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Mealey's Daubert

  • November 9, 2018

    Paralyzed Loader Driver Gets Opinions Tossed In Suit Over Burns From Seat Heater

    MARSHALL, Texas — An expert for a skid loader manufacturer is sufficiently qualified to opine on the operation of the loader, but his opinions on how injuries to a paraplegic loader operator could have been prevented are unreliable, a Texas federal magistrate judge found Nov. 7 in excluding the expert’s testimony from trial (John K. Stephenson v. Caterpillar, Inc., et al., No. 2:16-cv-00071, E.D. Texas, 2018 U.S. Dist. LEXIS 190793).

  • November 9, 2018

    Dual Lay, Expert Testimony Needs Jury Instruction, 7th Circuit Panel Says

    CHICAGO — In an opinion in a criminal case, a Seventh Circuit U.S. Court of Appeals panel on Nov. 7 urged the circuit’s jury instruction committee to consider adding a pattern jury instruction making clear to weigh separately, and “under their respective standards,” expert testimony and lay testimony given by the same person (United States v. Duprece Jett, et al., Nos. 17-2051, 17-2052 and 17-2060, 7th Cir., 2018 U.S. App. LEXIS 31511).

  • November 6, 2018

    Magistrate Judge Rules On Dueling Expert Opinions In Suit Over Fall At Target

    CENTRAL ISLIP, N.Y. — Nonlegal opinions by an architectural and design expert for a woman who was hurt in a fall at a Target store should be allowed at trial, as should all opinions by the industrial engineering expert for Target Corp. in the slip-and-fall case, a New York federal magistrate judge held Nov. 5 (Sharon Bennett v. Target Corporation, No. 16-cv-5816, E.D. N.Y., 2018 U.S. Dist. LEXIS 189067).

  • November 6, 2018

    Couple Says Builder Not Entitled To Summary Judgment In Suit Over Stucco

    WILMINGTON, Del. — A couple  on Nov. 1 opposed a home builder’s motion for summary judgment in Delaware state court, arguing that their expert’s testimony should not be excluded due to his failure to know that the builder obtained a permit to repair stone veneer and stucco that was damaged by water intrusion (Paul Agostini, et al. v. Blenheim at Augustine Creek LLC, No. N16C-06-167 CLS, Del. Super., New Castle Co.).

  • November 5, 2018

    Opinions On Harms Suitable For Trial In Clean Air Act Case, Judge Rules

    SPRINGFIELD, Ill. — An expert’s opinions on the human harms caused by an Illinois power plant’s violations of the Clean Air Act (CAA) should be vetted at a trial slated to determine the remedies to be imposed on the plant, a federal judge decided Nov. 2 in denying a bid to exclude the expert’s testimony (Natural Resources Defense Council, et al. v. Illinois Power Resources Generating, LLC, No. 13-cv-1181, C.D. Ill., 2018 U.S. Dist. LEXIS 187612).

  • November 1, 2018

    $2.5M Risperdal Gynecomastia Verdict Upheld By Pennsylvania State Appeals Court

    PHILADELPHIA — A Pennsylvania appeals court on Oct. 31 affirmed a $2.5 million Risperdal gynecomastia compensatory damages verdict and, citing earlier court opinions, said the trial court needs to analyze whether the plaintiffs can ask for punitive damages (Phillip Pledger, et al. v. Janssen Pharmaceuticals, Inc., et al., Nos. 2088 EDA 2016 and 2187 EDA 2016, Pa. Super., 2018 Pa. Super. LEXIS 1167).

  • October 31, 2018

    Judge Trims Expert’s Testimony In Ford Truck Rollover Crash Suit

    SACRAMENTO, Calif. — An expert witness for a man suing Ford Motor Co. after suffering severe injuries in a pickup truck rollover crash can testify about accident reconstruction, rollover propensity and roof strength but cannot offer several unreliable opinions, including that the man’s injuries would have been prevented by a stronger roof, a California federal judge decided Oct. 29 (Derek Rhodehouse v. Ford Motor Company, No. 2:16-cv-01892, E.D. Calif., 2018 U.S. Dist. LEXIS 185109).

  • October 30, 2018

    Government Experts’ Opinions Certified In Methamphetamine Ring Case

    ROSWELL, N.M. — Three scientists and a drug enforcement agent are sufficiently qualified to testify as experts in a methamphetamine-dealing case against a New Mexico man, and their opinions are reliable and admissible under Federal Rule of Evidence 702, Fed. R. Evid. 702, a federal judge ruled Oct. 26 (United States v. Jerry O. Twaddle, No. 17-cr-2690, D. N.M., 2018 U.S. Dist. LEXIS 183926).

  • October 26, 2018

    5th Circuit Upholds Exclusion Of Expert For Kin Of Man Killed In Freak Bow Mishap

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Oct. 24 affirmed summary judgment for a bow manufacturer sued by the survivors of a man killed by a rod on his bow while working on the bow at home, finding that the trial court properly excluded testimony by the survivors’ biomechanics expert for his reliance on “propensity” evidence (Mary Sandifer, et al. v. Hoyt Archery, Incorporated, et al., No. 17-30124, 5th Cir., 2018 U.S. App. LEXIS 29973).

  • October 25, 2018

    Mirena MDL Judge Excludes All Plaintiff Experts On General Causation

    NEW YORK — A New York federal judge presiding over the Mirena brain-injury multidistrict litigation on Oct. 24 excluded the plaintiffs’ seven general causation experts and said he anticipates defendant Bayer HealthCare Pharmaceuticals Inc. will next file a motion for summary judgment (In Re:  Mirena IUS Levonorgestrel-Related Products Liability Litigation [No. II], MDL Docket No. 2767, No. 17-md-2767, S.D. N.Y., 2018 U.S. Dist. LEXIS 182420).

  • October 24, 2018

    Judge Upholds His Exclusion Of Expert’s Opinion In Insurer’s Subrogation Action

    SEATTLE — A Washington federal judge did not make a manifest error in excluding part of an expert’s testimony as unreliable in an insurer’s subrogation suit over a marina fire that destroyed several boats, the judge ruled Oct. 23 in denying the insurer’s bid for reconsideration (Certain Underwriters at Lloyd’s, London v. Jeff Pettit, No. 17-259, W.D. Wash., 2018 U.S. Dist. LEXIS 181866).

  • October 22, 2018

    Lawyer’s Expert Opinions Stricken In Suit Over Removed Confederate Statue

    SAN ANTONIO — Opinions from an attorney acting as an expert witness for San Antonio in a suit filed by a United Daughters of the Confederacy chapter over the removal of a Confederate soldier statute from a city park are merely legal conclusions that invade the province of the court, a Texas federal magistrate judge ruled Oct. 18 in striking the proposed testimony (Albert Sidney Johnston Chapter No. 2060, United Daughters of the Confederacy, et al. v. Ron Nirenberg, et al., No. 5:17-cv-1072, W.D. Texas, 2018 U.S. Dist. LEXIS 179561).

  • October 18, 2018

    North Carolina Panel Nixes Convicted Killer’s Appeal For ‘Invited Error’

    RALEIGH, N.C. — A man convicted of murder cannot challenge the admissibility of a firearm expert’s unqualified opinion at trial because his own attorney elicited the expert’s opinion on cross-examination, a North Carolina Court of Appeals panel held Oct. 16 in dismissing the man’s appeal (North Carolina v. Craig Deonte Hairston, No. COA17-1357, N.C. App., 2018 N.C. App. LEXIS 1030).

  • October 17, 2018

    Judge Cuts 1 Opinion From Experts’ Testimony In Suit Over Marina Fire

    SEATTLE — Deductive reasoning about the cause of a marina fire that destroyed several boats is not enough to make an expert’s opinion reliable, a Washington federal judge held Oct. 15 in partly excluding expert testimony for an insurer seeking subrogation from a boat owner (Certain Underwriters at Lloyd’s, London v. Jeff Pettit, No. 17-259, W.D. Wash., 2018 U.S. Dist. LEXIS 176836).

  • October 17, 2018

    Social Security Backs 6th Circuit In Ruling On Experts For Disability Cases

    WASHINGTON, D.C. — There is no provision in federal regulations or law requiring vocational experts at Social Security proceedings to substantiate their opinions to provide the mandated “substantial evidence” of job availability, and none should be created by the U.S. Supreme Court in its review of evidentiary standards for such proceedings, a Social Security Administration official tells the high court in her Oct. 15 brief on the merits (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).

  • October 17, 2018

    Magistrate Judge Limits Some Testimony, Evidence In Massage Injury Case

    MIAMI — A Florida federal magistrate judge on Oct. 5 partially granted and partially denied motions to limit expert witness testimony and evidence filed by both sides in a personal injury lawsuit against Carnival Corp. and Steiner Transocean Ltd. by a woman who alleges that her hip was fractured while receiving spa services aboard a ship (Dawn Dawsey v. Carnival Corp., et al., No. 16-23939, S.D. Fla., 2018 U.S. Dist. LEXIS 172512).

  • October 16, 2018

    Florida Top Court Rejects Daubert, Reinstates Asbestos, Tobacco Verdict

    TALLAHASSEE, Fla. — The Legislature’s adoption of the Daubert standard involved procedural rules properly within the scope of the court’s powers, and an appeals court improperly applied it to exclude expert testimony relied on in an $8 million judgment against asbestos and tobacco companies, a majority of the Florida Supreme Court said Oct. 15 (Richard DeLisle v. Crane Co., et al., No. SC16-2182, Fla. Sup.).

  • October 15, 2018

    5th Circuit Reverses Exclusion Of Expert In Sewage Pollution Row

    NEW ORLEANS — A federal trial court improperly excluded opinions of an environmental expert, the Fifth Circuit U.S. Court of Appeals decided Oct. 10 in vacating summary judgment to apartment complex owners accused of polluting a neighbor’s pond with sewage (Cedar Lodge Plantation, L.L.C. v. CSHV Fairway View I, L.L.C., et al., No. 17-30742, 5th Cir., 2018 U.S. App. LEXIS 28535).

  • October 12, 2018

    Expert Testimony Trimmed In Personal Injury Suit Against Iberia Airline

    MIAMI — Two longtime airline pilots can testify as experts for a couple suing Spain’s flag carrier airline for injuries suffered during severe turbulence, though they cannot offer opinions about the flight crew’s state of mind, a Florida federal magistrate judge held Oct. 11 (Fanny Quevedo, et al. v. Iberia, Lineas Aereas de Espana, S.A. Operadora Unipersonal, No. 17-21168, S.D. Fla., 2018 U.S. Dist. LEXIS 174771).

  • October 11, 2018

    Magistrate Limits Engineer’s Testimony On Damage To Informant’s Car

    MILWAUKEE — A federal magistrate judge in Wisconsin on Oct. 3 ruled that an engineer could provide expert testimony on ballistics and the shape of an indentation on the rear driver’s side door of an informant’s car because he was qualified to proffer his opinions but that he was unqualified to discuss trace elements that would have been left behind on the door, as well as the credibility of the defendant (United States v. Derrick L. Harris, et al., No. 17-CR-167, E.D. Wis., 2018 U.S. Dist. LEXIS 170537).

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