http://www.lexisnexis.com/mealeys/news.aspx Headline Daubert Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2020 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%201%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - Transcripts of testimony from three prosecution experts in the 1972 trial of a man convicted of murder cannot be used in the man's court-ordered retrial because the testimony does not meet the current standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), a District of Columbia federal judge held Dec. 20 (United States v. John Milton Ausby, No. 1:72-cr-67, D. D.C., 2019 U.S. Dist. LEXIS 218971). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%202%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' ATLANTA - A federal court properly allowed a Drug Enforcement Administration (DEA) researcher to testify as an expert at trial for three indicted cocaine smugglers, the 11th Circuit U.S. Court of Appeals decided Dec. 18, finding the expert's opinions on smuggling drugs by boat both reliable and relevant (United States v. Armando Reyes-Garcia, et al., No. 18-10144, 11th Cir., 2019 U.S. App. LEXIS 37414). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%203%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW YORK - Two nephews of the first lady of Venezuela lost challenges to their cocaine trafficking convictions when the Second Circuit U.S. Court of Appeals on Dec. 20 affirmed the verdicts and 18-year sentences after finding no error in allowing a drug informant to testify as a lay witness, not an expert, on being able to identify cocaine (United States v. Efrain Antonio Campo Flores, et al., Nos. 17-4039, 17-4141, 2nd Cir., 2019 U.S. App. LEXIS 37956). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%204%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Jan. 15 upheld the federal government's calculations in its determination that a Texas home health care provider owes more than $12 million for Medicare overpayments, affirming that a Daubert analysis is not needed for agency actions (Palm Valley Health Care, Inc. v. Alex M. Azar II, No. 18-41067, 5th Cir., 2020 U.S. App. LEXIS 1371). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%205%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' CHICAGO - An Illinois federal judge on Jan. 21 stripped plaintiffs suing their insurer over lactation services coverage under the Patient Protection and Affordable Care Act (ACA) of their expert witness testimony for lack of reliability and then denied their bid for class certification for lack of common issues (Laura Briscoe, et al. v. Health Care Service Corporation, et al., No. 1:16-cv-10294, N.D. Ill., 2020 U.S. Dist. LEXIS 9447). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%206%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' RICHMOND, Va. - An insurance company's expert can testify in a coverage dispute for money paid by a company that got duped by a phishing scheme because he meets all of the requirements for an expert witness, a Virginia federal judge held Jan. 15 (Quality Plus Services, Inc. v. National Union Fire Insurance Company of Pittsburgh, Pa., No. 3:18-cv-454, E.D. Va., 2020 U.S. Dist. LEXIS 7337). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%207%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' ST. LOUIS - A Missouri federal judge on Jan. 9 refused to bar opinions on the reasonableness of requested legal fees made by insolvent funeral insurers' receiver and state insurance guaranty associations in a dispute regarding allegations over the mishandling of the insurers' funds (Jo Ann Howard & Associates P.C., et al. v. J. Douglas Cassity, et al., No. 09-01252, E.D. Mo.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%208%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - The U.S. Supreme Court needs to decide whether law enforcement officers offering lay opinions based on their experience should testify instead as experts under Federal Rule of Evidence 702, a man convicted of smuggling cocaine tells the high court in his Jan. 6 petition for a writ of certiorari (Lenin Lugo v. United States, No. 19-855, U.S. Sup., 2020 U.S. S. CT. BRIEFS LEXIS 66). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%209%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' LONDON, Ky. - A doctor is qualified to testify in a malpractice case, and his opinion that poor medical care caused a woman with a blood clot to lose her leg is reliable, a Kentucky federal judge held Dec. 17 in denying a motion to exclude the expert's testimony (Debra Chesnut, et al. v. United States, et al., No. 6:17-cv-00079, E.D. Ky., 2019 U.S. Dist. LEXIS 216622). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2010%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' ALBUQUERQUE, N.M. - An orthopedic surgeon can testify as an expert about the standard of care a woman received following knee surgery but cannot opine that she will need cosmetic surgery because that is not his area of expertise, a New Mexico federal magistrate judge said Dec. 30 in mostly denying a motion to strike in a medical malpractice case (Holly Salzman v. United States, No. 1:18-cv-779, D. N.M., 2019 U.S. Dist. LEXIS 222381). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2011%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' TUSCALOOSA, Ala. - Treating physicians for a college student who killed herself after allegedly being raped by a prominent businessman can testify as fact witnesses about the posttraumatic stress disorder she suffered after the incident in her parents' civil suit against the alleged rapist, an Alabama federal judge ruled Jan. 13 (Michael W. Rondini, et al. v. Terry J. Bunn, No. 7:17-cv-01114, N.D. Ala., 2020 U.S. Dist. LEXIS 5496). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2012%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' CAPE GIRARDEAU, Mo. - Not every opinion by an expert for a plaintiff in a trip-and-fall case against a department store is admissible, but enough are to help defeat the store's bid for summary judgment, a Missouri federal judge held Dec. 23 (Randy Lee Bailey v. Menard, Inc., No. 1:18-cv-00065, E.D. Mo., 2019 U.S. Dist. LEXIS 219841). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2013%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' BALTIMORE - A Maryland federal judge on Jan. 3 allowed one of two opinions by an expert for a couple suing a beauty products store in a personal injury action and then denied summary judgment to the store, finding that the question of whether the store breached its duty to inspect the premises must be answered at trial (Penny S. Rice, et al. v. SalonCentric Inc., No. 1:18-cv-1980, D. Md., 2020 U.S. Dist. LEXIS 1014). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2014%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' RENO, Nev. - A Nevada federal judge on Jan. 21 excluded testimony from a medical expert for the defendant in a personal injury action stemming from a car crash after finding that the expert's methodology lacked reliability (Urszula Brumer, et al. v. Laurie Ann Gray, No. 3:17-cv-00576, D. Nev., 2020 U.S. Dist. LEXIS 9649). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2015%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' DES MOINES, Iowa - An Iowa appeals court on Nov. 27 affirmed a $4.9 million jury award to a woman who fractured her ankle when she fell on an icy sidewalk outside a hotel, holding that the award was not excessive and that the trial court did not abuse its discretion by permitting certain expert testimony (Brenda J. Alcala v. Marriott International Inc., et al., No. 18-1453, Iowa App., 2019 Iowa App. LEXIS 1058). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2016%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' TULSA, Okla. - An expert's opinions in a breach of contract action between two property abstract companies fail due to a lack of proper methodology, an Oklahoma federal judge ruled Dec. 27 in excluding the expert's testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 221522). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2017%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' JERSEY CITY, N.J. - A New Jersey state appeals court on Jan. 17 affirmed the exclusion of two plaintiff experts opinions for "methodological defects," a ruling that the trial court applied to 3,231 other cases alleging that the acne drug Accutane caused plaintiffs to develop inflammatory bowel disease (In Re: Accutane Litigation, No. A-4952-16T1, N.J. Super., App. Div., 2020 N.J. Super. Unpub. LEXIS 123). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2018%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN FRANCISCO - The California federal judge overseeing the Viagra/Cialis melanoma multidistrict litigation on Jan. 13 allowed plaintiffs to present expert testimony that it is biologically plausible for the erectile dysfunction drugs to cause progression of melanoma, but he granted a defendants' motion to exclude opinions on general causation (In Re: Viagra and Cialis Products Liability Litigation, No. 16-md-2691, N.D. Calif., 2020 U.S. Dist. LEXIS 7216). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2019%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' FORT MYERS, Fla.- A federal judge in Florida on Jan. 6 granted a city's motion for partial summary judgment on a Resource Conservation and Recovery Act (RCRA) claim brought by residents who lived near a site where lime sludge from the city's wastewater treatment plant was dumped, holding that there is no evidence that the site presents an imminent or substantial risk to human health or the environment since the sludge has been removed (Deretha Miller, et al. v. City of Fort Myers, No. 18-cv-195, M.D. Fla., 2020 U.S. Dist. LEXIS 1356). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=24-1%20Mealey%27s%20Daubert%20Rep.%2020%20(2020)&view=full&ORIGINATION_CODE=00144 target='_blank' BUFFALO, N.Y.- A federal judge in New York on Dec. 30 denied a couple's motion to certify a nationwide class for borrowers who claim that Bank of America N.A. violated the Real Estate Settlement Procedures Act (RESPA) by failing to use reasonable diligence when reviewing loan modification applications, holding that their expert's report showed that the proposed class lacked commonality and that individual issues predominated over classwide questions (Bobbi Jackson, et al. v. Bank of America N.A., No. 16-CV-757, W.D. N.Y., 2019 U.S. Dist. LEXIS 222511). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%201%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' BROOKLYN, N.Y. - Mindful of a new report refuting the validity of firearms toolmark analysis, a New York federal judge on Nov. 26 allowed an expert witness for the government to testify but made clear that the expert cannot opine that a shell found at a crime scene definitively came from the defendant's gun (United States v. Alonzo Shipp, No. 1:19-cr-29, E.D. N.Y., 2019 U.S. Dist. LEXIS 205397). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%202%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' ALBUQUERQUE, N.M. - A New Mexico federal judge on Dec. 5 excluded expert testimony for the defendant in a child abuse case from a pediatric neurologist for lack of reliability after agreeing with the expert that his opinion "is not generally accepted by the scientific community" (United States v. Patrick Duran, No. 1:14-cr-3762, D. N.M., 2019 U.S. Dist. LEXIS 210690). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%203%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' RICHMOND, Va. - While a trial court's ruling allowing an expert witness to testify for the government to prove a child pornography charge was "quite brief," any error was harmless as there was ample other evidence to convict the defendant, the Fourth Circuit U.S. Court of Appeals ruled Nov. 25 (United States v. Shahid Hassan Muslim, No. 16-4304, 4th Cir., 2019 U.S. App. LEXIS 35178). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%204%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Dec. 4 affirmed the conviction and 70-year prison sentence for a man who pleaded guilty to producing child pornography after finding that the trial court used the proper standard when vetting the defendant's mental health expert witness (United States v. Jay Eugene Reed, No. 18-3511, 3rd Cir., 2019 U.S. App. LEXIS 35996). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%205%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SCRANTON, Pa. - A Pennsylvania federal magistrate judge on Nov. 15 allowed expert testimony on post-traumatic stress disorder from both sides in a suit over an alleged sexual assault during a youth overnight camping trip but rejected testimony from an expert for the camp operator on the faultiness of human memory (R.D. v. Shohola, Inc., No. 3:16-cv-01056, M.D. Pa., 2019 U.S. Dist. LEXIS 198035). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%206%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' NASHVILLE, Tenn. - An expert witness for a property owner in a land condemnation proceeding cannot opine on the value of the land being taking for a powerline easement because his estimate of the compensation due to the landowner is unreliable, a Tennessee federal judge ruled Nov. 22 (United States v. An Easement and Right-of-Way Over 3.74 Acres of Land in Montgomery County, Tennessee, et al., No. 3:17-cv-01539, M.D. Tenn., 2019 U.S. Dist. LEXIS 203318). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%207%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' HONOLULU - Two expert witnesses for a Hawaiian car dealership can testify about the value of the business to determine damages in the franchisee's improper business practices suit against the franchisor, Volvo Car USA LLC, though they cannot mention estimated 2017 financial results because the business never provided the actual results, a federal judge ruled Nov. 26 (Envy Hawaii LLC v. Volvo Car USA LLC, No. 1:17-cv-40, D. Hawaii, 2019 U.S. Dist. LEXIS 206319). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%208%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' TULSA, Okla. - Lack of a sound methodology and relevance dooms an expert's opinions in a breach of contract action between two property abstract companies, an Oklahoma federal judge determined Dec. 9 in excluding the expert's testimony from trial (Oklahoma Digital Abstract, LLC v. Imersion Global Incorporated, No. 4:18-cv-398, N.D. Okla., 2019 U.S. Dist. LEXIS 211700). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%209%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' PHOENIX - Two experts for a semiconductor company asserting fraud and contract breach claims against a fabricating company can testify about lost development support damages and the semiconductor fabrication industry in general because their opinions are helpful and reliable, an Arizona federal judge held Nov. 15 (IceMOS Technology Corporation v. Omron Corporation, No. 2:17-cv-2575, D. Ariz., 2019 U.S. Dist. LEXIS 198397). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2010%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - The Federal Circuit U.S. Court of Appeals' standard for judging the competency of medical experts for U.S. Department of Veterans Affairs veteran benefits cases conflicts with the Daubert v. Merrell Dow Pharmaceuticals Inc. standard and tramples on Congress' intent to have a veteran-friendly benefits process, a veterans' group tells the U.S. Supreme Court in a Dec. 9 amicus curiae brief (Ernest L. Francway, Jr. v. Robert Wilkie, No. 19-604, U.S. Sup., 2019 U.S. S. CT. BRIEFS LEXIS 7207). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2011%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' OKLAHOMA CITY - An Oklahoma federal judge on Dec. 10 allowed an expert to testify in an insurance coverage dispute about what caused damage to a roof, finding the expert's reasoning and methods "sufficient" under Daubert v. Merrell Dow Pharmaceuticals Inc. (Employers Mutual Casualty Company v. SportChassis Holdings, Inc., No. 5:18-cv-766, W.D. Okla., 2019 U.S. Dist. LEXIS 212589). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2012%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - Expert witnesses for both sides can testify at trial on what are reasonable record-keeping and administrative fees for overseeing an employee 401(k) plan because their methods are reliable enough to allow their opinions, a Colorado federal judge held Nov. 26 (Lorraine M. Ramos, et al. v. Banner Health, et al., No. 1:15-cv-2556, D. Colo., 2019 U.S. Dist. LEXIS 205155). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2013%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' TALLAHASSEE, Fla. - The Florida Supreme Court on Nov. 12 refused to accept jurisdiction over D.R. Horton Inc. - Jacksonville's request for review of an appeals court's ruling affirming the admissibility of two experts' opinions about construction defects and repair recommendations, thus cementing a condominium owners' association's $9.6 million verdict (D.R. Horton Inc. - Jacksonville v. Heron's Landing Condominium Association of Jacksonville Inc., No. SC19-352, Fla. Sup., 2019 Fla. LEXIS 1935). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2014%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' JACKSON, Miss. - A Mississippi appeals court on Nov. 5 affirmed a post-trial ruling vacating a $1 million award for future lost wages to a railroad employee who was injured in a two-vehicle accident on the job. The appeals court concluded that there was insufficient evidence about his future work prospects to support the award (Arthur Young v. Illinois Central Railroad Co., No. 2018-CA-00498, Miss. App., 2019 Miss. App. LEXIS 544). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2015%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' GULFPORT, Miss. - A federal judge in Mississippi on Nov. 15 awarded summary judgment to BP Exploration & Production Inc. in a man's suit claiming that he developed pneumonia and acute respiratory failure as a result of his exposure to oil and chemical dispersants during the cleanup of the oil spill in the Gulf of Mexico that followed the explosion of the Deepwater Horizon oil rig in April 2010, finding that the man presented no reliable expert testimony to show that his exposure to the chemicals caused his injuries (Blaine McGill v. BP Exploration & Production Inc., et al., No. 18CV159-LG-RHW, S.D. Miss., 2019 U.S. Dist. LEXIS 198359). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2016%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN FRANCISCO - In a Nov. 26 order, a California federal judge granted class certification for injunctive purposes only in a lawsuit over a data breach that affected the "view as" feature on Facebook Inc.'s social network, while also declining to certify a damages class and issuing a split ruling on Facebook's motions to strike the opinions of two of the plaintiff's expert witnesses (Stephen Adkins v. Facebook, Inc., No. 3:18-cv-05982, N.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2017%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' TACOMA, Wash. - An asbestos defendant never identifies the specific expert testimony it wants a court to exclude, likely because the experts in question never offer the testimony as portrayed by the company, a woman told a federal judge in Washington on Nov. 25. In a Nov. 22 ruling, the judge granted a different defendant summary judgment while denying the plaintiff partial relief (Sherri L. Deem, et al. v. Air & Liquid Systems Corporation, et al., Nos. 17-5965, 18-5527, W.D. Wash.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-12%20Mealey%27s%20Daubert%20Rep.%2018%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' FORT WAYNE, Ind. - A federal judge in Indiana on Nov. 18 denied certification of a proposed class of residents in Andrews, Ind., who complain that their properties and the town's drinking water are contaminated as a result of the operations of two businesses in the middle of town, holding that the claims among class members lack typicality and that a class action is not the best vehicle to advance resolution of the lead plaintiffs' claims (Opal Millman, et al. v. United Technologies Corp., et al., No. 16-CV-312-HAB, N.D. Ind., 2019 U.S. Dist. LEXIS 199595). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%201%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' JACKSON, Miss. - A divided Mississippi Court of Appeals on Oct. 29 reversed a man's conviction for killing his infant daughter after finding that the trial court abused its discretion in admitting the opinion of the prosecution's medical expert that the baby's death was caused by shaken-baby syndrome (SBS) (Joshua Eric Hawk Clark v. Mississippi, No. 2017-KA-00411-COA, Miss. App., 2019 Miss. App. LEXIS 529). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%202%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' WASHINGTON, D.C. - A majority of a Federal Circuit U.S. Court of Appeals panel on Nov. 7 affirmed a trial court's reversal of compensation for parents who say their infant died from vaccinations that caused his sudden crib death, with a dissenting judge saying the ruling goes against the purpose of the National Childhood Vaccine Injury Act (Chase Boatmon, et al. v. Secretary of Health and Human Services, No. 18-2333, Fed. Cir., 2019 U.S. App. LEXIS 33295). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%203%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - A mechanical engineer is not qualified enough to opine as an expert that a defective scissors lift caused injuries to a worker who fell off the lift while moving gear off a resort stage, the 10th Circuit U.S. Court of Appeals found Oct. 28 in affirming the expert's exclusion and resulting summary judgment win for the lift maker (Timothy I. Siegel, et al. v. Blue Giant Equipment Corporation, Nos. 18-5113 and 19-5007, 10th Cir., 2019 U.S. App. LEXIS 32254). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%204%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' HATTIESBURG, Miss - While an accounting expert can testify about how to properly calculate a utility company's damages for allegedly defective electrical transformers, any mention of the actual damages is off limits since the number of damaged units he used was inaccurate, a Mississippi federal judge held Nov. 8 (Caribbean Utilities Company, Ltd. v. Howard Industries, Inc., No. 2:17-cv-00179, S.D. Miss., 2019 U.S. Dist. LEXIS 194625). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%205%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' NEW ORLEANS - The lower causation standard in a Jones Act case does not lower the standard for expert testimony admission, and having properly excluded the two experts a federal judge in Louisiana properly granted judgment, a Fifth Circuit U.S. Court of Appeals panel held Nov. 5 (Robert Schindler v. Dravo Basic Materials Co. Inc., No. 19-30126, 5th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%206%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' DENVER - The 10th Circuit U.S. Court of Appeals on Oct. 16 affirmed summary judgment for Phillips 66 Co. on disability discrimination claims by a former employee in Oklahoma who was fired after he failed a company drug test, finding no error or abuse in the trial court's expert witness rulings (Richard Turner v. Phillips 66 Company, No. 19-5030, 10th Cir., 2019 U.S. App. LEXIS 30880). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%207%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - A trial court erred when it "overlooked too many genuine factual disputes" and "improperly excluded expert testimony" supporting a certified registered nurse anesthetist (CRNA) who claims that she was fired because her employer thought she was visually disabled even though she wasn't, a Sixth Circuit U.S. Court of Appeals panel ruled Nov. 6 (Paula E. Babb v. Maryville Anesthesiologists P.C., No. 19-5148, 6th Cir., 2019 U.S. App. LEXIS 33165). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%208%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' HARRISBURG, Pa. - An expert for the victim in a police shooting case can testify about the use of force by police but cannot offer a legal conclusion on the conduct of the accused officer, a Pennsylvania federal judge ruled Oct. 29 (Erika Eberhardinger v. York, et al., No. 1:16-cv-2481, M.D. Pa., 2019 U.S. Dist. LEXIS 186982). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%209%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SEATTLE - A police expert is sufficiently qualified to opine that an officer who alleged beat and kicked an unarmed theft suspect should never have been hired as a policeman and that the county that hired him failed to conduct a proper background investigation, a Washington federal magistrate judge decided Nov. 12 (Robert John Preston v. Ryan Boyer, et al., No. 2:16-cv-1106, W.D. Wash., 2019 U.S. Dist. LEXIS 196004). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2010%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' DETROIT - Two economic damages experts for a man who sued police officers for his shooting injuries can testify at trial, though one expert cannot offer the legal opinion that the injured man is "totally disabled," a Michigan federal judge held Nov. 13 (Eduardo Jacobs v. Raymon Alam, et al., No. 15-10516, E.D. Mich., 2019 U.S. Dist. LEXIS 196226). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2011%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' CINCINNATI - A trial court properly excluded an expert witness for the estate of a woman who was allegedly injured during sinus surgery, the Sixth Circuit U.S. Court of Appeals held Oct. 30 in a medical malpractice case that ended in a jury verdict for the operating doctor (Duane M. Mathis v. R. Arturo Roa, M.D., et al., No. 18-4168, 6th Cir., 2019 U.S. App. LEXIS 32460). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2012%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' VICTORIA, Texas - An expert for debtor counterclaimants in a dispute among competing oil field industry services companies can opine on the amount of damages caused by the plaintiffs' tortious acts, though he cannot offer several opinions made in a rebuttal report because the plaintiffs did not have a chance to respond to them, a Texas federal judge ruled Nov. 8 (Greta Yvette Mobley, et al. v. Quality Lease and Rental Holdings, LLC, et al., No. 6:16-cv-0006, S.D. Texas, 2019 U.S. Dist. LEXIS 194576). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2013%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SCRANTON, Pa. - A fire expert's methods are reliable, and his testimony on the cause of a 2017 blaze that destroyed a vacation home in the Pennsylvania Poconos is relevant, a federal magistrate judge determined Oct. 25 in denying a property management company's bids to exclude the testimony and for summary judgment (State Farm & Casualty Company v. M&M Services, No. 3:18-cv-01282, M.D. Pa., 2019 U.S. Dist. LEXIS 184560). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2014%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SAN FRANCISCO - A California federal magistrate judge delivered a mixed ruling for Facebook Inc. in a Nov. 7 discovery order, sustaining the social network's objection to disclosing its source code to one of the proposed expert witnesses for a putative class suing it over scraping certain data from Android mobile devices, while finding that there was no risk of harm in disclosure to a second witness (Lawrence Olin, et al. v. Facebook Inc., No. 3:18-cv-01881, N.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2015%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' MOBILE, Ala. - In two separate rulings issued Oct. 17, an Alabama federal judge denied an auto dealership's motion to exclude expert testimony offered by the auto manufacturer after determining that the testimony is reliable and said that based on the testimony, the dealership's motion for summary judgment must be denied as the testimony creates an issue of fact on the reasonableness of the auto manufacturer's decision to establish an additional dealership near an existing dealership (GPI AL Inc. v. Nissan North America Inc., No. 17-511, S.D. Ala., 2019 U.S. Dist. LEXIS 179491, 2019 U.S. Dist. LEXIS 179494). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=23-11%20Mealey%27s%20Daubert%20Rep.%2016%20(2019)&view=full&ORIGINATION_CODE=00144 target='_blank' SEATTLE - A federal judge in Washington on Nov. 4 denied a defendant company's motion to exclude the testimony of an expert who opines about the economic benefits that a trucking and salvage company obtained as a result of violating the Clean Water Act (CWA), as well as the economic impact of a civil penalty, holding that the defendant company is challenging only the expert's methodology, which can be addressed during cross-examination (United States v. Bobby Wolford Trucking & Salvage Inc., et al., No. C18-747, W.D. Wash., 2019 U.S. Dist. LEXIS 191472).