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Mealey's Daubert

  • December 02, 2019

    Most Expert Testimony On Car Dealership’s Value Allowed In Franchise Row

    HONOLULU — Two expert witnesses for a Hawaiian car dealership can testify about the value of the business to determine damages in the franchisee’s improper business practices suit against the franchisor, Volvo Car USA LLC, though they cannot mention estimated 2017 financial results because the business never provided the actual results, a federal judge ruled Nov. 26 (Envy Hawaii LLC v. Volvo Car USA LLC, No. 1:17-cv-40, D. Hawaii, 2019 U.S. Dist. LEXIS 206319).

  • December 02, 2019

    Colorado Federal Judge Allows Expert Testimony In ERISA Class Action

    DENVER — Expert witnesses for both sides can testify at trial on what are reasonable record-keeping and administrative fees for overseeing an employee 401(k) plan because their methods are reliable enough to allow their opinions, a Colorado federal judge held Nov. 26 (Lorraine M. Ramos, et al. v. Banner Health, et al., No. 1:15-cv-2556, D. Colo., 2019 U.S. Dist. LEXIS 205155).

  • December 02, 2019

    Class Partly Certified, 1 Expert Excluded In Facebook ‘View As’ Data Breach Suit

    SAN FRANCISCO — In a Nov. 26 order, a California federal judge granted class certification for injunctive purposes only in a lawsuit over a data breach that affected the “view as” feature on Facebook Inc.’s social network, while also declining to certify a damages class and issuing a split ruling on Facebook’s motions to strike the opinions of two of the plaintiff’s expert witnesses (Stephen Adkins v. Facebook, Inc., No. 3:18-cv-05982, N.D. Calif.).

  • November 27, 2019

    Doubts About Gun Toolmark Testing Prompt Judge To Limit Expert’s Opinions

    BROOKLYN, N.Y. — Mindful of a new report refuting the validity of firearms toolmark analysis, a New York federal judge on Nov. 26 allowed an expert witness for the government to testify but made clear that the expert cannot opine that a shell found at a crime scene definitively came from the defendant’s gun (United States v. Alonzo Shipp, No. 1:19-cr-29, E.D. N.Y., 2019 U.S. Dist. LEXIS 205397).

  • November 27, 2019

    Residents’ Proposed Class Over Contamination Cannot Be Certified, Judge Rules

    FORT WAYNE, Ind. — A federal judge in Indiana on Nov. 18 denied certification of a proposed class of residents in Andrews, Ind., who complain that their properties and the town’s drinking water are contaminated as a result of the operations of two businesses in the middle of town, holding that the claims among class members lack typicality and that a class action is not the best vehicle to advance resolution of the lead plaintiffs’ claims (Opal Millman, et al. v. United Technologies Corp., et al., No. 16-CV-312-HAB, N.D. Ind., 2019 U.S. Dist. LEXIS 199595).

  • November 26, 2019

    4th Circuit:  Lack Of Detail Does Not Derail Expert Ruling In Sex Trafficking Case

    RICHMOND, Va. — While a trial court’s ruling allowing an expert witness to testify for the government to prove a child pornography charge was “quite brief,” any error was harmless as there was ample other evidence to convict the defendant, the Fourth Circuit U.S. Court of Appeals ruled Nov. 25 (United States v. Shahid Hassan Muslim, No. 16-4304, 4th Cir., 2019 U.S. App. LEXIS 35178).

  • November 26, 2019

    Woman Defends Causation, Navy Experts In Asbestos Spat With John Crane Inc.

    TACOMA, Wash. — An asbestos defendant never identifies the specific expert testimony it wants a court to exclude, likely because the experts in question never offer the testimony as portrayed by the company, a woman told a federal judge in Washington on Nov. 25.  In a Nov. 22 ruling, the judge granted a different defendant summary judgment while denying the plaintiff partial relief (Sherri L. Deem, et al. v. Air & Liquid Systems Corporation, et al., Nos. 17-5965, 18-5527, W.D. Wash.).

  • November 25, 2019

    Appraisal Expert’s Value Of Condemned Land Stricken By Tennessee Federal Judge

    NASHVILLE, Tenn. — An expert witness for a property owner in a land condemnation proceeding cannot opine on the value of the land being taking for a powerline easement because his estimate of the compensation due to the landowner is unreliable, a Tennessee federal judge ruled Nov. 22 (United States v. An Easement and Right-of-Way Over 3.74 Acres of Land in Montgomery County, Tennessee, et al., No. 3:17-cv-01539, M.D. Tenn., 2019 U.S. Dist. LEXIS 203318).

  • November 20, 2019

    Florida High Court Refuses To Disturb $9.6M Construction Defects Verdict

    TALLAHASSEE, Fla. — The Florida Supreme Court on Nov. 12 refused to accept jurisdiction over D.R. Horton Inc. – Jacksonville’s request for review of an appeals court’s ruling affirming the admissibility of two experts’ opinions about construction defects and repair recommendations, thus cementing a condominium owners’ association’s $9.6 million verdict (D.R. Horton Inc. – Jacksonville v. Heron’s Landing Condominium Association of Jacksonville Inc., No. SC19-352, Fla. Sup., 2019 Fla. LEXIS 1935).

  • November 19, 2019

    Judge Finds No Expert Testimony Supports Man’s Claim In Dispersant Exposure Case

    GULFPORT, Miss. — A federal judge in Mississippi on Nov. 15 awarded summary judgment to BP Exploration & Production Inc. in a man’s suit claiming that he developed pneumonia and acute respiratory failure as a result of his exposure to oil and chemical dispersants during the cleanup of the oil spill in the Gulf of Mexico that followed the explosion of the Deepwater Horizon oil rig in April 2010, finding that the man presented no reliable expert testimony to show that his exposure to the chemicals caused his injuries (Blaine McGill v. BP Exploration & Production Inc., et al., No. 18CV159-LG-RHW, S.D. Miss., 2019 U.S. Dist. LEXIS 198359).

  • November 19, 2019

    Judge Permits Experts’ Opinions In Suit Over Business Deal Gone Awry

    PHOENIX — Two experts for a semiconductor company asserting fraud and contract breach claims against a fabricating company can testify about lost development support damages and the semiconductor fabrication industry in general because their opinions are helpful and reliable, an Arizona federal judge held Nov. 15 (IceMOS Technology Corporation v. Omron Corporation, No. 2:17-cv-2575, D. Ariz., 2019 U.S. Dist. LEXIS 198397).

  • November 18, 2019

    Expert Testimony On PTSD Allowed In Camping Trip Sex Assault Case

    SCRANTON, Pa. — A Pennsylvania federal magistrate judge on Nov. 15 allowed expert testimony on post-traumatic stress disorder from both sides in a suit over an alleged sexual assault during a youth overnight camping trip but rejected testimony from an expert for the camp operator on the faultiness of human memory (R.D. v. Shohola, Inc., No. 3:16-cv-01056, M.D. Pa., 2019 U.S. Dist. LEXIS 198035).

  • November 14, 2019

    Federal Judge OKs Damages Testimony In Suit Over Police Shooting

    DETROIT — Two economic damages experts for a man who sued police officers for his shooting injuries can testify at trial, though one expert cannot offer the legal opinion that the injured man is “totally disabled,” a Michigan federal judge held Nov. 13 (Eduardo Jacobs v. Raymon Alam, et al., No. 15-10516, E.D. Mich., 2019 U.S. Dist. LEXIS 196226).

  • November 13, 2019

    Police Expert Allowed To Opine On Washington County’s Hiring Of Officer

    SEATTLE — A police expert is sufficiently qualified to opine that an officer who alleged beat and kicked an unarmed theft suspect should never have been hired as a policeman and that the county that hired him failed to conduct a proper background investigation, a Washington federal magistrate judge decided Nov. 12 (Robert John Preston v. Ryan Boyer, et al., No. 2:16-cv-1106, W.D. Wash., 2019 U.S. Dist. LEXIS 196004).

  • November 12, 2019

    Texas Federal Judge Allows Most Damages Opinions In Noncompete Dispute

    VICTORIA, Texas — An expert for debtor counterclaimants in a dispute among competing oil field industry services companies can opine on the amount of damages caused by the plaintiffs’ tortious acts, though he cannot offer several opinions made in a rebuttal report because the plaintiffs did not have a chance to respond to them, a Texas federal judge ruled Nov. 8 (Greta Yvette Mobley, et al. v. Quality Lease and Rental Holdings, LLC, et al., No. 6:16-cv-0006, S.D. Texas, 2019 U.S. Dist. LEXIS 194576).

  • November 12, 2019

    Damages Amount Opinion Excluded Due To Use Of Inaccurate Figures

    HATTIESBURG, Miss — While an accounting expert can testify about how to properly calculate a utility company’s damages for allegedly defective electrical transformers, any mention of the actual damages is off limits since the number of damaged units he used was inaccurate, a Mississippi federal judge held Nov. 8 (Caribbean Utilities Company, Ltd. v. Howard Industries, Inc., No. 2:17-cv-00179, S.D. Miss., 2019 U.S. Dist. LEXIS 194625).

  • November 11, 2019

    Federal Circuit Upholds Denial Of Award For Vaccine SIDS Death Claim

    WASHINGTON, D.C. — A majority of a Federal Circuit U.S. Court of Appeals panel on Nov. 7 affirmed a trial court’s reversal of compensation for parents who say their infant died from vaccinations that caused his sudden crib death, with a dissenting judge saying the ruling goes against the purpose of the National Childhood Vaccine Injury Act (Chase Boatmon, et al. v. Secretary of Health and Human Services, No. 18-2333, Fed. Cir., 2019 U.S. App. LEXIS 33295).

  • November 11, 2019

    Disclosure Of Facebook Source Code To 1 Expert Witness Nixed In Data-Scraping Row

    SAN FRANCISCO — A California federal magistrate judge delivered a mixed ruling for Facebook Inc. in a Nov. 7 discovery order, sustaining the social network’s objection to disclosing its source code to one of the proposed expert witnesses for a putative class suing it over scraping certain data from Android mobile devices, while finding that there was no risk of harm in disclosure to a second witness (Lawrence Olin, et al. v. Facebook Inc., No. 3:18-cv-01881, N.D. Calif.).

  • November 07, 2019

    6th Circuit Reinstates Nurse’s Bias Claim For Perceived Disability

    CINCINNATI — A trial court erred when it “overlooked too many genuine factual disputes” and “improperly excluded expert testimony” supporting a certified registered nurse anesthetist (CRNA) who claims that she was fired because her employer thought she was visually disabled even though she wasn’t, a Sixth Circuit U.S. Court of Appeals panel ruled Nov. 6 (Paula E. Babb v. Maryville Anesthesiologists P.C., No. 19-5148, 6th Cir., 2019 U.S. App. LEXIS 33165).

  • November 07, 2019

    Judge Admits Expert’s Opinion On Economic Factors In Clean Water Act Suit

    SEATTLE — A federal judge in Washington on Nov. 4 denied a defendant company’s motion to exclude the testimony of an expert who opines about the economic benefits that a trucking and salvage company obtained as a result of violating the Clean Water Act (CWA), as well as the economic impact of a civil penalty, holding that the defendant company is challenging only the expert’s methodology, which can be addressed during cross-examination (United States v. Bobby Wolford Trucking & Salvage Inc., et al., No. C18-747, W.D. Wash., 2019 U.S. Dist. LEXIS 191472).