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Mealey's Daubert

  • April 19, 2018

    Federal Judge Cuts Expert’s Testimony In Suit Over Traffic Stop

    TRENTON, N.J. — A New Jersey federal judge on April 16 nixed seven out of eight opinions offered by an expert for a man who says he was injured by a police officer’s excessive force during a routine traffic stop; the judge then further barred the expert from making several assertions to support his eighth and final opinion (Barsoum S. Israel v. Lieutenant Dean R. Smith, et al., No. 13-cv-0097, D. N.J., 2018 U.S. Dist. LEXIS 64043).

  • April 18, 2018

    1st Bair Hugger Bellwether Trial Will Proceed May 14 After Pretrial Rulings

    MINNEAPOLIS — The first bellwether trial in the Bair Hugger multidistrict litigation will proceed after the Minnesota federal judge overseeing the MDL on April 13 denied exclusion of three plaintiff experts and only partly granted defense motions for summary judgment (Louis Gareis, et al. v. 3M Company, et al., No. 16-4187, D. Minn., 2018 U.S. Dist. LEXIS 62568).

  • April 17, 2018

    Federal Magistrate Judge Upholds Validity Of Eye Test Testimony In DUI Cases

    YOSEMITE, Calif. — An eye movement field sobriety test is a reliable method for determining if a person is intoxicated, and a trained police officer can testify about his administration of the test and whether the suspect failed it, a California magistrate judge ruled April 16 in convicting a man of drunken driving in Yosemite National Park (United States v. Kenneth S. McAdams, No. 6:16-mj-0063, E.D. Calif., 2018 U.S. Dist. LEXIS 63837).

  • April 17, 2018

    Judge Limits Attorney’s Expert Testimony To Insurance Industry Standards

    GULFPORT, Miss. — An expert for a man accused of making material misrepresentations to his insurance companies can provide testimony regarding industry standards between an agent and the insured, a federal judge in Mississippi ruled April 13, but the expert cannot proffer legal conclusions about those standards (American Zurich Insurance Co., et al. v. Curtis Guilbeaux, No. 16cv354-LG-RHW, S.D. Miss., 2018 U.S. Dist. LEXIS 62614).

  • April 16, 2018

    Judge Limits Testimony Of Trucking Company’s Experts In Fraud Suit

    BILLINGS, Mont. — A federal judge in Montana on April 12 limited the testimony of two experts for a trucking company accused of insurance fraud for submitting claims for reimbursement following an explosion caused by its transport of natural gas condensate, holding that one expert could not discuss whether the explosion was the result of criminal activity and the other could not opine about the company’s state of mind (United States of America v. Woody’s Trucking LLC, et al., No. CR 17-138, D. Mont., 2018 U.S. Dist. LEXIS 62271).

  • April 16, 2018

    Rulings On Experts Play Into Judge’s $3.7 Million Award For Motorcyclist’s Death

    FLORENCE, S.C. — The widow of a motorcyclist killed in a crash involving a U.S. mail vehicle was awarded $3.7 million in damages from the federal government April 12 by a South Carolina federal judge, who upheld two government experts’ use of several driving safety standards and then relied on their testimony to find that the motorcyclist was also slightly at fault for following other cyclists in his group too closely (Kimberly L. Jackson v. United States, No. 4:16-cv-03219, D. S.C., 2018 U.S. Dist. LEXIS 61922).

  • April 13, 2018

    Claim That Benzene Caused Leukemia Falls With Dismissal Of Experts, Panel Rules

    DENVER — The 10th Circuit U.S. Court of Appeals on April 10 agreed with a trial court that opinions of two experts that long-ago exposure to benzene caused a woman’s leukemia failed due in part to a lack of reliability in their methods and that without the expert’s testimony, summary judgment on causation to defendant oil companies is appropriate (Samantha Hall v. Conoco Inc., et al., No. 17-6086, 10th Cir., 2018 U.S. App. LEXIS 8944).

  • April 9, 2018

    Expert Opinions In Baby Products Row Cleared By Federal Judge In Louisiana

    MONROE, La. — A Louisiana federal judge on April 6 rebuffed all attempts by a company in the baby products business to prevent two experts for a rival company from testifying in the rival’s breach of contract action, finding that attacks on the experts’ opinions are better suited for cross-examination (Luv n’ care, Ltd. v. Groupo Rimar, aka Suavinex, No. 14-2491, W.D. La., 2018 U.S. Dist. LEXIS 59271).

  • April 6, 2018

    Economist’s Testimony On Animal Welfare Limited In Egg Antitrust MDL

    PHILADELPHIA — Although declining to outright bar an economist from offering expert testimony about animal welfare in a price-fixing multidistrict litigation against egg producers, a Pennsylvania federal judge on April 5 made clear that the expert’s opinions will be limited, saying he “will not be permitted to appear as an animal welfare expert in economist’s clothing” (In re:  Processed Egg Products Antitrust Litigation, No. 08-md-2002, E.D. Pa., 2018 U.S. Dist. LEXIS 57990).

  • April 5, 2018

    Accident Expert’s Opinions Fail To Prove Causation, 5th Circuit Panel Finds

    NEW ORLEANS — An accident reconstructionist presents only “conclusory allegations” in opining on what caused a timber-laden tractor-trailer to flip over on a highway ramp, so a trial court correctly awarded the timber company summary judgment on the truck driver’s negligence lawsuit, a Fifth Circuit U.S. Court of Appeals panel decided April 3 (Danny Barefoot v. Weyerhaeuser NR Company, No. 17-30362, 5th Cir., 2018 U.S. App. LEXIS 8321).

  • April 4, 2018

    1st Circuit Rejects Use Of Daubert For Social Security Vocational Experts

    BOSTON — The First Circuit U.S. Court of Appeals, in an April 3 opinion written by a retired U.S. Supreme Court justice, declined to adopt any Daubert standard for the admissibility of vocational expert testimony in Social Security disability proceedings, finding that an expert’s reliance on commonly used software to determine the availability of jobs falls well within the flexible “substantial evidence” standard for such proceedings (Rita Purdy v. Nancy A. Berryhill, No. 16-2242, 1st Cir., 2018 U.S. App. LEXIS 8462).

  • April 4, 2018

    Judge Rejects Expert’s Human Anatomy Testimony In Asbestos Dryer Felt Trial

    SEATTLE — A federal judge presiding over the retrial of a $10.2 million Washington asbestos case on March 30 excluded an expert’s testimony regarding asbestos and its interaction with human anatomy, finding the general testimony of “minimal probative value” (Geraldine Barabin v. Scapa Dryer Fabrics Inc., No. 07-1454, W.D. Wash., 2018 U.S. Dist. LEXIS 54869).

  • April 3, 2018

    FELA’s Causation Standard Doesn’t Alter Asbestos Expert Admissibility, Court Says

    FORT WORTH, Texas — The featherweight standard for causation in Federal Employers Liability Act (FELA) cases does not require courts to also relax the expert admission standard, a Texas appeals court held March 2 (BNSF Railway Co, et al. v. Leonard A. Baca, No. 02-17-00168-CV, Texas App., 2nd Dist., 2018 Tex. App. LEXIS 2280).

  • April 3, 2018

    Lack Of Reliability Dooms Experts’ Opinions In Plane Hangar Fire Suit

    FORT WORTH, Texas — Two experts for a man who blames a defective space heater for the loss of his private aircraft and hangar in a fire cannot testify that the heater was defective or that a defect in the heater caused the fire because their opinions are not reliable, a Texas federal judge ruled April 2 (David Barnett v. Procom Heating, Inc., No. 4:17-cv-380, N.D. Texas, 2018 U.S. Dist. LEXIS 55598).

  • March 29, 2018

    4th Circuit: Expert Rulings Proper In Case Alleging Navy Gun Silencer Conspiracy

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on March 28 upheld the conviction of a former Navy director of intelligence for illegally paying a California machinist $1.6 million in government funds to make 349 untraceable gun silencers for the Navy that did not work, finding in part that the trial court properly admitted testimony by the government expert who tested the silencers (United States v. Mark Stuart Landersman, a/k/a Mark Stuart, United States v. Lee Hall, Nos. 16-4066, 16-4067, 4th Cir., 2018 U.S. App. LEXIS 7755).

  • March 27, 2018

    New Trial Not Warranted For Finding That Offender Is Not Sexually Violent Predator

    TOPEKA, Kan. — While a trial court may have erred in admitting the results of two tests conducted by an expert for a man’s sexually violent predator proceeding, the error was harmless because the results were established by other evidence, a Kansas appeals court held March 23 in affirming the lower court’s finding that the state failed to establish that the man is a sexually violent predator (In re Alejandro Garcia, No. 117677, Kan. App., 2018 Kan. App. Unpub. LEXIS 215).

  • March 26, 2018

    Appeals Court Finds Expert’s Opinions Do Not Support Summary Judgment Ruling

    DETROIT — A Michigan appeals panel on March 13 overturned a trial court judge’s ruling awarding partial summary judgment to a plaintiff in a medical malpractice suit, finding that the judge erred when granting the motion without first deciding if expert testimony submitted on behalf of the plaintiff was admissible under Daubert v. Merrell Dow Pharmaceuticals Inc. (Victor Khzouz, et al. v. Stephen Mendelson M.D., et al., No. 333901, Mich. App., 2018 Mich. App. LEXIS 475).

  • March 22, 2018

    Supreme Court Won’t Review Mirena MDL Expert, Judgment Rulings

    WASHINGTON, D.C. — The U.S. Supreme Court on March 19 declined to wade into a dispute over a Second Circuit U.S. Court of Appeals ruling excluding experts from the Mirena multidistrict litigation or its finding that the company’s own alleged admissions on causation could not save the litigation (Mirena MDL, et al. v. Bayer Healthcare Pharmaceutical Inc., et al., No. 17-1037, U.S. Sup.).

  • March 19, 2018

    Judge Partially Excludes Law Enforcement Expert’s Testimony On Stun Gun Incident

    ST LOUIS — Although a law enforcement expert can testify as to national policing standards and other items in relation to the use of a stun gun on a robbery suspect, a Missouri federal judge on March 9 partially granted a motion filed by police deputies to exclude his testimony as to whether a deputy acted reasonably and on the version of events that occurred the day of the theft (Jessica A. Sloan v. Deputy Greg Long, No. 4:16 CV 86, E.D. Mo., 2018 U.S. Dist. LEXIS 38604).

  • March 19, 2018

    Justices Reject Daubert Challenge To Exclusion Of ‘Human Factor’ Testimony

    WASHINGTON, D.C. — The U.S. Supreme Court on March 19 denied certiorari for an assault defendant’s challenge under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), to a Florida trial court’s exclusion of expert testimony on human factors in responding to a threat (John Chiarenza v. State of Florida, No. 17-1012, U.S. Sup.).