Mealey's Daubert

  • February 16, 2018

    Florida Appeals Panel Reinstates $2 Million Tobacco Verdict

    WEST PALM BEACH, Fla. — A panel of Florida’s Fourth District Court of Appeal on Feb. 14 affirmed a trial court’s decision to allow a plaintiff’s expert to testify and reinstated the full $2 million verdict in an Engle progeny suit after finding that the court erred by reducing the award based on comparative fault (Philip Morris USA Inc., et al. v. Robert A. Gore Sr., No. 4D15-3892, Fla. App., 4th Dist., 2018 Fla. App. LEXIS 2274).

  • February 16, 2018

    Expert’s Prior Exclusion Not Relevant To Admissibility Inquiry, Magistrate Says

    NEW YORK — A biomechanical engineer is not precluded from testifying in a personal injury action over a car crash just because his opinions were stricken in another recent auto accident case, a New York federal magistrate judge ruled Feb. 14 in denying a bid by the injured driver to exclude the expert’s testimony (Craig Thomas v. YRC Inc., et al., No. 16-cv-6105, S.D. N.Y., 2018 U.S. Dist. LEXIS 24384).

  • February 14, 2018

    Expert’s Opinions On Corrosion Found On Airplane Barred By Judge

    TAMPA, Fla. — Competing experts in a breach of contract lawsuit over the inspection of a company’s airplane both had their proposed testimony limited Feb. 13 by a Florida federal judge (Oil Consulting Enterprise, Inc. v. Hawker Beechcraft Global Customer Support, LLC, No. 8:16-cv-3453, M.D. Fla., 2018 U.S. Dist. LEXIS 23273).

  • February 13, 2018

    All 61 Minnesota State Court Bair Hugger Cases Dismissed After 3 Experts Excluded

    ST. PAUL, Minn. — A Minnesota state court judge on Jan. 26 entered judgment in all 61 Bair Hugger post-surgical infection cases after ruling that the plaintiffs’ general causation expert witnesses’ “novel” theories are not generally accepted by the scientific community and because the litigation appears to be driven more by competition than by actual injury (In Re:  3M Bair Hugger Litigation, No. 62-CV-15-6432, Minn. Dist., Ramsey Co.).

  • February 13, 2018

    Experts’ Testimony Upheld By Federal Judge In Sex Trafficking Case

    ALBUQUERQUE, N.M. — Two expert witnesses for the U.S. government can testify about sex trafficking and the prostitution trade in a criminal case against a man and his female accomplice accused of forcing a 13-year-old girl to engage in commercial sex acts, a New Mexico federal judge ruled Feb. 8 after finding that both experts meet all requirements of Federal Rule of Evidence 702, Fed. R. Evid. 702 (United States of America v. Cordny Henry, No. 16-cr-1097, D. N.M., 2018 U.S. Dist. LEXIS 20896).

  • February 12, 2018

    Federal Judge Allows Cardiologist’s Opinions On Jail Inmate’s Death

    SAVANNAH, Ga. — A cardiologist’s lack of experience working in a prison setting does not preclude him from offering expert opinions on the standard of care provided to a man who died while incarcerated, a Georgia federal judge held Feb. 8 (Belinda Lee Maley, et al. v. Corizon Health, Inc., et al., No. 4:16-cv-060, S.D. Ga., 2018 U.S. Dist. LEXIS 21344).

  • February 12, 2018

    Parents In Wrongful Death Suit Against Teva Say Ruling On Experts ‘Unremarkable’

    WASHINGTON, D.C. — A drugmaker’s claim that the Ninth Circuit U.S. Court of Appeals’ reversal of a trial court’s exclusion of expert causation testimony creates a circuit split should be seen for what it is — “little more than a fact-bound appeal of a decision with which it disagrees” — parents in a wrongful death suit against the company told the U.S. Supreme Court in their Feb. 2 respondents’ brief (Teva Pharmaceuticals USA, Inc. v. Stephen Wendell, et ux., No. 17-747, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 477).

  • February 12, 2018

    Some Expert Opinions Stricken In Pelvic Sling Design Defect Lawsuit

    HAMMOND, Ind. — An Indiana federal judge on Feb. 7 trimmed testimony from two experts for a woman who says a faulty pelvic organ prolapse device she had inserted caused her a multitude of physical injuries (Barbara Kaiser, et al. v. Johnson & Johnson, et al., No. 2:17-cv-114, N.D. Ind., 2018 U.S. Dist. LEXIS 19950).

  • February 9, 2018

    $41.5M Award For Girl’s Tick Bite Disease; Expert Rulings Upheld By 2nd Circuit

    NEW YORK — The Second Circuit U.S. Court of Appeals on Feb. 6 affirmed a $41.5 million jury award against a private school in Connecticut for negligence in a lawsuit claiming that a student contracted tick-borne encephalitis (TBE) during a school trip to China, finding that the trial court did not abuse its discretion in its expert witness rulings (Orson D. Munn, III, et al. v. The Hotchkiss School, No. 14-2410, 2nd Cir., 2018 U.S. App. LEXIS 2852).

  • February 9, 2018

    Biomet Hip MDL Judge Denies Defense State-Of-The-Art Summary Judgment Motion

    SOUTH BEND, Ind. — In response to what an Indiana federal judge called two “head-scratching” motions, a federal judge in Indiana on Feb. 8 denied Zimmer Biomet Holding Inc.’s (Biomet) motions for summary judgment on a state-of-the-art defense regarding its metal-on-metal hips and for lack of causation testimony in four non-metal-on-metal hip cases (In Re:  Biomet M2a Magnum Hip Implant Products Liability Litigation, MDL Docket No. 2391, No. 12-md-2391, N.D. Ind., South Bend Div., 2018 U.S. Dist. LEXIS 20758).

  • February 7, 2018

    Indiana Federal Judge Strikes Some Opinions In Cardiologist’s Race Bias Case

    FORT WAYNE, Ind. — A medical expert for a doctor’s race bias claims against his former employer used no reliable reasoning or methodology in forming his opinions on the doctor’s state of mind when seeking consultations and on the employer’s peer-review process, so the opinions are inadmissible, a federal judge in Indiana ruled Feb. 5 (Bhaktavatsala R. Apuri, M.D. v. Parkview Health Systems, Inc., et al., No. 1:16-cv-363, N.D. Ind., 2018 U.S. Dist. LEXIS 17986).

  • February 5, 2018

    2nd Circuit Backs Judge’s Decision To Bar Expert In Suit Over Saw Injury

    NEW YORK — A Connecticut federal judge did not err in excluding expert testimony for a man’s product liability claims against a company that makes saws, the Second Circuit U.S. Court of Appeals held Jan. 31, saying the judge was correct that the expert was not qualified enough to offer his opinions (Eustathios Karavitis v. Makita U.S.A., Inc., No. 17-1008, 2nd Cir., 2018 U.S. App. LEXIS 2328).

  • February 2, 2018

    Judge Trims Expert’s Testimony In Trade Secrets, Patent Dispute Over Antennas

    SHERMAN, Texas — An expert’s opinions on the state of mind of defendants in a misappropriation of trade secrets suit and the legal definition of a trade secret are prohibited, although the expert’s remaining testimony, as well as that of a second expert regarding damages, is admissible, a Texas federal judge held Jan. 30 (Quintel Technology Ltd. v. Huawei Technologies USA, Inc., et al., No. 4:15-cv-307, E.D. Texas, 2018 U.S. Dist. LEXIS 14485).

  • January 31, 2018

    Assault Defendant Seeks Review Of Exclusion Of ‘Human Factor’ Testimony

    WASHINGTON, D.C. — A Florida trial court’s exclusion of an assault defendant’s expert testimony on human factors in responding to a threat should be vacated because the ruling cost the defendant any chance he had at acquittal, he tells the U.S. Supreme Court in a Jan. 18 petition for a writ of certiorari (John Chiarenza v. State of Florida, No. 17-1012, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 209).

  • January 31, 2018

    Most Expert Testimony Admitted In Woman’s Constructive Discharge Suit

    BATON ROUGE, La. — A Louisiana federal judge on Jan. 29 allowed nearly all testimony from vision and rehabilitation experts for a woman alleging that her employer constructively discharged her in violation of the Americans with Disabilities Act (ADA) after she lost part of her eyesight due to a stroke, barring only one statement by each expert (Catherine Jones v. Blue Cross Blue Shield of Louisiana, No. 16-cv-340, M.D. La., 2018 U.S. Dist. LEXIS 13545).

  • January 30, 2018

    Toxicologist’s Opinions On Contaminated Site Upheld By Kentucky Federal Judge

    LEXINGTON, Ky. — Even though a toxicology expert’s opinion on what level of pollutants causes health problems is contrary to federal and Kentucky law, it is still reliable enough to help a jury determine common-law liability, a Kentucky federal judge held Jan. 25 in declining to exclude the expert’s testimony (Modern Holdings, LLC, et al. v. Corning, Inc., et al., No. 5:13-cv-00405, E.D. Ky., 2018 U.S. Dist. LEXIS 11891).

  • January 26, 2018

    7th Circuit Affirms, Issues Warning For Court’s Policy Of Not Identifying Experts

    CHICAGO — A federal trial court did not err in admitting expert testimony in a methamphetamine distribution case, but the court’s practice of not identifying expert witnesses to the jury “is problematic,” the Seventh Circuit U.S. Court of Appeals held Jan. 25 in affirming a man’s drug dealing and firearms convictions (United States of America v. Ronald Tingle, No. 17-1604, 7th Cir., 2018 U.S. App. LEXIS 1935).

  • January 18, 2018

    Magistrate Strikes Some Expert Testimony In Ticket Sales Patent License Row

    MARSHALL, Texas — A Texas federal magistrate judge on Jan. 17 granted in part a motion by a patent holder to exclude testimony from a ticket distributor’s computer-programming expert in a dispute over a license agreement, ruling that the expert cannot offer opinions about a key term in the agreement because the meaning of the term is a question of law for a jury to determine (CEATS, Inc. v. TicketNetwork, Inc., et al., No. 2:15-cv-01470, E.D. Texas, 2018 U.S. Dist. LEXIS 7214).

  • January 17, 2018

    Woman Who Kept Girls As Slaves Fails In Attack On ‘Trauma Bond’ Testimony

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Jan. 15 affirmed the guilty verdicts and six-year prison sentence for a woman who kept illegal Mexicans in her home, where she abused them and forced them to perform slave labor, after finding that the trial court did not abuse its discretion in allowing an expert to testify about “trauma bonds” between abusers and victims (United States of America v. Olga Sandra Murra, No. 17-10117, 5th Cir., 2018 U.S. App. LEXIS 906).

  • January 17, 2018

    Speculative Opinion Pared From Expert Testimony In Medical Malpractice Action

    ST. LOUIS — An expert witness for a minor asserting medical malpractice claims cannot offer an opinion that injuries to the minor limit the youth’s ability to stand or walk to “perhaps as much as a maximum of four hours per day” because it is only speculation, though the expert’s other testimony is admissible, a Missouri federal judge ruled Jan. 12 (J.B. v. Missouri Baptist Hospital of Sullivan, et al., No. 4:16-cv-01394, E.D. Mo., 2018 U.S. Dist. LEXIS 5785).