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


  1. SEC v. Revelation Capital Mgmt., Ltd – United States District Court – Southern District of New York – July 8th, 2016 – This case involves a short sale of securities.  The plaintiff (SEC) claims that the defendant (Revelation) violated Rule 105 of Regulation M which prohibits a person from purchasing securities after making a short sale prior to the pricing of the securities in a firm commitment offering.  Both parties hired securities expert witnesses (Guy Erb for SEC and Dennis Dumas for Revelation) to assist in proving their case and both filed motions to exclude the testimony of these witnesses.   Revelation argued that Erb was not qualified, his testimony was not reliable, and his testimony was unfairly prejudicial.  The SEC argued that Dumas’s testimony was not relevant.  The court denied Revelation’s motion and granted SEC’s motion.
  2. Epic Sys. Corp. v. Attachmate Corp – United States District Court – Western District of Wisconsin – July 8th, 2016 – This case involves the unauthorized use of software.  The plaintiff (Epic) filed suit against defendant (Attachment) for aiding in unauthorized use of certain parts of their software.  Attachment has filed a motion to exclude the testimony of Richard Bero (business valuation expert witness), stating that Bero’s testimony is irrelevant, not grounded in credible evidence, and come to impermissible legal conclusions.  The court opined that Bero’s expert testimony is admissible.
  3. Jamison et al v. Depositors Insurance Company – United States District Court – District of Nebraska – July 5th, 2016 – This is an insurance coverage dispute.  The plaintiffs (Jamisons) are seeking declaratory relief to determine their rights under an insurance policy issued by the defendant (Depositors).  Depositors has filed a motion to exclude the expert witness testimony of Steve Hudson (industrial hygienist & mold expert witness) arguing that the testimony is not relevant or reliable.  First, they claim that Hudson’s opinion that he cannot know when mold growth began would not assist the trier of fact.  Second, they state that Hudson did not disclose reliable principles or methods to back up his opinions.  The judge disagreed, stating that Depositors misunderstood Hudson’s opinions regarding the mold growth and that he can rely on personal experience and a review of the literature to form his opinions.  Thus, the court denied Depositor’s motion to exclude Hudson’s testimony.
  4. Hacker v. Cain et al – United States District Court – Middle District of Louisiana – July 5th, 2016 – This case involves prisoners rights and whether the defendants were at fault for not addressing plaintiff’s diminishing eyesight. The plaintiff hired Edward C. Bell (Vocational Evaluation & Rehabilitation Expert Witness) as an expert witness.  The defendants filed a motion to exclude Bell’s testimony with respect to his methodology and qualifications.  They maintain that he based his opinions on plaintiff’s complaints made to defendants, which they saw as duplicative and more prejudicial than probative.  The court disagreed, stating that an expert can rely on that type of information, which can be reflected in an interview or within medical records.  In addition, the defendants state argue that Bell cannot give testimony regarding medical diagnoses and medical conditions because he is not a medical doctor.  The court disagreed, stating that one need not have a medical degree to testify on medical conditions.