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.
RTZ Associates, Inc. sought to exclude the testimony of Intus’ experts, Shawn Fleury and Dr. Kristopher Hult while Intus sought to exclude the testimony of RTZ’s experts, Traci Creegan and Peter Schwechheimer.
Economics Expert Witnesses
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).
Cybersecurity Expert Witness
Shawn R. Fleury is a cybersecurity expert with approximately twenty-nine (29) years of risk management, incident response, and consulting experience.
Healthcare Expert Witness
Traci Creegan has over twenty-five years of healthcare and management experience focused on health information technology (IT) and regulatory compliance.
Discussion by the Court
Traci Creegan
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.”
Case Details:
| Case Caption: | Intuscare, Inc. V. Rtz Associates, Inc. |
| Docket Number: | 4:24cv1132 |
| Court Name: | United States District Court, California Northern |
| Order Date: | July 08, 2026 |
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