Articles Posted in Daubert

Expert Witness Summary: Breast Surgery Expert Witness was allowed to testify despite his opinion was based entirely on clinical experience and not from other studies.

Discussion: In Cross v. Wyeth Pharmaceuticals, Inc., U.S. District court, Middle District of Florida, 2011 (Case 8:06-cv-429-t-23AEP) the plaintiffs in this filed a motion to exclude all expert witness and testimony that combination hormone therapy does not cause breast cancer.

Under the Federal Rule of Evidence, 702, expert witness testimony is admissible if the expert is qualified to testify about the issues she or he is called upon to opine, the methodology the expert uses to reach her or his conclusions is sufficiently reliable as mandated by Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), and the testimony is helpful to the trier of fact to understand the evidence through specialized, scientific, or technical expertise. Whichever side would like that testimony must demonstrate that the witness is qualified, that his or her opinions are based on scientific and sound methods, and such testimony will assist the judge or jury. It is not necessary to prove that the opinion is correct, only that the evidence is reliable.  The judge must made the determination as to whether or not the expert witness testimony is reliable.

Summary: Product Liability Expert Witnesses on disagree on whether an electric stove was defective and unsafe for use.

Facts: In Astacio v Birdie 141 Broadway Assoc., 2020 NY Slip Op 31074(U), Supreme Court, New York County, plaintiff lived in an apartment in New York.  In early 2014, the gas service to her building was stopped, and she could not use her gas stove.  Defendant provided residents with a two burner electric stoves.

The plaintiff acknowledged that she had used many different electric stoves, as the gas service to the building was consistently interrupted.  The plaintiff testified that she used many electric stoves during this time, as they would stop working.  Each time she was provided with a new one.  She denied ever damaging the units.

Summary: A Daubert Hearing was unnecessary for a Firearms & Ballistics Expert Witness testifying regarding a bullet comparison.

Facts: In Walters v. Kentucky (Commonwealth of Kentucky Court of Appeals), the court affirmed a judgment of the circuit court sentencing the defendant to ten years imprisonment for various criminal offenses, including home invasion

Two masked men with guns entered a residence owned by Lillian and Gary Ballman.  They demanded drugs and money. A fight ensued, and shots were fired.  The victims gave the men a safe containing drugs, money, and jewelry.

Summary: A conviction for assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury was vacated, and the case was remanded for a new trial.  The court ruled that defendant should have been allowed to have his Forensic Psychology Expert Witness  testify, which would have allowed defendant to present his insanity defense to the jury.

Facts: In U.S v. Ray (U.S. Court of Appeals for the Ninth Circuit), two defendants, Patrick Bacon and Daniel Ray, were convicted of assault with a deadly weapon.  Bacon and Ray were both jailed in Victorville Federal Prison in California when they coordinated a stabbing of multiple correctional officers.  Security cameras recorded the attacks.

After a grand jury indicted Bacon and Ray, they were sent to trial.  Prior to trial Bacon gave notice, pursuant to Federal Rule of Criminal Procedure 12.2, that he would put forth an insanity defense.  The government filed a motion in limine to preclude Bacon’s Forensic Psychology Expert Witness Dr. Karim from testifying.  Dr. Karim had opined in a report that Bacon suffered chronic mental illness throughout his life, that he was on a downward spiral, and as a result, it would be reasonable to conclude “with a high degree of clinical certainty” that he would have had difficulty understanding the nature of his actions at the time of the assault.

Plaintiff sued defendant involving a claim of unlawful seizure and unreasonable or malicious prosecution. Plaintiff hired a Police Procedures Expert Witness to provide testimony. Defendant filed a motion to exclude this witness from testifying.  The court granted the motion in part and denied it in part.

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Plaintiff filed suit against defendants related to an alleged injury while in prison.  Plaintiff hired an Ophthalmology Expert Witness to provide testimony.  Defendant filed a motion to exclude this expert witness testimony.  The court granted the motion in part and denied it in part.

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