Daubert Shorts – Case Summaries of Recent Daubert Opinions


  1. In Butler v. Home Depot U S A Inc et al (United States District Court – Western District of Louisiana – April 23rd, 2018), the plaintiff was struck by a wooden gate that was bumped by a forklift while shopping at the defendant’s store.  Her lower back, neck, and right shoulder was injured and she sued for loss of past earnings and her inability in earning a living in the future.  The plaintiff hired forensic accounting expert witness Raymond Green, CPA to provide testimony.   The defendant filed a motion to exclude this expert testimony stating that Mr. Green’s report does not meet the standards of reliability set forth in Daubert.  The plaintiff states that Green’s report is reliable and that any arguments on reliability go to the weight of the evidence, not the reliability.  The court ruled that Green’s testimony is not reliable because there is no portion of his testimony that shows any reliability.  Green does not discuss any methodology that was used to reach his conclusions and does not state what documents he used to conduct his thorough review of all business records and filings.  The plaintiff also does not point to any legal authority to support her argument that any arguments discussing the reliability of this testimony should be done at trial.  The court further alleges that they would focus on methodology in this case if there were any.  Thus, the motion to exclude the expert witness testimony of Raymond Green, CPA is granted.

  2. In  McKiver et al v. Murphy-Brown, LLC (United States District Court – Eastern District of North Carolina – April 19th 2018), the defendants hired Psychology Expert Witness, Pamela Dalton, Ph.D to opine about the odors emitting from the Kinlaw farm. Dr. Dalton opined that the farm did not produce enough odors to be considered a nuisance level at the plaintiff’s properties.  The plaintiffs would like the court to exclude this opinion of Dr. Dalton because it embraces the ultimate issue and not based on the proper legal standard in North Carolina.  The plaintiffs also take issue with Dr. Dalton’s odor studies which used the Nasal Ranger and the 7:1 standard.  The court agreed with the plaintiffs has not adopted a dilution threshold to assess whether an odor is objectionable.  Also, Dr. Dalton’s data would not be helpful to the jury and would be confusing.  However, Dr. Dalton’s report about the unreliability of self-report of odor will be allowed.  Thus, the motion to exclude the expert witness testimony of Pamela Dalton, Ph.D is granted in part and denied in part.