Can a Radiologist Provide Expert Opinion on a Shoulder Injury?

Radiologist Expert Witnesses

Plaintiff was in New York City when his friend had a medical emergency. After his friend was placed in an ambulance and the doors were closed, Plaintiff said he approached the ambulance to ask the police officers if he could retrieve his friend’s belongings or ride to the hospital with him. Plaintiff alleged that after making this request, “without any warning or justification,” The officers “forcefully … Continued


Can a Party Reimburse Expert Witness Fees for Deposing its Own Expert?

Expert Witness Fees

Plaintiff was injured while working for Defendant Railroad Company. He sued under the Federal Employers’ Liability Act (FELA), alleging that the Railroad negligently failed to provide reasonably safe working conditions by failing to provide appropriate equipment for the job he was doing when he was hurt.  A jury awarded  him $525,000 in damages. The Railroad … Continued


Why Was a Sleep Deprivation Expert Used in a Murder Trial?

Sleep Deprivation Expert Witnesses

The Iowa attorneys representing a man accused of murder are requesting the court to allow the testimony of a sleep deprivation expert during the trial.  Prosecutors trying the case against the man who allegedly killed Mollie Tibbetts filed a motion in district court stating that the State didn’t oppose the request for a sleep deprivation expert witness.  Twenty-five-year-old Cristhian Bahena Rivera is charged with first-degree murder in the death of Tibbetts, who disappeared July 18, 2018, from Brooklyn, … Continued


Florida Court Won’t Reconsider Expert Witness Standard

The Florida Supreme Court recently denied requests to review its controversial decision that revised standards for expert witnesses in lawsuits earlier this year.  That May 2019 case involved an $8 million personal injury verdict that was successfully appealed by the defendants. Pursuant to DeLisle v. Crane, a case that hinged on the admission of expert testimony, the Florida Supreme Court adopted chapter 2013-107, sections 1 and 2, Laws of … Continued


Was an SPCA Officer an Expert on Dog-Training Devices?

SPCA Expert Witnesses

Defendant was tried before a jury and found guilty of second-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute. Part of his appeal concerned the testimony of an SPCA law enforcement officer or humane law enforcement officers (HLEO) who dealt with Defendant’s dogs.  At the suppression hearing, a detective testified that he removed Defendant from … Continued


Can a City Attorney Be an Expert in an Excise Tax Dispute?

Surety Expert Witnesses

A Johnson County, Kansas jury found that a developer breached an indemnity agreement with Surety Company. The indemnity agreement was required to obtain a performance bond from Surety to ensure the payment of excise tax to the City for the development of a subdivision.   On appeal, Developer contended that the district court erred in allowing the City Attorney to give her opinion as to legal matters when … Continued


What Can a Criminal Procedure Expert Cover in His Testimony?

Criminal Procedure Expert Witnesses

A man was shot and killed when a U.S. Marshal attempted to arrest him at a house in Detroit in 2015. The man’s estate and his relatives filed this action, asserting multiple claims against several Defendants. In the end, there was only one remaining claim in the case— the Estate’s excessive force claim against the federal agent.   The Estate wanted to have its criminal procedure expert testify as an expert witness at … Continued


Can a Nursing Home Admin Qualify as a Nursing Home Expert?

Nursing Home Expert Witnesses

In Virginia, a nursing assistant molested and raped an 85-year-old resident at a nursing home. The administrator of the resident’s estate brought suit the nursing assistant and the nursing home, and the jury returned a verdict against both defendants.   On appeal, the nursing home argued, inter alia, that the trial court made erroneous evidentiary rulings on the admissibility of expert testimony.   The trial court excluded testimony from … Continued


Was a CPA an Expert or a Lay Witness in a Lawsuit?

CPA Expert Witnesses

In a recent case concerning a hospital’s business income loss, a plaintiff insurance company sought leave to disclose a CPA as a witness to present evidence under Federal Rules of Evidence 702, 703, or 705, and at the same time to allow disclosure of his report. Defendant Hospital, Plaintiff’s insured, opposed the motion.   Plaintiff was trying to recover indemnity payments it made to the Hospital on the theory that Defendant was responsible for … Continued


Can a Party “Claw Back” Privileged Emails?

Claw Back

An Oklahoma plaintiff recently asked a federal court to preclude a defendant from “clawing back” privileged documents accidentally revealed to an expert pursuant to Federal Rule of Civil Procedure 26(b)(5)(B).  In March of 2017, Plaintiff discovered twelve stones in fruit pies made with black raspberries sold to it by Defendant. Plaintiff notified Defendant, which cooperated with Plaintiff in investigating the issue. Ultimately, Defendant admitted that it didn’t have the necessary insurance coverage. As a result, Plaintiff filed suit asserting … Continued


Can a Court Exclude a Rebuttal Expert for Late Disclosure?

Rebuttal Expert Witnesses

A plaintiff appealed a Washington State superior court’s order of on summary judgment dismissing his claims for waste, timber trespass, equitable indemnity, and contribution. He also appealed the superior court’s exclusion of his rebuttal expert’s testimony.  Plaintiff owned a lot to the east of and adjacent to Defendant’s property in Lewis County. The land near the property line between the two properties was forested. There was a 60-foot … Continued


How Much Grace Will a Judge Give to Locate an Expert?

Expert Deadline

A defendant was charged with shoplifting at the Army and Air Force Exchange Service store on Buckley Air Force Base in Aurora, Colorado (the Exchange). At a jury trial before a magistrate judge, she was convicted of theft of government property. The magistrate sentenced her to concurrent sentences on each count of 30-days’ imprisonment and one year of supervised release. The … Continued


Can an Attorney Be an Insurance Expert?

Insurance Expert Witnesses

In a dispute over an insurance claim, a defendant argued that the plaintiff’s expert wasn’t qualified to offer testimony.  In 2014, Plaintiff, a Nevada LLC, contracted for the construction of a residence in Paradise Valley, Arizona. In 2016, the homeowners noticed a leak in the garage of the home. This led to the discovery of … Continued


Can Methodology Be Used in a Personal Injury Case?

Methodology

Expert methodology was at the center of the battle of the experts in a personal injury case where the plaintiff fell from her wheelchair while disembarking Defendant Cruise Line‘s ship at a ramp within a leading into the terminal building in Miami.  Plaintiff proffered a mechanical engineer expert on the Cruise Line‘s liability for her fall. This expert was a long-time “forensic accident investigator.” He “inspected, measured, and photographed the scene of the incident,” reviewed materials from the … Continued


Can an Experts Affidavit Conform with Rule 56’s “Personal Knowledge” Requirement?

Water Treatment Expert Witnesses

A non-profit environmental organization, on behalf of its members, brought an action against Defendant water treatment plant under the citizen enforcement suit provision of the Clean Water Act (“CWA”), 33 U.S.C. § 1365.   Plaintiff sought declaratory and injunctive relief, the assessment of civil penalties, as well as costs and fees for alleged violations of CWA. Plaintiff … Continued


Is an Expert Required to Prove Causation in Government Immunity Action?

Causation Expert Witnesses

The plaintiff sought review of a court of appeals decision affirming the circuit court’s grant of summary judgment dismissing his claims against the Village for negligence and private nuisance. He sued the Village after wastewater backed up into his basement.  Plaintiff claimed that the court of appeals erred in determining that the Village was immune from suit for negligence pursuant to Wis. Stat. … Continued


How are Expert Fees Paid in a § 998 Offer in California?

California Code of Civil Procedure Expert Witnesses

A law firm brought suit against a client to recover unpaid legal fees and costs. The client eventually served the law firm with an offer to compromise pursuant to California Code of Civil Procedure § 998. The Client offered a waiver of its recovery of costs in exchange for the law firm’s dismissal of all claims against the client. Law Firm didn’t accept the offer, but more than a year later it dismissed its complaint against Client without prejudice. Because Law Firm didn’t accept the § 998 … Continued


Can a Court Limit a Neuropsychologist’s Examination of the Plaintiff to Just Two Hours?

Neuropsychologist Expert Witnesses

Last summer, the Texas Court of Appeals heard the appeal of a Jones Act case in which injured employee sought damages for physical and psychological injuries incurred while he was employed with a fleet of inland tank barges and towing vessels. Although the injured employee‘s neuropsychologist performed a two-day examination that included a battery of tests, the trial court denied the employer’s request for its neuropsychologist … Continued


Will a Weather Expert Persuade the Court in a Winter Slip & Fall Case?

Slip and Fall Expert Witnesses

Plaintiff appealed from the trial court’s grant of summary judgment for his landlord, and dismissal with prejudice of his complaint alleging negligence in failing to clear ice on a sidewalk on which Plaintiff slipped and fell at the apartment complex.   Judges Francis J. Vernoia and Scott J. Moynihan wrote in their per curiam opinion that Plaintiff alleged that he slipped and fell on an icy walkway in the apartment complex on January 18, 2015 at approximately 1:00 p.m. and … Continued


Battle of Voting Experts in Gerrymandering Trial

Voting Expert Witnesses

The League of Women Voters of Michigan (“League”), its members, and several Democratic voters brought suit against the Michigan Secretary of State, alleging that the state’s current legislative apportionment plan (the “Enacted Plan”), violated the Plaintiffs’ Fourteenth Amendment equal protection rights and First Amendment free speech by deliberately discriminating against Democratic voters.  Plaintiffs initially sought … Continued


Can a Trade Secret Damages Expert’s Testimony be Denied?

Trade Secret Expert Witnesses

An expert’s testimony was in dispute in a case concerning a logistics company that specialized in the export of forest products. It operated from the Inland Port of Virginia (VIP). Leading up to its creation, Plaintiff‘s founders conducted research about transportation inefficiencies in the forest products market. Specifically, they found that the industry’s reliance on … Continued


Can a Plaintiff Recover Expert Fees if She Didn’t Prevail on All of Her Claims?

Disability Expert Witnesses

After a three-day trial, a jury determined that in terminating Plaintiff’s employment, the defendant employer discriminated against her because of a disability. Further, Defendant interfered with her right to take family medical leave.   The jury declined to award Plaintiff damages on the discrimination claim, but awarded her $15,000 in back pay on her family medical … Continued


Can a “Hybrid” Liability Expert Testify in His Law Firm’s Own Malpractice Case?

Hybrid Liability Expert Witness

Last fall, in a lawsuit concerning a land-sale transaction, Defendants disclosed two witnesses whom they claimed would provide “hybrid” expert testimony. The defense witness at issue was the founder and managing partner of a law firm (“Partner”). Plaintiff sought to exclude him as a “Hybrid” liability expert. Plaintiff argued that he wasn’t a true “hybrid” … Continued


Is a Nuclear Engineer Qualified to Opine on Materials Engineering in a Helicopter Crash Case?

Nuclear Engineer Expert Witnesses

A helicopter manufacturer appealed a jury verdict in a products-liability action awarding the plaintiffs $21M in damages.   The case stems from a 2013 air ambulance crash in Kentucky that claimed the lives of a three-person flight crew, including the pilot, the flight nurse, and the flight medic. The helicopter sustained a catastrophic series of events … Continued


Does a Client Who Testifies as an Expert Witness in His Own Case Waive Attorney-Client Privilege as to His Expert Testimony?

Attorney-Client Privilege

The Texas Supreme Court recently heard a mandamus petition concerning expert testimony and attorney-client privilege. The City purchased a commercial windstorm policy from the client insurance company. In the underlying litigation, the City alleged that the client hadn’t paid all it owed under the policy for property damage caused by Hurricane Ike. The dispute here … Continued


Can a Construction Cost Expert Testify to Facts He Observed While Working?

Construction Cost Expert Witness

A judge in the Southern District of Florida was asked to hear a plaintiff’s motion in limine to exclude the opinion testimony of Defendant’s construction costs expert in a breach of contract case. This case involved work Plaintiff performed at an apartment complex under two subcontracts with Defendant (“Projects”). Defendant entered into the contracts with Plaintiff … Continued


Can an Environmental Expert Testify on TCLP in a Sewage Discharge Case?

Environmental Expert Witnesses

A property owner appealed the district court’s summary judgments in favor of defendants dismissing its claims that arose from an alleged discharge of sewage contamination. A pond on Plaintiff’s property received runoff from a drainage ditch located on Defendants’ adjacent apartments in Baton Rouge, Louisiana. Plaintiff saw that the pond was bright green and cloudy, … Continued


Can an Arborist Expert Opine on Soil Compounds?

Arborist Expert Witnesses

Defendants appealed the trial court’s decision for Plaintiffs awarding them damages after Defendant destroyed 31 trees on Plaintiff’s property. Defendant argued that the maintenance of a lime pile uphill from Plaintiff’s property line and trees wasn’t the direct cause of the destruction of the trees and that the trial court abused its discretion by admitting … Continued


On What Issues is an Urogynecologist Allowed to Testify in Surgical Mesh Litigation?

Urogynecology Expert Witnesses

United States District Judge Joseph R. Goodwin was asked to decide Plaintiff’s Motion to Exclude or Otherwise Limit the Opinions and Testimony of the Defense’s Expert in Multidistrict Litigation concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). In the seven MDLs, there are more than … Continued


Are Sanctions Appropriate When a Party Fails to Disclose an Expert?

Washington Expert Witnesses

A U.S. Magistrate recently denied Plaintiff’s motion to declare documents admissible or re-open discovery for a limited purpose and granted in part Plaintiff’s motion for redesignation of documents and to compel production of documents. Plaintiff objected. In April 2016, Defendants provided their initial disclosures to Plaintiff concerning the computation of damages but had done nothing … Continued


Can a Court Consider a City Engineering Expert’s Formula for the Cost of a Public Improvement When It’s Not Disclosed Pre-Trial?

Iowa Expert Witnesses

The Iowa Court of Appeals heard a case on a city’s special assessment of certain property owners for the costs of road and storm sewer improvements made in the city’s industrial-business district. The City specially assessed the property owners abutting the roadway at a rate of $55 per linear foot of property running along the … Continued


Can an Expert Contradict Himself When Testifying?

New York Expert Witnesses

During a prolonged surgery, a plaintiff suffered an injury that left him with nerve damage and limited use of his right hand. He files suit against the surgeon, the anesthesiologist, the surgical nurse, and the surgeon’s practice for medical malpractice. Plaintiff underwent a surgical procedure known as a robotic‑assisted laparoscopic prostatectomy (“RALP”) performed by Dr. … Continued


Jury Instruction on Testimony Explained by WI Court

contract dispute expert

The Wisconsin Court of Appeals recently heard a contract dispute involving a sales representative and two manufacturers, in which the appellant sales rep contended that the Appellees owed it approximately $1.2 million in commissions. Appellant claimed that it fulfilled its contractual obligation to assist Appellees in securing a deal to sell an architectural feature for … Continued


Could a Hoyer Lift Prevent Accidents?

Hoyer Lift Expert

A health care worker appealed summary judgment for Defendants Mother and Father in her action against them for damages for a permanent and disabling back injury she allegedly sustained while caring for their disabled teenage daughter (CZ) in their home. Plaintiff worked in Defendants’ home for seven weeks as a pediatric home health nurse for … Continued


Could a Hoyer Lift Help Prevent Accidents?

A health care worker appealed summary judgment for Defendants Mother and Father in her action against them for damages for a permanent and disabling back injury she allegedly sustained while caring for their disabled teenage daughter (CZ) in their home. Plaintiff worked in Defendants’ home for seven weeks as a pediatric home health nurse for … Continued


Handwriting Expert Critical in Dispute

Handwriting Expert

A handwriting expert was a crucial witness in an action brought by the personal representative of the estate who sought to set aside a deed purportedly signed by her deceased father. The deed purported to convey property from the decedent to his son, the defendant. The decedent’s daughter, the plaintiff, claimed that the son forged … Continued


Accounting Expert in Case Against Gift Card Company

Accounting Expert

A plaintiff and the State of Delaware brought suit under the state’s False Claims and Reporting Act, alleging that the defendant gift card services company, its successor-in-interest, and several retailer parties entered into a contractual scheme designed to deprive Delaware of millions of dollars in unclaimed gift card balances to which it was lawfully entitled under … Continued


Power Line Injury Sparks Expert Dilemma

Power Line expert

A defendant, an underground power line locator company, brought a motion to exclude a plaintiff’s rebuttal expert in a negligence action where plaintiff alleged that the defendant failed to locate and mark an underground power line. Plaintiff struck the unmarked power line with a shovel and suffered injuries. Defendant argued Plaintiff’s rebuttal expert should have … Continued


Lack of Warning Label Leads to Crane Accident

Crane Accident

A crane accident in Mississippi left an operator physically and mentally incapacitated. His wife sued the crane manufacturer under Mississippi’s products liability statute. After a lengthy trial, a jury found that the manufacturer failed to warn crane operators that if the crane tips over, large weights stacked on the rear of the crane can slide … Continued


Judge Rules on Experts in Roundup Cancer Case

Admissibility Experts

Judge Vince Chhabria recently rendered a ruling on the admissibility of expert witnesses in the products liability cases against Monsanto, the makers of Roundup®, which the plaintiffs claim can cause non-Hodgkin’s lymphoma. The lawsuits allege that glyphosate, the herbicide in Roundup, can cause non-Hodgkin’s lymphoma, and that Monsanto failed to warn consumers or regulators about … Continued


Court Considers Reasonableness of Expert Fees in Workers’ Compensation Case

Expert Fees

U.S. District Judge David C. Norton recently heard a Plaintiff Insurance Company’s motion to compel Defendant to pay expert witness fees. This action arose out of an insurance coverage dispute between the insurer and its insured regarding certain alleged misrepresentations in Defendant’s application for workers’ compensation insurance. Defendant was a medium-sized construction company that specialized … Continued


Federal Judge Asked to Dismiss Copyright Infringement Case

Copyright Infringement Experts

Microsoft has asked a judge to dismiss an infringement suit targeting their Cortana digital assistant products, capitalizing on an earlier ruling that invalidated three patents at the center of the case. Microsoft’s attorneys argued that the March 31st ruling from U.S. District Judge Richard G. Andrews of the District of Delaware destroyed the case from IPA Technologies Inc., as the American … Continued


Federal Preemption Raised in Admission of Railroad Liability Expert’s Opinion on “Spillover Electricity”

Railroad with electric power

A railroad conductor appealed the order of the Philadelphia County Court of Common Pleas granting his employer, a local transportation authority’s motion for a new trial. The main point of the appeal was the admissibility of his liability expert. On the night of his injury, Plaintiff stood in the vestibule of a railroad car holding … Continued


Can an Environmental Engineer be a Non-Reporting Expert on Some Issues and a Reporting Expert on Others?

Judge gavel with Justice lawyers, Businessman in suit or lawyer working on a documents. Legal law, advice and justice concept

The Plaintiffs in a recent Mississippi federal case moved to strike the expert designation of Defendant’s witness, a Technical Environmental Engineer. In support of their motion to strike, Plaintiffs argued that he was a non-specially retained/ non-reporting expert as to all matters addressed in his designation. U.S. Magistrate Judge Jane M. Virden wrote in her … Continued


Accident Reconstruction Expert’s Opinion on Driver’s Habits at Issue in Florida Case

An overturned truck on an highway in an accident.

A former employee of the City of Tampa filed an action for unlawful retaliation in violation of the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act (“FCRA”). Plaintiff was employed as a City Solid Waste Collection Driver. At some time during his employment, he was diagnosed with a medical condition that allegedly … Continued


Military Expert’s Opinion Scrutinized in Cases Concerning Bolivian Conflict

operator stands with arms and looks forward

U.S. District Judge James I. Cohn recently heard arguments on a defendants’ motion to exclude the testimony of a plaintiffs’ military analyst with expertise in investigating and analyzing military structures in the context of violence against civilians during armed conflict. This military expert had nearly two decades of experience investigating international criminal law and human … Continued


Can an Expert be Replaced if He’s Unavailable for Trial?

Two Forensic Pathology Experts Having Meeting In Hospital Reception Area

Defendants in a recent federal California case filed an administrative motion to modify the court’s case management to let them supplement their expert disclosures by replacing Dr. A, previously disclosed as a forensic pathologist expert, with another forensic pathologist expert because he wasn’t available for trial. The plaintiffs said that they would stipulate to the replacement … Continued


Maryland Court of Appeals Explains “Disclosure” under Rule 5-703(b)

Inside Court of Appeals with a Lawyer

The Maryland Court of Appeals recently held that trial court didn’t err in admitting Petitioner’s post-accident medical treatment records under Maryland Rule 5-703. The Court concluded that “disclosed” under Maryland Rule 5-703(b) means that evidence is admissible if it satisfies four elements set forth in the rule. Such evidence may, in trial court’s discretion, be … Continued


Election Expert’s Testimony Admitted in Voting Case

Election or referendum in United States. Election expert witness holds envelope in hand above ballot. USA flags in background.

The Virginia Department of Elections brought a motion to exclude the testimony of a proposed election expert witness for the plaintiffs—three individuals and two voluntary associations affiliated with the Republican Party of Virginia. The lawsuit challenged the constitutionality of the Incumbent Protection Act, which provides certain elected officials with the power to choose the method … Continued


CPA Not an “Expert” in Financial Fraud Case

A jury convicted the Defendant in Indiana of 15 counts of wire fraud, four counts of money laundering, and one count of securities fraud for his participation in a fraudulent investment scheme. In 2009, a self-described financial advisor began creating financial investment business entities and soliciting startup capital from family and friends. He directed individuals … Continued


The Digital Pill Presents Privacy Issues

Chip on pill with medicine box.

In November, the FDA approved Abilify MyCite, a pill with a sensor that digitally monitors whether a patient has taken his or her medication. It’s a significant advance in the growing field of digital devices designed to monitor medicine-taking and to address the expensive, longstanding problem of patients failing to take their meds as prescribed. … Continued


Arizona Supreme Court Explains Application of Rule of Evidence 615 to Expert Witnesses in Med Mal Case

Rule of evidence 615 experts

Arizona Rule of Evidence 615 (“the Rule”) provides that a trial court, at a party’s request, “must order witnesses excluded so that they cannot hear other witnesses’ testimony.” That rule was called into question recently when a patient sued her doctor of chiropractic for medical malpractice. Plaintiff alleged that Defendant negligently performed a chiropractic adjustment … Continued


Pharmaceutical Industry Regulatory Expert Disqualified due to Confidential Information

Pharmaceutical industry regulatory expert witnesses

In 2014, a federal magistrate issued a preliminary injunction in a suit in which the State of New York alleged the pharmaceutical manufacturer (“Manufacturer “) attempted to effectuate a “hard switch” from a twice-daily drug that treats moderate-to-severe stages of Alzheimer’s disease to a pharmacologically identical drug only taken once a day. The State alleged … Continued


Ninth Circuit Reverses Decision to Exclude Police Practices Expert Testimony

The Ninth Circuit recently heard an appeal of a Plaintiff who alleged that his constitutional rights were violated when he was arrested while volunteering to observe an interagency government operation to herd buffalo into Yellowstone National Park. Among the issues on appeal was the district court’s exclusion of his expert witness. During the incident, Plaintiff … Continued


New Class Action Litigation Involving a Nutrition Company

Class Action Expert Witnesses

A nutrition company (Defendant) based in Los Angeles may have thought that the $200 million settlement with the government would end all the nutrition-shake company’s fraudulent business practices, but a new Miami class action claims more illegalities. The company’s settlement with the FTC last year prohibited the company from engaging in certain business practices, such … Continued


Motion to Strike Legal Expert’s Testimony on Insurance Coverage Denied

An Alabama compounding pharmacy brought an action against their general liability insurer, asserting claims of breach of insurance contract, bad faith failure to investigate, and bad faith denial of a claim. All the claims arise from Defendant’s denial of coverage, including defense and indemnification, to Plaintiff’s underlying lawsuit. In that action, Plaintiff maintained that the issue … Continued


Credit Card Industry Expert’s Qualifications Questioned by Federal Judge in Michigan

Recently, a motion to exclude an expert witness was heard by a judge in the Eastern District of Michigan in a dispute over credit reporting and credit card charge-off procedures. Case Background Plaintiff alleged violations of the Fair Credit Reporting Act and that Defendant Credit Card Company (“Creditor”) reported his delinquent credit card account to … Continued


Expert Testimony at the Center of Insurance Sales Dispute

In an action over the marketing and sales of insurance products, a plaintiff IMO (“independent marketing organization”) sought to strike the defendant insurance company’s expert witness. In their motion, Plaintiffs, inter alia, asserted that the insurance expert didn’t set out verifiable standards for his analysis, identify who created these standards, or explain their relevance. Defendant … Continued


In-House Expert Witness Held to Rule 26 Reporting Requirements in Clean Energy Litigation

A clean tech startup entered into a license agreement with Plaintiff and Corporation. The agreement gave the startup license to manufacture products and use the intellectual property related to Plaintiff’s energy catalyzer technology without the harmful byproduct associated with nuclear reaction processes. Plaintiff accused Defendant of breaching a licensing contract for his technology. As part … Continued


Sixth Circuit Affirms Exclusion of Human-Factors Expert in Products Liability Case

A second-hand carbon fiber archery arrow made by Manufacturer broke and impaled the webbing of Plaintiff’s hand after he drew and released the arrow from his bow. He sued for strict and negligent product liability, breach of warranty, and a violation of Kentucky’s Consumer Protection Act. He contended Manufacturer provided an inadequate warning of the … Continued


New York Appellate Court Explains Medical Expert Opinion in Workers Comp Case

In November 2012, the claimant, an investigator with the City District Attorney’s Office, suffered an ischemic stroke at his residence. He filed a claim for workers’ compensation benefits. After a hearing, a workers’ compensation law judge found that his stroke was causally related to his employment and awarded benefits. However, upon review, the Worker’s Compensation … Continued


Admissibility of Hurricane Experts Considered in Louisiana Federal Court

Plaintiffs in an action for damage to an oil company’s flowlines and pipelines from a hurricane sought to prevent the introduction of testimony from three experts with respect to hurricanes or storms beyond the parameters discussed at a pre-trial conference. Plaintiffs sought to exclude “any testimony concerning hurricanes/storms by any witness, including, but not limited … Continued


Judge Explains Scope of Attorney-Client Privilege for Non-Reporting Expert Witnesses in Patent Case

U.S. District Judge Susan Richard Nelson in Minnesota recently determined the extent to which the attorney-client privilege protected a law firm’s preparations with an employee/expert under Rule 26(a)(2)(B). At the heart of this dispute was Plaintiff’s decision to designate a non-reporting, testifying expert witness pursuant to Rule 26(a)(2)(C). The individual was a named inventor on … Continued


Pharmacologist Expert Testimony Ruled Admissible in Drug Label Warning Litigation

A child, Z.H., was born in 2003 in Ohio with several severe birth defects allegedly caused by his mother’s use of Anti-epileptic drugs (“AEDs”). The anti-epileptic drug in question was formulated, tested, manufactured, and marketed by Defendant drug company during her pregnancy. As part of that case, the U.S. District Court for the Northern District … Continued


Expert Witness Discovery is Reopened as Law Firm Joins Main Action

Expert Witness Discovery

Purchasers of condo hotel units brought a putative class action in state court against the developers and agents of the project, asserting violation of California’s Unfair Competition Law (UCL), based on failure to disclose and intentionally concealing purchasers’ right under Interstate Land Sales Full Disclosure Act (ILSA) to rescind their purchase agreements. After removal, developers … Continued


Importance of Expert Disclosure: Bankruptcy Court Strikes Undisclosed CPA Expert Testimony

CPA Expert

United States Bankruptcy Judge Sarah A. Hall of the Western District of Oklahoma recently ruled on a Bankruptcy Trustee’s Motion to Strike the affidavit of a company’s CPA expert. The Scheduling Order timeline included a deadline to complete all disclosures required by Local Rule 7016-1(B) (requiring exchange of all known exhibits and all then known … Continued


Food Safety Case: Defendant’s Rheumatology Expert’s Stricken Testimony May Have Influenced Jury, Case is Affirmed

Rheumatology Expert

A popcorn aficionado who was diagnosed with lung disease—which he claimed was caused by his eating numerous bags of microwave popcorn on a daily basis for several years—brought suit for breach of implied warranty against manufacturers. The popcorn’s butter flavoring contained diacetyl, which Plaintiff said caused his lung disease bronchiolitis obliterans. Defendant manufacturer presented evidence … Continued


Using a Treating Physician as a Neurology Expert Witness: Beware of the Court’s Scheduling Order

Neurology Expert Witness

A cruise ship passenger brought personal injury action against the cruise ship operator arising from alleged fall against television cabinet while aboard caused by another passenger. The ship operator brought Daubert motion and moved to preclude the passenger from eliciting opinions from her neurologist. Plaintiff’s neurology expert witness gave an opinion regarding her injuries. The … Continued


When Safety Expert Witness “Disclosure” is Not “Good Enough” for Federal Judge

Accident and Safety Expert

Louisiana District Court Judge Richard L. Bourgeois, Jr. was asked to hear Defendant’s Motion to Exclude Expert Testimony in a premise liability case of the plaintiff’s safety expert witness. The judge entered a scheduling order setting the deadlines for experts, discovery, and for the filing of dispositive motions. However, the parties sought a three-month extension … Continued


Initial Expert Report Cannot Be Used As Rebuttal Report in Sexual Harassment Case

Sexual Harassment Expert

United States Magistrate Judge John V. Acosta recently heard a motion in a sexual harassment action by Defendants to strike the report of Plaintiffs’ rebuttal expert. Defendant argued that the report was an initial sexual harassment expert report that supported Plaintiffs’ case-in-chief. Plaintiffs asserted that the report was a proper rebuttal report that responds to … Continued


Crime Prevention Expert Witness Testimony Partially Admitted in School Shooting Case

Crime Prevention Expert

This case arises out of the shooting of a student on campus by an unidentified shooter at a private college. Defendants moved for summary judgment under Rule 56 against Plaintiff, as well as a motion to strike the testimony of a crime prevention expert witness. Plaintiff brought action against the college and related individuals, alleging negligence … Continued


Refrigeration Expert Opinion on Thin Ice in Seventh Circuit

Refrigerator Expert

Plaintiff was a refrigeration contractor that installed refrigeration systems. Defendants contracted with Plaintiff to supply a refrigeration control system. However, the refrigeration control system delivered to Plaintiff didn’t work properly, and Plaintiff brought suit for breach of contract. Defendants recruited a refrigeration expert witness to testify on their behalf. At trial, Plaintiff relied on circumstantial … Continued


Court of Appeals says Appellant’s Documents must be Sufficient to Challenge Defendant’s Accident and Safety Expert

Expert Admissibility

Plaintiff sued Defendant for negligence after they were involved in a car accident in Colorado. A jury found that the Defendant was not negligent, and the district court entered judgment in his favor. On appeal to the U.S. Court Of Appeals for the Tenth Circuit, Circuit Judge Carlos F. Lucero wrote in his opinion that … Continued


Motion in Limine to Exclude Business Valuation Expert Witness

Motion in Limine

The U.S. District Court for the Eastern District of Louisiana heard arguments on a Motion in Limine filed by Plaintiff Franchise Services and an opposition filed by Defendant Café, which owns a restaurant concept and authorizes locations with franchise agreements. Plaintiff and Defendant entered into the “Area Development Agreement” (“ADA”) in 2007, pursuant to which … Continued


Court’s Deadline for Expert Witness Disclosure Trumps Rule 26

Expert Witness Disclosure

In a Wisconsin lawsuit, Plaintiffs sued their former attorneys and accountants for professional malpractice, but they filed their expert witness disclosure after the discovery deadline. Plaintiffs moved for an expert witness disclosure deadline extension, but the district court denied the motion and disallowed the expert. Absent of a legal malpractice expert witness, Plaintiffs couldn’t prove their … Continued


Mental Health Expert’s Letter is Admissible Despite Wrong Dates on the Document

Mental Health Expert ForensisGroup Blog

A female school custodian employed by a community school brought claims for violation of the Americans with Disabilities Act (ADA) and retaliatory harassment and discrimination, as well as other state-law claims, alleging that she was sexually assaulted by a co-worker. The Defendant filed a motion for summary judgment, to forgo a full trial, and motion … Continued


Expert Opinion is Admissible in Employment Discrimination Case

economics-expert-testimony-admissible

The case before U.S. Magistrate Judge Cam Ferenbach in the District of Nevada involved the Equal Employment Opportunity Commission’s (EEOC) age discrimination action against the defendant employer. In support of its motion for summary judgment, Defendant cited to the testimony of its rebuttal expert. The EEOC moved to strike Defendant’s expert testimony, claiming that the … Continued


FTC Case: Expert Witness used for Restitution Award

The Federal Trade Commission (FTC) brought an action against a corporation and several of its executives—including the company’s former president—seeking injunctive and monetary equitable relief for misleading and unfair business practices surfacing from its website marketing under § 5(a) of the FTC Act. The FTC settled with two of three individual defendants, but one executive … Continued


Auto Repair Expert Witness Threatened by Defendant Car Dealership, Judge Rules It’s Not a Violation of RICO

A car repair shop owner sued a dealership, its attorney, and law firm, asserting claims for violation of RICO and § 1981. The auto repair expert claimed that dealership allegedly threatened to prevent him from testifying as an expert witness for his customers in their action against the dealership. The dealership retaliated by refusing to … Continued


Real Estate Appraisal Expert: Sales Comparison Proves Valid Despite Incorrect Zoning in Expert Report

A property owner appealed after the Department of Transportation assessed the damages at $125,000 after taking the property for automotive-related services. After a hearing, the Superior Court reassessed damages as $243,840, and the property owner appealed. The primary issue was whether the trial court erred in reevaluating the amount of damages to which Property Owner … Continued


Mining Engineer Expert Witnesses:  Do Experts Need Design Experience to Testify in a Product Liability Case?

A product-liability case stemmed from an accident where Plaintiff, a coal miner, sustained injuries to his left hand while using the Defendant’s equipment (a roof bolter). Plaintiff claimed that the injury occurred because he was holding onto the handle of the roof bolter which extended his hand beyond the roof and outside the protective operator … Continued


Psychiatrist Expert Witness Testimony Withstands Daubert Challenge in Malpractice Lawsuit

Mental Health Expert

In a recent case in Alabama, the Defendant tried to exclude the opinion of a medical expert witness by stating that the expert cannot prove causation.  The psychiatrist expert witness was able to withstand the challenge because of his qualifications, use of reliable methods, and his ability to provide sufficient evidence. The Plaintiff developed a … Continued


Is there Prejudice When A Retained Expert Witness is Called to Testify for Opposition

Swearing in of Expert Witness

This case, stemming from an auto accident involving a country’s reserve deputy, was heard on appeal to the Missouri Court of Appeals following a jury verdict against the County.  The County brought five points on appeal, one of which concerned the admission of an expert witness testimony.  The County’s retained expert witness was being called … Continued


Katharine Hepburn’s Home at the Heart of Real Estate Broker Expert Testimony in Insurance Dispute

The Appellate Court of Connecticut recently heard the appeal of a title insurance company against insured developers.  The case involves over the insurance company’s obligations under the policy to compensate the developers for the borough’s claimed ownership of 30-foot wide discontinued road. Defendants purchased the subject property for $6 million, which had been the beachfront … Continued


Court Strikes Materials Engineering Expert Testimony in Residential Fire Case

A fire as a result of lightning destroyed a home in Missouri. The homeowners’ insurer reimbursed them for their loss, received an assignment of their rights, and filed a diversity products liability action against a manufacturer of corrugated stainless steel tubing (“CSST”) that brought propane gas from an underground storage tank into the home.  Both … Continued


Dairy Company Cries over Spilled Milk in not Discrediting Accounting Expert

The Plaintiff in the following case was a Canadian dealer of a Wisconsin dairy manufacturer’s equipment for 20 years. He claimed that the Manufacturer forced him to sell his dealership to a neighboring dealer at a below-market price. The jury agreed and awarded Plaintiff $471,124 in damages and Manufacturer appealed. Dealers were assigned territories with … Continued


Eleventh Circuit Says Expert Slips Up on “False Sense of Security” Theory in Slip and Fall Accident

Slip and fall cases with an allegedly dangerous or defective surface frequently involve the surface’s coefficient of friction (COF) or “the degree of slip resistance.” The higher the COF, the less slippery the surface will be. Evidence concerning a surface’s COF is typically presented by expert witnesses. The expert will opine on the appropriate COF … Continued


An Arbitrator’s Discretion Concerning Expert Witness Statements

A contract dispute between a financial advisory firm and a medical device developer was submitted to an arbitration presided over by an independent International Chamber of Commerce (“ICC”) arbitrator. A final arbitration award was issued in favor of the medical device developer. The financial advisory firm petitioned to vacate the arbitration award and the medical … Continued


Challenged Expert Testimony in Class Action Certification and the Daubert Standard

Expert testimony was at the heart of a recent appeal in the Third Circuit dealing with Rule 23(f) in an antitrust class action. At issues was whether that rule requires challenged expert testimony to be scrutinized under Daubert. The plaintiffs were purchasers of blood donation compatibility products. The defendant was one of two companies alleged to … Continued


Legal Malpractice Claim Requires Expert Witness Testimony if Negligence is Not Clear and Palpable to Most Lay Persons

Missouri law states that expert testimony is required on the duty of care owed to a client in a legal malpractice claim. The Eighth Circuit’s recent decision ruled that the legal malpractice lawsuit without an expert witness is invalid. A former client brought an action alleging that his former attorney, who was convicted numerous counts … Continued


Discovery Deadline Is Not Always the Same As Expert Disclosure Deadline: Student Sues University for Violation of ADA, but Fails to Follow Federal Rule for Expert Disclosure

A participant in a doctoral program sued his university, alleging that his termination from the program was based on his post-traumatic stress disorder (PTSD) and in violation of the Americans with Disabilities Act (ADA). One of the issues on appeal was the exclusion of the Plaintiff’s expert witnesses as they were untimely disclosed and not … Continued


Can a Non–Retained Expert Witness be Compelled to Testify at Deposition?

The above question was asked in litigation by workers who conducted restoration and removal work after the September 11, 2001 terrorist attack at the World Trade Center (WTC). The workers brought claims seeking compensation for injuries incurred by inhaling toxic fumes. The workers moved to compel deposition of expert witnesses and serve amended expert disclosures. … Continued


First Circuit Judge Says Don’t Change Expert Witness Strategies Mid-Stream in Hazardous Material Exposure Case

A Senior Circuit Judge of the United States First Circuit Court of Appeals recently heard the appeal of some current and former employees of a defense contractor who brought a suit seeking relief for beryllium-related diseases. Although Beryllium is an important substance needed for manufacturing, even modest exposure can cause Chronic Beryllium Disease (CBD).


Judge Explains Difference Between Federal Rule 26 (a)(2)(C) and Rule 26 (a)(2)(B) for Expert Reports in Pharmaceutical Product Liability Case

This lawsuit is one of over 800 product liability suits that were pending against the Defendant Pharmaceutical Company’s products. Its drug is used for the prevention of bone fractures in patients with hypercalcemia from cancers. All pending cases concerned the Defendant Company’s alleged failure to warn of the risk of disease of the jaw associated … Continued


Land Surveying Expert Witness’ Opinion Admitted into Evidence Despite Failure to Disclose During Discovery

The Missouri Court of Appeals, Eastern District affirmed a circuit court’s decision that a land surveyor expert witness’s testimony should be admitted into evidence at trial for consideration in an easement case. Appellants (dominant tenement owner) appealed from the trial court’s judgment in favor of Respondent (servient tenement owner) that the easement was valid. A … Continued


When is an Expert’s Opinion a “Net Opinion” and Inadmissible?

Under New Jersey law, the “net opinion rule” is essentially “a longstanding rule that dictates exclusion of expert testimony that contains ‘bare conclusions,’ unsupported by factual evidence.” Federal District Court in New Jersey addressed the question on “net opinion” in a premise liability case against a retail establishment. Plaintiff fell outside of Defendant’s store and … Continued


Expert Witness Allowed in Discrimination Case to Support Methodology of Hiring

District Judge in the Eastern District of Pennsylvania reviewed an expert’s qualification, reliability, and “fit” to determine if the expert witness can be admitted in a case. The judge was presented with motions to exclude the expert testimony of a human resources expert witness in an employment discrimination case. The judge’s analysis focused on the … Continued


How Does the Court Determine if an Economics Expert Witness is Qualified for a Pyramid Scheme Case?

Several factors are to be considered when a court determines the admissibility of an expert witness. The Federal Trade Commission (FTC) brought action against multi-level marketing business under the Federal Trade Commission Act alleging unfair and deceptive practices for business’s alleged operation of a pyramid scheme. Part of this appeal concerned the admissibility of an … Continued


Judge Tells Damages Expert in Patent Infringement Case to Re-Do Calculations

In a recent patent infringement case, the Plaintiff Programming Company and the Defendant Software Corporation asked the U.S. District Court Judge to rule on the parties’ motions in limine; this opinion focused on Defendant’s motions in limine to exclude the questionable opinion of Plaintiff’s damages expert. In scrutinizing an expert’s principles and methodology, the judge … Continued


Non-Retained Expert Witness Disclosure: Is An Expert Report Required For A Treating Physician To Give A Testimony?

Rule 26(a)(2)(C) requires the disclosure of non-retained experts to state “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the expert is expected to testify.” The extent of this disclosure and the need … Continued


Banking Expert Witness Able to Withstand Motions to Exclude Expert Testimony

Earlier this year, a bank that purchased a construction loan sued the seller and its parent company for breach of contract, negligence, willful misconduct, and specific performance. The loan purchaser motioned to strike defendants’ expert’s testimony. Several issues in this case illustrate the importance of an expert witness with adequate preparation and coaching by counsel.  The … Continued