Mealey's Daubert
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June 19, 2018
Opioid-Pushing Doctor’s Conviction Upheld, As Is Medical Expert’s Testimony
ATLANTA — The 11th Circuit U.S. Court of Appeals on June 14 affirmed the conviction of a doctor for participating in opioid “pill mills” in Georgia, finding no abuse of discretion by the trial court in allowing a government expert to testify that the doctor’s conduct showed that he was more of a drug dealer than a health care provider (United States v. Romie Roland, No. 17-11058, 11th Cir., 2018 U.S. App. LEXIS 15941).
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June 19, 2018
New Jersey Appeals Court: Yaz/Yasmin Plaintiff Didn’t Provide Valid Expert Report
TRENTON, N.J. — A New Jersey appeals panel on June 18 agreed with a trial court that a Yaz/Yasmin plaintiff failed to provide a valid expert opinion to support her claim, resulting in dismissal with prejudice (Rhonda Fuller v. Bayer Corp., et al., No. A-4813-1574, N.J. Super., App. Div., 2018 N.J. Super. Unpub. LEXIS 1418).
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June 15, 2018
Monsanto: Supplemental Ruling Supports Summary Judgment In Roundup MDL
SAN FRANCISCO — Monsanto Co. filed a notice of supplemental authority in California federal court on June 12 that it contends supports its motion for summary judgment based on a failure of general causation proof in the multidistrict litigation for Roundup (In re: Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).
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June 14, 2018
Therapist Cannot Opine That Mortgage Dispute Caused Man’s Depression
PITTSBURGH — A mental health therapist cannot testify as an expert about whether the conduct of mortgage companies caused a man’s depression and anxiety because she admittedly based her opinions on just talking to the man as a friend she had met online, not as a licensed counselor, a Pennsylvania federal judge held June 12 (Francis Vilkofsky, Jr. v. Specialized Loan Servicing, LLC, et al., No. 2:16-cv-01291, W.D. Pa., 2018 U.S. Dist. LEXIS 97875).
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June 13, 2018
Lipitor MDL Plaintiffs Lose On Appeal As 4th Circuit Upholds Experts’ Rejection
RICHMOND, Va. — Finding no abuse or error in a federal judge’s exclusion of the causation opinions of three experts for thousands of women seeking to hold Pfizer Inc. liable for their diabetes, which they say was caused by using the popular cholesterol drug Lipitor, the Fourth Circuit U.S. Court of Appeals on June 12 affirmed a summary judgment ruling against the plaintiffs (In Re: Lipitor [Atorvastatin calcium] Products Liability Litigation, Nos. 17-1140, 17-1136, 17-1137, 17-1189, 4th Cir., 2018 U.S. App. LEXIS 15752).
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June 12, 2018
Legal Conclusions Doom Most Of Expert’s Opinions In Police Practices Case
ST. LOUIS — A police practices expert for a motorist who was run off a highway during a police chase and then mistakenly arrested cannot testify about the reasonableness of the conduct of the officers involved, a Missouri federal magistrate judge ruled June 8, saying the expert’s opinions mostly amount to inadmissible legal conclusions (Joseph Terrell Swink v. Joseph Mayberry, et al., No. 4:17-cv-791, E.D. Mo., 2018 U.S. Dist. LEXIS 96633).
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June 8, 2018
Louisiana Panel: Allowance Of Oyster Expert Proper In Suit Against Oil Driller
NEW ORLEANS — An oyster biologist has ample qualifications, and his methods to determine whether oil well activity killed most of the oysters in a couple’s oyster beds are sound, a Louisiana appeals court panel held June 6 in affirming judgment for the couple on their negligence claims against a drilling company (Pero Cibilic, et al. v. Cox Operating, L.L.C., No. 2017-CA-0813, La. App., 4th Cir., 2018 La. App. LEXIS 1181).
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June 8, 2018
Judge Slices Most Of Expert’s Opinions In Wrongful Death Suit Against Jail
WAYCROSS, Ga. — An expert for a widower in a wrongful death action against medical personnel had most of his opinions trimmed from his expert report June 6 by a Georgia federal judge due to lack of compliance with Federal Rule of Evidence 702, Fed. R. Evid. 702 (Sredrick Jones v. Wallace Steve Anderson, D.O., et al., No. 5:17-cv-77, S.D. Ga., 2018 U.S. Dist. LEXIS 95315).
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June 7, 2018
Expert In Texas Patent Case Cleared To Testify To $1.5 Billion In Damages
MARSHALL, Texas — Efforts by Samsung Electronics Co. Ltd. and other defendants to bar an expert from testifying that they owe at least $1.5 billion in damages for patent infringement were unsuccessful on June 5, when a Texas federal magistrate judge denied their joint, sealed motion to exclude (Kaist IP US LLC v. Samsung Electronics Co. Ltd., et al., No. 16-1314, E.D. Texas, 2018 U.S. Dist. LEXIS 93876).
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June 6, 2018
Pipeline Owner Awarded Summary Judgment In Suit Over 2014 Spill
TUSCALOOSA, Ala. — A federal judge in Alabama on June 4 awarded summary judgment to a pipeline company on plaintiffs’ claims for violations of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA), finding that a 2014 spill was not an ongoing violation and that the plaintiffs were unable to produce reliable expert evidence to show that any remaining gasoline vapors presented an imminent threat to human health (Day LLC, et al. v. Plantation Pipe Line Co., et al., No. 16-cv-00429-LSC, N.D. Ala., 2018 U.S. Dist. LEXIS 93749).
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June 6, 2018
Federal Judge OKs Use Of Company Employees As Experts
SAN DIEGO — Two nonretained experts for a company that makes auto transmissions can offer opinions as experts, rather than as lay witnesses, even though they both work for the company, which is trying to fend off product liability class claims, a California federal judge decided June 4 (Carlos Victorino, et al. v. FCA US LLC, No. 16-cv-1617, S.D. Calif., 2018 U.S. Dist. LEXIS 93776).
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June 5, 2018
7th Circuit: Plaintiff Needs Expert To Pursue Broken IUD Complaint
CHICAGO — The Seventh Circuit U.S. Court of Appeals on June 4 affirmed a lower court ruling that a plaintiff must designate an expert to testify as to why an intrauterine device (IUD) broke while it was being removed (Cheryl Dalton v. Teva North America, et al., No. 17-1990, 7th Cir., 2018 U.S. App. LEXIS 14709).
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June 5, 2018
Attorney Says Evidence He Presented To Jury Didn’t Violate Daubert Ruling
SEATTLE — Corporate representative testimony referencing a memo in which a future employee discusses the toxicity of asbestos was not excluded by a judge’s Daubert ruling on the every exposure theory, a lawyer argues in a May 22 response to an order to show cause why the court shouldn’t impose sanctions (Geraldine Barabin v. Scapa Dryer Fabrics Inc., No. 07-1454, W.D. Wash.).
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June 4, 2018
Judge: Expert’s Opinions In Defective Ladder Case Deserve Daubert Scrutiny
SCRANTON, Pa. — A Pennsylvania federal judge said May 31 that he must first hold a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), before he decides a ladder maker’s request to strike expert testimony for a man who was injured when he fell from a ladder and now says the ladder was defective (Dennis Mercurio, et al. v. Louisville Ladder, Inc., No. 3:16-cv-412, M.D. Pa., 2018 U.S. Dist. LEXIS 92111).
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June 1, 2018
Expert’s Scrutiny Of Missouri’s Life Sentences For Youths Passes Muster
JEFFERSON CITY, Mo. — Missouri prison officials lost their bid to strike expert testimony on the constitutionality of sentencing juvenile offenders to mandatory life in prison without parole, with a federal judge on May 30 saying she will rule on the admissibility of the expert’s opinions at trial (Norman Brown, et al. v. Anne L. Precythe, et al., No. 2:17-cv-04082, W.D. Mo., 2018 U.S. Dist. LEXIS 89793).
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May 29, 2018
9th Circuit Affirms Expert Witness Rulings In Arrestee’s Police Lawsuit
SAN FRANCISCO — A federal court made proper determinations when allowing a police practices expert to testify while excluding testimony from a medical expert for a man who says he was injured by police when they used excessive force to arrest him, the Ninth Circuit U.S. Court of Appeals held May 24 in an unpublished opinion (Gregory Kelly v. Las Vegas Metropolitan Police Department, et al., No. 15-16175, 9th Cir., 2018 U.S. App. LEXIS 13743).
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May 25, 2018
Panel Reverses Dismissal Of Expert Report In Nursing Home Negligence Suit
DALLAS — The Fifth District Texas Court of Appeals on May 22 reversed a trial court’s dismissal of a plaintiff’s amended expert report in a lawsuit alleging that a nursing facility’s negligence contributed to the death of one of the facility’s residents because the amended expert report established a causal relationship between the breach of the standard of care and the injuries that ultimately led to the resident’s death (Vickie Jones, et al. v. Ashford Hall Inc., et al., No. 05-16-01402, Texas App., 5th Dist., 2018 Tex. App. LEXIS 3653).
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May 25, 2018
No Prejudice Found In Use Of Surgeon As Expert Without Full Disclosure
WEST PALM BEACH, Fla. — A Florida court did not abuse its discretion in allowing a treating physician in a personal injury case to testify as an expert witness about causation and permanency of injuries, even though the doctor was not designated as an expert witness as required by a trial preparation order, a state appellate panel held May 23 (Robert Walerowicz v. Mandy Nicky Armand-Hosang, No. 4D17-1900, Fla. App., 4th Dist., 2018 Fla. App. LEXIS 7272).
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May 18, 2018
Nebraska Supreme Court Affirms Exclusion Of Accutane Causation Expert
LINCOLN, Neb. — The Nebraska Supreme Court on May 18 affirmed the exclusion of a plaintiff’s sole causation expert in an Accutane bowel injury case, saying the expert’s methodology failed to meet case law standards (Aimee Freeman v. Hoffman-La Roche Inc., et al., No. 300 Neb. 47, Neb. Sup.).
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May 17, 2018
With No Error On Expert Ruling, Summary Judgment Appropriate, 11th Circuit Holds
ATLANTA — A Florida federal court did not abuse its discretion in excluding an expert’s opinion that pollution from a fertilizer factory caused or worsened a woman’s pulmonary diseases, and then awarding the factory judgment for lack of expert causation evidence, because the court correctly found that the expert’s “methodology was undermined by multiple defects,” the 11th Circuit U.S. Court of Appeals said May 14 (Rhonda Williams v. Mosaic Fertilizer, LLC, No. 17-10894, 11th Cir., 2018 U.S. App. LEXIS 12478).