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Mealey's Daubert

  • February 11, 2019

    Split Panel Affirms Use Of Testimony On Cell Phone Data Extraction Device

    PASADENA, Calif. — The question of whether a police detective should testify as an expert or a layman on a device used to extract data from a cell phone divided a Ninth Circuit U.S. Court of Appeals panel Feb. 6, with the majority finding no abuse of discretion in allowing the detective to testify as an expert witness in a child sex assault case (United States v. Tony Lee McLeod, No. 16-50013, 9th Cir., 2019 U.S. App. LEXIS 3752).

  • February 8, 2019

    Judge Excludes ‘Every Exposure’ Asbestos Causation Opinions, Grants Judgment

    NEW ORLEANS — Two experts’ passing references to a man’s work aboard a ship leave them impermissibly opining that every exposure to asbestos leads to mesothelioma, a federal judge in Louisiana held Feb. 5 in excluding the experts and granting summary judgment (Robert Schindler v. Dravo Basic Materials Co. Inc., No. 17-13013, E.D. La.).

  • February 8, 2019

    Narcotics Detective’s Opinions Mostly Admissible In Drug-Trafficking Case

    DENVER — Most opinions by a narcotics detective acting as an expert witness in a drug-trafficking case are admissible for trial, though he cannot opine that the defendant’s ownership of an assault rifle is indicative of drug trafficking, a Colorado federal judge decided Feb. 6 (United States v. Michael Shannon, No. 18-cr-00353, D. Colo., 2019 U.S. Dist. LEXIS 18728).

  • February 5, 2019

    5th Circuit Upholds Use Of Accident Investigator As Expert Witness

    NEW ORLEANS — 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, a Fifth Circuit U.S. Court of Appeals panel determined Feb. 1 without reaching the question of whether “an accident investigator can serve as an expert at all” (Alexandro Puga, et al. v. RCX Solutions, Inc., No. 17-41282, 5th Cir., 2019 U.S. App. LEXIS 3346).

  • February 4, 2019

    Expert’s Contradictions Doom Railroad Conductor’s Injury Claims, 7th Circuit Says

    CHICAGO — A railroad conductor lost his bid to hold his employer responsible for an elbow injury when the Seventh Circuit U.S. Court of Appeals on Feb. 1 affirmed dismissal of his federal claims based on the proper exclusion of his causation expert, who contradicted himself in deposition and affidavit testimony (Jeffery A. Kopplin v. Wisconsin Central Limited, No. 17-3602, 7th Cir., 2019 U.S. App. LEXIS 3315).

  • February 4, 2019

    Judge Allows Some, Excludes Other Expert Testimony In Lead-Paint Lawsuit

    MILWAUKEE — A federal judge in Wisconsin on Jan. 25 admitted some and excluded other experts for both the plaintiffs and the defendant paint companies being sued for injuries allegedly caused by exposure to lead-based paint (Glenn Burton v. American Cyanamid, et al., No. 07-0303, E.D. Wis., 2019 U.S. Dist. LEXIS 12286).

  • January 31, 2019

    Expert Opinions Admitted In Lawsuit Over Trademarks, Copyrights For Greeting Cards

    BOSTON — A Massachusetts federal judge on Jan. 29 allowed testimony from competing experts in a dispute over whether a maker of greeting cards falsified documents in a trademark and copyright row with another card company (LovePop, Inc. v. Paper Pop Cards, Inc., No. 17-11017, D. Mass., 2019 U.S. Dist. LEXIS 14035).

  • January 30, 2019

    Economic-Loss Opinions Reliable, Judge Rules In Suit Over Crash With Rig

    ST. LOUIS — An expert’s opinions on the lifetime economic loss of a woman who was injured in a crash with a tractor-trailer are sufficiently reliable to be heard at trial, a Missouri federal judge held Jan. 25 in declining the trucker’s bid to exclude the opinions (Nicole Holloway v. Winkler, Inc., et al., No. 4:17-cv-2208, E.D. Va., 2019 U.S. Dist. LEXIS 12211).

  • January 28, 2019

    Infectious Disease Expert Can Testify In Foodborne Illness Case, Judge Rules

    CHARLESTON, S.C. — With an infectious disease expert’s testimony allowed, a couple’s strict liability and breach of warranty claims over a case of food poisoning allegedly from a flounder dinner while on vacation survive a restaurant’s summary judgment bid, though their negligence claim fails for lack of proof that the restaurant caused the flounder to become infected, a South Carolina federal judge held Jan. 25 (Erna Kiessling, et al. v. Kiawah Island Inn Company LLC, No. 2:17-cv-02146, D. S.C., 2019 U.S. Dist. LEXIS 12057).

  • January 24, 2019

    Judge Admits Couple’s Water Intrusion Expert’s Opinion, Declines Jury Trial

    WILMINGTON, Del. — A Delaware state court judge on Jan. 7 denied in part a home builder’s motion for summary judgment, finding that a couple’s water intrusion expert’s opinion was admissible and that the plaintiffs waived their right to a jury trial because their allegations stem from an alleged breach of a 2006 sales agreement (Paul Agostini, et al. v. Blenheim at Augustine Creek LLC, No. N16C-06-167 CLS, Del. Super., New Castle Co., 2018 Del. Super. LEXIS 8).

  • January 23, 2019

    7th Circuit Affirms Exclusion Of ‘Novel’ Expert Theory In Bard Hernia Patch Case

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on Jan. 22 affirmed summary judgment in a hernia mesh patch case, agreeing with a district court that the theory of a plaintiff’s key expert witness was novel, untested, unaccepted and failed to meet the requirements of the U.S. Supreme Court’s expert testimony standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Charlotte Robinson, et al. v. Davol Inc., et al., No. 17-2068, 7th Cir., 2019 U.S. App. LEXIS 1981).

  • January 17, 2019

    Panel: Expert Toxicology Testimony Properly Admitted In Fatal Crash Case

    GRAND RAPIDS, Mich. — A trial court properly allowed expert testimony on drugs used by a truck driver who crashed into a car, killing two people, because it was relevant and did not unfairly prejudice the driver, a Michigan appeals court determined Jan. 15 in affirming his conviction (People of Michigan v. Mark Edward Feuss, No. 337190, Mich. App., 2019 Mich. App. LEXIS 48).

  • January 17, 2019

    Magistrate Judge Excludes In Part Expert Testimony In Reinsurance Coverage Case

    SPRINGFIELD, Ill. — An Illinois federal magistrate judge on Jan. 16 granted in part several motions to exclude expert testimony regarding a corporate status issue in a reinsurance coverage dispute over payment for mine subsidence damages (Illinois Mine Subsidence Insurance Fund v. Union Pacific Railroad Co., No. 17-3199, C.D. Ill., 2019 U.S. Dist. LEXIS 7355).

  • January 16, 2019

    Minnesota Appeals Court Affirms Summary Judgment In Bair Hugger Lawsuits

    ST. PAUL, Minn. — A Minneapolis Court of Appeals panel on Jan. 14 affirmed that plaintiffs claiming to have suffered surgical site infections (SSIs) from the Bair Hugger surgical patient warming device failed to present admissible expert evidence that the device causes infections (In re:  3M Bair Hugger Litigation, No. A18-0473, Minn. App., 2019 Minn. App. LEXIS 11).

  • January 16, 2019

    Dog Training Expert Can Opine On Police Dog’s Reliability, Judge Decides

    PEORIA, Ill. — An expert in police dog training meets the qualification, reliability and relevance standards to opine on the reliability of Lex, a police dog whose training and ability to detect narcotics are in dispute in a civil rights lawsuit over a traffic stop in which Lex alerted to the odor of narcotics in a car where none were later found, an Illinois federal judge held Jan. 15 (Donnelly Jackson, et al. v. Bloomington, et al., No. 17-cv-1046, C.D. Ill., 2019 U.S. Dist. LEXIS 6895).

  • January 14, 2019

    Expert Cannot Quantify Injured Woman’s Loss Of Value Of Life, Judge Says

    ALBUQUERQUE, N.M. — A New Mexico federal judge on Jan. 11 partly excluded expert witness testimony for a woman in her personal injury car crash suit, finding that while allowing testimony to describe what “hedonic damages” are to the jury is proper, permitting the expert to actually calculate the value of the woman’s life is not (Shirley J. Walker, v. Gregory J. Spina, et al., No. 17-0991, D. N.M., 2019 U.S. Dist. LEXIS 5275).

  • January 11, 2019

    Panel Vacates Insurance Agent’s Summary Judgment On Professional Negligence

    KNOXVILLE, Tenn. — After finding that a judge erred in excluding expert testimony on an insurance agent’s standard of care regarding placed insurance with an insolvent insurer, a Tennessee appeals court panel on Jan. 9 vacated an entry of summary judgment to the agent on a professional negligence claim (Joy Littleton, et al. v. TIS Insurance Services Inc., No. E2018-00477-COA-R3-CV, Tenn. App., 2019 Tenn. App. LEXIS 13).

  • January 11, 2019

    Monsanto Denies Glyphosate Liability, Moves To Exclude Expert’s Testimony

    SAN FRANCISCO — Monsanto Co. on Jan. 9 filed five answers to individual plaintiffs’ claim in the multidistrict litigation (MDL) for Roundup in a California federal court in which the company denies that it is liable for any alleged injuries caused by glyphosate, the active ingredient in Roundup. Meanwhile, Monsanto moved to exclude the testimony of one of the plaintiffs’ expert witnesses who says the company has a “network” of scientists “deployed to reinforce” its talking points (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • January 10, 2019

    Magistrate Judge Finds Experts’ Testimony Admissible In Suit Over Contamination

    BUFFALO, N.Y. — A federal magistrate judge in New York on Dec. 27 denied cross-motions to exclude expert testimony filed by parties in a suit over the recovery of cleanup costs for groundwater contamination at a site that formerly housed a gasoline station operated by Atlantic Richfield Co., finding that the parties’ challenges to each other’s experts went to the weight of their testimony (51 Webster St. Inc. v. Atlantic Richfield Co., No. 16-CV-468-MJR, W.D. N.Y., 2018 U.S. Dist. LEXIS 217909).

  • January 9, 2019

    Federal Judge Admits Trio Of Asbestos-Friction Experts, Denies Summary Judgment

    NEW ORLEANS — Three plaintiff experts’ testimony adequately considers the difference between amphibole and chrysotile asbestos friction products and differs from the “any exposure” theory to warrant admission, a federal judge in Louisiana held Jan. 7.  The judge then denied the two defendants summary judgment (Victor Michel, et al. v. Ford Motor Co., et al., No. 18-4738, E.D. La., 2019 U.S. Dist. LEXIS 2521).

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