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Mealey's Daubert

January 07, 2020
Judge Finds No Evidence That Former Sludge Site Presents Imminent Danger

FORT MYERS, Fla.— A federal judge in Florida on Jan. 6 granted a city’s motion for partial summary judgment on a Resource Conservation and Recovery Act (RCRA) claim brought by residents who lived near a site where lime sludge from the city’s wastewater treatment plant was dumped, holding that there is no evidence that the site presents an imminent or substantial risk to human health or the environment since the sludge has been removed (Deretha Miller, et al. v. City of Fort Myers, No. 18-cv-195, M.D. Fla., 2020 U.S. Dist. LEXIS 1356).
December 31, 2019
Magistrate Judge Endorses Expert Medical Opinions In Woman’s Negligence Suit

ALBUQUERQUE, N.M. — An orthopedic surgeon can testify as an expert about the standard of care a woman received following knee surgery but cannot opine that she will need cosmetic surgery because that is not his area of expertise, a New Mexico federal magistrate judge said Dec. 30 in mostly denying a motion to strike in a medical malpractice case (Holly Salzman v. United States, No. 1:18-cv-779, D. N.M., 2019 U.S. Dist. LEXIS 222381).
December 31, 2019
Expertise Not Needed For Informant To ID Cocaine, 2nd Circuit Rules

NEW YORK — Two nephews of the first lady of Venezuela lost challenges to their cocaine trafficking convictions when the Second Circuit U.S. Court of Appeals on Dec. 20 affirmed the verdicts and 18-year sentences after finding no error in allowing a drug informant to testify as a lay witness, not an expert, on being able to identify cocaine (United States v. Efrain Antonio Campo Flores, et al., Nos. 17-4039, 17-4141, 2nd Cir., 2019 U.S. App. LEXIS 37956).
December 31, 2019
Expert’s Opinions Bring Safety Of Store’s Flooring Into Question, Judge Holds

CAPE GIRARDEAU, Mo. — Not every opinion by an expert for a plaintiff in a trip-and-fall case against a department store is admissible, but enough are to help defeat the store’s bid for summary judgment, a Missouri federal judge held Dec. 23 (Randy Lee Bailey v. Menard, Inc., No. 1:18-cv-00065, E.D. Mo., 2019 U.S. Dist. LEXIS 219841).
December 31, 2019
Lack Of Proper Method Dooms Expert’s Opinions, Oklahoma Federal Judge Says

TULSA, Okla. — An expert’s opinions in a breach of contract action between two property abstract companies fail due to a lack of proper methodology, an Oklahoma federal judge ruled Dec. 27 in excluding the expert’s testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 221522).
December 23, 2019
Judge Uses Daubert To Exclude Opinions From 1972 Murder Trial For Man’s Retrial

WASHINGTON, D.C. — Transcripts of testimony from three prosecution experts in the 1972 trial of a man convicted of murder cannot be used in the man’s court-ordered retrial because the testimony does not meet the current standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), a District of Columbia federal judge held Dec. 20 (United States v. John Milton Ausby, No. 1:72-cr-67, D. D.C., 2019 U.S. Dist. LEXIS 218971).
December 20, 2019
DEA Worker’s Testimony Reliable, Relevant In Drug Smuggling Case, Panel Finds

ATLANTA — A federal court properly allowed a Drug Enforcement Administration (DEA) researcher to testify as an expert at trial for three indicted cocaine smugglers, the 11th Circuit U.S. Court of Appeals decided Dec. 18, finding the expert’s opinions on smuggling drugs by boat both reliable and relevant (United States v. Armando Reyes-Garcia, et al., No. 18-10144, 11th Cir., 2019 U.S. App. LEXIS 37414).
December 20, 2019
Iowa Appeals Court Affirms $4.9 Million Award To Woman Hurt In Fall Outside Hotel

DES MOINES, Iowa — An Iowa appeals court on Nov. 27 affirmed a $4.9 million jury award to a woman who fractured her ankle when she fell on an icy sidewalk outside a hotel, holding that the award was not excessive and that the trial court did not abuse its discretion by permitting certain expert testimony (Brenda J. Alcala v. Marriott International Inc., et al., No. 18-1453, Iowa App., 2019 Iowa App. LEXIS 1058).
December 18, 2019
Doctor’s Testimony In Amputation Case Reliable, Kentucky Federal Judge Says

LONDON, Ky. — A doctor is qualified to testify in a malpractice case, and his opinion that poor medical care caused a woman with a blood clot to lose her leg is reliable, a Kentucky federal judge held Dec. 17 in denying a motion to exclude the expert’s testimony (Debra Chesnut, et al. v. United States, et al., No. 6:17-cv-00079, E.D. Ky., 2019 U.S. Dist. LEXIS 216622).
December 12, 2019
Competency Standard For VA Medical Experts Needs Review, Vets Urge

WASHINGTON, D.C. — The Federal Circuit U.S. Court of Appeals’ standard for judging the competency of medical experts for U.S. Department of Veterans Affairs veteran benefits cases conflicts with the Daubert v. Merrell Dow Pharmaceuticals Inc. standard and tramples on Congress’ intent to have a veteran-friendly benefits process, a veterans’ group tells the U.S. Supreme Court in a Dec. 9 amicus curiae brief (Ernest L. Francway, Jr. v. Robert Wilkie, No. 19-604, U.S. Sup., 2019 U.S. S. CT. BRIEFS LEXIS 7207).
December 11, 2019
Hail Damage Opinions Survive Exclusion Bid In Oklahoma Coverage Row

OKLAHOMA CITY — An Oklahoma federal judge on Dec. 10 allowed an expert to testify in an insurance coverage dispute about what caused damage to a roof, finding the expert’s reasoning and methods “sufficient” under Daubert v. Merrell Dow Pharmaceuticals Inc. (Employers Mutual Casualty Company v. SportChassis Holdings, Inc., No. 5:18-cv-766, W.D. Okla., 2019 U.S. Dist. LEXIS 212589).
December 10, 2019
Trial Court Properly Weighed Expert Testimony In Child Porn Case, Panel Holds

PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Dec. 4 affirmed the conviction and 70-year prison sentence for a man who pleaded guilty to producing child pornography after finding that the trial court used the proper standard when vetting the defendant’s mental health expert witness (United States v. Jay Eugene Reed, No. 18-3511, 3rd Cir., 2019 U.S. App. LEXIS 35996).
December 10, 2019
Expert Can’t Merely Repeat Information Provided, Federal Judge Says

TULSA, Okla. — Lack of a sound methodology and relevance dooms an expert’s opinions in a breach of contract action between two property abstract companies, an Oklahoma federal judge determined Dec. 9 in excluding the expert’s testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 211700).
December 09, 2019
Expert’s Opinions In Child Abuse Case Stricken By Judge As Unreliable

ALBUQUERQUE, N.M. — A New Mexico federal judge on Dec. 5 excluded expert testimony for the defendant in a child abuse case from a pediatric neurologist for lack of reliability after agreeing with the expert that his opinion “is not generally accepted by the scientific community” (United States v. Patrick Duran, No. 1:14-cr-3762, D. N.M., 2019 U.S. Dist. LEXIS 210690).
December 02, 2019
Most Expert Testimony On Car Dealership’s Value Allowed In Franchise Row

HONOLULU — Two expert witnesses for a Hawaiian car dealership can testify about the value of the business to determine damages in the franchisee’s improper business practices suit against the franchisor, Volvo Car USA LLC, though they cannot mention estimated 2017 financial results because the business never provided the actual results, a federal judge ruled Nov. 26 (Envy Hawaii LLC v. Volvo Car USA LLC, No. 1:17-cv-40, D. Hawaii, 2019 U.S. Dist. LEXIS 206319).
December 02, 2019
Colorado Federal Judge Allows Expert Testimony In ERISA Class Action

DENVER — Expert witnesses for both sides can testify at trial on what are reasonable record-keeping and administrative fees for overseeing an employee 401(k) plan because their methods are reliable enough to allow their opinions, a Colorado federal judge held Nov. 26 (Lorraine M. Ramos, et al. v. Banner Health, et al., No. 1:15-cv-2556, D. Colo., 2019 U.S. Dist. LEXIS 205155).
December 02, 2019
Class Partly Certified, 1 Expert Excluded In Facebook ‘View As’ Data Breach Suit

SAN FRANCISCO — In a Nov. 26 order, a California federal judge granted class certification for injunctive purposes only in a lawsuit over a data breach that affected the “view as” feature on Facebook Inc.’s social network, while also declining to certify a damages class and issuing a split ruling on Facebook’s motions to strike the opinions of two of the plaintiff’s expert witnesses (Stephen Adkins v. Facebook, Inc., No. 3:18-cv-05982, N.D. Calif.).
November 27, 2019
Doubts About Gun Toolmark Testing Prompt Judge To Limit Expert’s Opinions

BROOKLYN, N.Y. — Mindful of a new report refuting the validity of firearms toolmark analysis, a New York federal judge on Nov. 26 allowed an expert witness for the government to testify but made clear that the expert cannot opine that a shell found at a crime scene definitively came from the defendant’s gun (United States v. Alonzo Shipp, No. 1:19-cr-29, E.D. N.Y., 2019 U.S. Dist. LEXIS 205397).
November 27, 2019
Residents’ Proposed Class Over Contamination Cannot Be Certified, Judge Rules

FORT WAYNE, Ind. — A federal judge in Indiana on Nov. 18 denied certification of a proposed class of residents in Andrews, Ind., who complain that their properties and the town’s drinking water are contaminated as a result of the operations of two businesses in the middle of town, holding that the claims among class members lack typicality and that a class action is not the best vehicle to advance resolution of the lead plaintiffs’ claims (Opal Millman, et al. v. United Technologies Corp., et al., No. 16-CV-312-HAB, N.D. Ind., 2019 U.S. Dist. LEXIS 199595).
November 26, 2019
4th Circuit: Lack Of Detail Does Not Derail Expert Ruling In Sex Trafficking Case

RICHMOND, Va. — While a trial court’s ruling allowing an expert witness to testify for the government to prove a child pornography charge was “quite brief,” any error was harmless as there was ample other evidence to convict the defendant, the Fourth Circuit U.S. Court of Appeals ruled Nov. 25 (United States v. Shahid Hassan Muslim, No. 16-4304, 4th Cir., 2019 U.S. App. LEXIS 35178).