Mealey's Daubert

  • October 19, 2017

    Oil Company: Fracking Operator’s Motion To Exclude Expert Lacks ‘Factual Basis’

    OKLAHOMA CITY — An oil company on Oct. 16 filed a brief in Oklahoma federal court supporting its expert in a hydraulic fracturing well dispute it has with a fracking services company, arguing that the expert is “well credentialed” and the company opposing him does so “without a proper factual basis” (Singer Oil Company LLC v. Newfield Exploration Midcontinent Inc., et al., CIV-16-768, W.D. Okla.).

  • October 18, 2017

    Mom Loses Suit Over Son’s Death After Police Expert’s Opinions Allowed

    TOLEDO, Ohio — An Ohio federal judge on Oct. 17 awarded summary judgment to the city of Toledo and several of its police officers on a mother’s claims that the officers violated her son’s civil rights by getting him killed for being a drug informant, after finding that an expert for the city and police was qualified to testify and his methodology was reliable (Marcia Przybysz v. City of Toledo, et al., No. 3:16-cv-0353, N.D. Ohio, 2017 U.S. Dist. LEXIS 171631).

  • October 18, 2017

    Reinsurance Facultative Certificates Cover Defense Costs In Excess Of Cap

    HARRISBURG, Pa. — Reinsurance facultative certificates covered defense expenses in excess of a liability cap, a Pennsylvania appeals panel ruled Oct. 17, affirming that insurers were entitled to interest on certain proofs of loss for asbestos claims issued before 2013 (Century Indemnity Co. v. OneBeacon Insurance Co., No. 1280 EDA 2016, Pa. Super., 2017 Pa. Super. LEXIS 806).

  • October 18, 2017

    Kentucky Panel Upholds Exclusion Of Expert Testimony In Suit Against Nursing Home

    FRANKFORT, Ky. — The Kentucky Court of Appeals on Oct. 13 shot down all of an estate’s challenges to a jury’s verdict in favor of a nursing home on the estate’s wrongful death claims, including the estate’s argument that the trial court abused its discretion by limiting testimony from the estate’s expert witness (Jerry Stamper v. Berea Area Development, LLC, d/b/a The Terrace Nursing and Rehabilitation Facility, No. 2014-CA-000690-MR, Ky. App., 2017 Ky. App. Unpub. LEXIS 764).

  • October 17, 2017

    Expert For Bankruptcy Fraud Defendant Cannot Testify, Federal Judge Rules

    CHICAGO — An expert witness for a man charged with criminal bankruptcy fraud was barred from testifying at trial on Oct. 14 by an Illinois federal judge, who found that the expert’s opinions are unreliable due to a lack of any methodology and amount to “legal conclusions that are not within the province of the expert” (United States of America v. Eric E. Neushwander, No. 15-cr-542, N.D. Ill., 2017 U.S. Dist. LEXIS 170130).

  • October 16, 2017

    Kentucky Appellate Majority Affirms Summary Judgment In Medical Malpractice Suit

    FRANKFORT, Ky. — A majority of a panel of the Kentucky Court of Appeals on Oct. 13 affirmed a trial court’s decision to grant summary judgment to a hospital after finding that a woman’s negligence suit was based on medical malpractice and therefore required expert testimony over what options the hospital had to prevent a man from falling out of his hospital bed (Kathleen Chamis v. Ashland Hospital Corporation, No. 2015-CA-001071-MR, Ky. App., 2017 Ky. App. LEXIS 613).

  • October 11, 2017

    Monsanto: Roundup MDL Cases Fail For Lack Of Causation Between Cancer, Glyphosate

    SAN FRANCISCO — Monsanto Co. on Oct. 6 moved in California federal court for dismissal of the multidistrict litigation related to the herbicide Roundup on grounds that the plaintiffs have not satisfied their burden to present expert testimony that is “scientifically reliable and relevant” and that is sufficient to prove general causation concerning whether glyphosate — the active ingredient in Roundup — is capable of causing cancer (In re:  Roundup Products Liability Litigation, No. 2741 MDL, N.D. Calif.).

  • October 11, 2017

    Battered Woman Testimony Permitted For Man’s 3rd Domestic Assault Charge

    BAY CITY, Mich. — An expert’s testimony on domestic violence and victim recantation is reliable and will be helpful to a jury, a Michigan federal judge found Oct. 10 in denying a request by a domestic assault habitual offender to exclude the expert’s opinions (United States of America v. James Daniel Bennett, No. 17-cr-20443, E.D. Mich., 2017 U.S. Dist. LEXIS 166732).

  • October 10, 2017

    Bar On Expert Testimony In Copyright Cases Not Cert Worthy, Video Maker Says

    WASHINGTON, D.C. — The U.S. Supreme Court should deny certiorari in a copyright infringement action over the popular John Madden Football series computer game because the federal circuit courts agree that disputed works must be placed into evidence so a jury can compare them, and any ruling on the role of expert witnesses in software copying cases would not change the outcome of the case at hand, the video game maker argues in a Sept. 28 response brief (Robin Antonick v. Electronic Arts Inc., No. 17-168, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 3769).

  • October 9, 2017

    Transvaginal Mesh Expert’s Opinions Mostly Allowed By Illinois Federal Judge

    CHICAGO — An expert for a couple seeking damages for injuries caused by a transvaginal mesh can offer opinions on several topics, such as using other synthetic mesh devices as safer alternatives to the one in question, “but the testimony must be limited to his area of expertise, and his opinions must not involve legal or regulatory matters,” an Illinois federal judge held Oct. 6 (Christine Wiltgen, et al. v. Ethicon, Inc., et al., No. 12-cv-2400, N.D. Ill., 2017 U.S. Dist. LEXIS 165932).

  • October 6, 2017

    Pennsylvania Judge Excludes Asbestos-Talc Experts As Unreliable

    PHILADELPHIA — While portions of asbestos-talc experts’ testimony regarding the presence of asbestos and causation may arise from generally accepted scientific methodology, they deviate enough from those methodologies to exclude their opinions, a Pennsylvania judge held Sept. 25 (Sally Brandt, et al. v. The Bon-Ton Stores Inc., et al., No. December Term, 2015, 2987, Pa. Comm Pls., Philadelphia Co.).

  • October 5, 2017

    Mississippi Panel Upholds Exclusion Of Opinions In Propane Explosion Case

    JACKSON, Miss. — A Mississippi appeals court on Oct. 3 affirmed dismissal of negligence claims filed by a woman who says her home was damaged by a pipeline explosion, after finding that the trial court properly excluded opinions from the woman’s metallurgical engineering expert (Edith Davis Elmore v. Dixie Pipeline Company, No. 2015-CA-01499-COA, Miss. App., 2017 Miss. App. LEXIS 580).

  • October 3, 2017

    Barter Industry Standards Testimony Allowed, But Not Legal Analysis

    BOSTON — An expert witness can testify about the barter industry and how it operates but cannot give opinions on whether a jewelry-for-advertising deal between two companies was reasonable or met barter industry standards, as such statements amount to legal conclusions, a Massachusetts federal magistrate judge held Sept. 29 (Hearts on Fire Company, LLC v. CIRCA, Inc., No. 14-cv-11044, D. Mass., 2017 U.S. Dist. LEXIS 160872).

  • October 4, 2017

    Judge Curtails Opinion Testimony In Insurance Row Over Fatal Crash Settlement

    ALBUQUERQUE, N.M. — Claims-handling experts for two insurers alleging bad faith against each other over settlement of a wrongful death action had their proposed testimony limited Sept. 30 by a New Mexico federal judge, who said the experts cannot offer opinions about whether either party acted in bad faith or unreasonably because such determinations are the province of the trier of fact (American Automobile Insurance Company v. First Mercury Insurance Company, et al., No. 13-cv-439, D. N.M., 2017 U.S. Dist. LEXIS 163346).

  • October 3, 2017

    Expert Testimony Excluded; Insurer Granted Summary Judgment On Pollution Exclusion

    CHICAGO — An Illinois federal judge on Sept. 25 granted an insurer’s motion on the applicability of the pollution exclusion after determining that testimony offered by the insured’s expert on the contamination at two of the insured’s sites must be excluded because the expert’s testimony does not support the insured’s argument that the contamination was sudden and accidental as required for coverage to exist under the policies at issue (Varlen Corp. v. Liberty Mutual Insurance Co., et al., No. 13-5463, N.D. Ill., 2017 U.S. Dist. LEXIS 162110).

  • September 29, 2017

    Expert Testimony Admitted For Both Sides In Defective Tire Action

    SCRANTON, Pa. — Expert witnesses for both sides can testify in a design defect case involving an automobile tire that exploded and injured a mechanic, a Pennsylvania federal magistrate judge ruled Sept. 27 after finding that the challenged opinions are sound, relevant and helpful to the trier of fact (Vincent Dodson, et al v. Beijing Capital Tire Company, Ltd., et al., No. 3:14-cv-01358, M.D. Pa., 2017 U.S. Dist. LEXIS 158484).

  • September 22, 2017

    Advocacy Group Wants Asbestos Experts Rejected, Asks Florida To Adopt Daubert

    TALLAHASSEE, Fla. — The Florida Supreme Court should use an asbestos case to adopt the superior standard for reviewing evidence espoused in Daubert regardless of the constitutionality of the Legislature’s attempt to do so and reject the opinion that any exposure to asbestos contributes to disease, an advocacy group told the court on Sept. 20 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

  • September 22, 2017

    Design Defect Opinions Admitted In Suit Over Rollover Crash Of Pickup

    DENVER — A Colorado federal judge on Sept. 19 declined to exclude design defect opinions of an expert for a man who was paralyzed in a rollover crash of a pickup truck, saying the defendant manufacturers’ objections relate to the weight that should be given to the expert’s testimony and not whether the opinions are admissible (Daniel Pertile, et al. v. General Motors, LLC, et al., No. 15-cv-0518, D. Colo., 2017 U.S. Dist. LEXIS 152342).

  • September 21, 2017

    Expert’s Testimony On Mine Subsidence Allowed By Federal Judge

    WHEELING, W.Va. — An engineering expert can opine that nearby coal-mining operations caused subsidence damage to a couple’s property in West Virginia, a federal judge held Sept. 18, finding that the expert’s opinion is both reliable and helpful and that the late production of the expert’s report is excusable (Christopher Clark, et al. v. McElroy Coal Company, et al., No. 5:16-cv-137, N.D. W.Va., 2017 U.S. Dist. LEXIS 152125).

  • September 20, 2017

    Expert’s Opinion On Paralysis Tossed When Evidence Shows Accuser Can Walk

    SAN JUAN, Puerto Rico — An expert witness for a woman who says her paralysis was caused by medical malpractice was excluded from testifying by a Puerto Rico federal judge, who ruled Sept. 18 that the expert’s opinion on the cause of the paralysis is useless because, despite the woman’s claims to the contrary, the evidence shows that she is not in fact paraplegic (Aglaed Gonzalez Rivera v. Centro Medico Del Turabo, Inc. D/B/A Hospital Himacaguas, et al., No. 15-1538, D. Puerto Rico, 2017 U.S. Dist. LEXIS 151189).