Mealey's Daubert

  • May 17, 2024

    Certification Of Blackbaud Data Breach Classes Denied; Ascertainability Not Shown

    COLUMBIA, S.C. — The named plaintiffs in a multidistrict litigation over a 2020 data breach and ransomware attack experienced by Blackbaud Inc. failed to demonstrate that their proposed classes are “administratively feasible,” a South Carolina federal judge found, denying their motion for class certification while also taking the opportunity to resolve several Daubert motions.

  • May 16, 2024

    Chicken Growers’ Class Certified In Compensation Suppression Case

    MUSKOGEE, Okla. — A federal judge in Oklahoma granted certification of a nationwide class of growers who accuse poultry processors of conspiring to suppress their compensation in violation of Section 1 of the Sherman Act and Section 202 of the Packers and Stockyards Act and denied a motion by Pilgrim’s Pride Corp. (PPC), the only defendant remaining after other companies settled the claims against them, to exclude opinions by the growers’ expert.

  • May 14, 2024

    Illinois Federal Judge Won’t Revisit Her Ruling That Causation Experts Are Out

    CHICAGO — An Illinois federal judge on May 13 denied a woman’s request that the judge reconsider her ruling that causation experts in a suit against Home Depot for injuries sustained in a store are inadmissible under Federal Rule of Evidence 702 because the experts were unaware of the woman’s “highly salient medical history prior to issuing their causation opinions.”

  • May 10, 2024

    Plaintiffs Seek Rehearing En Banc In Cancer Cluster Case, Raise Daubert Issues

    ATLANTA — Plaintiffs on May 9 filed a petition for rehearing en banc in the 11th Circuit U.S. Court of Appeals, arguing that a panel of the 11th Circuit overlooked “express misstatements of law” in the lower court’s verdict form that caused jury confusion, particularly related to the admissibility of expert opinion under the standard set in Daubert v. Merrell Dow Pharmaceuticals Inc., which resulted in a defense verdict in a cancer cluster lawsuit.

  • May 10, 2024

    Expert Who Says Theme Park Did Not Discriminate Against Deaf Man Is Inadmissible

    LOS ANGELES — The expert retained by Six Flags Theme Parks Inc. in a disability discrimination suit was barred from testifying after a federal judge in California on May 9 found that his opinions are unreliable and unhelpful under the standards set in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc.

  • May 10, 2024

    Homeowner Cannot File New Evidence Of Personal Property Damaged By Chinese Drywall

    TAMPA, Fla. — A homeowner who claims that his home was damaged by defective Chinese drywall may not present new evidence of personal property damage one month before trial because he already submitted an itemized list of such damages and discovery has closed, a Florida federal judge found in resolving two motions filed by the drywall manufacturers.

  • May 09, 2024

    No Error In Expert Testimony, 4th Circuit Says, Upholding Drug, Gun Convictions

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on May 8 affirmed a man’s conviction for drug and related gun charges after finding that there was no reversible error in the district court’s ruling that the government’s experts were qualified to testify and that the defendant’s expert was disclosed too late.

  • May 08, 2024

    Maritime Injury Expert’s Background Doesn’t Match Testimony, Judge Rules

    NEW ORLEANS — An expert retained by a man who alleges that he was injured while aboard a 225-foot offshore supply vessel cannot testify because his expertise in mechanical engineering is unrelated to the opinions he is offering in this case.

  • May 08, 2024

    New Expert Offers Same Opinions As Excluded Experts, ASD-ADHD MDL Defense Says

    NEW YORK — The opinions of an expert retained by newly named 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 “are a classic example of ‘made for litigation’ opinions that require heightened judicial scrutiny,” the defendants argue in a motion to exclude.

  • May 07, 2024

    Nebraska Federal Judge Agrees To Limit Testimony In Trade Secrets Dispute

    OMAHA, Neb. — A Nebraska federal judge rejected arguments from four former employees of an agricultural product distributor who are being sued for stealing trade secrets and confidential information when they resigned to work for a competitor that the company failed to properly disclose expert witnesses but agreed to limit their testimony.

  • May 07, 2024

    Limited Damages Renders Expert Testimony On Chinese Drywall Irrelevant, Judge Says

    TAMPA, Fla. — A woman who says her former home was damaged by defectively manufactured Chinese drywall cannot introduce evidence about the estimated cost to repair the home because the damages sought are not available under the economic loss rule, a Florida federal judge found in mostly granting the drywall manufacturer’s motion to exclude expert testimony.

  • May 06, 2024

    Nebraska Supreme Court Says Expert Properly Excluded, Upholds Murder Conviction

    LINCOLN, Neb. — The Nebraska Supreme Court ruled May 3 that a lower court did not err in excluding testimony from an expert who opined that a man convicted of second-degree murder was in a “state of peritraumatic dissociation” during the shooting and affirmed his conviction.

  • May 03, 2024

    2nd Circuit Affirms Expert Exclusion, Summary Judgment In Food Labeling Case

    NEW YORK — A district court properly excluded testimony from experts retained by a class of consumers who alleged that an “All Natural” claim on snack foods and granola bars is deceptive or misleading, the Second Circuit U.S. Court of Appeals said May 2, and because they failed to show that the company’s label would deceive a reasonable consumer, the court affirmed summary judgment and found that arguments that the court erred in decertifying the class are moot.

  • May 03, 2024

    Judge: Experts Are Unfairly Prejudicial In Suit Against Homeowners Association

    DENVER — An occupational expert and a man’s four treating physicians cannot testify in a discrimination and retaliation case filed by a double amputee against his homeowners’ association and others because even if their testimony would be admissible under Federal Rule of Evidence 702, it has the potential to be unfairly prejudicial, a Colorado federal judge ruled May 2.

  • May 03, 2024

    Judge: No Duty For Agent To Procure Policy Without Exclusions For Contractor

    DENVER — A Colorado federal judge granted a procuring insurance agent’s motion for summary judgment on claims assigned to a couple by the contractor that defectively constructed their home, finding that the couple failed to establish that the contractor had entered into a contract with the procuring insurance agent that would require it to provide an insurance policy that did not contain policy exclusions that led to denial.

  • May 03, 2024

    Personal Injury Suit Moves Forward After Judge Finds Expert Witness Admissible

    NEWARK, N.J. — A New Jersey federal judge denied a motion for summary judgment and found that an expert retained by the estate of a man who died after his lawnmower overturned and caught on fire can testify in the personal injury suit against the manufacturer of the machine.

  • May 02, 2024

    Appeals Panel Overturns $185M PCB Verdict Against Monsanto In Washington State

    SEATTLE — A divided Washington state appeals court on May 1 overturned a $185 million verdict against Monsanto for injuries from exposure to polychlorinated biphenyls (PCBs) at a Seattle area school and remanded the case to the trial court for an assessment of whether the plaintiffs’ claims are subject to the statute of repose in the Washington Product Liability Act (WPLA).

  • May 02, 2024

    Asbestos-Talc MDL Judge Affirms Ruling Allowing Refiling Of Daubert Challenges

    TRENTON, N.J. — A ruling allowing the refiling of Daubert challenges in the multidistrict litigation involving Johnson & Johnson talc doesn’t throw out a previous judge’s ruling but simply complies with the 2020 ruling’s recognition that the underlying science could change and acknowledges amendments to federal rules, a federal judge in New Jersey said in an unpublished memorandum denying reconsideration.

  • 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.