Mealey's Daubert
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December 19, 2023
Excluded Expert Witness Can’t Testify As Fact Witness In Device Injury Case
PHOENIX — A man alleging that a defective “metal-on-metal” hip replacement device caused an injury cannot present as a fact witness a person who has been excluded from testifying as an expert witness, an Arizona federal judge ruled, agreeing to strike his testimony.
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December 19, 2023
Experts Can Opine On Minority Data, Historic Discrimination In Voting Rights Case
WICHITA, Kan. — A Kansas federal judge agreed to limit the testimony from experts retained by two voters who sued a Kansas city and its commissions for violating voting rights through at-large elections after finding that portions of their testimony are inadmissible under Daubert v. Merrell Dow Pharmaceuticals Inc.
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December 18, 2023
Drug Trafficking Expert Testimony OK’d In Criminal Case In Ohio Federal Court
COLUMBUS, Ohio — An Ohio federal judge found that expert testimony from a police officer on drug trafficking and distribution is admissible and denied a motion filed by a criminal defendant seeking to exclude it from his trial.
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December 18, 2023
Cultural Expert Can’t Testify In Criminal Case Alleging Forced Labor
RICHMOND, Va. — A federal judge in Virigina agreed to exclude testimony of a sociologist and anthropologist retained as an expert witness by a defendant in a criminal trial who would testify on the topics of Indian and Punjabi culture after finding that her testimony is irrelevant and overly prejudicial.
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December 15, 2023
Expert Can Opine On THC In Blood Test But Not Say What Caused Fatal Accident
MUSKOGEE, Okla. — An Oklahoma federal judge refused to suppress the results of a blood sample that tested for alcohol or other intoxicating substances but agreed to limit testimony from an expert retained by the state in a criminal case over a car crash that left two people dead.
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December 15, 2023
Expert On Fairness Of Injury Settlement OK’d In Underinsurered Coverage Spat
DENVER — A Colorado federal judge denied a motion to exclude an expert retained by an insurance company who will opine that a man who sued for coverage under an underinsured motorist policy was fully compensated for his injuries through his settlement with the driver.
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December 15, 2023
Maryland Appeals Court OKs Dog-Sniff Evidence, Upholds Murder Conviction
BALTIMORE — A Maryland appeals court rejected calls from a convicted murderer who said that his conviction should be overturned because the trial court erred in admitting testimony related to dog-sniff evidence that he argued was unreliable.
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December 15, 2023
California Federal Judge Largely Allows Experts In Inmate Wrongful Death Suit
SAN DIEGO — A California federal judge ruled that experts retained in a wrongful death suit against the county of San Diego, the medical group in charge of inmate care and various employees may testify but said one expert may not make assertions about individual employees.
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December 15, 2023
N.Y. Federal Judge: Expert On Chemistry Can Testify In Dispute Over Leaking Cans
NEW YORK — A New York federal judge rejected a can manufacturer’s argument that its rebuttal expert is subject to a different standard for admissibility under Federal Rule of Evidence 702 but still denied a company’s motion to exclude that expert’s testimony.
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December 13, 2023
Couple Asks 9th Circuit To Review Exclusion Of Experts In Glyphosate Cancer Case
SAN FRANCISCO — On Dec. 12, a couple suing Monsanto Co. related to injuries they say they have suffered from exposure to the herbicide Roundup, which contains the active ingredient glyphosate, filed a notice of appeal in the Ninth Circuit U.S. Court of Appeals seeking reversal of a district court order that excluded two of their causation experts because they did not personally engage with and evaluate the scientific literature they rely on in reaching their opinions.
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December 12, 2023
2nd Glyphosate Expert ‘Not Scientific At All,’ Should Be Nixed, Monsanto Says
SAN FRANCISCO — Monsanto Co. on Dec. 11 filed a brief in California federal court contending that another plaintiff’s expert in a glyphosate cancer lawsuit should be excluded, in this instance because his opinions do not meet the requirements for expert admissibility under Federal Rule of Evidence 702. Specifically, Monsanto says the expert “blindly relies” on the plaintiff’s recollection of his usage of the herbicide Roundup, and his opinion “is not scientific at all.”
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December 11, 2023
High Court Denies Cert To Care Home Owner Subject To $38M Fraud Forfeiture Order
WASHINGTON, D.C. — The U.S. Supreme Court on Dec. 11 denied certiorari to a man arguing that the 11th Circuit U.S. Court of Appeals erred in rejecting his argument that he had a right to a jury determination regarding his $38.7 million forfeiture order related to his fraud, bribery and money laundering convictions in a health care scheme involving bribing physicians to have patients entered into assisted living and skilled nursing facilities he owned.
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December 08, 2023
Home Inspector Can Testify In Dispute Over Insurance Payout, Repairs
TULSA, Okla. — A federal magistrate judge in Oklahoma on Dec. 7 denied an insured couple’s motion to exclude expert testimony by a property inspector who was hired by the insurer to review work done on a home damaged by a storm after the couple filed a breach of contract suit against the insurer.
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December 08, 2023
Judge Certifies Appeal Over Expert Testimony In Case About Fracking Data
HOUSTON — A federal judge has issued an order certifying an interlocutory appeal of a ruling that denied a defendant’s motion to exclude a plaintiff’s witness regarding his testimony on reasonable royalty damages in a dispute over the disclosure of unlicensed seismic data to a third-party oil and gas operator. The judge, who had concluded that the testimony is permitted as long as it complies with the requirements of Federal Rule of Evidence 701, certified the appeal, saying the matter presents “a controlling question of law” and the resolution of the issue would “materially advance the litigation.”
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December 08, 2023
Judgment Issued For Care Home In Wrongful Death Suit Lacking Causation Evidence
KANSAS CITY, Kan. — A Kansas federal judge sustained a summary judgment motion filed by a skilled nursing facility in a negligence and wrongful death suit filed against it by an estate administrator for a former resident who died after falling at the facility, finding that the expert testimony provided by the administrator fails to establish that the facility’s lack of reasonable care caused the former resident’s injury and subsequent death.
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December 01, 2023
Class Certification Granted In Suit Over Deficient Long-Term Care Waiver Services
CONCORD, N.H. — A New Hampshire federal judge granted class certification to disabled persons who, on behalf of similarly situated persons, sued the New Hampshire Department of Health and Human Services (NHDHHS), asserting violations of their rights under the 14th Amendment, the Americans with Disabilities Act (ADA), the Rehabilitation Act and the Medicaid Act for failure to provide them with adequate community-based long-term care services through the Choices for Independence (CFI) Medicaid Waiver, finding, in part, that the disabled persons showed “that the defendants’ actions apply generally to the class.”
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December 01, 2023
DNA Evidence From Gun Used In Crime Is Admissible, Florida Federal Judge Says
TAMPA, Fla. — A man charged with possessing a firearm as a felon failed to convince a Florida federal judge to exclude DNA evidence that linked him to the firearm, ruling that his “attacks on the DNA testing go to the weight of the DNA evidence, not to its admissibility.”
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November 30, 2023
In California Copyright Case, Decision To Strike Expert Testimony Revisited
WASHINGTON, D.C. — A federal judge in California on Nov. 29 said his recent decision to strike the expert testimony of a copyright damages expert witness was error, in a blow to infringement defendants that include The Walt Disney Co.
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November 29, 2023
Hawaii Asbestos Trial Ends In Verdict For 3M After Genetics Evidence Excluded
HONOLULU — 3M Co. negligently designed its respirator, rendering the device defective, but neither flaw caused a man’s mesothelioma and the man’s injury arose from superseding cause, a jury in Hawaii said in finding for the defendant.
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November 29, 2023
On Remand, Parties Dispute Expert Exclusion Bids In RESPA Class Lawsuit
FRESNO, Calif. — Parties in a long-running Real Estate Settlement Procedures Act (RESPA) class action involving captive reinsurance agreements are sparring in California federal court over expert testimony regarding whether the plaintiffs have standing under an economic harm theory.
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November 29, 2023
FELA Asbestos Plaintiff Warns: Georgia Ruling Will Impact Every Daubert Case
ATLANTA — A man tells the Georgia Supreme Court that it must review a divided appellate court ruling excluding his Federal Employers’ Liability Act (FELA) expert’s opinion that exposure to asbestos and other toxins caused lung cancer, saying the divided and “fractured” ruling shows the court rushed its opinion and warning that the confusion the ruling creates could result in it being cited by both parties in every trial court case applying Daubert v. Merrell Dow Pharmaceuticals Inc.
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November 29, 2023
Judge Won’t Strike Expert Opinion Challenged As ‘Every Exposure’ Theory
GREAT FALLS, Mont. — An expert’s testimony tracks with the science involving asbestos-related diseases and does not veer into “every exposure” or specific causation testimony, a federal judge said Nov. 28 in admitting three witnesses in a fourth ruling denying motions to strike various expert opinions in a case involving Libby, Mont., exposures.
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November 29, 2023
BU Trustees Ask 1st Circuit To Affirm Pandemic Closure Ruling
BOSTON — A trial court properly entered summary judgment for Boston University trustees in a putative class complaint brought by students after in-person classes transitioned to online-only in March 2020 due to the coronavirus pandemic as the school, like the University of Rhode Island in Burt v. Board of Trustees of the University of Rhode Island, “suffered financial loss rather than profit from the transition to remote instruction, and thus that Plaintiffs cannot prove restitution damages as a matter of law,” the trustees argue in their appellee brief filed Nov. 28 in the First Circuit U.S. Court of Appeals.
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November 29, 2023
Monsanto: Glyphosate Expert Warrants Exclusion, Affidavit Is Not An Expert Report
SAN FRANCISCO — Monsanto Co. filed a reply brief in California federal court on Nov. 28 contending that a plaintiff’s expert in a glyphosate cancer lawsuit should be excluded because the plaintiff has failed to provide information required by the Federal Rules of Civil Procedure and it is “undisputed” that the expert’s affidavit is not an expert report.
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November 28, 2023
6th Circuit: No Error In Excluding Treating Physician, Summary Judgment Affirmed
CINCINNATI — The Sixth Circuit U.S. Court of Appeals affirmed summary judgment awarded to a truck driver involved in a collision, finding that the man he struck did not prove causation and that his expert was properly excluded.