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.).
By John P. Katerndahl
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).
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).
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.
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).
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).
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).
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.).
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).
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.).
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.).
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).
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).
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).
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).
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).
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).
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).
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).