Mealey's Daubert

  • July 02, 2020

    Experts Allowed In Suit Against Railway Over Woman’s Cancer Death

    OMAHA, Neb. — A Nebraska federal judge on June 29 allowed two experts to testify that the lung cancer a woman developed and died from was caused by breathing in diesel fumes from the locomotives she worked with her entire life, saying the experts’ methods and opinions are “scientifically valid” and “sufficiently reliable” (Dale E. Bettisworth v. BNSF Railway Company, No. 8:17-cv-491, D. Neb., 2020 U.S. Dist. LEXIS 114255).

  • July 02, 2020

    Expert Stays In Kaiser Gypsum Debtors’ Row Over Superfund Site Costs

    CHARLOTTE, N.C. — An expert witness is allowed to offer opinions on how pollution cleanup costs for a Superfund site in Seattle should be allocated among responsible parties, including Chapter 11 debtors Kaiser Gypsum Co. Inc. and Hanson Permanente Cement Inc., a federal bankruptcy judge ruled in a June 24 docket entry (In re Kaiser Gypsum Company, Inc., et al., No. 16-31602, W.D. N.C. Bkcy.).

  • July 01, 2020

    Conviction, Expert Ruling Upheld In Medicare Fraud Case Against Laser Eye Doctor

    ATLANTA — A trial court did not abuse its broad discretion in limiting the testimony of a medical expert for an ophthalmologist who was eventually convicted of health care fraud for conducting unnecessary and unhelpful procedures on hundreds of mostly elderly patients, the 11th Circuit U.S. Court of Appeals ruled June 29 in affirming the doctor’s conviction (United States v. David Ming Pon, No. 17-11455, 11th Cir., 2020 U.S. App. LEXIS 20103).

  • June 30, 2020

    Judge Bars In Part Expert Testimony In Liquidators’ Aiding, Abetting Lawsuit

    NEW YORK — A federal judge in New York on June 29 granted and denied in part motions to preclude expert testimony in support of claims brought by the liquidators of two hedge funds for aiding and abetting breach of fiduciary duty and fraud in the collapse of the funds in a case awaiting trial (In re Platinum-Beechwood Litigation, No. 18-6658, Martin Trott, et al. v. Platinum Management [NY] LLC, et al., No. 18-10936, S.D. N.Y., 2020 U.S. Dist. LEXIS 113277).

  • June 26, 2020

    2nd Circuit Upholds Allowance Of Expert, Soccer Officials’ Convictions

    NEW YORK — The Second Circuit U.S. Court of Appeals on June 22 affirmed the wire fraud convictions of two international soccer federation officials charged with taking bribes in exchange for tournament broadcasting and marketing rights, finding among other things that the trial court did not abuse its discretion in allowing an economic expert to testify for the prosecution (United States v. Juan Ángel Napout, et al., Nos. 18-2750, 18-2820, 2nd Cir., 2020 U.S. App. LEXIS 19299).

  • June 16, 2020

    With Expert’s Opinions Intact, Injury Suit Over Fall In Movie Theater Proceeds

    SHREVEPORT, La. — A movie theater operator fails in its challenges to the opinions of a safety expert for a woman who was badly injured in a fall down steps in a darkened theater, a Louisiana federal magistrate judge found June 10, saying the issues raised are fodder for cross-examination but not grounds for exclusion (Julie Frazier Brown v. Cinemark USA, Inc., No. 5:19-cv-0346, W.D. La., 2020 U.S. Dist. LEXIS 102116).

  • June 12, 2020

    Judge Trims Expert Testimony In Insurance Suit Over Crash Injuries

    PHOENIX — Medical experts for a woman asserting bad faith claims against her insurer over coverage for auto accident injuries cannot offer opinions made in rebuttal because of the harm it would cause the insurer, but her standard-of-care expert can testify, just not on the value of her injuries because he is not an expert in calculating medical damages, an Arizona federal judge ruled June 10 (Melinda Lou Armer v. CSAA General Insurance Company, No. 2:19-cv-04402, D. Ariz., 2020 U.S. Dist. LEXIS 101851).

  • June 11, 2020

    Experts’ Opinions On Foreign Law Allowed In Job Bias Suit Against Cruise Line

    MIAMI — A Florida federal judge on June 5 mostly denied a cruise line’s requests to exclude expert testimony in a lawsuit alleging that the company discriminated against a man by not hiring him as a singer on a cruise ship because of his history of mental health problems (Samuel Schultz v. Royal Caribbean Cruises, Ltd., No. 18-24023, S.D. Fla., 2020 U.S. Dist. LEXIS 100120).

  • June 09, 2020

    Air Force Panel Upholds Child Sex Abuse Conviction, Says Expert Properly Allowed

    ANDREWS AIR FORCE BASE, Md. — A military judge properly allowed a digital forensics expert to testify about the cell phone of a suspected sexual predator of children at his court-martial because the expert had “ample background” and her testimony was relevant, the U.S. Air Force Court of Criminal Appeals held June 3 in affirming the defendant’s dishonorable discharge (United States v. Nicholas A. Knarr, No. ACM 39577, U.S. Air Force Crim. App., 2020 CCA LEXIS 197).

  • June 08, 2020

    Arkansas High Court Affirms $630,000 Award For Woman Injured In Fall Outside Store

    LITTLE ROCK, Ark. — A sharply divided Arkansas Supreme Court on May 28 affirmed a $630,000 award to a woman who was injured when she fell outside a Dollar General store, concluding that evidence supported the finding that wet concrete presented an unreasonably dangerous condition and that testimony on causation by the plaintiff’s chiropractor had been properly allowed (Dollar General Corp., et al. v. Karen Elder, No. 18-313, Ark. Sup., 2020 Ark. LEXIS 215).

  • June 08, 2020

    Expert Reports Should Be Allowed In Aiding, Abetting Lawsuit, Liquidators Say

    NEW YORK — Liquidators for two hedge funds in June 2 opposition briefs offered reasons two expert reports should not be excluded before trial in their New York federal court suit over the aiding and abetting of the funds’ collapse (In re Platinum-Beechwood Litigation, No. 18-6658, Martin Trott, et al. v. Platinum Management [NY] LLC, et al., No. 18-10936, S.D. N.Y.).

  • June 08, 2020

    High Court Declines Review Of 11th Circuit Decision On Officers’ Lay Opinions

    WASHINGTON, D.C. — An 11th Circuit U.S. Court of Appeals ruling that law enforcement officers testifying based on their experience in a drug dealing case were not offering expert opinions under Federal Rule of Evidence 702 stands after the U.S. Supreme Court denied certiorari for the case June 8 (Lenin Lugo v. United States, No. 19-855, U.S. Sup.).

  • June 08, 2020

    Louisiana Supreme Court Vacates Ruling Excluding Asbestos Expert

    NEW ORLEANS — On remand, a district court judge must better explain and clear up confusion about why he excluded the plaintiffs’ asbestos injury causation expert, a divided Louisiana Supreme Court said May 26 in granting a supervisory writ (Emily Everett v. Air Products And Chemicals Inc., et al., No. 2019-CC-01975, La. Sup., 020 La. LEXIS 958).

  • June 04, 2020

    Gun Toolmark Opinions Allowed, With Limitation, By Oklahoma Federal Judge

    OKLAHOMA CITY — Two ballistics experts can testify about bullet casings found at two shooting scenes because their method of examining the toolmark evidence on the shells “has been tested, reviewed by peers and subject to publication, found to have a potential low rate of error, and [is] widely accepted in the relevant community,” an Oklahoma federal judge held June 1 (United States v. Dominic Eugene Hunt, No. 5:19-cr-073, W.D. Okla., 2020 U.S. Dist. LEXIS 95471).

  • May 28, 2020

    Slip-Fall Suit Advances After Verbose Motion To Preclude Expert Is Stricken

    CAMDEN, N.J. — A New Jersey federal judge on May 21 denied summary judgment to a retailer in a couple’s slip-and-fall personal injury case after also denying the retailer’s bid to preclude the couple’s expert from testifying, not for a lack of merit but for an overabundance of briefing (Veronica Capaldi, et al. v. BJ’s Wholesale Club, Inc., et al., No. 1:18-cv-10615, D. N.J., 2020 U.S. Dist. LEXIS 89596).

  • May 27, 2020

    Guidance Needed On Admittance Of Officers’ Lay Opinions, Petitioner Tells Top Court

    WASHINGTON, D.C. — The question of whether a law enforcement officer offering opinion testimony based on his experience must meet the standards for expert witnesses under Federal Rule of Evidence 702 needs an answer from the U.S. Supreme Court because the lower courts cannot agree on the issue, a man convicted of smuggling drugs argues in a May 14 reply brief (Lenin Lugo v. United States, No. 19-855, U.S. Sup.).

  • May 26, 2020

    Expert Witness, Summary Judgment Rulings For Fund Advisers Upheld By 2nd Circuit

    NEW YORK — A Second Circuit U.S. Court of Appeals panel on May 22 affirmed an award of summary judgment to mutual fund advisers on investors’ breach of fiduciary duty claims after also affirming the trial court’s rulings on challenges to expert opinion testimony (Gary A. Hebda, et al. v. Davis Selected Advisers, LP, et al. [In re:  Davis New York Venture Fund Fee Litigation], No. 19-1967, 2nd Cir., 2020 U.S. App. LEXIS 16423).

  • May 22, 2020

    Defendants Seek To Bar Expert Reports From Trial On Hedge Funds Collapse

    NEW YORK — Two defendants in May 19 motions request exclusion of expert reports from trial in a New York federal court lawsuit brought by the liquidators of two hedge funds regarding aiding and abetting the collapse of the funds (In re Platinum-Beechwood Litigation, No. 18-6658, Martin Trott, et al. v. Platinum Management [NY] LLC, et al., No. 18-10936, S.D. N.Y.).

  • May 19, 2020

    California Panel Reaffirms Expert’s Exclusion, Judgment For Nursing Home Operators

    SAN FRANCISCO — A California appeals court panel on May 18 filed a slightly revised opinion after rehearing with the same outcome and now certified for publication, affirming a trial court’s exclusion of an expert opinion on causation and the court’s award of summary judgment to two nursing home operators on elder abuse and wrongful death claims (Diane Lowery v. Kindred Healthcare Operating, Inc., et al., No. A153421, Calif. App., 1st Dist., Div. 4, 2020 Cal. App. LEXIS 424).

  • May 18, 2020

    Expert’s False-Confession Opinions Excluded In Child Sex Assault Case

    ALBUQUERQUE, N.M. — A psychology professor can testify as an expert for a Native American accused of being a child molester about police interrogation techniques but cannot opine on so-called false confessions or why people may falsely confess, a New Mexico federal judge decided May 15 in a long-running criminal case (United States v. Lyle Woody Begay, No. 1:14-cr-0747, D. N.M., 2020 U.S. Dist. LEXIS 85874).