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Mealey's Daubert

March 13, 2023
4th Circuit Affirms Judgment, Expert’s Exclusion In Ethicon Pelvic Mesh Case

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on March 10 affirmed summary judgment for Ethicon Inc. in a pelvic mesh case, agreeing that the plaintiff’s case-specific causation expert did not conduct a differential diagnosis and that a subsequent expert affidavit was untimely under deadlines established when the case resided in a multidistrict litigation.
March 10, 2023
Vape Companies, Owner Say Court Improperly Found Jurisdiction In Chicago’s Suit

CHICAGO — Two e-cigarette companies and their owner on March 9 filed an amended motion for summary judgment in Illinois federal court on claims brought against them by the city of Chicago, arguing that the court improperly denied their motion to dismiss and found jurisdiction based on an estimated amount in controversy due to fines they could potentially face, while also seeking to exclude the city’s expert witness on youth marketing as “irrelevant.”
March 09, 2023
Domain Expert’s Opinion Excluded In Cybersquatting Dispute With Penn State

HARRISBURG, Pa. — A website domain expert proffered by a recreational vehicle (RV) company accused of trademark infringement and cybersquatting by Pennsylvania State University (Penn State) did not establish a reliable methodology for his opinion that the defendant’s GoPSUrv.com domain did not imply affiliation with the university, a Pennsylvania federal judge found, granting Penn State’s motion to exclude his opinion.
March 09, 2023
Despite Expert Testimony, Walmart Granted Summary Judgment In Falling Soda Suit

TAMPA, Fla. — Although permitting a mechanical engineer’s testimony about Walmart’s failure to warn customers about the fall hazards of its gravity-feed shelving units, a federal judge in Florida awarded the retailer summary judgment in a negligence suit against it, finding that the company had no actual or constructive knowledge of the dangerous condition, which caused bottles of soda to fall on a customer.
March 09, 2023
Class Certification Again Sought In IPhone App Monopolization Suit

SAN FRANCISCO — Almost one year after a California federal judge declined to certify a class of iPhone users that had purportedly been subjected to anti-competitive app prices, the consumer plaintiffs filed a renewed motion, again seeking certification for owners of Apple Inc. devices, representing that deficiencies identified in the previous motion had been rectified with the adding of an additional expert’s opinions and methodologies related to prices, commissions and damages.
March 07, 2023
Force Expert In, Alternative Design Expert Out In Truck Liftgate Injury Case

ALLENTOWN, Pa. — A biomechanical engineer can testify about the force required to operate the liftgate of a truck, but an engineer’s proposed testimony about alternative designs must be excluded because it fails to satisfy the reliability standards of Daubert v. Merrell Dow Pharmaceuticals Inc. and Federal Rule of Evidence 702, a federal judge in Pennsylvania held in denying in part and granting in part the liftgate designer’s motion in limine.
March 02, 2023
Judge Tosses Deepwater Horizon Cases For Lack Of Admissible Causation Expert

NEW ORLEANS — A federal judge in Louisiana has dismissed multiple personal injury lawsuits involving the Deepwater Horizon oil spill, with the most recent opinion handed down March 1. The opinions contain wording that is nearly identical to the ruling in the case of Timothy Bennett Miller, in which the judge said the plaintiff cannot prove causation because they all relied on the testimony of the same expert, who was excluded on grounds that the reliability and relevance of his report was not established.
March 01, 2023
In Leaky Pool Case, Judge Partly Grants Summary Judgment, Excludes Testimony

NASHVILLE, Tenn. — In three orders filed the same day, a Tennessee federal judge partially granted summary judgment in favor of a contractor that oversaw the construction of a leaky pool on a home property, partially excluded the testimony of the property owner’s expert witnesses and reset a new date for a jury trial.
March 01, 2023
Injured Railroad Worker’s Experts Allowed To Offer Testimony In FELA Case

OMAHA, Neb. — A federal judge in Nebraska largely denied a railroad company’s motions to exclude the testimony of four experts in an injured railroad worker’s Federal Employers’ Liability Act (FELA) suit under Federal Rule of Evidence 702, excluding only a railroad safety consultant’s testimony related to whether the locomotive in question was underpowered on the date of the accident.
February 27, 2023
In Oil Spill Case, La. Federal Judge Excludes Impermissible Character Evidence

NEW ORLEANS — Two pieces of expert testimony offered by an engineer on behalf of the United States are impermissible because they are intended to show that the previous habits of a wastewater treatment facility operator imply that the operator spilled oil into the Mississippi River for which the United States is seeking to recover cleanup payments, a Louisiana federal judge held in granting the operator’s motion in limine to exclude the testimony.
February 27, 2023
Judge: Asbestos Experts’ Opinions, Some Claims Against Employer Survive

NEW ORLEANS — An asbestos plaintiff on Feb. 24 asked for emergency remand, saying her settlement with a shipyard removed the lone defendant invoking federal jurisdiction after a federal judge in Louisiana partially granted summary judgment to an employer but denied its motion to exclude two asbestos experts, saying the experts could rely on witness testimony in rendering opinions on causation.
February 27, 2023
Asbestos-Diesel Expert’s Exclusion Affirmed In New Jersey FELA Case

TRENTON, N.J. — An expert’s testimony linking asbestos, cigarette use and exposure to diesel products to a man’s tongue and throat cancers began to fray when the asbestos claims were dismissed and lacks sufficient explanation of how he reached his causation opinion, a New Jersey appeals court said Feb. 24 in affirming the exclusion of the testimony and resulting summary judgment award to a rail company.
February 24, 2023
Appeal Of Expert Testimony In Death Benefits Case Not Preserved, N.C. Court Rules

RALEIGH, N.C. — The North Carolina Court of Appeals found that a temporary employment company failed to preserve its argument that the North Carolina Industrial Commission improperly admitted expert testimony and dismissed its appeal of a death benefits award.
February 24, 2023
Georgia Federal Judge Limits Expert’s Testimony In Premise Liability Injury Case

ATLANTA — A Georgia federal judge partly granted a motion to exclude an expert retained by a woman who fell inside a CVS store while working, finding that certain of his opinions constitute improper legal conclusions and others are based on unreliable information.
February 24, 2023
1 Expert In, 1 Expert Out In Suit Alleging Exploding Phone Battery Started Fire

PITTSBURGH — A Pennsylvania federal judge agreed to exclude one expert witness retained by a man who claims that a faulty cell phone battery caused a house fire but granted Apple Inc.’s motion to exclude the expert opining on the causation of his injuries.
February 23, 2023
New Jersey Supreme Court Adopts Daubert Standard For Criminal Cases

NEWARK, N.J. — The New Jersey Supreme Court has adopted the standards established in Daubert v. Merrell Dow Pharmaceuticals Inc. to determine the admissibility of expert evidence under New Jersey law in criminal cases, which had previously been considered under Frye v. United States.
February 16, 2023
Bank, Management Partner Lose Bid To Exclude Experts In Racial Disparity Case

BALTIMORE — Five experts retained by a group alleging that Bank of America and a property management company engaged in racially disparate practices in maintaining properties were largely admitted by a Maryland federal judge, who ruled that while all experts can testify, certain statements are excluded as inadmissible under Federal Rule of Evidence 702 .
February 16, 2023
Md. Federal Judge: SEC’s Expert Is Qualified But Part Of Testimony Is Unreliable

BALTIMORE — A federal judge in Maryland agreed to limit the testimony of the U.S. Securities and Exchange Commission’s expert, finding that certain of his opinions are inadmissible because they do “nothing more than draw a legal conclusion” on whether a man withheld information from investors and the SEC.
February 15, 2023
Late Motion To Exclude Expert Allowed But Fails In Insurance Coverage Spat

DALLAS — An insurer in a storm damage coverage suit was allowed to file a late motion but lost its bid to exclude a property owner’s expert when a Texas federal judge found his testimony reliable and helpful; the judge also denied most of its motion for summary judgment.
February 14, 2023
11th Circuit Affirms Expert Exclusion, Summary Judgment In Design Defect Case

ATLANTA — “[A]n unbridged ‘analytical gap’ between” an expert’s observations and his opinion that a boat’s engine compartment hatch and lift actuator were defectively designed warrants exclusion, the 11th Circuit U.S. Court of Appeals said, affirming a district court’s order and its award of summary judgment in favor of the manufacturer.
February 14, 2023
Expert Can’t Opine On Injury Causation, But Other Experts Admitted In Crash Case

SAVANNAH, Ga. — A Georgia federal magistrate judge found that there is no basis to exclude three experts retained in a case stemming from a car crash but ruled that one expert is excluded from opining on the cause of a woman’s injuries.
February 10, 2023
Murder Suspect Fails To Convince Federal Judge To Exclude Forensic Evidence

MUSKOGEE, Okla. — A forensic expert retained by the government to testify on specific land and grooves produced by a gun that may have been used in a murder can testify, an Oklahoma federal judge ruled after finding that her testimony meets all the requirements under Daubert v. Merrell Dow Pharmaceuticals Inc.
February 09, 2023
Panel Says Expert Report Lacks Causation In Negligence Suit Against Nursing Home

TYLER, Texas— A Texas appellate court reversed and remanded an order denying a nursing home’s dismissal motion and overruling its objections to an estate representative’s expert report in a negligence suit filed against the nursing home after a woman died there, finding that the lower court erred because the report failed to show the expert’s qualifications or causation between the purported injury and death.
February 09, 2023
Manufacturers’ Expert Out In Design Defect Case; Reconsideration Motion Fails

NEW YORK — A New York federal judge found that a motion for reconsideration of an order excluding an expert witness was untimely and an attempt for a “second bite of the apple,” upholding a previous order that ruled that a trucking manufacturer’s expert in a design defect case cannot testify that the company’s service manuals were reasonable for the industry.
February 08, 2023
Panel: Expert On Alternative Design Wrongfully Excluded In Forklift Injury Case

CHICAGO — A trial court erred in excluding expert testimony in a design defect case, and this error warrants a new trial, the Seventh Circuit U.S. Court of Appeals ruled, remanding the design defect case to the district court.