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Mealey's Daubert

October 26, 2023
California Federal Judge Allows Expert In Trademark Dispute Over Shades Of Blue

SAN FRANCISCO — A California federal judge found that a “color consultant” expert can testify in a dispute over a trademark but ruled that she cannot opine on a likelihood of confusion between the two products.
October 25, 2023
10th Circuit Finds No Error In Expert Testimony On Disclosure Of Child Sex Abuse

DENVER — The 10th Circuit U.S. Court of Appeals on Oct. 24 rejected the argument of a man convicted of aggravated sexual abuse of a child who said the lower court improperly admitted testimony on child-sexual-abuse disclosures and affirmed his conviction.
October 25, 2023
Kentucky Appeals Court: Experts In Elder Negligence Care Case Properly Excluded

LOUISVILLE, Ky. — Experts retained by a family that sued their mother’s care facility for negligence were unqualified to opine on the standard of care or medical causation, a Kentucky appeals court found, ruling that summary judgment for the facility was appropriate.
October 25, 2023
Federal Judge: Expert Out In Case Alleging TCPA Violations; Certification Denied

ALEXANDRA, Va. — An expert failed to show that her methodology used to define members of a proposed class was reliable in a case alleging that Capital One violated the Telephone Consumer Protection Act by making prerecorded phone calls to non-customers, a Virigina federal judge ruled, excluding her testimony.
October 24, 2023
Rebuttal Witness To Survey Results Ruled Admissible In Trademark Dispute

SOUTH BEND, Ind. — Forest River Inc., a manufacturer of recreational vehicles, lost its bid to exclude an expert witness retained to rebut conclusions reached by its expert who conducted a consumer survey when an Indiana federal judge found that the expert’s opinions are admissible in the trademark infringement dispute.
October 23, 2023
Md. Appeals Court: No Error In Expert Testimony In Construction Contract Dispute

ANNAPOLIS, Md. — A Maryland appeals court found no error in a trial court allowing expert testimony in a construction contract dispute, also rejecting the contracting company’s other arguments in its appeal of a $2.5 million award.
October 23, 2023
Georgia Federal Magistrate Judge Limits Testimony On Source Of COVID-19 Infection

SAVANNAH, Ga. — An expert can testify that a longshoreman did not contract COVID-19 while aboard a vessel but he cannot opine on alternative sources of infection, a federal magistrate judge in Georgia ruled.
October 23, 2023
Judge Says Contractor Can Testify On Observation But Not Considered An Expert

LAFAYETTE, La. — A Louisiana federal judge granted a motion to exclude an expert witness in a dispute over proceeds from an insurance claim for damage caused by a hurricane, finding that the contractor is not qualified to opine on the scope of the repairs.
October 23, 2023
Flint Judge Excludes Expert’s In Utero Lead Exposure Opinion, Allows Others

ANN ARBOR, Mich. — A federal judge in Michigan on Oct. 20 ruled that a plaintiffs’ expert in the litigation pertaining to the lead-contaminated water crisis in the city of Flint, Mich., can testify on lead exposure in the city and its effect on cardiovascular and reproductive health, but he is excluded from testifying about the implications of in utero exposure.
October 19, 2023
Expert Testimony OK’d In Suit Against Walmart, But Jury Returns Defense Verdict

RALEIGH, N.C. — A North Carolina federal jury found that a woman did not prove that Walmart acted in a negligent manner, finding for the retailer in a personal injury case alleging injuries resulting from a parking lot crash, a week after the judge ruled that her treating physician could offer expert testimony.
October 19, 2023
BU Students Seek Reversal Of Summary Judgment Ruling In Pandemic Closure Suit

BOSTON — A trial court erred when it granted summary judgment to the trustees of Boston University (BU) in a putative class complaint brought after in-person classes transitioned to online-only in March 2020 due to the coronavirus pandemic, the students who brought the complaint write in an omnibus appellant brief filed in the First Circuit U.S. Court of Appeals, arguing that the ruling came after the court “correctly identified disputed issues of material fact.”
October 16, 2023
5th Circuit: Expert Designation Unnecessary To Enter Retrieved Cell Phone Data

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Oct. 13 refused to overturn a man’s conviction for sex trafficking of a minor after finding no error in the district court’s ruling that allowed a police investigator to testify on data retrieved from a cell phone without being deemed an expert under Federal Rule of Evidence 702.
October 16, 2023
Accident Reconstruction Expert Met Daubert Standards For Testimony, Judge Says

VALDOSTA, Ga. — A Georgia federal judge denied a motion to exclude an accident reconstruction expert retained by a man who says he was injured after falling from a utility-boom truck’s bucket.
October 13, 2023
MDL Judge: Experts Can Opine Only On General Causation In Vaccine Injury Case

PHILADELPHIA — Experts retained by a man who alleges that his shingles vaccine caused him to develop Guillain-Barré syndrome (GBS) can speak on general causation but are barred from opining on specific causation, the Pennsylvania federal judge overseeing the Zostavax multidistrict litigation ruled.
October 12, 2023
Firm Says Plaintiffs’ Expert Should Be Excluded In Flint Water Crisis Litigation

ANN ARBOR, Mich. — An engineering firm that has been named as a defendant in the litigation related to the lead-contaminated water crisis in Flint, Mich. on Oct. 11 filed a supplemental brief in Michigan federal court arguing that the plaintiffs “should not be allowed to surprise [the firm] with new claims for damages this late into the litigation,” therefore, the court should exclude the plaintiffs’ expert’s testimony about in utero lead exposures.
October 12, 2023
Judge Approves Class In PFAS Case Against DuPont Related To Cape Fear River

WILMINGTON, N.C. — A federal judge in North Carolina has granted class certification to plaintiffs in a long-running lawsuit against E.I. du Pont de Nemours & Co. and its affiliates related to claims that they dumped per- and polyfluoroalkyl substances (PFAS) in the Cape Fear River, resulting in groundwater contamination that caused injuries to resident in the area.
October 10, 2023
Panel Affirms Dismissal Of Deepwater Horizon Injury Case For Lack Of Causation

NEW ORLEANS — A panel of the Fifth Circuit U.S. Court of Appeals in an unpublished opinion has agreed with a lower court’s decision that a plaintiff’s medical experts failed to show causation in a lawsuit against BP Exploration & Production Inc. related to injuries the plaintiff allegedly sustained while assisting with the cleanup of the Deepwater Horizon oil spill.
October 10, 2023
Expert Testimony Limited In Case Alleging Medical Malpractice In Embryo Testing

CHICAGO — An Illinois federal magistrate judge agreed to limit expert testimony offered by a fertility clinic and a testing laboratory that were sued by a couple who gave birth to a daughter with a genetic defect while also finding that the couple’s expert can testify about the child’s future medical needs.
October 10, 2023
Justice Finds AI DNA Testing Tool Admissible In New York Murder Case

BROOKLYN, N.Y. — The fact that an artificial intelligence program used to identify and match DNA and solve a cold-case murder has come under criticism can be investigated on cross-examination but is not grounds to exclude the testing done by the program, a New York justice said in denying a motion to exclude.
October 09, 2023
MDL Judge: Causation Expert Out In Zostavax Injury Bellwether Case

PHILADELPHIA — The Pennsylvania federal judge overseeing the Zostavax multidistrict litigation found that proposed testimony from the causation expert retained by the next bellwether plaintiff is inadmissible under Daubert v. Merrell Dow Pharmaceuticals Inc.
October 09, 2023
Washington Federal Judge Tosses Experts Retained In Slip-And-Fall Case

SEATTLE — An expert retained by a man who fell inside a Home Depot does not offer any testimony that is beyond the knowledge of a lay juror, and another expert is excluded as a sanction for untimely disclosure, a Washington federal judge ruled.
October 06, 2023
10th Circuit Finds No Error In Excluding Testimony In Fraud, False Statement Case

DENVER — The 10th Circuit U.S. Court of Appeals on Oct. 5 found no error in a trial court’s decision to exclude expert testimony offered on behalf of a man facing fraud charges stemming from a bankruptcy petition, nor did it find any error in the court’s rejecting of his proffered jury instruction.
October 04, 2023
Portions Of Expert Report In Ohio Copyright Case Will Be Stricken

CLEVELAND — Although rejecting a copyright owner’s assertion that a defense expert’s rebuttal was untimely, a federal magistrate judge in Ohio on Oct. 3 agreed that the rebuttal makes improper legal arguments about the two-step substantial similarity test employed in the Sixth Circuit U.S. Court of Appeals.
October 04, 2023
New Jersey Court Faults Asbestos-Talc Expert Admissions, Topples $224M Award

NEW BRUNSWICK, N.J. — Given the apparent defects in expert opinions a trial judge improperly admitted three asbestos experts in a talc case without first holding a hearing on whether their methodologies and opinions were reliable, a New Jersey appeals court said Oct. 3 in reversing a $223.8 million verdict against Johnson & Johnson and remanding for a new trial.
September 26, 2023
Judge: Plaintiffs’ Expert’s Methodology ‘Well-Supported,’ Opinion Is Admissible

ANN ARBOR, Mich. — A federal judge in Michigan on Sept. 25 denied defendants’ motion to exclude a plaintiffs expert in the litigation related to the lead-contaminated water crisis in the city of Flint, Mich., ruling that the methodology he used is “well-supported” in that he uses sources upon which other experts have relied in the case and uses data derived from the Michigan Department of Environmental Quality (MDEQ), which included the water lead levels observed during the Flint water crisis.