Mealey's Daubert

  • September 18, 2020

    Judge Rejects Experts' Regulatory Levels Reliance In Asbestos Environmental Case

    INDIANAPOLIS — Experts attempting to opine that plaintiffs are at an increased risk of disease largely rely on evidence that asbestos and other contaminates exceed regulatory levels rather than discussing doses of exposure and causation, a federal judge in Indiana said Sept. 16 in excluding the opinions in an environmental exposure case (Amos Hostetler, et al. v. Johnson Controls Inc., et al., No. 15-226, N.D. Ind., 2020 U.S. Dist. LEXIS 169526).

  • September 17, 2020

    Federal Judge Admits 3 Asbestos Experts, Excludes Tobacco Historian

    NEW ORLEANS — A federal judge in Louisiana on Sept. 11 admitted three experts' testing and testimony regarding the use of asbestos products, their release of dust and the role tobacco plays in lung cancer but excluded a historian's testimony regarding tobacco, saying that while the expert was qualified, there was insufficient evidence supporting his methodology (Callen Dempster, et al. v. Lamorak Insurance Co., et al., No. 20-95, E.D. La.).

  • September 17, 2020

    Judge Looks To Recent Precedent In Allowing Crash Expert To Testify

    SAN JUAN, Puerto Rico — A forensic engineer can testify that a highway authority's negligence caused a fatal accident in a construction zone, a federal judge in Puerto Rico held Sept. 14, saying the authority was asking him to go beyond his gatekeeping role of determining whether the expert's testimony was admissible (Carlos Ortiz De Jesus, et al. v. Andres Reyes Burgos, Inc., et al., No. 17-2349, D. Puerto Rico, 2020 U.S. Dist. LEXIS 168986).

  • September 16, 2020

    Federal Judge Rules On Competing Daubert Motions In Driver's Suit Against FedEx

    SEATTLE — A Washington federal judge on Sept. 11 trimmed the proposed testimony of two experts for FedEx and denied the company's bid to exclude an expert for a truck driver who is pursuing disability discrimination and wrongful discharge claims against FedEx (David Goldstine v. FedEx Freight, Inc., No. 18-1164, W.D. Wash., 2020 U.S. Dist. LEXIS 166747).

  • September 16, 2020

    Connecticut High Court Rejects Asbestos Class Action's Medical Monitoring Claims

    HARTFORD, Conn. — The Connecticut Supreme Court on Sept. 14 rejected medical monitoring claims asserted in asbestos plaintiffs' class action, saying that even if the state recognized such claims, the cause of action would require expert testimony that the specific individuals suffered cellular changes and evidence supporting the relief (Danny Dougan v. Sikorsky Aircraft Corp., et al., No. SC20271, Conn. Sup., 2020 Conn. LEXIS 198).

  • September 16, 2020

    Class Certification Denied For 2nd Time In Nissan Transmission Lawsuit

    SAN JOSE, Calif. — In a case on remand from the Ninth Circuit U.S. Court of Appeals after an earlier denial of class certification was reversed, a federal judge in California on Sept. 13 again denied certification of a class and subclass of consumers who allegedly purchased vehicles with faulty transmissions from Nissan North America Inc. for failure to establish typicality due to untimely claims and, in the same order, denied as moot Daubert motions to exclude expert evidence (Huu Nguyen v. Nissan North America, Inc., No. 16-5591, N.D. Calif., 2020 U.S. Dist. LEXIS 167789).

  • September 15, 2020

    Judge Allows Expert's Shipping Opinions In Denying Judgment On Injury Claims

    NEW YORK — A federal judge in New York on Sept. 14 denied summary judgment to Wal-Mart Stores Inc. on negligence claims leveled by a paper products company worker who was injured while unloading cardboard bales from the retailer after the judge found that an industry standards expert's opinions are reliable (Luis Uzhca, et al. v. Wal-Mart Stores, Inc., et al., No. 17-3850, S.D. N.Y., 2020 U.S. Dist. LEXIS 167662).

  • September 15, 2020

    Summary Judgment Denied After Expert Opinions On Alleged Faulty Lift Allowed

    PORTLAND, Ore. — An injured boom lift operator — with most of his engineering experts' opinion intact — provides sufficient evidence to defeat summary judgment on his claims that the lift manufacturer made a defective product and failed to warn about its hazards, an Oregon federal judge decided Sept. 11 (Mark Bowden v. United Rentals [North America] Inc., et al., No. 17-1411, D. Ore., 2020 U.S. Dist. LEXIS 166618).

  • September 14, 2020

    Response Waived In Couple's Petition Over 'Multiple Chemical Sensitivity' Opinions

    WASHINGTON, D.C. — The U.S. Supreme Court will decide without a response whether to grant certiorari in a case challenging the reliability of experts' opinions on a woman's "multiple chemical sensitivity" diagnosis after an Ohio county engineer on Sept. 8 said he will not file an opposition to the woman's petition for review (Cynthia Madej, et vir v. Jeff Maiden, No. 20-227, U.S. Sup., 2020 U.S. S. CT. BRIEFS LEXIS 2591).

  • September 09, 2020

    Judge Excludes Experts' New Opinions Regarding Contamination In Pallets

    DAYTON, Ohio — A federal judge in Ohio on Aug. 31 excluded newly submitted expert testimony that pallets burned in an air curtain destructor (ACD) owned and operated by an alleged predecessor to Waste Management of Ohio Inc. (WMO) at the South Dayton Dump and Landfill contained hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, finding that the opinions were filed after the close of expert discovery and that the conversion of WMO's motion to dismiss to a motion for summary judgment did not reopen discovery (Hobart Corporation, et al. v. The Dayton Power & Light Co., et al., No. 13-cv-115, S.D. Ohio, 2020 U.S. Dist. LEXIS 157993).

  • September 08, 2020

    Maryland High Court Says Nonparty Medical Negligence Claims Need Expert Testimony

    ANNAPOLIS, Md. — A trial court erred in allowing two radiologists to raise the issue of nonparty negligence and to submit it to the jury without supporting expert testimony in an action over the late diagnosis of a man's inoperable lymph node cancer, the Maryland Court of Appeals concluded Aug. 24.  It affirmed an appeals court ruling and remanded to the trial court for further proceedings (American Radiology Services LLC, et al. v. Martin Reiss, No. 50, Md. App., 2020 Md. LEXIS 376).

  • September 06, 2020

    Illinois Court Throws Out $50 Million Award For Birth Injury, Remands For New Trial

    CHICAGO — The exclusion of a child's autism diagnosis as evidence deprived a jury of relevant information in determining causation and damages, an Illinois appellate panel concluded Aug. 21, vacating a $50.3 million award to the child for the severe brain injury he suffered at birth and remanding for a new trial (Julien Florez, et al. v. NorthShore University HealthSystem, et al., No. 1-19-0465, Ill. App., 1st Dist., 2020 Ill. App. LEXIS 560).

  • September 02, 2020

    Expert For Farm Co-Op Stricken In Suit Over Failed Sugar Silos

    MINNEAPOLIS — A lack of calculations by an engineering expert makes his opinions unreliable and irrelevant to a jury, a Minnesota federal judge ruled Aug. 31 in excluding the expert's testimony in a farming cooperative's breach of contract suit over faulty silos (Southern Minnesota Beet Sugar Cooperative v. Agri Systems, No. 17-5552, D. Minn., 2020 U.S. Dist. LEXIS 157852).

  • September 01, 2020

    Split Maryland High Court: New Trial Needed On Evidence Standard In Lead Case

    ANNAPOLIS, Md. — The Maryland Court of Appeals on Aug. 28 issued a divided opinion in which it remanded a lead-based paint poisoning case to deal with the issue of whether the plaintiff's expert's testimony was properly admitted pursuant to Maryland's rules of evidence (Stanley Rochkind v. Starlena Stevenson, No. 47, Sept. Term, 2019, Md. App., 2020 Md. LEXIS 414).

  • August 28, 2020

    HR Expert's Opinions Admitted In Sex Bias Suit By Phoenix Ex-Employee

    PHOENIX — A federal judge in Arizona on Aug. 27 found a human resources expert's opinions on standard HR practices when responding to worker complaints reliable and relevant enough to be admissible, over the objections of Phoenix and a city official in a former employee's sex discrimination and retaliation suit (Christina M. Madsen v. Phoenix, et al., No. 19-3182, D. Ariz., 2020 U.S. Dist. LEXIS 155467).

  • August 25, 2020

    3rd Circuit Splits, But Affirms Exclusion Of Police Expert's Testimony

    PHILADELPHIA — A Third Circuit U.S. Court of Appeals panel divided on whether a police practices expert was properly excluded in an excessive force case against two Pennsylvania state troopers, with the majority in an Aug. 21 opinion affirming based on a lack of reliability of the expert's source material (Thomas A. Wood, et al. v. Trooper Prestyn K. Showers, et al., No. 19-3267, 3rd Cir., 2020 U.S. App. LEXIS 26648).

  • August 24, 2020

    6th Circuit Affirms Parents' Partial Fault For Son's Accident While Biking To School

    CINCINNATI — A divided Sixth Circuit U.S. Court of Appeals panel on Aug. 11 affirmed a lower court ruling that the parents of a boy who was injured when he was hit by a truck while bicycling to school after missing his bus could not recover damages because a jury found the parents more than 50 percent responsible for the accident in an action they filed against the school bus company (A.K., et al. v. Durham School Services LP, Nos. 18-6008 and 18-6020, 6th Cir., 2020 U.S. App. LEXIS 25405).

  • August 24, 2020

    Judge Rejects Some Experts In Asbestos Environmental Drift Case

    INDIANAPOLIS — Testimony regarding regulatory compliance and photo analysis does not meet the standard for admissibility in an asbestos case, but testimony regarding the behavior of airborne asbestos and wind conditions are admissible, a federal judge in Indiana said Aug. 21 (Amos Hostetler, et al. v. Johnson Controls Inc., et al., No. 15-226, N.D. Ind., 2020 U.S. Dist. LEXIS 151437).

  • August 20, 2020

    Dual-Role Testimony Error Did Not Harm Drug Defendant, 8th Circuit Says

    ST. LOUIS — While a federal court erred in the way it allowed a police officer to give both expert and lay testimony at the trial of an Iowa man for selling heroin, the mistake was harmless because there was ample other evidence to convict him, the Eighth Circuit U.S. Court of Appeals concluded Aug. 19 (United States v. Thomas D. Overton, No. 19-2574, 8th Cir., 2020 U.S. App. LEXIS 26280).

  • August 20, 2020

    9th Circuit Vacates Smuggling Conviction For Lack Of Reliability Ruling On Expert

    PHOENIX — A truck driver was convicted of smuggling marijuana into the United States in a load of peppers after a drug agent told the jury that the chances of the driver being kidnapped by Mexican drug cartel members and then forced to drive the drugs across the border as he claimed were "almost nil," but a divided Ninth Circuit U.S. Court of Appeals held Aug. 19 that the trial court failed to determine whether the agent's expert testimony was reliable (United States v. Enrique Valencia-Lopez, No. 18-10482, 9th Cir., 2020 U.S. App. LEXIS 26309).