Mealey's Daubert : Mealey's : Legal News & Analysis

Mealey's Daubert

March 31, 2023
Woman’s Rebuttal Witness Allowed In Case Alleging Injury While On Cruise

MIAMI — A cruise line failed to convince a federal magistrate judge in Florida to exclude a woman’s rebuttal expert witness who says that the lifeboat she was aboard when she was injured was traveling at an unreasonable speed as it headed back to a cruise ship.
March 30, 2023
Judge Admits Only General Causation Opinions; Ford Escapes Asbestos Case

SALT LAKE CITY — Two experts’ opinions on general causation in an automotive friction products asbestos case would assist a jury and are admissible against three defendants, but the exclusion of one expert’s specific causation testimony leaves the plaintiff with nothing on which to prevent summary judgment in favor of Ford Motor Co., a federal judge in Utah said.
March 29, 2023
11th Circuit Affirms Ruling That Nixed Expert Testimony And Dismissed Cancer Case

ATLANTA — In an unpublished opinion, a panel of the 11th Circuit U.S. Court of Appeals on March 28 affirmed a lower court’s decision in a cancer victim’s groundwater contamination lawsuit against Raytheon Technologies Corp. and held that a lower court did not abuse its discretion when it excluded the plaintiffs’ causation experts’ testimony and, therefore, the case was properly dismissed.
March 28, 2023
Pa. Court Says Jury Decides Expert’s Credibility, Reinstates FELA Action

HARRISBURG, Pa. — Where an expert is willing to testify regarding a link between low-level exposures to asbestos and other alleged toxins and disease, it is the jury’s and not the judge’s place to determine the credibility of that testimony, a Pennsylvania appeals court said in reversing summary judgment in a case alleging exposure to, among other things, asbestos.
March 24, 2023
Product Expiration, Origin Issues Lead To Exclusion Of Cleaning Agent Expert

MINNEAPOLIS — Because an expert performed testing on a product without verifiable origin or expiration date, his opinion lacks a factual foundation, a federal judge in Minnesota said March 23 in excluding his testimony on a product alleged to have sickened housekeepers in the health care setting.
March 24, 2023
Insurer’s Expert Is Only Permitted To Testify On Insurance Industry Standards

DENVER — A Colorado federal judge determined that an expert offered by a homeowners insurer in a breach of contract and bad faith suit seeking coverage for fire damages can testify only on insurance industry standards and whether the insurer’s actions were consistent with insurance industry standards.
March 23, 2023
Google Must Give Expert Confidential Documents In Location-Tracking Suit

SAN JOSE, Calif. — A group of plaintiffs suing Google LLC for privacy violations related to the purported surreptitious gathering of their location information data prevailed in a discovery matter, with a California federal magistrate judge ordering the technology giant to turn over a collection of confidential documents to the plaintiffs’ expert witness.
March 22, 2023
Auto Insurers’ Challenge To Experts Rejected; Classes Certified In Underpayment Suits

NEW YORK — After rejecting a group of auto insurers’ motion to exclude the opinions of three plaintiffs’ experts for the purposes of class certification in consolidated class actions alleging that the insurers systemically paid them less than the actual cash value of vehicles that were declared to be a total loss, a federal judge in New York granted the plaintiffs’ motion to certify two classes.
March 22, 2023
County: Argument Properly Raised For Judge To Reconsider FHA Suit Ruling

CHICAGO — A federal judge in Illinois should alter or amend his ruling excluding the testimony of a county’s expert in a Fair Housing Act (FHA) discriminatory lending lawsuit against Wells Fargo & Co. and several of its affiliates and granting summary judgment in favor of the defendants because the judge committed several errors that when viewed “individually or taken together,” show that his reasoning for excluding the testimony was erroneous under Daubert v. Merrell Dow Pharmaceuticals Inc., the county argues in a brief in reply to its motion to alter or amend.
March 21, 2023
Miss. High Court Finds Expert Unqualified, Reverses Judgment Denial In Med-Mal Case

JACKSON, Miss. — Ruling that a trial court abused its discretion in admitting the expert testimony of a physician whose qualifications were not submitted to the court, the Mississippi Supreme Court reversed the lower court’s ruling denying summary judgment to a hospital in a medical malpractice case and rendered judgment in favor of the hospital.
March 16, 2023
Judge Admits Experts, Says Hypotheticals Match Case’s Allegations

NEW ORLEANS — Two experts relied on a man’s firsthand accounts of work with a defendant’s turbines, and the resulting asbestos exposure and the hypotheticals they considered are relevant to the case, a federal judge in Louisiana said in admitting the pair.
March 14, 2023
Motion To Strike Testimony Of Court-Appointed Code Expert Denied In Copyright Case

LOS ANGELES — A federal judge in California denied a motion to exclude the report of the court-appointed source code expert in a copyright infringement and trade secret dispute, noting that the plaintiffs did not challenge the expert’s qualifications and, in fact, initially proposed him as an expert and rejecting their argument that his report is biased.
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.