Mealey's Daubert

  • October 21, 2020

    Idaho Supreme Court Vacates Ruling For Hospital In Suit Over Late Cancer Diagnosis

    BOISE, Idaho — The Idaho Supreme Court on Oct. 19 concluded that a lower court erred in granting summary judgment to a hospital in a suit over the alleged late diagnosis of a decedent’s stage IV colorectal cancer, holding that testimony for the decedent’s family by an out-of-area expert on the community standard of care was admissible.  The state high court reversed and remanded for further proceedings (Debra Dlouhy, et al. v. Kootenai Hospital District, No. 47165, Idaho Sup.).

  • October 20, 2020

    COMMENTARY: Conducting A Civil Jury Trial In COVID-19 Times

    By John P. Katerndahl

  • October 20, 2020

    Expert For Truck Maker Admitted In Crash Suit Alleging Air Bag Was Faulty

    ALBUQUERQUE, N.M. — A neuropsychologist’s opinions about a man’s injuries in an auto air bag product liability case are admissible because they meet the reliability standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., a New Mexico federal judge decided Oct. 16 in denying the man’s motion to exclude the expert (Roy Munoz v. FCA US LLC, No. 17-881, D. N.M., 2020 U.S. Dist. LEXIS 191947).

  • October 20, 2020

    Only Legal Conclusions Disallowed In Expert’s Testimony For Building Delay Suit

    BOISE, Idaho — An expert’s opinions on who is to blame for eight months’ worth of delays in constructing a building in downtown Boise are founded on sufficient facts and data and reliable principles and methods, an Idaho federal magistrate judge held Oct. 16 in mostly denying a motion to exclude the expert’s testimony in a breach of contract dispute (The Roost Project, LLC v. Andersen Construction Company, No. 18-238, D. Idaho, 2020 U.S. Dist. LEXIS 192468).

  • October 16, 2020

    Judge Finds Allocation Expert’s Opinion Admissible, Limits Remedial Action Expert

    MISSOULA, Mont. — A federal judge in Montana on Oct. 15 denied a motion to exclude the testimony of a designated expert on the allocation of response costs in a Comprehensive Environmental Response, Compensation and Liability Act lawsuit brought by the current owner of a former aluminum smelting site over the costs of cleaning up the property, finding that the opinion was more than legal opinion and that a remedial action expert’s testimony should be limited to the opinions already expressed in reports filed with the court.

  • October 16, 2020

    Lack Of Report Dooms 1 Expert; Other Ruled Reliable In Suit Over Asbestos In Home

    MOSCOW, Idaho — An Idaho federal judge on Oct. 13 excluded an expert witness for a couple accused of not disclosing that there was asbestos in a home that was sold to another couple for failing to file an expert report, but found the opinions of the damages expert for the suing homebuyers reliable and admissible (Jack Christiansen, et al. v. Thane Syverson, et al., 19-365, D. Idaho, 2020 U.S. Dist. LEXIS 189737).

  • October 15, 2020

    Judge Allows Psychiatrist’s Opinion On Asbestos Exposure Mental Distress Injury

    INDIANAPOLIS — A psychiatrist directly ties plaintiffs’ mental distress with alleged asbestos and chlorinated chemicals exposure, a federal judge in Indiana said Oct. 13 in admitting the opinion in an environmental exposure case (Amos Hostetler, et al. v. Johnson Controls Inc., et al., No. 15-226, N.D. Ind., 2020 U.S. Dist. LEXIS 189276).

  • October 13, 2020

    5th Circuit: Expert’s Exclusion, Judgment For BP Correct In Oil Spill Cleanup Case

    NEW ORLEANS — A lack of reliable expert testimony showing that a man was injured by exposure to oil and chemical dispersants while helping clean up the Gulf of Mexico after the Deepwater Horizon oil rig explosion dooms his claims against the rig operators, the Fifth Circuit U.S. Court of Appeals agreed in affirming exclusion of an expert’s opinions and summary judgment for the operators on Oct. 12 (Blaine McGill v. BP Exploration & Production Inc., et al., No. 19-60849, 5th Cir., 2020 U.S. App. LEXIS 32208).

  • October 13, 2020

    Justices Reject Cert Request Over Woman’s ‘Multiple Chemical Sensitivity’ Suit

    WASHINGTON, D.C. — After granting disability rights organizations permission to file an amicus curiae brief in support of a woman diagnosed with “multiple chemical sensitivity” in her effort to halt asphalt paving on her road, the U.S. Supreme Court on Oct. 13 denied a petition for certiorari filed by the woman and her husband challenging the exclusion of her experts and the grant of judgment for a county engineer (Cynthia Madej, et vir v. Jeff Maiden, No. 20-227, U.S. Sup.).

  • October 12, 2020

    11th Circuit Upholds Allowance Of Expert For Doctor’s Opioid Conviction

    ATLANTA — A medical expert’s opinion at trial for a Florida doctor convicted of illegal sales of opioids that the doctor overprescribed controlled substances is sufficiently reliable, the 11th Circuit U.S. Court of Appeals ruled Oct. 9 in affirming the doctor’s conviction and sentence in all respects (United States v. John Matthew Gayden, Jr., No. 18-14182, 11th Cir., 2020 U.S. App. LEXIS 32030).

  • October 12, 2020

    Railroad Says Experts Properly Excluded, FELA Case Fails

    ST. LOUIS — Two experts’ “logically fallacious proof by example” warranted their exclusion and dismissal of a woman’s Federal Employers Liability Act (FELA) claim alleging that her husband developed lung cancer as a result of exposure to diesel fumes, asbestos and other toxins, a railroad told the Eighth Circuit U.S. Circuit Court of Appeals on Sept. 21 (Nadine Byrd, et al. v. Union Pacific Railroad Co., No. 20-1959, 8th Cir.).

  • October 07, 2020

    Shipbuilder Denied Judgment After Experts Allowed In ERISA Class Action

    NEWPORT NEWS, Va. — An employee class action alleging that an employer violated the Employee Retirement Income Security Act by miscalculating benefits owed to retirees survived a summary judgment bid by the employer Sept. 29 when a Virginia federal judge adopted a magistrate judge's findings that experts for both sides are reliable and that the issues involved "may be resolved by a reasonable factfinder endorsing either expert's testimony" (Roger A. Herndon v. Huntington Ingalls Industries, Inc., No. 19-52, E.D. Va.).

  • October 05, 2020

    Wrong Ruling On Expert Helps Send Border Patrol Case Back For New Trial

    SAN FRANCISCO — The improper exclusion of expert testimony for a man who was convicted of assaulting a Border Patrol agent when the agent caught him illegally entering the country from Mexico, combined with prosecutorial misconduct at the man's trial, warrant reversal and remand for a new trial, the Ninth Circuit U.S. Court of Appeals held Oct. 1 (United States v. Rony Oswaldo Asencio-De Leon, No. 19-10118, 9th Cir., 2020 U.S. App. LEXIS 31204).

  • October 01, 2020

    10th Circuit Upholds Expert's Exclusion But Reverses Hostile Work Environment Claim

    DENVER — Although a trial court correctly dismissed a Wyoming state trooper's retaliation claim and properly granted a motion by the Wyoming Highway Patrol (WHP) to exclude the testimony of her expert witness, it erred in granting the employer summary judgment on her hostile work environment claim, the 10th Circuit U.S. Court of Appeals ruled Sept. 30, partly reversing and remanding (Delsa Brooke Sanderson v. Wyoming Highway Patrol, No. 19-8025, 10th Cir., 2020 U.S. App. LEXIS 31050).

  • September 28, 2020

    Experts Allowed In Video Game Copyright Case Over Pro Wrestler's Tattoos

    EAST ST. LOUIS, Ill. — Two expert witnesses for a woman alleging copyright infringement by the makers of professional wrestling video games for reproducing the tattoos she inked on one wrestler withstood challenges to their opinions on video game design and damages when an Illinois federal judge on Sept. 26 denied motions to exclude the experts' testimony from trial (Catherine Alexander v. Take-Two Interactive Software, Inc., No. 18-966, S.D. Ill., 2020 U.S. Dist. LEXIS 177131).

  • September 25, 2020

    Judge Allows Some Opinions On Force Used By Officers To Arrest Woman

    CHATTANOOGA, Tenn. — Although a police practices expert for a woman injured in a fracas with police is qualified, most of his opinions are irrelevant or unreliable, a Tennessee federal judge held Sept. 22, adding that the expert is still allowed to opine that an arresting officer used too much force (Linda Moser v. Etowah Police Department, et al., No. 18-225, E.D. Tenn., 2020 U.S. Dist. LEXIS 173695).

  • September 24, 2020

    Federal Judge Issues Flurry Of Expert, Evidentiary Rulings In Asbestos Case

    NEW ORLEANS — Plaintiffs may not introduce testimony that a supervisor was a difficult boss to work for, evidence involving union activity at a shipyard or the limits on insurance policies covering the claims but may show the jury invoices evidencing the shipment of asbestos-containing products, a federal judge in Louisiana said in a series of Sept. 23 rulings in an asbestos action (Callen Dempster, et al. v. Lamorak Insurance Co., et al., No. 20-95, E.D. La., 2020 U.S. Dist. LEXIS 174313, 2020 U.S. Dist. LEXIS 174582, 2020 U.S. Dist. LEXIS 174323, 2020 U.S. Dist. LEXIS 174311).

  • September 21, 2020

    9th Circuit Reinstates Claims By Costco Shopper Injured When Bottle Shattered

    SEATTLE — A man injured by a bottle of Prosecco that fell off a conveyor belt at a Costco and shattered did not need to present expert testimony to support his arguments at the summary judgment stage, a divided Ninth Circuit U.S. Court of Appeals concluded Sept. 8, reversing and remanding for a jury's determination (Robert Johnson v. Costco Wholesale Corp., et al., No. 19-15233, 9th Cir., 2020 U.S. App. LEXIS 28375).

  • September 21, 2020

    Causation, State-Of-The-Art Experts Reliable, Judge Says In Federal Asbestos Case

    PORTLAND, Maine — An expert need not have personal knowledge of a man's alleged asbestos exposures to render a causation opinion, the testimony that cumulative exposures increase the risk of disease is not unreliable, there is no evidence that the expert dismissed differences in types of asbestos fibers, and a second expert may testify regarding state-of-the-art, a federal judge in Maine said Sept. 16 (Victor Coffin, et al. v. Ametek Inc., et al., No. 18-472, D. Maine, 2020 U.S. Dist. LEXIS 169589).

  • September 21, 2020

    Split Texas Panel Vacates Verdict Against Spray Foam Insulation Installer

    AUSTIN, Texas — A 2-1 Texas appeals panel on Sept. 17 vacated a verdict in a favor of a couple who claimed that the improper installation of spray foam insulation caused them to suffer personal injuries and property damage, with the majority finding that the plaintiffs failed to present sufficient causation evidence of both injuries, while the dissenting judge found the evidence adequate to show that the plaintiffs' property was damaged (Builder Services Group Inc. v. Alan Lynn Taylor, et al., No. 03-18-710, Texas App., 3rd Dist., 2020 Tex. App. LEXIS 7630).

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