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Mealey's Daubert

  • October 18, 2018

    North Carolina Panel Nixes Convicted Killer’s Appeal For ‘Invited Error’

    RALEIGH, N.C. — A man convicted of murder cannot challenge the admissibility of a firearm expert’s unqualified opinion at trial because his own attorney elicited the expert’s opinion on cross-examination, a North Carolina Court of Appeals panel held Oct. 16 in dismissing the man’s appeal (North Carolina v. Craig Deonte Hairston, No. COA17-1357, N.C. App., 2018 N.C. App. LEXIS 1030).

  • October 17, 2018

    Judge Cuts 1 Opinion From Experts’ Testimony In Suit Over Marina Fire

    SEATTLE — Deductive reasoning about the cause of a marina fire that destroyed several boats is not enough to make an expert’s opinion reliable, a Washington federal judge held Oct. 15 in partly excluding expert testimony for an insurer seeking subrogation from a boat owner (Certain Underwriters at Lloyd’s, London v. Jeff Pettit, No. 17-259, W.D. Wash., 2018 U.S. Dist. LEXIS 176836).

  • October 17, 2018

    Social Security Backs 6th Circuit In Ruling On Experts For Disability Cases

    WASHINGTON, D.C. — There is no provision in federal regulations or law requiring vocational experts at Social Security proceedings to substantiate their opinions to provide the mandated “substantial evidence” of job availability, and none should be created by the U.S. Supreme Court in its review of evidentiary standards for such proceedings, a Social Security Administration official tells the high court in her Oct. 15 brief on the merits (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).

  • October 17, 2018

    Magistrate Judge Limits Some Testimony, Evidence In Massage Injury Case

    MIAMI — A Florida federal magistrate judge on Oct. 5 partially granted and partially denied motions to limit expert witness testimony and evidence filed by both sides in a personal injury lawsuit against Carnival Corp. and Steiner Transocean Ltd. by a woman who alleges that her hip was fractured while receiving spa services aboard a ship (Dawn Dawsey v. Carnival Corp., et al., No. 16-23939, S.D. Fla., 2018 U.S. Dist. LEXIS 172512).

  • October 16, 2018

    Florida Top Court Rejects Daubert, Reinstates Asbestos, Tobacco Verdict

    TALLAHASSEE, Fla. — The Legislature’s adoption of the Daubert standard involved procedural rules properly within the scope of the court’s powers, and an appeals court improperly applied it to exclude expert testimony relied on in an $8 million judgment against asbestos and tobacco companies, a majority of the Florida Supreme Court said Oct. 15 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

  • October 15, 2018

    5th Circuit Reverses Exclusion Of Expert In Sewage Pollution Row

    NEW ORLEANS — A federal trial court improperly excluded opinions of an environmental expert, the Fifth Circuit U.S. Court of Appeals decided Oct. 10 in vacating summary judgment to apartment complex owners accused of polluting a neighbor’s pond with sewage (Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., et al., No. 17-30742, 5th Cir., 2018 U.S. App. LEXIS 28535).

  • October 12, 2018

    Expert Testimony Trimmed In Personal Injury Suit Against Iberia Airline

    MIAMI — Two longtime airline pilots can testify as experts for a couple suing Spain’s flag carrier airline for injuries suffered during severe turbulence, though they cannot offer opinions about the flight crew’s state of mind, a Florida federal magistrate judge held Oct. 11 (Fanny Quevedo, et al. v. Iberia, Lineas Aereas de Espana, S.A. Operadora Unipersonal, No. 17-21168, S.D. Fla., 2018 U.S. Dist. LEXIS 174771).

  • October 11, 2018

    Magistrate Limits Engineer’s Testimony On Damage To Informant’s Car

    MILWAUKEE — A federal magistrate judge in Wisconsin on Oct. 3 ruled that an engineer could provide expert testimony on ballistics and the shape of an indentation on the rear driver’s side door of an informant’s car because he was qualified to proffer his opinions but that he was unqualified to discuss trace elements that would have been left behind on the door, as well as the credibility of the defendant (United States v. Derrick L. Harris, et al., No. 17-CR-167, E.D. Wis., 2018 U.S. Dist. LEXIS 170537).

  • October 11, 2018

    Judge: Expert’s Visual Inspection Reliably Supports Opinion About Tire

    BUFFALO, N.Y. — A federal judge in New York on Sept. 28 denied a defendant company’s motion to exclude the testimony of a couple’s liability expert, who opines that a defect in a motorcycle tire caused it to unexpectedly blow out, finding that the expert’s visual inspection of the object was a reliable methodology to support his opinion (Daniel Griffith, et al. v. Goodyear Dunlop Tires North America Ltd., No. 11-CV-761S, W.D. N.Y., 2018 U.S. Dist. LEXIS 187976).

  • October 10, 2018

    Insurer’s Liability Experts Can Testify About Cause Of Fire, Judge Rules

    AKRON, Ohio — An Ohio federal judge on Oct. 9 declined to exclude two liability experts for an insurer seeking subrogation from an electric company for a fire that damaged two buildings, leaving it to a jury to decide if they are credible witnesses (Frankenmuth Mutual Insurance Company v. Ohio Edison Company, No. 5:17-cv-2013, N.D. Ohio, 2018 U.S. Dist. LEXIS 173609).

  • October 9, 2018

    Exclusion Of Security Expert Testimony On Festival Attack Affirmed By 7th Circuit

    CHICAGO — A premises security expert’s failure to explain the reasoning behind his conclusions about the security at a Wisconsin music festival where a plaintiff was severely beaten rendered his testimony inadmissible, the Seventh Circuit U.S. Court of Appeals affirmed Sept. 27.  A lower court correctly held that without the expert’s testimony, a jury would not be able to find in favor of the plaintiff, it added (Joshua Milligan, et al. v. Rock on the River Inc., et al., No. 18-1204, 7th Cir., 2018 U.S. App. LEXIS 27557).

  • October 4, 2018

    Judge Admits Colgate’s Experts, Largely Rejects Asbestos-Talc Plaintiff’s Experts

    ATLANTA — An expert’s asbestos-talc opinions cannot be admitted in light of failures that created a “costly guessing game he foisted on defense experts,” a federal judge in Georgia held Sept. 24 in largely rejecting a plaintiff’s experts and admitting the defendant’s experts (Douglas B. Hanson, et al. v. Colgate-Palmolive Co., No. 16-034, S.D. Ga.).

  • September 28, 2018

    1 Of Plaintiff’s 2 Experts Excluded In Injury Case Over Cruise Mishap

    MIAMI — A man whose finger was amputated in a shipboard accident during a cruise lost his liability expert for lack of qualifications and reliable methodology but got to keep his medical expert in a Sept. 26 ruling in his personal injury suit against the cruise line in Florida federal court (Mark Horne v. Carnival Corporation, No. 1:16-cv-21842, S.D. Fla., 2018 U.S. Dist. LEXIS 165205).

  • September 21, 2018

    Judge Keeps Expert, Denies Judgment In Tribal Police Chase Fatal Crash Suit

    PRESCOTT, Ariz. — The United States is not entitled to summary judgment for wrongful death claims involving the death of three family members during a police chase because the surviving family member’s representative presents issues of genuine fact about whether a tribal police officer’s pursuit caused the crash, an Arizona federal judge held Sept. 17 (Kaori Stearney v. United States, No. 16-08060, D. Ariz., 2018 U.S. Dist. LEXIS 157790).

  • September 20, 2018

    Injured Worker’s Alleged Drug Use Not Proper Expert Testimony, Judge Says

    NEW ORLEANS — While testimony from a medical expert about the drug behavior of a man seeking damages for injuries he suffered working on an offshore oil rig may be relevant to why the man filed suit, it is far too prejudicial to be admitted at trial, a Louisiana federal judge held Sept. 18 (Torrey Thomas v. W&T Offshore, Inc., No. 16-14694, E.D. La., 2018 U.S. Dist. LEXIS 158918).

  • September 20, 2018

    Cert Sought Over Rulings On Experts In Depakote Birth Defect Case

    WASHINGTON, D.C. — U.S. Supreme Court intervention is needed to repair the damage done to Daubert jurisprudence when the Second Circuit U.S. Court of Appeals upheld exclusion of a mother’s causation experts in her attempt to hold a drugmaker liable for her child’s birth defects, she tells the high court in her Sept. 7 petition for a writ of certiorari (N.K. v. Abbott Laboratories, No. 18-327, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 3358).

  • September 18, 2018

    Expert Testimony In Prisoner Hepatitis C Class Action Stays In, Judge Says

    NASHVILLE, Tenn. — A Tennessee federal judge, on the recommendation of a magistrate judge, on Sept. 13 declined to exclude expert opinion testimony for prison officials accused of violating the civil rights of a class of prisoners with hepatitis C (Charles Graham, et al. v. Tony C. Parker, et al., No. 3:16-cv-1954, M.D. Tenn., 2018 U.S. Dist. LEXIS 156296).

  • September 17, 2018

    Expert Opinions Help Cancer Sufferer Beat Railroad’s Judgment Bid

    NEW ORLEANS — A railroad company accused of causing a worker’s cancer by regularly exposing him to a hazardous and carcinogenic chemical in the course of his work lost its bid for summary judgment in the worker’s lawsuit on Sept. 14, when a Louisiana federal judge held that he presented sufficient expert evidence, which the judge had admitted in separate orders two days before (Alvin J. Porte v. Illinois Central Railroad Company, No. 17-5657, E.D. La., 2018 U.S. Dist. LEXIS 157007).

  • September 14, 2018

    Experts’ Testimony In Injury Suit Withstands Challenge, Except For 1 Statement

    HOUSTON — A woman suing an airline in Texas federal court for injuries she suffered in a collision of passenger carts in an airport terminal failed for the most part Sept. 13 at getting expert evidence excluded from her case, the exception being a medical expert’s disparaging statement about her (Judy Ann Shaw v. United Airlines, Inc., et al., No. 4:17-cv-267, S.D. Texas, 2018 U.S. Dist. LEXIS 155838).

  • September 14, 2018

    All Expert Testimony Survives Vetting In Ponzi Scheme Insurance Case

    MIAMI — In two orders, a Florida federal magistrate judge on Sept. 12 denied bids by both sides to exclude expert testimony in an insurance coverage dispute created by the billion-dollar Ponzi scheme of South Florida lawyer Scott Rothstein (Michael I. Goldberg, et al. v. Aon Risk Services, Northeast, Inc., No. 13-21653, S.D. Fla., 2018 U.S. Dist. LEXIS 155362, 2018 U.S. Dist. LEXIS 155363).