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Mealey's Daubert

  • November 20, 2018

    9th Circuit Affirms Allowance Of Child Sexual Trauma Expert Testimony

    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).

  • November 19, 2018

    Support For Job Expert’s Opinions Needed For ‘Substantial Evidence,’ Claimant Says

    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.).

  • November 16, 2018

    Most Expert Testimony Survives Daubert Motion In Negligence Suit Over Crash

    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).

  • November 16, 2018

    Abbott Opposes Cert For Rulings On Experts In Depakote Birth Defect Case

    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.).

  • November 15, 2018

    Camp Director Admitted As Expert In Camping Trip Sex Assault Case

    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).

  • November 14, 2018

    Parties Brief Rehearing Motion In Florida Top Court’s Rejection Of Daubert

    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.).

  • November 14, 2018

    Playpen Maker Wins Judgment After Experts Stricken In Suit Over Baby’s Death

    OAKLAND, Calif. — With both of their expert witnesses excluded from testifying by a California federal judge, a couple whose infant daughter died at a day care facility lost their product liability case against a playpen maker on summary judgment Nov. 9 (Bill Rovid, et al. v. Graco Children’s Products Inc., et al., No. 4:17-cv-01506, N.D. Calif., 2018 U.S. Dist. LEXIS 192449).

  • 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).