Expert Witness Profiler

Category: Accounting Expert Witness

  • Exercise Expert Allowed to Opine on the Quality of NAFTA’s Services

    Exercise Expert Allowed to Opine on the Quality of NAFTA’s Services

    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.

    Get the full story on challenges to Anthony Abbott’s expert opinions and testimony with an in-depth Challenge Study.

    Accounting Expert Witness

    Kellie Mathis Fedkenheuer is a Certified Public Accountant with over fifteen years of forensic accounting experience.

    Want to know more about the challenges Kellie Fedkenheuer has faced? Get the full details with our Challenge Study report.

    Julia Alcarez is a Certified Public Accountant with over fifteen years of experience working on government contract and forensic accounting matters.

    Discover more cases with Julia Alcarez as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    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
      Order Date: July 16, 2026
    1. Accounting Expert Allowed to Opine on Net Service Level Payments

      Accounting Expert Allowed to Opine on Net Service Level Payments

      Plaintiffs The Avon Company and LG H&H Company, Ltd. (“Avon,” or Plaintiffs) brought this suit against Fareva Morton Grove, Inc. and Fareva S.A. (collectively “Fareva,” or Defendants) for a breach of their long-term Manufacturing and Supply Agreement (the “MSA”).

      Fareva filed a motion to exclude the testimony of Avon’s two experts, Anthony J. Campanelli and Brent K. Bersin on the grounds that their testimony is based on unreliable data.

      Accounting Expert Witnesses

      Anthony J. Campanelli is a Certified Public Accountant with more than 25 years of experience at Deloitte, one of the world’s largest and most respected accounting and consulting firms.

      Want to know more about the challenges Anthony Campanelli has faced? Get the full details with our Challenge Study report.

      Brent Kevin Bersin is a Senior Managing Director at FTI Consulting with 30 years of experience as an expert witness and consultant on valuation, financial and forensic accounting, and economic damages.

      Get the full story on challenges to Brent Bersin’s expert opinions and testimony with an in-depth Challenge Study.

      Discussion by the Court

      Anthony Campanelli

      Campanelli will testify about the calculation of the Net Service Level Payments (“NSLPs”). The NSLPs are calculated based on Schedule D of the MSA, which sets out a formula that, put simply, considers when Fareva fulfilled Avon’s orders and when Avon placed those orders. The formula in Schedule D required a somewhat complex set of calculations, given the delivery and order timing inputs and different multipliers per product. In drafting his expert report and reaching his opinion, Campanelli relied on data provided by Avon regarding forecasts, orders, and delivery data from the relevant time period. Fareva argued that Campanelli’s opinion is not based on reliable data, that his calculations are inconsistent with the Schedule D formulas, and that the opinion improperly introduced contractual interpretations.

      Analysis

      First, the data relied upon by Campanelli are sufficiently reliable. The discrepancies that Fareva pointed to do not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” Further, it was permissible for Campanelli to rely on the data provided by Avon. Even if Fareva’s “claims as to factual inaccuracies” in the underlying data and assumptions used by Campanelli were assumed true, Campanelli “at most had a few faulty inputs to an otherwise topical opinion on [the NSLPs]—this is thus not a case in which ‘there is simply too great an analytical gap between the data and the opinion proffered.’”

      Second, Fareva argued that Campanelli’s calculations are inconsistent with the MSA because they differ from calculations performed by PwC, Avon’s former expert. The discrepancy is explained by a reasoned choice in how Campanelli calculated the NSLPs, a choice which conformed with Fareva’s position on calculations and resulted in a lower damages claim. This is not a basis for rejecting Campanelli’s opinion.

      Third, Campanelli did not rely on improper assumptions or legal interpretations of the MSA in his calculations. While Fareva is correct that an expert may not make legal determinations interpreting a contract, Campanelli’s assumptions regarding the completeness of the data did not rise to the level of an impermissible contract interpretation.

      As a result, the Court denied Fareva’s motion to exclude the expert testimony of Campanelli.

      Brent Bersin

      Bersin will testify about Avon’s lost profits attributable to the lost sales of products that Fareva failed to produce or timely deliver. Bersin’s opinion is based on comparisons between Avon’s performance before and after the breach and on a benchmark comparison of the performance of the broader industry. Bersin relied on a subset of Avon’s North American sales data that captured the products produced by Fareva. Fareva argued that Bersin relied on unreliable and inaccurate data in his calculations, that he failed to disaggregate compounding factors, and his basis of benchmark comparison was unreliable.

      Analysis

      First, Fareva argued that the sales data relied upon by Bersin included products that Fareva did not produce, that there were other indicia of unreliability, and that Bersin failed to independently verify the data. As with Campanelli, any inconsistencies, which Avon also disputes factually, did not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” And Bersin permissibly relied on the data provided by Avon in the ordinary course of business.

      Second, Fareva argued that Bersin improperly attributed all of Avon’s losses to Fareva, without disaggregating alternative sources of harm. This is insufficient to bar Bersin’s testimony. Bersin’s report acknowledged alternatives, noting that Avon’s oversales were declining and distinguishing between sales data in different product categories.

      Third, Fareva argued that Bersin relied on an insufficiently comparable benchmark for its benchmark analysis. Bersin relied upon the Statista data for the “Beauty & Personal Care market” in making his comparison. Fareva contended that using this market, without further analysis of the comparison between the companies within it, was improper, and that the market selected did not compare to Avon because the companies within did not use the same sales model as Avon. The Court disagreed. Bersin acknowledged that he considered the brands within the personal care market to be comparable when deciding to use them. It is reasonable to conceive of Avon as a beauty and personal care brand selling similar products to those in the comparison group. Bersin was not required, as Fareva suggests, to draw a comparison to groups based solely on distribution model that offer entirely different products from Avon.

      Therefore, the Court denied Fareva’s motion to exclude the testimony of Bersin.

      Held

      The Court denied Fareva’s motion to exclude the testimony of Anthony Campanelli and Brent Bersin.

      Key Takeaway

      Disputes as to the strength of an expert’s credentials, faults in his use of a particular methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility of his testimony.

      Case Details:

      Case Caption: The Avon Company V. Fareva Morton Grove, Inc.
      Docket Number: 1:22cv4724
      Court Name: United States District Court, New York Southern
      Order Date: July 07, 2026
    2. Law and Legal Expert Was Not Allowed to Opine on Alleged Obligations

      Law and Legal Expert Was Not Allowed to Opine on Alleged Obligations

      Plaintiffs are alleged owners of real property containing natural gas who have no leases with EQT covering their interests. Claiming that EQT has produced gas from Plaintiffs’ properties but not paid them for it, Plaintiffs brought this putative class action seeking to recover the alleged non-payment on behalf of all allegedly unpaid tenants-in-common who presently own property with a co-tenant who has a lease with EQT. Their complaint sought damages for the alleged non-payment on the non-contractual causes of action one might expect from those who are not parties to leases—quantum meruit, conversion, and unjust enrichment—and tacks on a purported claim under Pennsylvania’s Guaranteed Minimum Royalty Act (“GMRA”).

      EQT filed motions to exclude and strike the opinions of two of Plaintiffs’ experts, Cara Davis and Christopher L. Haney.

      Law And Legal Expert Witness

      Cara C. Davis has had 15 years of experience, devoted entirely to the oil and gas title industry and has personally prepared and reviewed hundreds of title abstracts and rendered numerous certified title opinions based on both [her] own work and that of others.

      Additionally, Davis is licensed to practice law in Pennsylvania and Ohio and her experience includes evaluating title defects, identifying and assisting with unknown heirs, and tracing mineral ownership, all of which are directly relevant to the identification and location of unleased co-tenants.

      Want to know more about the challenges Cara Davis has faced? Get the full details with our Challenge Study report.

      Accounting Expert Witness

      Christopher L. Haney is a certified public accountant (“CPA”), a certified fraud examiner (“CFE”) and certified in healthcare compliance (“CHC”).

      Haney is regularly retained as an expert and has testified in a variety of venues on topics including financial damages, data analysis, statistical sampling, and regulatory compliance.

      Get the full story on challenges to Christopher Haney’s expert opinions and testimony with an in-depth Challenge Study.

      Discussion by the Court

      Cara Davis

      EQT asserted that Davis did not adequately review and tailor [her opinions] to the record facts of the case, her opinions are not grounded in the facts, her opinions are unhelpful to the trier of fact on class certification and her opinions were offered in relation to a prior class certification definition that Plaintiffs have now abandoned.

      Analysis

      Based on Davis’ experience in the industry, along with the additional expert reports in the record, the Court found that Davis’ opinion is reliable. The methodology Davis described, both in her report and throughout her testimony, is a practice which she has employed throughout her career and is “generally accepted” in the industry. Davis also relied on several relevant sources in preparing her report.

      There is a clear connection between Davis’ opinion and the facts at issue. Davis formed her opinion based on the facts provided in the record. She used testimony that led her to believe that EQT employs “standard title practices” and applied relevant data she obtained from excel sheets. She determined, in her “professional experience,” that the identities of the unleased co-tenants and their locations are ascertainable through “diligent title search,” which is an accepted method used throughout the industry.

      EQT additionally challenged Davis’ opinions that EQT is obligated “to identify and locate unleased co-tenants in accordance with the requirements of the Pennsylvania Minimum Royalty Act, 58 P.S. § 33.3.” The Court agreed with EQT that Davis’ opinions, particularly regarding obligations stemming from § 33.3, shall be excluded.

      Davis states in her deposition that she only “vaguely” remembers when the language of the 58 P.S. § 33.3 came out, she does not remember why the statute was passed, she has not read the legislative history, and she did not read the legislative intent behind the statute. As a result, Davis’ testimony that § 33.3 “imposes an obligation on EQT to identify unleased co-tenants” is inadmissible.

      Christopher Haney

      EQT filed a motion to exclude Haney’s expert opinions, asserting “they are unreliable, irrelevant, and misleading.”

      Plaintiffs retained Haney, requesting that he (1) “organize and compile EQT’s data into a structured data set that can be efficiently queried based on select criteria,” (2) use that structured data set to evaluate whether select identifying information for Plaintiffs and other unleased owners (i.e., potential class members for this litigation) can be identified (3) “evaluate acceptable damages methodologies for this matter,” (4) “evaluate the methodology employed by EQT for calculating natural gas royalty payments,” and (5) “determine whether the data available in documents produced by EQT would enable the calculation of natural gas payments or royalties using EQT’s methodology.”

      Analysis

      Haney explained his process and conclusions throughout his report. He also identified an itemized list of sources and information that he relied upon in support of his methodology. Though Haney testified “that he was unable ‘to incorporate all of the data into the database’ from EQT’s records,” Haney was able to compile most of the data apart from the tax parcel identification numbers that were contained in EQT’s Setup Files.

      Haney emphasized that he used “widely accepted statistical procedures and equations” when designing and executing his Statistically Valid Random Sampling method.

      The Court found that Haney had good grounds to rely on the data and information provided by counsel when forming his opinions.

      Haney used a reliable methodology. He used EQT’s established uniform method for calculating royalties owed to all owners regardless of whether they are parties to a lease.

      Held

      • The Court granted in part and denied in part Defendant EQT’s motion to exclude the expert opinions of Cara Davis.
      • The Court denied Defendant EQT’s motion to exclude the expert opinions of Christopher Haney.

      Key Takeaway

      When an expert relies solely or primarily on experience, he must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.

      Case Details:

      Case Caption: Ross V. EQT Corporation
      Docket Number: 2:21cv1585
      Court Name: United States District Court, Pennsylvania Western
      Order Date: May 18, 2026
    3. Insurance Expert Allowed to Opine on Sales Tax Depreciation Practices

      Insurance Expert Allowed to Opine on Sales Tax Depreciation Practices

      Plaintiffs Melissa Pitkin and Dan Grout own a home together in Healdsburg, California. They hold a homeowner’s insurance policy from State Farm, policy number 57-C4-6752-1 (the “Policy”), which covered certain losses to their home and all of its contents. The Policy included the “main policy form” (FP-7955, CA) as well as a “homeowners endorsement form” (FE-3422). Subject to the Policy’s terms, conditions, and exclusions, the Policy included “Coverage B – Personal Property” limits of $506,574, and other various special limits. Regarding settlement of Coverage B claims, the Policy provides for settlement of damaged personal property in several ways, including actual cash value (“ACV”), market value, and replacement cost (“RC”).

      On August 20, 2020, the Walbridge Fire burned down the Plaintiffs’ home. Having lost their home and personal possessions, the Plaintiffs tendered a claim to State Farm for their losses under the Policy. State Farm accepted the claim and adjusted their losses pursuant to the Policy’s terms, which stated that the plaintiffs are entitled to recover ACV for their personal property losses. On December 16, 2022, and January 24, 2023, the Plaintiffs received partial payments from State Farm for their personal property contents losses. State Farm also sent the Plaintiffs “loss payment worksheets” that showed their ACV benefits for their personal property.

      For all items of property where sales tax was applicable, State Farm depreciated sales tax in calculating ACV.

      The Plaintiffs filed this class action, alleging that State Farm violates California law by depreciating sales tax as a component of RC when calculating ACV.

      State Farm sought to exclude the opinions of Plaintiffs’ experts, Greg J. Regan, David Melzer and Eugene Peterson while Plaintiffs filed a motion to exclude the testimony of State Farm’s primary expert witness, Dr. Duane L. Steffey.

      Accounting Expert Witness

      Greg Joseph Regan is a partner in the Forensic Consulting Services Group of Hemming Morse, LLC, and is a licensed CPA in California.

      Get the full story on challenges to Greg Regan’s expert opinions and testimony with an in-depth Challenge Study.

      Insurance Expert Witness

      David Melzer has worked in the insurance industry since 2011 in various specialist capacities. He worked for Travelers Insurance from 2013 to 2020, where he held positions including adjuster, technical specialist, and claims manager.

      After that, he started his own public adjusting firm, called Property Claims Consultant, Inc., where he handles first and third-party property claims, including personal property claims.

      He has held the position of President of Property Claims Consultant, Inc. since he started the firm in November 2020. He has “significant experience in processing and analyzing personal property insurance claims” and “experience working with industry-standard software used to process and track personal property claims, including Xactimate or XactContents.”

      Want to know more about the challenges David Melzer has faced? Get the full details with our Challenge Study report.

      Construction Expert Witness

      Eugene Peterson built his first home in 1974 – and has been a home builder, remodeler, and restoration contractor for over 35 years.
      He is a Past President of the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., an expert witness & consultant for restoration, personal property & construction related matters in the United States and Canada. Peterson has facilitated peer group meetings for Business Networks, Inc., and was an
      advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software) for several years. He also actively performs insurance appraisals as an umpire or appraiser.

      Discover more cases with Eugene Peterson as an expert witness by ordering his comprehensive Expert Witness Profile report.

      Statistics Expert Witness

      Dr. Duane Leon Steffey holds a Bachelor of Science in history and mathematics, a masters in statistics, and a Ph.D. in statistics from Carnegie Mellon University. He has served as a consulting statistician for over thirty years, with a “breadth of applications in engineering, health, environmental science, and civil justice.”

      He is an elected Fellow of the American Statistical Association since 2009, as well as an Elected Member of the International Statistical Institute since 2015.

      Gain a comprehensive understanding of Duane Steffey’s qualifications and casework history with his Expert Witness Profile report.

      Discussion by the Court

      1. Greg Regan

      Regan indicated that he was “asked to provide a methodology to calculate available classwide damages.” State Farm produced an Excel file known as the “Combined Pitkin Dataset.”

      If a claim “involves more than a few items or is not settled during a first contact” the claims personnel may “utilize the XactContents® tool to assist in valuing lost property for claim settlement purposes.” Third party entity Verisk owns the XactContents® tool.

      To create the Combined Pitkin Dataset for this litigation, third-party Verisk first created a report containing data regarding personal property claims during the class period with an XactContents® actual cash value estimate.

      Regan clarified that while his “methodology to calculate damages” was laid out in his initial report, the supplemental report was meant to apply the methodology to the Combined Pitkin Dataset. Regan then proposed two alternative “scenarios” for calculating damages. Under the first scenario, damages would equal the amount of Sales Tax Depreciation applied to a claim, capped by any RC benefits available under the policy. Under the second scenario, Regan allocated Sales Tax Depreciation proportionally by comparing the claimant’s remaining RC benefits to the total recoverable depreciation and then applying that percentage to the amount of Sales Tax Depreciation.

      The crux of State Farm’s motion to exclude concerns the reliability of Regan’s opinions. Specifically, State Farm claimed Regan’s opinion hinges on (1) unreliable data, (2) unreliable identification of class members, and (3) incompatible and unreliable damages “scenarios.”

      a. Reliability

      State Farm first argued that Regan’s reliance on the Combined Pitkin Dataset lacked the “foundation” necessary to survive a Daubert motion.

      State Farm’s challenge is best understood as an attack on the assumptions underlying Regan’s analysis—mainly, that XactContents® is an accurate tool for measuring damages in this case.

      Regan indicated that he relied on State Farm’s own records, testimony from State Farm employees, “validation exercises,” “extensive testing,” and “adopting the more conservative input for purposes of measuring damages” when a disagreement in the data arose.

      The Court concluded that Regan has established by a preponderance of the evidence that his opinion is reliable and admissible, subject to cross-examination and presentation of contrary expert testimony.

      According to State Farm, Regan’s “three new groupings of purported class members (not reflected in the class definition or his prior opinions) produce unreliable and patently incorrect results.”

      However, Regan “organized his damage calculations in three groups to reflect the different circumstances of those groups.” While each group may present different factual circumstances, Regan “applied the same methodology to calculate damages across all groups.”

      State Farm finally challenged Regan’s two damages scenarios as unreliable and invalid. Regan sufficiently explained in his Report and Supplemental Report the reason for having two damages “scenarios,” how he reached those scenarios, and the methodological basis for each.

      b.  Untimely Opinions

      State Farm argued in the alternative that Regan’s opinions in the Supplemental Report should be excluded as untimely and improper new opinions.

      Regan’s Supplemental Report was disclosed two months after the Rule 26 disclosure deadline and less than one month before the rebuttal deadline. Because its own expert, Steffey, opined that the Supplemental Report “substantially revised Regan’s opinions,” State Farm urged that the Court find his “new” opinions as untimely under Rule 702. Plaintiffs responded by pointing out that the parties jointly agreed to extend fact discovery and adjust the pretrial schedule to allow for State Farm to produce the Combined Pitkin Dataset. As a result, Regan produced his Supplemental Report on September 25, 2025—a date agreed upon by the parties in their joint request to adjust the pretrial schedule.

      2. David Melzer

      a. Methodology

      Melzer indicated that he was “hired to provide opinions on . . . the frequency of personal property claims with State Farm, the ascertainability of these claims through available databases, and whether the claims of Plaintiffs Pitkin and Grout fall within the proposed class.”

      Melzer’s proposed methodology to estimate the total number of potential class members is as follows. To estimate the total volume of personal property replacement claims for State Farm in California from 2015 to the present, he analyzed the number of claims in a submarket: San Diego. He chose San Diego as a representative example because claims throughout California would “typically be consistent with personal property claims made in San Diego.”

      Using that data, Melzer estimated the total number of insurance claims in San Diego across all insurers by dividing the number of Travelers’ claims by its 3.68% market share (a percentage market share that is available on the California Property and Casualty Market Share Report published by the California Department of Insurance).

      He then consulted the California Property and Casualty Market Share Report (the “Market Report”) issued by the California Department of Insurance from 2015-2023 and determined that State Farm consistently has “over 8.5% of the Property and Casualty Insurance Market in California.”

      Melzer goes on to explain that based on his familiarity with Xactimate and XactContents®, he believes that “given the detailed data that insurance companies maintain and given the flexibility and power of Xactimate/XactContents, it is [his] opinion that State Farm can create a report, or export the necessary data, that will allow for the identification of all personal property insurance claims where State Farm depreciated the taxes. From that report, Plaintiffs will be able to identify the members of the Class.”

      b. Class Member Identification

      State Farm maintained that the Court must exclude any class identification opinion from Melzer, as he “has not purported to identify class members” and instead “conjectures that someone else can.”

      It similarly urged that Melzer’s “conjecture that someone else can reliably and feasibly identify specific class members based solely on the Combined Pitkin Dataset also lacks sufficient foundation, conflicts with Melzer’s other admissions, and is therefore inadmissible.”

      Plaintiffs contended that Melzer did, in fact, “analyze the capabilities of the Combined Pitkin Dataset to ascertain the members of the class.”They highlighted that Melzer provided a “detailed analysis of the capabilities of XactWare products, including XactContents.”

      “While State Farm may disagree” with this analysis, Plaintiffs concluded, “that is not a basis for the Court to exclude Melzer’s conclusions based on his extensive experience.” The Court agreed.

      c. Depreciation Standard Industry Practices

      State Farm similarly sought to exclude Melzer’s opinions on “sales tax depreciation practices for the insurance industry as a whole.”

      Plaintiffs responded by highlighting Melzer’s “more than a decade of experience regarding the adjustment of insurance claims,” including working for Farmers, Travelers, and during his “nearly five years as a public adjuster working with multiple insurers from 2020 to the present.”

      Much of that time was spent working with XactWare products, including XactContents®, which Plaintiffs believe render him qualified to “offer opinions as to the industry standard for adjustment of contents insurance claims.”

      As with his other opinions, the Court found that it is more likely than not that Melzer meets the four requirements. While a fact finder may conclude that State Farm’s sales tax depreciation practices are not what Melzer claims them to be, that does not render his opinion and testimony inadmissible.

      d. Rule 26 Testimony

      Plaintiffs acknowledged that “they, and State Farm, are precluded from offering undisclosed expert opinions.” But they maintained that “Melzer’s opinions as to the typicality of insurers not depreciating sales tax were explicitly disclosed in his report.”

      No party may offer undisclosed expert opinions at trial. The Court held that the example in the preceding paragraph was disclosed and will not be excluded.

      3. Eugene Peterson

      a. Methodology

      Peterson concluded that “XactContents® software contains global and line-item settings that allow an insurance company to apply depreciation based on one of three methods: 1) percentage, 2) by a fixed dollar amount, and 3) by age with an adjusted condition.” He opined, “the software allows complete control over how depreciation is calculated, so each insurance company can set its policies for depreciation without needing to customize the software. From the software’s perspective, a user can determine what line items are to be depreciated and what is to be depreciated in each line item, e.g., sales tax.”

      b. Opinions on XactContents® Data Extraction

      State Farm “did not dispute Peterson’s ability to testify regarding what the XactContents® tool is and how it may be used.” Instead, it sought to exclude Peterson’s “feasibility opinion—that the Combined Pitkin Dataset in this matter can be used by someone else to reliably identify class members or calculate damages.”

      The Court found that Peterson sought to offer a relatively narrow opinion with respect to the structure and abilities of XactContents® to assist Plaintiffs in calculating damages in this case. He has significant experience working with XactContents®. 

      4. Duane Steffey

      Steffey was hired by State Farm to “evaluate the basis and foundation for Regan’s, Melzer’s, and Peterson’s opinions” at class certification. State Farm also disclosed Steffey as a rebuttal expert to Regan’s supplemental report.

      a. Class Membership

      Plaintiffs took issue with how Steffey criticized Regan’s identification of 41,153 class members in his Supplemental Report.

      State Farm countered that Steffey’s rebuttal report criticizing Regan’s “new approach to identifying class members and calculating damages” was “based on his knowledge and education in statistics, previous experience, and the materials he reviewed.”

      The Court agreed with State Farm that exclusion is not warranted. Steffey engaged in a thorough review of the materials provided to him, including all exemplar claims identified by Regan. He then identified at least one “exemplar” Plaintiff who potentially lacked injury and damages, thus raising questions about Regan’s methodology for identifying class members.

      b. Damages Calculations

      Plaintiffs also sought to exclude Steffey’s criticism that Regan’s damages “scenarios” are “unreliable.”

      The Court found that Steffey raised important questions about Regan’s methodology that go to the heart of this dispute—questions regarding standing, injury, and how to identify class membership. His opinions are relevant. They can be tested. And they may assist the trier of fact in resolving the question of damages and standing in this case.

      c. Data Fields Interpretation

      Plaintiffs sought to exclude Steffey’s claim that some of Regan’s “descriptions of certain data fields in the Combined Pitkin Dataset ‘have not been corroborated by anyone with requisite knowledge.’”

      The Court found that Steffey properly critiqued Regan’s assumptions in the Combined Pitkin Dataset, a topic which he, as a statistician, may opine. That Steffey recognized he cannot judge the accuracy of the fields is a different question than identifying Regan’s failure to corroborate the Dataset. 

      d. Substantial Revision Opinion

      Plaintiffs finally sought to exclude Steffey’s opinion that Regan’s supplemental report represents a “substantial revision” to his analysis in the original report.

      Credibility is always an issue for the jury to consider, and Steffey’s opinion about the “drastic” change “underscores the unreliability of Regan’s approach generally.”

      State Farm is entitled to present this opinion as an attack on Regan’s credibility at trial. In sum, the Court will not exclude Steffey’s testimony.

      Held

      The Court denied the parties’ motions to exclude, as each request raises issues of credibility—a question reserved for the factfinder—instead of admissibility.

      Key Takeaway

       Plaintiffs must show it is more likely than not that: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert [has reliably applied] the principles and methods to the facts of the case.” Applying this standard, State Farm argues that Plaintiffs have not met their evidentiary burden.

      Case Details:

      Case Caption: Pitkin V. State Farm General Insurance Company
      Docket Number: 3:23cv924
      Court Name: United States District Court, California Northern
      Order Date: June 30, 2026
    4. Expert Testimony on Deceptive Charges Excluded

      Expert Testimony on Deceptive Charges Excluded

      Plaintiff Rickey Martin is a Florida resident who purchased corrective contact lenses from Defendant Lens.com’s website on five separate occasions between January and October, 2021.

      When making these online purchases, Plaintiff alleged that Lens.com charged him an undisclosed, unreasonable, and unlawful processing fee in violation of Florida’s Unfair and Deceptive Trade Practices Act (the “FUDTPA”).

      Plaintiff further alleged that Lens.com advertised one price for its contact lenses but charged 50% more than the advertised price at checkout. According to Plaintiff, purchasers can only recoup the additional 50% charge by completing a mail-in rebate which is disclosed at checkout for the first time.

      Plaintiff also alleged that Lens.com charged Florida customers “Taxes and Fees,” even though the State of Florida exempts contact lens purchases from sales tax.

      Plaintiff thus sought to represent a class of “all Florida residents and consumers who, within the applicable statute of limitations preceding the filing of this action to the date of class certification, purchased products from Defendant and paid a charge labeled “Taxes & Fees” (known to Defendant as a “Processing” fee).” Lens.com denied that its “Taxes and Fees” are deceptive charges in violation of the FDUTPA.

      Lens.com proffered the testimony of four retained expert witnesses: (1) Joshua Gifford; (2) Mark T. Keegan; (3) Peter Kent; and (4) Michele Jowdy. Plaintiff filed a consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses under Daubert.

      Accounting Expert Witness

      Joshua J. Gifford is a Certified Public Accountant, Accredited in
      Business Valuation by the AICPA and is a Certified Fraud Examiner. He has spent the majority of his career performing business valuations for litigation purposes in construction, engineering, retail, wholesale, professional services and agriculture related industries.

      Gifford also has experience in forensic investigations, lost profits and economic damages analyses, and bankruptcy related tax work.

      Want to know more about the challenges Joshua Gifford has faced? Get the full details with our Challenge Study report.

      Survey Research Expert Witness

      Mark Thomas Keegan has over 24 years of experience conducting consumer
      survey research. Over the course of his career, he has personally conducted over 1,000 consumer surveys reaching more than 250,000 consumers.

      Keegan maintains a number of professional certifications and memberships that are directly related to his work as an expert in marketing and consumer research. He is a graduate of the University of Georgia’s Principles of Market Research Program, a professional certification program for marketing industry professionals covering all aspects of the survey research process. He is also a Professional Certified Marketer (PCM), an American Marketing Association certification conferred upon individuals who have demonstrated a mastery of comprehensive and core marketing knowledge and principles.

      Get the full story on challenges to Mark Keegan’s expert opinions and testimony with an in-depth Challenge Study.

      Internet Expert Witness

      Peter Kent is an e-commerce and SEO (“Search Engine Optimization”) consultant who provides online e-commerce strategies to companies seeking to improve their business online. He has written many books about the
      Internet and technology in general.

      Kent has been working with computer technology since early 1979 and has extensive experience in the e-commerce arena.

      Discover more cases with Peter Kent as an expert witness by ordering his comprehensive Expert Witness Profile report.

      Consumer Behavior Expert Witness

      Michele M. Jowdy has more than twenty-four years of experience in the mystery shopping and customer experience research industry.

      Want to know more about the challenges Michele Jowdy has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      A. Joshua Gifford

      Gifford proffers his opinion, from an accounting perspective, that Lens.com’s “‘Taxes and Fees’ description is generic indicating there are a broad range of activities being covered by the charge.” In sum, Gifford opined on the “meaning and connotation of the ‘Taxes and Fees’ description from a financial or business perspective.”

      B. Mark Keegan

      Keegan’s study of 459 relevant consumers shows that most consumers understand the pricing presented during Lens.com’s online purchase checkout process and are not deceived or confused by Lens.com’s representations.

      C. Peter Kent

      According to Kent, customers are generally driven by price. Some customers seeking the best price for their contact lenses are benefitting from a low overall price from online sellers like Lens.com, even after the additional fee is added at the end of the transaction.

      D. Michele Jowdy

      Jowdy compared Lens.com’s final prices (inclusive of all applicable fees and rebates) to the final prices of Lens.com’s competitors. Jowdy also compared Lens.com’s price to the average price for 16 different brand-name contact lenses. Although Jowdy does not proffer an opinion, her report seems designed to show a jury that Lens.com charges a competitive final price for its prescription contact lenses.

      Analysis

      Plaintiff contended that offering their expert opinion is an improper attempt to “reframe this lawsuit as a dispute about overcharging, price comparison, consumer confusion, or industry norms,” when the case is instead about whether Lens.com’s “Taxes and Fees” are deceptive or misleading to the reasonable consumer in violation of the FDUTPA.

      Plaintiff observed that Lens.com’s “four experts share the same flaw: each is directed at a substitute issue that would distract the jury from the only one that matters,” i.e., whether the net impression of Lens.com’s “Taxes and Fees” is misleading to the reasonable consumer under the circumstances, which deception caused Plaintiff actual damage. The Court agreed with Plaintiff on this point and goes one step further. All four experts improperly intrude into the province of the jury.

      The testimony of Gifford, Kent, and Keegan constitute opinion on whether reasonable consumers would find Lens.com’s “Taxes and Fees” deceptive. Clearly, that is an issue (perhaps the critical issue) for the fact finder, not an expert.

      The jury did not need an expert to assist its factual determination of whether the net impression of Lens.com’s “Taxes and Fees” is objectively misleading to the reasonable consumer. Nor did a jury need an expert to opine as to whether Plaintiff suffered actual damages by paying those charges.

      Held

      The Court granted the Plaintiff’s consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses, Joshua Gifford, Mark Keegan, Peter Kent, and Michele Jowdy.

      Key Takeaway

      In this case, Lens.com’s proffered expert opinions would not only not assist the trier of fact, they would affirmatively confuse the jury. The Court is disinclined to allow experts, even qualified, reliable, and helpful ones, to supplant and interfere with the jury’s role in this kind of case.

      Case Details:

      Case Caption: Martin V. Lens.Com, Inc.
      Docket Number: 0:24cv60489
      Court Name: United States District Court, Florida Southern
      Order Date: April 28, 2026
    5. Accounting Expert Was Partly Allowed to Opine on the Business Relationship

      Accounting Expert Was Partly Allowed to Opine on the Business Relationship

      This case involves a contract dispute between the Douglas and Amy Mottram and Robert Radke. Prior to 2018, the Mottrams entered into four joint ventures with Radke, in which Radke would buy land in California, on which the Mottrams would construct homes to be resold for mutual profit. Beginning in 2018, the Mottrams and Radke decided to pursue a similar strategy in Kauai, purchasing two plots of land (“Lot C” and “Lot D”) using funds from both parties. The parties did not enter into a written contract for this Kauai joint venture, and, perhaps predictably, its exact nature and terms are in dispute.

      What is clear is that by 2023, the business relationship between the Mottrams and Radke had disintegrated due to, inter alia, conflict over the division of profits from Lot D, personal usage of the Kauai properties, and the Mottrams’ alleged siphoning of funds for a separate project with a third-party. On March 17, 2026, the Mottrams filed the instant motion, asserting that the Court should disqualify Radke’s proffered expert witness, Ross R. Murakami, on the grounds that his expert opinions failed to meet the standards of Federal Rule of Evidence 702.

      Accounting Expert Witness

      Ross R. Murakami has extensive experience in the real estate, construction, government, insurance, distribution, and retail industries, with over thirty-five years of experience providing audit, accounting, and consulting services to organizations based in Hawai‘i and the Pacific Basin and on the West Coast.

      Want to know more about the challenges Ross Murakami has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      I. Rule 408

      The Mottrams argued that Murakami’s expert report relied in part on information provided during settlement negotiations in violation of Rule 408.

      The Mottrams argued that the portions of Murakami’s report that rely upon the spreadsheet, namely Tables 7, 8, and 14 of Section III, should be excluded under Rule 408.

      Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” Rule 408 is clear in stating that “a statement made during compromise negotiations” cannot be used to “prove or disprove the validity or amount of a disputed claim.” The spreadsheet, prepared and provided as it was for the purposes of settlement, and used by Murakami to support his damages opinions, is unambiguously protected by Rule 408.

      During oral argument, Radke’s counsel proposed that Murakami be permitted to amend the portions of his report that rely on the spreadsheet. The Court declines to open that window. Put simply, a party is not entitled to correct a problem of their own making, particularly one so glaring as a violation of Rule 408.

      II. Insufficient Facts

      The Mottrams next argued that Murakami’s opinions should be excluded because he relied upon inaccurate interpretations of the record. The Mottrams claimed that those opinions failed to account for contradictory facts in the record and instead relied on mere assumptions provided by Radke’s counsel; therefore, they are not based on sufficient facts and data.

      The Court takes no position as to whether the Mottrams are correct in arguing that there is evidence contradicting Murakami’s opinions, precisely because doing so at this time is unnecessary and contrary to the Court’s assigned role.

      III. Reliability

      The Mottrams argued that Murakami was unable to identify or utilize any reliable accounting standards or authorities supporting his methods.

      Radke, on the other hand, argued that Murakami abided by professional standards in his analysis and that, beyond this, the field of forensic accounting does not have a single, uniform methodology to which he should have adhered.

      To begin, the Court agreed with Radke that Murakami’s expert opinions are not rooted in scientific evidence, given that forensic accounting is a specialized field in which factors like error rates or peer review are not accepted indicators of reliability.

      Accordingly, the focus of the reliability inquiry “depends heavily on the knowledge and expertise of the expert, rather than the methodology or theory behind it.”

      The Court is not convinced, however, by the Mottrams’ arguments. The Mottrams go too far in asserting that Murakami’s deposition testimony is proof of a lacking methodology. Murakami testified that there was not a single “professional standard” for calculating certain figures in his analysis, but-as Radke argued-that is merely a result of forensic accounting not having universal, scientific standards in the same way as other fields of expertise.

      Finally, the Mottrams also asserted that Murakami did not apply his methodology reliably because “Radke’s counsel instructed Murakami to assume that Radke’s share of the profits should be based on his share of capital contributions,” which the Mottrams argue was a flawed understanding of the case. Again, however, whether to exclude an expert does not depend on the “correctness of the expert’s conclusions,” and Murakami’s reliance on an assumption provided by counsel did not offer a basis to find he applied his methodology unreliably.

      The Court found that Murakami’s expert opinions have demonstrated sufficient reliability, and the Mottrams’ motion to disqualify on those grounds is denied.

      Held

      The Court granted in part and denied in part the Mottrams’ motion to disqualify expert witness, Ross Murakami.

      Key Takeaway

      While Rule 703 permits experts some leeway in basing their opinions on inadmissible evidence, courts have determined that it cannot be used to admit evidence excluded by Rule 408.

      Case Details:

      Case Caption: Mottram V. Radke
      Docket Number: 1:25cv45
      Court Name: United States District Court, Hawaii
      Order Date: June 16, 2026
    6. Accounting Expert Not Allowed to Opine on Transition Period

      Accounting Expert Not Allowed to Opine on Transition Period

      Robert Webster allegedly owed fiduciary duties, including duties of loyalty and honesty, to his employer, CellMark. He was also subject to contractual obligations restricting him from competing with CellMark or soliciting its customers or employees on behalf of himself or others. According to CellMark, Webster began breaching these duties in 2023 after deciding to leave the company and allegedly taking steps to move certain customers away from CellMark.

      CellMark claimed that, before Webster’s departure in June 2024, he had either diverted or prepared to divert several customers to CellMark’s competitors. The company further alleged that Göran Sohl, Fortex Americas, LLC, and DRC Industries, Inc., a supplier that later became a competitor, assisted or encouraged Webster’s conduct because they stood to benefit from the resulting business opportunities. CellMark also alleged that these entities were aware of Webster’s fiduciary and contractual obligations but proceeded despite those obligations.

      Based on these allegations, CellMark brought several claims, including breach of fiduciary duty, breach of restrictive covenants, violations of the Kentucky Uniform Trade Secrets Act and the Defend Trade Secrets Act, and civil conspiracy.

      CellMark retained Jay R. Cunningham to offer expert testimony on its damages. Defendant Rob Webster and the Fortex Defendants (Fortex Americas, LLC, Dinah Bowman, and Göran Sohl) filed respective motions to exclude the testimony of testimony of Cunningham.

      Accounting Expert Witness

      Jay Ryan Cunningham has more than 20 years of accounting and finance experience as a consultant in litigation, investigative and other business dispute matters.

      He has managed or assisted on engagements providing advisory services to clients in a wide variety of disputes and performing a variety of damage analyses. He has also managed or assisted in special investigations related to accounting restatements, fraud, and other inappropriate business practices.

      Cunningham is a graduate of Murray State University, Kentucky, with a B.S.B. degree in accounting and an M.P.Acc. degree.

      Want to know more about the challenges Jay Cunningham has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      A. Cunningham’s disgorgement analysis must be excluded because it is unhelpful

      CellMark believed it was entitled to disgorgement as a remedy for Webster’s alleged misconduct. To quantify this remedy, CellMark had Cunningham analyze the amount Webster should allegedly disgorge. To do so, Cunningham added up figures from a CellMark payroll spreadsheet.

      Webster argued that Cunningham’s disgorgement analysis was merely “basic math” and should be excluded because it was not beyond the ken of common knowledge.

      The parties agreed that Cunningham performed basic math to analyze the amount of disgorgement allegedly available. The Court therefore concluded that Cunningham’s opinions on disgorgement “should be excluded on such grounds.”

      B. Cunningham’s overall lost-profits methodology is not fatally flawed

      Webster contended that Cunningham failed to follow “a reliable methodology” because Cunningham “did not consider the other factors that could have caused CellMark’s losses, making his opinion unreliable and inadmissible.” The Fortex Defendants primarily contended that Cunningham’s methodology relied too much on CellMark’s “management’s belief, not on an analysis of CellMark’s” financial data, and also failed to consider “whether industry trends or market conditions could have impacted sales.”

      While these may be reasons to criticize Cunningham’s analysis, they are not valid grounds for excluding all of Cunningham’s lost-profits testimony.

      It is also true that Cunningham adopted a particularly rosy view of how things would have supposedly turned out for CellMark had the alleged misconduct not occurred—and did so based primarily on information provided to him by CellMark. But Cunningham is entitled to that optimistic perspective so long as it is based on evidence and not clearly contradicted by the evidence.

      The Court cannot say that Cunningham’s entire lost-profits analysis is so “clearly contradicted” by the evidence in this case that it must be excluded merely because he believed that CellMark’s historical performance would have continued undisturbed but for the alleged conduct of Webster and the Fortex Defendants.

      In sum, Cunningham’s overall methodology is not so defective or unreliable as to render all of his testimony about lost profits completely excludable.

      C. Cunningham’s invention of an unsupported seven-month “transition period” is improper and should be excluded

      While Cunningham’s overall methodology is not fatally flawed, one element of his analysis is. Webster and the Fortex Defendants asserted that when Cunningham tacked on a seven-month “transition period” to the damages period for each CellMark customer, he impermissibly relied on baseless speculation.

      When Cunningham’s report discussed the time period he used to analyze lost profits, he noted that he “included an additional seven-month transition period” for every customer because he believed Webster’s year-long non-compete period would, in turn, cause an additional “reasonable delay” before Webster could successfully solicit customers. Cunningham’s choice of a seven-month period, he asserted, was “based upon an estimated average time to solicit and onboard customers, as well as order and receive associated product.”

      But Cunningham cited no evidence in support of this “estimated average”—he did not, for example, consult industry data to establish a range for how long it might reasonably take a player in the market to develop a relationship with a customer currently being serviced by another supplier or how long it would generally take to build up an inventory to service such clients.

      Cunningham’s seven-month transition period is the product of bare speculation. Cunningham himself tacitly acknowledged this: When questioned at his deposition about his basis for the transition period, Cunningham testified that the “seven-month period is an assumption,” that he did not “have data that suggests . . . how long does it take to get that customer,” and that there was no other data point that he could point to that would back up his choice to assume a seven-month transition period—or any other quantified time period, for that matter.

      D. The Court will not exclude Cunningham’s opinions on lost profits related to Camelot / Integrity

      Webster and the Fortex Defendants next argued that Cunningham’s analysis of lost profits relating to Camelot / Integrity is fatally defective because it is likewise too speculative.

      CellMark responded by citing documentary evidence indicating that CellMark sold products to Camelot before its bankruptcy and sold products to Integrity in 2024 through a former Camelot representative that Integrity retained after Camelot was acquired by Integrity, thereby laying a foundation for Cunningham’s assumption of CellMark’s continued sales.

      This is a close call. On the one hand, it seems tenuous to assume a company that acquired a CellMark customer after its bankruptcy would continue to purchase products from CellMark as though nothing had changed. Indeed, the document Cunningham cites for the proposition that CellMark expected future business with Integrity via Webster plainly did not reflect any firm purchasing commitment from Integrity. On the other hand, there is evidence that Integrity continued to purchase products from CellMark via the relationship Webster fostered with Camelot’s representative (whom Integrity kept on board) after Integrity acquired Camelot and that there was an ongoing relationship with CellMark. And there is evidence that Fortex made large volumes of sales shortly thereafter. Bearing in mind that there is thumb on the scale in favor of admitting expert testimony, the Court is reluctant to exclude Cunningham’s testimony about lost profits relating to Camelot / Integrity.

      Therefore, the Court will not exclude Cunningham’s testimony relating to Camelot / Integrity.

      E. No other theories that would justify partial exclusion

      Webster and the Fortex Defendants raised a series of additional arguments for partial exclusion of Cunningham’s opinions.

      First, the Defendants took issue with Cunningham’s unique damages period for Multi-Color Corporation. There is a factual dispute about whether CellMark would, in fact, have renewed its exclusivity agreement with Asia Pulp and Paper and continued on as an exclusive supplier for Multi-Color Corporation’s needs for months after Webster’s departure. Cunningham is therefore allowed to assume that CellMark would have done so. But the Defendants are equally allowed to contest the veracity of the facts underlying his assumption and to vigorously cross-examine Cunningham to determine the effect on his analysis if the jury does not credit CellMark’s evidence.

      Second, Webster raised the issue of inflation, suggesting that Cunningham’s assumption of a 3.5% yearly price increase benefitting CellMark was unsupportable in light of “market data showing an industry in decline.” The Court concluded that the issue of whether Cunningham’s assumptions about inflation and market conditions were too optimistic is better addressed through cross-examination than outright exclusion.

      Third, Webster contended that “Cunningham attributes customer sales declines to Webster” even though “CellMark’s corporate representative admitted there is no evidence implicating Webster.” Of course, this entire dispute is about whether Webster diverted business away from CellMark. Arguments rooted in factual disputes over what the evidence does and does not show and the related effects on an expert’s output are properly resolved through cross-examination—not wholesale exclusion.

      Finally, Webster contended that Cunningham went beyond the scope of his expertise by offering certain statements about “industry customs and standards” in the paper industry. The Court did not find this argument convincing.

      The Court concluded that Cunningham should be allowed to testify about what he understands are paper industry norms and how they inform his analysis of CellMark’s lost profits.

      Held

      • The Court granted in part and denied in part Webster’s motion to exclude the testimony of Jay Cunningham.
      • The Court granted in part and denied in part the Fortex Defendants’ motion to exclude the testimony of Jay Cunningham.

      Key Takeaway

      Expert testimony “should be excluded if it is based on ‘unrealistic assumptions’” or “unsupported speculation.” Cunningham’s arbitrary seven-month “transition period” relied on both. This is a prime example of the sort of baseless testimony that courts may properly exclude. Cunningham may not testify at trial as to any “transition period” following the term of Webster’s non-compete period.

      Please refer to the blog previously published about this case:

      Accounting Experts’ Testimony on Exclusivity Agreement Limited

      Case Details:

      Case Caption: Cellmark, Inc. V. Webster
      Docket Number: 2:24cv181
      Court Name: United States District Court, Kentucky Eastern
      Order Date: May 29, 2026
    7. Accounting Experts’ Testimony on Exclusivity Agreement Limited

      Accounting Experts’ Testimony on Exclusivity Agreement Limited

      CellMark brought several claims against Dinah Bowman, Göran Sohl, and
      Fortex Americas, LLC (collectively the “Fortex Defendants”), as well as Rob Webster arising out of the unamicable end of Webster’s employment at CellMark in 2024.

      Plaintiff CellMark, Inc. retained an expert, Jay Cunningham, to show that it
      suffered various economic damages arising from its claims in this case.

      Webster retained Joshua Shilts to rebut Cunningham’s opinions, and the Fortex Defendants retained Robert Kester for the same purpose.

      CellMark filed a motion to exclude certain testimony from the Defendants’ rebuttal experts.

      Accounting Expert Witnesses

      Joshua James Shilts CPA,ASA, CFF/CGMA/ABV, CFE, has held roles with public accounting firms ranging in size from the “Big Four” to smaller regional and local firms, as well as large public organizations throughout Florida and New York.

      Shilts has provided expert testimony in commercial and family matters involving business valuation, economic damages, fraud, and other disciplines related to economics and accounting issues.

      Get the full story on challenges to Joshua Shilts’ expert opinions and testimony with an in-depth Challenge Study.

      Robert Breece Kester, CPA/ABV/CFF, specializes in the assessment of economic damages, business valuation, and accounting matters. He has provided consulting services related to businesses across a cross-section of industries, including but not limited to financial services, manufacturing, restaurants, retail, distribution, transportation, logistics, construction, professional services, and many other specialized industries.

      Want to know more about the challenges Robert Kester has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      A. Shilts and Kester may not testify about any legal opinions.

      CellMark argued that Shilts’ and Kester’s reports are littered with legal opinions and that they must be prohibited from testifying as to those points at trial.

      Both Shilts’ report and Kester’s report contain conclusion sections that summarize their criticisms of Cunningham’s report.

      The conclusion sections of the Defendants’ reports veer into the realm of legal opinion by calling Cunningham’s opinion speculative, unreliable, and unsupported by sufficient data. Thus, the Court granted CellMark’s motion to exclude testimony from Shilts and Kester that invaded the province of the Court by stating legal opinions and invaded the province of the jury by telling it how it should weigh the evidence.

      B. Shilts and Kester may critique Cunningham’s reliance on assumptions regarding the exclusivity agreement, but they may not opine as to the ultimate truth of those assumptions.

      Next, CellMark argued that Shilts and Kester may not testify about whether Cunningham correctly assumed for his damages model that CellMark would have renewed an exclusivity agreement.

      Shilts and Kester both criticized Cunningham’s report for assuming that CellMark would have renewed its exclusivity agreement with Asia Pulp and Paper but for Webster’s failure to renew the agreement.

      While Shilts and Kester may critique Cunningham’s assumptions regarding the exclusivity agreement, they must avoid testifying about whether the agreement should have been renewed or whether it would have been renewed but for Webster’s conduct.

      Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized the Defendants’ reports.

      But the Court granted the motion to the extent Shilts and Kester intended to testify that the evidence showed that the exclusivity agreement would not have been renewed in any event and to the extent they intended to testify that Cunningham’s opinions are not based on truthful or objective evidence.

      C. Similarly, Shilts may critique Cunningham’s reliance on assumptions about continued business with Duro-Last, but he may not opine as to the ultimate truth of those assumptions.

      Shilts’ report said that his “understanding is that Duro-Last wanted to consolidate suppliers” and that this could have reduced CellMark’s lost profits attributable to Duro-Last.

      Shilts made it clear that his testimony as a rebuttal expert will criticize Cunningham’s opinion on damages— nothing more.

      But the same concerns for the exclusivity agreement issue apply here. Shilts’ testimony must not state whether it is true that Duro-Last allegedly wished to consolidate suppliers or that Cunningham’s opinions are not supported by truthful or objective evidence.

      Accordingly, the Court denied CellMark’s motion to the extent it mischaracterized Shilts’ report. Shilts may critique the assumptions that Cunningham relied upon regarding the volume of business that CellMark would have continued to receive from Duro-Last. But the Court granted the motion to the extent Shilts intended to testify that the evidence showed that Duro-Last desired to consolidate suppliers and therefore would not have continued to place orders with CellMark.

      D. Shilts and Kester may testify about CellMark’s damages, including by providing quantified examples of how they believe Cunningham’s calculations overstate the potential damages.

      CellMark said that the Defendants’ experts should not be allowed to testify to the total amount of damages that CellMark suffered or what the damages period should be because it would be testimony on an undisclosed opinion and would mislead the jury and confuse the issues.

      Shilts and Kester did not provide a single, quantified total of CellMark’s damages in their reports, unlike Cunningham.

      Instead, their reports took a piecemeal approach to separately criticize various aspects of Cunningham’s model, and they pointed out instances where they believe Cunningham’s calculations have overstated the potential damages by a specific, quantified amount.

      Expert testimony by Shilts and Kester about CellMark’s damages clearly falls within the scope of rebuttal. The Defendants’ expert disclosures were properly made, and testimony consistent with their reports would help the jury understand any perceived problems with Cunningham’s opinions on damages. The lack of a total damages calculation is not a good reason to preemptively exclude such testimony when it was within the experts’ purview to use a piecemeal approach instead.

      The Court recognized that there is a potential for the jury to be confused by the ways in which Shilts and Kester might provide discrete quantified examples of how they believe Cunningham’s calculations overstate CellMark’s prospective damages. If properly explained, those quantified examples can be helpful to the jury in evaluating Cunningham’s opinions and calculations.

      E. Shilts may testify about the decline in the distilled spirits industry.

      Lastly, CellMark argued that Shilts may not testify about a decline in the
      distilled spirits industry to rebut Cunningham’s damages calculations.

      According to CellMark, Shilts’ testimony would unreasonably rely upon an online news article for which Shilts does not know the identity of the author. The news article summarized a variety of surveys and reports about alcohol consumption by Americans to suggest that it is on the decline.

      Whether news articles or reports are a reliable basis for an opinion depends on the context and the kind of expertise at issue.

      It is widely believed that the alcohol industry is on the decline in the United States generally, and Shilts offered testimony on this point to lay out a factor that he believed Cunningham should have considered.

      The Court is satisfied that the article contains the kinds of facts and data that business experts would rely upon, but Cellmark is free during trial to challenge Shilts about his knowledge of the article’s author and publisher.

      For now, the Court concludes that Shilts should be allowed to testify about the decline in the alcohol industry and the impact he believes that has on Cunningham’s opinions.

      Held

      The Court granted in part and denied in part CellMark’s motion to exclude certain opinions of Robert Kester and Joshua Shilts.

      Key Takeaway

      A rebuttal expert’s role is to contradict or rebut evidence on the same subject matter identified by another party’s expert disclosure. They have no burden to produce models or methods of their own; they need only attack those of the opposing experts.

      Case Details:

      Case Caption: Cellmark, Inc. V. Webster
      Docket Number: 2:24cv181
      Court Name: United States District Court, Kentucky Eastern
      Order Date: May 26, 2026
    8. Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds

      Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds

      This case centers on a landslide that occurred in May 2017 in the Cincinnati neighborhood of Mount Adams. At the time of the landslide, Plaintiff Metropolitan Design & Development, LLC (“MDD”) was insured under a commercial liability policy with Defendant Frankenmuth Mutual Insurance Company (“Frankenmuth”). MDD performed construction work in the vicinity of the landslide prior to the event, and several lawsuits alleged that MDD’s negligence caused the landslide, resulting in damage to nearby properties.

      MDD immediately notified Frankenmuth of the lawsuits and provided documentation, but Frankenmuth declined to defend MDD in these actions.

      Plaintiffs alleged that, in failing to defend MDD in the prior landslide lawsuits, Frankenmuth breached the terms and conditions of its insurance policy with MDD.

      Plaintiffs proffered two expert witnesses in support of their case: Charles M. Miller and Rebekah A. Smith.

      Insurance Expert Witness

      Charles Murray Miller is a former insurance claims adjuster and manager, as well as a lawyer practicing insurance law. He has held several insurance claims positions, including senior adjuster, branch office general adjuster, and claims manager.

      Discover more cases with Charles Miller as an expert witness by ordering his comprehensive Expert Witness Profile report.

      Accounting Expert Witness

      Rebekah Anne Smith is a Certified Public Accountant who specializes in forensic accounting. She has over 29 years of relevant business and analytical experience.

      Want to know more about the challenges Rebekah Smith has faced? Get the full details with our Challenge Study report.

      Discussion by the Court

      Charles Miller

      Frankenmuth contended that Miller’s opinions and analysis offered legal conclusions based on the National Association of Insurance Commissioners’ Model Unfair Claims Settlement Practices Act and Regulations, which are encoded in Ohio law and enforced through Ohio regulations.

      Frankenmuth also argued that the Court should exclude Miller’s testimony due to their unreliability, as “Miller’s opinions merely amount to criticisms of Frankenmuth’s claims handling processes without grappling with the reality of this case and the facts in the record.”

      Miller’s opinions are based on general insurance standards that mirror relevant statutes and regulations. Thus, while “Miller’s opinions may verge on legal conclusions,” this “does not mean his entire testimony should be excluded” — instead, Frankenmuth “can object at trial to any questions that it believes would invite an improper response.”

      Frankenmuth’s argument here centers around its contention that Miller ignored countervailing facts, and because Frankenmuth does not identify omissions significant enough to render Miller’s opinions unreliable, the Court declined to exclude Miller’s testimony on this basis.

      Rebekah Smith

      Frankenmuth contended that Smith’s opinions (1) consisted of “simple math,” (2) were calculated using information about MDD’s financials provided by Plaintiff Matthew Fenik, one of MDD’s principals, that Smith failed to independently verify, (3) omitted consideration of MDD’s working capital during the relevant period, and (4) violated the standards of objectivity that Smith herself outlined in professional publications.

      As to Frankenmuth’s characterization of Smith’s opinions as “simple math,” the Court disagreed. Because this type of financial analysis is grounded in Smith’s specialized knowledge as a forensic accountant, it qualifies as expert testimony.

      The Court is unpersuaded by Frankenmuth’s argument contesting the reliability of Smith’s testimony. Frankenmuth asserted that Smith’s opinions are speculative because she should have considered more than just MDD’s financial representations, but Frankenmuth pointed to no other sources of information that she could have examined. This argument does not suffice to exclude Smith’s testimony. As it seems Smith did in fact consider MDD’s working capital during the relevant period, the Court is also unwilling to exclude her report and testimony on this basis. 

      Frankenmuth also pointed out that Smith considered damages to non-insured persons in conducting her analysis, and it argued that such considerations are “plainly irrelevant.” Under Ohio law, only insured persons can recover for bad-faith denial of insurance coverage. Therefore, because Smith’s opinions as to damages to non-insureds would not help the trier of fact to determine any damages amount in this case, which would exclude damages to non-insureds, Smith’s opinions about damages suffered by non-insured persons and entities are irrelevant.

      Held

      • The Court denied the Defendant’s motion to exclude the testimony of Charles Miller.
      • The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Rebekah A. Smith.

      Key Takeaway

      Expert testimony must help the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.

      Case Details:

      Case Caption: Metropolitan Design & Development, LLC V. Frankenmuth Mutual Insurance Company
      Docket Number: 1:25cv38
      Court Name: United States District Court, Ohio Southern
      Order Date: April 29, 2026
    9. Plant Pathology Expert Allowed to Opine on HLVd Infection

      Plant Pathology Expert Allowed to Opine on HLVd Infection

      Plaintiff is a Delaware limited liability business suing multiple individuals and related trusts for securities fraud arising out of a transaction in which Defendants allegedly induced Plaintiff to purchase over $25 million of Devi Holdings stock through fraudulent misrepresentations about Devi’s financial condition and unpaid tax liabilities. Devi Holdings was a business engaged in engaged in cannabis cultivation and production.

      Plaintiff offered the testimony of experts Dr. Zamir K. Punja and Alexander Cooley. Defendants filed a Daubert motion to exclude the testimony of Punja and a joint motion to exclude the testimony of Cooley while Plaintiff filed an omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.

      Plant Pathology Expert Witness

      Dr. Zamir K. Punja has been engaged in the study of plant pathology for over 40 years. He received his Bachelor of Science (Hons.) in Plant Science, Agriculture from the University of British Columbia, Vancouver, B.C., Canada, and earned a Master of Science (MSc) and a Doctorate (Ph.D.) in Plant Pathology from the University of California, Davis, California, USA.

      Get the full story on challenges to Zamir Punja’s expert opinions and testimony with an in-depth Challenge Study.

      Cannabis Expert Witness

      Alexander Cooley has nearly twenty years of experience in the cannabis and hemp industries, including senior operational roles in cannabis companies, consulting work, and policy and regulatory engagement.

      Want to know more about the challenges Alex Cooley has faced? Get the full details with our Challenge Study report.

      Economics Expert Witness

      Beau Whitney is an economist and business operations and governmental affairs specialist with over 20 years of experience. In 2014, he founded Whitney Economics, a cannabis and hemp business consulting, data, and economic research firm based in Portland, Oregon.

      Discover more cases with Beau Whitney as an expert witness by ordering his comprehensive Expert Witness Profile report.

      Accounting Expert Witness

      Barbara Webb has a MAcc in Accounting from the University of Michigan. She is a Certified Public Accountant who specializes in providing complex tax advisory services and audit support for cannabis businesses.

      Gain a comprehensive understanding of Barbara Webb’s qualifications with her Expert Witness Profile report.

      Discussion by the Court

      A. Defendants’ Daubert Motion to Exclude the Expert Testimony of Zamir Punja

      Through Punja’s testimony, Plaintiff sought to prove that Devi’s cannabis was already widely infected with HLVd by early 2021, Defendants knew or should have known it, and they fraudulently concealed this when inducing Plaintiff to buy $25 million in shares. Discovery revealed that by early 2022 Devi’s Arizona facility was experiencing a widespread outbreak of HLVd, a pathogen known to cause significant reductions in cannabis yield and quality. Punja opined that the level of HLVd infection documented in 2022 could only have resulted from repeated propagation cycles over multiple years, and therefore the viroid was present—and detectable—by early 2021, during the period in which Defendants were soliciting Plaintiff’s investment.

      Defendants sought exclusion of Punja’s testimony on the grounds that it is unreliable, speculative, and irrelevant to the claims pled.

      Defendants argued that Punja’s opinions are speculative because he lacked direct HLVd test results from 2021. But the absence of such data is itself a product of Devi’s failure to test. Therefore, Punja’s opinion is consistent with accepted scientific practice.

      Defendants argued that HLVd is irrelevant because the Amended Complaint does not expressly reference it, but the Complaint alleged that Defendants concealed that “the vast majority” of Devi’s cannabis was unsellable—a fact directly tied to Devi’s financial condition and the value of the shares Plaintiff purchased.

      As a result, Punja’s testimony is therefore relevant to whether Defendants misrepresented or concealed material facts about Devi’s operational viability and financial health.

      B. Defendants’ Joint Motion to Exclude Opinion Testimony by Alex Cooley

      Defendants argued that Cooley is unqualified because he is not a CPA and lacked formal accounting or tax credentials. But Plaintiff did not offer Cooley as a general accounting or tax expert. Rather, he is offered to explain cannabis-industry-specific accounting issues.

      Defendants contended that Cooley used no methodology and that his opinions were speculative because he did not calculate Devi’s exact tax liability. However, Cooley did not purport to calculate Devi’s tax liability. Rather, Cooley’s opinions addressed whether Devi’s accounting practices—such as routing revenue through management companies, zeroing out subsidiary income, and classifying expenses as cost of goods sold—were inconsistent with representations that all taxes were paid, and no accounting issues existed.

      Lastly, to the extent the Defendants argued that Cooley invaded the province of the factfinder, any concerns about overreach can be addressed through cross-examination.

      C. Plaintiff’s Omnibus Motion to Exclude the Testimony of Defendants’ Proffered Experts

      1. Beau Whitney

      Whitney is an economist retained to offer opinions regarding cannabis-industry market conditions and to rebut the reports of Plaintiff’s experts, Alex Cooley and Zamir Punja. Plaintiff sought exclusion on the grounds that Whitney’s rebuttal opinions rested on mischaracterizations of Cooley’s report, that his cannabis-market analysis was generic and irrelevant to Plaintiff’s rescission-only claims, that he lacked the qualifications and methodology necessary to rebut Punja’s opinions, and that portions of his report improperly addressed the mental states or beliefs of the parties.

      Whitney’s background in cannabis-industry economics, operations, and market analysis provided sufficient expertise to offer the opinions disclosed in his report. Moreover, his rebuttal of Cooley and Punja is grounded in his professional experience and review of the record. Plaintiff’s objections—whether directed at Whitney’s characterization of Cooley’s opinions, the breadth of his market analysis, or the depth of his engagement with HLVd-related materials—are better addressed through cross-examination and the Court’s own evaluation of the weight to be afforded his testimony.

      2. Barbara Webb

      Webb is a certified public accountant retained to rebut Cooley’s opinions concerning Devi’s accounting practices and tax-related communications. Plaintiff argued that Webb’s testimony should be excluded because it consists largely of narrative summaries and speculative interpretations of internal emails rather than the application of specialized accounting expertise.
      Webb is a CPA with specialized experience in cannabis-industry tax and accounting practices.

      Her rebuttal opinions responded directly to Cooley’s analysis of Devi’s accounting records and tax-related communications. Plaintiff’s challenges largely concerned the inferences Webb drew from internal emails and the extent to which those inferences differ from Cooley’s.

      In conclusion, the Court is well-positioned to distinguish between proper expert analysis and factual narrative, and to disregard any testimony that may stray beyond the permissible scope.

      Held

      1) The Court denied Defendants’ Daubert motion to exclude the testimony of Dr. Zamir Punja.

      2) The Court denied Defendants’ joint motion to exclude the opinion testimony by Alex Cooley.

      3) The Court denied Plaintiff’s omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.

      Key Takeaway

      An expert is not required to possess the ideal dataset; rather, the expert must employ a reliable methodology given the available evidence. Punja’s opinions are not speculative merely because he lacked direct HLVd test results from 2021, particularly where the absence of such data is itself a product of Devi’s failure to conduct testing.

      Case Details:

      Case Caption: 2 3 Suited, LLC V. Jigarkumar Patel
      Docket Number: 9:23cv81503
      Court Name: United States District Court, Florida Southern
      Order Date: February 18, 2026