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Mealey's Daubert

October 11, 2019
Treating Doctor’s Causation Opinions Allowed In Suit Over Injuries From Plane Ride

BROOKLYN, N.Y. — A treating physician can testify as an expert witness that a man’s knee injuries were caused when he was struck by a beverage cart during an airline flight, a New York federal judge decided Sept. 30 after finding that the doctor’s statements raised a disputed issue that a jury must decide (Louis Cantelmo v. United Airlines, Inc., No. 17-cv-1730, E.D. N.Y., 2019 U.S. Dist. LEXIS 173889).
October 10, 2019
Split 11th Circuit Panel Affirms $2.4M Award In Mentor Pelvic Mesh Case

ATLANTA — In a “close” 2-1 ruling, an 11th Circuit U.S. Court of Appeals panel on Oct. 8 affirmed a $2.4 million compensatory/punitives judgment in a Mentor Corp. pelvic mesh multidistrict litigation bellwether trial (Teresa Taylor v. Mentor Worldwide LLC, et al., No. 16-17147, 11th Cir., 2019 U.S. App. LEXIS 30159).
October 08, 2019
Accountant’s Model Can Identify Oil Royalty Class Members, Judge Rules

MUSKOGEE, Okla. — An accounting expert is sufficiently qualified and uses a reliable method to calculate the size of a class of plaintiffs in an oil well royalty owner’s class action alleging that an oil company isn’t paying the required interest on late royalty payments, an Oklahoma federal judge held Oct. 3 (Perry Cline v. Sunoco, Inc. (R&M), et al., No. 6:17-cv-313, E.D. Okla., 2019 U.S. Dist. LEXIS 171969).
October 08, 2019
Judge Admits Experts, Denies Judgment In Trio Of Asbestos Rulings

BALTIMORE — A Maryland federal judge admitted supplemental expert reports, saying any untimeliness was not prejudicial, found three plaintiffs’ experts’ testimony went beyond the opinion that each and every exposure led to disease, and denied an asbestos-friction defendant’s motion for summary judgment; all three rulings came Sept. 30 (John Dugger Jr., et al. v. Union Carbide Corp., et al., No. 16-3912, D. Md., 2019 U.S. Dist. LEXIS 171168).
October 07, 2019
Convicted Cardiologist Denied High Court Review Of Allowance Of Experts

WASHINGTON, D.C. — An Ohio cardiologist convicted of health care fraud lost his bid for U.S. Supreme Court consideration of his challenge to the trial court’s admission of several doctors’ expert opinions, when the high court justices denied certiorari on Oct. 7 (Harold Persaud v. United States, No. 19-216, U.S. Sup.).
October 07, 2019
Justices Decline Review Of Expert Witness Ruling In Employer Retaliation Case

WASHINGTON, D.C. — A First Circuit U.S. Court of Appeals ruling that a trial court properly excluded expert testimony for an ex-employee asserting a retaliatory discharge claim against brokerage companies will stand after the U.S. Supreme Court declined to review the case on Oct. 7 (Jackie Hosang Lawson v. FMR LLC, et al., No. 19-2, U.S. Sup.).
October 03, 2019
Convicted Killer Loses Daubert Challenge Over Cell Phone Tower Testimony

ANCHORAGE, Alaska — An Alaska federal judge on Oct. 1 denied a petition for a writ of habeas corpus filed by a man convicted of murdering his ex-girlfriend, finding that he is not entitled to relief on the ground that the state trial court erred by not holding a hearing under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), to review an expert’s cell phone tower testimony (Bukurim Miftari v. Earl Houser, No. 3:19-cv-00091, D. Alaska, 2019 U.S. Dist. LEXIS 170018).
October 02, 2019
Judge: Not Enough Information To Exclude Expert In Crash Injury Suit

DALLAS — A Texas federal judge on Sept. 27 decided that he cannot rule on whether a proposed police expert in a suit over injuries suffered in a car crash can testify because neither the suing woman nor the defendant company provided enough information about the expert and testimony, prompting an order for another deposition of the officer (Michele Bailon v. Landstar Ranger, Inc., No. 3:16-cv-1022, N.D. Texas, 2019 U.S. Dist. LEXIS 166550).
September 27, 2019
Dispute Between Rival Businesses Heads To Trial With 1 Expert For Plaintiffs

SEATTLE — A Washington federal judge on Sept. 25 excluded testimony from one expert for lack of reliability but allowed another expert to testify on damages in a former businessman’s defamation suit against a rival company (Top Notch Solutions, Inc., et al. v. Crouse and Associates Insurance Brokers, Inc., et al., No. 17-0827, W.D. Wash., 2019 U.S. Dist. LEXIS 165085).
September 27, 2019
Judge Will Wait Till Trial In Wrongful Death Suit To Act As Daubert Gatekeeper

GREAT FALLS, Mont. — A Montana federal judge on Sept. 24 decided to wait until trial to rule on the admissibility of testimony by a medical expert for a family suing the government for wrongful death, agreeing with the Ninth Circuit U.S. Court of Appeals on the court’s gatekeeping role for vetting expert testimony that when there is a bench trial, “‘there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself’” (Barbara A. Gibson, et al. v. United States, No. 18-112, D. Mont., 2019 U.S. Dist. LEXIS 163372).
September 19, 2019
Magistrate Limits Daubert Review In Allowing Expert In Faulty Toilet Class Suit

SHERMAN, Texas — Using a “relaxed” Daubert analysis for reviewing expert testimony at the class certification stage, a Texas magistrate judge on Sept. 17 denied a bid by toilet makers in a product liability class action to strike an expert’s declaration due to alleged “inconsistencies and errors” (Steven and Joanna Cone, et al. v. Vortens, Inc., et al., No. 4:17-cv-00001, E.D. Texas, 2019 U.S. Dist. LEXIS 158127).
September 19, 2019
Disability Claimant’s Opinions Are Not Relevant To Breach Of Contract Claim, Judge Says

WILLIAMSPORT, Pa. — A Pennsylvania federal judge on Sept. 17 determined that a disability claimant’s opinions on the handling of his claim must be excluded from trial because the claimant’s opinions are not relevant to the breach of contract claim and would be prejudicial to the disability insurer and that the claimant’s expert witnesses cannot testify as to whether the claimant is disabled from his own occupation as a dentist because the experts do not have sufficient knowledge of the claimant’s occupational duties (Dr. Robert Brugler v. Unum Group, et al., No. 15-1031, M.D. Pa., 2019 U.S. Dist. LEXIS 158503).
September 18, 2019
Woman Loses Suit Over Post-Surgery Pain Meds After Expert’s Opinions Stricken

INDIANAPOLIS — An Indiana federal judge on Sept. 17 handed the United States a summary judgment victory in a medical malpractice case after finding that the expert for a woman who suffered respiratory failure after surgery failed to identify a standard of care that was allegedly breached (Marie Smith v. United States, No. 1:17-cv-01215, S.D. Ind., 2019 U.S. Dist. LEXIS 157923).
September 18, 2019
Bayer Seeks Dismissal Of Gadolinium Cases After Experts Excluded

PHOENIX — Bayer HealthCare Pharmaceuticals Inc. on Sept. 13 moved for summary judgment in a gadolinium contrast agent injury lawsuit after a judge excluded her three general causation experts (Susan Fischer v. Bayer HealthCare Pharmaceuticals Inc., et al., No. 18-1778, D. Ariz.).
September 18, 2019
Judge Certifies Class For Borrowers Accusing Servicer Of RESPA Violations

GREENBELT, Md. — A federal judge in Maryland on Sept. 9 granted in part a motion to certify a nationwide and statewide class for borrowers claiming that Nationstar Mortgage LLC violated Regulation X of the Real Estate Settlement Procedures Act (RESPA) when failing to acknowledge receipt of a borrower’s loan modification application within five days and limited the claims brought by the class based on his ruling on the loan servicer’s motion for summary judgment (Demetrius Robinson v. Nationstar Mortgage LLC, No. 14-cv-3667, D. Md., 2019 U.S. Dist. LEXIS 153526).
September 17, 2019
Expert For Injured Child In Trip-And-Fall Case Excluded By Magistrate

COLUMBUS, Ohio — An expert cannot opine on a child’s fall at a Dollar Tree store in a personal injury action because her proposed testimony is not “based on sufficient facts or data” as required by Federal Rule of Evidence 702, an Ohio federal magistrate judge ruled Sept. 12 in excluding the expert’s testimony from trial (Austin Smith, et al. v. Dollar Tree Stores Inc., et al., No. 2:18-cv-243, S.D. Ohio, 2019 U.S. Dist. LEXIS 155574).
September 16, 2019
Expert’s Opinions On Cultlike Group Inadmissible, 7th Circuit Affirms

CHICAGO — A trial court for a woman convicted of submitting false tax returns after joining an anti-government group “reasonably” excluded testimony from her psychology expert for lack of qualifications and sound methods, the Seventh Circuit U.S. Court of Appeals held Sept. 12 in affirming her conviction (United States v. Cathy Nicole Truitt, No. 18-2324, 7th Cir., 2019 U.S. App. LEXIS 27497).
September 13, 2019
Daughter Can Allege Negligence Per Se Against Nursing Home, Judge Rules

VALDOSTA, Ga. — Although a daughter suing a nursing home where her mother died cannot allege a private right of action against the facility under federal nursing home regulations, she can pursue a claim for negligence per se under the rules, a federal judge in Georgia ruled Aug. 26, denying the facility’s motion for summary judgment (Ange Davis v. GGNSC Administrative Services LLC, No. 7:17-CV-107, M.D. Ga., Valdosta Div., 2019 U.S. Dist. LEXIS 144688).
September 06, 2019
Expert’s Report Survives Exclusion Bid In Case Against VA Hospital

NEW ORLEANS — While a medical expert’s “thin” written report opining that Department of Veterans Affairs (VA) health care providers’ delay in diagnosing a man’s fatal cancer shortened his lifespan “just barely” satisfies the requirements for admittance, his supplemental declaration cannot be admitted at trial because it is untimely and, therefore, prejudicial to the government, a Louisiana federal judge ruled Sept. 4 (Inell Tucker, et al. v. United States, No. 18-4056, E.D. La., 2019 U.S. Dist. LEXIS 150053).
September 06, 2019
Magistrate Strikes Expert Testimony In Dispute Over Cause Of Church’s Water Damage

BRUNSWICK, Ga. — A federal magistrate judge in Georgia on Aug. 30 granted an insurer’s motion to strike the testimony of a church insured’s experts in a dispute over what caused the insured’s water damage, finding that the insured failed to provide sufficient evidence that the experts are qualified to testify as to the issue of causation (Greater Hall Temple Church of God v. Southern Mutual Church Insurance Company, No. 17-111, S.D. Ga., 2019 U.S. Dist. LEXIS 148594).