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Mealey's Daubert

April 10, 2019
Judge Denies City’s Request For Injunction Requiring Contamination Investigation

CHICAGO — A federal judge in Illinois on April 9 denied a city’s request for a temporary injunction that would require two utility companies to investigate and remediate manufactured gas waste oil (MG waste oil), methane and polycyclic aromatic hydrocarbons (PAH) contamination at a former manufactured gas station and found that experts proffered by the parties are qualified to testify about the migration of the contamination (Evanston, Ill. v. Northern Illinois Gas Company, et al., No. 16-C-5692, N.D. Ill., 2019 U.S. Dist. LEXIS 60707).
April 08, 2019
Paulsboro Derailment Court Properly Excluded Experts, 3rd Circuit Decides

PHILADELPHIA — Two experts for a business allegedly damaged by the 2012 Paulsboro, N.J., train derailment and chemical spill failed to provide reliable, relevant opinions on the damage caused by the wreck, the Third Circuit U.S. Court of Appeals held April 5 in affirming summary judgment to the train operator (Ace Pallet Corporation, et al. v. Consolidated Rail Corporation, et al., No. 18-2746, 3rd Cir., 2019 U.S. App. LEXIS 10105).
April 05, 2019
Expert Testimony On Cell Site Data To Track Robbers’ Phones Affirmed By Panel

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on April 3 affirmed the bank robbery conviction and 19-year prison sentence for a Maryland man after finding that the trial court properly allowed an expert for the government to opine on historical cell site location evidence (United States v. Timothy Allen McNeal, No. 18-4405, 4th Cir., 2019 U.S. App. LEXIS 9804).
April 04, 2019
Expert’s Opinions Trimmed In Diabetic’s Disability Bias Suit Against Bus Company

HARRISBURG, Pa. — A Pennsylvania federal judge on April 2 excluded some opinions of a diabetes expert for a mechanic in an employment discrimination action against a bus company while denying summary judgment to both parties (Richard A. Miller, Jr. v. Lebanon County Transit Authority, No. 1:17-cv-1368, M.D. Pa., 2019 U.S. Dist. LEXIS 56024).
April 01, 2019
Majority Rejects Rule For Vocational Expert Testimony In Disability Cases

WASHINGTON, D.C. — The Social Security Administration (SSA) does not need a categorical rule requiring vocational expert witnesses in disability benefits hearings to provide data to back up their job availability opinions when requested by an applicant to meet the “substantial evidence” standard for such hearings, a divided U.S. Supreme Court held April 1 (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).
March 27, 2019
Expert Opinions, Auto Defect Claims Properly Tossed, 4th Circuit Decides

RICHMOND, Va. — A trial court correctly awarded Ford Motor Co. summary judgment on consumers’ design defect claims over vehicle acceleration problems after properly excluding the consumers’ expert witness opinions as unreliable, the Fourth Circuit U.S. Court of Appeals held March 25 (Lance R. Belville, et al. v. Ford Motor Company, No. 18-1470, 4th Cir., 2019 U.S. App. LEXIS 8838).
March 26, 2019
9th Circuit: Injured Man Acting As Own Expert Fails Daubert Standards

PASADENA, Calif. — A man who was injured using a spray-coating gun failed in his attempt to serve as his own expert witness, causing him to lose his product liability case for lack of causation evidence, the Ninth Circuit U.S. Court of Appeals affirmed March 18 (Jason Scott Theis v. Graco, Inc., No. 17-56723, 9th Cir., 2019 U.S. App. LEXIS 7964).
March 14, 2019
Pennsylvania High Court To Hear Pesticide Cancer Case, Rule On Evidence Standard

HARRISBURG, Pa. — The Pennsylvania Supreme Court on March 5 agreed to hear an appeal in a wrongful death lawsuit to determine whether a divided lower court reached the correct conclusion regarding the application of the Frye evidence standard in a pesticide cancer lawsuit against numerous chemical companies (Richard Thomas Walsh v. BASF Corporation, et al., No. 14 WAP 2019, Pa. Sup.).
March 14, 2019
Petitioner Says Exclusion Of Experts In Chemical Exposure Suit Warrants Review

WASHINGTON, D.C. — The Second Circuit U.S. Court of Appeals erred in affirming 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, the former employee tells the U.S. Supreme Court in a Feb. 26 petition for a writ of certiorari (Timothy J. Rizzo v. Applied Materials, Inc., et al., No. 18-1153, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 825).
March 13, 2019
Judge Strikes Expert For Estate In Suit Over Fatal Police Shooting In Chicago

CHICAGO — An expert for the estate of a black man who was shot and killed by Chicago police cannot offer his opinions in the estate’s civil rights suit against the city because they would not help a jury and they are based on unreliable methods, an Illinois federal judge decided March 11 (Estate of Pierre Loury v. Chicago, et al., No. 16-cv-4452, N.D. Ill., 2019 U.S. Dist. LEXIS 38029).
March 12, 2019
DNA Tester In Child Sex Case Need Not Be Expert, D.C. Circuit Rules

WASHINGTON, D.C. — A trial court properly found that a person who conducted DNA testing on samples from a man eventually convicted of having sex with an 11-year-old girl presented factual testimony at the trial, not expert opinions, the District of Columbia Circuit U.S. Court of Appeals determined March 8 (United States v. Robert Kelsey, No. 16-3125, D.C. Cir., 2019 U.S. App. LEXIS 6914).
March 11, 2019
Expert Properly Excluded In Oil Well Contract Row, 10th Circuit Rules

DENVER — A federal court in Colorado did not err in excluding expert testimony for an oil company on industry customs in a breach of contract dispute or in making comments about the expert in front of the jury, the 10th Circuit U.S. Court of Appeals determined March 7 (Bill Barrett Corporation v. YMC Royalty Company, LP, et al., No. 18-1067, 10th Cir., 2019 U.S. App. LEXIS 6826).
March 08, 2019
Expert Testimony Admitted In Contract Feud Between 2 Beverage Businesses

ST. LOUIS — A Missouri federal judge on March 5 allowed testimony from experts for both sides in a contract dispute between two beverage companies, telling the parties they can challenge each opposing expert’s opinions at trial (Paul Beverage Co., Inc. v. The American Bottling Co., No. 4:17-cv-2672, E.D. Mo., 2019 U.S. Dist. LEXIS 34743).
March 07, 2019
Expert’s Exclusion Dooms FELA Asbestos Case, Judge Says

HOUSTON — An expert’s causation opinion confuses association and causation and appears to be based on his own untested methodology, and after excluding it, a plaintiff lacks sufficient evidence linking asbestos to his colon cancer even under the lowered standard applied in Federal Employers Liability Act (FELA) cases, a federal judge in Texas held March 5 (John Collins v. BNSF Railway Co., No. 17-3572, S.D. Texas, 2019 U.S. Dist. LEXIS 34712).
March 07, 2019
Judge: Gynecologist’s Opinion Can Support Negligence Claims Against Nursing Home

NEW HAVEN, Conn. — A gynecologist’s opinion that a nursing home was negligent in treating a patient for dementia constituted a sufficient expert opinion under Connecticut law to support a negligence lawsuit brought against the facility and its management by a mother and her son, a federal judge ruled March 4 in denying the defendants’ motion to dismiss, finding that the gynecologist qualified as a “similar health care provider” under state law because a large part of her patient population is composed of geriatric women (Dorina Schachter, et al. v. Sunrise Senior Living Management Inc., et al., No. 18-cv-953, D. Conn., 2019 U.S. Dist. LEXIS 33714).
March 06, 2019
Judge Permits Expert’s Child Sex Abuse Testimony Without Daubert Hearing

ALBUQUERQUE, N.M. — With no evidence of unreliable or irrelevant testimony from an expert in a child sex abuse case about victim behavior, a Daubert hearing is not needed to determine the admissibility of the testimony, a New Mexico federal judge said March 4 (United States v. Arthur Perrault, No. 1:17-cr-02558, D. N.M., 2019 U.S. Dist. LEXIS 33871).
March 06, 2019
New York City’s Expert Disallowed In Suit Over Accessibility Of Police Stations

NEW YORK — A New York federal judge on March 5 excluded expert testimony for New York City in its defense of class claims that many of its police stations are not handicapped accessible, finding the expert’s methods unreliable, but admitted most testimony from the plaintiffs’ expert based on her reliable methodology (Disabled in Action of Metropolitan New York, et al. v. New York City, et al., No. 16-cv-08354, S.D. N.Y., 2019 U.S. Dist. LEXIS 33663).
March 04, 2019
Antitrust Class Put On Hold Pending Daubert Vetting Of Expert Testimony

PITTSBURGH — A motion to certify a class of insurance purchasers in an antitrust action against an insurer cannot be decided until a Daubert hearing can be held — with a technical adviser participating — to decide the worthiness of expert testimony on classwide proof of injury, a Pennsylvania federal judge held March 1 (Cole’s Wexford Hotel, Inc. v. Highmark Inc., No. 10-1609, W.D. Pa., 2019 U.S. Dist. LEXIS 32573).
March 01, 2019
Judge: Exclusion Of Unreliable Asbestos Causation Opinion Dooms Case

BOULDER, Colo. — An expert’s handful of hours researching asbestos with little to no information about the plaintiff’s work or exposures renders the testimony unreliable, a federal judge in Colorado held in excluding it and granting a railroad summary judgment on Feb. 21 (Roddy York v. BNSF Railway Co., No. 17-1088, D. Colo., 2019 U.S. Dist. LEXIS 27644).
March 01, 2019
Hospital Expert Can Opine In Patient’s Sex Assault Suit, Federal Judge Says

FORT MYERS, Fla. — A longtime health care CEO can opine as an expert on the standard of care at a hospital sued for the alleged sexual assault of a patient by a male nurse, a Florida federal judge ruled Feb. 28 in denying a motion to exclude the expert’s testimony (Donia Goines v. Lee Memorial Health System, et al., No: 2:17-cv-656, 2019 U.S. Dist. LEXIS 31786).