Mealey's Daubert
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September 15, 2023
Parties Debate Admissibility Of Experts Under Daubert In Paraquat Litigation
EAST ST. LOUIS, Ill. — The plaintiffs who sued the makers of the pesticide paraquat and the companies themselves have filed competing briefs in Illinois federal court debating the admissibility of the plaintiffs’ expert witnesses under the Daubert standard. The defendants say the plaintiffs’ general causation expert “offers a masterclass in violating Rule 702,” and the plaintiffs contend that the defendants’ arguments “have no basis in Seventh Circuit authority.”
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September 13, 2023
Judge Says Insurer Has No Duty To Defend In Wrongful Death Suit Against Architect
TAMPA, Fla. — A Florida federal judge granted an insurer’s request for declaratory judgment that it has no duty to defend or indemnify its insured architect in a wrongful death suit filed against the architect by the family of a man who died while working on a construction project, finding that the architect “made material misrepresentations on the policy application that voided the policy under the rescission doctrine.”
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September 13, 2023
Judge Rules On 4 Motions To Exclude, Denies Summary Judgment In Injury Case
SEATTLE — A Washington federal judge ruled that certain motions filed by Home Depot in a slip-and-fall case were attempts “to cloak an untimely discovery motion in the guise of a motion to exclude,” finding that experts retained by the man injured can testify.
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September 13, 2023
Judge Says Flint Plaintiffs’ Expert Opinion Is ‘Relevant And Admissible’
ANN ARBOR, Mich. — A federal judge in Michigan who is presiding over the litigation related to the Flint lead-contaminated water crisis has denied an attempt by one of the defendants seeking to exclude a plaintiffs’ expert, ruling that his opinion is “relevant and admissible” because he opines only as to what the potential harm is, which is different from the issue of damages.
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September 12, 2023
Glyphosate Cancer Cases Remanded For Trial; Experts Survive Parties’ Opposition
SAN FRANCISCO — A California federal judge on Sept. 11 remanded a glyphosate cancer lawsuit from the multidistrict litigation (MDL) for the herbicide Roundup to a federal court in Kentucky pursuant to a conditional remand order that covers multiple cases. In the case brought by the estate of Kenzie Elizabeth Murdock, the judge remanded after denying Monsanto Co.’s motion to exclude Murdock’s expert witness.
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September 11, 2023
Testimony In Metal-On-Metal Hip Replacement Device Case Limited In Federal Court
PHOENIX — An Arizona federal judge agreed to limit expert testimony offered by a man alleging that a defective “metal-on-metal” hip replacement device caused an injury and barred another expert who previously served as a consultant for the device manufacturer from testifying.
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September 06, 2023
9th Circuit Remands Google Play Antitrust Appeal For Likely Class Decertification
SAN FRANCISCO — In the wake of a California federal judge’s ruling excluding the opinions of an expert on which he previously relied in granting certification of a consumer class in the consolidated monopolization suit over Google LLC’s Play Store, the Ninth Circuit U.S. Court of Appeals granted Google’s motion to remand its appeal of the certification ruling for further proceedings.
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September 01, 2023
Federal Judge Rules On Motions To Exclude 3 Experts In Workplace Injury Case
ATLANTA — An expert originally retained by plaintiffs in a workplace injury case is allowed to now testify for the defense, a Georgia federal judge ruled, also finding that one expert is excluded as unreliable but another based his conclusions on reliable information.
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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.