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Mealey's Daubert

November 30, 2023
In California Copyright Case, Decision To Strike Expert Testimony Revisited

WASHINGTON, D.C. — A federal judge in California on Nov. 29 said his recent decision to strike the expert testimony of a copyright damages expert witness was error, in a blow to infringement defendants that include The Walt Disney Co.
November 29, 2023
Hawaii Asbestos Trial Ends In Verdict For 3M After Genetics Evidence Excluded

HONOLULU — 3M Co. negligently designed its respirator, rendering the device defective, but neither flaw caused a man’s mesothelioma and the man’s injury arose from superseding cause, a jury in Hawaii said in finding for the defendant.
November 29, 2023
On Remand, Parties Dispute Expert Exclusion Bids In RESPA Class Lawsuit

FRESNO, Calif. — Parties in a long-running Real Estate Settlement Procedures Act (RESPA) class action involving captive reinsurance agreements are sparring in California federal court over expert testimony regarding whether the plaintiffs have standing under an economic harm theory.
November 29, 2023
FELA Asbestos Plaintiff Warns: Georgia Ruling Will Impact Every Daubert Case

ATLANTA — A man tells the Georgia Supreme Court that it must review a divided appellate court ruling excluding his Federal Employers’ Liability Act (FELA) expert’s opinion that exposure to asbestos and other toxins caused lung cancer, saying the divided and “fractured” ruling shows the court rushed its opinion and warning that the confusion the ruling creates could result in it being cited by both parties in every trial court case applying Daubert v. Merrell Dow Pharmaceuticals Inc.
November 29, 2023
Judge Won’t Strike Expert Opinion Challenged As ‘Every Exposure’ Theory

GREAT FALLS, Mont. — An expert’s testimony tracks with the science involving asbestos-related diseases and does not veer into “every exposure” or specific causation testimony, a federal judge said Nov. 28 in admitting three witnesses in a fourth ruling denying motions to strike various expert opinions in a case involving Libby, Mont., exposures.
November 29, 2023
BU Trustees Ask 1st Circuit To Affirm Pandemic Closure Ruling

BOSTON — A trial court properly entered summary judgment for Boston University trustees in a putative class complaint brought by students after in-person classes transitioned to online-only in March 2020 due to the coronavirus pandemic as the school, like the University of Rhode Island in Burt v. Board of Trustees of the University of Rhode Island, “suffered financial loss rather than profit from the transition to remote instruction, and thus that Plaintiffs cannot prove restitution damages as a matter of law,” the trustees argue in their appellee brief filed Nov. 28 in the First Circuit U.S. Court of Appeals.
November 29, 2023
Monsanto: Glyphosate Expert Warrants Exclusion, Affidavit Is Not An Expert Report

SAN FRANCISCO — Monsanto Co. filed a reply brief in California federal court on Nov. 28 contending that a plaintiff’s expert in a glyphosate cancer lawsuit should be excluded because the plaintiff has failed to provide information required by the Federal Rules of Civil Procedure and it is “undisputed” that the expert’s affidavit is not an expert report.
November 28, 2023
6th Circuit: No Error In Excluding Treating Physician, Summary Judgment Affirmed

CINCINNATI — The Sixth Circuit U.S. Court of Appeals affirmed summary judgment awarded to a truck driver involved in a collision, finding that the man he struck did not prove causation and that his expert was properly excluded.
November 28, 2023
Expert On Hail Damage Admissible, But Federal Judge Orders 2nd Deposition

DALLAS — A forensic engineer retained in an insurance coverage dispute can testify, a federal judge in Texas ruled, rejecting a motion filed by the insurer to exclude his testimony, but the judge ordered that the expert be made available for a second deposition at the insured’s expense.
November 27, 2023
Expert On Lost Profits Meets Admissibility Standards Under Daubert, Judge Says

SEATTLE — An expert retained by a food distributor suing companies for mislabeled and misrepresented chicken products that it alleges led to the termination of its contract with Trader Joe’s can testify about lost profits, a Washington federal judge ruled.
November 22, 2023
Federal Magistrate Allows Expert Testimony In SEC’s Case Against Crypto Investor

AUSTIN, Texas — A federal magistrate judge in Texas denied a crypto asset investor’s motion to exclude testimony from a Securities and Exchange Commission expert witness who will testify about the investor’s alleged use of a crypto blockchain to sell a token as an unregistered security, finding in part that the investor did not show what alternate data about the blockchain should have been used by the expert.
November 17, 2023
Michigan Court Partially Reverses Expert Exclusion Ruling On Interlocutory Appeal

TROY, Mich. — An expert who is not board-certified in surgical critical care cannot opine on whether doctors who are board-certified breached the applicable standard of care, a Michigan appeals court ruled in an interlocutory appeal, partially reversing a trial court’s ruling in a wrongful death medical malpractice case.
November 17, 2023
5th Circuit Says No Error In Expert Testimony, Upholds $5M Verdict For Crash

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals affirmed a $5 million verdict for a woman and her brother who were injured in a car crash and allege that a Honda vehicle design defect was at fault, finding that the expert witnesses were properly admitted and rejecting other points on appeal.
November 16, 2023
Judge Admits Pair Of Experts, Grants Asbestos Plaintiffs Limited Surrebuttal

GREAT FALLS, Mont. — An asbestos expert for two plaintiffs didn’t simply sign off on a counsel-authored report but provided adequate input of his own, and while challenged portions of a defense expert’s report largely constitute rebuttal, to the extent that they do not the plaintiffs may file a surrebuttal, a federal judge in a Libby, Mont., asbestos exposure case said Nov. 15 in denying motions to strike.
November 16, 2023
Judge Allows Expert Testimony But Pares Claims In Hip Implant Injury Case

COEUR D’ALENE, Idaho — An Idaho federal judge will allow an expert retained by a woman suing for an allegedly defective hip implant to testify but partially granted the manufacturers’ motion for summary judgment.
November 15, 2023
Magistrate Recommends Not Striking Expert Reports In Care Home Negligence Suit

GREENSBORO, N.C. — A North Carolina federal magistrate judge on Nov. 14 recommended denying a skilled nursing facility’s summary judgment motion and motion to strike expert witness reports in a negligence suit against the facility by the estate of a former resident, finding that the estate has shown that failure to comply with the expert disclosure deadline was harmless and there is no basis for summary judgment without excluding the expert reports.
November 15, 2023
Magistrate Judge: Roofing Contractor Failed To File Proper Expert Report

FORT MYERS, Fla. — A federal magistrate judge struck a report and expert testimony offered by a roofing contractor that says roofing products it used during a repair job damaged two condominium properties because the contractor failed to provide several necessary elements in the report, including all the opinions on which the expert would testify.
November 14, 2023
Maryland Appeals Court Upholds Expert Testimony In Lead Exposure Case

BALTIMORE — A Maryland appeals court affirmed a more than $2 million jury verdict for lead exposure in paint after finding that the expert who opined that a man’s injuries were caused by his early childhood exposure was properly admitted.
November 14, 2023
Judge Allows Expert’s Testimony, Denies Summary Judgment In Fatal Rollover Case

MILWAUKEE — A Wisconsin federal magistrate judge denied a motion to exclude an engineering expert retained by the estate of a man killed when a Caterpillar Inc. dump truck rolled over, finding that his testimony meets the requirements of Daubert v. Merrell Dow Pharmaceuticals Inc. and the manufacturer’s objections can be addressed through cross-examination.
November 14, 2023
Hawaii Judge Excludes BAP1 Genetic Causation Opinion From Asbestos Trial

HONOLULU — After allowing a blood test, a Hawaii judge excluded any resulting expert opinions on genetics’ role in a man’s mesothelioma as untimely and inadmissible in an ongoing asbestos trial, sources told Mealey Publications.
November 13, 2023
Judge Says Plaintiff’s Expert May Testify In Case Over Seismic Data For Fracking

HOUSTON — A federal judge in Texas has denied a defendant’s motion to exclude a plaintiff’s witness regarding his testimony on reasonable royalty damages in a dispute over disclosure of unlicensed seismic data to a third-party oil and gas operator, ruling that the testimony is permitted as long as it complies with the requirements of Federal Rule of Evidence 701.
November 10, 2023
In IP Litigation Between Pharmacies, Both Sides Lose Daubert Challenges

SAN DIEGO — A federal judge in California has weighed in on competing motions to exclude expert testimony in a dispute over a compounding pharmacy’s alleged false advertising, unfair competition and copyright infringement, deeming the proposed experts for both sides “duly qualified” to render their opinions, which the judge said are based on “sufficiently reliable” methodologies.
November 09, 2023
Ex-DePuy Consultant Out As Plaintiffs’ Expert, D.C. Federal Judge Says

WASHINGTON, D.C. — A federal judge in the District of Columbia joined other district courts in finding that an expert retained by a plaintiff in a defective “metal-on-metal” (MoM) hip replacement device case cannot testify because he previously served as a consultant for the device manufacturer.
November 07, 2023
Judge Excludes Expert; Parties Weigh Moves After LTL Bankruptcy Stay Ends

RALEIGH, N.C. — Parties to an asbestos talc-related mesothelioma case told a federal judge in North Carolina that recent developments lifted the stay imposed by the LTL Management LLC bankruptcy and that the parties were working toward an agreement that would permit the filing of an amended complaint naming the company. The status report came in response to a ruling seeking information on the stay and granting a defendant’s motion to exclude experts and for summary judgment.
November 06, 2023
No Coverage Owed For Roof Collapse Following Thunderstorm, 5th Circuit Affirms

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Nov. 3 affirmed a lower federal court’s summary judgment ruling in favor of an insurer in a building owner insured’s breach of contract and bad faith lawsuit seeking coverage for damage caused by a collapsed roof following a thunderstorm, rejecting the insured’s contention that its principal’s deposition testimony created a genuine issue of material fact regarding whether the damage was caused by wind or rain.