Mealey's Daubert
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July 28, 2023
Summary Judgment Granted In Alleged Defective Medical Device Case, Expert Excluded
GREENEVILLE, Tenn. — A Tennessee federal judge ruled that a retained expert in a defective medical device case “either did not measure the suture or her measurements of the suture are impossible” and excluded the testimony and found that without her testimony, summary judgment is appropriate.
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July 27, 2023
Glyphosate Cancer Plaintiffs Insist Expert Is Qualified, Oppose Bid To Exclude
SAN FRANCISCO — Plaintiffs who sued Monsanto Co. for alleged injuries from exposure to the herbicide Roundup have filed a brief in California federal court arguing that their expert is “an eminently qualified oncologist and hematologist whose opinions have previously been accepted” in the multidistrict litigation because they comply with Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc.
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July 27, 2023
Experts Properly Admitted In Chemical Exposure Case, Wisconsin Court Says
MILWAUKEE — A Wisconsin trial court did not err in allowing expert testimony during a trial in which a worker says he was injured from exposure to the chemical diacetyl, a state appellate court ruled, upholding a $5.3 million jury award.
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July 24, 2023
Federal Judge Limits 1 Expert’s Testimony, Allows Another In Discrimination Row
SEATTLE — A human resources expert retained by a doctor who sued her employer cannot make legal conclusions in her testimony but may opine on Family and Medical Leave Act (FMLA) leaves of absence and accommodations, a federal judge in Washington ruled, also denying a motion to exclude the woman’s expert retained to provide “social framework” testimony on gender stereotyping, bias and discrimination.
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July 19, 2023
Magistrate Judge Limits Experts’ Testimony On Police Actions Related To Death
AUSTIN, Texas — A Texas federal magistrate judge on July 18 partially granted two motions to exclude testimony from experts retained by the family of a man who died in police custody after finding that some of their proposed testimony exceeds their qualifications.
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July 18, 2023
Experts Linking Talcum Powder To Mesothelioma Excluded In Arizona Case
PHOENIX — An Arizona judge granted summary judgment to a manufacturer sued by a man claiming that he developed mesothelioma from repeated exposure to asbestos in talcum powder after finding that experts retained by the man did not show that talc was a substantial contributing factor of his condition.
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July 14, 2023
Mich. Appeals Court: No Error In Testimony Connecting Pacemaker Data To Murder
DETROIT — A Michigan trial court did not err in admitting expert testimony on a pacemaker and how its data can determine the time of death, a state appeals court ruled July 13, also rejecting a convicted murderer’s argument that he had ineffective counsel.
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July 14, 2023
Federal Judge: Contamination Claims Are Supported By Proper Expert Testimony
SAN DIEGO — Genuine issues of material fact exist about public nuisance and Resource Conservation and Recovery Act (RCRA) claims brought by a property developer against a recycling company for the company’s alleged contamination of groundwater near a new development because the claims are supported by admissible expert testimony, a California federal judge found in denying the recycling company’s motion for summary judgment.
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July 14, 2023
Podiatrist Properly Excluded In Defective Shoe Design Case, 2nd Circuit Says
NEW YORK — The Second Circuit U.S. Court of Appeals on July 13 rejected a man’s bid to reverse summary judgment awarded to Nike Inc. in his suit alleging that a defectively designed sneaker caused his knee injury after finding no error in the exclusion of his expert witness.
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July 13, 2023
Expert Opining On Aircraft Fuel Usage, Inspections Can Testify In Crash Suit
DETROIT — The sole remaining defendant in a suit stemming from a fatal aircraft crash lost its bid to exclude a causation expert after failing to show “that the several discrete opinions challenged in the motion have ‘no factual support’ in the record presented,” a Michigan federal judge ruled.
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July 13, 2023
Ohio Appeals Court Finds Expert Properly Admitted In Construction Defects Case
CANTON, Ohio — There was no error in allowing expert testimony in a case alleging that negligence by a construction worker caused structural issues to a home, an Ohio appeals court ruled, affirming a $118,752.50 award to the homeowners.
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July 11, 2023
Split Panel Reverses Denial Of Homeowner Class Certification In Anchors Defect Case
SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel on July 10 reversed and remanded a federal court’s denial of class certification in a putative class action brought by homeowners alleging that a manufacturer sold them defective home connectors and anchors, with the majority holding that the court abused its discretion by excluding the homeowners’ expert witness.
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July 11, 2023
Expert Is Unreliable, Should Be Excluded From Roundup Cases, Monsanto Says
SAN FRANCISCO — Monsanto Co. on July 10 moved in California federal court to exclude specific causation opinions of a plaintiffs’ expert in two cases in the multidistrict litigation for product liability related to the herbicide Roundup, saying that because the expert “failed to complete the two required steps of his claimed ‘differential etiology’ methodology,” his testimony is unreliable.
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July 11, 2023
Expert Testimony At Patent Trial Should Have Been Excluded, Appellant Says
WASHINGTON, D.C. — In a dispute over electronic drums and cymbals, an appellant tells the Federal Circuit U.S. Court of Appeals that a federal judge in Florida “abandoned its gatekeeping role and left for the jury to determine” whether an expert for a patent owner based his opinion of literal infringement on the wrong standard.
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July 10, 2023
Judge: Experts Not Opining On Decedent’s Condition Not Fatal To Admissibility
SEATTLE — Experts retained in a case alleging that a fireman and pipe fitter was exposed to asbestos while aboard a Navy ship can testify even though their reports did not contain any review or analysis specific to the decedent’s condition because general causation testimony may be helpful to a jury, a federal judge in Washington ruled days after granting summary judgment to one valve maker.
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July 07, 2023
DNA Expert Admissible, Hearing Not Needed, New York Federal Judge Says
BUFFALO, N.Y. — A hearing to determine if testimony from a DNA analyst is admissible under Daubert v. Merrell Dow Pharmaceuticals Inc. is not necessary, a New York federal judge said, adopting the report and recommendation of a magistrate judge and allowing the testimony in a criminal case.
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July 06, 2023
Missouri Federal Judge Allows Treating Doctors’ Testimony In Defective Design Case
ST. LOUIS — A Missouri federal judge denied a company’s motion to exclude testimony from a man’s three treating physicians who opine that his injuries were caused by repeated use of a defectively designed chain and ratchet system after finding that the testimony is reliable under Federal Rule of Evidence 702 and will be helpful to a jury.
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July 05, 2023
Washington Federal Magistrate Limits Expert’s Testimony In PCB Case
SEATTLE — A Washington federal magistrate judge partially granted a motion to exclude filed by Seattle in its suit to hold companies liable over polychlorinated biphenyl (PCB) contamination in the city’s waterways and stormwater and drainage systems, finding an expert’s opinion on historical waste disposal in landfills irrelevant but allowing his other conclusions.
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June 30, 2023
Federal Magistrate OKs Testimony On Reasonableness Of Medical Rates After Crash
AUSTIN, Texas — Physicians can testify on the reasonableness of medical charges a man incurred for neurological and neck issues after a car accident, a Texas federal magistrate judge said in ruling on two motions to exclude in separate orders.
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June 30, 2023
Monsanto Insists Its Roundup Expert Is Qualified, Says Motion To Exclude Fails
SAN FRANCISCO — Monsanto Co. on June 29 filed a brief arguing that a California federal court should deny an attempt by a woman with cancer who seeks to exclude Monsanto’s expert witness in her injury lawsuit related to the herbicide Roundup because the plaintiff’s motion is “based on arguments that misunderstand and misrepresent his qualifications and opinions, as well as Roundup’s regulatory landscape.”
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June 28, 2023
Missouri Federal Judge Limits Engineer’s Testimony In Defective Design Case
ST. LOUIS — A licensed engineered retained as an expert in a product liability case can testify on the ergonomics and biomechanics of a chain and ratchet system, but he is unqualified to offer medical causation opinions, a federal judge in Missouri ruled.
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June 27, 2023
Judge: FCRA Claim Fails Because Credit Report Contained No False Information
CHICAGO — A federal judge in Illinois found that because there is no false information in a consumer reporting agency’s report that reflected that a woman had “‘historic late [mortgage] payments in 2018 and 2019,’” there is no Fair Credit Reporting Act (FCRA) violation and awarded the agency summary judgment.
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June 27, 2023
Expert Testimony Admissible But Lay Witness Testimony Leads To Reversal
DENVER — The 10th Circuit U.S. Court of Appeals on June 26 reversed a man’s conviction for sexually abusing his stepdaughters after finding that the trial court erred in allowing the girls’ mother to testify on their credibility but found no error in allowing other expert testimony.
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June 27, 2023
Woman Appeals To 5th Circuit Expert’s Exclusion In Deepwater Horizon Injury Case
NEW ORLEANS — A woman who claims that she was injured as a result of exposure to oil and other chemicals related to the Deepwater Horizon explosion has filed a notice of appeal in the Fifth Circuit U.S. Court of Appeals to contest a district court judge’s decision to exclude her expert’s testimony, as well as the judge’s denial of reconsideration of that judgment.
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June 27, 2023
Magistrate: Expert Can Offer Inconclusive Opinions On Causation Of Eye Injury
DENVER — A federal magistrate judge in Colorado refused to exclude an expert who said he could not definitively say injuries a man says he sustained when police officers fired pepper-filled projectiles at his eye were caused by the projectiles, finding that the testimony passed muster under Federal Rule of Evidence 702.