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Mealey's Daubert

  • March 14, 2019

    Pennsylvania High Court To Hear Pesticide Cancer Case, Rule On Evidence Standard

    HARRISBURG, Pa. — The Pennsylvania Supreme Court on March 5 agreed to hear an appeal in a wrongful death lawsuit to determine whether a divided lower court reached the correct conclusion regarding the application of the Frye evidence standard in a pesticide cancer lawsuit against numerous chemical companies (Richard Thomas Walsh v. BASF Corporation, et al., No. 14 WAP 2019, Pa. Sup.).

  • March 14, 2019

    Petitioner Says Exclusion Of Experts In Chemical Exposure Suit Warrants Review

    WASHINGTON, D.C. — The Second Circuit U.S. Court of Appeals erred in affirming the exclusion of a man’s causation experts in his case against his former employers alleging that he contracted an autoimmune disease from exposure to toxic substances at work, the former employee tells the U.S. Supreme Court in a Feb. 26 petition for a writ of certiorari (Timothy J. Rizzo v. Applied Materials, Inc., et al., No. 18-1153, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 825).

  • March 13, 2019

    Judge Strikes Expert For Estate In Suit Over Fatal Police Shooting In Chicago

    CHICAGO — An expert for the estate of a black man who was shot and killed by Chicago police cannot offer his opinions in the estate’s civil rights suit against the city because they would not help a jury and they are based on unreliable methods, an Illinois federal judge decided March 11 (Estate of Pierre Loury v. Chicago, et al., No. 16-cv-4452, N.D. Ill., 2019 U.S. Dist. LEXIS 38029).

  • March 12, 2019

    DNA Tester In Child Sex Case Need Not Be Expert, D.C. Circuit Rules

    WASHINGTON, D.C. — A trial court properly found that a person who conducted DNA testing on samples from a man eventually convicted of having sex with an 11-year-old girl presented factual testimony at the trial, not expert opinions, the District of Columbia Circuit U.S. Court of Appeals determined March 8 (United States v. Robert Kelsey, No. 16-3125, D.C. Cir., 2019 U.S. App. LEXIS 6914).

  • March 11, 2019

    Expert Properly Excluded In Oil Well Contract Row, 10th Circuit Rules

    DENVER — A federal court in Colorado did not err in excluding expert testimony for an oil company on industry customs in a breach of contract dispute or in making comments about the expert in front of the jury, the 10th Circuit U.S. Court of Appeals determined March 7 (Bill Barrett Corporation v. YMC Royalty Company, LP, et al., No. 18-1067, 10th Cir., 2019 U.S. App. LEXIS 6826).

  • March 8, 2019

    Expert Testimony Admitted In Contract Feud Between 2 Beverage Businesses

    ST. LOUIS — A Missouri federal judge on March 5 allowed testimony from experts for both sides in a contract dispute between two beverage companies, telling the parties they can challenge each opposing expert’s opinions at trial (Paul Beverage Co., Inc. v. The American Bottling Co., No. 4:17-cv-2672, E.D. Mo., 2019 U.S. Dist. LEXIS 34743).

  • March 7, 2019

    Expert’s Exclusion Dooms FELA Asbestos Case, Judge Says

    HOUSTON — An expert’s causation opinion confuses association and causation and appears to be based on his own untested methodology, and after excluding it, a plaintiff lacks sufficient evidence linking asbestos to his colon cancer even under the lowered standard applied in Federal Employers Liability Act (FELA) cases, a federal judge in Texas held March 5 (John Collins v. BNSF Railway Co., No. 17-3572, S.D. Texas, 2019 U.S. Dist. LEXIS 34712).

  • March 7, 2019

    Judge: Gynecologist’s Opinion Can Support Negligence Claims Against Nursing Home

    NEW HAVEN, Conn. — A gynecologist’s opinion that a nursing home was negligent in treating a patient for dementia constituted a sufficient expert opinion under Connecticut law to support a negligence lawsuit brought against the facility and its management by a mother and her son, a federal judge ruled March 4 in denying the defendants’ motion to dismiss, finding that the gynecologist qualified as a “similar health care provider” under state law because a large part of her patient population is composed of geriatric women (Dorina Schachter, et al. v. Sunrise Senior Living Management Inc., et al., No. 18-cv-953, D. Conn., 2019 U.S. Dist. LEXIS 33714).

  • March 6, 2019

    Judge Permits Expert’s Child Sex Abuse Testimony Without Daubert Hearing

    ALBUQUERQUE, N.M. — With no evidence of unreliable or irrelevant testimony from an expert in a child sex abuse case about victim behavior, a Daubert hearing is not needed to determine the admissibility of the testimony, a New Mexico federal judge said March 4 (United States v. Arthur Perrault, No. 1:17-cr-02558, D. N.M., 2019 U.S. Dist. LEXIS 33871).

  • March 6, 2019

    New York City’s Expert Disallowed In Suit Over Accessibility Of Police Stations

    NEW YORK — A New York federal judge on March 5 excluded expert testimony for New York City in its defense of class claims that many of its police stations are not handicapped accessible, finding the expert’s methods unreliable, but admitted most testimony from the plaintiffs’ expert based on her reliable methodology (Disabled in Action of Metropolitan New York, et al. v. New York City, et al., No. 16-cv-08354, S.D. N.Y., 2019 U.S. Dist. LEXIS 33663).

  • March 4, 2019

    Antitrust Class Put On Hold Pending Daubert Vetting Of Expert Testimony

    PITTSBURGH — A motion to certify a class of insurance purchasers in an antitrust action against an insurer cannot be decided until a Daubert hearing can be held — with a technical adviser participating — to decide the worthiness of expert testimony on classwide proof of injury, a Pennsylvania federal judge held March 1 (Cole’s Wexford Hotel, Inc. v. Highmark Inc., No. 10-1609, W.D. Pa., 2019 U.S. Dist. LEXIS 32573).

  • March 1, 2019

    Judge: Exclusion Of Unreliable Asbestos Causation Opinion Dooms Case

    BOULDER, Colo. — An expert’s handful of hours researching asbestos with little to no information about the plaintiff’s work or exposures renders the testimony unreliable, a federal judge in Colorado held in excluding it and granting a railroad summary judgment on Feb. 21 (Roddy York v. BNSF Railway Co., No. 17-1088, D. Colo., 2019 U.S. Dist. LEXIS 27644).

  • March 1, 2019

    Hospital Expert Can Opine In Patient’s Sex Assault Suit, Federal Judge Says

    FORT MYERS, Fla. — A longtime health care CEO can opine as an expert on the standard of care at a hospital sued for the alleged sexual assault of a patient by a male nurse, a Florida federal judge ruled Feb. 28 in denying a motion to exclude the expert’s testimony (Donia Goines v. Lee Memorial Health System, et al., No: 2:17-cv-656, 2019 U.S. Dist. LEXIS 31786).

  • February 28, 2019

    Georgia Appeals Panel Splits On Expert Testimony In Mold Contamination Case

    ATLANTA — The question of whether a trial court properly acted as a gatekeeper when ruling on a treating physician’s expert testimony about the cause of a woman’s breathing disorder divided a Georgia appellate panel Feb. 25, with the majority finding that it did not and remanding for a full Daubert consideration (James Kershaw, et al. v. Princeton Properties Management, Inc., et al., No. A18A1842, Ga. App., Div. 5, 2019 Ga. App. LEXIS 83).

  • February 27, 2019

    Expert’s Opinions On Witness’ Memories Draws Affirmance, Warning From 8th Circuit

    OMAHA, Neb. — A trial court did not abuse its discretion in when it excluded expert testimony on eyewitness identification, the Eighth Circuit U.S. Court of Appeals ruled Feb. 26 in affirming a man’s conviction and 10-year prison sentence for unlawful possession of a handgun (United States v. Darius Devon Nickelous, No. 17-3750, 8th Cir., 2019 U.S. App. LEXIS 5573).

  • February 26, 2019

    Expert Testimony On Guns And Drug Dealing Proper, 7th Circuit Says

    CHICAGO — A trial court properly admitted expert testimony on the relationship between guns and drug trafficking, the Seventh Circuit U.S. Court of Appeals decided Feb. 21 in affirming a man’s conviction for having a handgun in furtherance of drug dealing (United States v. Derrick W. Johnson, No. 18-2023, 7th Cir., 2019 U.S. App. LEXIS 5092).

  • February 25, 2019

    Judge: Glyphosate Cancer Plaintiffs’ Experts May Testify On Causation

    SAN FRANCISCO — A federal judge in California on Feb. 24 issued a ruling on expert testimony pertaining to the three bellwether plaintiffs with trials pending against Monsanto Co. for allegations that glyphosate, the active ingredient in the company’s herbicide Roundup, causes cancer, in which he said the experts could testify regarding causation.  The ruling applies to all of the cases in the multidistrict litigation for Roundup products liability (In re:  Roundup Products Liability Litigation, MDL No. 2741, N.D. Calif.).

  • February 25, 2019

    Man Convicted Of Aiding Terrorist Group Loses Expert Battle On Appeal

    RICHMOND, Va. — A federal court that presided over a man’s conviction for attempting to provide support to a foreign terrorist organization after FBI agents found Islamist, Nazi and white supremacist paraphernalia in his home did not err in admitting expert testimony on militant Islamist and Nazi “convergence,” the Fourth Circuit U.S. Court of Appeals held Feb. 21 (United States v. Nicholas Young, No. 18-4138, 4th Cir., 2019 U.S. App. LEXIS 4998).

  • February 20, 2019

    Judge Says Gas Company Expert Can Testify On Aerial Photographs Of Mines

    PRESCOTT, Ariz. — A federal judge in Arizona on Feb. 19 ruled that an expert for a gas company seeking contribution and cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act from the federal government, U.S. Department of the Interior, the Bureau of Indian Affairs, the U.S. Geological Survey, the Department of Energy and the Nuclear Regulatory Commission for the cleanup of 19 uranium mines on the Navajo Reservation can proffer testimony based on aerial photographs of the site, ruling that his methodology was reliable and that any challenges to the weight of his testimony can be challenged at trial (El Paso Natural Gas Co. LLC v. United States, No. CV-14-08165-PCT-DGC, D. Ariz., 2019 U.S. Dist. LEXIS 26054).

  • February 19, 2019

    Cadaver-Sniffing Dog Reliable, Judge Says In Case Of Missing Chinese Woman

    URBANA, Ill. — A police expert can testify that his cadaver-sniffing dog alerted to a bathroom vanity during a search of the apartment of a man accused of kidnapping and killing a Chinese university student, an Illinois federal judge ruled Feb. 15 (United States v. Brendt A. Christensen, No. 17-cr-20037, C.D. Ill., 2019 U.S. Dist. LEXIS 24625).