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Mealey's Daubert

  • January 23, 2019

    7th Circuit Affirms Exclusion Of ‘Novel’ Expert Theory In Bard Hernia Patch Case

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on Jan. 22 affirmed summary judgment in a hernia mesh patch case, agreeing with a district court that the theory of a plaintiff’s key expert witness was novel, untested, unaccepted and failed to meet the requirements of the U.S. Supreme Court’s expert testimony standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Charlotte Robinson, et al. v. Davol Inc., et al., No. 17-2068, 7th Cir., 2019 U.S. App. LEXIS 1981).

  • January 17, 2019

    Panel: Expert Toxicology Testimony Properly Admitted In Fatal Crash Case

    GRAND RAPIDS, Mich. — A trial court properly allowed expert testimony on drugs used by a truck driver who crashed into a car, killing two people, because it was relevant and did not unfairly prejudice the driver, a Michigan appeals court determined Jan. 15 in affirming his conviction (People of Michigan v. Mark Edward Feuss, No. 337190, Mich. App., 2019 Mich. App. LEXIS 48).

  • January 17, 2019

    Magistrate Judge Excludes In Part Expert Testimony In Reinsurance Coverage Case

    SPRINGFIELD, Ill. — An Illinois federal magistrate judge on Jan. 16 granted in part several motions to exclude expert testimony regarding a corporate status issue in a reinsurance coverage dispute over payment for mine subsidence damages (Illinois Mine Subsidence Insurance Fund v. Union Pacific Railroad Co., No. 17-3199, C.D. Ill., 2019 U.S. Dist. LEXIS 7355).

  • January 16, 2019

    Minnesota Appeals Court Affirms Summary Judgment In Bair Hugger Lawsuits

    ST. PAUL, Minn. — A Minneapolis Court of Appeals panel on Jan. 14 affirmed that plaintiffs claiming to have suffered surgical site infections (SSIs) from the Bair Hugger surgical patient warming device failed to present admissible expert evidence that the device causes infections (In re:  3M Bair Hugger Litigation, No. A18-0473, Minn. App., 2019 Minn. App. LEXIS 11).

  • January 16, 2019

    Dog Training Expert Can Opine On Police Dog’s Reliability, Judge Decides

    PEORIA, Ill. — An expert in police dog training meets the qualification, reliability and relevance standards to opine on the reliability of Lex, a police dog whose training and ability to detect narcotics are in dispute in a civil rights lawsuit over a traffic stop in which Lex alerted to the odor of narcotics in a car where none were later found, an Illinois federal judge held Jan. 15 (Donnelly Jackson, et al. v. Bloomington, et al., No. 17-cv-1046, C.D. Ill., 2019 U.S. Dist. LEXIS 6895).

  • January 14, 2019

    Expert Cannot Quantify Injured Woman’s Loss Of Value Of Life, Judge Says

    ALBUQUERQUE, N.M. — A New Mexico federal judge on Jan. 11 partly excluded expert witness testimony for a woman in her personal injury car crash suit, finding that while allowing testimony to describe what “hedonic damages” are to the jury is proper, permitting the expert to actually calculate the value of the woman’s life is not (Shirley J. Walker, v. Gregory J. Spina, et al., No. 17-0991, D. N.M., 2019 U.S. Dist. LEXIS 5275).

  • January 11, 2019

    Panel Vacates Insurance Agent’s Summary Judgment On Professional Negligence

    KNOXVILLE, Tenn. — After finding that a judge erred in excluding expert testimony on an insurance agent’s standard of care regarding placed insurance with an insolvent insurer, a Tennessee appeals court panel on Jan. 9 vacated an entry of summary judgment to the agent on a professional negligence claim (Joy Littleton, et al. v. TIS Insurance Services Inc., No. E2018-00477-COA-R3-CV, Tenn. App., 2019 Tenn. App. LEXIS 13).

  • January 11, 2019

    Monsanto Denies Glyphosate Liability, Moves To Exclude Expert’s Testimony

    SAN FRANCISCO — Monsanto Co. on Jan. 9 filed five answers to individual plaintiffs’ claim in the multidistrict litigation (MDL) for Roundup in a California federal court in which the company denies that it is liable for any alleged injuries caused by glyphosate, the active ingredient in Roundup. Meanwhile, Monsanto moved to exclude the testimony of one of the plaintiffs’ expert witnesses who says the company has a “network” of scientists “deployed to reinforce” its talking points (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • January 10, 2019

    Magistrate Judge Finds Experts’ Testimony Admissible In Suit Over Contamination

    BUFFALO, N.Y. — A federal magistrate judge in New York on Dec. 27 denied cross-motions to exclude expert testimony filed by parties in a suit over the recovery of cleanup costs for groundwater contamination at a site that formerly housed a gasoline station operated by Atlantic Richfield Co., finding that the parties’ challenges to each other’s experts went to the weight of their testimony (51 Webster St. Inc. v. Atlantic Richfield Co., No. 16-CV-468-MJR, W.D. N.Y., 2018 U.S. Dist. LEXIS 217909).

  • January 9, 2019

    Federal Judge Admits Trio Of Asbestos-Friction Experts, Denies Summary Judgment

    NEW ORLEANS — Three plaintiff experts’ testimony adequately considers the difference between amphibole and chrysotile asbestos friction products and differs from the “any exposure” theory to warrant admission, a federal judge in Louisiana held Jan. 7.  The judge then denied the two defendants summary judgment (Victor Michel, et al. v. Ford Motor Co., et al., No. 18-4738, E.D. La., 2019 U.S. Dist. LEXIS 2521).

  • January 8, 2019

    ICSID Rejects Request To Disqualify Panama’s Expert In Trademark Arbitration

    WASHINGTON, D.C. — A tribunal for the International Centre for Settlement of Investment Disputes (ICSID) on Jan. 7 released its decision rejecting a request by manufactures of tire and rubber products to remove the Republic of Panama’s expert on Panamanian law from the case, finding no basis for disqualification (Bridgestone Licensing Services, Inc., et al. v. Republic of Panama, No. ARB/16/34, ICSID).

  • January 7, 2019

    Convicted Baby Killer Loses Bid To Challenge Rulings On Experts

    WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 7 denied certiorari for a woman seeking to overturn her manslaughter conviction for the death of a baby in her care on the ground that the trial court improperly allowed expert opinions on inflicted head trauma and “shaken baby syndrome” (Lisa M. West v. Missouri, No. 18-675, U.S. Sup.).

  • January 7, 2019

    High Court Won’t Take Up Daubert Challenge In Depakote Birth Defect Case

    WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 7 declined to rule on whether Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires additional testing of a Depakote birth defect plaintiff to eliminate an alleged alternative cause claimed by defendant Abbott Laboratories (N.K., et al. v. Abbott Laboratories, No. 18-327, U.S. Sup.).

  • January 4, 2019

    Military Panel: Expert Testimony On Rape Syndrome Properly Admitted

    WASHINGTON, D.C. — A U.S. military judge did not abuse her discretion in allowing an expert for the prosecution in a rape case to opine on the phenomenon of “tonic immobility,” which is when a person freezes up during a traumatic situation, a military appeals court held Jan. 2 in upholding a sailor’s conviction and sentence (United States v. James D. Inchaurregui, No. 201700194, U.S. Navy-Marine Crim. App., 2019 CCA LEXIS 2).

  • January 3, 2019

    Expert Testimony Allowed In Insurer’s Suit Over Payment For Damaged Yacht

    WILMINGTON, N.C. — A North Carolina federal judge on Dec. 28 declined to strike expert testimony for an insurance company seeking more than $2 million from a yacht company that damaged a boat, finding no procedural violation for one expert and no violation of Federal Rule of Evidence 702 for a second expert (New Hampshire Insurance Company v. Bennett Brothers Yachts, Inc., No. 7:16-cv-237, E.D. N.C., 2018 U.S. Dist. LEXIS 217262).

  • January 3, 2019

    Justice Admits Most Of Asbestos Expert’s Asbestos-Talc Opinion

    NEW YORK — A microscopist may testify regarding the sufficiency of asbestos testing programs but not about the motivations or reasons either the talc industry or federal regulatory agencies used in creating and adopting them, a New York justice held in an opinion posted Dec. 28 (Steven Andrew Cohen, et al. v. American Biltrite Inc., et al., No. 190044/2016, N.Y. Sup., New York Co., 2018 N.Y. Misc. LEXIS 6394).

  • January 3, 2019

    Florida Appeals Panel Says Construction Experts’ Opinions Were Admissible

    TALLAHASSEE, Fla. — A trial court judge in Florida did not need to conduct a hearing pursuant to Frye v. United States to determine if the opinions proffered by two experts for a condominium association were admissible, a state appeals court panel ruled Dec. 27, explaining that the judge found that the opinions were reliable under Daubert v. Merrell Dow Pharmaceuticals and that the experts used a peer-reviewed methodology that was the industry standard on the proper application of stucco (D.R. Horton Inc. — Jacksonville v. Heron’s Landing Condominium Association of Jacksonville, Inc., No. 1D17-1941, Fla. App., 1st Dist., 2018 Fla. App. LEXIS 18668).

  • January 2, 2019

    Expert Opinions About Helmet Trimmed In Suit Over Ski Crash Injuries

    MADISON, Wis. — A Wisconsin federal judge on Dec. 28 limited expert testimony for the maker of a skiing helmet in a couple’s product liability action after finding that some of the experts’ opinions were too speculative, then denied the company’s bid for summary judgment, saying there are genuine disputes about the fit of the helmet and whether it was properly designed (Steven Scott Rogers, et al. v. K2 Sports, LLC, et al., No. 17-cv-534, W.D. Wis., 2018 U.S. Dist. LEXIS 217233).

  • December 31, 2018

    10th Circuit: Train Engineer’s Expert Testimony Properly Axed In Injury Case

    DENVER — A train engineer cannot maintain a personal injury action against his railway employer because his expert lacks a reliable methodology for his opinions, and the claims cannot stand without expert causation testimony, the 10th Circuit U.S. Court of Appeals held Dec. 27 in affirming a grant of summary judgment to the railway (Terry Schulenberg v. BNSF Railway Company, No. 18-6003, 10th Cir., 2018 U.S. App. LEXIS 36546).

  • December 21, 2018

    Expert Testimony On Sobriety Test Lacking, But DWI Charge Stands, Magistrate Rules

    WILMINGTON, N.C. — Although without expert testimony, evidence from an eye movement field sobriety test during a traffic stop for driving under the influence “carries little weight,” there is still ample evidence of the offense to deny a motion to suppress, a North Carolina magistrate judge held Dec. 19 (United States v. Ashley Lynn Rowland, No. 7:18-mj-1124, E.D. N.C., 2018 U.S. Dist. LEXIS 213446).