Daubert Shorts – Recent Opinions on Motions to Exclude Expert Witness Testimony

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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.
  4. The Northeast Ohio Coalition for the Homeless et al v. Brunner – United States District Court – Southern District of Ohio – March 16th, 2016 – This case, filed in 2006, involves voter identification for same-day, provisional, and absentee ballots.  The plaintiffs allege that a law violates numerous United States laws, such as the Voting Rights Act and Section 1983.  In order to assist in proving their case, the plaintiffs hired Professor Jeffrey Timberlake (Behavioral Science Expert Witness).  The defendants filed a motion to strike the expert’s reports.  The court ruled that, because this is a bench trial, Daubert challenges are irrelevant as the court will decide the amount of weight to give each expert.  To be sure, the judge did mention that the expert witness testimony of Dr. Timberlake would have been accepted even in a jury trial.