http://www.lexisnexis.com/mealeys/news.aspx Headline Daubert Legal News from LexisNexis® en-us http://www.lexisnexis.com/mealeys/images/lexismealeyslogo.gif 130 29 http://www.lexisnexis.com/mealeys/news.aspx Copyright 2012 http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LOS ANGELES - A federal judge in California hearing class actions alleging monopolization by a nationwide concert promoter on March 23 granted the defense summary judgment in two cases previously certified, after fully examining expert testimony as is now suggested by the recent U.S. Supreme Court holding in Dukes v. Walmart (In Re Live Concert Antitrust Litigation [Lauren J. Hammer v. Clear Channel Communications Inc., et al. and Margaret A. Thompson v. Clear Channel Communications, et al.], No. 06-ML-1745-SVW [VBK], C.D. Calif.; 2012 U.S. Dist. LEXIS 47768). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WASHINGTON, D.C. - Plaintiffs in a defamation case cannot present testimony from a journalism expert and an economist because their methodologies are unreliable, a District of Columbia federal judge held March 30 in excluding their opinions (Trita Parsi, et al. v. Seid Hassan Daioleslam, No. 08-705 [JDB], D. D.C.; 2012 U.S. Dist. LEXIS 44300). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WESTMINSTER, Md. - The drug recognition expert (DRE) protocol used by police officers cannot accurately determine if a driver is impaired by drugs or by what specific drugs, and it is not generally accepted in the scientific community, so it is inadmissible, a Maryland judge held March 5 in addressing consolidated driving under the influence of drugs cases (State of Maryland v. Consolidated cases, Nos. K-10-40259, K-10-40331, K-09-39370, K-09-39636, K-10-40300, K-10-40167, K-09-39569, K-10-40686, K-10-40575, K-10-40783, K-10-40717, K-11-41045, K-11-41336, K-11-41468, K-11-41475, K-11-41490, K-11-41506, K-11-41595, K-11-41610, K-11-41627, K-11-41323, K-12-42335, K-11-42127, K-11-42203, K-11-41519, K-11-42185, K-11-42060, Md. Cir., Carroll Co.; 2012 Md. Cir. Ct. LEXIS 1). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MONTPELIER, Vt. - A trial court did not err in allowing a state chemist to testify about the effects of alcohol on the body without first holding a reliability hearing, a Vermont Supreme Court panel held March 15 (State of Vermont v. Mark P. Abair, No. 2011-089, Vt. Sup.; 2012 Vt. Unpub. LEXIS 27). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLOTTE, N.C. - A North Carolina federal judge on March 27 reduced a $10 million jury award in the wrongful death of a 17-year-old grocery store clerk who was hit in the chest with a TASER blast when he became uncontrollable at work (Tammy Lou Fontenot v. TASER International, No. 3:10-cv-125-RJC-DCK, W.D. N.C.; 2012 U.S. Dist. LEXIS 41474). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank RENO, Nev. - A plaintiffs' electrophysiologist presented sufficiently reliable testimony linking TASER shocks to the death of a doctor who was uncooperative with police because he had just had a seizure, a federal judge in Nevada held March 30 in a products liability case (Randy Rich, et al. v. TASER International, et al., No. 2:09-cv-02450-ECR-RJJ, D. Nev.; 2012 U.S. Dist. LEXIS 44584). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CAMDEN, N.J. - Summary judgment was granted March 29 to a commercial laundry accused of occupational exposure to toluene by one of the company's drivers, but negligence claims brought by the driver against a print shop survived summary judgment in the U.S. District Court for the District of New Jersey (Brian Steele, et uxor v. Aramark Corp., et al., No. 09-4340, D. N.J.; 2012 U.S. Dist. LEXIS 43429). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SPRINGFIELD, Mo. - A unanimous Second Division Missouri Court of Appeals, Southern District, panel on March 21 affirmed an award of permanent disability workers' compensation benefits and $752,000 in medical expenses reimbursement for occupational exposure to chemicals at a Joplin, Mo., refinery (Howard Moreland v. Eagle Picher Technologies, No. 31692, Mo. App., Southern Dist., 2nd Div.; 2012 Mo. App. LEXIS 396). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - The two residents of Willits, Calif., still seeking damages and medical monitoring for exposure to hexavalent chromium and trichloroethylene filed a reply brief March 13 in the Ninth Circuit U.S. Court of Appeals in their appeal of no-evidence summary judgment granted to the successor-owner of the Remco site (Jo Ann Wakeland, et al. v. PepsiAmericas, et al., No. 11-16958, 9th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - The judge overseeing the federal asbestos multidistrict litigation on April 5 adopted a report finding that while a railroad challenged the completeness and reliability of evidence an expert relied upon, it did not challenge the accuracy (Raymond L. Rosenblatt v. CSX Transportation Inc., et al., No. MDL 875, 09-92640, E.D. Pa.; 2012 U.S. Dist. LEXIS 48715). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. LOUIS - A Missouri federal judge on April 3 granted an insured's motion to exclude an expert report and testimony submitted by insurers in an asbestos coverage dispute after determining that the expert employs no specialized knowledge to reach his conclusions, and only tells the jury what result to reach with regard to the insured's alleged misrepresentations (Brauer Supply Co. 542(g) Asbestos Personal Injury Trust v. Atlanta International Insurance Co., No. 09-1640, E.D. Mo.; 2012 U.S. Dist. LEXIS 46751). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SEATTLE - A hormone replacement therapy case set for trial on June 4 settled on March 14, the same day a Washington federal judge limited the testimony of three plaintiff experts (Mary Chandler, et al. v. Greenstone Ltd., et al., No. C04-1300RSL, W.D. Wash.; 2012 U.S. Dist. LEXIS 35396). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHOENIX - An Arizona federal judge on March 30 granted partial summary judgment to Breg Inc. in a shoulder pain pump case but refused to exclude the plaintiff's expert and allowed her to proceed on her remaining causes of action (Lynn K. Staub, et al. v. Breg, Inc., No. 2:10-cv-2038, D. Ariz.; 2012 U.S. Dist. LEXIS 44507). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHOENIX - A plaintiff who claims that she developed breast cancer from long-term use of Premarin and Provera can have an expert present his own testimony about the defendants' net worth, but the expert can't suggest an amount to the jury, an Arizona federal judge ruled April 5 (Catherine Johnson v. Wyeth LLC, et al., No. 10-2690, D. Ariz.; 2010 U.S. Dist. LEXIS 48149). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CINCINNATI - The Sixth Circuit U.S. Court of Appeals on March 26 reversed summary judgment for a medical facility named as the defendant in a medical negligence action, ruling that the trial court must further determine the admissibility of testimony of the plaintiff's expert, who had previously been excluded (Ilse Bock, et al. v. University of Tennessee Medical Group Inc., No. 10-5534, 6th Cir.; 2012 U.S. App. LEXIS 6245). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - The 11th Circuit U.S. Court of Appeals on April 17 affirmed a $770,229 jury verdict for a commercial tilapia producer, finding that the trial court did not err in admitting expert testimony that the defendant's fish feed was limiting the fish's growth (Southern States Cooperative v. Melick Aquafeeds, Inc., et al., No. 11-12296, 11th Cir.; 2012 U.S. App. LEXIS 7653). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MONTGOMERY, Ala. - An aerospace engineer who relied on peer-reviewed studies and an Army crash investigation report but did not conduct any independent testing had a reliable scientific basis to conclude that barium in the control system caused a helicopter crash, a federal judge in Alabama held March 28 in a negligence case (Steven D. Ferguson v. Lear Siegler Services v. Bell Helicopter Textron, No. 1:09cv635-MHT (WO), M.D. Ala., Southern Div.; 2012 U.S. Dist. LEXIS 42342). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MONTGOMERY, Ala. - A plaintiff's engineer is not qualified to categorize a rain event that flooded its business as a 25-year event, a federal judge in Alabama held April 5 in excluding his opinion (Lewis-Smith Corp. v. Chattahoochee Bay Railroad, et al., No. 1:10-CV-786-WHA [WO], M.D. Ala., Southern Div.; 2012 U.S. Dist. LEXIS 48070). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2019%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - Expert testimony that a finger guard on an escalator was not maintained was based solely on intuition, not a reliable methodology, a federal judge in Pennsylvania held March 29 in excluding his testimony from a negligent maintenance case (Christopher and Valerie Furlan v. Schindler Elevator Corp., No. 10-6870, E.D. Pa.; 2012 U.S. Dist. LEXIS 44751). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2020%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MIAMI - An expert in training dogs can testify in a housing discrimination case in which a condominium association denied a 95-year-old woman a lease because she had an emotional support dog to help with her dementia, a federal judge in Florida held April 3 (James Falin v. Condominium Association of La Mer Estates, et al., No. 11-61903-CV-COHN; S.D. Fla.; 2012 U.S. Dist. LEXIS 46826). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-4%20Mealey%27s%20Daubert%20Rep.%2021%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - Expert testimony that a defendant cannot be excluded as the source of DNA does not have to be supported by statistical evidence, a First District California Court of Appeal panel held April 10 (People of California v. Frank Leonard Ledesma Jr., et al., No. A125441, Calif. App., 1st Dist.; 2012 Cal. App. Unpub. LEXIS 2663). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAN FRANCISCO - A trial court erroneously excluded expert testimony that a schizophrenic's fear about having to return to a county jail where he was held down and forced to wear pink underwear caused him to suffer a fatal cardiac arrhythmia three weeks later, a Ninth Circuit U.S. Court of Appeals panel held March 7 (Yvon Wagner v. County of Maricopa, et al., No. 10-15501, 9th Cir.; 2012 U.S. App. LEXIS 4721). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank AUSTIN, Texas - A psychologist was qualified to testify about how polygamy in a religious cult impacts women and children, a Third District Texas Court of Appeals panel held March 16 in affirming a man's conviction for sexual assault of his 15-year-old "wife" (Allan Eugene Keate v. State of Texas, No. 03-10-00077-CR, Texas App., 3rd Dist.; 2012 Tex. App. LEXIS 2117). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DATELINE - A trial court did not err in permitting a defense neuropsychiatrist to testify that a man's fall from a tower was only partially responsible for his brain injury, and that his prior drug and alcohol abuse was also a contributing factor, a Sixth Circuit U.S. Court of Appeals panel held Feb. 27 (Charles and Kelley Clark v. W&M Kraft, et al., Nos. 07-4272/4314, 6th Cir.; 2012 U.S. App. LEXIS 4169). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CINCINNATI - A trial court erred in excluding lost earning capacity testimony in a premises liability case filed by a campground visitor who stepped into a hole and broke her feet, a Sixth Circuit U.S. Court of Appeals panel held Feb. 29 in reversing a $10,000 damages award (Brandy Andler v. Clear Channel Broadcasting, Nos. 10-3264/3266, 6th Cir.; 2012 U.S. App. LEXIS 4070). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - A Utah federal judge did not err in allowing a breach of contract verdict to stand, the 10th Circuit Court of Appeals ruled Feb. 7, finding that the contract in question is not illegal or unenforceable under the Copyright Act (BC Technical Inc. v. Ensil International Corp., Nos. 09-4011, 4019, 10th Cir.; 2012 U.S. App. LEXIS 2294). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SALT LAKE CITY - A trial court erred in barring a defense fingerprint expert from testifying about studies that question the accuracy of print analysis and in prohibiting the defense from cross-examining the state's expert using those studies, a Utah Court of Appeals panel held March 1 in reversing a conviction for assault and burglary (State of Utah v. Robert Michael Sheehan, No. 20090913-CA, Utah App.; 2012 Utah App. LEXIS 66). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - A police officer's testimony that a murder suspect's cell phone was used in proximity to his ex-girlfriend's murder was helpful to the jury, even though the expert could not pinpoint the suspect's exact location, a First District Texas Court of Appeals panel held March 1 (James R. Thompson v. State of Texas, No. 01-10-00398-CR, Texas App., 1st Dist.; 2012 Tex. App. LEXIS 1579). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ALBUQUERQUE, N.M. - A federal marshal can testify in a drug conspiracy case that many traffickers carry a Jesus Malverde prayer card because he is revered as the patron saint of drug dealers, a federal judge in New Mexico held March 19 (United States of America v. Abraham Bobadilla-Campos, et al., No. 09-CR-3071 WJ, D. N.M.; 2012 U.S. Dist. LEXIS 36455). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - A trial court did not err in admitting evidence that a one-time-use blood-alcohol test showed a cruise ship passenger was intoxicated when she fell in an elevator and injured her shoulders, an 11th Circuit U.S. Court of Appeals panel held March 20 (Ada Mae Rutledge v. NCL Bahamas, No. 10-15554, 11th Cir.; 2012 U.S. App. LEXIS 5766). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ASHEVILLE, N.C. - A plaintiff's engineering expert can testify that puncture marks on a motorcycle tire tube were caused when the tire was replaced just an hour before the bike went out of control and killed its two riders, a federal judge in North Carolina held March 6 (Jessica Kingsley v. Brenda and Gene Lummus, Inc., et al., No. 1:11cv32, W.D. N.C.; 2012 U.S. Dist. LEXIS 29015). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank NEW YORK - A glass engineer's testing of a coffee pot was not similar to the facts alleged by a hotel guest who severed a tendon when a pot allegedly shattered, a federal judge in New York held Jan. 24 in excluding the expert and granting summary judgment to some defendants in a negligence and products liability case (Kristopher Karnauskas v. Columbia Sussex Corp., et al., No. 09-cv-7104 [GBD], S.D. N.Y.; 2012 U.S. Dist. LEXIS 8988). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHARLOTTE, N.C. - An expert on the Food and Drug Administration is not qualified to testify about defendant Novartis Pharmaceuticals' Corp.'s conduct regarding approvals and post-approval of new drug applications or the drug maker's communication to health care providers of the risks of osteonecrosis of the jaw (ONJ), a North Carolina federal judge hearing the Aredia and Zometa multidistrict litigation held March 21 (Betty Lemons v. Novartis Pharmaceuticals, No. 3:08-cv-00361, W.D. N.C.; 2012 U.S. Dist. LEXIS 38053). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - A trial court did not err in admitting defense expert testimony on the possible causes of a 7-month-old's death, a Second Division Georgia Court of Appeals panel held March 13 in affirming a defense verdict in a medical malpractice action (Ronald Perry v. Shalini Gilotra-Mallik, et al., No. A11A2099, Ga. App., 2nd Div.; 2012 Ga. App. LEXIS 278). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank CHICAGO - The personal injury claims of a truck driver alleging a respiratory injury from exposure to paint solvent fumes survived a defense motion for no-causation summary judgment in an order entered March 15 in the U.S. District Court for the Northern District of Illinois (Steven Noffsinger v. The Valspar Corp., et al., No. 09-916, N.D. Ill.; 2012 U.S. Dist. LEXIS 34865). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - A magistrate judge did not clearly err in allowing various experts' "each and every exposure" testimony or in finding that another defendant waived its right to object to improper service, the judge overseeing the federal asbestos multidistrict litigation held March 13 (In re: Asbestos Products Liability Litigation [No. VI]; Valent Rabovsky and Ann Rabovsky v. Air & Liquid Systems Corp., et al., No. MDL 875, 10-3202, E.D. Pa.; See February 2012, Page 9). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - Iraq war veterans alleging hexavalent chromium exposure while protecting the contractors hired to repair oil extraction sites in Iraq in a brief filed Feb. 16 oppose a defense motion to exclude their medical causation expert and for sanctions under Federal Rule of Civil Procedure 37(c)(1) for allegedly filing a supplemental medical expert report seven months late in the U.S. District Court for the Southern District of Texas (Mark McManaway, et al. v. KBR Inc., et al., No. 10-1044, S.D. Texas; See February 2012, Page 16). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DENVER - Plaintiffs alleging that changes to Colorado's processes for ballot initiatives and referendums violate their First and 14th Amendment rights lost some expert testimony about the impact of the new law when a federal judge excluded portions of the experts' opinions as unreliable in three orders on March 21 (Independence Institute, et al. v. Scott Gessler, No 10-cv-00609-PAB-MEH, D. Colo.; 2012 U.S. Dist. LEXIS 38025). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-3%20Mealey%27s%20Daubert%20Rep.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FRESNO, Calif. - An expert failed to consider numerous factors in determining whether a customer service manager was receiving equal pay, a federal judge in California held March 16 in excluding his testimony (Cindy LaCava v. Merced Irrigation District, et al., No. 1:10-CV-00853 LJO DLB, E.D. Calif.; 2012 U.S. Dist. LEXIS 36050). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%201%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank OKLAHOMA CITY - In an 8-1 decision, the Oklahoma Supreme Court on Jan. 31 reinstated a $2.8 million verdict in the wrongful death of country singer Toby Keith's father, finding that the plaintiffs' accident reconstruction expert testimony was properly admitted and was never objected to by the defense (Carolyn Joan Covel, et al. v. Elias and Pedro Rodriguez, et al., No. 105942, Okla. Sup.; 2012 OK 5; 2012 Okla. LEXIS 7). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%202%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MONTGOMERY, Ala. - A trial court did not err in prohibiting two defense psychiatric experts from testifying in a triple murder case that the defendant's almost daily and prolonged playing of the violent video game Grand Theft Auto caused him to revert to the scripted behavior he learned in those games, the Alabama Court of Criminal Appeals held Feb. 17 in affirming the defendant's conviction and death sentence (Devin Darnell Thompson v. State of Alabama, CR-05-0073, Ala. Crim. App.; 2012 Ala. Crim. App. LEXIS 10). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%203%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank INDIANAPOLIS - A psychologist was qualified to testify that a rear-end accident caused a brain injury, the Indiana Supreme Court held Jan. 31 in reinstating a $200,000 negligence verdict (Henry C. Bennett, et al. v. John and Jennifer Richmond, No. 20S03-1105-CV-293, Ind. Sup.; 2012 Ind. LEXIS 13). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%204%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank FRANKFORT, Ky. - A social worker was not qualified to testify in a divorce case that the wife suffered from post-traumatic stress disorder (PTSD), but admission of her testimony was harmless, a Kentucky Court of Appeals panel held Feb. 3 in affirming the family court's dissolution order (Timothy Brosnan v. Margaret Brosnan, Nos. 2010-CA-000229-MR, 2010-CA-000272-MR, 2010-CA-000849-MR, Ky. App.; 2012 Ky. App. LEXIS 23). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%205%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank AMARILLO, Texas - Evidence was sufficient to support the reliability of an infectious disease specialist's testimony that a marina store worker's exposure to human feces that backed up from a drain caused his enteroviral infection and other conditions, a Seventh District Texas Court of Appeal panel held Jan. 23 in affirming a $676,300 damages award (Scott's Marina at Lake Grapevine, et al., v. Allen Johnathan Brown, No. 07-10-00277-CV, Texas App., 7th Dist.; 2012 Tex. App. LEXIS 492). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%206%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank PHILADELPHIA - Two manufacturers lost in their attempt to preclude expert opinions that "each and every exposure" to asbestos contributes to mesothelioma from a couple's case against them on Jan. 25 when a Pennsylvania federal magistrate judge denied their motions (In re: Asbestos Products Liability Litigation [No. VI]; Valent Rabovsky and Ann Rabovsky v. Air & Liquid Systems Corp., et al., No. MDL 875, 10-3202, E.D. Pa.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%207%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ATLANTA - A Georgia woman alleging chemical burns from exposure to hair dye filed notice Jan. 20 of her appeal of a December order excluding her causation expert and the no-causation judgment against her; the 11th Circuit U.S. Court of Appeals docket was opened Jan. 23, according to the clerk of the court (Amber Nicole Wright v. Farouk Systems Inc., No. 12-10378, 11th Cir.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%208%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank COLUMBUS, Ohio - A medical technologist is qualified to testify that a phlebotomist deviated from the standard of care during an American Red Cross blood donation, a federal judge in Ohio held Jan. 30 in a negligence action (Alaine Kay, et al. v. American National Red Cross, et al., No. 2:09-cv-351, S.D. Ohio, Eastern Div.; 2012 U.S. Dist. LEXIS 10638). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%209%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LANSING, Mich. - An administrator who supervised new nurses and taught nurses but did not spend direct clinical time with patients was qualified to opine regarding the standard of care a nurse owed to a patient who fell when left alone in a hospital, a Michigan Court of Appeals panel held Jan. 31 in a 2-1 decision reversing a trial court's expert exclusion (In re Estate of Dolores M. Wright. Patricia Gay v. Select Specialty Hospital, et al., No. 301064, Mich. App.; 2012 Mich. App. LEXIS 192). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2010%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SHREVEPORT, La. - The Second Circuit Louisiana Court of Appeal on Feb. 1 overturned a directed verdict for the defendants in a medical malpractice action, ruling that the trial court erred by barring the plaintiffs' medical expert (Deborah Harper, et al. v. Claude Minor, et al., No. 46,871-CA, La. App., 2nd Cir.; 2012 La. App. LEXIS 81). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2011%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. LOUIS - The Eastern District Missouri Court of Appeals on Jan. 17 overturned a defense verdict in a slip-and-fall injury action filed by a neurosurgeon who was injured while working at a hospital, concluding that the trial court erred by excluding expert testimony on the topic of properly transporting liquids in a medical center setting (Dr. J. Alexander Marchosky v. St. Luke's Health Corp., No. ED95992, Mo. App., E.D.; 2012 Mo. App. LEXIS 35). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2012%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank SAVANNAH, Ga. - A defense biomechanics expert can testify in a slip-and-fall case against The Home Depot about how forces cause injuries, but he cannot opine about specific causation, a federal judge in Georgia held Feb. 16 (Angelena Jaquillard v. The Home Depot, No. CV 4:10-167, S.D. Ga.; 2012 U.S. Dist. LEXIS 19889). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2013%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank MINEOLA, NY - A New York justice on Jan. 18 refused to preclude testimony from two environmental consultants proffered as experts by a dry-cleaning company in a water contamination lawsuit after finding that the decision as to whether the individuals are experts should be made at trial (Hicksville Water District v. American Dry Cleaners, f/k/a American Drive-In Cleaners, et al., No. 24263/09, N.Y. Sup., Nassau Co.; 2012 N.Y. Misc. LEXIS 397, 2012 NY Slip Op 30241U). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2014%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - Iraq war contractors hired to repair oil extraction sites in Iraq filed a reply brief on Feb. 3 in the U.S. District Court for the Southern District of Texas in support of their motion for a no-causation summary judgment and for sanctions for a supplemental medical expert report they allege was filed late by veterans who allege hexavalent chromium exposure while protecting the defendants (Mark McManaway, et al v. KBR Inc., et al., No. 10-1044, S.D. Texas). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2015%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LOS ANGELES - The Second District California Court of Appeal on Jan. 23 reversed summary judgment for homeowners facing personal injury claims from an archway collapse on their property, concluding that a plaintiff's expert provided sufficient evidence that the defendants could have learned of a construction defect on their property before the accident (Darlene Trujillo v. Maria Cosio, et al., No. B232656, Calif. App., 2nd Dist.; 2012 Cal. App. Unpub. LEXIS 464). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2016%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank LOS ANGELES - A California federal judge on Jan. 26 denied a motion to certify a class of Harley-Davidson motorcycle owners who claim that a defect in the construction of their bikes has caused "severe wobbling,"finding that the plaintiffs' expert must be excluded (Steven C. Bruce, et al. v. Harley-Davidson Motor Company, Inc., No. 09-6588, C.D. Calif.). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2017%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank WASHINGTON, D.C. - Handwriting analysis is sufficiently generally accepted to be admissible, despite a government report that challenges forensic examinations, a District of Columbia Court of Appeals panel held Feb. 9 (Robert E. Pettus v. United States of America, No. 08-CF-1361, D.C. App.; 2012 D.C. App. LEXIS 22). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2018%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank DETROIT - A defendant in a conspiracy to overthrow the government successfully challenged a government expert on subcultures, a federal judge in Michigan held Jan 30 (United States of America v. David Brian Stone, et al., No. 10-20123, E.D. Mich.; 2012 U.S. Dist. LEXIS 10846). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2019%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank ST. PAUL, Minn. - Whether alcohol concentration results from a first-void urine sample correlate to blood-alcohol test results is irrelevant in a drunken driving case, the Minnesota Supreme Court held Feb. 8 in affirming a driving-while-impaired conviction (State of Minnesota v. Herman Tanksley Jr., No. A10-0392, Minn. Sup.; 2012 Minn. LEXIS 31). http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=16-2%20Mealey%27s%20Daubert%20Rep.%2020%20(2012)&view=full&ORIGINATION_CODE=00144 target=_blank HOUSTON - A police officer was not qualified to testify regarding a driver's prescription medications and their effects on him, a First District Texas Court of Appeal panel held Feb. 2 in a 2-1 decision overturning a driving-while-intoxicated conviction (Broderick Dechone Delane v. State of Texas, No. 01-10-00698-CR, Texas App., 1st Dist.; 2012 Tex. App. LEXIS 905).