Expert Evidence Report Index-Summary

DAMAGES

– Antitrust

– – Calculations on lost sales and price differential excluded (W.D. Okla.), 33
– – Econometric multiple regression analysis sufficient for class action certification (D. Conn.), 166
– – Economist testimony relying on untested data from unknown source fails Daubert test (D. Del.), 451

– Asbestos, joint compound manufacturer, jury allocation in multiproduct exposure case rejected (Cal. Ct. App.), 238
– Malpractice, state compensatory fund may introduce expert testimony on preexisting risk of harm if relevant to establish amount (Ind.), 157
– Mitigation, plaintiff's own opinion of preexisting medical condition as preventing mitigation insufficient (N.D. Ill.), 266
– Property value diminution due to toxic contamination, Analysis and Perspective, 129
– Sex discrimination, expert required to testify on lost earnings and pension benefits (3d Cir.), 231
– Software patents infringement, lump-sum vs. royalty payment damages calculations, expert testimony citing other license agreements without establishing frequency of use fails to support award (Fed. Cir.), 477
– Wrongful birth, limits on post-majority expenses denied (D. Md.), 554

DAUBERT GUIDELINES AND ANALYSIS

See also FORENSIC ANALYSIS
– Antitrust, economist testimony on damages relying on untested data from unknown source deemed unreliable (D. Del.), 451
– Asbestos

– – Automobile brakes, experts need not disprove defendant's hypotheses to carry burden of reliability and relevance (Del. Super. Ct.), 209
– – Indoor air studies in environmental crimes trial proper (D. Mont.), 94

– Chemical sensitivity claim fails to meet requirements (S.D.N.Y.), 40
– Class actions, groundwater contamination, Daubert analysis not required at certification stage (M.D. Fla.), 526
– Contact lens solution caused eye infection, ophthalmologist's theory not published or peer reviewed unreliable under Daubert (D.S.C.), 449
– Criminal law, forensic document witness, hearing not required where judge aware of qualifications (9th Cir.), 528
– Evidence suppression hearings, Daubert analysis of handwriting expert's qualifications not required (7th Cir.), 211
– Ladder defect, testimony of engineer changing opinion not reliable (E.D.N.Y.), 523
– Medical causation

See MEDICAL CAUSATION

– Medical proof that taser caused injury did not meet standards (11th Cir.), 5
– Nanotechnology, user development of strategy and liability defenses, Analysis & Perspective, 15
– Poultry waste contamination, identification of unique signature not peer reviewed, expedited review of exclusion granted (10th Cir.), 31; microbial source tracking to identify DNA biomarker inadmissible as novel and untested, 285
– Product liability, ladders, expert's use of own test properly excluded (E.D. Tenn.), 91
– Reliability, antitrust damages, calculations on lost sales and price differential excluded (W.D. Okla.), 33
– Revolving doors, Daubert hearing not required before rejecting testimony of engineer failing to conduct independent tests and lacking knowledge of condition at time of accident (Del.), 308
– Train ride induced thrombosis, reliance on Google search and CNN.com insufficient (9th Cir.), 158
– Viagra, nonarteritic anterior ischemic optic neuropathy, discrepancies in key study lead to exclusion of testimony (D. Minn.), 450
– Wrongful death, open heart surgery, subjective belief and unsupported speculation insufficient (E.D. Pa.), 452

DEFENSES

– Nanotechnology, user development of Daubert strategy and liability defenses, Analysis & Perspective, 15

DELAWARE

– Asbestos automobile brakes

– – Experts need not disprove defendant's hypotheses to carry burden of reliability and relevance (Del. Super. Ct.), 33
– – Lack of epidemiological studies, researchers with 30 years experience link carcinogenic qualities of unrefined and refined chrysotile fibers (Del.), 454

– Medical malpractice

– – Catheterization procedure or stent, expert proof failed to link as cause of plaintiff's injuries under Del. law (E.D. Pa.), 97
– – Delayed treatment, lack of lost chance of survival proof results in dismissal (Del.), 507

– Police officers required to be qualified as experts before testifying on identification of controlled substance (Del.), 179
– Revolving doors, Daubert hearing not required before rejecting testimony of engineer failing to conduct independent tests and lacking knowledge of condition at time of accident (Del.), 308
– Seroquel as cause of diabetes, differential diagnoses, failure to rule out other causes dooms testimony (Del. Super. Ct.), 309
– Stock valuation, certificate of designation setting dissenting shareholder amounts makes expert proof irrelevant (Del. Ch.), 265

DENTAL MALPRACTICE

– Causation proof exceeding scope of deposition proper where opposing party was on notice of possible use (Cal. Ct. App.), 92
– Removal of wrong tooth, reasonable medical probability meets threshold (Tex. App.), 421

DEPOSITIONS

– Product liability expert deposed in similar pending suit in different district required to submit (D. Colo.), 386

DESIGN DEFECTS

– Motor vehicles

See MOTOR VEHICLES

– Power wheelchairs, testimony lacking evidence of manufacturing process, inspection or testing insufficient for summary judgment (N.D.N.Y.), 498
– Surgical shoulder chair, expert testimony following brief exam, failure to test, and failure to consult industry representatives unreliable (Mich. Ct. App.), 502

DIFFERENTIAL DIAGNOSIS

See MEDICAL CAUSATION

DISABILITY BENEFITS

– Conflicts of interest, medical review experts under contract to plan administrator have increased risk of bias (6th Cir.), 124
– Conflicts opinions, memory loss, arbitrary and capricious standard of review applies (7th Cir.), 429
– Peer review, administrator's sole reliance on file reviews in rejecting benefits for alcoholic employee deemed abuse of discretion (W.D. Mich.), 67
– Statistical proof, disability plan administrator improperly relied on expert's valuation of participant's stock options (E.D. Cal.), 12

DISABLED PERSONS

See AMERICANS WITH DISABILITIES ACT (ADA)

DISCLOSURE

See also CONFIDENTIALITY
– Medical records

See MEDICAL RECORDS

– Motor vehicle design defects, untimely disclosure of scientific basis for expert's opinion leads to exclusion (11th Cir.), 156
– Subject and summary of testimony, proposed federal rule would require, 43

DISCOVERY

– Admissions, hexavalent chromium exposure, blanket refusal of request to admit scientific evidence insufficient response (M.D. Ga.), 363
– Antitrust, tobacco pricing data, protective order allowing plaintiff's experts access rejected (S.D.N.Y.), 53
– Attorney-client privilege

See PRIVILEGED COMMUNICATIONS

– Computers

See E-discovery, this heading

– Contraceptives, ex parte communications with plaintiff's experts barred (E.D. Mo.), 186
– Costs, plaintiffs required to defray defendant's expenses of deposing own expert in Australia (S.D.N.Y.), 151
– Data collection, need for consulting forensic experts, Analysis & Perspective, 533
– Dental malpractice, causation proof exceeding scope of deposition proper where opposing party on notice of possible use (Cal. Ct. App.), 92
– Depositions, product liability expert deposed in similar pending suit in different district required to submit (D. Colo.), 386
– E-discovery

– – Automated search and retrieval tools, impact on need for experts, Analysis & Perspective, 245
– – Criminal proceedings, key issues involved in electronically stored information, Analysis & Perspective, 268
– – Digital forensic experts, certification and competency issues, Analysis & Perspective, 245
– – Disk-wiping software, expert testimony on presence sufficient for adverse jury instruction (D. Colo.), 182
– – In-house re hired expert use, pros and cons, Analysis & Perspective, 170
– – Inadvertently produced documents, clawback agreements, Analysis & Perspective, 510
– – Lawyers' responsibilities when hiring services, need for industry code of conduct, Analysis & Perspective, 375
– – Pattern on hard drive may be defect rather than intentional wiping attempt, plaintiff expert's access denied (N.D. Ill.), 88
– – Rummage through hard drive requires some showing that evidence is available and retrievable (Tex.), 442
– – Special master review of computer hard drive for relevance, stay of lower court order granted pending review (Tex.), 497
– – Transcript accuracy, showing of inaccuracy required to compel hard drive inspection by expert (Ohio), 255
– – Use discussed, 531
– – Wiping program discovery, spoilation of evidence adverse ruling inferred, Analysis & Perspective, 433

– Medical devices, hernia patches, FDA inspection report and internal reports barred (R.I. Super. Ct.), 282
– Medical malpractice

– – Cardiac surgery morbidity and mortality evidence barred (E.D. Pa.), 281
– – Peer review committee documents privileged (N.C. Ct. App.), 364
– – Sanctions, change in theory after discovery, testimony excluded (1st Cir.), 306

– Mental health records confidentiality, disclosure to court-approved expert not waiver of rights (Pa. Super. Ct.), 181
– Paxil, production of correspondence between researchers and manufacturer ordered (D. Mass.), 508
– Product liability, subpoena of expert's tax return and financial records to show bias barred (M.D. Tenn.), 205
– Race discrimination, untimely preemptive rebuttal expert report not grounds for expanding scope (S.D. Ind.), 183
– Sanctions

– – E-mail, lender's false claim computer hard drives were damaged (E.D. Tex.), 24
– – Internal litigation management database, disclosure by automaker to plaintiff improper sanction in product liability case (Fla. Dist. Ct.), 25
– – Patent infringement, wastewater treatment chemicals, withholding results of key tests grounds for sanctions (Fed. Cir.), 181
– – Systematic abuse by expert not grounds for dismissal (8th Cir.), 180

– Untimely expert evidence may be excluded at summary judgment (Tex.), 227
– Work product

See WORK PRODUCT

DISCRIMINATION

– ADA

See AMERICANS WITH DISABILITIES ACT (ADA)

– ADEA

See AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

– Bias

See BIAS

– Damages mitigation, plaintiff's own opinion of preexisting medical condition as preventing insufficient (N.D. Ill.), 266
– Race

See RACE DISCRIMINATION

– Sex

See SEX DISCRIMINATION

DISTRICT OF COLUMBIA

– Lab drug analysis, admission without analyst testimony unconstitutional (D.C.), 395

DNA TESTING

– Bulletproof vest, results from testing must be turned over to criminal defendant (Wis. App. Ct.), 41
– Closing arguments, prosecutor's comment concerning Hollywood effect on jury expectations insufficient to required new trial (7th Cir.), 214
– Error rate data must be presented along with data supporting match with defendant (Vt.), 111
– Post-conviction testing, denial not violation of due process (U.S., aff), 347
– Poultry waste contamination, identification of unique signature not peer reviewed, expedited review of exclusion granted (10th Cir.), 31; microbial source tracking to identify DNA biomarker inadmissible as novel and untested (10th Cir.), 285
– Presence of criminal defendant in federal database, testimony did not lead to impermissible jury presumption defendant had criminal history (Ill.), 97
– Supervisor not performing analysis, testimony sufficient (Ind.), 507

DRUGS

See also PHARMACEUTICALS
– Controlled substances

– – Constructive possession, testimony improperly invaded jury's province, conviction reversed (N.J.), 98
– – Drug trafficking, anticipatory rehabilitation prejudiced defendant (Md.), 231
– – Forensic lab analysts

– – – Criminal defendant has right to cross-examination (rev), 345
– – – Evidence without analyst testimony unconstitutional (D.C.), 395
– – – Weight, expert not personally analyzing substances not allowed to testify (N.C. Ct. App.), 549

– – Medical malpractice, pharmacist may testify on standard of care for prescribing (8th Cir.), 394
– – Pilot license revocation, positive drug test, estimates as to time detection possible not categorical pronouncements requiring inadmissibility (11th Cir.), 349
– – Police officers required to be qualified as experts before testifying on identification of drug (Del.), 179
– – Warrantless search consent, evidence suppression hearings, handwriting expert not subject to Daubert analysis (7th Cir.), 98

DRUNK DRIVING

– Blood alcohol level tests, expert proof lacking chain of custody testimony not admissible (S.C.), 501

DUE PROCESS

– Biased experts, testimony before administrative law judge not denial (Tex. App.), 191
– DNA post-conviction testing, denial not violation of due process (U.S., aff), 347
– Improper admission of expert testimony deemed denial of (7th Cir.), 210