Expert Testimony

News & Analysis as of

If Your Expert Doesn’t Know the Product he is Testifying on, You’re Gonna Have a Bad Time

Most will remember the case McDougall v. Black & Decker Canada Inc. as being the leading Alberta case on the issue of spoliation. A fire occurred which burned down the Plaintiffs' house. The Fire Department who initially...more

Case Law Update: Rainey v. City of Charlotte

Rainey v. City of Charlotte (5/17/16) - This case the North Carolina Court of Appeals analyzed N.C. Gen. Stat. §97-58 and the statutory time limit to file an occupational disease. The Court dismissed an injured worker’s...more

Defence & Indemnity - April 2016: III. QUANTUM/DAMAGES ISSUES: B.

The Court overtly accepted the Plaintiff’s expert testimony and criticized well-known defence experts with regard to whether the Plaintiff’s injuries were minor and whether fibromyalgia can be caused by trauma Jones v....more

Evidence Alley: Lightweight Fabric: Admissibility versus Weight at the PTAB

Many parties in front of the Patent Trial and Appeal Board (Board) struggle with the handling of evidentiary issues. This struggle is heightened when expert evidence is the focus. In Tietex International, Ltd. v. Precision...more

PTAB Grants Late Motion to Amend, But Amended Claims Fail to Breathe Life into Patent

Addressing the standards for a motion to amend claims during an inter partes review (IPR) proceeding, the Patent Trial and Appeal Board (PTAB or Board) granted a motion to amend the claims in an IPR, but ultimately denied...more

Expert’s Failure to Test Theory No “Silver Bullet” for Defense

The United States Court of Appeals for the First Circuit recently held that an expert offering opinions on a proposed safer alternative design in a product liability matter does not need to perform any testing of the...more

Florida Appellate Court Applies State Daubert Test Retroactively to Exclude Expert and Dismiss Case

In his poem “To Summer,” Blake begs the season to “curb thy fierce steeds, allay the heat/That flames from their large nostrils!” That is typical Blake; he takes our favorite time of the year and turns it into a satanic...more

Knee Implant MDL Judge Enters Aggressive Lone Pine Order

We love Lone Pine orders. First of all, we love the name. Makes us think of a cowboy eating beans under a scraggly tree. On the prairie. Listening to Dolly Parton. We also love Dolly Parton, whom we saw in concert last week...more

Straight From The Judges’ Mouths: Lessons For Persuading the Board

The USPTO’s Patent Trial & Appeal Board (PTAB) hosted its June Boardside Chat, which addressed best practices for presenting patentability/unpatentability arguments before the board. The Chat, which was hosted by...more

How the PTAB Treats Pre-Institution Factual Disputes

As a result of recent changes in the PTAB rules of practice, counsel for patent owners should consider whether there are opportunities to identify factual deficiencies in petitions. Counsel for petitioners in inter partes...more

French Supreme Court Ruling Clarifies Liability For Defective Products

A February 25, 2016, decision by the French Supreme Court clarifies some conditions for the imposition of liability with respect to defective products in ways that may be surprising to those more accustomed to U.S. product...more

District Court Denies Request for Order Compelling Production of Damage Expert Report from a Different Pending Case

In this patent infringement action between Chrimar Systems, Inc. ("Chrimar") and Alcatel-Lucent USA, Inc. ("Lucent"). Lucent sought production of the damages expert report of Plaintiffs' damages expert, Robert Mills, that was...more

Defective products liability: new clarifications on the regime’s implementation

In a ruling handed down on 25 February 2016, the Court of Cassation clarified the conditions for implementation of the defective products liability regime. In this case, a patient was prescribed Mediator treatment...more

The Supreme Court - June 2016

The Supreme Court of the United States issued decisions in two cases on June 6, 2016: Simmons v. Himmelreich, No. 15-109: Respondent Walter Himmelreich, an inmate at a federal prison, brought two suits against prison...more

One Awesome Case Discussing The Difference Between Delay and Disruption Damages!

Rarely do you find a case that succinctly addresses a construction law issue.  Today, one of my legal alerts pointed me to one such case dealing with delay damages and disruption damages. This is a must read!...more

Terminating Sanctions for Attorney Misconduct

Rebecca Osborne v. Todd Farm Service, et. al. - Court Of Appeal, Second Appellate District (May 2, 2016) - An attorney, as an officer of the court, has the obligation to respect and follow court proceedings and...more

First Circuit: Plaintiffs’ Specific Causation Expert Fails to Pass Muster in Benzene Case

Last week, we (along with many of you, we assume) attended the DRI Drug and Medical Device conference in Chicago. We re-connected with friends dating to the beginning of our lengthy career (literally – ran into the head of...more

"Staples-Office Depot Mergers, 1997 v. 2016: Changed Industry, Same Result"

On May 17, 2016, one week after announcing his decision, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia released a public version of his opinion siding with the Federal Trade Commission in its...more

No “Last Resort” Striking of Undisclosed Expert Opinion

Order Granting-in-Part Motion to Strike Declaration of Miguel Gomez, VIA Techs., Inc. et al. v. ASUS Computer Int’l, et al., Case No. 14-cv-03586 (Magistrate Judge Paul Grewal) - In a recent order in VIA Techs., Inc. v....more

Defendants Secure Rare Summary Judgment in Zoloft MDL

In an unusual turn of events, U.S. District Judge Cynthia Rufe recently granted defendants’ motion for summary judgment as to over 300 cases in the Zoloft MDL. These cases were consolidated in 2012 and involved allegations...more

Patent Office Issues Final Rule Amending the Rules of Practice for Trials at the PTAB

The U.S. Patent and Trademark Office (Patent Office) has issued a final rule that addresses aspects of trial practice for America Invents Act (AIA) proceedings before the Patent Trial and Appeal Board (PTAB), takes effect May...more

Sophisticated User Defense Does Not Extend to Salesman

Richard Moran III v. Foster Wheeler Energy Corporation - Court of Appeal, Second Appellate District (April 13, 2016) - In 2008, the California Supreme Court unanimously held that the “sophisticated user” defense...more

Gutsy Gatekeeping: Plaintiffs’ Experts Excluded in Lipitor MDL

This week, as Drug and Device Law Jews, we are preparing for Passover, which, like most Jewish holidays, begins with a multi-generational dinner at the home of the Drug and Device Law Bubbie (our mother). Although we of the...more

Second Circuit Stresses Control, Not Attribution, In Applying Janus’s “Ultimate Authority” Test, And Also Allows Expert Testimony...

In Janus Capital, the Supreme Court established the “ultimate authority” test to determine who may be liable under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”) as a “maker” of a materially misleading...more

Differences in Medical Opinion Are Not False Claims Act Violations

In an important win for hospice and other health care providers facing claims under the False Claims Act (FCA), a federal court in Alabama gave a summary judgment victory last week to hospice provider Aseracare Inc. Key...more

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