Plaintiff Mark Craighead (“Plaintiff” or “Craighead”) brought this wrongful conviction action against Defendants for, among other things, malicious prosecution and coerced confession related to his conviction for the 1997 Murder of Chole Pruett.
Plaintiff sought damages for mental and emotional injuries allegedly caused by his arrest, interrogation, conviction, and incarceration.
The Plaintiff disclosed Errol Liverpool, his treating counselor, who treated him for nearly nineteen months and diagnosed him with Post-Traumatic Stress Disorder (PTSD) and adjustment disorder. Defendants retained Dr. Sami Farhat to compile a forensic rebuttal report in which he concluded that he could not substantiate a clear loss of functional impairment or significant psychological injury resulting from Craighead’s wrongful incarceration.
Dr. Steven Farmilant, Plaintiff’s rebuttal expert, administered a series of diagnostic tests, diagnosed Plaintiff with Complex Post-Traumatic Stress Disorder (CPTSD) and major depressive disorder, and subsequently compiled a surrebuttal expert report in which he concluded that Plaintiff’s diagnoses were attributable to his wrongful incarceration.
Defendants filed motions to strike the testimony of experts Errol Liverpool and Steven Farmilant while Plaintiff filed a motion to strike the opinions of Defendants’ retained expert, Dr. Sami Farhat.
Mental Health Expert Witness
Dr. Errol E. Liverpool has been a licensed professional counselor for many years. He got his Ph.D. in counselor education from an accredited university in 2001.
Dr. Steven R. Farmilant received his MA in counseling psychology in 1992 and his doctor of psychology in 1995, and has been a licensed clinical psychologist since 1997. He taught courses at the Adler School of Professional Psychology for 15 years, including courses in trauma and victimology.
Sami Farhat, Ph.D., is a clinical and forensic psychologist based in the Metro Detroit region of Michigan. Farhat obtained his Ph.D. from the University of Detroit Mercy.
He completed a postdoctoral fellowship in Forensic Psychology at the Arkansas State Hospital through the University of Arkansas for Medical Sciences (UAMS), where he was subsequently appointed as Assistant Professor of Psychiatry conducting court ordered evaluations and serving as an expert witness. He participated in training and education, including supervising doctoral interns and presenting at the state wide training for community evaluators. During his time with UAMS, he also maintained a part time private practice where he conducted criminal and disability evaluations.
Defendants argued that Liverpool is not qualified to diagnose PTSD or offer opinions concerning its cause because he is a licensed professional counselor rather than a psychologist, psychiatrist, or forensic clinician; has not published on PTSD or trauma; lacked forensic training; and testified that he was appearing as a treating clinician rather than an expert witness.
Defendants further challenged the reliability of Liverpool’s PTSD diagnosis because he made it during the first treatment session, did not conduct a structured diagnostic interview or symptom-validity testing, did not review collateral records, and was unfamiliar with certain provisions of the DSM-5-TR.
The Court found that Liverpool may testify as to Craighead’s PTSD diagnosis and treatment. His opinions regarding his time as Plaintiff’s treating clinician define the scope of his testimony; they do not disqualify him from offering opinions formed during treatment altogether.
Defendants’ attacks on Liverpool’s PTSD diagnosis go to weight, not Liverpool’s overall qualification to testify as an expert on Craighead’s treatment and PTSD diagnosis, and Defendants are free to challenge its veracity during cross-examination at trial. A treating provider may rely on interviews, reported history, observed symptoms, and the course of treatment in offering opinions.
The Court further held that it will not prohibit Plaintiff from eliciting Liverpool’s causation opinion attributing Craighead’s PTSD diagnosis to his wrongful incarceration.
Accordingly, Liverpool may testify that, in his clinical opinion formed during the course of treatment, Plaintiff’s arrest and incarceration caused or contributed to the PTSD and related symptoms he treated. His testimony must remain confined to opinions formed during treatment and based on the clinical history, observations, training, and experience he relied upon in treating Plaintiff; he may not offer causation opinions developed at counsel’s request or from sources extraneous to that treatment.
B. Sami Farhat
Plaintiff argued that Farhat relied on incomplete data, offered only a “null” opinion, focused on functional impairment Plaintiff does not claim, and prepared an untimely surrebuttal.
The Court found that Farhat may offer opinions as to his timely rebuttal report, subject to certain limitations, and that he may not testify as to any opinions offered in his notes critiquing Farmilant’s report.
With respect to Farhat’s rebuttal report, his interview and record review provide a reasonable basis for an evaluation-specific opinion. Rule 702 does not require an expert to review every available record or contact every collateral witness before offering an opinion. The omitted treatment records and family interviews are proper subjects for cross-examination.
The Court held that Farhat may describe his examination, the materials he considered, his clinical observations, and his conclusion that the information available to him did not substantiate clinically significant functional impairment or a diagnosable psychological condition. He may not offer the broader opinion that Plaintiff experienced no functional impairment throughout the relevant period or equate the absence of clinically significant impairment during his evaluation with the absence of emotional injury or compensable damages.
Plaintiff also sought to exclude a surrebuttal critique prepared by Farhat after reviewing Farmilant’s report. Plaintiff argued that the critique was untimely, exceeded the scope of permissible rebuttal, and introduced new opinions after the expert-disclosure deadlines had passed.
The Court will not excuse an unauthorized and untimely expert disclosure based on a materially inaccurate account of the discovery record. Accordingly, Farhat may explain and defend the opinions contained in his timely report only. He may not offer any additional opinions first expressed in his notes critiquing Farmilant’s rebuttal.
C. Steven Farmilant
Defendants challenged Farmilant’s qualifications, SIMS and PAI analysis, CPTSD diagnosis, and causation opinion.
The Court found that Farmilant is qualified. He has been a licensed clinical psychologist since 1997, taught trauma and victimology, and provides clinical and forensic trauma services. The absence of board certification, memberships, or publications on the precise subjects affects weight, not qualification.
The testing disputes also go to weight. Farmilant explained how he integrated recognized instruments with records, interviews, observed behavior, and other indicators, including why the SIMS did not establish malingering and why the PAI coefficient did not support schizophrenia. Defendants may challenge the SIMS-score discrepancy, the supporting literature, the PAI interpretation, and the absence of CAPS-5 or PCL-5 testing; but Rule 702 does not require perfect methodology for expert testimony to be admissible.
Farmilant may testify to CPTSD. Its absence from the DSM-5 is not dispositive because it appears in the ICD-11 and Farmilant explained the criteria applied. Plaintiff does not intend to elicit PICS testimony. If it arises, Farmilant may describe Post Incarceration Syndrome (PICS) as a literature-based concept or PTSD subtype, but not as an official DSM-5 or ICD-11 diagnosis. Farmilant’s causation opinion is also admissible. He considered treatment and correctional records, collateral information concerning pre- and post-incarceration functioning, testing, and alternative stressors. Differential etiology requires consideration, not elimination, of every conceivable contributing cause.
The weight assigned to particular alternatives is for cross-examination.
Held
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Errol Liverpool. Liverpool may testify regarding PTSD diagnosis and treatment, longitudinal observations, Plaintiff’s disclosures and symptoms, causation, and treatment-related trauma concepts. He may not testify concerning adjustment disorder, Farhat’s forensic methodology, or false-confession science.
The Court granted in part and denied in part the Plaintiff’s motion to bar Dr. Sami Farhat. Farhat may testify to his timely report subject to the stated limitations but may not offer opinions first expressed in the rebuttal critique.
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Steven Farmilant. Farmilant may testify regarding his diagnoses, validity testing and malingering analysis, and causation. Any PICS testimony is limited as stated above.
Key Takeaway
An expert’s factual foundation must be sufficient for the particular opinion offered, and the Court may prevent an expert from extending a limited dataset beyond what it can reliably support.
Please refer to the blog previously published about this case:
Through various entities (hereinafter, the “Tarter Companies”), the Tarter family operates a large animal management and farm gate manufacturing business. Principally at issue in this case are the business transactions between Plaintiff C-Ville Fabricating, Inc. (doing business as Tarter Industries), and Defendant Hong Kong QMC Industry Company, LTD (“QMC”).
Defendant Josh Tarter is a shareholder of Tarter Industries. Plaintiff contends that at all relevant times, Josh held himself out as a high-ranking executive of the Tarter Companies and oversaw their operation. Plaintiff also alleged that Josh’s right-hand man was fellow Defendant Thomas Lewis Gregory.
Moreover, Plaintiff sued Josh Tarter, Thomas Gregory, and QMC because of their alleged undisclosed interest in QMC. The scheme allegedly resulted in the Tarter Companies wiring approximately $74,857,122.80 to QMC and its affiliates. Plaintiff asserted that during this period, Josh and Thomas hid their interests in QMC – despite a duty to reveal that information – and that Josh affirmatively lied about such interests on two occasions.
The Court has noted that the “thrust” of the Plaintiff’s allegations is that Josh and Thomas “used their senior positions with the Tarter Companies to ensure that components and parts were sourced from QMC, while siphoning Tarter funds to themselves through inflated rates for the purchased components” from QMC. Plaintiff alleged that they were damaged because they overpaid QMC for the components.
On June 5, 2019, the Court ordered the Clerk of Court to enter default against QMC. QMC has never participated in the litigation. Despite Josh and Thomas’ majority ownership interest in QMC, none of its financial records were disclosed during discovery.
Because Plaintiff was unable to obtain any of QMC’s financial records, they retained Dr. Christopher Clifford.
Motion to Exclude
Clifford conducted a financial analysis of QMC’s profits. The expert report (“Clifford Report”) calculates the difference between the amount the Tarter Companies actually paid to QMC and price quotes of the same products from a Chinese business called LongLife.
Clifford’s calculations were derived from an Excel spreadsheet detailing 7,094 purchases made by Tarter Industries from QMC between 2010 and 2017 and an Excel spreadsheet detailing 5,885 price quotes from LongLife on parts previously purchased by Tarter Industries from QMC. Clifford then estimated the economic damages by calculating QMC’s markup as the difference between the price charged by QMC and that quoted by LongLife. The average markup of the 5,885 price quotes was 27.45%. Clifford then assumed an average markup of 27.45% for the 1,210 purchases that did not have a direct quote from LongLife. Clifford aggregated the markups to determine the markup paid on an annual basis and compounded the result to present value at 7.05%. The Clifford Report concluded that the total damages suffered by the Plaintiff was approximately $24,162,158. The Defendants sought to exclude the Clifford Report on numerous grounds.
Finance Expert Witness
Dr. Christopher Clifford holds a Ph.D. in finance from Arizona State University. His research interests focuses on non-banking intermediaries such as financial advisors, mutual funds, and hedge funds. Clifford’s work has been mentioned in the Financial Times, The Economist, and the Wall Street Journal. His representative papers have been published at the Review of Financial Studies, Journal of Financial Economics, and the Journal of Financial and Quantitative Analysis.
A. The Clifford Report Relies on a Valid Comparison
Defendants argued that the Clifford Report should be excluded because it erroneously assumed that the QMC payments and the LongLife Quotes are comparable.
Because the Plaintiff is unable to view QMC’s financial documents, some way of calculating its profits is necessary. Although Defendants assert that the payments were an apples-to-oranges comparison to the price quotes, the evidence shows otherwise. In fact, the comparisons, minus the obvious shipping costs discrepancy, are very similar. Most parts the Tarter Companies ordered from QMC had an exact comparison with LongLife.
This is because LongLife is in the same industry as QMC, and, in fact, was QMC’s supplier. Contrary to Defendant’s argument that the comparison is “unhelpful and misleading,” it is a reliable way determine QMC’s profits since its records are unavailable. Allowing this report will not confuse the jury, and any discrepancy in the Clifford Report is properly dealt with by vigorous cross examination.
Clifford has testified that his analysis is standard in the finance community and can be found in “every finance textbook, in any corporate finance or valuation-based textbook at the undergraduate or graduate level.”
B. The Clifford Report has a Sufficient Basis for Determining the Plaintiff’s Economic Damages
Next, Defendants take issue with the fact that the Clifford Report failed to allocate damages to Tarter Industries individually.
Defendants argued that the Clifford Report aggregates damages amongst all four Tarter Companies, which is irrelevant and entirely unhelpful, since the only remaining Plaintiff is Tarter Industries.
While parts of the Clifford Report reference economic damages suffered by the “Plaintiffs,” this is due to the fact that the report was created at the time when the other three Tarter Companies were still members to the lawsuit. However, the Clifford Report bases its calculations “solely” on the sales between Tarter Industries and QMC.
The total damages figure is based off 7,094 orders, all of which were purchased by Tarter Industries. This makes sense given that Tarter Industries “is responsible for the manufacture and purchase of component parts . . .” The fact that the Clifford Report’s conclusion says “Plaintiffs” instead of “Plaintiff” is immaterial, because the remaining Plaintiff is the entity whose purchases the calculations were based off.
C. The Clifford Report Satisfies Rules 26(a)(2)(B) and 37(c)(1)
Defendants argued that the Clifford Report should be stricken because the Report did not include information about Clifford’s testimonial experience over the last four years and on his compensation.
Each of those are required to be disclosed during discovery. The drastic sanction of striking the Clifford Report is not warranted because the nondisclosure was harmless. Plaintiff states that the Clifford Report did not mention Clifford’s testimonial experience over the past four years because he has none. Additionally, the Plaintiffs indicated that Clifford’s rate is $400 per hour. Because the error was harmless, the Court will not strike the Clifford Report on these grounds.
D. Additional Arguments in Defendants’ Supplemental Briefing
Defendants submitted five new arguments in their supplemental briefing. The Court will address each in turn.
i. Damages and disgorgement
Defendants argued that Clifford’s model of “economic damage” is not really a measure of damage to the Plaintiff, but rather a measure of the amount Defendants profited from marking up QMC prices.
Plaintiff has given no indication that it seeks to recover QMC’s profits twice over, and any attempt to do so would not be permitted. Rather, the Clifford Report is merely a way to quantify the harm allegedly caused by Defendants. If Plaintiff was to prevail on the merits of its claims, it would be entitled to recover profits earned by QMC.
Plaintiff’s damages are the Defendants’ profits, because the extra price paid to QMC would otherwise be money it saved.
Even if this distinction mattered, the Plaintiff would still have to prove the amount of revenue the Defendants earned to be entitled to disgorgement. Because they do not have access to QMC’s financial records, the Clifford Report helps fill in the missing pieces.
Further, for purposes of a motion to exclude, the Court’s gatekeeping function is limited to the considerations in Rule 702. The Court has already determined that Clifford’s report satisfies Rule 702 and that his testimony will help assist the jury. Defendants’ attempt to distinguish the remedies of damages and disgorgement did not alter the Court’s Rule 702 determination.
ii. The Clifford Report is not an adoption of Plaintiff’s lay opinion, nor is it basic math
Defendants contended that the Clifford Report is not an expert report at all, but rather Plaintiff’s own position clothed in expert garb. Defendants argued that Clifford “blindly accepted that the LongLife quotes were comparable to the QMC prices” and that he conducted basic math to arrive at his opinion. This, Defendants argued, amounts to a wholesale adoption of Plaintiff’s position.
To determine QMC’s profits, Clifford necessarily had to reference the Plaintiff’s purchase records. Using such records to calculate QMC’s profits is not a wholesale adoption of Plaintiff’s position.
Additionally, the Clifford Report is more than basic math. The Clifford Report analyzed 7,094 purchases over a seven-year span. It then aggregated QMC’s markups on an annual basis and compounded the result to present value at a rate of 7.05%.
Additionally, Clifford based his calculations off specific data that is best understood by a specialist in the finance industry.
iii. The Clifford Report based its calculation on gross profits
Defendants argued that Plaintiff’s reliance on gross profits is improper; that the correct measure of damages should be net profits. Even if Defendants are correct, the Court can resolve this issue with specific jury instructions, avoiding the need to take the harsher path of excluding an expert. Additionally, Clifford’s figures will be subject to scrutiny on cross examination and defense counsel is free to question all aspects of his financial calculations. The Court will not exclude the Clifford Report on that basis alone.
iv. Federal Rule of Evidence 403
Defendants’ final argument is that the Clifford Report should be excluded because it will mislead the jury. To support this claim, Defendants repeat its argument about economic damages and disgorgement. The Court has already resolved that argument and will not address it further. Because the probative value of the Clifford Report is not substantially outweighed by its likelihood of misleading the jury, it will not be excluded.
Held
The Court denied the Defendants’ motion to exclude the testimony of Christopher Clifford.
Key Takeaway
The Clifford Report will help assist the jury in understanding the financial impact of the transactions between Plaintiff and QMC. Plaintiff has established that Clifford has specialized knowledge in the financial industry; based his Report on thousands of actual purchases over a seven year period; used principles taught in “every finance textbook, in any corporate finance or valuation-based textbook at the undergraduate or graduate level;” and applied present value calculations to all 7,094 purchases. Because Plaintiff has proven by a preponderance of evidence that the requirements of Fed. R. Evid. 702 have been met, the Clifford Report will not be excluded.
Plaintiff Mark T. Craighead brought this action in connection to a 2002 wrongful conviction of manslaughter and possession of a firearm during the commission of a felony for the 1997 homicide of his friend Chole Pruett.
Craighead was exonerated twenty-one years later, then he filed this federal civil rights action for malicious prosecution and violations of his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments against Defendants City of Detroit, Investigators Barbara Simon and James Fisher, Lieutenant Bob Jackson, and Polygraph Operator Andrew Sims.
The parties offered the opinions of their respective experts on issues concerning general police practices; investigative decisions and techniques; polygraph examinations and false confessions.
The parties filed cross-motions to exclude each other’s experts concerning investigation of the underlying crime, including the decision to pursue Craighead as a suspect, the conditions of his detention and/or arrest, the administration of a polygraph examination, and the circumstances surrounding his false confession.
Law Enforcement Expert Witness
Todd L. Mutchler has 38 years of law enforcement experience. He has vast knowledge and deep understanding of law enforcement operations; two years working in dispatch and 36 years as a sworn law enforcement officer with four different police departments.
Bradford J. Beyer, Ph.D. is a retired Special Agent of the Federal Bureau of Investigation (FBI) where he was employed for 27 years. He was certified by the FBI as a Polygraph Examiner for 18 years and as a Crisis Negotiator for 8 years.
James B. McCloughan is experienced examiner with a demonstrated history of working in the law enforcement industry and over 25 years of experience in polygraph.
Michel A. Cramer Bornemann was the former co-Director of the Minnesota Regional Sleep Disorders Center at Hennepin County Medical Center in Minneapolis, Minnesota. He was an Assistant Professor holding joint appointments in the Departments of Neurology and Medicine at the University of Minnesota Medical School. He was also a faculty instructor in the Department of Biomedical Engineering at the University of Minnesota Graduate School, Twin Cities.
Bornemann has several ongoing research projects in the field of Sleep Disorders and has received funding from a wide variety of sources, including the National Institutes of Health, the Academic Health Center at the University of Minnesota, as well as from medical technology and pharmaceutical industries.
Dr. Melissa Beth Russano is a professor of criminal justice and a research psychologist whose principal areas of research are investigative interviewing, interrogations, and confessions in law enforcement, military, and human intelligence settings.
She has conducted research in those areas since 2002, published numerous peer-reviewed articles and chapters, developed a widely used laboratory paradigm for studying true and false confessions, trained local, state, and federal law enforcement officers, and received federal funding from the U.S. Department of Justice and U.S. Department of Defense for interrogation research.
Plaintiff retained Todd Mutchler to “provide his professional opinions regarding the investigation, arrest, and prosecution of Craighead” by “assessing whether there were deviations from generally accepted police practices in [DPD Investigators’] the investigation” into the June 27, 1997, shooting that resulted in the death of Chole Pruett.”
Defendants sought to strike Mutchler’s opinions and exclude his testimony at trial because (1) he is unqualified and his opinions are unreliable; (2) he utilizes an incorrect standard to form his opinion; (3) he has not disclosed the standards and authorities upon which he relies; and (4) portions of his opinion are irrelevant and unfairly prejudicial.
Analysis
First, despite over 38 years of police experience, Mutchler is apparently unqualified to serve as Plaintiff’s police practices expert. Defendants seemed to misunderstand the function of Mutchler’s testimony, which is to “educate the jury as to standard police procedures in conducting investigations.”
Under the same false premise, Defendants maintained that Mutchler failed to apply “specialized knowledge” to the fact of this case.
Here, the Court is satisfied that Plaintiff has shown that Mutchler is qualified to address not just one, but several issues in this case within the scope of the expertise for which Plaintiff has offered him.
Second, Defendants asserted that Mutchler applied a negligence, rather than intentional, affirmative conduct standard to Defendants’ conduct. Considering Plaintiff has already clarified the scope of his expert’s testimony, the Court is satisfied that Mutchler’s opinions will not exceed this scope.
Third, Mutchler allegedly failed to satisfy the requirements outlined in Rule 26 because he did not disclose the standards and authorities upon which he relied.
Plaintiff contended that the basis for Mutchler’s opinion is clear, and the Court agreed. In fact, looking to Mutchler’s expert report itself, he expressly stated that his “approach involves assessing the actions of law enforcement officers against widely accepted police practices, policies, and legal standards.”
Finally, Defendants asserted that Mutchler provided opinions on the conduct of Non-Defendant officers, which is irrelevant and unfairly prejudicial. At this stage of the litigation, before the parties have fully briefed the motions in limine and the Court has ruled on those motions, the Court found Plaintiff’s concerns premature.
The Court, however, granted Defendants’ request to strike any of Mutchler’s opinions regarding application of a negligence standard to the Complaint.
Bradford Beyer
Defendants retained Dr. Bradford Beyer to author two reports in this case. At a high level, he was to conduct a review “in light of the polygraph technique, law enforcement interview and interrogation methods, and the phenomenon of false confessions.”
The Court found that given Beyer has “considerable experience in the field of criminology and because he will be testifying concerning a discrete area of police practices about which he has specialized knowledge,” his testimony is admissible.
By the same token, the Court is also satisfied that Beyer’s background is sufficient to qualify him as an expert on investigative techniques and decisions, false confessions, and the associated risk factors.
As for Plaintiff’s argument that Beyer offered opinions bearing on Plaintiff’s credibility, the Court agreed with Plaintiff and found such opinions improper.
The Court’s preclusion also extends to any of Beyer’s opinions on ultimate issues in this case to the extent that those opinions include determinations of Defendants’ liability in this case, or lack thereof.
Finally, Plaintiff argued that Beyer employed an improper methodology and he offered opinions that lacked foundation. The Court found otherwise. Plaintiff is correct that “police practices experts may opine on proper police procedure, but they must employ an appropriate methodology.”
However, the Court did not find that Beyer relied upon improper methodology. As an example, Plaintiff pointed to Beyer’s opinion that “Investigator Fisher and Lt. Jackson’s investigative decision to start with Craighead bore obvious fruit as he went on to confess to the murder of Pruett and was then subsequently charged and convicted for his crime.” At most, the Court found that this implicates potential impermissible credibility determinations, which the Court has already precluded.
Michel Bornemann
Bornemann is a medical doctor who specializes in sleep medicine. Defendants retained him “to review case files in an attempt to provide an unbiased objective expert medical opinion as to whether sleep deprivation (and subsequent cognitive impairment) was a primary influence accounting for Mark Craighead’s false confession and subsequent wrongful conviction in 2002 pertaining to the 1997 murder of his friend, Chole Pruett.”
Analysis
According to Plaintiff, Bornemann relied on an incorrect sleep timeline in assessing whether Plaintiff experienced sleep deprivation that contributed to his false confession, therefore, the Court should bar his opinions.
Bornemann considered Plaintiff’s Complaint and his witness statements; transcripts of the 2001 Walker hearing, jury trial, and evidentiary hearing, and October 1, 2025 hearing; and 2013 photographs of DPD’s 9th floor cells in preparing his report.
As a result, the Court will not bar Bornemann’s opinions on this ground.
Next, Plaintiff accused Bornemann of “making factual determinations regarding whether the Defendants engaged in conduct that prevented Craighead from sleeping while in custody.”
Upon an independent review of the report in its entirety, the Court found that Bornemann’s opinions improperly entered the territory of questions reserved for the jury.
To that end, Bornemann was precluded from offering any testimony regarding whether (1) Defendants were responsible for Craighead’s sleep deprivation or (2) there is “compelling evidence to support that insufficient sleep was a significant influence that eventually lead to Mark Craighead’s false confession.”
James McCloughan
Plaintiff retained McCloughan as a polygraph expert “to offer opinions on the propriety of polygraphing a subject who was as sleep-deprived as Plaintiff, and the impacts that Plaintiff’s sleep deprivation could have on his polygraph results.”
A review of McCloughan’s expert report reveals that the entirety of his opinions concerns Sims’ alleged acts and overall conduct. The Court has determined that Sims was entitled to qualified immunity which means he is no longer a Defendant in this action.
Accordingly, McCloughan’s opinions and any related testimony are not directed at any of the remaining issues in the case.
Melissa Russano
Craighead retained Russano as a false confessions expert to opine on the psychology behind interrogations, confessions, and the risk factors associated with false confessions.
Russano’s expert report generally offers three categories of opinions. First, she explains the phenomenon of false confessions and the relevant social science research. First, she explained the phenomenon of false confessions and the relevant social science research. Second, she identified known risk factors for false confessions and discusses their potential application here. These risk factors include: “(a) prolonged custody, isolation, and interrogation; (b) physical abuse/threats of physical harm/physical discomfort/deprivation of basic necessities; (c) sleep deprivation; (d) multiple interrogators; (e) guilt-presumptive approach; (f) presentation of false/unreliable evidence; and (g) threats and promises.” Lastly, Russano explained a framework for assessing the reliability of confession evidence by considering dependent and independent corroboration.
Analysis
A. Qualifications
Defendants argued that Russano is not qualified to offer case-specific opinions because she is a research psychologist rather than a clinician, has not personally evaluated Plaintiff, has not conducted a custodial interrogation, and is not a sleep-medicine specialist.
The Court disagrees. The relevant inquiry is not whether an expert possesses every form of experience that might bear on a subject, but whether her “qualifications provide a foundation for [her] to answer a specific question.”
Russano’s education, research, publications, laboratory work, law-enforcement training, and more than two decades of specialized study directly concerning the psychology of interrogations and confessions. That foundation qualifies her to explain false-confession research, recognized interrogation-related risk factors, and the significance of those factors within her discipline.
Defendants’ objections also misstate the nature of the proposed opinions. Russano does not purport to diagnose Plaintiff, assess his clinical condition, or offer a medical diagnosis concerning sleep deprivation. She proposes to explain how conditions such as fatigue and sleep deprivation are treated in the false-confession literature and how those conditions may affect a person undergoing interrogation. Nor was she required to personally interview Plaintiff or conduct the interrogation herself.
B. Reliability
Defendants contended that Russano’s opinions are unreliable because the prevalence of false confessions is unknown, her assessment of Plaintiff’s confession has not been empirically validated and has no known error rate, and no fixed standard governs how the identified risk factors are weighed.
Plaintiff has demonstrated that Russano’s opinions draw from peerreviewed case studies, observational and laboratory research, meta-analyses, and accepted principles of cognitive and social psychology concerning conditions associated with an increased risk of false confession.
Her corroboration analysis likewise distinguishes details independently verified or unknown to investigators from details that may have originated with investigators. These methods are transparent, grounded in the literature identified in her report, and capable of being tested against the record through cross-examination and contrary evidence.
In sum, Russano applies recognized research to the disputed circumstances of an actual confession without claiming that the identified factors themselves establish its falsity. Plaintiff has therefore shown that Russano’s testimony rests on sufficiently reliable principles and methods.
C. Helpfulness and Speculation
Defendants separately argued that Russano’s opinions are too speculative to assist the jury.
Russano did not intend to testify that the alleged interrogation conditions caused Plaintiff to confess falsely or that the confession was in fact false. Rather, her testimony will explain the phenomenon of false confessions, identify conditions that research associates with an increased risk of false confession, and explain which factors would be implicated under the facts found by the jury.
Moreover, the conditional nature of Russano’s application did not make it speculative. An expert may rely on assumed facts that have support in the record; and disputes or weaknesses in those assumptions ordinarily affect weight, not admissibility.
Here, Plaintiff’s account of prolonged isolation, food and sleep deprivation, a late-night polygraph, threats concerning his job and family, and a promise of release implicates the risk factors identified in Russano’s report. Her testimony therefore fits the disputed evidence and may assist the jury, while Defendants remain free to challenge its factual premises through cross-examination and contrary evidence.
D. The Role of the Jury
Defendants also contended that Russano intends to tell the jury which evidence to credit and how to weigh Plaintiff’s confession.
Russano’s conditional application of the research to each account does not tell the jury which version to believe. It leaves the predicate factual and credibility determinations where they belong, with the jury, and supplies specialized knowledge concerning the significance of the facts the jury may find.
That said, the Court clarified the permissible scope of Russano’s testimony at trial. She may explain the phenomenon of false confessions, recognized risk factors, the psychological mechanisms associated with those factors, the factors potentially implicated under the parties’ competing factual accounts, and the concepts of dependent and independent corroboration. But she may not offer a conclusive opinion that Plaintiff’s confession was false or unreliable, state that the jury should not rely on the confession, or otherwise tell the jury what conclusion to reach on that ultimate factual question. This limitation does not warrant excluding her testimony altogether.
E. Rule 26 Disclosures
Defendants finally argued that Russano’s disclosures are deficient because she did not retain notes from her review of the record and because her report did not include opinions concerning the report of Defendants’ sleep expert, Michel Bornemann.
Bornemann’s report did not exist when Russano prepared her report. After reviewing it, she made notes that were produced to Defendants in response to their subpoena before her deposition. Defense counsel then questioned her about those notes and elicited her opinions concerning Bornemann’s report.
Accordingly, Russano’s produced notes and deposition testimony made the opinions known to Defendants during discovery and in writing. Questions asked during an expert deposition may also bear on the permissible scope of the expert’s trial testimony.
Even assuming a technical supplementation requirement remained, the timing of Bornemann’s report substantially justified the absence of the opinions from Russano’s initial report, and Defendants’ receipt of the notes and examination of Russano rendered any omission harmless under Rule 37(c)(1). The Court will not exclude Russano’s testimony on this basis.
Nor did Russano’s failure to retain separate notes from every portion of her review, standing alone, establish that her report omitted the facts, data, bases, or reasons supporting her disclosed opinions.
Held
The Court granted in part and denied in part Defendants’ motion to strike expert Todd Mutchler.
The Court granted in part and denied in part Plaintiff’s motion to bar the testimony of Defendants’ expert Dr. Bradford Beyer.
The Court granted in part and denied in part Plaintiff’s motion to bar opinions of Defendants’ retained expert Dr. Michel Bornemann.
The Court denied as moot Defendant’s motion to strike the testimony of James McCloughan.
The Court denied the Defendants’ motion to strike the testimony of expert Melissa Russano.
Key Takeaway
It is not an expert’s role to apply the law to the facts—that task is reserved for a jury. Rather, an expert’s testimony is relevant when it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”
An expert’s qualifications—let alone that of an expert with nearly four decades of experience—is not “in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.”
Plaintiff sued Defendants for their purported involvement in unlawfully accessing and disclosing confidential financial information pertaining to him, and to others similarly situated to him, in connection with a state court case against Plaintiff’s accountant. As part of the discovery in that case, which involved claims against the accountant for contractual breaches and related business torts, the State Court ordered the accountant to provide access to client records. Plaintiff thereafter filed this putative class action. Plaintiff’s motion for class certification was denied on July 20, 2026.
Plaintiff has disclosed Jeffery Stollman as an expert on the two statutes that Defendants are accused of violating in this case—the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCA)—as well as on damages.
Privacy Expert Witness
Jeffery P. Stollman is an identity and privacy expert with decades of experience in the technology and privacy fields. His educational background is also in those fields, as well as in economics
To begin with Stollman lacked sufficient familiarity with the ECPA and SCA to qualify him to offer legal opinions on these statutes. His deposition testimony indicated, for example, that before Plaintiff retained him for this case, Stollman had not read the statutes and did not know the good faith reliance defense applicable to them.
As to Stollman’s methods, he reviewed the operative pleading in this case and read the text of the statutes to arrive at his opinions as to how the complained-of misconduct amounted to violations of the ECPA and SCA, and he calculated damages based on general risks associated with the disclosure of personally identifiable information, such as the information that Plaintiff alleged Defendants unlawfully disclosed. The Court held that Stollman’s methods regarding the ECPA and SCA are unreliable because they amount to his ipse dixit.
As to helpfulness, Stollman concluded that Defendants violated the ECPA and the SCA, and that in general, damages from unlawfully disclosed information totaled approximately $5,905, although additional analysis aimed at increasing precision could “result in values significantly lower or significantly higher.” These conclusions are not helpful. Respecting the ECPA and SCA, an expert “may not . . . merely tell the jury what result to reach” and “may not testify to the legal implications of conduct” because “the Court must be the jury’s only source of law.”
Held
The Court granted Defendants’ motion to exclude Jeffery Stollman’s testimony.
Key Takeaway
Expert testimony will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.
Intus and RTZ both work with Program of All-Inclusive Care for the Elderly (“PACE”) facilities, which provide care to elderly patients who live in non-institutional settings in the community. RTZ developed the PACECare software system and licenses it to PACE facilities to help manage data, including patients’ electronic health information (“EHI”). Some PACE facilities also contract with Intus, which designed a product to analyze data from patients’ electronic health records to help identify risks and improve care.
The parties dispute whether RTZ has improperly blocked Intus’ access to data, including EHI, contained in PACECare. Intus asserts three claims for relief: intentional interference with contractual relations; intentional interference with prospective economic advantage; and violation of California’s unfair competition law (“UCL”).
Its UCL claim is based on its contention that RTZ unlawfully engaged in “information blocking,” in violation of the 21st Century Cures Act and its implementing regulations.
RTZ has asserted four counterclaims: violation of the California Comprehensive Computer Data Access and Fraud Act; violation of the Computer Fraud and Abuse Act; trespass to chattels; and violation of the UCL.
Dr. Kristopher J. Hult received a Ph.D., M.A., and B.A. in Economics from the University of Chicago, and a B.S. in Mathematics from the University of Chicago.
Hult’s areas of expertise are in the economics of antitrust, competition, industrial organization, and healthcare.
Peter Schwechheimer is an economic consultant and testifying expert with nearly three decades of professional experience in the economics of intellectual property, antitrust, commercial damages, transfer pricing, and technology licensing including the licensing of standard essential patents (SEPs).
Traci Creegan has over twenty-five years of healthcare and management experience focused on health information technology (IT) and regulatory compliance.
Intus sought to exclude Traci Creegan, one of RTZ’s experts, from offering four opinions relating to liability: “1) that RTZ is not an actor under the Cures Act, 2) that RTZ did not violate the Cures Act [by engaging in information blocking], 3) that the manner exception applies to RTZ’s conduct, and 4) that Intus departed from industry standards.”
The parties dispute whether the Court has already decided that RTZ is an actor under the Cures Act and that RTZ engaged in information blocking. The Court did not decide the former, but it did decide the latter.
As a result, Creegan’s testimony on whether RTZ engaged in information blocking is excluded because that issue is “deemed established for purposes of the trial of the case.”
Analysis
In addition, her opinion on that question, as well as her opinions that RTZ is not an actor and that the manner exception applies, is improper expert testimony because an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.
In this case, Creegan opined that “RTZ is not ‘an actor’ subject to the information blocking regulations”; that “RTZ’s conduct did not constitute information blocking as defined by federal regulation”; and that “even if RTZ’s conduct could be construed as information blocking, which it was not, the circumstances satisfy the factual conditions of the Manner Exception.”
These opinions are improper expert testimony. According to the Court, whether RTZ is liable for violating the information-blocking provisions of the Cures Act—including whether RTZ is a covered “actor” and whether an exception applies—is for the jury to decide.
Creegan may, however, testify as to industry standards and whether the parties complied with them. Such testimony does not improperly embrace the ultimate issues the jury must decide.
Intus argued that Creegan’s opinions on industry standards are irrelevant, but that is incorrect. To determine whether the manner exception applies, the jury will need to consider whether RTZ made “at least some reasonable efforts” to reach an agreement with Intus to share information.
Whether the parties complied with industry standards bears on that question and is therefore relevant.
As a result, Creegan may not testify that RTZ is not an actor under the Cures Act; that RTZ did not engage in information blocking as defined in the Cures Act; or that, even if RTZ did engage in information blocking, the manner exception applies to RTZ’s conduct. However, Creegan may testify on compliance with industry standards.
Shawn Fleury
Although RTZ correctly observed that much of this testimony interprets email correspondence that presumably will be before the jury, it also opined on how the requests expressed in the emails relate to standard industry practice.
RTZ is incorrect when it argued that Fleury’s opinions “would not assist the jury’s understanding.” Intus is entitled to present Fleury’s testimony to counter Creegan’s testimony regarding industry standards. To the extent RTZ disagreed with Fleury’s reading of the email correspondence, it is free to challenge Fleury’s interpretations on cross-examination.
Fleury stated, “The email notes that Medications are included under the Patient data that is being requested, which likely corresponds to the ‘redirect.main.meds.new’ module. As such, Creegan’s opinion that this module falls outside of the request is unsupported and factually incorrect.” He continued, “Also significant is the inclusion of the abbreviation ‘etc.’ in the requirements, which indicates that additional data elements may be necessary to complete [Intus’s] responsibilities to its customer.”
Fleury has no basis for opining on what “etc.” in an email not written by him might refer to. Moreover, he testified at his deposition that he was “not trying to interpret what other data elements [the author of the email] could have meant by having et cetera in there.”
However, the Court found no basis to exclude the remaining paragraphs in this section of Fleury’s report. RTZ did not argue, for example, that it is improper for Fleury to comment on “the number of times that certain modules were accessed by Intus’ assigned accounts” to conclude that he “would expect a higher volume of audit log entries if there was systematic data mapping occurring by Intus,” or to opine that the audit logs contain no evidence “that Intus exceeded the permissions of the accounts which had been provisioned by RTZ.”
Kristopher Hult
Hult bases his analysis on his “understanding that starting in September 2022, RTZ refused to allow Intus access to the electronic medical records (EMR) data stored in RTZ’s PACECare and later prohibited Intus’s clients from providing access to Intus.”
He stated that his “calculations can be adjusted should the finder of fact determine an alternative appropriate timeframe.”
RTZ did not challenge Hult’s economic expertise or the economic principles that he applies, but it did challenge the factual bases for some of his opinions.
RTZ argued that Hult’s testimony incorrectly assumes that any information blocking started in September 2022, when RTZ sent Intus a cease-and-desist letter, even though Intus acknowledged in discovery responses that it continued to log in to PACECare after that date. Hult testified at his deposition that the relevant question is whether Intus had “a loss of access that affected their ability to perform their services,” and not whether Intus had “no access to data.”
RTZ disputes the factual basis for Hult’s testimony, but that does not render Hult’s opinions unreliable. If the jury agrees with RTZ’s interpretation of the facts and concluded that Intus still had access to data after September 2022 that was sufficient for Intus to perform its services, then it can discount Hult’s testimony accordingly.
Although RTZ has presented reasons why a jury might discount the weight of Hult’s opinions, whether to credit his testimony is for the jury to decide. The Court is satisfied that Hult’s testimony is admissible under Rule 702 and denied RTZ’s motion to exclude it.
Peter Schwechheimer
Intus sought to exclude Schwechheimer’s opinions regarding RTZ’s damages if RTZ were to prevail on its counterclaims. Schwechheimer opined on the “economic damages resulting from Intus’ unauthorized access to and use of RTZ’s PACECare software,” providing one figure for June 2021 through December 2024 and a second figure if the jury were to determine that the unauthorized access continued through at least December 2025.
He opined that Intus “was unjustly enriched by its ongoing system access to RTZ’s PACECare software,” and that this “would likely manifest in a shorter development cycle, accelerated market entry, and additional venture capital funding.”
Some of Intus’s criticisms of Schwechheimer’s testimony go to weight and not admissibility. For example, Intus argues that Schwechheimer improperly attributes lost profits to RTZ based on contracts that Intus contends were acquired by Collabrios Health. However, as the Court has previously observed, Intus has cited no “evidence that [Schwechheimer’s] report characterizes the contracts as belonging to or having been assigned to Collabrios.”
Intus’s remaining challenges do go to admissibility, and the Court accordingly excluded portions of Schwechheimer’s testimony. First, Schwechheimer may not testify about the classification by Laura Emery, Senior Product Manager at Collabrios, of various PACECare modules accessed by Intus as High, Medium, or Low, with High modules being ones “that provided insight into PACECare’s organizational structure and/or included features or functions common to standard EHR software.” Second, Schwechheimer may not testify that accessing PACECare allowed Intus to develop CareHub on an accelerated schedule. Third, Schwechheimer may not testify about Intus’ raising of capital. Finally, Schwechheimer may not testify about what the law requires, including that disgorgement of profits is an available remedy under the California Comprehensive Computer Data Access and Fraud Act.
Held
In sum, the Court denied the motion to exclude the testimony by Kristopher Hult. It granted in part and denied in part the motions to exclude testimony by Traci Creegan, Shawn Fleury, and Peter Schwechheimer.
Key Takeaway
The Court’s role at this stage of the proceedings is not “to engage in freeform factfinding, to select between competing versions of the evidence, or to determine the veracity of the expert’s conclusions.”
Instead, the Court “is to determine the scientific validity of an expert’s principles and methodology, not to determine whether their hypothesis is correct, or to evaluate whether it is corroborated by other evidence on the record. That is for the litigants to argue, and for the jury to decide.”
This legal malpractice action arises from Defendants’ representation of Plaintiffs in an eminent domain proceeding involving the Westside Connector project. Defendants retained Kannon Conway, Esq., an experienced eminent domain attorney, to opine on the applicable standard of care and the viability of a challenge to the taking. Conway concluded that any such challenge would have been futile.
Kannon C. Conway, Esq. routinely advises and represents property owners whose property is being taken by governmental entities under the power of eminent domain.
Conway is also the current Tennessee-affiliate member of the Owners’ Counsel of America, a nationwide network of leading eminent domain lawyers dedicated to representing property owners.
Conway opined that: the Defendants complied with the duty they owed to the Plaintiffs as their clients in an attorney-client relationship; the Defendants acted within the scope of their engagement by the Races; the Defendants provided sound legal advice and adequately communicated this advice; they took appropriate steps to protect the Races’ financial interests; they provided competent representation in the Underlying Case; and the Races did not suffer harm as the result of any alleged breach of duty by the Defendants.
Analysis
The Court found, as an initial matter, that the Plaintiffs’ motion to exclude is not in compliance with Local Rule 7.01(a)(1), which requires a certification that counsel has conferred with counsel for the opposing party before filing the motion and a statement of whether the relief requested is opposed. On that basis alone, the motion is subject to denial.
Further, the Court found, based on its review of the motion to exclude and the documents filed by both parties, that neither exclusion of the Defendants’ expert’s report nor any other sanction is warranted under Rule 37(a). The Plaintiffs simply have not identified any discovery violation. At most, they contended that the Defendants did not supply all available discovery materials to their expert, but they do not contend that the Defendants withheld discovery from them (though it appears that the Plaintiffs may have withheld documents from the defendants).
As for exclusion under Rule 702, the Court, in performing its gatekeeping function under that rule, found that Conway is qualified to testify on the subject matter of his report and that his proffered opinions are both reliable and relevant.
Regardless, Conway’s report and deposition testimony made clear what documents he did rely on, and the purported factual discrepancies identified by the Plaintiffs are not material, were adequately explained and resolved during Conway’s deposition, or are not factual discrepancies at all. His opinions clearly “rest upon a reliable foundation, as opposed to, say, unsupported speculation,” and there is no mismatch between those opinions and the facts of this case. Supplementation is not warranted at this juncture, and the Plaintiffs have failed to show that the defendants were required to include with their expert disclosures any documents not already disclosed.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Kannon Conway.
Key Takeaway
An expert cannot be expected to review documents that were not produced in discovery, nor is he necessarily required to review every document produced in the case.
This case arises from an insurance policy and its alleged breach. Riva’s luxury high-rise condominium development sustained damage from Hurricane Ian.
The issue Steadfast raised with the Court now is how Riva’s expert arrived at his estimate. Riva hired Dr. Anurag Jain, an engineer, to inspect the property. Dr. Jain and his team investigated the property over the course of multiple days, focusing on the roofs, windows, door systems, interiors, and exteriors of the building. But they didn’t knock on every door. Instead, Jain focused on the interiors and fenestrations (windows and glass doors) in 43 of 161 condominium units, capturing 27% of the total. The units he inspected were selected in accordance with the “qualitative” sampling methods outlined in the American Society of Civil Engineers’ (“ASCE”) guidelines. In his report, Jain explains that this choice was meant “to cover a sufficiently large sample of units and windows and doors across the buildings and various exposures with multiple units on each floor and each stack of the buildings.”
At bottom, rather than inspect every unit—a time-consuming and expensive process—Jain determined the level of damage in the building by analyzing the losses observed in the sample. Since he suggested replacing or repairing a specific percentage of windows and sliding glass doors in the sample, he applied the same percentage to all windows and glass doors across the building. Put simply, he extrapolated.
Motion to Exclude
Steadfast looked at Jain’s report and saw a house of cards. In its view, his opinions are unreliable for two main reasons. First, the damage could have been caused by Hurricane Irma in 2017, which Jain did not sufficiently rule out. Second, Steadfast claimed that the math is broken—arguing that extrapolation is a clumsy shortcut that will force it to pay for repairing perfectly good windows. To keep the jury from hearing a word of it, Steadfast sought to exclude Jain’s testimony.
Engineering Expert Witness
Dr. Anurag Jain has investigated more than 3,000 hurricane-damaged buildings, including losses from Hurricane Ian, and has testified in depositions and trials involving wind-related structural damage.
He holds a Ph.D. in structural engineering (wind engineering emphasis) and a master’s degree in structural engineering from Johns Hopkins University, as well as a Bachelor of Technology in civil engineering from Banaras Hindu University.
Steadfast’s argument that Jain did not rule out alternative causes of the property damage is this: because he opined that the “duration” of Hurricane Ian’s high winds caused the damage, he should have also calculated whether the duration of Hurricane Irma, from 2017, could have caused the same damage.
The problem with this argument is straightforward—Jain did consider Irma. He testified that Riva’s property was designed to withstand Hurricane Ian, but the duration of the strong winds caused the building to succumb to its pressure.
But Jain didn’t just throw up his hands because the data was sparse. He checked the available pre-Ian documents—including a 2021 Condition Survey Report, which was entirely silent on any window or door damage. To an engineer, that silence made perfect sense: Irma simply lacked the muscle to inflict similar destruction.
Analysis
Steadfast protests that Jain did not see any reported damage to the windows and doors because that is not what the 2021 Condition Survey was looking for. According to Steadfast, the survey only inspected the exterior of the property, and since the interior was never examined, the report could not have identified any fenestration damage. Apparently, this was corroborated by the survey company, who testified that the 2021 assessment did not include an inspection of the buildings’ interiors. While that may certainly weaken Jain’s opinions, it did not change the reliability analysis here.
The narrow question at this stage is simply whether Jain adequately grappled with obvious alternative explanations. He did. In his professional judgment, if Hurricane Irma had actually caused building-wide damage, the inspecting engineers would have written it down. Steadfast insists this is a total misreading of the 2021 Condition Survey. But that kind of disagreement goes to the credibility of his conclusion, not the reliability of his threshold method. If Steadfast wants to convince a jury that the report’s silence means something else entirely, it is welcome to try. That is exactly what cross-examination is for.
B. Extrapolation
Next up, Steadfast challenged Jain’s reliance on statistics instead of personally inspecting each unit to determine the percentage of damaged fenestrations. Basically, Steadfast argued that “extrapolating findings from only 27% of units to the entire 161-unit complex is not scientifically valid under accepted engineering Daubert principles.”
Look at how Jain actually did the math. He didn’t invent a number out of whole cloth; he recorded the exact percentage of damage he saw in his sample and let those real-world findings dictate the building-wide projections. For example, he found that 24% of the sliding glass doors observed in the North Building had panel framing joint rotation, a bent or impacted frame, or water penetration through the joints.
Because those specific flaws signal broken internal sealants and compromised framing, he concluded that 24% of the sliding glass doors in the North Building need to be replaced. The math is not a black box—it is the product of simple statistics. And Jain’s sampling focus is identical to his extrapolation subject: sliding glass doors, single-hung windows, and fixed windows divided by building and categorized by the type of damage each sustained. A reasonable jury does not have to accept Jain’s conclusions as true, but his math is not unreliable.
Jain staggered the units he inspected across 19 stories, based on each unit’s location within each building. He did this “to cover a sufficiently large sample of units and windows and doors across the buildings and various exposures with multiple units on each floor and each stack of the buildings.” The ASCE guidelines support precisely this type of extrapolation.
Held
In conclusion, the Court denied Steadfast Insurance Company’s motion in limine to exclude the testimony of Dr. Anurag Jain.
Key Takeaway
The Court’s job under Daubert is to screen an expert’s methodology, not to decide which side has the more persuasive argument or to declare who is ultimately correct.
Case Details:
Case Caption:
Riva Del Lago Condominium Association, Inc. V. Steadfast Insurance Company
Plaintiff Anthony Rebmann sues Astec, Inc. d/b/a Astec of Tennessee and Astec Industries, Inc. (collectively, “Astec”) based on an incident on March 19, 2020, when, in the course of his employment at an asphalt plant, his left hand became entangled in an Astec baghouse screw conveyor. Astec has answered and has also filed a Third-Party Complaint against Rebmann’s employer at the time, Gernatt Asphalt Products, Inc. (“Gernatt”), claiming contribution and negligent training and supervision.
Astec sought to strike the report of Plaintiff’s life-care expert, Nadeem I. Hussain, M.D. and has also filed motions in limine to exclude the testimony of Plaintiff’s products-warnings (or “human factors”) expert, Gerald M. Goldhaber, Ph.D. and Plaintiff’s products-liability expert Thomas A. Berry, P.E.
Plaintiff has filed his own motion to exclude or limit the opinions of Astec’s expert, Dennis B. Brickman, P.E.
Safety Expert Witness
Dr. Gerald Martin Goldhaber has emerged as the nation’s leading safety warnings and communication expert. He is the publisher of the Goldhaber Warnings Report. His clients have included over 100 of the top 500 corporations in the U.S. Fifty of the top 100 law firms and government agencies, including the FDA (for whom he consulted on a new nutritional label). Goldhaber’s clients have also included the Consumer Product Safety Commission (CPSC) to establish guidelines for products ranging from All Terrain Vehicles (ATV’s) to soda bottles to in-line skates, the USDA for whom he has consulted about potential warnings for sugary products.
Dennis Barry Brickman is an industry veteran with over 40 years of mechanical engineering and materials science experience.
Brickman has developed specialized expertise in the safety of children’s products, outdoor power equipment, tree care machinery, elastic cord products, and automatic door sensor systems.
Thomas Alan Berry holds a Master of Science in Mechanical Engineering from Wichita State University and a Bachelor of Science in Mechanical Engineering from the same institution.
He has authored at least 15 peer-reviewed papers presented at ASAE/ASABE and ASME conferences between 1985 and 2013, covering topics such as PTO safety, agricultural equipment accidents, forklift tipover risks, pallet truck accidents, mower stability, and gasoline geysering hazards.
Plaintiff has retained Thomas Berry, P.E., as an engineering expert in this case. Berry has opined that Astec “knew or should have known of technically and economically feasible design alternatives that would have significantly reduced and/or eliminated the risk to operators without unnecessarily affecting the utility of the [baghouse] machine.”
Astec sought to exclude Berry’s opinions regarding causation and alternative designs, arguing that he “failed to properly test and validate his opinions, basing them instead on unsupported assumptions.”
1. Clearance Between Door and Nip/Shear Point
The first alternative design is to add “clearance between the access door opening and the nip/shear point created by the extremely small distance between the auger flighting and the housing.” According to Berry, “this could be accomplished by raising the edge of the access door opening or providing a grate guard for the lower area of the opening, or by utilizing a left-hand flighted screw that would move the nip area to the back of the auger rather than directly below the access opening.”
a. Testing
The Court concluded that Berry did not need to perform testing as to his alternative of raising the edge of the access door opening. Astec’s expert has asserted that “[f]lighted screw augers typically have a close clearance with respect to their housing [because] otherwise, material builds up and does not adequately move near the housing interior structure.” That is sensible and understandable, but the housing in the area at issue appears to be rectangular, containing a cylindrical auger. With that geometry, the Court concluded that no testing would be required to support Berry’s opinion that raising the lower edge of the access door opening could put the pinch/nip point beyond the reach of fingers when the hand is grasping the lower edge of the housing.
b. Cost
Astec asserted that Berry has failed to conduct a “meaningful” comparison of the cost versus utility of his proposed alternative designs.
Plaintiff did not dispute the importance of cost in the analysis. But Plaintiff maintained that the associated costs were zero, nominal, required by industry standards, or otherwise based on Berry’s training, education, and experience.
As to cost, Berry asserted that raising the lip of the access opening could be provided “at no or little difference in cost.”
Absent special considerations that are not immediately apparent and that could be the subject of cross-examination, the Court agreed that no further explanation or analysis is necessary for Berry’s opinion that designing or cutting the port in the auger housing to place the lip of the access door at a higher point would carry little or no cost difference.
c. Efficacy
Astec also argued that Berry’s report lacks evidence that the proposed alternative designs “could have prevented” Rebmann’s injuries. Plaintiff maintained that the standard is not whether the design would have “prevented” the injury, but whether the design would have resulted in greater safety.
The Court agreed with Astec that designing the crossover screw with left flighting instead of right flighting would not have been materially safer. Berry asserted that the change “would move the nip area to the back of the auger.”
Raising the lower edge of the inspection door opening, however, does not suffer from the same problem. Astec correctly observed that Berry’s supplemental report recommends raising the edge by “a few inches” which is not a particularly precise specification. And if “a few inches” means just two or three inches, then Astec may be correct that the modification would not eliminate the risk of entanglement for a hand grasping the bottom edge of the inspection door opening. But the Court is not persuaded that Berry needed to calculate precisely how many inches the edge would have to be raised. It is apparent from the layout and geometry of the inspection door opening that raising the bottom edge by some number of inches—more than two but less than half the height of the inspection door opening—would put the nip/shear point more than a finger’s length away.
2. Bars on Lower Area of Access Opening, or Grate
a. Testing
Similar to the alternative of raising the bottom edge of the inspection door opening, the Court concluded that Berry did not need to test the alternative of adding bars across the lower area of the access opening. This solution is functionally identical to raising the edge of the door opening. The main difference is that that lower area of the access opening would be covered with parallel bars instead of solid metal.
b. Cost
Like the alternative of raising the bottom edge of the inspection door opening, Berry asserted that the cost of adding bars would be low; in his view, “less than $10-15.” Astec maintained that Berry’s cost estimate should be excluded for lack of any “meaningful explanation.”
The Court is not persuaded that more explanation is required; the proposed alternative design appears to involve ordinary components that could be incorporated into the inspection door opening at modest cost.
c. Efficacy
Similar to raising the bottom edge of the inspection door opening, adding a sufficient number of bars at the lower area of the opening would put the nip/shear point more than a finger’s length away. Astec argued that dust accumulation in the area would prevent visibility through the bars.
At his deposition, Berry conceded that dust accumulation between the bars would obstruct visibility if the bars were not cleaned off. Even if not cleaned off, the alternative design is for bars only on the lower area of the access opening; the upper area would still offer views into the enclosure. The Court concluded that Berry can testify to the bars as an alternative design.
3. Interlock
a. Testing
Berry’s third proposed alternative design would be to provide an interlock system “such that the augers could not operate with the access doors open or [without] a grate guard in place” to prevent contact with the running auger that would “still allow the dust to escape during the clearing operation and would allow visual inspection of the augers and shafts.”
There appears to be no dispute that interlock technology existed at the time the baghouse was designed and manufactured in the 1980s, But Astec asserted that Berry should have conducted testing to determine whether such a device “would work on the Baghouse.”
The Court agreed that adding an interlock device would be a “more substantial modification” to the Baghouse, and that the practicality and specifics of installation of an interlock depends on the machine to which it would be applied.
Although it appeared that it would at least be possible to conduct testing of an interlock system applied to the Baghouse, the Court concluded that the lack of any testing or modeling weighs somewhat against admission of Berry’s opinions on the interlock design.
b. Cost
In his report, Berry asserted that integrating “interlocked doors and grate guards” into the Baghouse would cost “approximately $200 per opening.”
Astec maintained that Bery “gives no explanation, sources, or support” for that assertion.The Court agreed with Astec that further support is necessary for Berry’s price estimate because the cost estimate must consider more than purchase price.
Astec noted that Conveyor Equipment Manufacturers Association (CEMA) industry manual is “an industry group not focused on regulation (or authorized to regulate) but on voluntary standardization of conveyor design.” Even assuming that the CEMA manual purported to require interlocks for applications like the Baghouse, the manual would not constitute regulatory or binding authority. Thus, the cost of an interlock system remains relevant to the reliability inquiry.
c. Efficacy
Perhaps the most important consideration as to the interlock design is whether it would improve safety without negatively impacting maintenance and inspection. Berry and Rebmann both testified that Rebmann needed the crossover screw to be running while he was looking into the inspection door because he needed to determine whether the repair to the screw was successful.
The Court is unpersuaded on this point. If disabling the proposed interlock were the only way to accomplish the inspection, Plaintiff could argue that the time spent doing so could have called extra attention to the need for caution near the spinning auger. Moreover, disabling the interlock would not have necessarily been the only way for Rebmann to complete his task. One version of the interlock that Berry proposes is that it would prevent the augers from operating unless a grate guard was in place. In that scenario, Rebmann would likely have simply replaced the grate guard, rather than attempting to disable the interlock mechanism. The Court concluded that all of these questions about testing, cost, and efficacy of an interlock system are suitable for cross-examination but are not a basis to exclude Berry’s testimony on that alternative.
4. Safety Signs
There appears to be a dispute about whether Astec supplied safety signs on or near the inspection door when the product was delivered to Gernatt in 1984. No warning signs or labels are visible on or near the inspection door in the contemporaneous photographs. However, Astec Vice President George Francisco testified in 2024 that he worked for Astec for over 31 years, and that in his experience during that time, Astec would affix warning labels to areas like the inspection door on the baghouse at issue in this case.
a. Testing
Aster’s arguments about the proposed addition of safety signs or warning labels do not appear to include a lack-of-testing criticism. In the context of warning labels, the testing that is often most relevant involves “creating several warning labels that varied with respect only to a single characteristic and then gauging peoples’ reactions to the various labels.”
Here, in contrast, the inquiry is only the presence or absence of any warning labels at all. Testing might be helpful to determine how long a safety sign would remain attached or visible in a dusty and vibrating environment, but the court does not conclude that such testing was necessary here.
b. Cost
Berry asserted that safety signs at each access door could have been provided “at a cost of less than $3 each.” Astec faults that assertion as unsupported by any explanation or sources.
The Court concluded that no further support is required for the proposition that, at least compared to the total cost of a baghouse, industrial safety signs were relatively inexpensive in the 1980s. Whether special adhesion or paint might be required for equipment in a dusty and vibrating environment would be fair game for cross examination.
c. Efficacy
Astec contended that “there is a complete absence of factual support for Berry’s conclusion that the alleged failure to warn was a proximate cause of Plaintiff’s injuries.”
Astec cited Berry’s testimony stating that he agreed that “it’s reasonable to expect that [warnings on equipment] [are] not going to be read.” Plaintiff countered that “the general concept that not all warnings are followed, does not negate Astec’s responsibility to adequately warn.”
The Court agreed with Plaintiff on this point; safety signs and placards have long been established as “resulting in greater safety.” The Court’s reasoning below as to Astec’s motion to exclude Plaintiff’s products-warnings expert, Goldhaber, supports this conclusion.
B. Gerald Goldhaber, Ph.D.
1. “Unsupported Assumptions” on Effectiveness of Warnings
Astec contended that Goldhaber’s opinions are “premised on the false narrative that Plaintiff was told to get close to the moving screw to check it.”
At his deposition, Goldhaber asserted that Robert Rebmann, Anthony Rebmann’s uncle and immediate supervisor, directly ordered Anthony Rebmann to “first clean the dust out, and inspect those augers.”
The fact that Robert Rebmann agreed that the “check” required the augers to be turning does not prove that he expressly instructed Anthony Rebmann to perform the check. Based on its review of Robert Rebmann and Anthony Rebmann’s testimony, the Court agreed with Astec that there is no support for the proposition that Robert Rebmann expressly instructed to carry out a “check” or “inspection” of the repaired crossover screw (or how to perform that check). The Court therefore agreed to limit Goldhaber’s testimony insofar as he might opine that Rebmann received instructions to put aside his training, background, or common sense.
Astec has a further criticism about the factual basis for Goldhaber’s report: Astec contended that his opinions “disregard that Plaintiff habitually ignored safety protocols, safety training and safety procedures.” The original report, dated August 8, 2024, did not discuss Rebmann’s prior safety incidents. The Court concluded that, at best, it is debatable whether Rebmann’s prior workplace injuries and a verbal reprimand for failing to wear a hardhat show that he “habitually ignored” safety protocols, training, or procedures. In any case, Goldhaber has addressed Rebmann’s prior safety incidents in the supplemental report.
2. Goldhaber’s Own Testimony and Writing on Effectiveness
Astec further argued for exclusion of Goldhaber’s opinion about the effectiveness of warning signs or placards as being “in direct contradiction to his own testimony and work on the effectiveness of warnings.”
However, the inquiry is not whether warning signage would have made the user aware of a danger of which they were previously unaware. The inquiry is whether a warning would have increased the user’s awareness of the danger. Rebmann testified that if warning signs or labels had been present “it would have made me think about becoming—it would have made me think about coming in close proximity a little bit more.” A jury can assess that testimony, and the Court will not exclude Goldhaber from offering similar testimony.
3. Warnings Standards as of 1984
Goldhaber’s report specifically faults Astec for failing to comply with ANSI Z535.4, which lie asserts “has been in effect since 1968.” Astec insisted that “in reality, the first version of the ANSI Z535.4 standard for product safety signs and labels was published in 1991, seven years after the Baghouse was manufactured and delivered to Gernatt.” Plaintiff maintained that ANSI Z35.1-1968 was approved in September 1968 and that the Occupational Safety and Health Administration (OSHA) “adopted this standard in 1971, requiring workplaces to comply with it starting August 31, 1971.”
Astec cited a post on the ANSI website indicating that ANSI Z535.4’s “initial publication” was in 1991—after the Baghouse was manufactured in 1984.
The Court accepts that as true, but Astec’s argument on this point fails to account for the fact that ANSI Z535.4’s predecessor is USAS 235.1. And federal regulations incorporated the Z35.1-1968 standard in 1984.
For all of the above reasons, the Court denied Astec’s motion to exclude Goldhaber’s testimony.
C. Nadeem Hussain, M.D.
Astec contended that Hussain’s report is “an entirely new report that fails to contradict, challenge, or rebut Defendant’s corresponding report,” and that it is “not based on any new or previously unavailable information that would trigger a duty for Plaintiff to supplement its report.”
There is no dispute that Hussain’s report cannot qualify as an initial expert disclosure. Plaintiff’s deadline for initial expert disclosures was August 30, 2024, and Plaintiff submitted Hussain’s report well after that date.
The Court concluded that Hussain’s report is partly a proper rebuttal and partly and improper new expert report. Insofar as the report violates the discovery rules, the Court considers the following factors below.
a. Plaintiff’s Explanation
Plaintiff’s explanation is that he offered Hussain’s report “to contradict or rebut evidence on the same subject matter.”
The majority of Hussain’s life-care plan did not repel, counteract, or disprove the opposing expert’s diagnostic report. But there are exceptions: Hussain’s inclusion of massage therapy implicitly contradicts the opposing expert’s opinion that it is not medically necessary, and Hussain’s inclusion of costs for prosthetics and related supplies for Rebmaim’s lifetime implicitly challenges the opposing expert’s remark about prosthetic abandonment. This factor is therefore mixed.
b. Importance of Hussain’s Testimony
In general, a second life-care plan is not particularly important to Plaintiff’s case. But medical opinions on the necessity or utility of the highest dollar-value treatments are very important to Plaintiff’s damages case. This factor is also mixed.
c. Prejudice to Astec
Plaintiff argued that Hussain’s report does not prejudice Astec, particularly because Astec had “an opportunity to rebut his report in writing and did so.”
Astec maintained that allowing Hussain would result in significant prejudice. The Court is not persuaded that any of the items that Astec lists weigh significantly in favor of striking Hussain’s report. Instructions to the jury can mitigate concerns about giving more weight based on the quantity of evidence. The discovery order can be amended without prejudicing either side. Preparing to oppose a second life-care expert will require some additional expense, but it is not excessive in proportion to all the other expenses in this litigation.
d. Possibility of Continuance
Finally, Plaintiff asserted that a continuance is possible because “there is time afforded by the current case management order to complete expert discovery and depositions; and there is no trial date.”
In December 2024, when Plaintiff filed his opposition to Astec’s motion to strike Hussain’s report, the Court had ordered expert depositions completed by March 15, 2025. Now, in mid-2026, all of the deadlines in that prior order have passed. However, it remains true that there is no trial date set in this case.
For the reasons discussed above, the Court declined to strike Hussain’s report. The Court instead elects to grant Astec an opportunity to serve a surrebuttal report.
D. Dennis Brickman, P.E.
Plaintiff sought preclusion of Brickman’s March 2025 report, arguing that it is untimely insofar as it contains new information and references.
The first issues are whether Brickman’s March 2025 report is a timely and proper supplementation. Plaintiff has identified no court order altering the deadline, and because no trial date has been set, Rule 26(a)(3)(B)‘s 30-day deadline has not yet expired.
The Court therefore rejected Plaintiff’s assertion that Brickman’s March 2025 report is untimely supplementation. The more significant dispute is whether it is proper “supplementation” at all.
Plaintiff argued that Brickman’s March 2025 report is not supplementation, asserting that Brickman “undertook new work and testing based on information and materials that were equally available to him at the time of his first report.”
For the reasons above, the Court rejected Astec’s explanations for providing the “supplemental” report. In the Court’s view, Brickman’s March 2025 opinions regarding the AGSCO mesh guard are of limited importance because Berry cited that manufacturer’s product only as an example. The AGSCO product’s one-inch openings might allow a finger to pass through, but a different screen with openings smaller than one inch could be specified. Moreover, even a screen with one-inch openings would have been safer than no screen at all.
At the same time, Brickman’s March 2025 opinions about reduced visibility from the proposed interlocked mesh guard are more detailed than his opinion on that topic in his October 2024 report. Plaintiff asserted that failure to exclude Brickman’s March 2025 report or related testimony would result in “extreme” prejudice. The Court concluded that any such prejudice can be mitigated by granting Plaintiff the opportunity for a surrebuttal.
Held
The Court denied Astec’s motion in limine to exclude Gerald Goldhaber’s testimony.
The Court granted in part and denied in part Astec’s motion in limine to exclude Thomas Berry’s testimony.
The Court denied Astec’s motion to strike the expert report of Nadeem Hussain.
The Court denied Plaintiff’s motion to preclude the opinions of Dennis Brickman.
Key Takeaway
Turning to the question of the proper sanction for failure to conform to the discovery rules, the Court considers (1) the party’s explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance.
On January 10, 2025, Plaintiffs filed their First Amended Complaint against Defendant, alleging they suffered injuries when a wholly unprovoked group of highly intoxicated passengers (“the Aden Family”) physically assaulted and battered them while attending a “White Party” on the Defendant’s Vessel. The Plaintiffs, other than Daniella Dos Santos Vieira (“Plaintiff”), settled their claims with Defendant. As a result, the First Amended Complaint’s three remaining claims are: general negligence (Count I), negligent failure to warn (Count V), and premises liability (Count IX).
Defendant sought to strike the proposed testimony of Plaintiff’s expert, Ronald J. Thomason.
Maritime Expert Witness
Ronald J. Thomason has over 25 years of experience in providing security assessment, planning, and training services to commercial maritime industry, government, and law enforcement personnel responsible for oversight and enforcement of regulatory compliance of security standards and practices.
In preparing his report, Thomason reviewed the Cruise Vessel Security and Safety Act of 2010 (“CVSSA”), the International Ship and Port Facility Security (ISPS) Code, as well as various case documents.
First, Thomason opined that Defendant did not have enough security staff dedicated to provide a presence for deterrence and appropriate response at the “White Party”. Second, Thomason opined that Defendant did not comply with the requirements of the CVSSA. Third, Thomason opined that the Plaintiffs acted reasonably in response to a foreseeable and preventable unprovoked attack. Fourth, Thomason opined that Defendant failed to follow its own published policy, and the “White Party” bar staff failed to follow the established procedures for identifying inebriated guests, terminating their consumption of alcohol, and notifying security of their possible threat to the safety and enjoyment of other event attendees. Fifth, Thomason opined that had Defendant complied with the requirements of the CVSSA, this incident could have been detected and deterred before escalating into a physical assault.
I. Methodology and Helpfulness
First Opinion
First, Thomason opined that based on his years of training, education, and experience Defendant did not have enough security staff present for deterrence. He opined that all of Defendant’s security staff are required to be trained in the CVSSA, which provides specific instruction on the detection, prevention, evidence collection, and reporting of specific criminal threats.
However, the Court found that Thomason’s opinion improperly relied upon regulations that are inapplicable based on the facts of this case.
As to Thomason’s suggestion that more security would have prevented the altercation, Thomason did not explain how additional security would have prevented the sudden punch in this case. To the contrary, the CCTV camera shows at least two employees in the vicinity of Plaintiff and her assailant at the time of the punch.
Second Opinion
Thomason’s second opinion is that Defendant failed to comply with the requirements of the CVSSA. As the Court previously determined, the CVSSA is not implicated because the incident does not involve a homicide, kidnapping, sexual assault, suspicious death, theft of money over $10,000, or a physical assault with serious bodily injury.
Third Opinion
Thomason’s third opinion is that, based on his experience, Plaintiff acted reasonably in response to a foreseeable and preventable unprovoked physical attack. Thomason’s opinion relied only on his experience. Moreover, his opinion did not explain how his experience led to that conclusion, why his experience is a sufficient basis for the “reasonable” actions of the Plaintiff or the “foreseeability” of the assault.
Fourth Opinion
Thomason’s fourth opinion argued Defendant failed to follow its own published policy. However, Thomason failed to articulate what these established procedures are, how the bar staff failed to follow them, or how the unreferenced procedures would have prevented the sudden punch thrown at Plaintiff.
Fifth Opinion
Fifth, Thomason opined that had Defendant complied with the CVSSA and Defendant’s published policies for dealing with the intoxicated guests, this incident would have been detected and deterred prior to ever escalating into a fight. However, this summation of Thomason’s prior opinions is entirely speculative and not rooted in a methodology that relies on anything other than his experience.
The Court found that Thomason’s analysis lacked a reliable methodology and would not be helpful.
Held
The Court granted Defendant’s Daubert motion to strike the testimony of Ronald J. Thomason.
Key Takeaway
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it. Moreover, Thomason’s first opinion pivots from security measures to the suggestion that the ship staff was improperly trained on how to detect intoxicated guests. Thomason provided no support for this assertion either in his experience or an applicable regulation.
Over three decades ago, Plaintiff Sherry Morton founded a health and fitness company called Millennium Health & Fitness, Inc. On November 1, 2023, Morton and Defendant BCAP GDI 1, Inc. (“Defendant” or “BCAP”) entered into a Stock Purchase Agreement, whereby Morton agreed to sell Millennium to BCAP.
The same day, Plaintiff National Aerobics & Fitness Trainers Association (“NAFTA”) and BCAP entered into a separate agreement (“NAFTA Agreement”), whereby BCAP agreed to pay NAFTA $100,000 per year for at least 750 health and fitness trainings and certifications per year up until October 31, 2028. Per the agreement, NAFTA was obligated to perform its services in accordance with the “highest industry standards.”
On December 31, 2024, Plaintiffs filed the present action, accusing BCAP of breaching the Stock Purchase Agreement by retaining a portion of the purchase price as an “Indemnity Holdback.” Plaintiffs also accused BCAP of improperly terminating the NAFTA Agreement after one year, alleging that BCAP “manufactured false allegations of ‘cause’ for termination and . . . unilaterally declared the NAFTA Agreement to have been terminated.”
According to BCAP, Morton had confidential Millenium files downloaded to an external hard drive and deleted from Millennium’s system, thus depriving Millennium of information needed to successfully bid on three government contracts pertaining to health and fitness services for the Federal Bureau of Investigation (“FBI”), U.S. Immigration and Customs Enforcement (“ICE”) and the U.S. Marine Corps (“USMC”).
Plaintiffs sought to exclude all testimony of Defendant’s industry expert, Anthony A. Abbott, and Defendant’s damages expert, Kellie M. Fedkenheuer. BCAP also sought to exclude certain testimony relating to causation and liability from Plaintiffs’ rebuttal damages expert, Julia Alcarez.
Exercise Expert Witness
Anthony Almon Abbott holds a doctorate in exercise science and physiology and has over forty-five years of experience as a physical fitness instructor, personal trainer and facility manager.
Among other accolades, Abbott developed the first nationally accredited personal trainer certification with the National Strength & Conditioning Association.
A. Plaintiffs’ Motion to Exclude Testimony of Anthony Abbott
Highlighting several allegedly insufficient aspects of NAFTA’s training programs (including lack of accreditation and short timeframe), Abbott ultimately opined that NAFTA failed to provide services according to the “highest industry standards” as required by the parties’ agreement.
Plaintiffs argued that Abbott’s testimony should be excluded as unreliable because he relied purely on improper ipse dixit in rendering his opinions on the quality of NAFTA’s trainings and certifications.
In BCAP’s view, NAFTA is a “pay-to-play, flight-by-night” fictional association “created by Plaintiff Sherry Morton,” and Abbott is allowed to rely on his experience in rendering his opinions. BCAP also insisted that Abbott sufficiently researched NAFTA’s training programs to render a reliable and informed opinion as to their quality. The Court ultimately agreed with BCAP that Abbott’s proffered testimony met the reliability requirement.
Abbott’s opinions are more than ipse dixit; he appears to have sufficiently investigated NAFTA’s training programs to be able to render an opinion as to the quality of those programs. He reviewed NAFTA advertisements as well as the accreditation status, length of time entailed, course materials and in-person requirements of NAFTA certification courses.
That Abbott did not take or review a NAFTA certification exam does not mean that his opinions are based purely on ipse dixit.
Because Abbott’s opinion on the quality of NAFTA’s services is supported by sufficiently “good grounds” to be reliable, the Court denied Plaintiffs’ motion to exclude Abbott’s testimony.
B. Plaintiffs’ Motion to Exclude Testimony of Kellie Fedkenheuer
In her opening report, Fedkenheuer indicated that she was not offering an opinion on whether Millennium would have obtained the FBI, ICE and USMC government contracts had Morton not allegedly deleted the confidential Millenium files.
To estimate lost profits damages for the three lost government contracts, Fedkenheuer identified “three ongoing contracts in 2024 and 2025 that had a size and/or scope that was similar to those of the FBI, ICE and USMC awards.” And for future lost profits damages, she applied a discount rate of 9% based, at least in part, on Delaware’s usury statute.
1. Discount Rate Analysis
Plaintiffs vehemently disputed the propriety of the 9% discount rate Fedkenheuer used for future lost profits. In Plaintiffs’ view, this discount rate should be excluded as unreliable because Fedkenheuer arbitrarily selected the rate based on Delaware’s usury statute, which provides that pre-judgment interest will be “5% over the Federal Reserve discount rate.”
The Court agreed with BCAP that Fedkenheuer’s discount rate analysis is based on sufficiently “good grounds” to meet the reliability requirement.
Fedkenheuer considered Millenium’s Weighted Average Cost of Capital (WACC) and Weighted Average Cost of Debt (WACD) in determining that the 9% rate was appropriate.
For the same reasons, the Court is also unpersuaded that Fedkenheuer “applied no methodology” in selecting the rate and acted merely as a mouthpiece for Defendant’s attorneys.
2. Gross Profit Margin
Plaintiffs next argued that Fedkenheuer’s gross profit margin determination should be excluded as unreliable because, in selecting comparable contracts to the lost bids, she purportedly relied solely on her conversations with BCAP Vice President and Millennium Operating Partner Jeffrey Eagan.
However, Fedkenheuer’s methodology in selecting comparable contracts was sufficiently reliable and did not, as Plaintiffs contend, “blindly adhere” to data provided by Eagan “absent any sort of independent investigation.”
In other words, Fedkenheuer did more than merely speak with Eagan to identify comparable contracts. She analyzed information regarding Millennium’s historical contracts (e.g., revenue) to identify contracts that she deemed comparable to the lost bids.
3. Factual Narrative Underlying Counterclaims IV and IX
BCAP filed its Counterclaims, alleging (among other things) that Morton breached the Stock Purchase Agreement by failing to deliver (and stealing) Millennium intellectual property (Counterclaim IV) and by failing to disclose a liability pertaining to Millennium and the U.S. Environmental Protection Agency (“EPA”) (Counterclaim IX).
Plaintiffs argued that Fedkenheuer’s factual narratives of Counterclaims IV and IX are an inappropriate rehashing of BCAP’s theory of the case that will not assist the trier of fact.
If this case were proceeding to a jury trial, the Court would likely agree that several statements in Fedkenheuer’s expert report venture “into areas in which the jury needs no aid or illumination.”
That being said, the concerns underlying Federal Rule of Evidence 403, such as confusion and unfair prejudice, are minimal where, as here, the case proceeds via bench trial. Therefore, the Court will not exclude Fedkenheuer’s factual narratives underlying Counterclaims IV and IX because they are limited and provide context to her opinions.
4. Calculation of Damages Underlying Counterclaim IX
Finally, Plaintiffs argued that Fedkenheuer’s calculation of damages underlying Counterclaim IX amounts to “mere arithmetic” and is therefore “outside the remit of an economic damages expert and would not assist the trier of fact.”
Fedkenheuer’s damages calculations with respect to Counterclaim IX consist of merely adding collections received from EPA personnel to costs allegedly incurred by BCAP as a result. And BCAP did not seriously dispute that Fedkenheuer’s calculation of damages for Counterclaim IX constitutes “mere arithmetic.” The Court, as fact finder, is “more than capable of adding the specific costs associated with” the alleged damages with respect to Counterclaim IX “that will be offered by Plaintiffs through their fact witnesses.”
But considering this is a bench trial, the testimony will be conditionally admitted subject to a later Rule 702 determination by the trial judge.
C. Defendant’s Motion to Exclude Testimony of Julia Alcarez
1.Qualification
BCAP first argued that Alcarez is not qualified to opine on causation with respect to Counterclaim IV.
BCAP took great pains to highlight her apparent lack of experience serving as a contracting officer. But BCAP overlooked the fact that Alcarez has worked on government procurement matters for sixteen years.
Indeed, according to her CV, she has experience with “preparation, review, analysis, and testimony related to claims submitted by contractors to US Government agencies.”
The Court is ultimately unpersuaded that Alcarez’s lack of experience serving as a contracting officer warrants exclusion of her causation opinions.
2. Legal Conclusions
BCAP next argued that Alcarez’s causation opinions should be excluded because they constitute inadmissible legal conclusions regarding the Federal Acquisition Regulations (“FAR”).
However, Alcarez provided a detailed summary and interpretation of Federal Acquisition Regulations. This summary of the relevant regulations and analysis as to their meaning appears to constitute impermissible legal conclusions.
However, the case proceeds via bench trial. The presiding judge is more than capable of parsing the causation opinions offered at trial and excluding any improper legal opinions as appropriate.
3.Improper Rebuttal Testimony
BCAP also argued that Alcarez’s causation opinions should be excluded as improper rebuttal testimony that exceeds the scope of BCAP’s opening reports.
This argument is one that belongs in a motion to strike under Rule 37 – not in a Daubert motion. The Court will not address issues regarding expert testimony that should have been raised elsewhere.
Held
The Court denied the Plaintiffs’ motions to exclude the testimony of Anthony Abbott and Kellie Fedkenheuer as well as the Defendant’s motion to exclude certain testimony of Julia Alcarez.
Key Takeaway
Expert testimony on issues of law are not admissible for the purposes of proving that the government’s interpretation of the Cost Accounting Standards (‘CAS’) and Federal Acquisition Regulations (‘FAR’) are not correct. But again, this case is proceeding to a bench trial. The presiding judge is more than capable of parsing the causation opinions offered at trial and excluding any improper legal opinions as appropriate.
Case Details:
Case Caption:
Morton V. Bcap Gdi 1, Inc.
Docket Number:
1:24cv1432
Court Name:
United States District Court for the District of Delaware
