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Mealey's Daubert

May 02, 2024
9th Circuit Affirms Class Certification In Marketing Of Pet Health Product Suit

PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel upheld certification of a class of dog supplement purchasers who allege the products they bought were falsely marketed as improving joint health, finding that reliance on an unexecuted damages model to certify a class is permissible and that sufficient data was provided to support the certification ruling.
May 01, 2024
Gender-Affirming Care Exclusion Violates Law, 4th Circuit Affirms

RICHMOND, Va. — State health plan exclusions on otherwise covered care as a treatment for gender dysphoria facially discriminate on the basis of sex, a majority of the Fourth Circuit U.S. Court of Appeals said in a split en banc decision, affirming summary judgment for the insureds but with some judges stating in dissent that the ruling “oversteps the bounds of the law.”
April 30, 2024
5th Circuit Vacates Class Certification In Oil Company Securities Suit

NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel vacated a class certification order issued by a federal judge in Texas in a securities action brought by investors against a petroleum corporation and certain of its executives, finding that the judge erred by not allowing the petroleum company to file a sur-reply after the investors included evidence for the first time in a reply brief.
April 30, 2024
Judge Allows Asbestos Experts, Says Cross-Examination Can Explore Flaws In Testimony

NEW ORLEANS — A federal judge in Louisiana denied a pair of challenges and admitted seven experts in an asbestos case set to go to trial in early May, noting that disagreements over whether social contacts or environmental exposures were the cause of a man’s fatal contact with asbestos went to the reliability of the evidence rather than its admissibility and any defects in the testimony could be exposed on cross-examination.
April 29, 2024
High Court Won’t Decide ‘Average’ Class Damages Issue In Chili’s Data Breach Suit

WASHINGTON, D.C. — A question about the propriety of using an “average” damages amount suggested by the plaintiffs’ damages expert to certify a class will go unheard by the U.S. Supreme Court, which in its April 29 order list denied a petition for certiorari by the owner of the Chili’s restaurant chain, which protested the possibility that customers who suffered no damages at all in a 2018 data breach would still receive these damages awards.
April 29, 2024
9th Circuit Panel Affirms $1.73M Injury Award Against Boom Lift Manufacturer

SAN FRANCISCO — A panel of the Ninth Circuit U.S. Court of Appeals affirmed a judgment of an Oregon federal court denying a company’s motion for judgment as a matter of law after a jury awarded $1,731,308.80 to a worker who was injured while using the company’s equipment, finding that the trial court did not abuse its discretion in admitting expert testimony or err in the giving of jury instructions and that a rational jury could find that the accident occurred as described by the worker’s experts.
April 25, 2024
Ariz. Federal Judge: Expert Can Estimate Unpaid Wages In Suit By Class Of Drivers

PHOENIX — A forensic accounting expert retained by the operator of a fleet of chauffeured transportation services can testify, an Arizona federal judge ruled, denying a motion filed by a class of drivers who sued for wage violations.
April 25, 2024
Expert In Mail Truck Injury Case Can Testify, Federal Magistrate Judge Finds

SPRINGFIELD, Mo. — A federal magistrate judge in Missouri said the government’s objections to an expert retained by a man injured in a collision with a mail truck go to the expert’s credibility and not his admissibility.
April 24, 2024
Colorado Federal Judge Agrees To Limit Government Experts In Wire Fraud Case

DENVER — A Colorado federal judge partially granted and partially denied a joint motion by two men charged with wire fraud to exclude testimony from six government expert witnesses after finding that portions of the testimony are irrelevant and potentially prejudicial.
April 24, 2024
Md. Appeals Court Finds No Error In Excluding Medical Experts In Malpractice Suit

BALTIMORE — A Maryland appeals court found no abuse of discretion in a trial court excluding two experts in a medical malpractice lawsuit after finding that their testimony changed between their depositions and their testimony during a hearing to determine their admissibility under Daubert v. Merrell Dow Pharmaceuticals Inc.
April 23, 2024
Judge Allows Emotional Distress Evidence, Nixes Negligence Testimony In Water Case

HONOLULU — A federal judge in Hawaii on April 22 issued two orders on motions in limine filed by the U.S. government in a groundwater contamination case, ruling that evidence related to medical negligence is excluded but that evidence of the plaintiffs’ emotional distress and purported hearsay evidence about a plaintiffs’ alleged lost wages is not excluded, as residents attempt to hold the government liable for injuries from exposure to jet fuel that was released from a U.S. Navy base.
April 23, 2024
Treating Physician Cannot Testify On Injury Causation In Crash Case, Judge Rules

DETROIT — Because a treating physician “did not independently determine the cause of” a woman’s injuries, “he is not qualified to offer an opinion on the same,” a Michigan federal judge ruled, granting a motion to exclude filed by the U.S. government in a personal injury suit.
April 22, 2024
Judge Denies Motions To Exclude Insurance Industry Experts In Negligence Case

PHILADELPHIA — A Pennsylvania federal judge rejected dueling motions to exclude experts in an insurance negligence case, finding that the proper avenue to address the arguments is through cross-examination and not exclusion.
April 22, 2024
DuPont Affiliate Seeks Seal Of ‘Private And Confidential’ Material In PFAS Case

WILMINGTON, N.C. — The Chemours Co. on April 19 filed a brief in North Carolina federal court arguing that it should seal non-public information, including information about business operations and strategies that “might reasonably be expected to be kept private and confidential” in the long-running lawsuit brought by residents against E.I. du Pont de Nemours & Co. and its affiliates related to claims that they dumped per- and polyfluoroalkyl substances (PFAS) in the Cape Fear River, resulting in groundwater contamination.
April 22, 2024
Expert Can Offer Medical Causation Testimony, New York Federal Judge Says

BROOKLYN, N.Y. — A biomechanical engineer can opine on medical causation in a crash suit because he has adequate medical training, a New York federal magistrate judge ruled, rejecting a motion to exclude filed by a man who claims that he was injured in the crash.
April 19, 2024
Arizona Federal Judge: Expert Out In Design Defect Case Against Gun Manufacturer

PHOENIX — Testimony by an expert retained by a man who alleges that his handgun accidentally discharged due to a design defect is inadmissible, an Arizona federal judge ruled, finding that his conclusions are unreliable under Daubert v. Merrell Dow Pharmaceuticals Inc.
April 18, 2024
‘Top Gun’ Movie Sequel Did Not Infringe Copyrights; Experts On Similarities Barred

LOS ANGELES — A California federal judge granted Paramount Pictures’ motion for summary judgment after finding that the “Top Gun: Maverick” film did not infringe on any copyrights held by the author of a 1983 magazine article on the experiences of F-14 pilots and radio intercept officers training at the Navy’s Fighter Weapons School, known as Top Gun, and that certain expert witnesses are inadmissible.
April 18, 2024
Pa. Federal Judge Limits Testimony From Expert In Broken Window Injury Case

WILLIAMSPORT, Pa. — An expert retained by a man who was injured while installing a window air conditioning unit may testify, but a Pennsylvania federal judge partially granted a motion to exclude and barred testimony that he ruled does not require a specific expertise.
April 17, 2024
Woman’s Experts In Pressure Cooker Explosion Case Admissible, Judge Says

LITTLE ROCK, Ark. — Experts on what caused a pressure cooker lid to suddenly explode can testify in a personal injury suit, an Arkansas federal judge ruled, denying the manufacturer’s motion to exclude.
April 17, 2024
Plaintiffs In ASD-ADHD MDL Appeal Judgment, Exclusion Of Experts To 2nd Circuit

NEW YORK — Plaintiffs in the acetaminophen autism spectrum disorder-attention deficit hyperactivity disorder (ASD-ADHD) multidistrict litigation who allege that prenatal exposure to acetaminophen causes autism or attention deficit hyperactivity disorder have appealed to the Second Circuit U.S. Court of Appeals a decision by the MDL judge to exclude their expert witnesses and to enter final judgment dismissing their cases.
April 11, 2024
Federal Judge Issues Final Forfeiture Order In $38M Nursing Home Fraud Suit

MIAMI — A Florida federal judge issued a final forfeiture order regarding applying the assets of the former owner of skilled nursing facilities to the $38.7 million judgment entered against him for his role in a health care fraud scheme involving bribing physicians to have patients entered into the facilities he owned.
April 10, 2024
Judge: Experts Can Testify On How Jet Fuel Spill Caused Psychological Injuries

HONOLULU — A federal judge in Hawaii largely rejected efforts by the U.S. government to exclude three experts retained by the plaintiffs to opine on the psychological impacts of a groundwater contamination case after finding that many of its arguments can be addressed through cross-examination.
April 08, 2024
Expert Allowed In Roof Coverage Suit Pending In Nevada Federal Court

LAS VEGAS — A Nevada federal judge found that the arguments in an insurer’s motion to exclude expert testimony “are matters for cross examination and are not bases to strike” and that the expert’s testimony on the condition of a roof at the center of a coverage dispute is admissible under Federal Rule of Evidence 702.
April 08, 2024
Washington Judge Excludes AI-Enhanced Video From Murder Trial

SEATTLE — An artificial intelligence-enhanced video of a mass shooting does not meet the Frye v. United States standard, and the admission of such opaque and nonpeer-reviewable evidence would likely only introduce prejudice and complications into a murder trial, a Washington state court judge said in excluding the video.
April 08, 2024
Medical Coding, Damages Testimony Largely Admitted In Labs’ Compensation Case

BRIDGEPORT, Conn. — Experts may largely testify about medical coding practices and the resulting damages labs incurred from an insurer’s denials of the labs’ claims because they go beyond a layperson’s knowledge and are based on solid calculations, a federal judge in Connecticut said in excluding only portions based on flawed data provided to the damages expert and the medical coder’s testimony about whether the labs attempted to collect from patients.