In this medical malpractice action, the plaintiff sued her doctor after having a deleterious reaction to a procedure performed by the SmartLipo laser. The plaintiffs hired an expert to opine on causation and accepted medical practices. The defendant filed motions to exclude the testimony and it was partially granted.
Dermatologist Expert Witness Testimony Allowed in Medical Malpractice Case
Plaintiff sued numerous defendants for medical malpractice in their treatment of her medical issues. Plaintiff hired experts to testify and they were subsequently challenged. The court denied the motion to exclude.
Daubert Shorts – Recent Opinions on Motions to Exclude Expert Witness Testimony
- ALBERT E. GUCKER Plaintiff, v. UNITED STATES STEEL CORPORATION – United States District Court – Western District of Pennsylvania – November 23rd 2015 – This is an employment discrimination case for violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Pennsylvania Human Relations Act. The defendant filed a motion to exclude the testimony of Donal F. Kirwan, a human resources expert witness. The court denied the motion.
- Gill v. State Farm Lloyds – United States District Court – Eastern District of Texas – November 23rd, 2015 – This case involves an insurance coverage dispute over damage to a residence after a wind and hail storm. The plaintiff hired Steven Richardson, a construction expert witness and the defendant challenged based on qualification and reliability. The motion was denied by the court.
- State of Minnesota v. Jason DeWayne Kirk – State of Minnesota Court of Appeals – November 23rd, 2015 – The defendant in this case appeals a conviction of first-degree criminal sexual conduct. He states that the trial court improperly excluded the testimony of his sanity/trial competency expert witness Dr. Deborah Davis, who was called to testify on false confessions. The appeals court affirms the opinion of the lower court.
Healthcare Policy Update by HIPAA Expert Michael Arrigo
HIPAA Expert Witness Michael Arrigo provides the following Healthcare Policy Update: CMS Suspends Payment on Certain ICD-10 ClaimsCMS Systems Not Ready for All NCDs and LCDsWe may be seeing one of the first latent indicators of the financial impact of ICD-10 with today’s announcement. CMS stated in a November 20th 2015 email that its systems are being updated to accommodate ICD-10 NCDs and LCDs. This also resulted in “temporary” suspensions of payments for LCDs. CMS states, “Claims affected by these edits were temporarily suspended.”
Daubert Shorts – Recent Opinions on Motions to Exclude Expert Witness Testimony
- Bickham v. Coca Cola Refreshments USA, Inc. – United States District Court – Southern District of New York – November 18th, 2015 – This case involves a negligence claim against Coca Cola related to an object allegedly swallowed during the ingestion of a soft drink. The plaintiff hired Darrel Suderman, Ph.D., a food expert witness. The defendant filed a motion to exclude this testimony and the court granted the motion.
- Aide Sepulveda Torres v. Carnival Corporation – United States Court of Appeals for the Eleventh Circuit – November 20th, 2015 – This is an alleged negligence action stemming from a fall on a cruise ship. The plaintiff sued the defendant for negligence in Florida Southern District Court and hired Kevin Rider, a human-factors engineering expert witness. The defense filed a motion to exclude Mr. Rider’s testimony, which was granted, along with summart judgment in favor of the defendant. The plaintiff appealed to this court and the appeals court affirmed the lower court opinion.
- Vaughn v. Safeway, Inc. – United States District Court – District of Colorado – November 20th, 2015 – This is an employment discrimination case. The plaintiff has sued his employer stating that they have discriminated against him in violation of the American with Disabilities Act (ADA). In order to assist in their case, the plaintiff has hired Rita Laitres a human resources expert witness, which was subsequently challenged by the defendant. They state that her opinion is not reliable, she is not qualified, and her testimony will not assist the trier of fact. The court denied the motion to exclude.
Anesthesiology Expert Witness Testimony Allowed in Medical Malpractice Case
The defendant challenged the standard of care expert witness testimony of anesthesiologist on numerous grounds. The court denied the motion.
Daubert Shorts – Recent Opinions on Motions to Exclude Expert Witness Testimony
- Bruska v. Bunting Bearings – United States District Court – District of Minnesota – November 17th, 2015 – In this products liability case involving automobile brakes, the defendants’ challenge the expert witness testimony of James Brusso, a metallurgy expert witnesses. They argue that his testimony is unreliable, over speculative and not based on reliable data. The court disagreed and denied the motion.
- Nester et al v. Textron, Inc. et al – United States District Court – Western District of Texas – November 17th, 2015 – This is a personal injury/products liability case involving a Workhorse cart. The plaintiffs claim that the vehicle malfunctioned and caused injury to Ms. Nester. Expert witnesses were called by both parties. The defendants have moved to exclude thetestimony of Dr. William Vigilante (Human Factors Engineering Expert Witness), Herbert Newbold (Mechanical Engineering Expert Witness), and Dr. Lara McKenzie (personal injury expert witness). Plaintiffs have moved to exclude the evidence of Dr. David Bizzak (Mechanical Engineering Expert Witness). The court opined as follows: Denied in part and granted in part the motion to exclude the testimonies of Dr. Lara McKenzie, Herbert Newbold, and Dr. David Bizzak. The court denied in full the motion to exclude the testimony of Dr. William Vigilante.
- Scottsdale Ins. Co. v. Deere & Co – United States District Court – District of Kansas – November 16th, 2015 – This case involves a combine that caught fire while harvesting wheat. Scottsdale Insurance Company, the subrogee for the owners of the combine filed a lawsuit against John Deere, the maker of the combine. Scottsdale filed a motion to exclude the expert witness testimony of Michael Senneff and Josh Oltrogge, both fire expert witnesses. The court denied in part and granted the motion in part.
Experts in Idaho Title Insurance Litigation Challenged
In this title insurance dispute involving the construction of a ski resort in Idaho, the plaintiffs challenged the expert witness testimony of two experts. The court granted one motion to exclude in part and denied the other in full.
Daubert Shorts – Recent Opinions on Motions to Exclude Expert Witness Testimony
- Brooks, et al. v. Ripley, Union, Lewis, Huntington School District, et al. – United States District Court – Southern District of Ohio – November 10th, 2015 – In this alleged racial discrimination case at a school, the defendants’ filed a motion to exclude the expert witness testimony of Dr. Edward Dragan, an education & schools expert witness based on unreliability and relevancy. The court denied the motion to exclude on all counts except that Dr. Dragan could not opine that the defendants were “deliberately indifferent” or “severely indifferent” to plaintiff’s racial harassment.
- Roberts v. General Motors LLC – United States District Court – Eastern District of Missouri – November 10th, 2015 – This is a motor vehicle design defect case. Both parties have hired expert witnesses and both have filed motions to exclude the testimony of those witnesses. The defendant, General Motors, has filed a motion to exclude the testimony of Larry Sicher (mechanical engineering expert witness) and Joseph Burton, M.D (biomechanics expert witness). The plaintiff has filed a motion to exclude the testimony of Jeya Padmanaban (statistics expert witness). The court denied the motion to exclude the expert witness testimony of Mr. Sicher and Dr. Burton and granted the motion to exclude the expert witness testimony of Ms. Padmanaban.
- Alsip v. Wal-Mart Stores East, LP et al – United Sates District Court – Southern District of Alabama – November 12th, 2015 – This case involves a slip & fall out side of a Walmart. The plaintiff hired Russell Kendzior (slip, trip & fall expert witness) to opine on the traction of the surface. The defendant filed a motion to exclude this testimony based on reliability and relevancy. The court granted the motion to exclude.
Court Partially Allows Forensic Accountant Testimony in Patent Case
The defendant hired an accountant to provide expert witness testimony on damages in this patent infringement case. The plaintiff filed a motion to exclude the testimony.