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Mealey's Daubert

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.
November 03, 2023
Judge: 1 Claim Remains, Some Expert Testimony Allowed In Cruise Injury Case

MIAMI — A Florida federal judge partially dismissed a lawsuit against a cruise liner company filed by a woman who claims to have been injured in her stateroom and partially granted its motion to exclude certain experts from testifying.
November 02, 2023
Judge Tosses Deepwater Horizon Case After Excluding Plaintiff’s Causation Expert

NEW ORLEANS — A federal judge in Louisiana has dismissed a lawsuit brought against BP Exploration & Production Inc. and others by a man who alleged that he was injured by exposure to toxic chemicals from his work as an onshore cleanup worker following the Deepwater Horizon oil spill. The judge excluded the plaintiff’s medical expert and ruled that without the expert the plaintiff could not establish general causation.
November 02, 2023
California High Court Rejects Asbestos-Talc Experts Ruling Case

SACRAMENTO, Calif. — The California Supreme Court on Nov. 1 denied Johnson & Johnson’s petition for review asking the court to decide the standard applied to evidentiary rulings, the admission of nonwitness expert opinions and how courts should evaluate cases alleging exposure to asbestos in products not designed to contain asbestos.
November 01, 2023
Judge: Pilot Can’t Opine On Air Traffic Controller Standards In Crash Suit

HONOLULU — A Hawaii federal judge on Oct. 31 granted a motion by the United States to limit the testimony of an expert retained in a wrongful death case, finding that the pilot who was retained to opine on what caused a helicopter to crash does not have the requisite experience as an air traffic controller to offer his opinions.
October 31, 2023
10th Circuit: Drug Trafficker’s Conviction Correct, No Error In Testimony

DENVER — A district court did not err in admitting expert testimony during a criminal trial for a man accused of narcotics trafficking, the 10th Circuit U.S. Court of Appeals held in affirming his conviction.
October 31, 2023
Magistrate Judge Nixes 2 Of Monsanto’s Experts, 1 Plaintiff Witness In PCB Trial

SEATTLE — A federal magistrate judge in Washington has excluded two expert witnesses that Monsanto Co. sought to use in a polychlorinated biphenyls (PCBs) contamination lawsuit, ruling that Monsanto failed to justify the late disclosure of one expert’s report and that the other expert’s report was based on “unreliable methodology and data” obtained from the first expert. The magistrate judge also excluded one of the plaintiff’s rebuttal witnesses due to her lack of “foundation of knowledge.”
October 30, 2023
New Jersey Appeals Court Won’t Reconsider Asbestos-Talc Expert Admission Ruling

NEW BRUNSWICK, N.J. — In four orders, the New Jersey Superior Court Appellate Division denied motions for reconsideration, leaving stand a ruling reversing the admission of expert testimony that led to a $224 million verdict and remanding for a new trial.
October 26, 2023
California Federal Judge Allows Expert In Trademark Dispute Over Shades Of Blue

SAN FRANCISCO — A California federal judge found that a “color consultant” expert can testify in a dispute over a trademark but ruled that she cannot opine on a likelihood of confusion between the two products.
October 25, 2023
10th Circuit Finds No Error In Expert Testimony On Disclosure Of Child Sex Abuse

DENVER — The 10th Circuit U.S. Court of Appeals on Oct. 24 rejected the argument of a man convicted of aggravated sexual abuse of a child who said the lower court improperly admitted testimony on child-sexual-abuse disclosures and affirmed his conviction.
October 25, 2023
Kentucky Appeals Court: Experts In Elder Negligence Care Case Properly Excluded

LOUISVILLE, Ky. — Experts retained by a family that sued their mother’s care facility for negligence were unqualified to opine on the standard of care or medical causation, a Kentucky appeals court found, ruling that summary judgment for the facility was appropriate.
October 25, 2023
Federal Judge: Expert Out In Case Alleging TCPA Violations; Certification Denied

ALEXANDRA, Va. — An expert failed to show that her methodology used to define members of a proposed class was reliable in a case alleging that Capital One violated the Telephone Consumer Protection Act by making prerecorded phone calls to non-customers, a Virigina federal judge ruled, excluding her testimony.
October 24, 2023
Rebuttal Witness To Survey Results Ruled Admissible In Trademark Dispute

SOUTH BEND, Ind. — Forest River Inc., a manufacturer of recreational vehicles, lost its bid to exclude an expert witness retained to rebut conclusions reached by its expert who conducted a consumer survey when an Indiana federal judge found that the expert’s opinions are admissible in the trademark infringement dispute.
October 23, 2023
Md. Appeals Court: No Error In Expert Testimony In Construction Contract Dispute

ANNAPOLIS, Md. — A Maryland appeals court found no error in a trial court allowing expert testimony in a construction contract dispute, also rejecting the contracting company’s other arguments in its appeal of a $2.5 million award.
October 23, 2023
Georgia Federal Magistrate Judge Limits Testimony On Source Of COVID-19 Infection

SAVANNAH, Ga. — An expert can testify that a longshoreman did not contract COVID-19 while aboard a vessel but he cannot opine on alternative sources of infection, a federal magistrate judge in Georgia ruled.
October 23, 2023
Judge Says Contractor Can Testify On Observation But Not Considered An Expert

LAFAYETTE, La. — A Louisiana federal judge granted a motion to exclude an expert witness in a dispute over proceeds from an insurance claim for damage caused by a hurricane, finding that the contractor is not qualified to opine on the scope of the repairs.
October 23, 2023
Flint Judge Excludes Expert’s In Utero Lead Exposure Opinion, Allows Others

ANN ARBOR, Mich. — A federal judge in Michigan on Oct. 20 ruled that a plaintiffs’ expert in the litigation pertaining to the lead-contaminated water crisis in the city of Flint, Mich., can testify on lead exposure in the city and its effect on cardiovascular and reproductive health, but he is excluded from testifying about the implications of in utero exposure.
October 19, 2023
Expert Testimony OK’d In Suit Against Walmart, But Jury Returns Defense Verdict

RALEIGH, N.C. — A North Carolina federal jury found that a woman did not prove that Walmart acted in a negligent manner, finding for the retailer in a personal injury case alleging injuries resulting from a parking lot crash, a week after the judge ruled that her treating physician could offer expert testimony.
October 19, 2023
BU Students Seek Reversal Of Summary Judgment Ruling In Pandemic Closure Suit

BOSTON — A trial court erred when it granted summary judgment to the trustees of Boston University (BU) in a putative class complaint brought after in-person classes transitioned to online-only in March 2020 due to the coronavirus pandemic, the students who brought the complaint write in an omnibus appellant brief filed in the First Circuit U.S. Court of Appeals, arguing that the ruling came after the court “correctly identified disputed issues of material fact.”
October 16, 2023
5th Circuit: Expert Designation Unnecessary To Enter Retrieved Cell Phone Data

NEW ORLEANS — The Fifth Circuit U.S. Court of Appeals on Oct. 13 refused to overturn a man’s conviction for sex trafficking of a minor after finding no error in the district court’s ruling that allowed a police investigator to testify on data retrieved from a cell phone without being deemed an expert under Federal Rule of Evidence 702.