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Mealey's Daubert

  • August 16, 2017

    Federal Magistrate Judge: Expert’s Opinion On Bath Mat’s Suitability Is Reliable

    KNOXVILLE, Tenn. — A mathematician can provide expert testimony regarding the suitability of a bath mat that allegedly caused a woman to slip and fall after coming out of a shower stall in a condominium, a federal magistrate judge in Tennessee ruled Aug. 11, holding that the expert was qualified and that the methodology underlying his opinion is reliable (Phyllis G. Barnes, et al. v. Greg Malinak, et al., No. 15-cv-556-PLR-HBG, E.D. Tenn., 2017 U.S. Dist. LEXIS 127600).

  • August 14, 2017

    Bayer, Plaintiffs Say They’ve Agreed To Settle Mirena IUD Perforation Claims

    NEW YORK — Despite the parties’ Aug. 11 disclosure that they have agreed to resolve Mirena intrauterine device (IUD) secondary perforation claims, the Second Circuit U.S. Court of Appeals that day denied a motion to adjourn Aug. 14 oral arguments about the exclusion of all plaintiffs causation experts and evidence by a New York federal multidistrict litigation judge (In Re:  Mirena IUD Products Litigation, Mirena MDL Plaintiffs v. Bayer HealthCare Pharmaceuticals Incorporated, No. 16-2890 and 16-2012, 2nd Cir.).

  • August 10, 2017

    Judge Axes Expert’s Late Report, Dismisses Negligence Claims Against Doctor

    ALBUQUERQUE, N.M. — A New Mexico federal judge on Aug. 8 awarded summary judgment to a doctor and his employer on an estate’s wrongful death claims after excluding a late-filed expert report as untimely and, therefore, prejudicial (John Faure v. Community Health Systems Professional Services Corporation, et al., No. 1:14-cv-559, D. N.M., 2017 U.S. Dist. LEXIS 125558).

  • August 9, 2017

    Expert Testimony In Patent, Trade Secrets Action Allowed By Federal Judge

    SHERMAN, Texas — A Texas federal judge on Aug. 7 declined to exclude testimony from two experts for a pharmaceutical company asserting patent infringement and trade secret misappropriation claims against rival companies, ruling that the experts’ opinions meet all standards for expert testimony (Tech Pharmacy Services, LLC v. Alixa Rx LLC, et al., No. 4:15-cv-766, E.D. Texas, 2017 U.S. Dist. LEXIS 124423, 2017 U.S. Dist. LEXIS 123990).

  • August 8, 2017

    9th Circuit Again Finds Fault In Expert Witness Rulings In Water Contamination Row

    PASADENA, Calif. — A federal trial court abused its discretion twice when making two expert witness decisions against a California city, and the errors were prejudicial to the city in its claims that its groundwater was polluted by a chemical in a company’s fertilizer products, the Ninth Circuit U.S. Court of Appeals held Aug. 7 in vacating the trial court’s judgment and remanding for a new trial (City of Pomona v. SQM North America Corporation, No. 15-56062, 9th Cir., 2017 U.S. App. LEXIS 14491).

  • August 7, 2017

    Deficient Expert Witnesses Doom Storm Damage Claims, Judge Rules

    LOUISVILLE, Ky. — A Kentucky federal judge on Aug. 4 awarded an insurance company summary judgment on claims for additional coverage for storm damage after finding that the business owners’ expert witness disclosures “were clearly deficient” and that even if they weren’t, the experts’ opinion are unreliable (Advanced Mechanical Services, Inc., et al. v. Auto-Owners Insurance Company, No. 3:14-cv-388, W.D. Ky., 2017 U.S. Dist. LEXIS 123277).

  • August 4, 2017

    Court Delineates Rules For Vetting 1 Expert Substituting For Another

    ST. THOMAS, Virgin Islands — A Virgin Islands trial court erred in deciding a motion to substitute one expert for another by sua sponte looking at the qualifications of the first expert and not examining the qualifications and methodology of the substitute expert, the Virgin Islands Supreme Court held Aug. 1 in deciding issues on interlocutory appeal in a worker’s suit to recover for job-related injuries (Francis Edward v. GEC, LLC, No. 2017-0025, Virgin Islands Sup., 2017 V.I. Supreme LEXIS 46).

  • August 3, 2017

    Credit Reporting Expert Excluded For Lack Of Proper Opinions

    DETROIT — A Michigan federal magistrate judge on Aug. 2 excluded the opinions and testimony of an expert witness for a man alleging unfair credit reporting after finding that the expert’s opinions are improper legal conclusions and his methods are unreliable (Ibrahim Barakat v. Equifax Information Services, LLC, et al., No. 16-10718, E.D. Mich., 2017 U.S. Dist. LEXIS 121377).

  • August 2, 2017

    Plaintiff Seeks Interlocutory Appeal On Expert Exclusion In Bypass Machine Case

    SALT LAKE CITY — A Utah federal judge on July 18 vacated a trial date in a heart/lung bypass machine wrongful death case after the plaintiff indicated her desire to get an interlocutory appeal of the judge’s order severely limiting the testimony of her causation expert at an upcoming trial (Buzzie Smith, et al. v. Terumo Cardiovascular Systems Corporation, Inc., et al., No. 12-998, D. Utah, Central Div., 2017 U.S. Dist. LEXIS 108205).

  • August 2, 2017

    Drug Detection Testimony Properly Allowed, 11th Circuit Panel Says

    ATLANTA — The 11th Circuit U.S. Court of Appeals on Aug. 1 upheld the convictions of five men on cocaine trafficking charges after affirming the trial court’s allowance of expert testimony by a U.S. Coast Guard officer on technology used by law enforcement to detect trace amounts of drugs (United States of America v. Vanston Venner Williams, et al., No. 15-15360, 11th Cir., 2017 U.S. App. LEXIS 13906).

  • August 1, 2017

    Lipitor MDL Plaintiffs Tell 4th Circuit Judge Erred In Expert Testimony Rulings

    RICHMOND, Va. — Plaintiffs alleging that the statin drug Lipitor caused diabetes on July 28 told the Fourth Circuit U.S. Court of Appeals that a multidistrict litigation judge erred when he excluded causation opinions of two experts and granted summary judgment against more than 3,000 plaintiffs (In Re:  Lipitor [Atorvastatin] Products Liability Litigation, Nos. 17-1140[L], 17-1136, 17-1137, 17-1189, 4th Cir.).

  • August 1, 2017

    Accounting Expert Allowed In Action Over Failed Car Dealerships

    OKLAHOMA CITY — A financial expert can testify for three former shareholders of failed car dealerships in their defense of a company’s claims against them for repayment of a business loan, an Oklahoma federal judge said July 31after finding that the expert’s opinions are reliable and based on sound methods (Southampton, Ltd., et al. v. Vahid Salalati, et al., No. 14-852, W.D. Okla., 2017 U.S. Dist. LEXIS 119598).

  • July 31, 2017

    6th Circuit Reverses Exclusion Of Heat Stroke Diagnosis In Man’s Death

    CINCINNATI — Relatives of a man who died in his 93-degree apartment who sued a utility company for wrongful death for denying the man utility services due to lack of a photo ID can present testimony from a medical expert that the man died from “probable heat stroke,” a divided Sixth Circuit U.S. Court of Appeals ruled July 27 (Dorothy Mae Johnson, et al. v. Memphis Light Gas & Water Division, No. 16-6143, 6th Cir., 2017 U.S. App. LEXIS 13765).

  • July 31, 2017

    New Jersey Appeals Panel Reinstates 2 Accutane Experts, 2,076 Dismissed Cases

    TRENTON, N.J. — A New Jersey appeals court panel on July 28 reversed the exclusion of two plaintiff experts from the state’s Accutane multicounty litigation, reinstating 2,076 cases that had been dismissed (In Re:  Accutane Litigation, Nos. A-4698-14T1 and A-0910-16T1, N.J. Super., App. Div., 2017 N.J. Super. LEXIS 116).

  • July 28, 2017

    Police Expert’s False Confession Opinions Barred In Wrongful Conviction Case

    CHICAGO — An expert in police practices for a woman suing Chicago police after being wrongly convicted of murdering her young son cannot testify at trial about coercive interrogations and false confessions because he is not qualified to offer such testimony, an Illinois federal judge ruled July 27 (Nicole Harris v. City of Chicago, et al., No. 14-4391, N.D. Ill., 2017 U.S. Dist. LEXIS 117613).

  • July 26, 2017

    Reconsideration Of Exclusion Of Cumulative Exposure Asbestos Testimony Sought

    CHARLESTON, S.C. — A medical expert’s opinion that exposure to asbestos in gaskets substantially contributed to the entire dose that caused a man’s mesothelioma simply reiterates scientific fact and is sufficiently case-specific to avoid being the “every exposure” theory, a man told a federal judge on July 24 in asking that he reconsider his ruling excluding the testimony (John E. Haskins and Mary L. Haskins v. 3M Co., et al., No. 15-2086, James Willson Chesher, et al. v. 3M., No. 15-2123, D. S.C., 2017 U.S. Dist. LEXIS 113657).

  • July 26, 2017

    9th Circuit Rebukes Judge For Dismissal Of Man’s Claims Against Police

    SEATTLE — The Ninth Circuit U.S. Court of Appeals on July 24 removed a Montana federal judge from a case involving an environmentalist who was cited by local police during a buffalo herding operation at Yellowstone National Park, after finding that the judge committed several errors and may have excluded expert testimony just because he disagreed with it (Anthony Patrick Reed v. Doug Lieurance, et al., Nos. 15-35018, 15-35179, 9th Cir., 2017 U.S. App. LEXIS 13272).

  • July 24, 2017

    Ohio Court: Unsworn Asbestos Causation Testimony Meets Prima Facie Requirements

    CLEVELAND — Expert asbestos medical testimony that echoes the requirements in Ohio law is sufficient to make a prima facie case and need not be a signed document, an Ohio appeals court held July 20 (Kevin E. Howell v. Consolidated Rail Corp., et al., No. 104554, Ohio App., 8th Dist., 2017 Ohio App. LEXIS 2984).

  • July 21, 2017

    Testosterone MDL Judge Won’t Reconsider Allowing Adverse Event Testimony By Plaintiffs

    CHICAGO — The Illinois judge overseeing the testosterone multidistrict litigation on July 11 refused to reconsider his ruling allowing plaintiff expert Dr. Hossein Ardehali to rely on adverse event reports  (In Re:  Testosterone Replacement Therapy Products Liability Litigation, No. 14-1748, N.D. Ill., 2017 U.S. Dist. LEXIS 106446).

  • July 20, 2017

    Judge: Cumulative Exposure, ‘Every Exposure’ Theories Are Equally Inadmissible

    BALTIMORE — Expert testimony that asbestos “cumulates” in the body and leads to disease is indistinguishable from the theory that every exposure to asbestos leads to disease and is inadmissible under federal rules and Daubert v. Merrell Dow Pharm., Inc., a federal judge in Maryland held July 17 in granting summary judgment in a prominent attorney’s case alleging bystander exposure (Jeffrey Rockman, et al. v. Union Carbide Corp., et al., No. 16-1169, D. Md., 2017 U.S. Dist. LEXIS 110181).