Articles Posted in Daubert Shorts

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Summary: Biomechanics Expert Witness allowed to testify in part even though the plaintiff argued that the experts testimony should be excluded because a model of a head was different than the head of the plaintiff.

Facts:  This case (Rogers, Steven et al v. K2 Sports USA et al – United States District Court – Western District of Wisconsin – December 28th, 2018) involves an injury the plaintiff suffered while skiing.  The plaintiff allege that the helmet he was wearing, made by the defendant, was designed defectively and that the defect caused the injury.  The plaintiffs have sued for negligence, strict product liability, and breach of warranty.  The defendant denies that the helmet was defective, arguing instead that the helmet was the wrong size and that Scott had not properly fastened it, and that he was injured by direct contact with the ground.  The defendant has hired Biomechanics Expert Witness Irving Scher to provide testimony on their behalf.  The plaintiff has filed a motion to exclude this expert from testifying.

Discussion:  Scher used computer models to ascertain the fit and looseness of the helmet that the plaintiff wore.  In addition, Scher conducted a biomechanical engineering analysis so as determine the kinematics of the accident.  The plaintiff argue that both conclusions should be excluded.

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  1. In Butler v. Home Depot U S A Inc et al (United States District Court – Western District of Louisiana – April 23rd, 2018), the plaintiff was struck by a wooden gate that was bumped by a forklift while shopping at the defendant’s store.  Her lower back, neck, and right shoulder was injured and she sued for loss of past earnings and her inability in earning a living in the future.  The plaintiff hired forensic accounting expert witness Raymond Green, CPA to provide testimony.   The defendant filed a motion to exclude this expert testimony stating that Mr. Green’s report does not meet the standards of reliability set forth in Daubert.  The plaintiff states that Green’s report is reliable and that any arguments on reliability go to the weight of the evidence, not the reliability.  The court ruled that Green’s testimony is not reliable because there is no portion of his testimony that shows any reliability.  Green does not discuss any methodology that was used to reach his conclusions and does not state what documents he used to conduct his thorough review of all business records and filings.  The plaintiff also does not point to any legal authority to support her argument that any arguments discussing the reliability of this testimony should be done at trial.  The court further alleges that they would focus on methodology in this case if there were any.  Thus, the motion to exclude the expert witness testimony of Raymond Green, CPA is granted.
  2. In  McKiver et al v. Murphy-Brown, LLC (United States District Court – Eastern District of North Carolina – April 19th 2018), the defendants hired Psychology Expert Witness, Pamela Dalton, Ph.D to opine about the odors emitting from the Kinlaw farm. Dr. Dalton opined that the farm did not produce enough odors to be considered a nuisance level at the plaintiff’s properties.  The plaintiffs would like the court to exclude this opinion of Dr. Dalton because it embraces the ultimate issue and not based on the proper legal standard in North Carolina.  The plaintiffs also take issue with Dr. Dalton’s odor studies which used the Nasal Ranger and the 7:1 standard.  The court agreed with the plaintiffs has not adopted a dilution threshold to assess whether an odor is objectionable.  Also, Dr. Dalton’s data would not be helpful to the jury and would be confusing.  However, Dr. Dalton’s report about the unreliability of self-report of odor will be allowed.  Thus, the motion to exclude the expert witness testimony of Pamela Dalton, Ph.D is granted in part and denied in part.

 

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  1. SEC v. Revelation Capital Mgmt., Ltd – United States District Court – Southern District of New York – July 8th, 2016 – This case involves a short sale of securities.  The plaintiff (SEC) claims that the defendant (Revelation) violated Rule 105 of Regulation M which prohibits a person from purchasing securities after making a short sale prior to the pricing of the securities in a firm commitment offering.  Both parties hired securities expert witnesses (Guy Erb for SEC and Dennis Dumas for Revelation) to assist in proving their case and both filed motions to exclude the testimony of these witnesses.   Revelation argued that Erb was not qualified, his testimony was not reliable, and his testimony was unfairly prejudicial.  The SEC argued that Dumas’s testimony was not relevant.  The court denied Revelation’s motion and granted SEC’s motion.
  2. Epic Sys. Corp. v. Attachmate Corp – United States District Court – Western District of Wisconsin – July 8th, 2016 – This case involves the unauthorized use of software.  The plaintiff (Epic) filed suit against defendant (Attachment) for aiding in unauthorized use of certain parts of their software.  Attachment has filed a motion to exclude the testimony of Richard Bero (business valuation expert witness), stating that Bero’s testimony is irrelevant, not grounded in credible evidence, and come to impermissible legal conclusions.  The court opined that Bero’s expert testimony is admissible.
  3. Jamison et al v. Depositors Insurance Company – United States District Court – District of Nebraska – July 5th, 2016 – This is an insurance coverage dispute.  The plaintiffs (Jamisons) are seeking declaratory relief to determine their rights under an insurance policy issued by the defendant (Depositors).  Depositors has filed a motion to exclude the expert witness testimony of Steve Hudson (industrial hygienist & mold expert witness) arguing that the testimony is not relevant or reliable.  First, they claim that Hudson’s opinion that he cannot know when mold growth began would not assist the trier of fact.  Second, they state that Hudson did not disclose reliable principles or methods to back up his opinions.  The judge disagreed, stating that Depositors misunderstood Hudson’s opinions regarding the mold growth and that he can rely on personal experience and a review of the literature to form his opinions.  Thus, the court denied Depositor’s motion to exclude Hudson’s testimony.
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  1. Hamlett v. Carroll Fulmer Logistics Corp – United States District Court – Southern District of Georgia – April 6th, 2016 – This is a personal injury case involving an accident between a motorcycle and  truck.  The plaintiffs (Hamlett) sued the defendants for compensatory and punitive damages as well as attorneys fees.  Hamlett hired Robert L. Scott Jr, the officer who arrived on the scene, as an accident reconstruction expert witness.  The defendants filed a motion to exclude numerous parts of Scott’s expert witness testimony that based on conjecture or guessing.  The court granted the motion to exclude these certain pieces of evidence.
  2. Dennis v. ESS Support Services Worldwide et al – United States District Court – Eastern District of Louisiana – April 11th, 2016 – This is a negligence case in which the plaintiff (Dennis) was allegedly injured after he fell off a top bunk while on board the SEVAN LOUISIANA.  Dennis hired David E. Cole (admiralty & maritime expert witness) to provide expert witness testimony.  The defendants filed a motion to exclude Mr. Cole’s testimony on relevancy, reliability, and the forming of legal conclusions.  The court agreed with part of the motion, allowing Mr. Cole’s testimony on all issues except where he forms legal conclusions.  Thus, the motion was granted in part and denied in part.
  3. Mohammed A. Jafar, Mohammed M. Chowdhury and Abdus Sobhan v. Seraj Mohammed – Texas 14th Court of Appeals – April 12th, 2016 – This case, on appeal from the Harris County District Court, involves a dispute regarding the valuation of a business after the withdrawal of one of its partners.  The lower court denied appellants motion to exclude the expert witness testimony of the appellee.  Seraj Mohammed hired Jeffrey Jones as a business valuation expert witness.  The appellants argued that Mr. Jones’s testimony was unreliable and the lower court denied the motion.  The appeals court affirmed the lower court ruling.
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  1. InternMatch, Inc. v. Nxtbigthing, LLC – United States District Court – Northern District of California – March 28th, 2016 – In this trademark infringement case, the defendants have filed a motion to exclude the testimony of Joseph A. Greco, P.E. (electrical engineering expert witness).  Mr. Greco was called as an expert to opine that Chad Batterman (defendant) fabricated a surge.  His report stated that power surges are rare and that there was no abnormal electrical activity on the day of the alleged surge.  The defendants state that Mr. Greco’s testimony should be excluded because it is not reliable.  The court denied the motion to exclude.
  2. Oliveros v. BNSF Railway Company – United States District Court – District of Nebraska – March 29th, 2016 – In this case, filed under the Federal Employers Liability Act, the defendant has filed a motion to exclude the testimony of Alan Blackwell (railroad expert witness). Mr. Blackwell was to opine on the following: 1) vegetation and lighting, 2) crew change locations, 3) alternative crew change locations, and 4) ballast.  The defendant’s state that Mr. Brickwell’s testimony should be excluded for numerous reasons, including reliability.  The court denied the motion in part and granted it in part, the latter being that Mr. Blackwell cannot testify regarding any legal matters.
  3. American Home Assurance Company; Cargill Meat Solutions Corporation v. Greater Omaha Packing Co., Inc – United States Court of Appeals for the Eighth Circuit – April 5th, 2016 – This action on appeal concerns an outbreak of  E. coli O157:H7 in cow meat.  Cargill filed suit against Greater Omaha for breach of contract and warranties.   To help prove their case, Cargil hired Lee Harrison, M.D., Randall Singer, Ph.D, and Dr. Angie Siemens (epidemiology expert witnesses).  Drs. Harrison and Singer concluded that Greater Omaha was the source of the E. coli O157:H7 outbreak.  Greater Omaha filed a motion to exclude the testimony of these experts, stating that they ignored two case patients that would disprove their conclusions.  The district court denied the motion to exclude and the present appeals court upheld the decision.
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  1. Trask v. Olin Corp – United States District Court – Western District of Pennsylvania – March 28th, 2016 – This is a products-liability case in which a Winchester Model 94 rifle was claimed to have fired accidentally, injuring two of the Plaintiffs.  The defendants (Olin) filed a Daubert motion to exclude the expert testimony of the plaintiff’s two experts,  Michael Knox (forensic engineering expert witness) and Charles Powell (metallurgy expert witness).  The court denied the motion to exclude.
  2. Tajonera et al v. Black Elk Energy Offshore Operations – United States District Court – Eastern District of Louisiana – March 28th, 2016 – This case involves an explosion on the Black Elk Energy West Delta 32 Block Platform in the Gulf of Mexico.  The plaintiffs have filed a motion to exclude the expert testimony of Calvin Barnhill (oil & gas expert witness).  The court granted the motion to exclude.
  3. Henkel v. Wagner et al – United States District Court – Southern District of New York – March 29th, 2016 – In this case, the plaintiff (Henkel) sued the defendants (Wagner and his law firm) for legal malpractice in an underlying employment matter.  Both parties have filed Daubert motions to exclude testimony of the others expert witnesses.  Those experts are: Steven E. Hall (compensation expert witness) for the plaintiff, Dr. Josefina Tranfa-Abboud (economics expert witness) for the defendant , and Ray Nardo, Esq (labor law expert witness) for the defense.  The court denied all three of the motions.
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  1. This case – (STATE OF OHIO v. JUDITH I. HAWKEY – COURT OF APPEALS OF OHIO – THIRD APPELLATE DISTRICT – March 28th, 2016) involves the conviction of the appellant (Hawkey).  She appeals the life in prison sentence imposed on her by the Defiance County Common Pleas Court.  Hawkey was found guilty of aggravated murder of her husband, insurance fraud and child endangering.  One part of the appeal entails that the lower court erred when it allowed the state’s child abuse expert witness, (Dr. Barbara Knox) to opine that child torture was a form of child abuse. Hawkey challenged this testimony, stating that it was not accepted in the scientific community. Knox admitted that she created the definition of child torture, but it has not been accepted as a formal medical definition.  Hawkey states that because the term “child torture” is not accepted by the medical community, and not subject to peer review, Knox’s testimony surrounding that phrase should have been excluded.  The appeals court agreed and sustained the assignment of error.
  2. Johnson v. Light – United States District Court – Western District of Tennessee – March 28th, 2016 – This negligence action involves the alleged failure to provide utility service, which caused plaintiff’s decedent to die of hypothermia and heat stroke.  The defendants have filed a motion to exclude the expert witness testimony of Miguel Laboy, M.D (pathology expert witnesses), who would opine that the decedent died from probable heat stroke.  The defense stated that Dr. Laboy’s testimony will not assist the jury and is unreliable.  The court granted the motion to exclude.
  3. Johnson v. Thor Motor Coach, Inc – United States District Court – Middle District of Florida – March 28th, 2016 – The plaintiffs filed this action against defendants for breach of express warranty and violation of the Florida Lemon Law.  The plaintiff’s allege that the defendants did not repair defects on the slide out room of their recreational vehicle.  The Johnson’s hired Richard Falco (automotive expert witness) to opine whether the RV has a manufacturing defect with respect to the slide out room.  The defendant’s have filed a motion to exclude Falco’s testimony on the grounds of qualifications and unreliability.  The court denied the motion to exclude.
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  1. Stewart v. Capital Safety USA – United States District Court – Western District of Louisiana – March 18th, 2016 – In this products liability case, the plaintiffs filed suit under the e Louisiana Products Liability Act.  They allege that Defendant (Capital Safety USA) is at fault for the death of  Ty Stewart, who was working as a derrickman at Savanna Energy Services.  The defendants hired  Gregg S. Perkins, P.E. (equipment & machinery expert witness) to opine that Stewart violated Savanna’s policies and procedures.  The plaintiffs filed a motion to exclude the expert witness testimony, which was subsequently denied by the court.
  2. United States v Hill – United States Court of Appeals for the Seventh Circuit – March 21st, 2016 – In this case involving a bank robbery and money laundering, the Appellant appeals an order from the district court.  One part of his appeal is his belief that the district court erred when it allowed the expert witness testimony of  Joseph Raschke (wireless technology expert witness).  The district court opined that cell-site analysis has been universally accepted as expert witness testimony and allowed the testimony.  The appeals court affirmed the ruling.
  3. Hagan v. Jackson County – United States District Court – Southern District of Mississippi – March 21st, 2016 – This case involves a civil rights issue after the Plaintiff was arrested for possession of child pornography on his laptop.  The plaintiff hired  William T. Gaut, Ph.D as a police procedures expert witness and Defendants Thornton and Jackson County filed a motion to exclude this testimony.  The judge granted the motion.
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  1. Rish v. Simao – Nevada Supreme Court – March 17th, 2016 – This case involves a “low-impact” accident between two automobiles.  After the accident, Simao brought suit against Rish for damages to cover the cost of injuries.  At the district court level,  Simao filed a motion to exclude any testimony by anyone (including  Dr. David Fish, Rish’s orthopedic expert witness) stating that the crash was “low-impact”, citing a previous case in the Nevada Supreme Court (Hallmark v. Eldridge).  The district court agreed with Simeo and, subsequently, opined in his favor.  Rish appealed the case to the Supreme Court, which disagreed with the lower court, reversed the decision, and remanded the case for a new trial.
  2. Gibson v. Smithkline Beecham Corp. – United States District Court – Southern District of Mississippi – March 17th, 2016 – This is a personal injury case involving the drug Paxil.  The plaintiff claims that the defendant promoted the use of the drug for women who were pregnant and hired  Dr. Aaron M. Wolfson as a vocational evaluation & rehabilitation expert witness to help prove her case.   The defendant sought to exclude the testimony, stating that it was incomplete, speculative, and based on insufficient evidence.  In addition, the plaintiff argued that the testimony would not assist the trier of fact.  The court granted the motion to exclude the testimony.
  3. Gross v. Balt. Aircoil Co – United States District Court – Southern District of Mississippi – March 17th, 2016 – This is a personal injury case in which a couple allegedly contracted Legionnaire’s disease while staying at a hotel.  They argue that this was caused by a defective water-cooling tower at the hotel and filed sued against numerous companies related to the tower.  In order to prove their case, they hired  Robert Cunningham, a water/sewage treatment engineering expert witness.  The defendants moved to exclude a portion of Cunningham’s testimony, specifically his opinion that a representative of NCH Corporation (which provided water treatment services to the tower at the hotel) acted reasonably when he recommended one water treatment chemical for the tower.  The court denied the motion to exclude.
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  1. Smart v. BNSF Railway Co. – Court of Appeals of the State of Kansas – March 4th, 2016 – This case involves a work-related injury filed under the Federal Employers’ Liability Act.  The Appellee (smart) appeals an order from the district court which granted summary judgment for the Appellant (BNSF).  The court had excluded the various experts that were called by the Smart in order to prove breach of duty and causation.  Specifically, the district court excluded the testimony of Dr. Tyler Kress (ergonomics expert witness) stating that it would not be helpful to the trier of fact.  The appeals court agreed and affirmed the opinion.
  2. Beede v. Stiefel Labs., Inc. – United States District Court – Northern District of New York – March 7th, 2016 – The Plaintiffs in this case sued defendants for, among other counts, securities fraud.  The defendants hired  Lance T. Studdard and Chester Gougis (financial planning expert witnesses) to provide expert witness testimony on their behalf and the Plaintiffs filed a motion to exclude their opinions.  The motion was denied in part and granted in part.
  3. R.C. v. State – District Court of Appeal of Florida – Second District – March 11th, 2016 – This case involves the appeal of a disposition of probation upon a juvenile (R.C.).   The juvenile was found guilty of possession of marijuana and placed on probation.  R.C. subsequently appealed the disposition, stating that the district court erred when it allowed a law enforcement officer’s police procedures expert witness testimony which identified cannabis on the appellant.  R.C. stated that this testimony does not adhere to the new Daubert standard for the admissibility of expert witness testimony, arguing that the opinion was “pure opinion” and that it was not based on scientifically supported data and methodology.  The appeals court stated that although the state of Florida has incorporated the more rigorous standard for expert witness testimony, the courts have already settled on the issue of what type of expertise is needed to detect cannabis on an individual.
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