Mealey's Daubert

  • December 7, 2017

    Preemption Summary Judgment Reversed By 9th Circuit In Incretin Mimetic MDL Appeal

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Dec. 6 unsealed its Nov. 28 opinion reversing summary judgment in the incretin mimetic multidistrict litigation, saying the MDL judge misapplied a U.S. Supreme Court precedent, improperly blocked discovery, misinterpreted what constituted new evidence and improperly disqualified a plaintiff expert (In Re:  Incretin-Based Therapies Products Liability Litigation, Jean Adams, et al. v. Merck Sharp & Dohme Corp., et al., No. 15-56997, 9th Cir., 2017 U.S. App. LEXIS 24674).

  • December 7, 2017

    Talc Plaintiff: Asbestos Case Survives Exclusion Of Experts

    PHILADELPHIA — The exclusion of two experts did little to change the state of a case as two other experts hold the same opinions regarding asbestos-contaminated talc’s role in causing mesothelioma, a woman told a Pennsylvania judge on Dec. 4 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. 151202987, Pa. Comm. Pls., Philadelphia Co.).

  • December 6, 2017

    With Expert Opinions Allowed, Insurer Denied Judgment On Home Damage Claims

    NASHVILLE, Tenn. — A Tennessee federal judge on Dec. 4 denied summary judgment to an insurer in a lawsuit over coverage for a damaged home after finding that testimony by the homeowners’ expert is admissible and raises a material factual dispute about whether a sinkhole caused the damage (Debra Daniels, et al. v. Erie Insurance Group, No. 3:16-cv-01977, M.D. Tenn., 2017 U.S. Dist. LEXIS 198906).

  • December 6, 2017

    9th Circuit Denies Try By Ex-InterMune CEO To Revisit Expert Witness Issue

    SAN FRANCISCO — Former InterMune Inc. CEO W. Scott Harkonen, M.D., on Dec. 4 lost another attempt to vacate his 2009 wire fraud conviction when the Ninth Circuit U.S. Court of Appeals said he and his trial counsel voluntarily decided not to present testimony by their own biostatistician and pulmonologist and there was no ineffective counsel (United States of America v. W. Scott Harkonen, M.D., No. 15-16844, 9th Cir., 2017 U.S. App. LEXIS 24475).

  • December 5, 2017

    Expert Testimony Limited In Suit Seeking Insurance Coverage For Emotional Distress

    MISSOULA, Mont. — One medical expert cannot opine that the actions of a beauty school caused 16 students to suffer emotional distress due to lack of reliability in the expert’s methods, but a second expert can offer her causation opinion based on her interviews with each of the students, a Montana federal judge held Dec. 4 in an insurance coverage declaratory judgment action (Breanne Walden, et al. v. Maryland Casualty Company, No. 13-222, D. Mont., 2017 U.S. Dist. LEXIS 198973).

  • December 4, 2017

    Expert Can Opine On Correctness Of Brain Injury Test, Magistrate Says

    SAN ANTONIO — A neuropsychologist can testify as an expert witness on the appropriateness of using a computer-based test called the “Starry Night” test in diagnosing a traumatic brain injury because he is sufficiently qualified and his testimony is reliable, a Texas federal magistrate judge ruled Dec. 1 in a personal injury lawsuit (Benjamin Koenig v. Anthony Beekmans, No. 5:15-cv-00822, W.D. Texas, 2017 U.S. Dist. LEXIS 197558).

  • December 1, 2017

    Airline Expert Permitted To Testify In Injured Worker’s Negligence Action

    MIAMI — An aviation industry expert can testify about whether the training received by a worker who was injured in an aircraft-moving tractor from an employee of the company that made the tractor was adequate but cannot offer opinions on the sales contract for the tractor because doing so involves issues of law, a Florida federal magistrate judge held Nov. 30 (Roy Maltez v. Trepel Airport Equipment GMBH, No. 16-24465, S.D. Fla., 2017 U.S. Dist. LEXIS 196458).

  • November 30, 2017

    Teva Urges Justices To Overturn 9th Circuit Ruling On Admissibility Of Experts

    WASHINGTON, D.C. — The Ninth Circuit U.S. Court of Appeals’ reversal of summary judgment for a drugmaker on a claim that its immunosuppressant drugs caused a young man’s death from cancer should be reviewed by the U.S. Supreme Court because the appeals court overstepped its bounds in reversing the exclusion of expert causation testimony, the drug company argues in a Nov. 20 petition for a writ of certiorari (Teva Pharmaceuticals USA, Inc. v. Stephen Wendell, et ux., No. 17-747, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4571).

  • November 30, 2017

    With Bench Trial Slated For Tribe’s Tax Claims, Judge Allows 7 Experts To Testify

    SEATTLE — A Washington federal judge on Nov. 27 denied seven motions to exclude expert testimony in an Indian tribe’s efforts to avoid state and county taxes for the town it developed, saying that with a bench trial scheduled rather than a jury trial, he will be able to determine at trial whether the experts’ testimony is proper (The Tulalip Tribes, et al. v. The State of Washington, et al., No. 2:15-cv-00940, W.D. Wash., 2017 U.S. Dist. LEXIS 194404).

  • November 29, 2017

    Expert Ballistics Evidence Fair Game In Man’s Gun Conviction, 9th Circuit Rules

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on Nov. 27 upheld a man’s conviction for being a felon in possession of a gun after finding that the trial court did not abuse its discretion in denying the man’s request to exclude a firearms examiner’s testimony and a written ballistics analysis (United States of America v. Valentino Johnson, Nos. 16-10184, 16-10225, 9th Cir., 2017 U.S. App. LEXIS 23911).

  • November 21, 2017

    Judge Certifies 6 Classes For Buyers Of Allegedly Defective Laminate Flooring

    SAN FRANCISCO — A federal judge in California on Nov. 15 certified classes for purchasers from California, Florida, Illinois, Minnesota, Pennsylvania and West Virginia who claim that Lumber Liquidators Inc. violated state consumer protection laws when selling bamboo laminate flooring that prematurely warped, buckled, splintered, shrank and split before the expiration of the product’s warranty (Dana Gold, et al. v. Lumber Liquidators, Inc., No. 14-cv-5373, N.D. Calif.).

  • November 21, 2017

    Companies: Fracking Plaintiffs ‘Take Liberty With The Facts’ In Disposal Lawsuit

    LITTLE ROCK, Ark. — Hydraulic fracturing companies on Nov. 16 filed a brief in Arkansas federal court contending that residents who have sued them alleging property damage as a result of the companies’ disposal of fracking waste “consistently take liberty with the facts to add more baseless sanctions noise to this case” (Bobbie Hill, et al. v. Southwestern Energy Co., No. 12-500, E.D. Ark.).

  • November 21, 2017

    Judge Resolves Motions To Exclude Testimony, Evidence In Reinsurer, Insurer Dispute

    UTICA, N.Y. — In a dispute over a $325 million settlement of asbestos claims, a New York federal judge on Nov. 16 addressed a number of motions filed by an insurer and a reinsurer to preclude expert testimony and certain arguments from trial (Utica Mutual Insurance Co. v. Fireman’s Fund Insurance Co., No. 09-00853, N.D. N.Y., 2017 U.S. Dist. LEXIS 189911).

  • November 16, 2017

    Architectural Expert’s Testimony Restricted In Home Design Copyright Case

    TOLEDO, Ohio — An architectural expert in a home design copyright infringement action cannot opine that a company’s designs do not merit copyright protection because the opinion is an impermissible legal conclusion, though the expert can testify about the similarities and differences between the parties’ designs, an Ohio federal judge held Nov. 14 (Design Basics LLC v. Forrester Wehrle Homes, Inc., et al., No. 3:15-cv-00666, N.D. Ohio, 2017 U.S. Dist. LEXIS 188005).

  • November 16, 2017

    Judge Orders Evidentiary Hearing In Groundwater Contamination Lawsuit

    ASHEVILLE, N.C. — A federal judge in North Carolina on Nov. 6 ordered a hearing on evidentiary issues in a groundwater contamination lawsuit, as a North Carolina resident and the company he contends dumped toxic chemicals in his water supply continue to debate what evidence is admissible in the case (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

  • November 16, 2017

    IT Specialist Can Opine On Falsity Of Investor Statements, Judge Says

    SHERMAN, Texas — An information technology specialist can testify about whether statements made to investors by the CEO of a computer server development company were false, but cannot opine on whether the statements were misleading, a Texas federal judge ruled Nov. 14 (Securities and Exchange Commission v. William E. Mapp, III, No. 4:16-cv-00246, E.D. Texas, 2017 U.S. Dist. LEXIS 188083).

  • November 15, 2017

    Monsanto: Glyphosate Cancer Evidence Is ‘Unreliable,’ Constitutes ‘Junk Science’

    SAN FRANCISCO — Monsanto Co. on Nov. 10 filed a brief in the multidistrict litigation for the herbicide Roundup in California federal court, arguing that the evidence offered by the plaintiffs’ expert concerning the carcinogenic properties of Roundup’s active ingredient glyphosate is “unreliable” and constitutes “junk science” (In re:  Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

  • November 14, 2017

    Fire Chief’s Testimony Tossed In Paramedic’s Wrongful Termination Suit

    SAN ANTONIO — A paramedic challenging his firing was successful in getting a fire chief’s expert testimony excluded from the case when a Texas federal judge ruled Nov. 13 that the chief’s testimony is not relevant and would not be helpful to a jury (Bryan Brightwell v. Bandera County, No. 5:16-cv-1216, W.D. Texas, 2017 U.S. Dist. LEXIS 186730).

  • November 14, 2017

    Risperdal Gynecomastia Defense Verdict Reversed On Appeal For ‘Expert’ Testimony

    PHILADELPHIA — A Pennsylvania state appeals court panel on Nov. 13 reversed a Risperdal gynecomastia defense verdict, finding that the trial court erred in not treating physician assistant’s testimony as that of a causation expert (W.C. v. Janssen Pharmaceuticals, Inc., et al., No. 2451 EDA 2015, Pa. Super., 2017 Pa. Super. LEXIS 909).

  • November 13, 2017

    Opinions That Accident Led To Death By Painkillers Allowed By Federal Judge

    PHILADELPHIA — Three of four doctors offering expert opinions in a wrongful death action can testify that an accident on a U.S. military base caused a man’s injuries and subsequent death from taking too many pain medications for the injuries, a Pennsylvania federal judge held Nov. 8, finding the causation opinions reliable enough to be admitted (Robert S. Evans v. United States of America, et al., No. 15-1839, E.D. Pa., 2017 U.S. Dist. LEXIS 185563).