Mealey's Daubert
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June 20, 2019
3rd Circuit: Expert’s Exclusion Proper In Injured Woman’s Failure-To-Warn Case
PHILADELPHIA — A New Jersey federal judge properly excluded expert testimony for a woman seeking to hold a personal watercraft maker liable for injuries she received in a fall from a watercraft, the Third Circuit U.S. Court of Appeals determined June 17 in also affirming judgment for the watercraft company (Angela Ruggiero v. Yamaha Motor Corporation, U.S.A., et al., No. 18-1206, 3rd Cir, 2019 U.S. App. LEXIS 18143).
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June 17, 2019
9th Circuit Reverses Class Denial In Generic Drug Price-Gouging Case
SAN FRANCISCO — Both named and unnamed plaintiffs in a drug-pricing class action allege the same injury from the same conduct, satisfying the typicality requirements for a class action, a Ninth Circuit U.S. Court of Appeals panel held June 14 in reinstating the class and expert testimony (Christopher Corcoran, et al. v. CVS Health, et al., No. 17-16996, 9th Cir.).
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June 14, 2019
4th Circuit Reverses Exclusion Of Experts In Suit Over Woman’s Death
RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on June 12 sent a negligence suit over an elderly woman’s death after taking pills that were mailed to the wrong address back to the trial court to conduct a Daubert analysis for three medical experts because their causation opinions were improperly disallowed (Michael A. Small v. WellDyne, Inc., et al., No. 18-1638, 4th Cir., 2019 U.S. App. LEXIS 17545).
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June 14, 2019
Judge In Mirena Brain Injury MDL Grants Summary Judgment For Lack Of Causation
NEW YORK — The New York federal judge overseeing the Mirena brain injury multidistrict litigation on June 11 granted summary judgment to defendant Bayer Corp. after he rejected the plaintiffs’ argument that they can still prove causation even after the court excluded their experts (In Re: Mirena IUS Levonorgestrel-Related Products Liability Litigation [No. II], Nos. 17-md-2767, S.D. N.Y., 2019 U.S. Dist. LEXIS 97904).
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June 11, 2019
All Experts Allowed In Suit Over Police Use Of Tasers On Man Who Died
SAN DIEGO — A California federal judge on June 7 turned down requests by both the estate of man who died after being repeatedly shocked by police with stun guns and the county and officers involved to exclude expert testimony in the estate’s excessive force lawsuit (Estate of Mark Roshawn Adkins, et al. v. San Diego, et al., No. 18-cv-00371, S.D. Calif., 2019 U.S. Dist. LEXIS 96311).
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June 11, 2019
8th Circuit Upholds Expert Witness Rulings In Drug-Trafficking Case
ST. LOUIS — A trial court properly used its discretion to allow, without a hearing under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), expert police officer testimony on the characteristics of drug dealing before finding the defendant guilty and sentencing him to more than 51 years in prison, the Eighth Circuit U.S. Court of Appeals determined May 30 (United States v. Terreall McDaniel, No. 18-1477, 8th Cir., 2019 U.S. App. LEXIS 16096).
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June 7, 2019
Judge Denies Motion To Exclude Damages Opinions In Trade Secrets Dispute
SHERMAN, Texas — A Texas federal judge on June 6 allowed a damages expert’s opinions and reports in a trade secrets misappropriation lawsuit after finding that his methods of calculation are reliable (Huawei Technologies Co. Ltd., et al. v. Yiren Ronnie Huang, et al., No. 17-0893, E.D. Texas, 2019 U.S. Dist. LEXIS 94702).
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June 4, 2019
Monsanto: Judgment As Matter Of Law, New Trial Needed In Glyphosate Cancer Case
SAN FRANCISCO — Monsanto Co. on May 31 filed a brief in federal court in California contending that the judge presiding over the multidistrict litigation for Roundup products liability claims should enter judgment for the company as a matter of law or order a new trial on all claims brought by a man who won $80,267,644.10 when a jury found that Roundup was a “substantial factor” in causing his cancer (In re: Roundup Products Liability Litigation [Hardeman v Monsanto], MDL No. 2741, No. 16-525, N.D. Calif.).
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May 31, 2019
Missouri Federal Judge OKs Causation Expert For Woman’s Vioxx MDL Case
KANSAS CITY, Mo. — A Missouri federal judge on May 28 declined a request by drugmaker Merck & Co. Inc. to exclude expert testimony linking a woman’s heart attacks to the arthritis pain drug Vioxx, saying the expert’s opinions “rest upon good grounds” under Eighth Circuit U.S. Court of Appeals precedent (Jo Levitt v. Merck & Company, Inc., No. 4:06-cv-00818, W.D. Mo., 2019 U.S. Dist. LEXIS 88454).
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May 29, 2019
Exclusion Of Expert Doesn’t Allow Sheriff To Avoid Civil Rights Claims
CINCINNATI — A Kentucky sheriff must face allegations that he lied about smelling raw marijuana while driving 150 feet away from a home after the Sixth Circuit U.S. Court of Appeals on May 22 reversed summary judgment in his favor on civil rights claims; however, the suing arrestees still cannot use their expert witness, the court said in affirming his exclusion for lack of qualifications and reliability (Pamela Blevins, et al. v. John Kirk, et al., No. 18-5369, 6th Cir., 2019 U.S. App. LEXIS 15290).
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May 24, 2019
Couple Can Pursue Building Defects Judgment From Newly Formed Company, Judge Says
CHICAGO — A couple who was awarded an $800,835 judgment against the developer who built their home for construction defects can attempt to obtain the amount from a development company that was formed shortly after the judgment was entered, a federal judge in Illinois ruled May 23 after granting the plaintiffs’ motion for summary judgment on claims for successor liability and piercing the corporate veil (Anthony Puntillo, et al. v. Dave Knecht Homes LLC, et al., No. 15 CV 11839, N.D. Ill., 2019 U.S. Dist. LEXIS 87223).
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May 23, 2019
Expert Allowed As Judge Denies Judgment To Insurer For Accidental Death Claims
FRESNO, Calif. — A California federal judge on May 21 denied summary judgment to an insurer on a widow’s breach of contract and bad faith claims over the death of her husband, which she says was caused by a fall, entitling her to accidental death benefits despite her husband’s history of dementia (Susan Vogt v. Minnesota Life Insurance Company, No. 1:17-cv-01580, E.D. Calif., 2019 U.S. Dist. LEXIS 85629).
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May 23, 2019
Judge Vacates Trial Date After Finding Insurer’s Expert’s Testimony Unreliable
SOUTH BEND, Ind.— A federal judge in Indiana on May 20 vacated a trial in a suit brought by an insurance company against a subcontractor that installed furnaces in a building’s roof trusses shortly before the roof partially collapsed after finding that the testimony proffered by the company’s structural engineering expert was unreliable (Affinity Mutual Insurance v. Thacker Air Conditioning-Refrigeration-Heating Inc., No. 16-CV-279 JD, N.D. Ind., 2019 U.S. Dist. LEXIS 84713).
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May 17, 2019
Summary Judgment Ruling In Trade Secret Suit Against PepsiCo Affirmed On Appeal
WASHINGTON, D.C. — A Federal Circuit U.S. Court of Appeals panel on May 16 ruled that a federal district court did not err in granting summary judgment in favor of PepsiCo Inc. and several of its affiliates on claims that they misappropriated another company’s aroma release technology trade secrets in developing their own in-house technology for failure to plead the necessary causation and damages required to sustain their breach of contract and trade secret misappropriation claims (ScentSational Technologies LLC v. PepsiCo Inc., et al., No. 2018-2091, Fed. Cir. 2019 U.S. App. LEXIS 14477).
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May 17, 2019
Lead Paint Plaintiffs: Court Should Exclude Defense Expert’s Testimony
MILWAUKEE — Plaintiffs who sued the former makers of lead-based paint on May 17 moved in Wisconsin federal court to exclude the testimony of a defense expert on grounds that the court has previously excluded most of his opinions, particularly those based on estimates of parental IQ (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis.).
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May 17, 2019
Expert Testimony Properly Excluded In Contamination Dispute, 7th Circuit Says
CHICAGO — The Seventh Circuit U.S. Court of Appeals on May 16 affirmed a district court’s ruling in favor of an insurer on the applicability of the sudden and accidental exception to a policy’s pollution exclusion, agreeing with the lower court’s finding that the insured could not prove that the contamination was sudden and accidental because the insured’s expert testimony was inadmissible (Varlen Corp. v. Liberty Mutual Insurance Co., et al., No. 17-3212, 7th Cir., 2019 U.S. App. LEXIS 14529).
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May 16, 2019
Pennsylvania Federal Judge Strikes Experts, Awards Judgment To Supplement Maker
PHILADELPHIA — Two experts cannot testify in a product liability suit that a soy-based diet supplement caused a woman to develop hypothyroidism — one because his opinions are unreliable and the other for lack of qualifications — and without the experts to prove causation, the supplement maker is entitled to summary judgment, a Pennsylvania federal judge held May 15 (Angela Loverdi, et al. v. Medifast, Inc., et al., No. 18-2196, E.D. Pa., 2019 U.S. Dist. LEXIS 81739).
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May 15, 2019
Amici Tell Pennsylvania High Court Aggregate Causation Theory Contradicts Law
HARRISBURG, Pa. — A collection of industry groups filed a joint amicus curiae brief in the Pennsylvania Supreme Court on May 14, contending that a lower court erred when it approved the plaintiffs’ aggregate causation theory in a wrongful death lawsuit because the Frye evidence standard was not met (Richard Thomas Walsh v. BASF Corporation, et al., No. 14 WAP 2019, Pa. Sup.).
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May 15, 2019
Judge Rules On Experts In Injury Suit For Sport Utility Vehicle Crash
PHOENIX — An Arizona federal judge on May 14 allowed a crash-test expert for a recreational-vehicle maker to testify in a product liability suit over a rollover crash that left a man paralyzed but excluded opinions of the plaintiffs’ RV expert about the design of the crash vehicle’s safety equipment and steering (Michael Thompson, et al. v. Polaris Industries Incorporated, et al., No. 16-cv-02868, D. Ariz., 2019 U.S. Dist. LEXIS 81103).
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May 15, 2019
With Expert Allowed, Insurer Loses Bid For Judgment In Hurricane Damage Row
SAVANNAH, Ga. — A structural engineering expert can testify for the plaintiff homeowner in a storm damage insurance coverage action that a dock and walkway were destroyed by a tornado, not storm surge, based on his training and the reliability and relevance of his opinions, so the defendant insurer is not entitled to summary judgment, a South Carolina federal judge held May 13 (John G. Kennedy, III v. Electric Insurance Company, No. 4:18-cv-148, S.D. Ga., 2019 U.S. Dist. LEXIS 80404).