Admissibility

News & Analysis as of

Butler Quarterly - Winter 2017

Two recent federal cases highlight the challenges practitioners face in presenting expert claims handling testimony in bad faith litigation under the Daubert standard. In the first case, a court excluded such expert testimony...more

Florida Supreme Court Rejects More Rigorous Expert Testimony Standard

The federal court system and 36 states have adopted the so-called Daubert standard in place of the Frye standard when it comes to qualifying expert witnesses under the rules of evidence. In 2013, the Florida Legislature...more

Supreme Court speaks on Daubert – says not much

Last week the supreme court issued its opinion on the recommendations of the Florida Bar Rules committee regarding the new Daubert statute. The supreme court noted there are “grave concerns” that (unidentified) elements of...more

Daubert Under the Microscope Again by Florida Courts

In a ruling that raises new issues about the adoption of the Daubert standard for the admissibility of expert opinions in Florida state court, the Florida Supreme Court has declined to adopt, to the extent they are...more

2016 eDiscovery Case Law Year in Review, Part 1

It’s that time again! Time for our annual review of eDiscovery case law! Once again, we had plenty of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI) and even...more

Toxic Tort & Product Liability Quarterly Vol. 9, No. 4, December 2016

DC High Court Adopts Daubert Approach to Expert Testimony - In a direct victory for mobile phone manufacturers and service providers, and with implications for any other case involving expert testimony in the District of...more

The Death of Frye: The District of Columbia Embraces Daubert

In a landmark decision, the District of Columbia Court of Appeals recently adopted the Daubert standard, superseding the District’s nearly century-long application of the Frye test. In its October 20 decision on Motorola,...more

Use of Company Policies To Establish The Violation of A Fiduciary Duty

Plaintiffs often seek discovery on a financial institution’s policies and procedures with an eye towards using that evidence against the institution. If a financial institution’s representative or representatives did not live...more

German Labor Court Allows Review of Employee’s Browsing History

European courts continue to clarify the right of employers to review their employees’ emails. As we discussed previously, the European Court of Human Rights and the National Labor Relations Board of the U.S. have recognized...more

Handy-Dandy Checklist for Admissibility of Electronic Evidence

For years we’ve advocated about ediscovery for defendants – consisting mostly of material gathered from a plaintiff’s social media postings. OK, so let’s assume some degree of success. Defense-side ediscovery has generated...more

Is Evidence of Juror Bias in Deliberations Admissible? Supreme Court to Decide

What happens in the jury room, stays in the jury room. Except when it doesn’t. Earlier this month, the Supreme Court agreed to hear the appeal of a Colorado man whose counsel learned, after the guilty verdict was rendered,...more

Missouri: Taking a Step Toward Digging Out of the "Judicial Hellhole"?

Missouri’s Legislature is deciding whether to change its current standard governing the admissibility of expert witness testimony to the Daubert standard. The bill to make this change has passed the Senate and is now being...more

Can’t Run Away from Your Expert’s Testimony: Board Says Testimony from Another Proceeding Admissible - Edmund Optics, Inc. v....

Addressing the admissibility of testimony from prior proceedings, the U. S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB or Board) denied the petitioner’s motion to exclude the prior testimony of its own...more

Fact-Intensive Reasonable Royalty Analysis Need Not Be Peer Reviewed or Published to Be Admissible - Summit 6, LLC v. Samsung...

Addressing the admissibility of expert testimony on damages issues, the U.S. Court of Appeals for the Federal Circuit upheld the district court’s admission of expert testimony based on a fact-intensive analysis that was not...more

A Frye Opinion By Any Other Name: Zoloft Plaintiffs' Experts Excluded in Philadelphia

We spent the weekend in the Boston area, visiting the Drug and Device Law Rock Climber for “parents’ weekend.” Saturday’s schedule was replete with activities: a keynote speech by the university president, lectures on topics...more

Bloggers Beware! The Admissibility of Blog Entries As Admissions Against Interest

In this day in age, you really can find anything on the Internet. That is the good news and the bad news for attorneys and clients alike. With the popularity of online web logs, or “blogs,” on the rise, odds are that your...more

At the Intersection of Technology and Law: Recent High Court Rulings Related to Social Media.

Once Again at the Intersection of Technology and Law: Maryland’s Court of Appeals Elaborates on Authentication of Documents Related to Social Media. “The rapid rise of social networking websites, themselves a branch...more

District Court Denies Motion to Exclude Expert Testimony on the Ground That the Expert Was Not a Person Having Ordinary Skill in...

Defendants sought to exclude the testimony of Plaintiff's expert Joseph C. McAlexander III in its entirety because he lacked the appropriate technical background. In their motion, Defendants alleged that Mr. McAlexander's...more

Summary Judgment Is No Dress Rehearsal

The standard for summary judgment is neither novel nor new. Most of us can recite it from memory: Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is...more

Water Loss Case Gives Rise to Dispute Over Bad Faith Standard For ‘Genuine Dispute’ and Admissibility of Expert Evidence

In a recent decision in the case of Pyramid Technologies, Inc. v. Hartford Casualty Ins. Co., 752 F.3d 807 (9th Cir., May 19, 2014), the Ninth Circuit, relying on California law upheld a grant of summary judgment dismissing...more

Fourth Circuit Rules On Admissibility Standard In Trade Secrets Case

In a per curiam opinion that began and ended with the same expression of deep reluctance, the Fourth Circuit Court of Appeals vacated a key ruling by the District Court for the Eastern District of Virginia regarding the...more

Eastern District of Louisiana Rules that Factual Portions of Incident Report by Bureau of Safety and Environmental Enforcement...

In the new world of shared regulatory oversight between the United States Coast Guard (USCG) and BSEE on the Outer Continental Shelf (OCS), a mundane devil-in-the-details – but nonetheless vitally important question – had...more

Class Actions in Italy: Milan Court of Appeal Adopts Wider Interpretation of Admissibility

On 3 March 2014, the Milan Court of Appeal overturned a previous decision issued by the Milan Tribunal, declaring a class action brought by an Italian consumers association, Altroconsumo, against local railway operator...more

Test for expert admissibility rises signficantly in North Carolina

One of the primary functions of trial judges is to serve as gatekeepers for expert testimony. If an expert’s opinion passes the trial court’s test then a jury should hear the testimony. If not, it should be excluded to...more

Pennsylvania Courts Clarify Expert Testimony Admissibility Standard

The admissibility standard to which expert opinions have been held in Pennsylvania has just been clarified. In a recent decision addressing the application of Frye v. United States, 293 F. 1013 (D.C.Cir.1923), the...more

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