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

  1. This case – (STATE OF OHIO v. JUDITH I. HAWKEY – COURT OF APPEALS OF OHIO – THIRD APPELLATE DISTRICT – March 28th, 2016) involves the conviction of the appellant (Hawkey).  She appeals the life in prison sentence imposed on her by the Defiance County Common Pleas Court.  Hawkey was found guilty of aggravated murder of her husband, insurance fraud and child endangering.  One part of the appeal entails that the lower court erred when it allowed the state’s child abuse expert witness, (Dr. Barbara Knox) to opine that child torture was a form of child abuse. Hawkey challenged this testimony, stating that it was not accepted in the scientific community. Knox admitted that she created the definition of child torture, but it has not been accepted as a formal medical definition.  Hawkey states that because the term “child torture” is not accepted by the medical community, and not subject to peer review, Knox’s testimony surrounding that phrase should have been excluded.  The appeals court agreed and sustained the assignment of error.
  2. Johnson v. Light – United States District Court – Western District of Tennessee – March 28th, 2016 – This negligence action involves the alleged failure to provide utility service, which caused plaintiff’s decedent to die of hypothermia and heat stroke.  The defendants have filed a motion to exclude the expert witness testimony of Miguel Laboy, M.D (pathology expert witnesses), who would opine that the decedent died from probable heat stroke.  The defense stated that Dr. Laboy’s testimony will not assist the jury and is unreliable.  The court granted the motion to exclude.
  3. Johnson v. Thor Motor Coach, Inc – United States District Court – Middle District of Florida – March 28th, 2016 – The plaintiffs filed this action against defendants for breach of express warranty and violation of the Florida Lemon Law.  The plaintiff’s allege that the defendants did not repair defects on the slide out room of their recreational vehicle.  The Johnson’s hired Richard Falco (automotive expert witness) to opine whether the RV has a manufacturing defect with respect to the slide out room.  The defendant’s have filed a motion to exclude Falco’s testimony on the grounds of qualifications and unreliability.  The court denied the motion to exclude.
  4. U.S. Welding, Inc. v. Tecsys – United States District Court – District of Colorado – March 28th, 2016 – This case concerns a software licensing dispute.  The defendant licensed software to the plaintiff, who stated that the software did not operate as promised.  The plaintiff hired Eric Kimberling (software expert witness) to provide testimony on enterprise systems, including software.  Tecsys filed a motion to exclude Kimberling’s testimony in that some of the opinions are legal conclusions, which are not admissible under Daubert.  The court denied the motion in part stating that Mr. Kimberling could not testify on legal terminology.  Otherwise, the motion is denied.