CHICAGO — The Seventh Circuit U.S. Court of Appeals on May 16 affirmed a district court’s ruling in favor of an insurer on the applicability of the sudden and accidental exception to a policy’s pollution exclusion, agreeing with the lower court’s finding that the insured could not prove that the contamination was sudden and accidental because the insured’s expert testimony was inadmissible (Varlen Corp. v. Liberty Mutual Insurance Co., et al., No. 17-3212, 7th Cir., 2019 U.S. App. LEXIS 14529).
PHILADELPHIA — Two experts cannot testify in a product liability suit that a soy-based diet supplement caused a woman to develop hypothyroidism — one because his opinions are unreliable and the other for lack of qualifications — and without the experts to prove causation, the supplement maker is entitled to summary judgment, a Pennsylvania federal judge held May 15 (Angela Loverdi, et al. v. Medifast, Inc., et al., No. 18-2196, E.D. Pa., 2019 U.S. Dist. LEXIS 81739).
HARRISBURG, Pa. — A collection of industry groups filed a joint amicus curiae brief in the Pennsylvania Supreme Court on May 14, contending that a lower court erred when it approved the plaintiffs’ aggregate causation theory in a wrongful death lawsuit because the Frye evidence standard was not met (Richard Thomas Walsh v. BASF Corporation, et al., No. 14 WAP 2019, Pa. Sup.).
PHOENIX — An Arizona federal judge on May 14 allowed a crash-test expert for a recreational-vehicle maker to testify in a product liability suit over a rollover crash that left a man paralyzed but excluded opinions of the plaintiffs’ RV expert about the design of the crash vehicle’s safety equipment and steering (Michael Thompson, et al. v. Polaris Industries Incorporated, et al., No. 16-cv-02868, D. Ariz., 2019 U.S. Dist. LEXIS 81103).
SAVANNAH, Ga. — A structural engineering expert can testify for the plaintiff homeowner in a storm damage insurance coverage action that a dock and walkway were destroyed by a tornado, not storm surge, based on his training and the reliability and relevance of his opinions, so the defendant insurer is not entitled to summary judgment, a South Carolina federal judge held May 13 (John G. Kennedy, III v. Electric Insurance Company, No. 4:18-cv-148, S.D. Ga., 2019 U.S. Dist. LEXIS 80404).
PASADENA, Calif. — While a trial court abused its discretion when admitting expert testimony from a fingerprint analyst in an illegal immigration case, the mistake was harmless because there was enough information to show that the expert’s opinions were reliable, the Ninth Circuit U.S. Court of Appeals determined May 10 (United States v. Mario Ruvalcaba-Garcia, No. 17-50288, 9th Cir., 2019 U.S. App. LEXIS 13986).
HOUSTON — A trial court abused its discretion in dismissing malpractice claims against a Texas hospital for the death of a 46-year-old woman who was awaiting a lung transplant and in excluding an expert’s opinion that all of the medical workers involved breached the standard of care to follow orders of the physician in charge, a state appeals court held May 9 in reversing and remanding (Aimee Harvey, et al., v. Kindred Healthcare Operating, Inc., et al., No. 14-17-00479-CV, Texas App., 14th Dist., 2019 Tex. App. LEXIS 3765).
KANSAS CITY, Kan. — It is too late in a man’s personal injury lawsuit against his insurer to dismiss the case without prejudice so he can remedy the problem that caused the testimony of his vocational expert to be excluded from trial, a Kansas federal judge held May 7 in denying the dismissal motion (William Lane Barcus v. The Phoenix Insurance Co., No. 2:17-cv-02492, D. Kan., 2019 U.S. Dist. LEXIS 76823).
ATLANTA — The 11th Circuit U.S. Court of Appeals on May 6 denied an appeal bid by a man convicted of killing two college students execution style in their Alabama home, finding no error by the man’s counsel relating to the admittance of expert testimony linking his DNA to DNA found in blood from the crime scene (Wilbert James Smith v. Warden, No. 19-10272, 11th Cir., 2019 U.S. App. LEXIS 13577).
COLUMBUS, Ohio — While a product liability claim against a pharmacy filed by a woman who took the wrong medication fails at the summary judgment stage for lack of proof of a defective product, her personal injury negligence claim survives based on the causation opinions of her pharmacology expert, whose qualifications were upheld by an Ohio federal judge May 3 (Pamela Sue Mason v. CVS Health, No. 2:17-cv-787, S.D. Ohio, 2019 U.S. Dist. LEXIS 75149).
CHICAGO — A document examiners’ certification board was not defamed by statements made by a forensic document examiner certified by a competing organization in an American Bar Association (ABA) journal issue on forensic science and expert witnesses because the statements were unactionable opinions, the Seventh Circuit U.S. Court of Appeals said May 1 in affirming dismissal of the board’s claims (Board of Forensic Document Examiners, Inc., et al. v. American Bar Association, et al., No. 18-2653, 7th Cir., 2019 U.S. App. LEXIS 13191).
JACKSON, Miss. — With the opinions of a trip-and-fall personal injury plaintiff’s liability expert properly excluded, a trial court correctly awarded the defendant country club summary judgment because without the expert testimony, no genuine issue of material fact exists, a Mississippi appeals court decided April 30 (Owen J. Bradley, et al. v. Diamondhead Country Club and Property Owners Association Inc., No. 2017-CA-01389-COA, Miss. App., 2019 Miss. App. LEXIS 180).
PHILADELPHIA — A Pennsylvania federal judge on April 29 allowed most expert testimony for a man who filed a class action against a county and its prison for publishing his mugshot and disorderly conduct arrest information in an online prisoner lookup tool more than a decade after the charges had been expunged (Daryoush Taha v. Bucks County, et al., No. 12-6867, E.D. Pa., 2019 U.S. Dist. LEXIS 71553).
SANTA ANA, Calif. — A California federal judge on April 25 allowed most expert testimony being challenged and then mostly denied summary judgment to a customer and a bank in their dispute over alleged fraudulent accounts opened under the customer’s name by a bank employee (Samuel Liera Soria v. U.S. Bank N.A., No. 8:17-cv-00603, C.D. Calif., 2019 U.S. Dist. LEXIS 70068).
SAN FRANCISCO — As insureds on April 5 wrapped up their efforts at certifying a trio of classes involving alleged violations of the Patient Protection and Affordable Care Act (ACA)’s lactation coverage rules, an insurer on April 11 filed reply briefs in a series of Daubert challenges seeking exclusion of the experts offered in support of the motion (Rachel Condry, et al. v. UnitedHealth Group Inc., et al., No. 17-183, N.D. Calif.).
WASHINGTON, D.C. — With the denial of a petition for a writ of certiorari on April 29, the U.S. Supreme Court let stand a Second Circuit U.S. Court of Appeals’ ruling upholding the exclusion of a man’s causation experts in his case against his former employers alleging that he contracted an autoimmune disease from exposure to toxic substances at work (Timothy J. Rizzo v. Applied Materials, Inc., et al., No. 18-1153, U.S. Sup.).
DETROIT — A forensic pathology expert for the estate of a 37-year-old woman who died while she was a prisoner in a Michigan county jail cannot testify in the estate’s suit against the county and others because his opinions are unreliable and unhelpful, a federal judge decided April 23 (Russell Hubble v. Macomb County, et al., No. 2:16-cv-13504, E.D. Mich., 2019 U.S. Dist. LEXIS 68784).
NEW ORLEANS — Although the Fifth Circuit U.S. Court of Appeals on April 17 revised an opinion to correct inconsistent statements, it did not change its original holding that a trial court properly allowed a Texas state trooper who witnessed and investigated a fatal tractor-trailer crash to offer expert opinions on the cause of the accident (Alexandro Puga, et al. v. RCX Solutions, Inc., No. 17-41282, 5th Cir., 2019 U.S. App. LEXIS 11229).
SAN ANTONIO — An economics expert can testify about lost-wage damages a driver suffered after a tractor-trailer hit his car, but a trucking safety expert cannot opine that the driver of the rig caused the accident because the expert is not an accident reconstructionist, a Texas federal magistrate judge ruled April 16 (Sergio Alpizar v. John Christner Trucking, LLC, et al., No. 5:17-cv-00712, W.D. Texas, 2019 U.S. Dist. LEXIS 64751).
WASHINGTON, D.C. — A U.S. Marine corporal’s conviction for raping his 2-year-old son stands after a military appeals court affirmed April 15 on all grounds, including that the court-martial judge properly allowed expert testimony on test results showing that the child had gonorrhea (United States v. Nicholas S. Baas, No. 201700318, Navy-Marine Corps Crim. App., 2019 CCA LEXIS 173).