Daubert Standards

News & Analysis as of

Challenging Psychological Tests in Litigation – The Value and Limitations of The MCMI-III™

The Millon Clinical Multiaxial Inventory III (“MCMI-III”™) is a popular assessment tool used by clinical psychologists, that has been in use since approximately 1977. This instrument has been the subject of many articles and...more

Expert Patent Valuation Opinion Based on Forward Citation Analysis Survives Daubert Challenge

Plaintiff Better Mouse Company's ("Better Mouse") filed a motion to strike portions of the rebuttal expert report and exclude testimony of Richard Eichmann. Better Mouse asserted that the district court should exclude Mr....more

“May the Odds Be Ever in Your Favor” – The Ten Best Prescription Drug/Medical Device Decisions of 2015

The iconic Hunger Games line, “may the odds be ever in your favor” pretty much sums up how we feel about our top ten best decisions of 2015. These are results that put the “happy” in Happy New Year – which we wish all our...more

Bookends – Prof. Jewell’s Opinions Also Excluded in Lipitor MDL, and More

April might be the cruelest month according to T.S. Eliot, but the last month hasn’t been very kind to plaintiffs’ expert Nicholas Jewell, Ph.D. As we posted recently, at the beginning of December, Prof. Jewell was booted...more

Another Zoloft Daubert Win: How Many Strikes Before The Plaintiffs Are Out?

Everybody knows that it is three strikes and you are out in baseball. (Bexis and Ken Burns could discuss the history of baseball’s rules on balls and strikes in the nineteenth century, but we will stick with the public...more

Objections To Magistrate’s Order Regarding Daubert And Anticipation Are Reviewed

W.L. Gore & Associates, Inc. v. C.R. Bard, Inc., et al., C.A. No. 11-515 -LPS, November 24, 2015. Stark, C.J. The court rules on objections to Magistrate’s rulings on a Daubert motion and a Report and Recommendation on...more

The Florida Legislature’s Need to Control – the Daubert Rule

This is in response to the article in the Daily Business Review, Opponents of New Expert Witness Rule Rely on Outdated Authority [COMMENTARY] by Christopher Johnson, Daily Business Review. This recent article claims that...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

Even though Defendant filed Disguised Daubert Motion that Court Called "Untimely" and "Lame," the District Court Granted the...

In this patent infringement action, Defendant R/X Automation Solutions filed a motion in limine to exclude one of plaintiff's experts. The district court concluded that the motion was an untimely Daubert motion because the...more

Three Strikes and Out of Court for Breast Implant Opt-Out

Over the weekend, we watched one of our favorite “chick flicks,” a holiday-themed montage entitled “Love, Actually.” One of our favorite characters, played by the ever-brilliant Bill Nighy, is an over-the-hill former pop...more

Making Sense of the Daubert and Summary Judgment Orders in A Metal-on-Metal Hip Implant Bellwether Case

We have not posted for a while—that day job can really get in the way sometimes—so we agreed to tackle the ridiculously long decision in Christiansen v. Wright Med. Tech. Inc., MDL No. 2329, 1:13-cv-297-WSD, 2015 U.S. Dist....more

“Not the Stuff of Science”: “Differential Etiology” Causation Opinions Fail Daubert in 7th Circuit Toxic Tort Case

The Seventh Circuit Court of Appeals has affirmed a district court’s grant of summary judgment in an environmental toxic tort case, holding that the testimony of all three of plaintiffs’ causation experts – James Dahlgren,...more

Central District of California "Discontinues" Much of Plaintiffs' Experts' Testimony in Cymbalta "Discontinuation Symptoms" Case

“I’m not a doctor, but I play one on TV” – shorthand for “I am pretending to know what I’m talking about, but I really don’t.” We have blogged frequently about experts inclined to such pretense and about courts’ varying...more

Insights from DRI Class Action Seminar 2015 – Part 1

As I’ve done in past years, this post and the next one will summarize some takeaways I gleaned from this year’s DRI Class Action Seminar. Impact of Dart Cherokee: Nowell Berreth, who argued this case in the Supreme...more

IP Newsflash - July 2015 #3

DISTRICT COURT CASES - Expert Witness’ Flawed Infringement Opinion Supports an Award of Attorneys’ Fees - Defendants Six Flags Theme Parks Inc. sought an award of attorneys’ fees under 35 U.S.C. § 285 against...more

Daubert – and a Mechanical Pencil – Doom the Testimony of “Clinical Engineering” Expert

“If it doesn’t fit, you must acquit.” In the granddaddy of today’s reality TV shows, this buzz-phrase became synonymous with “use your head before you rely on a demonstration.” The plaintiff in Hutson v. Covidien Holdings,...more

Daubert And Dispositive Motions Are Decided

Stark, C. J. Plaintiffs' Motion to Exclude Certain Opinions of Defendants' Technical Expert Glenn Reinman is denied. Plaintiffs' Motion to Exclude Opinions and Proposed Testimony of Jeremiah Grant is denied in part and...more

Cybersecurity Coverage Litigation: Learning to Survive After the Second Wave Hits

It’s a familiar pattern. First, new risks inspire legislation and regulations that impose new penalties. Next, insurers and policyholders fight over whether the new liabilities are covered under traditional liability...more

MDL Court Agrees – Tincher Doesn’t Change Pennsylvania Drug/Device Law

Several months ago we responded with some disdain to recent plaintiff-side arguments we had seen claiming that the strict liability decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), somehow altered...more

Court Declines To Certify Damages Class in Baseball Blackout Suit

On May 14, 2015, the Southern District of New York issued two opinions in Laumann v. Nat’l Hockey League, No. 12-cv-1817, excluding plaintiffs’ damages expert under Daubert and denying plaintiffs’ motion to certify a damages...more

What Exactly Was Excluded? Proffering Expert Opinions to Preserve Daubert/Frye Challenges

Most practitioners would agree that, if the court excludes an expert based on a Daubert challenge—and that is the only expert opining on a subject—then in most instances there should be no need to proffer the expert’s...more

Guest Post - Game of Unknowns: A Daubert Ruling From the Middle District of Florida

Here at the DDL Blog, there are few things we enjoy more than a defense-friendly Daubert ruling – one of those things being, of course, our regular Sunday night HBO date with Game of Thrones. The “Hardhome” episode two...more

More Drake Dreck – Vermont Federal Court Refuses to Overturn Botched Botox Verdict

“We’ve seen this movie before.” That is something people say when they encounter something that seems simultaneously dreadful and predictable. That is how we felt upon reading the latest dismal opinion out of the Drake...more

California District Court Grants Summary Judgment Based on Lack of Evidence Supporting Claims for Asbestos Exposure

A California district court recently granted summary judgment in favor of four defendants on the grounds that plaintiffs had no evidence that a decedent was exposed to asbestos from defendants’ products. (Livingston v. ABB,...more

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