Mealey's Daubert

  • September 19, 2019

    Magistrate Limits Daubert Review In Allowing Expert In Faulty Toilet Class Suit

    SHERMAN, Texas — Using a “relaxed” Daubert analysis for reviewing expert testimony at the class certification stage, a Texas magistrate judge on Sept. 17 denied a bid by toilet makers in a product liability class action to strike an expert’s declaration due to alleged “inconsistencies and errors” (Steven and Joanna Cone, et al. v. Vortens, Inc., et al., No. 4:17-cv-00001, E.D. Texas, 2019 U.S. Dist. LEXIS 158127).

  • September 19, 2019

    Disability Claimant’s Opinions Are Not Relevant To Breach Of Contract Claim, Judge Says

    WILLIAMSPORT, Pa. — A Pennsylvania federal judge on Sept. 17 determined that a disability claimant’s opinions on the handling of his claim must be excluded from trial because the claimant’s opinions are not relevant to the breach of contract claim and would be prejudicial to the disability insurer and that the claimant’s expert witnesses cannot testify as to whether the claimant is disabled from his own occupation as a dentist because the experts do not have sufficient knowledge of the claimant’s occupational duties (Dr. Robert Brugler v. Unum Group, et al., No. 15-1031, M.D. Pa., 2019 U.S. Dist. LEXIS 158503).

  • September 18, 2019

    Woman Loses Suit Over Post-Surgery Pain Meds After Expert’s Opinions Stricken

    INDIANAPOLIS — An Indiana federal judge on Sept. 17 handed the United States a summary judgment victory in a medical malpractice case after finding that the expert for a woman who suffered respiratory failure after surgery failed to identify a standard of care that was allegedly breached (Marie Smith v. United States, No. 1:17-cv-01215, S.D. Ind., 2019 U.S. Dist. LEXIS 157923).

  • September 18, 2019

    Bayer Seeks Dismissal Of Gadolinium Cases After Experts Excluded

    PHOENIX — Bayer HealthCare Pharmaceuticals Inc. on Sept. 13 moved for summary judgment in a gadolinium contrast agent injury lawsuit after a judge excluded her three general causation experts (Susan Fischer v. Bayer HealthCare Pharmaceuticals Inc., et al., No. 18-1778, D. Ariz.).

  • September 18, 2019

    Judge Certifies Class For Borrowers Accusing Servicer Of RESPA Violations

    GREENBELT, Md. — A federal judge in Maryland on Sept. 9 granted in part a motion to certify a nationwide and statewide class for borrowers claiming that Nationstar Mortgage LLC violated Regulation X of the Real Estate Settlement Procedures Act (RESPA) when failing to acknowledge receipt of a borrower’s loan modification application within five days and limited the claims brought by the class based on his ruling on the loan servicer’s motion for summary judgment (Demetrius Robinson v. Nationstar Mortgage LLC, No. 14-cv-3667, D. Md., 2019 U.S. Dist. LEXIS 153526).

  • September 17, 2019

    Expert For Injured Child In Trip-And-Fall Case Excluded By Magistrate

    COLUMBUS, Ohio — An expert cannot opine on a child’s fall at a Dollar Tree store in a personal injury action because her proposed testimony is not “based on sufficient facts or data” as required by Federal Rule of Evidence 702, an Ohio federal magistrate judge ruled Sept. 12 in excluding the expert’s testimony from trial (Austin Smith, et al. v. Dollar Tree Stores Inc., et al., No. 2:18-cv-243, S.D. Ohio, 2019 U.S. Dist. LEXIS 155574).

  • September 16, 2019

    Expert’s Opinions On Cultlike Group Inadmissible, 7th Circuit Affirms

    CHICAGO — A trial court for a woman convicted of submitting false tax returns after joining an anti-government group “reasonably” excluded testimony from her psychology expert for lack of qualifications and sound methods, the Seventh Circuit U.S. Court of Appeals held Sept. 12 in affirming her conviction (United States v. Cathy Nicole Truitt, No. 18-2324, 7th Cir., 2019 U.S. App. LEXIS 27497).

  • September 13, 2019

    Daughter Can Allege Negligence Per Se Against Nursing Home, Judge Rules

    VALDOSTA, Ga. — Although a daughter suing a nursing home where her mother died cannot allege a private right of action against the facility under federal nursing home regulations, she can  pursue a claim for negligence per se under the rules, a federal judge in Georgia ruled Aug. 26, denying the facility’s motion for summary judgment (Ange Davis v. GGNSC Administrative Services LLC, No. 7:17-CV-107, M.D. Ga., Valdosta Div., 2019 U.S. Dist. LEXIS 144688).

  • September 06, 2019

    Expert’s Report Survives Exclusion Bid In Case Against VA Hospital

    NEW ORLEANS — While a medical expert’s “thin” written report opining that Department of Veterans Affairs (VA) health care providers’ delay in diagnosing a man’s fatal cancer shortened his lifespan “just barely” satisfies the requirements for admittance, his supplemental declaration cannot be admitted at trial because it is untimely and, therefore, prejudicial to the government, a Louisiana federal judge ruled Sept. 4 (Inell Tucker, et al. v. United States, No. 18-4056, E.D. La., 2019 U.S. Dist. LEXIS 150053).

  • September 06, 2019

    Magistrate Strikes Expert Testimony In Dispute Over Cause Of Church’s Water Damage

    BRUNSWICK, Ga. — A federal magistrate judge in Georgia on Aug. 30 granted an insurer’s motion to strike the testimony of a church insured’s experts in a dispute over what caused the insured’s water damage, finding that the insured failed to provide sufficient evidence that the experts are qualified to testify as to the issue of causation (Greater Hall Temple Church of God v. Southern Mutual Church Insurance Company, No. 17-111, S.D. Ga., 2019 U.S. Dist. LEXIS 148594).

  • August 30, 2019

    Experts Lacked Foundation For Household Asbestos Opinions, 9th Circuit Says

    BOISE, Idaho — To reasonably support their conclusion that a man’s household asbestos exposures substantially contributed to his mesothelioma, two experts needed more evidence showing contamination of his father’s work clothes, a Ninth Circuit U.S. Court of Appeals panel held Aug. 28 in affirming summary judgment for a railroad employer (William G. Stephens, et al. v. Union Pacific Railroad Co., No. 18-35908, 9th Cir., 2019 U.S. App. LEXIS 25986).

  • August 30, 2019

    8th Circuit Upholds Inclusion Of Expert, Verdict For Couple In Ladder Fall Case

    ST. PAUL, Minn. — In a trial for a couple’s product liability claims against a ladder company that “centered on competing expert testimony,” an expert for the couple was sufficiently qualified and used a reliable method to opine that a ladder was designed unsafely, the Eighth Circuit U.S. Court of Appeals ruled Aug. 29 in affirming a $2.4 million verdict for the couple (Jeffrey Klingenberg, at al. v. Vulcan Ladder USA, LLC, et al., No. 18-1742, 8th Cir., 2019 U.S. App. LEXIS 26216).

  • August 30, 2019

    Judge Says Expert’s Opinions On Migration Of Contaminated Groundwater Are Reliable

    TRENTON, N.J. — An expert’s testimony that contaminated groundwater containing the gasoline additive methyl tertiary butyl ether (MTBE) traveled from the site of a gas station with underground storage tanks (USTs) to domestic water supply wells is reliable because it is based on sound methodology, a federal judge in New Jersey ruled Aug. 28 in denying three defendant companies’ motions to exclude the expert’s opinions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (New Jersey Department of Environmental Protection v. Amerada Hess Corp., et al., No. 15-6468, D. N.J., 2019 U.S. Dist. LEXIS 146336).

  • August 29, 2019

    With Expert’s Opinions OK’d, Judge Says Connecticut Violated Prisoner’s Rights

    NEW HAVEN, Conn. — After determining that opinions by an expert in psychiatry on the harmfulness of solitary confinement were reliable, a Connecticut federal judge on Aug. 27 held that the state has violated the constitutional rights of a man who has been locked up mostly alone for 23 years for killing a police officer (Richard Reynolds v. Leo Arnone, et al., No. 3:13-cv-1465, D. Conn., 2019 U.S. Dist. LEXIS 145314).

  • August 28, 2019

    Experts’ Opinions On Care Of Prisoner Whose Legs Had To Be Amputated Allowed

    MIAMI — Health care providers’ challenges to expert testimony linking a prisoner’s sepsis and the subsequent amputation of his legs to substandard care fail due to “conclusory” and “unpersuasive” arguments, a Florida federal magistrate judge ruled Aug. 27 in denying the providers’ bid to exclude the testimony from trial (Craig Salvani v. Corizon Health, Inc., et al., No. 17-24567, S.D. Fla., 2019 U.S. Dist. LEXIS 144963).

  • August 28, 2019

    Cardiologist Convicted Of Defrauding Government Seeks Review Of Experts’ Allowance

    WASHINGTON, D.C. — A federal trial court’s improper admission of several doctors’ expert opinions in a health care fraud case against an Ohio cardiologist warrants review by the U.S. Supreme Court, the heart doctor — who was convicted by a jury — tells the high court in an Aug. 14 petition for a writ of certiorari (Harold Persaud v United States, No. 19-216, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 3330).

  • August 28, 2019

    Split 9th Circuit Affirms Rejection Of Experts, Habeas Relief For Accused Molester

    PORTLAND, Ore. — A divided Ninth Circuit U.S. Court of Appeals panel on Aug. 19 affirmed denial of habeas relief for a man seeking to overturn his conviction for sexual abuse of his daughter after she recanted her testimony more than seven years after his trial, finding in part that his new expert testimony was not new at all and had already been heard by the jury (Fredrick Earl Bain v. Sid Thompson, et al., No. 18-35683, 9th Cir., 2019 U.S. App. LEXIS 24646).

  • August 27, 2019

    Class Certification Denied Once More In Harassment Lawsuit Against Ford

    CHICAGO — A federal judge in Illinois on Aug. 22 for a second time denied certification to a class of female employees who sued Ford Motor Co. for failing to address what they allege is a working environment riddled with harassment and even sexual assaults, citing problems with the plaintiffs’ showing of hostile employment conditions and issues with handling the claims on a classwide basis (Christie Van, et al. v. Ford Motor Company, No. 14-8708, N.D. Ill., 2019 U.S. Dist. LEXIS 143071).

  • August 26, 2019

    Judge Bars Expert’s Opinions On Prepayment Penalties, Usurious Interest Rates

    TOPEKA, Kan. — A federal judge in Kansas on Aug. 13 barred a couple’s expert’s opinions regarding the legality of prepayment penalties under Kanas law and usurious interest rates, holding that the testimony is no longer relevant to their claims against a lender who refinanced the mortgage on their home (Randall A. Schneider, et al. v. CitiMortgage Inc., et al., No. 13-cv-4094-HLT, D. Kan., 2019 U.S. Dist. LEXIS 136250).

  • August 19, 2019

    Expert For Officer, City In Police Shooting Case Ousted For Lack Of Reliability

    TACOMA, Wash. — A Washington federal judge on Aug. 16 excluded the testimony of a biomechanics expert for Olympia, Wash., and one of the city’s police officers in a civil rights case brought against them by two black brothers the officer shot during an attempted arrest, saying the expert’s use of 3-D images based only on the officer’s recollection is unreliable (Andre Thompson, et al. v. Olympia, et al., No. 3:18-cv-05267, W.D. Wash., 2019 U.S. Dist. LEXIS 139202).