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


  1. InternMatch, Inc. v. Nxtbigthing, LLC – United States District Court – Northern District of California – March 28th, 2016 – In this trademark infringement case, the defendants have filed a motion to exclude the testimony of Joseph A. Greco, P.E. (electrical engineering expert witness).  Mr. Greco was called as an expert to opine that Chad Batterman (defendant) fabricated a surge.  His report stated that power surges are rare and that there was no abnormal electrical activity on the day of the alleged surge.  The defendants state that Mr. Greco’s testimony should be excluded because it is not reliable.  The court denied the motion to exclude.
  2. Oliveros v. BNSF Railway Company – United States District Court – District of Nebraska – March 29th, 2016 – In this case, filed under the Federal Employers Liability Act, the defendant has filed a motion to exclude the testimony of Alan Blackwell (railroad expert witness). Mr. Blackwell was to opine on the following: 1) vegetation and lighting, 2) crew change locations, 3) alternative crew change locations, and 4) ballast.  The defendant’s state that Mr. Brickwell’s testimony should be excluded for numerous reasons, including reliability.  The court denied the motion in part and granted it in part, the latter being that Mr. Blackwell cannot testify regarding any legal matters.
  3. American Home Assurance Company; Cargill Meat Solutions Corporation v. Greater Omaha Packing Co., Inc – United States Court of Appeals for the Eighth Circuit – April 5th, 2016 – This action on appeal concerns an outbreak of  E. coli O157:H7 in cow meat.  Cargill filed suit against Greater Omaha for breach of contract and warranties.   To help prove their case, Cargil hired Lee Harrison, M.D., Randall Singer, Ph.D, and Dr. Angie Siemens (epidemiology expert witnesses).  Drs. Harrison and Singer concluded that Greater Omaha was the source of the E. coli O157:H7 outbreak.  Greater Omaha filed a motion to exclude the testimony of these experts, stating that they ignored two case patients that would disprove their conclusions.  The district court denied the motion to exclude and the present appeals court upheld the decision.
  4. Steven Neumann v. Village of Pocahontas, et al – United States District Court – Southern District of Illinois – April 5th, 2016 – In this case, the plaintiff’s (Neumann) dog was shot and killed by an animal control officer of the Village of Pocahontas.  Neumann sued under the Fourth Amendment stating that he was deprived of his right to be free from unreasonable seizures of property as well as state law violations.  In order to prove his case, Neumann hired two animals expert witnesses, Brian Handegan and Lauren Malmberg.  The defendants filed a motion to exclude the testimony of these experts, stating that Handegan does not have the knowledge to testify as an expert and that Malmberg’s testimony is not relevant and supported by scientific data.  The court granted the motion in part and denied the motion in part, stating that Handegan and Malmberg will be permitted to testify on the subject of the dog’s behavior and other methods of capturing dogs that are aggressive.  However, Malmberg will not be allowed to testify on the lack of training provided by the Village of Pocahontas nor will be allowed to provide testimony that is regarded as a legal conclusion.