Yesterday the California Supreme Court chipped away at its version of the general acceptance test for admissibility of expert testimony in deciding Sargon Enters., Inc. v. Univ. of S. Cal., 2012 WL 5897314 (Cal. Nov. 26, 2012). read more
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In Weisgram v. Marley Co.,528 US 440 (2000), the Supreme Court warned, "Since Daubert, moreover, parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet. It is implausible to suggest, post- Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail." But the "second bite" approach is more common than you think. read more
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Posted by Dwyer, Anne (Guest Blogger) |
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PriceWaterhouse Coppers (PwC) recently released a new study, which takes an in-depth look at Daubert challenges to financial experts. The report analyzes post-Kumho Tire challenges to financial expert witnesses under the Daubert standard. The study identifies a number of observable trends in the frequency and outcome of these challenges based on federal and state court opinions issued over the past 11 years. read more
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Kapps v. Biosense Webster, Inc., et al., No. 09-cv-1039 PJS JSM (D. Minn. Sept. 27, 2011) involves a medical device, manufactured and sold by Biosense, cleared for “single use only,” but routinely “remanufactured” for reuse by an unrelated company through a process cleared by FDA on a “substantially equivalent” basis. Sidestepping for the moment several rich questions of regulatory compliance and “product identification,” a couple of discrete components of D. Minn.’s September 27th Order deserve special highlight: the exclusion of an expert opinion and the facile dismantling of plaintiff’s attempt to dress up an FDCA violation as negligence per se. read more
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The Federal Judicial Center recently published the third edition of its Reference Manual on Scientific Evidence. read more
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By order filed September 7, 2011, the Arizona Supreme Court adopted Daubert as expressed through the current version of Fed. R. Evid. 702. The Supreme Court also amended Rules 701 and 703, governing lay witness testimony and the bases for expert testimony, consistent with their federal counterparts. The order amending the rules, Supreme Court No. R-10-0035, can be found here. read more
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Just because a jury can add 2+2 does not mean expert testimony that the answer is 4 is too pedestrian under Daubert, according to the Eighth Circuit yesterday in WWP, Inc. v. Wounded Warriors Family Support, Inc., slip op., No. 10-1794 (8th Cir. Jan. 12, 2011). read more
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Last week significant amendments to expert disclosure provisions of Fed. R. Civ. P. 26 took effect. Time will tell whether these amendments will have a significant effect on the way attorneys work with experts and on Daubert practice and procedure in general. read more
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In July 2009 in Shalaby v. Newell Rubbermaid, Inc., the Southern District of California granted the defendant’s Daubert motion to exclude the testimony of the plaintiff’s causation expert, and subsequently granted summary judgment because the plaintiff could not carry his burden, imposed by California state law, to present expert testimony on causation. The plaintiff appealed to the Ninth Circuit, arguing that the district court erred in excluding the evidence after finding, allegedly, that the expert’s testimony satisfied California’s Frye general acceptance standard. The Ninth Circuit would have nothing to do with that theory, and readily affirmed the district court’s ruling. The Supreme Court refused to grant certiorari, for good reason.
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