Author
Marty Aisenberg, JD
Partner (Retired)
Marty Aisenberg, JD
Partner (Retired) · Juris Doctor
Marty Aisenberg is a retired Partner at Vident Partners and the author of more than 96 legal analysis articles published through the firm. His extensive body of work covers emerging case law, expert testimony challenges, Daubert and Frye standards, and developments across multiple practice areas. Marty's articles remain a valuable resource for attorneys navigating complex litigation matters that require expert witness testimony.
Areas of Expertise
Articles by Marty Aisenberg(96)
Marty Aisenberg’s retirement
Qualified immunity in the context of county jail medical care
Exclusion of expert opinion affirmed – Proper application of Rule 702 and Daubert – Standard of review.
Hindsight bias
Bankruptcy judge rejects Johnson & Johnson settlement plan.
Fertility doctor uses his own sperm for IVF.
Beware of using AI to generate citations.
An extraordinary case of criminal health insurance fraud.
Vident provides key expert in school suicide case – $3.1 million verdict for the plaintiffs.
The key role of an expert witness in the successful defense of a failure to warn case.
Like shooting fish in a barrel, redux.
Opposition to the FTC’s ban on noncompete agreements hits the courts, with divided results.
Foreseeability: An issue of law for the court, or an issue of fact for the jury? It depends.
Inconsistency between experts’ depositions and their affidavits is not grounds for summary judgment.
Workers are taking legal action over return-to-office mandates.
Hospital institutional liability for the negligence of contract physicians.
Non-compete agreements in medicine.
Medical institutional liability, take two.
An object lesson about choosing a medical expert in the wrong specialty.
Emoji in the courtroom.
Medical institutional standard of care and liability for breach, independent of respondeat superior liability.
Discovery principle tolls statute of limitations in a non-medical malpractice case.
U.S. v. Samuel Bankman-Fried – Prosecution moves to exclude the testimony of the defendant’s proposed expert witnesses.
Medical devices – FDA 510(k) clearance does not create a rebuttable presumption of non-defectiveness.
A revealing new study of the harms caused by diagnostic errors.
Using your opponent’s expert’s report to defeat summary judgment.
The tobacco litigation is not over.
Motor vehicle collision: Is expert testimony required to correlate damage to the plaintiff’s vehicle with the plaintiff’s claimed injuries?
Exclusion of expert testimony reversed – Proper application of Fed. R. Evid. 702 (and Daubert).
Product Liability: Metal-on-metal hip replacement – Verdict for the defendant on strict liability, but for the plaintiff on negligence – Judgment for the plaintiff affirmed.
Civil Procedure, Product Liability: Personal jurisdiction of American courts over foreign corporations.
Expert witness inference – the medical malpractice analogue to res ipsa loquitur.
Federal jury awards $59,000 in takings compensation to property owner whose house was severely damaged by SWAT team pursuing a suspect.
Thoughts on criminal liability for medical errors.
Medical breach of contract.
Two unanimous Supreme Court opinions in Nazi-era stolen art cases yield opposite results.
$19M jury award in swimming pool injury case – Biomechanical engineer provides key expert testimony.
Jury permitted to determine life expectancy without expert testimony. But why did the plaintiff’s attorney fail to provide it?
Trying to pull a fast one and not getting away with it.
Healthcare discrimination – ACA – General federal statute of limitation (4 years)
Comparative negligence in the context of medical malpractice – expert testimony is essential.
Transplant wars
First Circuit rejects Maine healthcare workers’ challenge to regulation requiring vaccination against COVID-19.
Communications Decency Act immunity – Intellectual property exception – A split in the circuits.
A lucid analysis and application of the “reliability” prong of the Daubert test in a complex product liability case.
Emergency Medicine’s Original Sin
Federal judge dismisses lawsuit by Houston Methodist Hospital employees who refused COVID-19 vaccination.
Like shooting fish a in a barrel.
The future of Zoom court
Employees of for-profit corporations providing prison medical care are not entitled to qualified immunity from § 1983 liability.
If you called your product “ipad”, would you expect to win a trademark dispute with Apple?
Amazon again.
Informed consent: Risks that must be disclosed – Physician-centered standard vs. patient-centered standard
If no expertise is required to resolve a disputed factual issue, an expert is not permitted to opine on it.
The unique quality that makes Vident Partners the best expert referral service.
The second wave of COVID-19 litigation: “Take-home” infections.
Is Amazon liable for third-party sellers’ defective products?
Medical malpractice – “Empty chair” defense fails without expert testimony that the non-party physician was negligent and caused the plaintiff’s injuries.
Abdin v. CBS – Star Trek – The Second Circuit boldly goes where no court has gone before.
Product liability defendant wins summary judgment because plaintiff’s expert offered no opinion on design defect.
Seventy-five percent of existing Roundup claims are settled. Future claims are also settled…and then they aren’t.
Vident Partners announces flat-fee merit reviews.
Admission/exclusion of expert testimony and the “abuse of discretion” standard of review
The crucial importance of laying an adequate foundation for expert opinion testimony.
The Ninth Circuit agrees: A medical opinion can be false within the meaning of the False Claims Act.
A topical (in two senses) lawsuit – and a reminder to wash your hands!
Dueling expert opinions create a triable issue in a False Claims Act case, defeating summary judgment.
Telling the story.
Pelvic mesh, again.
Should a consumer reasonably believe that diet soda promotes weight loss? The Ninth Circuit says no.
What makes an expert opinion so “speculative” that it can’t prevent summary judgment?
An expert witness for every occasion
Pennsylvania Supreme Court: Seven-year med mal statute of repose violates state constitution’s Open Courts provision. (Note: Vident provided the plaintiffs’ expert for this case.)
Kentucky Supreme Court reemphasizes the requirement of expert testimony on causation in medical malpractice cases; res ipsa doesn’t apply to causation unless it also applies to negligence.
The Kansas statutory cap on noneconomic damages has been struck down
Expert testimony on legal issues is not admissible.
A “next friend” can’t act pro se on behalf of the real party in interest – unless the trial court orders such action
No pending FDA action on hernia mesh, despite continued significant complication rates
FDA bans surgical mesh for transvaginal repair of pelvic organ prolapse
Federal diversity jurisdiction – Removal by home state defendant allowed when the defendant hasn’t been served yet
Roundup bellwether trial concludes with $80 million plaintiff’s verdict
Sandy Hook shooting – Wrongful death lawsuit against Bushmaster Firearms – Connecticut Supreme Court allows case to proceed on the theory of wrongful advertising and marketing
Medical expert’s affidavit in opposition to summary judgment fails to establish a triable issue on causation because it is “purely conclusory”
Healthcare provider liability for the negligence of an independent contractor – Apparent agency
Missouri recognizes the tort of negligent credentialing
Q: Can you establish causation in a personal injury case without a medical expert? A: Sometimes. But why take the risk?
Missouri statute requiring periodic payment of damages in med mal cases held unconstitutional by Missouri Supreme Court
$4.69 billion verdict against Johnson & Johnson upheld by trial judge, headed for appeal
Kentucky Supreme Court strikes down med mal panel law as violative of state constitution’s open-courts provision.
The testimony of a well-qualified expert can still be excluded under Federal Rule of Evidence 702
Bifurcated trial will limit plaintiff’s expert causation testimony in Roundup cancer litigation
Analyzing South Carolina's Expert Witness Statute
If you’re seeking (or opposing) dismissal based on spoliation of evidence, you need an expert witness.
Exclusion of two medical expert witnesses (internal medicine and diabetes) and a biostatistician under Daubert and Federal Rule of Evidence 702.
Plaintiffs’ fire expert witness fails to establish causation – Defense wins summary judgment.
Does your medical expert witness meet your state’s statutory qualification requirements?
Need an expert witness for your case?
Complimentary search · 24-hour turnaround · No obligation
Find an Expert