Newsletter RSS

Mealey's Daubert

  • October 17, 2019

    Firearms Expert’s Opinions Sufficiently Reliable, State Appeals Court Rules

    RALEIGH, N.C. — A trial court did not err in allowing a firearms expert to opine that bullet casings found at a murder scene came from a handgun found hidden in a field next to the murder suspect’s home, the North Carolina Court of Appeals held Oct. 15 in affirming the suspect’s conviction (North Carolina v. Harold Clyde Griffin, Jr., No. COA18-1164, N.C. App., 2019 N.C. App. LEXIS 845).

  • October 17, 2019

    Expert Testimony Ruling Attacked In Petition By City, Officer Over Crash Damages

    WASHINGTON, D.C. — An Ohio city and one of its police officers took their fight against a $7.7 million personal injury judgment against them in a car crash suit to the U.S. Supreme Court on Oct. 8, seeking review of several alleged errors in the case, including the state trial court’s exclusion of expert testimony on drunken driving (East Cleveland, et al. v. Charles Hunt, et al., No. 19-472, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 5463).

  • October 16, 2019

    Rifle Defect Testimony Admitted In Man’s Suit Over Gunshot To Foot

    SAVANNAH, Ga. — With an expert’s opinion that a defective rifle caused a man’s gunshot injury allowed, the gun’s maker is not entitled to summary judgment, a Georgia federal judge held Oct. 15 (Cody Shearouse v. Remington Arms Company, LLC, No. 4:17-cv-107, S.D. Ga., 2019 U.S. Dist. LEXIS 178357).

  • October 15, 2019

    Colorado Federal Judge Permits ‘Grooming’ Testimony In Sex Assault Case

    DENVER — An expert witness for the federal government can testify about how child sex abusers “groom” their victims to gain their trust and how the behavior can lead victims to delay disclosure of a sexual assault, a Colorado federal judge held Oct. 11 in mostly denying a defendant’s bid to exclude the testimony from his trial (United States v. Dakota Michael Heller, No. 19-cr-00224, D. Colo., 2019 U.S. Dist. LEXIS 177602).

  • October 14, 2019

    Expert’s Opinions Pared In Suit Over Elderly Woman’s Treatment By Association

    LAS VEGAS — Only one of an expert witness’s eight opinions on the level of care provided to an octogenarian survived a motion to strike Oct. 11 when a Nevada federal judge ruled that most of the opinions about the conduct of a senior living community amounted to inadmissible legal conclusions (Thomas Hillery, et al. v. Sun City Anthem Community Association, Inc., No. 2:17-cv-02639, D. Nev., 2019 U.S. Dist. LEXIS 177313).

  • October 11, 2019

    Competing Medical Opinion On Cause Of Woman’s Hip Injury Allowed By Judge

    GULFPORT, Miss. — A medical expert for a Mississippi resort can testify that a woman required hip replacement surgery due to pre-existing health issues, not because of her fall at the resort, a federal judge ruled Oct. 8 in denying the woman’s bid to have the testimony thrown out (Pamela Neessen, et al. v. Beau Rivage Resorts, LLC, et al., No. 1:18-cv-134, S.D. Miss., 2019 U.S. Dist. LEXIS 174203).

  • October 11, 2019

    Treating Doctor’s Causation Opinions Allowed In Suit Over Injuries From Plane Ride

    BROOKLYN, N.Y. — A treating physician can testify as an expert witness that a man’s knee injuries were caused when he was struck by a beverage cart during an airline flight, a New York federal judge decided Sept. 30 after finding that the doctor’s statements raised a disputed issue that a jury must decide (Louis Cantelmo v. United Airlines, Inc., No. 17-cv-1730, E.D. N.Y., 2019 U.S. Dist. LEXIS 173889).

  • October 10, 2019

    Split 11th Circuit Panel Affirms $2.4M Award In Mentor Pelvic Mesh Case

    ATLANTA — In a “close” 2-1 ruling, an 11th Circuit U.S. Court of Appeals panel on Oct. 8 affirmed a $2.4 million compensatory/punitives judgment in a Mentor Corp. pelvic mesh multidistrict litigation bellwether trial (Teresa Taylor v. Mentor Worldwide LLC, et al., No. 16-17147, 11th Cir., 2019 U.S. App. LEXIS 30159).

  • October 08, 2019

    Accountant’s Model Can Identify Oil Royalty Class Members, Judge Rules

    MUSKOGEE, Okla. — An accounting expert is sufficiently qualified and uses a reliable method to calculate the size of a class of plaintiffs in an oil well royalty owner’s class action alleging that an oil company isn’t paying the required interest on late royalty payments, an Oklahoma federal judge held Oct. 3 (Perry Cline v. Sunoco, Inc. (R&M), et al., No. 6:17-cv-313, E.D. Okla., 2019 U.S. Dist. LEXIS 171969).

  • October 08, 2019

    Judge Admits Experts, Denies Judgment In Trio Of Asbestos Rulings

    BALTIMORE — A Maryland federal judge admitted supplemental expert reports, saying any untimeliness was not prejudicial, found three plaintiffs’ experts’ testimony went beyond the opinion that each and every exposure led to disease, and denied an asbestos-friction defendant’s motion for summary judgment; all three rulings came Sept. 30 (John Dugger Jr., et al. v. Union Carbide Corp., et al., No. 16-3912, D. Md., 2019 U.S. Dist. LEXIS 171168).

  • October 07, 2019

    Convicted Cardiologist Denied High Court Review Of Allowance Of Experts

    WASHINGTON, D.C. — An Ohio cardiologist convicted of health care fraud lost his bid for U.S. Supreme Court consideration of his challenge to the trial court’s admission of several doctors’ expert opinions, when the high court justices denied certiorari on Oct. 7 (Harold Persaud v. United States, No. 19-216, U.S. Sup.).

  • October 07, 2019

    Justices Decline Review Of Expert Witness Ruling In Employer Retaliation Case

    WASHINGTON, D.C. — A First Circuit U.S. Court of Appeals ruling that a trial court properly excluded expert testimony for an ex-employee asserting a retaliatory discharge claim against brokerage companies will stand after the U.S. Supreme Court declined to review the case on Oct. 7 (Jackie Hosang Lawson v. FMR LLC, et al., No. 19-2, U.S. Sup.).

  • October 03, 2019

    Convicted Killer Loses Daubert Challenge Over Cell Phone Tower Testimony

    ANCHORAGE, Alaska — An Alaska federal judge on Oct. 1 denied a petition for a writ of habeas corpus filed by a man convicted of murdering his ex-girlfriend, finding that he is not entitled to relief on the ground that the state trial court erred by not holding a hearing under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), to review an expert’s cell phone tower testimony (Bukurim Miftari v. Earl Houser, No. 3:19-cv-00091, D. Alaska, 2019 U.S. Dist. LEXIS 170018).

  • October 02, 2019

    Judge:  Not Enough Information To Exclude Expert In Crash Injury Suit

    DALLAS — A Texas federal judge on Sept. 27 decided that he cannot rule on whether a proposed police expert in a suit over injuries suffered in a car crash can testify because neither the suing woman nor the defendant company provided enough information about the expert and testimony, prompting an order for another deposition of the officer (Michele Bailon v. Landstar Ranger, Inc., No. 3:16-cv-1022, N.D. Texas, 2019 U.S. Dist. LEXIS 166550).

  • September 27, 2019

    Dispute Between Rival Businesses Heads To Trial With 1 Expert For Plaintiffs

    SEATTLE — A Washington federal judge on Sept. 25 excluded testimony from one expert for lack of reliability but allowed another expert to testify on damages in a former businessman’s defamation suit against a rival company (Top Notch Solutions, Inc., et al. v. Crouse and Associates Insurance Brokers, Inc., et al., No. 17-0827, W.D. Wash., 2019 U.S. Dist. LEXIS 165085).

  • September 27, 2019

    Judge Will Wait Till Trial In Wrongful Death Suit To Act As Daubert Gatekeeper

    GREAT FALLS, Mont. — A Montana federal judge on Sept. 24 decided to wait until trial to rule on the admissibility of testimony by a medical expert for a family suing the government for wrongful death, agreeing with the Ninth Circuit U.S. Court of Appeals on the court’s gatekeeping role for vetting expert testimony that when there is a bench trial, “‘there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself’” (Barbara A. Gibson, et al. v. United States, No. 18-112, D. Mont., 2019 U.S. Dist. LEXIS 163372).

  • September 19, 2019

    Magistrate Limits Daubert Review In Allowing Expert In Faulty Toilet Class Suit

    SHERMAN, Texas — Using a “relaxed” Daubert analysis for reviewing expert testimony at the class certification stage, a Texas magistrate judge on Sept. 17 denied a bid by toilet makers in a product liability class action to strike an expert’s declaration due to alleged “inconsistencies and errors” (Steven and Joanna Cone, et al. v. Vortens, Inc., et al., No. 4:17-cv-00001, E.D. Texas, 2019 U.S. Dist. LEXIS 158127).

  • September 19, 2019

    Disability Claimant’s Opinions Are Not Relevant To Breach Of Contract Claim, Judge Says

    WILLIAMSPORT, Pa. — A Pennsylvania federal judge on Sept. 17 determined that a disability claimant’s opinions on the handling of his claim must be excluded from trial because the claimant’s opinions are not relevant to the breach of contract claim and would be prejudicial to the disability insurer and that the claimant’s expert witnesses cannot testify as to whether the claimant is disabled from his own occupation as a dentist because the experts do not have sufficient knowledge of the claimant’s occupational duties (Dr. Robert Brugler v. Unum Group, et al., No. 15-1031, M.D. Pa., 2019 U.S. Dist. LEXIS 158503).

  • September 18, 2019

    Woman Loses Suit Over Post-Surgery Pain Meds After Expert’s Opinions Stricken

    INDIANAPOLIS — An Indiana federal judge on Sept. 17 handed the United States a summary judgment victory in a medical malpractice case after finding that the expert for a woman who suffered respiratory failure after surgery failed to identify a standard of care that was allegedly breached (Marie Smith v. United States, No. 1:17-cv-01215, S.D. Ind., 2019 U.S. Dist. LEXIS 157923).

  • September 18, 2019

    Bayer Seeks Dismissal Of Gadolinium Cases After Experts Excluded

    PHOENIX — Bayer HealthCare Pharmaceuticals Inc. on Sept. 13 moved for summary judgment in a gadolinium contrast agent injury lawsuit after a judge excluded her three general causation experts (Susan Fischer v. Bayer HealthCare Pharmaceuticals Inc., et al., No. 18-1778, D. Ariz.).