ATLANTA — The 11th Circuit U.S. Court of Appeals on Dec. 6 affirmed the firearm conviction of a Florida man after finding that the trial court properly exercised its “critical gatekeeping function” in admitting expert testimony on DNA evidence (United States v. Robert William Barton, No. 17-10559, 11th Cir., 2018 U.S. App. LEXIS 34364).
CONCORD, N.H. — A federal judge in New Hampshire on Dec. 4 denied without prejudice competing motions to exclude expert testimony on the source of polychlorinated biphenyls (PCBs) at a property pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., finding that the admissibility of the testimony should be determined at trial (Mareld Co. Inc. v. New England Telephone & Telegraph Co., No. 16-cv-390-PB, D. N.H., 2018 U.S. Dist. LEXIS 204909).
WASHINGTON, D.C. — The U.S. Supreme Court justices heard arguments Dec. 4 on whether they should institute a rule that in order to provide the required “substantial evidence” of job availability at Social Security disability proceedings, vocational experts must back their opinions with the data they used (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).
TALLAHASSEE, Fla. — A tobacco company overplays separation-of-powers concerns in urging reconsideration of a ruling reinstating Frye, expert testimony and an $8 million asbestos verdict, the plaintiff tells the Florida Supreme Court in a Nov. 9 brief (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).
KANSAS CITY, Kan. — Two asbestos experts may testify in an upcoming trial against a railcar company, a federal judge in Kansas said Nov. 20 in turning aside a Daubert challenge about the redundancy and potential prejudice the testimony posed and whether it constituted the “every exposure” theory of causation (Nancy Little, et al. v. The Budd Co., No. 16-4170, D. Kan.).
WASHINGTON, D.C. — Contrary to a drug company’s assertion, a Second Circuit U.S. Court of Appeals’ decision affirming exclusion of a mother’s causation experts in her attempt to hold the drugmaker liable for her child’s birth defects “creates a wide divergence from other courts” and will have “a profound effect upon thousands of litigants,” making certiorari proper, the mother argues in her Nov. 27 reply brief to the U.S. Supreme Court (N.K. v. Abbott Laboratories, No. 18-327, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 4422).
WASHINGTON, D.C. — The U.S. Supreme Court should grant certiorari and overturn a woman’s manslaughter conviction for the death of a baby in her care because the trial court improperly allowed expert opinions on inflicted head trauma and “shaken baby syndrome,” the woman argues in her Nov. 19 petition for high court review (Lisa M. West v. Missouri, No. 18-675, U.S. Sup., 2018 U.S. S. Ct. Briefs LEXIS 4326).
ORLANDO, Fla. — A Florida man will not get a new trial on his conviction for dealing the opioid analgesic furanylfentanyl; a federal judge on Nov. 29 held that the failure of the court to make the government provide an expert report for a testifying police officer did not prejudice the defendant (United States v. Devin Lashawn Jefferson, II, No: 6:18-cr-59, M.D. Fla., 2018 U.S. Dist. LEXIS 201910).
MIAMI — A trial court for a man accused of killing his wife did not err in excluding the defendant’s expert testimony on battered spouse syndrome and on a “shadow analysis” of body positions, the Third District Florida Court of Appeal decided Nov. 28 in affirming the man’s conviction (Derek Vernon Medina v. Florida, No. 3D16-383, Fla. App., 3rd Dist., 2018 Fla. App. LEXIS 16896).
WICHITA, Kan. — A federal judge in Kansas on Nov. 19 granted in part and denied in part a motion for summary judgment filed by a defendant nursing home in a wrongful death suit, holding that an amended death certificate, rather than the testimony of two nurses, can be used to establish a triable issue as to whether a woman’s fall caused her death (Mark Funk, et al. v. Pinnacle Health Facilities XXXII LP, et al., No. 17-1099-JTM, D. Kan., 2018 U.S. Dist. LEXIS 196660).
NEW ORLEANS — A trial court properly excluded a fire expert’s testimony about the cause of a fatal car crash and correctly awarded summary judgment to the carmaker on product liability claims leveled by the deceased’s family, the Fifth Circuit U.S. Court of Appeals held Nov. 26 (Ramona L. Smith, et al. v. Chrysler Group, L.L.C., No. 17-40901, 5th Cir., 2018 U.S. App. LEXIS 33154).
RICHMOND, Va. — A grandmother who filed a product liability suit against a bikemaker after her granddaughter was hurt in a bicycle crash lost her chance to challenge the causation testimony of an expert witness when she failed to make Daubert objections at trial, the Fourth Circuit U.S. Court of Appeals held Nov. 21 (Virginia Callahan, et al. v. Pacific Cycle, Inc., No. 17-1739, 4th Cir., 2018 U.S. App. LEXIS 32953).
SAN FRANCISCO — A lower court committed prejudicial error when it excluded expert testimony on a driver’s methamphetamine use in a trial over injuries to two road crew workers who were hit by a car, an appeals court concluded Oct. 23. It remanded for a retrial on the driver’s comparative negligence but kept the $56.5 million and $2.7 million awards to the workers intact (Shannon Moore, et al. v. State of California Department of Transportation, No. A151059, Calif. App., 1st Dist., Div. 1, 2018 Cal. App. Unpub. LEXIS 7226).
AUSTIN, Texas — A plaintiff’s expert report adequately addressed causation and the standard of care in litigation over the misdiagnosis of a compression fracture in her vertebrae that rendered her paraplegic, the Texas Supreme Court held Nov. 16 in reversing and remanding an appeals court’s ruling (Sue Abshire v. Christus Health Southeast Texas, No. 17-0386, Texas Sup., 2018 Tex. LEXIS 1154).
PORTLAND, Ore. — A federal trial court did not abuse its discretion in allowing expert testimony, and in not holding a hearing under Daubert v. Merrell Dow Pharmaceuticals Inc. to scrutinize the testimony, a Ninth Circuit U.S. Court of Appeals panel ruled Nov. 13 in rejecting an appeal by a man convicted of molesting his daughters while living as a vagabond (United States v. Kilunnun Adyden Chivoski, No. 17-30073, 9th Cir., 2018 U.S. App. LEXIS 32118).
WASHINGTON, D.C. — Vocational experts at Social Security disability proceedings must substantiate their opinions when asked to provide the mandated “substantial evidence” of job availability, a claimant tells the U.S. Supreme Court in a Nov. 14 reply brief on the merits (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).
ST. LOUIS — A Missouri federal judge on Nov. 13 admitted the testimony of two experts for a truck driver and his company but excluded an opinion by their third expert, in a personal injury action over a rear-end crash on a highway (Kathleen Reagan, et al. v. CRC Transport, LLC, et al., No. 4:17-cv-1004, E.D. Mo., 2018 U.S. Dist. LEXIS 193114).
WASHINGTON, D.C. — With no circuit split and a settled decision, the U.S. Supreme Court need not grant certiorari to review a Second Circuit U.S. Court of Appeals opinion affirming exclusion of a mother’s causation experts in her attempt to hold a drugmaker liable for her child’s birth defects, the company says in a Nov. 14 response brief (N.K. v. Abbott Laboratories, No. 18-327, U.S. Sup.).
SCRANTON, Pa. — A summer camp director can testify as an expert on another camp’s duty of care to its minor campers in a suit filed by a camper who says he was sexually assaulted by another camper on a 2007 trip to Cape Cod, a Pennsylvania federal magistrate judge ruled Nov. 14 (R.D. v. Shohola, Inc., No. 3:16-cv-01056, M.D. Pa., 2018 U.S. Dist. LEXIS 193557).
TALLAHASSEE, Fla. — Despite Crane Co.’s protestations to the contrary, Florida’s Supreme Court adopted the Frye standard and, rather than overlook the issue of whether nonparty defendants should have appeared on an asbestos verdict sheet, simply declined to address the question, a plaintiff told the court on Nov. 9. R.J. Reynolds argues in its petition for rehearing that the court’s ruling threatens to stoke a battle over the separation of powers between the branches of Florida government (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).