News & Analysis as of

Expert Testimony

N.D. Florida Permits (Some) Discovery of Expert Who Changed from Consulting to Testifying Expert

by Reed Smith on

Discovery regarding expert witnesses can be tricky. In our neck of the woods, the great Commonwealth of Pennsylvania, state courts almost never permit depositions of experts. If you want to ask the expert questions – and...more

Defence & Indemnity - An Analysis of Insurance Case Law and Legislation - April 2017

by Field Law on

I. INSURANCE ISSUES - A. The Alberta Court of Appeal reiterated that policies cover insured perils but not pre-existing deficiencies in the property that are not caused by the peril, but only discovered as a result of...more

Judge Andrews Substantially Denies Plaintiff’s Motion To Exclude Defendant Expert’s Opinions On Definition Of Relevant Market In...

by Fox Rothschild LLP on

By Memorandum Opinion entered by The Honorable Richard G. Andrews in Insight Equity d/b/a Vision-Ease Lens Worldwide v. Transitions Optical, Inc., Civil Action No. 10-635-RGA (D.Del. May 9, 2017), the Court granted in part...more

Another Accutane Verdict Vacated in New Jersey

by Reed Smith on

No one can be all that happy with how the Accutane mass tort proceeding has played out in New Jersey. We have no involvement in that proceeding, but we have monitored it from afar, and it has been extraordinarily contentious....more

Federal Court Allows Expert Testimony on Health Risks Despite Lack of Personal Injury Claims

by Beveridge & Diamond PC on

Underscoring the importance of expert testimony regarding health risks in toxic tort cases involving potential exposure issues, a Mississippi federal judge allowed expert testimony on health risks posed by alleged...more

PTAB Finds Patent Is Ineligible for Post Grant Review—Claim Submitted During Prosecution (but Canceled Before Issuance) Had...

On April 3, 2017, the Patent Trial and Appeal Board (PTAB) declined to institute post-grant review (PGR) of U.S. Patent No. 9,291,250 (the “’250 patent”), finding that it was not eligible for PGR. The petitioner argued that...more

Expert Opinions are Excluded from Summary Judgment if Disclosure Requirements not Met

by Low, Ball & Lynch on

Wilson Dante Perry v. Bakewell Hawthorne, LLC - Supreme Court of California 2 Cal. 5th 536 (February 23, 2017) - After a trial date is set, a party may demand a simultaneous exchange of expert witness information by all...more

Could Daubert be Dying in Florida?

by Cozen O'Connor on

On February 16, 2017, the Florida Supreme Court issued an opinion in In Re: Amendments to the Florida Evidence Code, No. SC16-181, in which the court declined to adopt the Daubert standard, on procedural grounds, for...more

Expert Failed to Offer Admissible Evidence in Opposition to Motion for Summary Judgment

by Low, Ball & Lynch on

Sanchez v. Kern Emergency Medical Transportation Corporation - COURT OF APPEAL, FIFTH APPELLATE DISTRICT (February 6, 2017) - An expert opinion filed in opposition to a summary judgment must be based on admissible...more

Another One Bites the Dust: Plaintiff’s Causation Expert Excluded in Hernia Mesh Litigation

by Reed Smith on

We spent Sunday evening in the familiar confines of a top-notch local professional theatre. The production was a short (80-minute), two-character play. It was entirely dialogue-driven, so everything the audience learned came...more

Evidence of Priority to Provisional Application and that Prior Art Was Not Work of Another Defeated Obviousness Challenge in IPR

The Patent Trial and Appeal Board (the “Board”) issued a final written decision determining that the Coalition for Affordable Drugs (ADROCA), LLC (“Petitioner”) failed to prove unpatentable claims 1-52 of U.S. Patent No....more

Plaintiffs’ Causation Expert Renounces His Own Conclusions – and Withdraws – in Mirena IIH Litigation

by Reed Smith on

We have blogged before about the Mirena IUD litigation. Cases alleging injuries from device migration and uterine perforation were centralized in an MDL in the Southern District of New York but summary judgment was granted...more

Using Expert Testimony To Establish Class-Wide Damages For Partial Refund Or Reimbursement Claims

Takeaway: Following the U.S. Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), class action defendants frequently have argued damages cannot be established on a class-wide basis. Conversely,...more

When Will Expert Evidence Be Excluded?

by Bennett Jones LLP on

Experts play an important role in IP litigation, but the court will carefully consider whether the proposed expert evidence is necessary to assist the trial judge and has demonstrated an increasing willingness to determine,...more

In Rare Final Written Decision for “Anti-Troll” Group, Lack of Expert Declaration Dooms Patent

Petitioner Unified Patents, LLC filed an IPR petition challenging 29 claims of US Pat. No. 8,640,183 owned by Convergent Media Solutions, LLC. Unified’s numerous inter partes review (“IPR”) petitions rarely reach a final...more

Federal Circuit Evaluates PTAB Reliance on Expert Testimony to Satisfy Substantial Evidence

by McDermott Will & Emery on

Addressing for the first time the extent to which the Patent Trial and Appeal Board (PTAB) may rely on expert testimony to satisfy the substantial evidence standard of review, the US Court of Appeals for the Federal Circuit...more

Update – Which Decisions Have Excluded Dr. Parisian, And About What?

by Reed Smith on

Back in 2013, we published a comprehensive post on the checkered Daubert history of the notorious and prolific (in equal amounts) plaintiff-side “FDA expert” (although she routinely attempts to opine way beyond FDA matters) –...more

Missouri Adopts Daubert Standard Governing the Admissibility of Expert Opinion Evidence

by Polsinelli on

On March 28, 2017, Missouri Governor Eric Greitens signed House Bill 153 into law, repealing Section 490.065 RSMo governing the admissibility of expert witness opinion testimony and replacing it with provisions mirroring the...more

Fifth DCA Reaffirms Protections Against Surprise Tactics at Trial

by Rumberger Kirk & Caldwell on

This past January, Florida’s Fifth District Court of Appeal found that a trial court had committed reversible error by allowing a party to argue and present previously undisclosed expert testimony and evidence to the jury at...more

All Things “Considered”: Plaintiffs’ Experts Ordered To Produce Patient Records

by Reed Smith on

“The facts and data considered by the witness . . . .” That is what expert witnesses must disclose to the other side after forming their opinions, although the rule was not always this way. Before 2010, you had to disclose...more

Aviation Happenings - Spring 2017

The Spring 2017 edition of the Aviation Group’s newsletter examines some of the most recent and relevant cases and developments in aviation law, including: - Air Carrier Not Responsible for Rancid Cheese Under Montreal...more

Federal Circuit Holds That the PTAB May Consider Legal Conclusions of Obviousness by Expert Witnesses That Are Supported by...

The Federal Circuit held that the PTAB may consider legal conclusions of obviousness by experts, but the expert papers must make adequate factual findings and provide a satisfactory explanation as to determinations of...more

February 2017: The Court That Created Frye Moves to Rule 702/Daubert Standard

In the twenty-three years since the Supreme Court issued its seminal opinion on the admissibility of expert witness testimony, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), approximately 40 states have embraced...more

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

Judge Chhabria Excludes Damages Survey Based on the Survey’s Reliance Upon a Rejected Claim Construction

On February 14, 2017, Judge Chhabria of the Northern District of California granted, in part, Apple’s motion to exclude the expert report of Unwired Planet’s survey expert, Dr. Allenby. Dr. Allenby was hired to conduct a...more

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