NEW ORLEANS — Calling his suit “nothing more than a standard health care liability claim between non-diverse parties,” the son of a nursing home resident who died after contracting COVID-19 at the facility on Oct. 7 urged the Fifth Circuit U.S. Court of Appeals to reject its owners’ and operators’ argument that his negligence suit is preempted by the Public Readiness and Emergency Preparedness (PREP) Act and affirm a lower court order remanding it to Texas state court.
PHOENIX — An Arizona federal judge on Oct. 12 said conclusions about maritime safety practices require specialized knowledge and denied a tour boat company’s motion to exclude testimony from an expert retained by a woman who alleges that a boat’s wake caused her to damage her back.
ATLANTA — The testimony of a medical doctor who opined that a veteran’s treating physician violated the standard of care does not pass muster under Daubert v. Merrell Dow Pharmaceuticals Inc., and without his testimony, the claims against the federal government fail, a Georgia federal judge ruled Sept 20, granting a motion to exclude and awarding summary judgment.
TULSA, Okla. — An expert who opines that an Oklahoma police officer’s operation of a pepper spray gun violated the department’s use of force policies and the manufacturer’s instructions may testify after the department’s sheriff failed to prove that the expert fell short of the requirements set under Daubert v. Merrell Dow Pharmaceuticals Inc., a federal judge ruled Oct. 8.
SHERMAN, Texas — A Texas federal judge on Oct. 7 granted in part and denied in part a motion to exclude two doctors testifying that a man’s tinnitus was caused by a car accident, finding that one is unqualified under Daubert v. Merrell Dow Pharmaceuticals Inc.
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals in an Oct. 4 order consolidated for oral argument purposes only three appeals of federal judges’ orders remanding COVID-19-related wrongful death and negligence actions to California state court after finding no federal jurisdiction under the Public Readiness and Emergency Preparedness Act (PREP Act), federal officer jurisdiction or “imbedded question of federal law.”
INDIANAPOLIS — In an amicus curiae brief filed Oct. 5, the Chamber of Commerce of the United States asks the Indiana Supreme Court to adopt the apex deposition doctrine, which limits the situations under which a company’s high-ranking executives can be subject to depositions in lawsuits, and seeks reversal of an appeals court ruling that permitted the deposition of high-ranking executives with the National Collegiate Athletic Association (NCAA) in a lawsuit over liability for athlete deaths from sports-related concussions.
NEW YORK — A lower district court improperly excluded an expert witness retained by a couple who maintains that E.I. du Pont de Nemours & Co. caused the husband to develop cancer because the judge relied on a state court evidence ruling when the federal evidence rule applied, the Second Circuit U.S. Court of Appeals said Oct. 6, reversing the summary judgment award and remanding the case for trial.
NEW YORK — Predicting that the New York Court of Appeals would hold that an indemnity agreement in an underlying trade contract between insureds governs over insurance policy terms concerning the priority of coverage, the Second Circuit U.S. Court of Appeals on Oct. 5 reversed a lower court’s ruling as to coverage for the underlying settlement of a subcontractor employee’s injury.
HARTFORD, Conn.— A Connecticut judge on Sept. 2 denied a skilled nursing facility’s motion to dismiss a medical malpractice suit because the plaintiff provided an opinion of medical negligence by a similar health care provider as required by Connecticut statute.
BATON ROUGE, La. — A company sued for its role at a construction site accident failed to convince a Louisiana federal judge that the injured man’s expert witness did not meet the standards set under Daubert v. Merrell Dow Pharmaceuticals Inc., with the judge on Sept. 21 denying its motion to exclude.
BATON ROUGE, La. — A Louisiana federal judge on Sept. 17 ordered a hearing to determine the admissibility of an expert’s opinion on injury causation in a case in which the parties dispute the injuries a man sustained in a collision with a truck, but the judge otherwise denied the man’s motion to exclude under Daubert v. Merrell Dow Pharmaceuticals Inc.
TAMPA, Fla. — A Florida appellate court on Aug. 20 affirmed a trial court ruling that an arbitration agreement between a builder and lessor could not be enforced as to a lessee who sustained a traumatic brain injury in a fall through an attic floor that allegedly had a latent design and construction defect.
MARTINSBURG, W.Va. — An expert’s opinions on what caused a fatal accident are “bare conclusions without reliable support,” a West Virginia federal judge said Sept. 22, granting a motorcycle company’s motion to exclude the witness and awarding it summary judgment, finding that without his testimony, the decedent’s estate cannot establish a liability claim.
SAN JUAN, Puerto Rico — Almost two months after a federal judge in Puerto Rico granted Puerto Rico Miscellaneous Insurance Guaranty Association’s motion to dismiss a lawsuit seeking liability for damages arising from a slip-and-fall injury that allegedly occurred at the insured’s premises, the judge granted the plaintiff’s motion to voluntarily dismiss all defendants except the insured.
PHILADELPHIA — A county-owned nursing home on Sept. 1 indicated its intent to appeal to the District of Columbia Circuit U.S. Court of Appeals a federal judge in Pennsylvania’s Aug. 5 order denying dismissal of a wrongful death suit filed against it by the family of a resident who died from COVID-19, saying that is the proper jurisdiction for an appeal arising under the Public Readiness and Emergency Preparedness (PREP) Act; the judge in his order found that the act did not apply to the case.
WASHINGTON, D.C. — Courts are “hopelessly split” on whether preemption occurs only after federal agency notice-and-comment rule-making, and absent clarity, manufacturers and consumers face myriad warnings and labels, two Johnson & Johnson entities tell the U.S. Supreme Court in an Aug. 30 petition urging review of a Mississippi Supreme Court ruling allowing consumer protection claims involving the lack of warning about the dangers of ovarian cancer from consumer talc use.
BOSTON — The Massachusetts Supreme Judicial Court on Sept. 15 affirmed a jury award of $21 million in compensatory and punitive damages to a smoker’s widow, ruling that the state’s entry into a 1998 Master Settlement Agreement (MSA) did not preclude punitive damages because the state’s attorney general in entering the MSA did not represent the widow’s statutory interest in her wrongful death action.
ST. LOUIS — 3M Co. on Sept. 13 petitioned the Eighth Circuit U.S. Court of Appeals for a rehearing or en banc rehearing of the court’s Aug. 16 decision to reverse summary judgment that effectively revived the Bair Hugger patient warmer infection multidistrict litigation, saying the ruling admitting plaintiffs’ expert testimony is inconsistent with U.S. Supreme Court precedent and the applicable federal rule of evidence.
LOS ANGELES — Evidence that a company advertised its asbestos as good for use in bowling balls, an employee’s testimony that the manufacturer used asbestos in its product and testimony about work conditions and exposure levels go beyond speculative evidence of exposure, and expert testimony on causation suffices, a California court said Sept. 13 in affirming.