Mealey's Daubert

  • April 28, 2017

    9th Circuit Permits Expert’s Testimony Regarding Origin Of Asbestos Insulation

    SAN FRANCISCO — An expert’s knowledge regarding U.S. Navy practices and procedures qualifies him to testify that the asbestos-containing insulation to which a man was exposed was likely original to the boilers in question, and he need not have firsthand knowledge, a Ninth Circuit U.S. Court of Appeals panel held April 26 (Geraldine Hilt, et al. v. Foster Wheeler LLC, FKA Foster Wheeler Corp., No. 15-17301, 9th Cir.).

  • April 28, 2017

    Nurse Practitioners May Opine On Cause Of Injury, Washington High Courts Finds

    OLYMPIA, Wash. — The Washington Supreme Court on April 27 unanimously held that nurse practitioners may determine the cause of an injury in medical malpractice suits and reversed summary judgment in a medical malpractice suit that was dismissed on summary judgment after the trial court said a nurse practitioner was not qualified to determine how a man developed pressure ulcers (Rudy Frausto v. Yakima HMA LLC, No. 93312-0, Wash. Sup., 2017 Wash. LEXIS 442).

  • April 28, 2017

    New Jersey Panel Bars Expert Opinions To Juries On ‘Symptom Magnification’

    NEWARK, N.J. — The New Jersey Superior Court Appellate Division created a “bright-line” rule April 27 that forbids expert witnesses from presenting an opinion in a civil personal injury case heard by a jury on the concepts of symptom magnification and malingering in an attempt to impeach a party’s credibility (Alexandra Rodriguez v. Wal-Mart Stores, Inc., No. A-4137-14T3, N.J. Super. App. Div., 2017 N.J. Super. LEXIS 56).

  • April 27, 2017

    Judge Excludes Testimony On Mirena As Scientifically Unreliable Under Daubert

    CHICAGO — An Illinois federal judge on April 25 granted a pharmaceutical company's motion to exclude the expert testimony of a physician in relation to an infection allegedly caused by an intrauterine device, finding that the testimony was not admissible because it was not scientifically reliable (Ivette Mercado v. Bayer Healthcare Pharmaceuticals Inc., No. 14-6699, N.D. Ill., 2017 U.S. Dist. LEXIS 62550).

  • April 27, 2017

    Ala. Federal Judge Strikes Insurer’s Expert Witness In Environmental Coverage Suit

    MOBILE, Ala. — An Alabama federal judge on April 24 granted a motion to strike an insurer’s proposed expert witness after determining that the expert’s testimony relates to claims that were already decided in an underlying environmental contamination suit (Heartland Catfish Co. Inc. et al., v. Navigators Specialty Insurance Co., No. 15-368, S.D. Ala., 2017 U.S. Dist. LEXIS 62379).

  • April 25, 2017

    Judge: Expert Unqualified To Testify On Dewatering Industry’s Standard Practices

    OMAHA, Neb. — A proposed expert who planned to testify on the standard of care for dewatering companies in Council Bluffs, Iowa, is unqualified to offer his opinion in support of claims brought by a construction company, a federal judge in Nebraska ruled April 20, finding that the man only worked for the company that was subsequently hired by the plaintiff  company to provide dewatering services for a construction site (Judds Brothers Construction Co. v. Mersino Dewatering, Inc., No. 16CV1, D. Neb., 2017 U.S. Dist. LEXIS 60367).

  • April 25, 2017

    Arizona Court Finds Detectives' Testimony Satisfies Evidence Rule

    PHOENIX — An Arizona court on April 20 affirmed a man's convictions and sentences, finding that a trial court did not err when it allowed two detectives to testify that a substance they found in his car was marijuana (State of Arizona v. Shamar Terrek Norris, No. 16-0238, Ariz. App., Div. 1, 2017 Ariz. App. Unpub. LEXIS 446).

  • April 25, 2017

    Judge Rejects Challenge To Causation Testimony In Asbestos Case

    NEW YORK — Requiring experts to actually sample and test the release of asbestos fibers from products would be fatal to almost all cases, given the lack of existing products to test and their inherent hazards, a New York justice held in allowing the testimony of three experts in an opinion posted April 20 (Jeanne Evans, et al. v. 3M Co., et al., No. 190109/2015, N.Y. Sup., New York Co.).

  • April 24, 2017

    Aleve Kidney Injury Experts Excluded; Bayer Gets Summary Judgment

    EAST ST. LOUIS, Ill. — An Illinois federal judge on April 21 granted Bayer Corp.’s motion for summary judgment in an Aleve case after excluding the plaintiff’s two experts from testifying that the over-the-counter pain reliever caused permanent kidney damage (Kenneth Hale, et al. v. Bayer Corporation, et al., No. 15-745, S.D. Ill., 2017 U.S. Dist. LEXIS 61077).

  • April 20, 2017

    Judge Allows Fingerprint Specialist Expert Testimony In Government’s Criminal Case

    ATLANTA — A fingerprint specialist may testify based on his qualifications and reliable method on the identification of a man charged with the violation of procuring naturalization and citizenship contrary to U.S. law, a Georgia federal judge held April 18 (United States of America v. Olu Kanni Sanyaolu, No. 16-cr-126, N.D. Ga., 2017 U.S. Dist. LEXIS 59294).

  • April 19, 2017

    Damages Testimony Is Barred In Patent Infringement Suit Against IBM, Judge Says

    WILMINGTON, Del. — An expert did not offer any developed damages theory relating to International Business Machines Corp.’s (IBM) use of its website, and there were “serious methodological and reliability problems” in his assumptions, a Delaware federal judge held April 17, excluding testimony in a patent infringement lawsuit (Parallel Networks Licensing LLC v. International Business Machines Corp., No. 13-2072, D. Del., 2017 U.S. Dist. LEXIS 58394).

  • April 19, 2017

    Company: Causation Lacking In Lawsuit Related To Cancer From Benzene Exposure

    ASHEVILLE, N.C. — A company being sued by a North Carolina man who contends that he contracted cancer as a result of groundwater contamination for which the man says the company is liable on April 17 filed a brief in North Carolina federal court, arguing that the case should be dismissed because the plaintiffs cannot show causation (Kent Stahle v. CTS Corporation, No. 14-48, W.D. N.C.).

  • April 19, 2017

    Special Agent Is Excluded From Testifying On Drug Code, Federal Judge Says

    ALBUQUERQUE, N.M. — In a criminal case, a Drug Enforcement Agency special agent may not provide expert opinion testimony regarding drug code generally because the agent was not properly designated as an expert witness, a New Mexico federal judge ruled April 17; however, the special agent may provide lay opinion testimony “limited to his personal perceptions of the investigation and intercepted communications” (United States of America v. Fidal Abdeljawad and Ashley Watson, No. 15-cr-3394, D. N.M., 2017 U.S. Dist. LEXIS 58122).

  • April 18, 2017

    Vermont High Court Remands For Sentencing Hearing To Allow Expert Mitigation Testimony

    MONTPELIER, Vt. — While a man’s convictions for drunken driving resulting in death were upheld, the Vermont Supreme Court on April 14 remanded the matter for resentencing because the trial court abused its discretion by not continuing a sentencing hearing to allow expert mitigation testimony to be presented (State of Vermont v. Christopher Sullivan, No. 2015-292, Vt. Sup., 2017 Vt. LEXIS 27).

  • April 17, 2017

    Federal Judge Denies Securities Broker’s Motion To Bar Expert Testimony

    WEST PALM BEACH, Fla. — An expert is qualified to testify regarding a rule under Financial Regulatory Authority Inc. (FINRA), a Florida federal judge ruled April 14, denying a motion to exclude filed by a securities broker-dealer (UBS Financial Services Inc. v. Bounty Gain Enterprises Inc., No. 14-81603, S.D. Fla., 2017 U.S. Dist. LEXIS 57502).

  • April 17, 2017

    Nonobviousness Testimony Is Allowed; Judgment Granted On Invalidity In Patent Suit

    PORTLAND, Ore. — While allowing expert testimony on objective considerations of nonobviousness, an Oregon federal judge also granted in part summary judgment on April 12 to a sportswear company that certain prior art references do not anticipate utility patents relating to heat-directing elements to a garment’s innermost surface (Columbia Sportswear North America Inc. v. Seirus Innovative Accessories Inc., No. 15-00064, D. Ore., 2017 U.S. Dist. LEXIS 55714).

  • April 17, 2017

    Judge: Experts Not Permitted To Testify In Benzene Exposure Lawsuit

    OKLAHOMA CITY — A federal judge in Oklahoma on March 31 ruled that the testimony of experts on which a woman was going to rely in her lawsuit against oil and gas companies for injuries she allegedly suffered from exposure to airborne benzene did not meet the standard requirements for reliability of testimony (Samantha Hall v. ConocoPhillips, et al., No. 14-0670, W.D. Okla; 2017 U.S. Dist. LEXIS 56458).

  • April 14, 2017

    Florida High Court Answers Stipulation Is Binding On Criminal Case’s Daubert Issue

    TALLAHASSEE, Fla. — Stipulations of dispositiveness are binding in appeals from conditional no contest pleas, the Florida Supreme Court ruled April 13, allowing a man to appeal the denial of his request to exclude testimony about the results of chemical field tests under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) (Roger Dennis Churchill Jr. v. State of Florida, No. SC16-654, Fla. Sup., 2017 Fla. LEXIS 829).

  • April 13, 2017

    Connecticut High Court: Error In Admission Of Police Testimony Was Harmless

    HARTFORD, Conn. — Although a trial court improperly allowed a police officer to present certain testimony regarding cellphone records and maps without qualifying him as an expert, the Connecticut Supreme Court ruled April 11 that the error was harmless and, thus, affirmed a man’s conviction for home invasion, robbery, larceny and assault of an elderly person (State of Connecticut v. Eugene Edwards Jr., No. SC 19735, Conn. Sup., 2017 Conn. LEXIS 80).

  • April 11, 2017

    Expert Opinions Allowed In Putative Products Liability Class Action Against Volvo

    TRENTON, N.J. — In a putative class action against Volvo Cars of North America LLC for defects in sunroofs, a New Jersey federal judge on April 3 refused to dismiss three experts’ opinions with regard to issues of damages and the cause of the damages (Joanne Neale, et al. v. Volvo Cars of North America LLC, et al., No. 10-4407, D. N.J., 2017 U.S. Dist. LEXIS 50259).