Mealey's Daubert

  • May 18, 2018

    Nebraska Supreme Court Affirms Exclusion Of Accutane Causation Expert

    LINCOLN, Neb. — The Nebraska Supreme Court on May 18 affirmed the exclusion of a plaintiff’s sole causation expert in an Accutane bowel injury case, saying the expert’s methodology failed to meet case law standards (Aimee Freeman v. Hoffman-La Roche Inc., et al., No. 300 Neb. 47, Neb. Sup.).

  • May 17, 2018

    With No Error On Expert Ruling, Summary Judgment Appropriate, 11th Circuit Holds

    ATLANTA — A Florida federal court did not abuse its discretion in excluding an expert’s opinion that pollution from a fertilizer factory caused or worsened a woman’s pulmonary diseases, and then awarding the factory judgment for lack of expert causation evidence, because the court correctly found that the expert’s “methodology was undermined by multiple defects,” the 11th Circuit U.S. Court of Appeals said May 14 (Rhonda Williams v. Mosaic Fertilizer, LLC, No. 17-10894, 11th Cir., 2018 U.S. App. LEXIS 12478).

  • May 16, 2018

    Causation Opinions Stay In Suit Over Injuries Allegedly From Minor Accident

    SOUTH BEND, Ind. — A woman’s causation expert, who is a medical doctor and an attorney, can testify in a personal injury action that the woman’s car was not going fast enough in a fender-bender accident to cause the spinal injuries of the man whose car she hit, an Indiana federal magistrate judge held May 14 in finding the expert’s methods reliable and his opinions helpful to the trier of fact (Greg Guthrie v. Lori Ann Hochstetler, No. 3:16-cv-473, N.D. Ind., 2018 U.S. Dist. LEXIS 80620).

  • May 15, 2018

    Defective Ladder Defendants Win Judgment After Expert Testimony Excluded

    ALLENTOWN, Pa. — After excluding expert testimony for lack of reliability and helpfulness, a Pennsylvania federal judge on May 10 awarded summary judgment to a ladder company and a big box retail chain in a personal injury action filed by a man who fell from a ladder (Benjamin White, et al. v. The Home Depot, Inc., et al., No. 5:17-cv-4174, E.D. Pa., 2018 U.S. Dist. LEXIS 79694).

  • May 14, 2018

    Magistrate Says Causation Opinions Of 3 Experts In Radiation Case All Flawed

    CHICAGO — An Illinois federal magistrate judge on May 7 recommended excluding the causation opinions of three experts for a couple seeking to hold General Electric Co. liable for the husband’s dementia based on his exposure to radiation while working at nuclear power plants (Steven Lawson, et al. v. General Electric Company, No. 16-04299, N.D. Ill.).

  • May 11, 2018

    Expert Can Offer Limited Testimony On Impacts Of Sediment Runoff, Judge Says

    GULFPORT, Miss. — A coastal services professor designated as an expert for an environmental group claiming that a contractor’s road construction project is violating the Clean Water Act by disposing of excessive amounts of sediment in the Biloxi Back Bay can offer limited testimony regarding how the sediment flows from the project to the waterway, a federal judge in Mississippi ruled May 9, finding that the some of his opinions were based on inadequate data (Gulf Restoration Network v. Oscar Renda Contracting Inc., No. 17CV130-LG-RHW, S.D. Miss., 2018 U.S. Dist. LEXIS 77907).

  • May 11, 2018

    Lower Lost Sales Estimate In Trademark Row Reliable, Federal Judge Says

    ORLANDO, Fla. — An expert’s opinion that a company’s trademark infringement cost the trademark holder more than $4 million in gross sales is admissible, although another analysis by the expert that yielded an $8 million loss is not because the method used to reach the higher amount is not reliable, a Florida federal judge determined May 9 (Superior Consulting Services, Inc. v. Shaklee Corporation, et al., No. 6:16-cv-2001, M.D. Fla., 2018 U.S. Dist. LEXIS 77840).

  • May 11, 2018

    Motion To Exclude Expert In Florida Trademark Case Granted, Denied In Part

    MIAMI — In a May 10 order, a Florida federal judge agreed with a plaintiff that a defense expert’s conclusions regarding whether the U.S. Patent and Trademark Office (PTO) properly issued the “Royal Palm” trademark are “problematic,” particularly in light of the expert’s status as an attorney (Royal Palm Properties LLC v. Pink Palm Properties LLC, No. 17-80476, S.D. Fla., 2018 U.S. Dist. LEXIS 78685).

  • May 11, 2018

    Residents: EPA Reports Should Be Excluded From Evidence In Groundwater Case

    GREENVILLE, Miss. — Residents who allege that a group of companies are liable for groundwater contamination on May 10 filed a brief in Mississippi federal court contending that it should exclude all reports and opinions of the EPA Region 4 that are included in the companies’ disclosure of expert witnesses (Joe E. Sledge, et al. v. Meritor Inc., et al., No. 16-CV-053, N.D. Miss.).

  • May 9, 2018

    Judge: Expert’s Opinions On Age Bias Amount To Inadmissible Legal Deductions

    RICHMOND, Va. — A human resources expert for a woman alleging that her former employer discriminated against her because of her age cannot testify in the case because the expert’s opinions are “impermissible legal conclusions” with no reliable methodology supporting them, a Virginia federal judge ruled May 4 (Angela Georges v. Dominion Payroll Services, LLC, No. 3:16-cv-777, E.D. Va., 2018 U.S. Dist. LEXIS 76112).

  • May 8, 2018

    Water Heater Maker Wins Defect Case After Exclusion Of Fire Experts

    ST. LOUIS — A water heater manufacturer won summary judgment May 4 against a couple that claimed that a defect in one of its products caused a fire that burned down their lake house, when a Missouri federal judge excluded the couple’s causation experts and then found that without the expert testimony, they could not succeed on their claims (Thomas E. Howard, Jr., et al. v. Bosch Thermotechnology Corp., No. 4:17-cv-763, E.D. Mo., 2018 U.S. Dist. LEXIS 75421).

  • May 7, 2018

    Admission Of Radiologist’s Opinions Upheld In Woman’s Injury Suit Against Police

    RICHMOND, Va. — A trial court did not abuse its discretion in allowing a radiologist to offer expert opinions on whether a woman had osteoporosis at the time she was allegedly injured by police during an altercation in her home, the Fourth Circuit U.S. Court of Appeals found May 2 in an unpublished per curiam opinion (Robin Ann Burkhart v. Officer R. Dickel, et al., No. 17-1165, 4th Cir., 2018 U.S. App. LEXIS 11359).

  • May 4, 2018

    Frustrated Federal Judge Won’t Reconsider Daubert Ruling Excluding Asbestos Expert

    MILWAUKEE — A plaintiff’s “deluge” of nearly 2,000 pages of documents in support of a “second kick at the cat” raises no new evidence warranting reconsideration of a Daubert ruling, but rather seems to be an attempt to overwhelm the court with paper in hopes it simply gives in, a federal judge in Wisconsin held May 2 in excluding an asbestos expert (Beverly Ahnert, et al. v. Brand Insulation Inc., et al., Nos. 10-156, 13-1456, E.D. Wis.).

  • May 4, 2018

    Expert Damages Report In Energy Drinks Spat Fails Reliability Test, Judge Agrees

    DALLAS — An expert’s opinion on damages in a suit over an energy drink products licensing agreement gone sour is “so speculative and unreliable that it would not assist the jury” and, therefore, must be excluded, a Texas federal judge held May 2 in overruling objections to a magistrate judge’s findings (Jacked Up, LLC v. Sara Lee Corporation, No. 3:11-cv-3296, N.D. Texas, 2018 U.S. Dist. LEXIS 74721).

  • May 3, 2018

    Cocaine Suspect’s Attack On Crime Lab Analysis Fails, Appeals Panel Rules

    RALEIGH, N.C. — A state trial court did not err in admitting expert testimony from a police crime lab technician, a North Carolina appeals court panel held May 1 in affirming a man’s conviction for possession of crack cocaine (State of North Carolina v. Paul Arnold Gray, No. COA17-508, N.C. App., 2018 N.C. App. LEXIS 428).

  • May 2, 2018

    Expert Opinion Ruled Proper For Insurance Salesman’s Claim Of Lost Business

    PHILADELPHIA — A medical expert can testify about an insurance salesman’s psychiatric symptoms in support of his claim for emotional distress damages in his suit alleging that an insurance company caused his “substantial book of business” to suffer when he transferred from one insurance agency to another, a Pennsylvania federal judge decided April 27 (Douglas K. Karpf v. Massachusetts Mutual Life Insurance Company, et al., No. 10-1401, E.D. Pa., 2018 U.S. Dist. LEXIS 72724).

  • May 2, 2018

    Panel: Expert Testimony In Coverage Dispute Ignored Reinsurance Agreements

    LOS ANGELES — In a coverage dispute over artwork damage, insureds failed to show an insurer’s inability to pay an eventual judgment, a California appeals panel ruled May 1, finding that they offered expert testimony ignoring reinsurance agreements (Gail Hollander, et al. v. XL Capital Ltd., et al., No. B276621, Calif. App., 2nd Dist., Div. 1, 2018 Cal. App. Unpub. LEXIS 2978).

  • May 1, 2018

    2nd Circuit Affirms Exclusion Of Plaintiff Experts In Depakote Birth Defect Case

    NEW YORK — The Second Circuit U.S. Court of Appeals on April 23 said a district court did not err in excluding a plaintiff’s experts in a Depakote birth defect case and granting summary judgment for defendant Abbott Laboratories (N.K., et al. Abbott Laboratories, No. 17-1777, 2nd Cir., 2018 U.S. App. LEXIS 10094).

  • May 1, 2018

    11th Circuit Affirms Exclusion Of General Causation Expert In Reclast Case

    ATLANTA — The 11th Circuit U.S. Court of Appeals on April 30 affirmed summary judgment in a Reclast bisphosphonate atypical femur fracture case, finding that the unreliable methodology of the plaintiff’s general causation expert alone supported the trial court’s ruling (Ernesteen Jones v. Novartis Pharmaceuticals Company, No. 17-11063, 11th Cir.).

  • April 30, 2018

    Admission Of Doctor’s Opinions On Hypotheticals Warrants New Trial

    TALLAHASSEE, Fla. — A divided Florida Supreme Court on April 26 ordered a new trial in a medical malpractice suit after finding that a subsequent treating physician’s deposition testimony about how he would have treated a girl suffering from hydrocephalus symptoms had she arrived at his hospital earlier was irrelevant and inadmissible, and that its admission could not be considered harmless error (Alexis Cantore, et al. v. West Boca Medical Center, Inc., et al., No. SC15-1926, Fla. Sup., 2018 Fla. LEXIS 953).