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LexisNexis® Mealey's™ Daubert Legal News



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



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



9th Circuit Rebukes Judge For Dismissal Of Man's Claims Against Police
SEATTLE - The Ninth Circuit U.S. Court of Appeals on July 24 removed a Montana federal judge from a case involving an environmentalist who was cited by local police during a buffalo herding operation at Yellowstone National Park, after finding that the judge committed several errors and may have excluded expert testimony just because he disagreed with it (Anthony Patrick Reed v. Doug Lieurance, et al., Nos. 15-35018, 15-35179, 9th Cir., 2017 U.S. App. LEXIS 13272).



6th Circuit Reverses Exclusion Of Heat Stroke Diagnosis In Man's Death
CINCINNATI - Relatives of a man who died in his 93-degree apartment who sued a utility company for wrongful death for denying the man utility services due to lack of a photo ID can present testimony from a medical expert that the man died from "probable heat stroke," a divided Sixth Circuit U.S. Court of Appeals ruled July 27 (Dorothy Mae Johnson, et al. v. Memphis Light Gas & Water Division, No. 16-6143, 6th Cir., 2017 U.S. App. LEXIS 13765).



Judge Axes Expert's Late Report, Dismisses Negligence Claims Against Doctor
ALBUQUERQUE, N.M. - A New Mexico federal judge on Aug. 8 awarded summary judgment to a doctor and his employer on an estate's wrongful death claims after excluding a late-filed expert report as untimely and, therefore, prejudicial (John Faure v. Community Health Systems Professional Services Corporation, et al., No. 1:14-cv-559, D. N.M., 2017 U.S. Dist. LEXIS 125558).



Standard-Of-Care Opinions Allowed In Suit Over Veteran's Suicide
KANSAS CITY, Kan. - Three expert witnesses for the father of a veteran who killed himself after being discharged from a government hospital can testify that the suicide was caused by the U.S. Department of Veterans Affairs' failure to follow its guidelines and standard of care, a Kansas federal judge ruled Aug. 15 in deeming the experts' opinions reliable (Donald Draughon v. United States of America, No. 14-2264, D. Kan., 2017 U.S. Dist. LEXIS 129259).



Court Delineates Rules For Vetting 1 Expert Substituting For Another
ST. THOMAS, Virgin Islands - A Virgin Islands trial court erred in deciding a motion to substitute one expert for another by sua sponte looking at the qualifications of the first expert and not examining the qualifications and methodology of the substitute expert, the Virgin Islands Supreme Court held Aug. 1 in deciding issues on interlocutory appeal in a worker's suit to recover for job-related injuries (Francis Edward v. GEC, LLC, No. 2017-0025, Virgin Islands Sup., 2017 V.I. Supreme LEXIS 46).



Federal Magistrate Judge: Expert's Opinion On Bath Mat's Suitability Is Reliable
KNOXVILLE, Tenn. - A mathematician can provide expert testimony regarding the suitability of a bath mat that allegedly caused a woman to slip and fall after coming out of a shower stall in a condominium, a federal magistrate judge in Tennessee ruled Aug. 11, holding that the expert was qualified and that the methodology underlying his opinion is reliable (Phyllis G. Barnes, et al. v. Greg Malinak, et al., No. 15-cv-556-PLR-HBG, E.D. Tenn., 2017 U.S. Dist. LEXIS 127600).



9th Circuit Again Finds Fault In Expert Witness Rulings In Water Contamination Row
PASADENA, Calif. - A federal trial court abused its discretion twice when making two expert witness decisions against a California city, and the errors were prejudicial to the city in its claims that its groundwater was polluted by a chemical in a company's fertilizer products, the Ninth Circuit U.S. Court of Appeals held Aug. 7 in vacating the trial court's judgment and remanding for a new trial (City of Pomona v. SQM North America Corporation, No. 15-56062, 9th Cir., 2017 U.S. App. LEXIS 14491).



Split Maryland High Court: Plaintiff's Medical Expert May Testify In Lead Case
ANNAPOLIS, Md. - A divided Maryland Court of Appeals on July 11 ruled that a plaintiff's medical expert could testify in a lead-paint poisoning lawsuit despite the landlord's argument that the expert lacked the necessary qualifications and a sufficient factual basis for his opinion (Stewart Levitas v. Michael Davon Christian, No. 58, Sept. Term 2016, Md. App.; 2017 Md. LEXIS 464).



Drug Detection Testimony Properly Allowed, 11th Circuit Panel Says
ATLANTA - The 11th Circuit U.S. Court of Appeals on Aug. 1 upheld the convictions of five men on cocaine trafficking charges after affirming the trial court's allowance of expert testimony by a U.S. Coast Guard officer on technology used by law enforcement to detect trace amounts of drugs (United States of America v. Vanston Venner Williams, et al., No. 15-15360, 11th Cir., 2017 U.S. App. LEXIS 13906).



Credit Reporting Expert Excluded For Lack Of Proper Opinions
DETROIT - A Michigan federal magistrate judge on Aug. 2 excluded the opinions and testimony of an expert witness for a man alleging unfair credit reporting after finding that the expert's opinions are improper legal conclusions and his methods are unreliable (Ibrahim Barakat v. Equifax Information Services, LLC, et al., No. 16-10718, E.D. Mich., 2017 U.S. Dist. LEXIS 121377).



Police Expert's False Confession Opinions Barred In Wrongful Conviction Case
CHICAGO - An expert in police practices for a woman suing Chicago police after being wrongly convicted of murdering her young son cannot testify at trial about coercive interrogations and false confessions because he is not qualified to offer such testimony, an Illinois federal judge ruled July 27 (Nicole Harris v. City of Chicago, et al., No. 14-4391, N.D. Ill., 2017 U.S. Dist. LEXIS 117613).



Expert's Alternative Design Opinion Rejected; Ford Wins Summary Judgment
NEW ORLEANS - A federal judge in Louisiana on Aug. 7 found that the plaintiffs' expert's opinion that a modified vehicle would not have rolled over in an accident is unreliable, granting judgment to Ford Motor Co. in a design defect case (Kaylee Eveler, et al. v. Ford Motor Co., No. 16-14776, E.D. La., 2017 U.S. Dist. LEXIS 124084).



Deficient Expert Witnesses Doom Storm Damage Claims, Judge Rules
LOUISVILLE, Ky. - A Kentucky federal judge on Aug. 4 awarded an insurance company summary judgment on claims for additional coverage for storm damage after finding that the business owners' expert witness disclosures "were clearly deficient" and that even if they weren't, the experts' opinion are unreliable (Advanced Mechanical Services, Inc., et al. v. Auto-Owners Insurance Company, No. 3:14-cv-388, W.D. Ky., 2017 U.S. Dist. LEXIS 123277).



Expert Testimony In Patent, Trade Secrets Action Allowed By Federal Judge
SHERMAN, Texas - A Texas federal judge on Aug. 7 declined to exclude testimony from two experts for a pharmaceutical company asserting patent infringement and trade secret misappropriation claims against rival companies, ruling that the experts' opinions meet all standards for expert testimony (Tech Pharmacy Services, LLC v. Alixa Rx LLC, et al., No. 4:15-cv-766, E.D. Texas, 2017 U.S. Dist. LEXIS 124423, 2017 U.S. Dist. LEXIS 123990).



Accounting Expert Allowed In Action Over Failed Car Dealerships
OKLAHOMA CITY - A financial expert can testify for three former shareholders of failed car dealerships in their defense of a company's claims against them for repayment of a business loan, an Oklahoma federal judge said July 31after finding that the expert's opinions are reliable and based on sound methods (Southampton, Ltd., et al. v. Vahid Salalati, et al., No. 14-852, W.D. Okla., 2017 U.S. Dist. LEXIS 119598).



Plaintiff Urges Florida Court To Allow Asbestos Experts, Award, Reject Daubert
TALLAHASSEE, Fla. - Two amicus curiae parties on Aug. 15 joined a plaintiff in urging the Florida Supreme Court to reject the Daubert standard and reverse an appellate court's ruling excluding experts and negating an $8 million asbestos award (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Federal Judge Denies Defendants' Motion To Bar Expert In Asbestos Case
NEWARK, N.J. - A federal judge in New Jersey on Aug. 4 said a doctor called upon to be a plaintiff's expert witness in an asbestos exposure suit was qualified and used approved methodology, denying the defendants' joint motion to bar the expert's testimony (Judith L. Hoffeditz v. AM General LLC, et al., No. 09-0257, D. N.J., 2017 U.S. Dist. LEXIS 123493).



Reconsideration Of Exclusion Of Cumulative Exposure Asbestos Testimony Sought
CHARLESTON, S.C. - A medical expert's opinion that exposure to asbestos in gaskets substantially contributed to the entire dose that caused a man's mesothelioma simply reiterates scientific fact and is sufficiently case-specific to avoid being the "every exposure" theory, a man told a federal judge on July 24 in asking that he reconsider his ruling excluding the testimony (John E. Haskins and Mary L. Haskins v. 3M Co., et al., No. 15-2086, James Willson Chesher, et al. v. 3M., No. 15-2123, D. S.C., 2017 U.S. Dist. LEXIS 113657).



Judge: Cumulative Exposure, 'Every Exposure' Theories Are Equally Inadmissible
BALTIMORE - Expert testimony that asbestos "cumulates" in the body and leads to disease is indistinguishable from the theory that every exposure to asbestos leads to disease and is inadmissible under federal rules and Daubert v. Merrell Dow Pharm., Inc., a federal judge in Maryland held July 17 in granting summary judgment in a prominent attorney's case alleging bystander exposure (Jeffrey Rockman, et al. v. Union Carbide Corp., et al., No. 16-1169, D. Md., 2017 U.S. Dist. LEXIS 110181).



Ohio Court: Unsworn Asbestos Causation Testimony Meets Prima Facie Requirements
CLEVELAND - Expert asbestos medical testimony that echoes the requirements in Ohio law is sufficient to make a prima facie case and need not be a signed document, an Ohio appeals court held July 20 (Kevin E. Howell v. Consolidated Rail Corp., et al., No. 104554, Ohio App., 8th Dist., 2017 Ohio App. LEXIS 2984).



Preemption Summary Judgment Denied In Xarelto Bellwether Trial; All Experts Stay In
NEW ORLEANS - The Louisiana federal judge overseeing the Xarelto multidistrict litigation on July 21 denied the defendant partial summary judgment in the third bellwether case on the basis of federal preemption and on the basis of design defect (In Re: Xarelto Products Liability Litigation, No. 14-md-02592 [Dora Mingo v. Janssen Pharmaceuticals, Inc., et al., No. 15-3469], E.D. La., 2017 U.S. Dist. LEXIS 114338, 2017 U.S. Dist. LEXIS 113872).



Plaintiff Seeks Interlocutory Appeal On Expert Exclusion In Bypass Machine Case
SALT LAKE CITY - A Utah federal judge on July 18 vacated a trial date in a heart/lung bypass machine wrongful death case after the plaintiff indicated her desire to get an interlocutory appeal of the judge's order severely limiting the testimony of her causation expert at an upcoming trial (Buzzie Smith, et al. v. Terumo Cardiovascular Systems Corporation, Inc., et al., No. 12-998, D. Utah, Central Div., 2017 U.S. Dist. LEXIS 108205).



Lipitor MDL Plaintiffs Tell 4th Circuit Judge Erred In Expert Testimony Rulings
RICHMOND, Va. - Plaintiffs alleging that the statin drug Lipitor caused diabetes on July 28 told the Fourth Circuit U.S. Court of Appeals that a multidistrict litigation judge erred when he excluded causation opinions of two experts and granted summary judgment against more than 3,000 plaintiffs (In Re: Lipitor [Atorvastatin] Products Liability Litigation, Nos. 17-1140[L], 17-1136, 17-1137, 17-1189, 4th Cir.).



New Jersey Appeals Panel Reinstates 2 Accutane Experts, 2,076 Dismissed Cases
TRENTON, N.J. - A New Jersey appeals court panel on July 28 reversed the exclusion of two plaintiff experts from the state's Accutane multicounty litigation, reinstating 2,076 cases that had been dismissed (In Re: Accutane Litigation, Nos. A-4698-14T1 and A-0910-16T1, N.J. Super., App. Div., 2017 N.J. Super. LEXIS 116).



Bayer, Plaintiffs Say They've Agreed To Settle Mirena IUD Perforation Claims
NEW YORK - Despite the parties' Aug. 11 disclosure that they have agreed to resolve Mirena intrauterine device (IUD) secondary perforation claims, the Second Circuit U.S. Court of Appeals that day denied a motion to adjourn Aug. 14 oral arguments about the exclusion of all plaintiffs' causation experts and evidence by a New York federal multidistrict litigation judge (In Re: Mirena IUD Products Litigation, Mirena MDL Plaintiffs v. Bayer HealthCare Pharmaceuticals Incorporated, No. 16-2890 and 16-2012, 2nd Cir.).



Testosterone MDL Judge Won't Reconsider Allowing Adverse Event Testimony By Plaintiffs
CHICAGO - The Illinois judge overseeing the testosterone multidistrict litigation on July 11 refused to reconsider his ruling allowing plaintiff expert Dr. Hossein Ardehali to rely on adverse event reports (In Re: Testosterone Replacement Therapy Products Liability Litigation, No. 14-1748, N.D. Ill., 2017 U.S. Dist. LEXIS 106446).



Split 5th Circuit Affirms Exclusion Of False Confession Testimony In Murder Case
NEW ORLEANS - A divided Fifth Circuit U.S. Court of Appeals panel on July 17 upheld the denial of federal habeas relief for a man convicted of killing a motorist who stopped to give him a ride, with the majority affirming several trial court rulings, including the exclusion of the defendant's expert on confessions and interrogations (Jonathan Boyer v. Darrel Vannoy, No. 16-30487, 5th Cir., 2017 U.S. App. LEXIS 12764).



Domestic Violence Expert Properly Allowed In Wife Battering Case, 8th Circuit Says
ST. PAUL, Minn. - A man's 30-year prison sentence for beating and raping his wife on an Indian reservation was affirmed June 29 by the Eighth Circuit U.S. Court of Appeals, which found no error in the trial court's allowance of expert testimony about domestic violence victims (United States of America v. Denny Johnson, Sr., No. 16-3483, 8th Cir., 2017 U.S. App. LEXIS 11585).



Cellphone Tower Data Expert Allowed For 2 Defendants' Robbery Trial
NEW ALBANY, Ind. - A police expert can testify about cellphone towers, data dumping, pinging and triangulation during a trial for two men accused of committing a series of retail store robberies, an Indiana federal judge ruled June 23 after finding that the expert is qualified and his methods are sound (United States of America v. Jeffrey Antione Kemp, et al., No. 4:15-cr-00025, S.D. Ind., 2017 U.S. Dist. LEXIS 97230).



Expert's Opinions Blaming Cruise Line For Man's Death Stricken
MIAMI - A maritime law enforcement expert cannot opine that a cruise line is to blame for the 2015 death of a passenger who got drunk and fell from the balcony in his room to the deck below, a Florida federal magistrate judge ruled July 6 in mostly granting the cruise line's request to strike the expert's testimony (Nicole Webb v. Carnival Corporation, No. 15-24230, S.D. Fla., 2017 U.S. Dist. LEXIS 103856).



Opinions Of Experts For Parents Of Student Who Died After Fight Are Allowed
WHEELING, W. Va. - A West Virginia federal judge on July 14 denied requests by the friend of a college student who was killed during a fight with two other men to exclude testimony by medical and economic experts in a wrongful death action filed by the student's parents (Thomas G. Figaniak and Valerie A. Figaniak v. Fraternal Order Of Owl's Home Nest, Loyal Order Of Owls Nest Lodge 2558, d/b/a The Owl's Nest, et al., No. 5:15-cv-111, N.D. W. Va., 2017 U.S. Dist. LEXIS 109477).



Government Seeks To Have 6th Circuit Ruling On Doctor's Conviction Published
CINCINNATI - The U.S. government on June 16 asked the Sixth Circuit U.S. Court of Appeals to publish an opinion issued three days earlier in which a three-judge panel affirmed the conviction of an Ohio cardiologist on health care fraud charges, saying the decision, in which the panel upheld the allowance of testimony from several government experts, will assist trial courts in upcoming similar cases (United States of America v. Harold Persaud, Nos. 16-3105, 16-3427, 16-3578, 6th Cir.).



Defense Expert Excluded In Case Alleging Illegal Kickbacks For Lab Work
CHARLESTON, S.C. - An expert for health care defendants accused of running kickback schemes cannot testify because his opinion draws on legal conclusions that should be left to the court to decide, is based on unsound methodology and would mislead a jury, a South Carolina federal judge held June 26 in excluding the expert from the case (United States of America, et al. v. Berkeley Heartlab, Inc., et al., Nos. 9:14-cv-00230, 9:11-cv-1593 and 9:15-cv-2485, D. S.C., 2017 U.S. Dist. LEXIS 98147).



With Doctor's Opinion Barred, Judge Grants Judgment To Hernia Mesh Maker
DETROIT - The maker of a hernia mesh product was awarded summary judgment on July 5 by a Michigan federal judge on a couple's product liability claims after the judge found the opinions of the couple's medical expert inadmissible (Robert and Karol Avendt v. Covidien, Inc., No. 11-15538, E.D. Mich., 2017 U.S. Dist. LEXIS 103287).



Trial Court Did Not Err In Finding Expert's Testimony Was Not Scientific
MONTGOMERY, Ala. - The majority of the Alabama Supreme Court on July 7 determined that a trial court did not err in failing to apply the requirements of Rule 702(b) of the Alabama Rules of Evidence to an expert's testimony because the testimony was not subject to Rule 702(b) as it was not scientific testimony (Mazda Motor Corporation v. Jon Hurst and Barbara Hurst, as parents of Natalie J. Hurst, deceased, and Sydney McLemore, No. 1140545, Ala. Sup., 2017 Ala. LEXIS 66).



8th Circuit Upholds Exclusion Of Expert's Opinion On Defective Hip Implant Stem
ST. LOUIS - An Eighth Circuit U.S. Court of Appeals panel on July 5 affirmed a federal judge in Missouri's ruling excluding the testimony of a metallurgist who opined that a manufacturing defect in the stem of a hip implant caused it to fracture, holding that the expert did not consider other factors before reaching his conclusion (Judith A. Redd v. DuPuy Orthopedics Inc., No. 16-3428, 8th Cir., 2017 U.S. App. LEXIS 11930).



Judge Allows Most Of Plaintiff's Expert Testimony In Transvaginal Mesh MDL
CHARLESTON, W. Va. - A woman's medical expert in a transvaginal surgical mesh multidistrict litigation can offer testimony for the plaintiff because his opinions are "sufficiently relevant" and he conducted a proper differential diagnosis, a federal judge in West Virginia held July 14 in mostly denying the device maker's bid to exclude the expert's opinions (In re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327 [Rhonda Cooper v. Ethicon, Inc., et al., No. 2:12-cv-02532], S.D. W. Va., 2017 U.S. Dist. LEXIS 109546).



Ruling On Expert Upheld In Shooting Victim's Claims Against Police Officer
PHILADELPHIA - A man who was shot in his home by an off-duty police officer is not entitled to a new trial on his excessive force claims against the officer because the victim's attempt to discredit an expert based on alleged mismanagement of a prior job was properly denied, a Pennsylvania federal magistrate judge ruled June 19 (Joshua Taylor v. Police Officer Larry Shields, No. 13-2241, E.D. Pa., 2017 U.S. Dist. LEXIS 93669).



Architectural Expert's Testimony Mostly Allowed In Home Design Copyright Case
CLEVELAND - Most of an architectural expert's testimony in a home design copyright infringement case is reliable and will be helpful in deciding the key issues in dispute; however, he is not allowed to give legal opinions or "dictate the conclusion" of the case, an Ohio federal magistrate judge held July 3 (Design Basics LLC v. Petros Homes Inc., et al., No. 14-1966, N.D. Ohio, 2017 U.S. Dist. LEXIS 102931).



Judge: Plaintiffs' Proffered Expert Should Not Be Permitted To Testify At Trial
JACKSON, Miss. - A Mississippi federal judge on July 7 granted defendants' joint motion to exclude the testimony of the plaintiffs' proffered expert in a lawsuit alleging that the plaintiffs suffered damages to their houses and quality of life due to the construction and operation of a "frac sand plant" and an associated multitrack railroad spur (Jeffrey Cad Palmer, et al. v. Sun Coast Contracting Services Inc., et al., No. 15-34, S.D. Miss., 2017 U.S. Dist. LEXIS 105560).



Poor Methods Doom Opinions On Storm Wind Speed, Magistrate Judge Rules
WACO, Texas - A Texas federal judge on June 28 excluded testimony from two experts based on opinions of a third, undisclosed expert in a property damage insurance coverage dispute after finding that the opinions of the third expert regarding wind speed during a storm are unreliable due to flawed methodology (Spring Street Apts. Waco, LLC v. Philadelphia Indemnity Insurance Company, No. 6:16-cv-00315, W.D. Texas, 2017 U.S. Dist. LEXIS 99890).



Biomechanical Testimony In Crash Suit Sound, Helpful, Judge Rules
TAMPA, Fla. - A Florida federal judge on July 17 declined to strike testimony from an insurer's biomechanical expert on the forces required to cause a woman's alleged injuries in a rear-end car accident, finding that the expert meets the admissibility standards established by 11th Circuit U.S. Court of Appeals precedent (Lisa N. Bostick v. State Farm Mutual Automobile Insurance Company, No. 8:16-cv-1400, M.D. Fla., 2017 U.S. Dist. LEXIS 110370).



Texas Appeals Court Affirms Verdict Against Maker Of Defective Concrete
FORT WORTH, Texas - A Texas appellate court panel on June 15 affirmed a jury's verdict finding that a concrete manufacturer should indemnify a contractor that installed concrete that was defectively made, holding that the trial court judge did not err when striking the manufacturer's expert testimony and that the company did not clearly argue in its post-trial motions that the contractor that finished the concrete was a seller under the Texas Products Liability Act (TPLA) (RDJRLW, Inc. v. Bobby Elbert Miller, Jr., d/b/a Miller Construction, et al., No. 02-16-00132-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5494).



7th Circuit: Plaintiffs Forfeited Challenges To Ruling Barring Expert Testimony
CHICAGO - A proposed class of consumers who claimed that windows made by Kolbe & Kolbe Millwork Co. were defective because they allowed for water intrusion that caused property damage forfeited their ability to challenge a ruling by a federal judge barring the testimony of two experts, a Seventh Circuit U.S. Court of Appeals panel ruled July 11, explaining that the plaintiffs should have raised their arguments in response to the manufacturer's motion under Daubert v. Merrell Dow Pharmaceuticals, Inc. (Mary Haley, et al. v. Kolbe & Kolbe Millwork Co., No. 16-3192, 7th Cir., 2017 U.S. App. LEXIS 12381).



Couple Tells Court Community Exposure Opinions Were Improperly Rejected
SAN JOSE, Calif. - Having no way to avoid the conclusion that they caused a man's environmental asbestos exposures, a manufacturer and its supplier ask a court to arbitrarily impose a distance requirement for causation and to require experts to have personal knowledge prior to offering opinions, a couple told a California appeals court May 30 (Beverly Trapp, et al. v. Asbestos Corp. Limited, et al., No. H043867, Calif. App., 6th Dist.).



Florida High Court Will Review Asbestos Causation Experts, Resulting $8M Award
TALLAHASSEE, Fla. - The Florida Supreme Court agreed to decide the proper standard for admitting expert causation testimony in the state when on July 11 it accepted a case that originally resulted in an $8 million asbestos award against tobacco and gaskets companies (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).



Lipitor Defendants Tell 4th Circuit Plaintiff Experts Properly Excluded In MDL
RICHMOND, Va. - Defendants on July 13 told the Fourth Circuit U.S. Court of Appeals that a multidistrict litigation judge did not err when he excluded three plaintiff causation experts and granted summary judgment on claims that the cholesterol drug Lipitor causes type 2 diabetes (In Re: Lipitor [Atorvastatin Calcium] Marketing, Sales Practices and Products Liability Litigation, Nos. 17-1140, 17-1136, 17-1137, 17-1189, 4th Cir.).



Expert 'Unreliable,' Should Be Excluded From Groundwater Case, NL Industries Says
TRENTON, N.J. - NL Industries Inc. on June 20 filed a brief in New Jersey federal court seeking to exclude an expert for the plaintiffs who sued the company for allegedly contaminating the local groundwater, contending that the expert's opinion is "unreliable" (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).