Mealey's Daubert
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August 31, 2023
Insurance Expert Is Admissible But Cautioned On Limits Of Testimony By Judge
PHILADELPHIA — A federal judge in Pennsylvania denied a motion to exclude an expert on insurance industry standards in a bad faith dispute but ruled that the expert is barred from offering impermissible legal conclusions.
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August 31, 2023
Murder Conviction Affirmed After Indiana Appeals Court OKs Expert Testimony
INDIANAPOLIS — A woman convicted of murder lost her appeal to an Indiana appeals court, which found no error in the trial court allowing expert testimony on data from the victim’s pacemaker.
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August 30, 2023
Minnesota Court: Expert Testimony On ‘Novel Scientific Theory’ Properly Excluded
ST. PAUL, Minn. — A Minnesota appeals court affirmed dismissal of a medical malpractice suit alleging a birth injury after finding no error in a lower court’s decision to exclude expert testimony.
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August 30, 2023
3rd Circuit Affirms Rulings Against Insured In Greenhouse Coverage Lawsuit
PHILADELPHIA — Upholding rulings in favor of a insurer and reinsurer in a dispute concerning an ozone system failure in a basil-growing greenhouse, a Third Circuit U.S. Court of Appeals panel on Aug. 29 said in part that the trial court did not abuse its discretion in finding two proposed witnesses to be unqualified.
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August 29, 2023
Judge Denies Merck Summary Judgment In Mumps Vaccine Antitrust Class Action
PHILADELPHIA — A Pennsylvania federal judge has largely denied a motion by Merck & Co. Inc. to dismiss an antitrust complaint by three health care providers that Merck engaged in anti-competitive behavior to thwart a competitor and caused the providers to pay more for the childhood vaccine.
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August 23, 2023
Georgia Supreme Court: Law Enforcement Officer Subject To Full Daubert Inquiry
ATLANTA — The Georgia Supreme Court found that “the well-established test governing the admissibility of expert testimony applies with equal force to investigating law enforcement officers,” reversing two lower courts that ruled that an officer is presumptively qualified as an expert.
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August 21, 2023
Alaska Federal Judge Limits Testimony Of Expert In Insurance Coverage Spat
ANCHORAGE, Alaska — An insurance industry standards expert is not qualified to opine on building codes or construction, an Alaska federal judge ruled, also finding that testimony that constitutes a legal conclusion in a dispute over insurance coverage for a damaged roof is excluded.
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August 21, 2023
Louisiana Federal Judge Says 2 General Contractors Cannot Testify About Causation
LAKE CHARLES, La. — Two general contractors can testify about their field but not about what caused a sprinkler to become defective during the construction of a fitness club, a Louisiana federal judge found in partly granting a motion to exclude expert testimony filed by a subcontractor that installed the sprinkler and its insurer.
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August 17, 2023
Insurers Query Medical Coding Expert’s Role In Lab Testing Compensation Case
BRIDGEPORT, Conn. — A medical coding expert’s testimony lacks relevance in a case that turns on the medical necessity of labs’ drug testing, and the expert is not qualified to opine about internal codes used to deny claims, insurers tell a federal judge in Connecticut in seeking to exclude the opinions.
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August 15, 2023
7th Circuit Affirms $3.3M Bard IVC Filter Verdict; 510(k) Properly Excluded
CHICAGO — The Seventh Circuit U.S. Court of Appeals affirmed a $3.3 million inferior vena cava (IVC) filter verdict against C.R. Bard Inc., ruling that the trial court did not err by excluding evidence about the device’s 510(k) approval or by reopening the plaintiffs’ case to hear testimony from the reluctant implanting physician.
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August 15, 2023
8th Circuit: Pelvic Mesh Expert’s Expanded Opinion Was Untimely
ST. LOUIS — The Eighth Circuit U.S. Court of Appeals has affirmed the exclusion of a plaintiff’s causation expert and summary judgment for the defendant in a pelvic mesh case, finding that the expert’s original opinion was insufficient, that an attempted supplement was untimely and that the plaintiff did not ask for a sanction other than summary judgment.
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August 15, 2023
Class Certified In Case Alleging Foreign Tea Mislabeled As U.S. Manufactured
LOS ANGELES — A federal judge in California certified a class of consumers who purchased various teas in California labeled as “Manufactured in the USA 100% Family Owned” that were processed overseas and denied motions by defendant R.C. Bigelow Inc. to strike reports by three of the plaintiffs’ experts.
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August 11, 2023
Efforts To Exclude Experts In Copyright Row Fail In Colorado Federal Court
DENVER — A Colorado federal judge was unpersuaded by any arguments in four motions to exclude experts filed by parties in a copyright dispute over commercial photos used to promote cell phone cases.
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August 11, 2023
OSHA Regulations Don’t Apply To Maritime Case, Judge Rules In Excluding Expert
DETROIT — An expert relied on Occupational Safety and Health Administration regulations in forming his conclusions in a maritime personal injury lawsuit, but the regulations do not apply to U.S. Coast Guard inspected vessels, a Michigan federal judge said, granting a motion to exclude his testimony.
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August 11, 2023
Man Convicted Of Care Home Fraud Seeks High Court Review Of $38M Forfeiture Order
WASHINGTON, D.C. — A man convicted of fraud, bribery and money laundering and ordered to forfeit $38.7 million related to a health care scheme involving bribing physicians to have patients entered into assisted living and skilled nursing facilities that he owned filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the court to review whether a court, rather than a jury, may conduct fact finding to determine the amount to be forfeited.
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August 10, 2023
Expert Opining On ‘Jihadi Homegrown Terrorism’ Excluded In Criminal Trial
ALBUQUERQUE, N.M. — A New Mexico federal judge ruled that proposed expert testimony is inadmissible because it “is irrelevant to the elements of the charged offenses and its admission would confuse the issues and mislead the jury” hearing a criminal case.
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August 09, 2023
Medical Expert Properly Excluded From Opining On Causation, 11th Circuit Affirms
ATLANTA — The 11th Circuit U.S. Court of Appeals found no error in a district court excluding an expert witness under Daubert v. Merrell Dow Pharmaceuticals Inc. after finding that the expert did not consider alternative reasons for a woman’s allergic reaction, affirming the dismissal of a medical malpractice suit.
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August 09, 2023
Monsanto Insists Plaintiff’s Glyphosate Expert Is Unreliable, Should Be Excluded
SAN FRANCISCO — Monsanto Co. filed a reply brief in California federal court on Aug. 8, arguing that the plaintiff’s expert in a glyphosate cancer lawsuit related to the herbicide Roundup failed to perform the two essential steps for reliable differential diagnosis and, therefore, his opinions are unreliable.
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August 07, 2023
Judge Excludes 1 Expert, Rules On Allowed Testimony In Candle Injury Case
PHOENIX — An Arizona federal judge ruled on five motions relating to expert testimony and who is to blame for a man’s serious injuries allegedly caused when fragrance in a candle caused a flashover.
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August 03, 2023
Judge: Expert Opining On Hand Injury From Frozen Chicken Can Testify
SEATTLE — A Washington federal judge denied a motion to exclude an expert witness testifying on injuries a man sustained after allegedly cutting his hand on metal shears inside a bag of frozen chicken after finding that objections to the testimony can best be addressed through cross-examination.
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August 03, 2023
8th Circuit Affirms Exclusion Of Experts, Summary Judgment In FELA Asbestos Case
ST. LOUIS — Even assuming that the record allowed for the conclusion that a man was exposed to asbestos and other toxins at a railway, there is nothing establishing the level of exposure, and a court properly excluded expert testimony based on the belief that there was sufficient evidence of such exposure, an Eighth Circuit U.S. Court of Appeals panel said Aug. 2 in affirming summary judgment to a railway company.
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August 03, 2023
Judge Partially Excludes Safety Expert’s Testimony In Slip-And-Fall Case
TAMPA, Fla. — A Florida federal judge agreed to limit testimony from a safety expert retained by a man who says he slipped on a wet floor in a Target store but denied a motion to exclude the man’s life care planning expert.
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August 01, 2023
Pennsylvania Federal Judge OKs Experts In Design Defect Case Against Caterpillar
PITTSBURGH — A missing piece of evidence does not warrant exclusion of experts’ testimony, but a Pennsylvania federal judge agreed to bar testimony on one opinion that is irrelevant to a man’s suit alleging that a faulty design of construction equipment caused his injury.
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July 31, 2023
2nd Circuit Affirms Summary Judgment In Lexapro-Autism Case On Expert’s Exclusion
NEW YORK — The Second Circuit U.S. Court of Appeals on July 28 affirmed the exclusion of a causation expert and summary judgment in a Lexapro autism case brought by seven mothers, agreeing that the key expert’s opinion was not sufficiently reliable and without it the plaintiffs failed to show causation.
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July 28, 2023
Summary Judgment Granted In Alleged Defective Medical Device Case, Expert Excluded
GREENEVILLE, Tenn. — A Tennessee federal judge ruled that a retained expert in a defective medical device case “either did not measure the suture or her measurements of the suture are impossible” and excluded the testimony and found that without her testimony, summary judgment is appropriate.