Expert Evidence Report Index-Summary

PATENTS

– Confusion, meaning of claim term “tip,” testimony need not be excluded (Fed. Cir.), 10
– Court-appointed experts, appointment justified in usually complex cases (Fed. Cir.), 164
– Damages, software, lump-sum vs. royalty payment calculations, expert testimony citing other license agreements without establishing frequency of use fails to support award (Fed. Cir.), 477
– Discovery abuses, infringement action, withholding results of key tests grounds for sanctions (Fed. Cir.), 181
– Legal malpractice, experience with application process insufficient to qualify as expert (E.D. Ky.), 422
– Pharmaceuticals, Ultracet, obviousness, expert testimony raises material facts (Fed. Cir.), 480
– Qualifications of experts, patent lawyer lacking technical expertise may not testify on invalidity, noninfringement (Fed. Cir.), 30
– Reform legislation, House panelists urged to require judges to limit expert proof, 267
– Special masters handled cases less likely to be appealed, 216

PENALTIES

See SANCTIONS

PENNSYLVANIA

– Hazardous waste cleanup costs, estimate of future costs too speculative (3d Cir.), 291
– Medical causation

– – Nurse may qualify as expert (Pa.), 335
– – Tylenol, expert disavowing adequacy of label rejected in light of overdose (Pa. Super. Ct.), 242

– Medical records confidentiality, disclosure to court-approved expert not waiver of rights (Pa. Super. Ct.), 181
– Railroad OSHA standards, expert proof not preempted by Railway Safety Act (Pa. Super. Ct.), 423

PENSIONS

– Sex discrimination, expert required to testify on lost pension benefits (3d Cir.), 231

PHARMACEUTICALS

– Accutane

– – Exclusion of statistical proof of adverse reactions erroneous (N.J. Super. Ct. App. Div.), 158
– – Inflammatory bowel disease, warning would not have prevented prescription (Fla. Dist. Ct. App.), 552

– Childhood vaccines and autism, no link found in exhaustive review of expert proof (Fed. Cl.), 96
– Contraceptives, ex parte interviews of plaintiff's experts barred (E.D. Mo.), 186
– Etodolac contamination, wrongful death claim, reliance on single recall letter insufficient (E.D. Pa.), 311
– Forensic analysis

See FORENSIC ANALYSIS

– Fosamax

– – Controlled epidemiological studies, lack of not fatal to expert opinion (S.D.N.Y.), 388; one expert excluded, case to proceed, 473
– – Expert fees, plaintiffs required to defray defendant's expenses of deposing expert in Australia (S.D.N.Y.), 151
– – Jaw degeneration failure to warn, expert evidence insufficient to support aggravation of osteonecrosis (S.D.N.Y.), 423

– Ghostwriting articles in medical journals, Grassley (R-Iowa) requests publications to disclose policies and practices, 373
– Labeling

– – Accutane caused inflammatory bowel disease, warning would not have prevented prescription (Fla. Dist. Ct. App.), 552
– – Federal regulatory approval does not preempt state tort suit challenging adequacy (U.S.), 121
– – Tylenol, expert opinion on inadequacy of label rejected in light of overdose (Pa. Super. Ct.), 242

– Methadone, neuropharmacologist lacks medical expertise in wrongful death claim (Tenn. Ct. App.), 548
– MoistureLoc contact lens solution, ophthalmologist's theory on eye infection not published or peer reviewed unreliable under Daubert (D.S.C.), 449
– Neurontin

– – Off-label marketing, class decertification based on nonexpert testimony challenged (Pa. Super. Ct.), 333
– – Suicide risk, general causation theory supported by FDA biological plausibility study (D. Mass.), 260; 292

– Paxil, discovery, production of correspondence between researchers and manufacturer ordered (D. Mass.), 508
– Pharmacist may testify on standard of care for prescribing controlled substance (8th Cir.), 394
– Premarin and Prempro hormone therapy, differential diagnosis allowed in breast cancer claim (8th Cir.), 547
– Prozac, denial of expert leads to motion for new scheduling order to allow for replacement (D.N.M.), 392
– Qualifications of expert, physician in medical malpractice suit failed to demonstrate expertise on causation (Tex. App.), 112
– Remicade, link to pulmonary fibrosis, exclusion of proof proper (11th Cir.), 90
– ReMu contact lens solution caused corneal infection, extrapolation theory unreliable (N.Y. Sup. Ct.), 391
– Seroquel as cause of diabetes

– – Differential diagnoses, failure to rule out other causes dooms testimony (Del. Super. Ct.), 309
– – Failure to show causation results in summary judgment for maker (M.D. Fla.), 63

– Ultracet, patents, expert testimony raises material facts on obviousness (Fed. Cir.), 480
– Viagra, nonarteritic anterior ischemic optic neuropathy, discrepancies in key study lead to exclusion of testimony (D. Minn.), 450
– Zyprexa

– – Diabetes, failure to warn, expert testimony linking weight gain sufficient to deny summary judgment (E.D.N.Y.), 475
– – Expert repeatedly stretching the truth disqualified (E.D.N.Y.), 262

PHYSICIANS

– Affidavits

– – Orthopedic specialist affidavit silent on license to practice information insufficient (Tenn. Ct. App.), 289
– – Physician letters not in affidavit form not admissible as expert opinions (Mass. App. Ct.), 233

– Blood tests, duty of physician to order, trial judge improperly entered judgment notwithstanding verdict when testimony was adequate to support award (Ill. App. Ct.), 99
– Dermatologists, expert testimony linking disfiguring injuries to Medicare fraud, conviction upheld (11th Cir.), 295
– Emergency room standard of care, physician unqualified to testify (Tenn. Ct. App.), 289
– Ghostwriting articles in medical journals, Grassley (R-Iowa) requests publications to disclose policies and practices, 373
– Hydrogen sulfide exposure, allergist testimony excluded (7th Cir.), 236
– Knowledge and skills sufficient basis for testimony (Ind. App.), 344
– License revocation, pain management abuse, testimony from neurological re anesthesiology point irrelevant (Ohio Ct App.), 509
– Medical literature, qualified expert allowed to rely on (Ind. Ct. App.), 550
– MRI report by nontestifying radiologist relied upon by testifying physicians inadmissible without limiting jury instruction (N.J.), 123
– Physician-attorney testifying as necessary witness may not represent party (Tenn. Ct. App.), 227
– Qualifications

– – Bypass surgery, emergency room and attending ICU physician not qualified to testify on formulation of ICU policy and procedure (Tex. App.), 520
– – Drugs, physician failed to demonstrate expertise (Tex. App.), 112
– – Familiarity with local law

– – – Doctor from Mo. excluded for not demonstrating familiarity (Tenn. Ct. App.), 93
– – – Obstetricians, doctor from Ariz. demonstrating familiarity standards of care should not have been excluded (N.C.), 261

– – Treating physician need not be qualified as expert (N.C. Ct. App.), 469

– Treating physician

– – DPT vaccine as cause of seizures, testimony sufficient to establish logical sequence of cause and effect (Ct. App. Fed. Cir.), 339
– – Expert designation not required (N.C. Ct. App.), 234

POLICE

– Computer animation of crime scene, officer not qualified as expert on animated collages (Wis. Ct. App.), 310
– Drunk driving, horizontal gaze nystagmus test, state trooper not qualified as expert (Md.), 286
– Motor vehicle rollover accident, opinion testimony on use of seat belt and whether driver fell asleep by state trooper with accident investigation training and personal knowledge proper (Utah Ct. App.), 342
– National origin discrimination, statistics failed to show department more likely to discipline Latino officers than white employees (2d Cir.), 125
– Tugboat rescue operations, officer claim of inadequate training, expert fails to establish but-for causation (2nd Cir.), 290
– Undercover officer testimony of drug code words properly admitted as lay testimony (1st Cir.), 187

POOLS

See SWIMMING POOLS AND SPAS

PREEMPTION

– New York City taxicab hybrid incentive lease cap rules preempted by Energy Policy and Conservation Act (S.D.N.Y.), 332
– Pharmaceuticals, federal regulatory approval does not preempt state tort suit challenging adequacy of drug labels (U.S.), 121
– Railroad OSHA standards, expert proof not preempted by Railway Safety Act (Pa. Super. Ct.), 423

PRIVACY

See also CONFIDENTIALITY
– Airline passenger records, expert's affidavit faulty, EU Parliament member's suit against Homeland Security Dep't dismissed (D.D.C.), 34
– Identity theft, ZIP codes from credit card payments, plaintiff making assertions over ease of theft never sought to be qualified (Cal. Ct. App.), 41

PRIVILEGED COMMUNICATIONS

See also WORK PRODUCT
– Attorney-client privilege re expert witnesses, Analysis & Perspective, 402
– Contact lens solution, manufacturer's “root cause analysis” protected (E.D. Tex.), 153
– Ex parte communications

See EX PARTE COMMUNICATIONS

– Internal litigation management database, automaker disclosure to plaintiff improper discovery sanction in product liability case (Fla. Dist. Ct.), 25
– Medical malpractice, peer review committee documents privileged (N.C. Ct. App.), 364

PROCEDURE

– Admissions, hexavalent chromium exposure, blanket refusal of request to admit scientific evidence insufficient response (M.D. Ga.), 363
– Denial of expert leads to motion for new scheduling order to allow for replacement (D.N.M.), 392
– Discovery

See DISCOVERY

– Fed. R. Civ. P. 26, draft changes head to Judicial Conf. for review, 321
– Patents, special masters handled cases less likely to be appealed, Analysis & Perspective, 216
– Summary judgment, expert testimony available before proceeding may not be introduced later to support motion for reconsideration (E.D. Pa.), 319

PRODUCT SAFETY AND LIABILITY

– Affidavit may be used to cure unsworn expert report (8th Cir.), 416
– Causation, anecdotal expert proof in, Analysis & Perspective, 70
– Computer animation demonstration of alternatives, challenge rejected (3d Cir.), 554
– Flammability

– – Bathrobe, expert evidence not required, suit fails to survive summary judgment (3d Cir.), 13
– – Portable fan, $13.5M award attributed to experts (Pa. Ct. C. P.), 553

– Hospital bed defect, expert report not required (Tex.), 443
– Inaccurate medicine dosing cup, expert testimony of 20 to 30 percent inaccuracy not cause of 100 percent overdose (Ind.), 479
– Ladders

– – Engineer not testing product and not qualified to testify on design, testimony excluded (E.D.N.Y.), 523
– – Use of own test by expert properly excluded (E.D. Tenn.), 91
– – Weight test, failure to perform does not warrant dismissal (7th Cir.), 116

– Medical devices

See MEDICAL DEVICES

– Mental capacity of criminal defendant, physician testimony improperly excluded (Tenn.), 58
– Motor vehicles

– – Design defects

See MOTOR VEHICLES

– – Disclosure by automaker of internal litigation management database to plaintiff improper sanction (Fla. Dist. Ct.), 25

– Mower design defect, operator presence control lever, expert testimony on difficulty of removing device and pry marks lead to summary judgment for defense (D. Mont.)

See MEDICAL DEVICES

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

See PHARMACEUTICALS

– Pool deck chair, untimely expert evidence may be excluded at summary judgment (Tex.), 227
– Power wheelchair design defect claim, testimony lacking evidence of manufacturing process, inspection or testing insufficient for summary judgment (N.D.N.Y.), 498
– Press brakes, safety guard testimony used reliable methodology and was helpful to jury (W.D. Pa.), 62
– Qualifications, printing press defects, engineer who never worked in printing industry unqualified (2d Cir.), 90
– Rifle explosion, gunsmith's testimony properly accepted as reliable (M.D. Fla.), 93
– Seeds, definition of “resistant” in crop harm case, expert proof barred (D. Ariz.), 91
– Subpoena of expert's tax return and financial records to show bias barred (M.D. Tenn.), 205
– Teflon exposure, population assumptions unacceptable, class certification rejected (D.N.J.), 35

PSYCHIATRY

See MENTAL BEHAVIOR

PUBLIC SAFETY OFFICERS

– Firefighters

See FIRES

– Police

See POLICE