
Lipitor MDL Judge Partially Excludes Plaintiff Experts' Testimony In 4 Rulings
CHARLESTON, S.C. - The South Carolina federal judge overseeing the Lipitor multidistrict litigation on May 6 partially excluded expert testimony and denied reconsideration of an earlier specific causation testimony order (In Re: Lipitor [Atorvastatin Calcium] Marketing, Sales Practices and Products Liability Litigation, MDL Docket No. 2502, No. 14-mn-2502, D. S.C.).
Judge Precludes Opinion Witness In Fair Labor Standards Act Lawsuit
COLUMBUS, Ohio - An Ohio federal judge on May 13 excluded a plaintiffs' opinion witness in a lawsuit alleging violations of the Fair Labor Standards Act (FLSA) because the witness's "knowledge, skill, experience, training, or education" does not qualify him to be an expert (Joseph Miller v. Food Concepts International, LP, et al., No. 13-00124, S.D. Ohio; 2016 U.S. Dist. LEXIS 63454).