Articles Posted in Daubert

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Summary: Law & Legal Expert Witness testimony is not allowed even though the plaintiffs maintain that the expert’s opinion on the retention of FTCs was a best practice analysis.

Facts: This case (Romano et al v. John Hancock Life Insurance Company – United States District Court – Southern District of Florida – May 9th, 2022) involves a putative class action claim against John Hancock Life Insurance Company.  The plaintiffs, Eric and Todd Romano, are trustees in a contribution plan who purchased a Group Variable Annuity Contract from the defendants.  To support their claims, the plaintiff hired Law & Legal Expert Witness Bruce Pingree to provide expert witness testimony.  The defendant filed a motion to exclude this expert from testifying.

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Summary: Biomechanics Expert Witness testimony allowed in part even though the defendant argued that the tests relied on by the expert were single-impact and non multi-impact.

Facts:  This case (Riley v. Tesla, Inc – United States District Court – Southern District of Florida – May 11th, 2022) involves a fatal crash of a Tesla automobile.  The plaintiff, the estate of Barrett Riley, alleges that two months prior to an accident that killed Barrett Riley, they asked Tesla to install a speed limiter in the car, so that the vehicle could not go over 85 mph.  Tesla states that they did install the speed limiter, but later removed it after the car was taken into Tesla for servicing.  Tesla admits that it did not inform the Rileys that the speed limiter was disabled.  In order to prove their case, the Rileys hired Biomechanics Expert Witness Kelly B. Kennett to provide expert witness testimony in this case.  Tesla filed a motion to exclude Mr. Kennett’s testimony under Daubert.

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Summary: Printing & Publishing Expert Witness not allowed to testify even though the plaintiff argued that the expert was qualified to offer an opinion on fair use based on his decades of work on websites in the newspaper industry.

Facts: This case (Emmerich Newspapers, Incorporated v. Particle Media, Inc. et al – United States District Court – Southern District of Mississippi – September 20, 2022) involves a claim of copyright infringement.  The plaintiff owns local newspapers in 3 southern states.  The defendant, Particle Media runs a website called Newsbreak, which links and indexes third-party news content.  Newsbreak publishes snippets and full-text articles from online newspapers.  After numerous motions and decisions, the only issue remaining in this case is if the fair use doctrine is in use when the snippets are published.  The plaintiff has hired Printing & Publishing Expert Witness Wyatt Emmerich to provide expert testimony.  The defendant has filed a motion to exclude this expert from testifying.

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Summary: Law Enforcement Expert Witness testimony allowed despite the plaintiff’s argument that his opinions are biased and that the defendants are lying, which does not support the facts of the case.

Facts:  This case (Wood v. City of San Antonio et al – United States District Court – Western District of Texas – April 25th, 2022) involves a claim under section 1983 related to damages following the plaintiff’s arrest outside of her friend’s domicile in February 2019.  Wood filed suit against numerous defendants, including the City of San Antonio and a number of police officers who were called to the scene.  Wood alleges that the defendants violated her Fourth Amendment right against unlawful search and seizure as well as violation of her right to due process.  To assist in their case, the defendants hired Law Enforcement Expert Witness Craig Miller to provide expert witness testimony.  The plaintiff filed a motion to exclude this expert from testifying.

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Summary: Statistics Expert Witness testimony allowed despite the defendant’s argument attacking the expert’s claim rate and its release of an allegedly defective product.

Facts:  This case (Cone et al v. Sanitarios Lamosa S.A. DE C.V. et al – United States District Court – Eastern District of Texas – March 28th, 2019) involves alleged manufacturing and/or marketing defects in certain of the defendants toilet tanks.  The plaintiffs have alleged four causes of action against the defendant: 1) Strict products liability; 2) breach of implied warranty; 3) negligence; and 4) violations of the Texas Deceptive Trade Practices Act (“DTPA”).  The plaintiffs have hired Statistics Expert Witness Dr. Shawn Capser to provide testimony.  The defendant has filed a motion to exclude this expert from testifying.

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Summary: Human Factors Engineering Expert Witness not allowed to provide testimony as the defendants argued correctly that the expert is a psychologist and human factors expert and not an engineer.

Facts:  This case (GOMEZ et al v. HARBOR FREIGHT TOOLS USA INC et al – United States District Court – Middle District of Georgia – April 22nd, 2019) involves a products liability claim.  The claim involves a plastic gas container that exploded when the plaintiff poured a mixture of diesel and gasoline onto a mostly extinguished fire.  The plaintiffs have hired Human Factors Engineering Expert Witness Dr. Robert Cunitz to provide testimony.  The defendants have filed a motion to exclude this expert from testifying.

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Summary: Forensic Accounting Expert Witness testimony is not excluded even though the defendant argued that the expert made assumptions that the plaintiff would work to a specific age.

Facts:  This case (Kinney v. IBM – United States District Court – Western District of Texas – July 8th, 2022) involves a claim of age discrimination.  The plaintiffs allege that IBM’s senior executives created a scheme to replace older employees with a younger workforce and then attempted to conceal it.  The plaintiff alleges that IBM put in place rolling layoffs which included older employees and gave them negative reviews to justify terminating them.  Kinney sued under the Age Discrimination in Employment Act (“ADEA”) and other state statutes.  The plaintiff hired Forensic Accounting Expert Witness Mark Rambin to provide expert testimony.  IBM filed a motion to exclude this expert from testifying, alleging that his opinion is not based on reliable methodology, is not factually supported, and is based on incorrect assumptions.

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Summary: Oncology Expert Witness testimony granted in part even though the defendant argued that the expert does not have experience in T-32 NIH training grants

Facts:  This case (DURANDO v. THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA – United States District Court – Eastern District of Pennsylvania – July 6th, 2022) involves a claim of retaliation.  The plaintiff, Michael Durando, alleges that he was constructively discharged from his position as a Postdoctoral fellow at the University of Pennsylvania because he believed that a colleague was discriminated against by her lab supervisor due to her pregnancy and that his supervisor was misusing federal grant monies.  In support of his claim, Durando hired Oncology Expert Witness Dr. Lynn R. Hlatky to provide expert witness testimony.  The defendant has filed a motion to exclude this expert from testifying.

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Summary:  Environmental Engineering Expert Witness testimony allowed in part even though the defendants argued that the expert was not qualified to offer an opinion because he is not a licensed chemical engineer in California.

Facts:  This case (San Francisco Baykeeper v. Sunnyvale et al – United States District Court – Northern District of California – September 12, 2022) involves a claim filed by San Francisco Baykeeper against the cities of Sunnyvale and Mountain View.  The plaintiff claims that the defendants have violates provisions of the Federal Water Pollution Control Act.  The plaintiff alleges that they tested samples of bacterial from numerous storm sewer systems and the data states that the cities’ stormwater discharges and the MS4 outfalls exceed bacteria water standards.  To prove their case, the plaintiff hired Environmental Engineering Expert Witness Kevin Draganchuk to provide expert witness testimony.  The defendants filed a motion to exclude the expert witness testimony of Mr. Draganchuk.

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Summary: Roofing Expert Witness allowed to testify even though the defendant argued that the expert did not provide any reasoning which ties the data he relied on to the conclusions he made in his report with respect to roof damage.

Facts: This case (J.A. LANIER & ASSOCIATES, INC. v. ROBBINS ELECTRA MANAGEMENT, LLC – United States District Court – Eastern District of Texas – April 26th, 2022) involves claims for a breach of a Public Insurance Adjuster Contract, fraud, fraud by nondisclosure, negligent misrepresentation, and promissory estoppel.  The issue involves hail damage to roofs of buildings owned by the defendant, Robbins Electra Management.   The dispute in this case is whether the hail damage occurred on either March 23rd, 2016 or June 5th, 2018.  The plaintiff, Lanier, hired Roofing Expert Witness Gary B. Treider to provide expert testimony.  The defendant has filed a motion to exclude this expert from testifying.

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