Mealey's Daubert

  • January 17, 2020

    Expert Allowed In Suit Seeking Coverage For Money Lost To Phishing Scheme

    RICHMOND, Va. — An insurance company’s expert can testify in a coverage dispute for money paid by a company that got duped by a phishing scheme because he meets all of the requirements for an expert witness, a Virginia federal judge held Jan. 15 (Quality Plus Services, Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 3:18-cv-454, E.D. Va., 2020 U.S. Dist. LEXIS 7337).

  • January 17, 2020

    5th Circuit Rejects Daubert Challenge To Medicare Overpayment Calculation

    NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Jan. 15 upheld the federal government’s calculations in its determination that a Texas home health care provider owes more than $12 million for Medicare overpayments, affirming that a Daubert analysis is not needed for agency actions (Palm Valley Health Care, Inc. v. Alex M. Azar II, No. 18-41067, 5th Cir., 2020 U.S. App. LEXIS 1371).

  • January 15, 2020

    Petitioner: ‘Entrenched’ Split On Whether Officers Are Giving Expert Opinions

    WASHINGTON, D.C. — The U.S. Supreme Court needs to decide whether law enforcement officers offering lay opinions based on their experience should testify instead as experts under Federal Rule of Evidence 702, a man convicted of smuggling cocaine tells the high court in his Jan. 6 petition for a writ of certiorari (Lenin Lugo v. United States, No. 19-855, U.S. Sup., 2020 U.S. S. CT. BRIEFS LEXIS 66).

  • January 14, 2020

    Judge Declines To Exclude Opinions On Attorney Fees In Insurers’ Receiver’s Award

    ST. LOUIS — A Missouri federal judge on Jan. 9 refused to bar opinions on the reasonableness of requested legal fees made by insolvent funeral insurers’ receiver and state insurance guaranty associations in a dispute regarding allegations over the mishandling of the insurers’ funds (Jo Ann Howard & Associates P.C., et al. v. J. Douglas Cassity, et al., No. 09-01252, E.D. Mo.).

  • January 14, 2020

    Psychiatrists Can Testify In Suit Claiming Rape Caused College Student’s Suicide

    TUSCALOOSA, Ala. — Treating physicians for a college student who killed herself after allegedly being raped by a prominent businessman can testify as fact witnesses about the posttraumatic stress disorder she suffered after the incident in her parents’ civil suit against the alleged rapist, an Alabama federal judge ruled Jan. 13 (Michael W. Rondini, et al. v. Terry J. Bunn, No. 7:17-cv-01114, N.D. Ala., 2020 U.S. Dist. LEXIS 5496).

  • January 08, 2020

    Personal Injury Case Heads To Trial After Expert Testimony Allowed

    BALTIMORE — A Maryland federal judge on Jan. 3 allowed one of two opinions by an expert for a couple suing a beauty products store in a personal injury action and then denied summary judgment to the store, finding that the question of whether the store breached its duty to inspect the premises must be answered at trial (Penny S. Rice, et al. v. SalonCentric Inc., No. 1:18-cv-1980, D. Md., 2020 U.S. Dist. LEXIS 1014).

  • January 07, 2020

    Judge Denies Certification Of Class Challenging Loan Servicer’s Diligence

    BUFFALO, N.Y.— A federal judge in New York on Dec. 30 denied a couple’s motion to certify a nationwide class for borrowers who claim that Bank of America N.A. violated the Real Estate Settlement Procedures Act (RESPA) by failing to use reasonable diligence when reviewing loan modification applications, holding that their expert’s report showed that the proposed class lacked commonality and that individual issues predominated over classwide questions (Bobbi Jackson, et al. v. Bank of America N.A., No. 16-CV-757, W.D. N.Y., 2019 U.S. Dist. LEXIS 222511).

  • January 07, 2020

    Judge Finds No Evidence That Former Sludge Site Presents Imminent Danger

    FORT MYERS, Fla.— A federal judge in Florida on Jan. 6 granted a city’s motion for partial summary judgment on a Resource Conservation and Recovery Act (RCRA) claim brought by residents who lived near a site where lime sludge from the city’s wastewater treatment plant was dumped, holding that there is no evidence that the site presents an imminent or substantial risk to human health or the environment since the sludge has been removed (Deretha Miller, et al. v. City of Fort Myers, No. 18-cv-195, M.D. Fla., 2020 U.S. Dist. LEXIS 1356).

  • December 31, 2019

    Magistrate Judge Endorses Expert Medical Opinions In Woman’s Negligence Suit

    ALBUQUERQUE, N.M. — An orthopedic surgeon can testify as an expert about the standard of care a woman received following knee surgery but cannot opine that she will need cosmetic surgery because that is not his area of expertise, a New Mexico federal magistrate judge said Dec. 30 in mostly denying a motion to strike in a medical malpractice case (Holly Salzman v. United States, No. 1:18-cv-779, D. N.M., 2019 U.S. Dist. LEXIS 222381).

  • December 31, 2019

    Expertise Not Needed For Informant To ID Cocaine, 2nd Circuit Rules

    NEW YORK — Two nephews of the first lady of Venezuela lost challenges to their cocaine trafficking convictions when the Second Circuit U.S. Court of Appeals on Dec. 20 affirmed the verdicts and 18-year sentences after finding no error in allowing a drug informant to testify as a lay witness, not an expert, on being able to identify cocaine (United States v. Efrain Antonio Campo Flores, et al., Nos. 17-4039, 17-4141, 2nd Cir., 2019 U.S. App. LEXIS 37956).

  • December 31, 2019

    Expert’s Opinions Bring Safety Of Store’s Flooring Into Question, Judge Holds

    CAPE GIRARDEAU, Mo. — Not every opinion by an expert for a plaintiff in a trip-and-fall case against a department store is admissible, but enough are to help defeat the store’s bid for summary judgment, a Missouri federal judge held Dec. 23 (Randy Lee Bailey v. Menard, Inc., No. 1:18-cv-00065, E.D. Mo., 2019 U.S. Dist. LEXIS 219841).

  • December 31, 2019

    Lack Of Proper Method Dooms Expert’s Opinions, Oklahoma Federal Judge Says

    TULSA, Okla. — An expert’s opinions in a breach of contract action between two property abstract companies fail due to a lack of proper methodology, an Oklahoma federal judge ruled Dec. 27 in excluding the expert’s testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 221522).

  • December 23, 2019

    Judge Uses Daubert To Exclude Opinions From 1972 Murder Trial For Man’s Retrial

    WASHINGTON, D.C. — Transcripts of testimony from three prosecution experts in the 1972 trial of a man convicted of murder cannot be used in the man’s court-ordered retrial because the testimony does not meet the current standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), a District of Columbia federal judge held Dec. 20 (United States v. John Milton Ausby, No. 1:72-cr-67, D. D.C., 2019 U.S. Dist. LEXIS 218971).

  • December 20, 2019

    DEA Worker’s Testimony Reliable, Relevant In Drug Smuggling Case, Panel Finds

    ATLANTA — A federal court properly allowed a Drug Enforcement Administration (DEA) researcher to testify as an expert at trial for three indicted cocaine smugglers, the 11th Circuit U.S. Court of Appeals decided Dec. 18, finding the expert’s opinions on smuggling drugs by boat both reliable and relevant (United States v. Armando Reyes-Garcia, et al., No. 18-10144, 11th Cir., 2019 U.S. App. LEXIS 37414).

  • December 20, 2019

    Iowa Appeals Court Affirms $4.9 Million Award To Woman Hurt In Fall Outside Hotel

    DES MOINES, Iowa — An Iowa appeals court on Nov. 27 affirmed a $4.9 million jury award to a woman who fractured her ankle when she fell on an icy sidewalk outside a hotel, holding that the award was not excessive and that the trial court did not abuse its discretion by permitting certain expert testimony (Brenda J. Alcala v. Marriott International Inc., et al., No. 18-1453, Iowa App., 2019 Iowa App. LEXIS 1058).

  • December 18, 2019

    Doctor’s Testimony In Amputation Case Reliable, Kentucky Federal Judge Says

    LONDON, Ky. — A doctor is qualified to testify in a malpractice case, and his opinion that poor medical care caused a woman with a blood clot to lose her leg is reliable, a Kentucky federal judge held Dec. 17 in denying a motion to exclude the expert’s testimony (Debra Chesnut, et al. v. United States, et al., No. 6:17-cv-00079, E.D. Ky., 2019 U.S. Dist. LEXIS 216622).

  • December 12, 2019

    Competency Standard For VA Medical Experts Needs Review, Vets Urge

    WASHINGTON, D.C. — The Federal Circuit U.S. Court of Appeals’ standard for judging the competency of medical experts for U.S. Department of Veterans Affairs veteran benefits cases conflicts with the Daubert v. Merrell Dow Pharmaceuticals Inc. standard and tramples on Congress’ intent to have a veteran-friendly benefits process, a veterans’ group tells the U.S. Supreme Court in a Dec. 9 amicus curiae brief (Ernest L. Francway, Jr. v. Robert Wilkie, No. 19-604, U.S. Sup., 2019 U.S. S. CT. BRIEFS LEXIS 7207).

  • December 11, 2019

    Hail Damage Opinions Survive Exclusion Bid In Oklahoma Coverage Row

    OKLAHOMA CITY — An Oklahoma federal judge on Dec. 10 allowed an expert to testify in an insurance coverage dispute about what caused damage to a roof, finding the expert’s reasoning and methods “sufficient” under Daubert v. Merrell Dow Pharmaceuticals Inc. (Employers Mutual Casualty Company v. SportChassis Holdings, Inc., No. 5:18-cv-766, W.D. Okla., 2019 U.S. Dist. LEXIS 212589).

  • December 10, 2019

    Trial Court Properly Weighed Expert Testimony In Child Porn Case, Panel Holds

    PHILADELPHIA — The Third Circuit U.S. Court of Appeals on Dec. 4 affirmed the conviction and 70-year prison sentence for a man who pleaded guilty to producing child pornography after finding that the trial court used the proper standard when vetting the defendant’s mental health expert witness (United States v. Jay Eugene Reed, No. 18-3511, 3rd Cir., 2019 U.S. App. LEXIS 35996).

  • December 10, 2019

    Expert Can’t Merely Repeat Information Provided, Federal Judge Says

    TULSA, Okla. — Lack of a sound methodology and relevance dooms an expert’s opinions in a breach of contract action between two property abstract companies, an Oklahoma federal judge determined Dec. 9 in excluding the expert’s testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 211700).