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Mealey's Daubert

  • June 20, 2017

    Ruling On Expert Upheld In Shooting Victim’s Claims Against Police Officer

    PHILADELPHIA — A man who was shot in his home by an off-duty police officer is not entitled to a new trial on his excessive force claims against the officer because the victim’s attempt to discredit an expert based on alleged mismanagement of a prior job was properly denied, a Pennsylvania federal magistrate judge ruled June 19 (Joshua Taylor v. Police Officer Larry Shields, No. 13-2241, E.D. Pa., 2017 U.S. Dist. LEXIS 93669).

  • June 19, 2017

    Government Seeks To Have 6th Circuit Ruling On Doctor’s Conviction Published

    CINCINNATI — The U.S. government on June 16 asked the Sixth Circuit U.S. Court of Appeals to publish an opinion issued three days earlier in which a three-judge panel affirmed the conviction of an Ohio cardiologist on health care fraud charges, saying the decision, in which the panel upheld the allowance of testimony from several government experts, will assist trial courts in upcoming similar cases (United States of America v. Harold Persaud, Nos. 16-3105, 16-3427, 16-3578, 6th Cir.).

  • June 16, 2017

    Texas Appeals Court Affirms Verdict Against Maker Of Defective Concrete

    FORT WORTH, Texas — A Texas appellate court panel on June 15 affirmed a jury’s verdict finding that a concrete manufacturer should indemnify a contractor that installed concrete that was defectively made, holding that the trial court judge did not err when striking the manufacturer’s expert testimony and that the company did not clearly argue in its post-trial motions that the contractor that finished the concrete was a seller under the Texas Products Liability Act (TPLA) (RDJRLW, Inc. v. Bobby Elbert Miller, Jr., d/b/a Miller Construction, et al., No. 02-16-00132-CV, Texas App., 2nd Dist., 2017 Tex. App. LEXIS 5494).

  • June 15, 2017

    Minnesota Appeals Panel Upholds Defense Verdict In Medical Malpractice Suit

    ST. PAUL, Minn. — A Minnesota appellate panel on June 12 affirmed a defense verdict in a medical malpractice suit after finding that the trial court did not err in allowing the defendants’ experts to testify (Anita J. Howard v. Shelly R. Svoboda, M.D., et al., No. A16-1232, Minn. App., 2017 Minn. App. Unpub. LEXIS 508).

  • June 15, 2017

    Ruling On Gun Expert Sound, As Is Firearms Conviction, 4th Circuit Says

    RICHMOND, Va. — A Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agent’s experience alone is sufficient to qualify him as an expert, and his use of a gun-tracing report prepared by other ATF employees does not violate a criminal defendant’s confrontation rights, the Fourth Circuit U.S. Court of Appeals found June 12 in affirming the defendant’s conviction (United States of America v. Jarelle McLean, No. 16-4673, 4th Cir., 2017 U.S. App. LEXIS 10380).

  • June 14, 2017

    DEA Agent Allowed To Testify As Cocaine- Smuggling Expert

    MIAMI — A federal narcotics officer can testify about cocaine trafficking and the drug trade in South America and Central America at trial for a man accused of running a cocaine-smuggling operation from Honduras to the United States, a Florida federal judge ruled June 12 (United States of America v. Juan Carlos Arvizu Hernandez, No. 17-cr-20130, S.D. Fla., 2017 U.S. Dist. LEXIS 90548).

  • June 13, 2017

    With Experts Allowed, Suit Over Zoo’s Care Of Old Elephant Proceeds

    SAN ANTONIO — A Texas federal judge on June 8 mostly allowed expert testimony for three citizens who allege that the San Antonio Zoological Gardens and Aquarium is violating the Endangered Species Act (ESA) by harming and harassing a 57-year-old Asian elephant named Lucky (James Graham, et al. v. San Antonio Zoological Society, No. 5:15-cv-1054, W.D. Texas, 2017 U.S. Dist. LEXIS 88776).

  • June 13, 2017

    Defendants Tell Court No Reason Exists To Review Asbestos Expert Ruling

    FORT LAUDERDALE, Fla. — Two defendants freed from an $8 million verdict after a court found expert asbestos causation testimony improperly admitted at trial have told the Florida Supreme Court that there are no grounds for reviewing the decision (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

  • June 12, 2017

    Couple Denied Cert For 4th Circuit’s De Novo Daubert Review, Findings

    WASHINGTON, D.C. — The U.S. Supreme Court on June 12 declined to review a case in which a couple claimed that the Fourth Circuit U.S. Court of Appeals erred when it overturned a $3 million jury award against Ford Motor Co. for design defect based on the appeals court’s exclusion of the couple’s expert testimony (Howard E. Nease, et ux. v. Ford Motor Company, No. 16-1333, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 1562).

  • June 12, 2017

    4th Circuit Affirms Man’s Sentence, Finds Fraudulent Scheme Resulted In Deaths

    RICHMOND, Va. — A Fourth Circuit U.S. Court of Appeals panel on June 9 affirmed a man’s convictions and 10-year sentence for health care fraud resulting in death, holding that a fraudulent health care scheme that involved untrained X-ray technicians reading radiology results caused the death of two patients (United States of America v. Rafael Chikvashvili, No. 16-4393, 4th Cir., 2017 U.S. App. LEXIS 10292).

  • June 9, 2017

    Magistrate Allows Survey Of Taffy Shop Customers In Trademark Battle

    DENVER — A taffy shop may have valid complaints about a survey conducted by an expert for a competing taffy shop in a trademark dispute, but the survey is reliable and relevant enough to not preclude it from trial, a Colorado federal magistrate judge ruled June 8 (Estes Park Taffy Company, LLC, et al. v. The Original Taffy Shop, Inc., No. 15-cv-01697, D. Colo., 2017 U.S. Dist. LEXIS 88113).

  • June 7, 2017

    Expert Testimony On Doctor Teaching Contracts Suitable, 7th Circuit Says

    CHICAGO — A federal court did not abuse its discretion in determining that a medical expert was qualified to provide testimony on the nature of physician teaching contracts in a podiatric residency program, the Seventh Circuit U.S. Court of Appeals held June 5 in affirming the conviction of a doctor for taking kickbacks to refer patients to a Chicago hospital (United States of America v. Shanin Moshiri, No. 16-1126, 7th Cir., 2017 U.S. App. LEXIS 9959).

  • June 6, 2017

    Federal Judge Allows Medical Expert’s Opinions In Deliberate Indifference Case

    MACON, Ga. — A medical expert’s simple opinions based on the simple facts of a malpractice case against two prison doctors are the product of a reliable analysis and will assist the jury, a Georgia federal judge held June 5 in denying a motion to exclude the expert (William Stoner v. Chiquita A. Fye, M.D., et al., No. 5:15-cv-102, M.D. Ga., 2017 U.S. Dist. LEXIS 85292).

  • June 6, 2017

    Judge Gives Mixed Bag Ruling On Expert Opinions For Bouncer Shot At Bar

    KANSAS CITY, Mo. — A medical expert can testify that gunshot wounds a nightclub bouncer received in a scuffle with an off-duty policeman caused the nerve disease and pain he suffers from, opening the door for two other experts to testify as to the man’s alleged damages, a Missouri federal judge held June 1, while also severely limiting the testimony of the medical expert (Rodney Babbs, Jr. v. Bryan Block, No. 4:15-cv-0194, W.D. Mo., 2017 U.S. Dist. LEXIS 83587).

  • June 5, 2017

    9th Circuit Reverses Expert Exclusion, Judgment In Immunosuppressant Cancer Case

    SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on June 2 reversed summary judgment for Teva Pharmaceuticals USA Inc. in drug-caused cancer case, ruling that the plaintiffs expert was erroneously excluded by a district court (Stephen Wendell, et al. v. GlaxoSmithKline LLC, et al., No. 14-16321, 9th Cir., 2017 U.S. App. LEXIS 9787).

  • June 5, 2017

    3rd Circuit Affirms Expert Exclusion, Summary Judgment In Most Zoloft MDL Cases

    PHILADELPHIA — The Third Circuit U.S. Court of Appeals on June 2 affirmed the exclusion of plaintiffs’ only general causation expert witness in the Zoloft birth defect multidistrict litigation and also affirmed summary judgment that, at the time, ended 93 percent of the cases (In Re:  Zoloft [Sertraline Hydrochloride] Products Liability Litigation, No. 16-2247, 3rd Cir., 2017 U.S. App. LEXIS 9832).

  • June 2, 2017

    Expert Needed In Design Defect Suit Over Oil Worker’s Fatal Fall, 5th Circuit Says

    NEW ORLEANS — A federal court did not err in holding that, lacking expert testimony that was excluded, the parents of a man who died in an oil rig fall failed to raise a genuine dispute of material fact as to whether a design defect in his safety harness was the proximate cause of his death, the Fifth Circuit U.S. Court of Appeals ruled May 30 in affirming the grant of summary judgment to the harness maker (Billy Stewart, et al. v. Capital Safety USA, No. 16-30993, 5th Cir., 2017 U.S. App. LEXIS 9474).

  • June 2, 2017

    Couple Seeks Cert For 4th Circuit’s De Novo Daubert Review, Findings

    WASHINGTON, D.C. — A couple whose $3 million award against Ford Motor Co. for design defect was overturned by the Fourth Circuit U.S. Court of Appeals based on its exclusion of expert testimony asked the U.S. Supreme Court on May 2 to grant review of the case to resolve a circuit court split about the proper application of Daubert v. Merrell Dow Pharmaceuticals Inc. (Howard E. Nease, et ux. v. Ford Motor Company, No. 16-1333, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 1562).

  • June 1, 2017

    Polygraph Expert Allowed In Civil Rights Case Alleging Wrongful Murder Conviction

    CHICAGO — A woman suing Chicago police after being wrongly convicted of murdering her young son can present expert testimony that police erred in giving her a lie detector test during a lengthy interrogation and that her responses to the test were truthful, despite the police labeling the test results as “inconclusive,” an Illinois federal judge ruled May 31 (Nicole Harris v. City of Chicago, et al., No. 14-4391, N.D. Ill., 2017 U.S. Dist. LEXIS 82698).

  • June 1, 2017

    Indiana Appeals Panel Reverses Trial Court On Expert Witness In Negligence Suit

    INDIANAPOLIS — A panel of the Indiana Court of Appeals on May 30 reversed a trial court’s decision to bar a nurse practitioner who treated a man injured in a car crash from acting as an expert witness because there is no “blanket rule” barring a nurse practitioner from acting as an expert witness (Charles Aillones v. Glen D. Minton, No. 82A01-1609-CT-2138, Ind. App., 2017 Ind. App. LEXIS 226).