Expert Witness Profiler

Category: Accounting Expert Witness

  • Accounting Expert Was Not Fully Allowed to Opine on Calculated Future Lost Profits 

    Accounting Expert Was Not Fully Allowed to Opine on Calculated Future Lost Profits 

    Plaintiff Barrett Business Services, Inc. (“BBSI”) is a human resources management company that contracts with small and medium-sized businesses to provide human resource management solutions, including temporary staffing and professional services. It provided these services to employers throughout the Yakima area and particularly to fruit growers and other agricultural companies.

    On April 23, 2014, BBSI hired Defendant Charles Colmenero (“Colmenero”) as an area manager to start on May 12, 2014. Colmenero quit BBSI on July 12, 2022. On July 17, 2015, BBSI hired Defendant Santiago Alejo (“Alejo”) as a Recruitment Specialist to start on July 27, 2015. Alejo quit BBSI on July 8, 2022. Colmenero and Alejo set up their own business, Repsel Associates, Inc., d/b/a/ Personna Employment Solutions (Personna).

    Plaintiff brought this suit against Defendants alleging various claims including violation of the Washington Uniform Trade Secrets Act (“UTSA”) and the Federal Defend Trade Secrets Act (“DTSA”) through misappropriation of trade secrets. Defendants also asserted several counterclaims against Plaintiff.

    Plaintiff has submitted an expert report and declaration by William E. Partin (“Partin”) pertaining to Plaintiff’s alleged damages. Defendants have filed a Daubert motion to exclude Partin’s testimony.

    Accounting Expert Witness

    William E. Partin is the President of the accounting firm of Mueller & Partin Forensic Accountants and Forensic Economists where his practice is the economic analysis of damage claims in disputes involving personal injury, wrongful death, business income losses and business valuations. He is a member of the American Institute of Certified Public Accountants, the National Association of Forensic Economists, the Washington Society of Certified Public Accountants and the American Society of Appraisers.

    Partin has been qualified as an expert witness in the fields of economics, business valuation and accounting. He has testified in numerous states regarding damage measurement issues. Partin has provided seminars to the insurance industry on measurement of economic damages as well as published articles concerning the framework for the measurement of business income losses. He received his Bachelor’s Degree in Business Administration. from Washington State University and has been practicing since 1976.

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

    Discussion by the Court

    Defendants did not challenge Partin’s qualifications as an accountant but rather contended Partin’s testimony is unreliable because it is based on false assumptions and conclusory methods.

    To begin with, Partin summarized all of Personna’s invoices issued to its clients from July 2022 through August 2023. He then identified nine of those clients invoiced as having been clients of BBSI within one year prior to Defendants’ end of employment with BBSI and that were directly managed by Colmenero and Alejo while they were employed by BBSI.

    Partin also compared BBSI’s contribution margins realized for its Yakima, Moses Lake, and Hermiston branches from January 1, 2021 through July 31, 2022, prior to Defendants leaving BBSI, to those contribution margins realized for the same branches August 1, 2022 through September 30, 2023, after Defendants left BBSI. Partin found that BBSI incurred a decline in gross revenue and contribution margins for the year after Defendants left BBSI and attributed the total lost contribution margin to Defendants’ misappropriation which totaled $1,254,960.

    Finally, Partin calculated the total estimated lost contribution to BBSI’s profit and overhead for the next ten years, based on anticipated BBSI testimony that the average customer retention is approximately ten years, by combining the $801,840 allegedly already realized the first year with the $1,254,960 that BBSI would have realized each year for the next nine years but for Defendants’ misappropriation.

    Analysis

    To the extent Partin’s testimony contains legal conclusions, those must be excluded. However, the Court found that Partin’s methodology behind his first calculation of BBSI’s estimated damages from the actual revenue realized by Personna over the fourteen-month period from nine previous clients of BBSI that were directly managed by Defendants to be sufficiently reliable to avoid exclusion.

    Partin’s testimony as to calculated future loss profits based on the decline in revenue across BBSI’s geographically adjacent branches in the year after Defendants’ departure from BBSI is however too speculative. Partin was told by BBSI to assume that the decline in revenue across all branches was a result of Defendants’ misappropriation of trade secrets. Now that the Court has dismissed Plaintiff’s trade secret claim as to its temporary-employee list, BBSI’s list of its clients’ pricing and needs is the only remaining possible trade secret misappropriation claim that is at issue in this case. As such, Partin’s damages calculations stemming from BBSI’s lost revenue is overly broad.

    First, Partin’s calculations of lost revenue from 2022 to 2023 include many customers that contributed no revenue to BBSI from August 2022 through September 2023 but nor were they invoiced by Personna between July 2022 and August 2023. Partin’s damages calculation based on an assumption that all of BBSI’s loss in revenue across all three branches between 2022 and 2023, a total of $1,254,960, was attributed to Defendants’ misappropriation of BBSI’s clients’ pricing and needs is not calculated with reasonable certainty.

    Therefore, by extension, Partin’s assumption that that $1,254,960 loss in revenue would have been realized each year for nine years thereafter if not for Defendants’ misappropriation was also not calculated with reasonable certainty and was excluded by the Court.

    Held

    The Court granted in part Defendants’ motion to exclude the testimony of William Partin.

    Key Takeaway

    While an expert cannot testify to a matter of law amounting to a legal conclusion, the Court found that Partin’s report sufficiently raises an issue of fact as to the damages element of Plaintiff’s misappropriation claim. It should be noted that Partin’s testimony was not fully excluded by the Court.

    Case Details:

    Case Caption: Barrett Business Services Inc V. Colmenero
    Docket Number: 1:22cv3122
    Court Name: United States District Court, Washington Eastern
    Order Date: February 05, 2026
  • Accounting Expert Was Allowed to Opine on the Lease Auditing Process

    Accounting Expert Was Allowed to Opine on the Lease Auditing Process

    600 Cleveland owned a commercial office building located at 600 Cleveland Street, Clearwater, Florida 33601 from September 9, 2013, to April 1, 2024. Bank of America, N.A. (BANA) and 600 Cleveland assumed a lease agreement originally entered into by other parties on December 1, 1986, and both were bound by the agreement. This lawsuit arises from purported violations of the parties’ lease agreement (“Lease”). BANA counterclaimed that 600 Cleveland overcharged BANA for its share of Common Area Maintenance (“CAM”) under the Lease.

    600 Cleveland filed a motion to exclude the entire expert report of Tracy P. Chelepis (“Chelepis Report”) and to bar him from testifying at the upcoming bench trial. The Chelepis Report relates to an audit performed by Chelepis’ firm, which found that 600 Cleveland overcharged BANA for CAM fees under the Lease by $160,882.01.

    Accounting Expert Witness

    Tracy P. Chelepis holds a Bachelor of Science in accounting from the University of Kansas where he took multiple classes on auditing, a CPA license for which he attends 80 hours a year in continuing education, and a real estate license as both agent and broker for which he also attends mandatory continuing education.

    Chelepis also worked as an accountant for a major accounting firm performing financial statement audits and then spent years as a construction accountant for AT&T.

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

    Discussion by the Court

    600 Cleveland made three arguments: (1) Chelepis’ methodology is unreliable; (2) his opinion is ipse dixit; and (3) his testimony would not help the trier of fact.

    Cleveland argued that Chelepis should be barred from testifying because “lease auditing” does not have “articulated industry standards,” “peer review processes,” or a “regulatory governing body to which his opinions can be tested.” Cleveland contended that Chelepis’ reliance on his knowledge and experience as a CPA, purportedly without further explanation, rendered his methodology unreliable.

    BANA correctly identified that, for non-scientific expert testimony, there need not be articulated industry standards, peer review processes, or a regulatory governing body. Nor did the fact that Chelepis’ methodology required him to interpret terms in the lease to determine whether certain costs were properly included make his opinion inherently unreliable.

    Chelepis’ deposition testimony also undermined 600 Cleveland’s argument that his opinion is ipse dixit. Chelepis explained at length the general process he used to audit leases. He then reviewed the lease’s provisions and amendments and explained how he interpreted and applied them to reach his opinion. Chelepis similarly explained his accounting calculations and his underlying reasonable assumptions.

    The Court concluded that Chelepis’ testimony would be helpful in navigating the numerous financial records and reconciling them, using accounting principles, with the lease’s guidance for what could properly be charged as operating costs.

    Held

    The Court denied 600 Cleveland’s Daubert motion to exclude the testimony of Tracy Chelepis.

    Key Takeaway

    The standards of scientific reliability, such as testability and peer review, do not apply to all forms of expert testimony and a district court may decide that non-scientific expert testimony is reliable based upon personal knowledge or experience.

    Case Details:

    Case Caption: 600 Cleveland, LLC V. Bank Of America, N.A.
    Docket Number: 8:24cv1652
    Court Name: United States District Court, Florida Middle
    Order Date: January 23, 2026
  • Accounting Expert’s Lost-Opportunity Testimony Admitted

    Accounting Expert’s Lost-Opportunity Testimony Admitted

    Plaintiffs Joshua Cane Jellison and Jessica Marie Jellison (collectively “Plaintiffs”) alleged violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, against PHH Mortgage Corporation, the assignee and servicer of their mortgage loan.

    Plaintiffs claimed that they entered into a COVID-19 forbearance, which caused them to accrue past due payments. According to Plaintiffs, PHH offered to resolve the past due payments by way of a Federal Housing Administration (“FHA”) COVID-19 Recovery Standalone Partial Claim Mortgage (“PCM”), through which the FHA would have purchased Plaintiffs’ outstanding debt and secured it with a second position mortgage. Plaintiffs contended the PCM would have paused any monthly payments until the mortgaged property was sold or the mortgage serviced by PHH was paid in full or refinanced. They alleged that PHH did not timely approve Plaintiffs’ entry into the PCM and instead threatened foreclosure. PHH believed it properly rejected Plaintiffs’ applications for the PCM because Plaintiffs did not meet all of the requirements. Plaintiffs were eventually approved for the PCM and did not lose their home through foreclosure.

    Plaintiffs alleged generally that they incurred damages because their credit score was substantially reduced which severely affected their ability to run their business.

    When Plaintiffs produced the report of their economic expert, Key Coleman, Defendant PHH Mortgage Corp. filed a motion in limine to exclude the testimony of Coleman.

    Accounting Expert Witness

    Arthur Key Foster Coleman, CPA, CFA is Executive Director and Founder of Litigation Economic & Forensic Consulting Group LLC. Coleman has more than 30 years of experience providing business and financial analysis. His focus is on forensic accounting, commercial disputes, damages and expert testimony.

    Coleman serves full-time as Assistant Professor of Business at Rosemont College.

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

    Discussion by the Court

    Relying entirely on Jellison’s statements regarding his existing and future business ventures, Coleman concluded that Plaintiffs suffered economic damages in the amount of $322,608 from the alleged loss of the opportunity to expand Plaintiffs’ business by purchasing additional equipment.

    In its challenge to strike Coleman’s testimony at trial, PHH argued that his opinions are “inherently unreliable” because “his economic damages calculations are predicated entirely on speculative and unverified information provided to him by Mr. Jellison.”

    More specifically, PHH argued that Coleman’s opinions are based upon Joshua’s unsupported and unverified statements regarding (1) his future business plans; (2) the market conditions implicated by those plans; and (3) the viability and potential profits of those “purported plans.” PHH stressed that Coleman bases his opinion solely on what Jellison told him about demand for expanding his business.

    Analysis

    This Court and others, however, have noted that an owner of a business who participates in day-to-day operations is qualified to offer an opinion as to lost profits based on the company’s actual operating history.

    The historical business information supplied by Jellison and relied upon by Coleman is based upon Jellison’s personal knowledge acquired from the day-to-day operations of East Coast.

    As such, Coleman was justified in relying upon his discussions with Jellison, in conjunction with tax returns and other documents which corroborated Jellison’s representations concerning lost profits relating to expansion of his business.

    Moreover, because Coleman’s report relies upon data from tax returns for years 2021 through 2023, which reveals not only sales revenue but also depreciation and amortization of equipment needed for the addition of new crews in 2022 and 2023, the data is relevant to the facts of the case.

    Here, the information provided by Joshua Jellison is corroborated by East Coast’s tax returns.

    Other documents Coleman relied upon include those reflecting the dramatic drop in Jellison’s credit score; 2022 Depreciation and Amortization Report; Automobile Schedule for East Coast Equipment; Refusal for Small Business Line of Credit from PNC Bank; Delinquent Tax Reminder from Westmoreland County Tax Claim Bureau; 2019-2023 Tax Returns of Partnership Income with supporting documentation; and other documents.

    Tax records include information relating to equipment costs when adding the second and third crews in 2022 and 2023. Coleman outlined the methodology he used based on information he received from Jellison and supported by this documentation. Thus, there is an adequate factual foundation for Coleman’s opinions.

    This factual foundation establishes a clear “fit” connecting Plaintiffs’ alleged damages with Coleman’s opinion. The cases relied upon by PHH simply do not carry the day.

    Held

    The Court denied PHH Mortgage Corp.’s motion in limine to exclude the testimony of expert witness Key Coleman.

    Key Takeaway

    In its discretion and considering all facts and circumstances, the Court found by preponderance of the evidence that Coleman’s report was supported by “good grounds,” and relevant such that it will assist the trier of fact. Coleman relied upon business tax returns, which were prepared by an outside accountant, and reviewed by the IRS. Coleman was able to corroborate Joshua Jellison’s representations from these documents. PHH, however, may conduct a thorough and vigorous cross examination of Coleman and Joshua Jellison at trial concerning future business plans and the market conditions supporting those plans.

    Case Details:

    Case Caption: Jellison V. PHH Mortgage Corporation
    Docket Number: 2:23cv739
    Court Name: United States District Court, Pennsylvania Western
    Order Date: January 20, 2026

  • Accounting Expert’s Testimony on Due Diligence Limited

    Accounting Expert’s Testimony on Due Diligence Limited

    Plaintiffs Sabby Volatility Warrant Master Fund Ltd. (“Sabby”), SZOP Multistrat LP (“SZOP”), Alto Opportunity Master Fund SPC Segregated Master Portfolio B (“Alto”), and Hudson Bay Master Fund Ltd. (“Hudson Bay”), purchasers of common stock of Quanergy Systems, Inc. (“Quanergy”) in a public offering that closed on November 2, 2022 (the “Offering”), brought suit against Defendants Kevin J. Kennedy, Patrick Archambault, Jim Disanto, Karen Francis, Tamer Hassanein, Lisa Kelley, Thomas M. Rohrs, and Tianyue Yu, all former officers and/or directors of Quanergy, for alleged violations Sections 11 and 15 of the Securities Act of 1933, for failing to take reasonable care that there were no material misrepresentations or omissions in the registration statement and prospectus for the Offering (the “Offering Documents”).

    Defendants argued that Plaintiff’s expert John Levy should be disqualified because his testimony meets none of the three requirements of Rule 702: Defendants suggested that Levy is not qualified to opine on the topics at issue; that Levy’s opinions are unreliable reflections of personal opinion; and that Levy impermissibly acts as a vehicle to deliver Plaintiffs’ preferred version of the facts and improperly assesses witness credibility, which makes his testimony unhelpful and therefore irrelevant to the factfinders.

    Accounting Expert Witness

    John F. Levy received a Bachelor of Science from the Wharton School of the University of Pennsylvania and a Master of Business Administration from St. Joseph’s University. Thereafter, he spent nearly five decades working in corporate governance, finance, public reporting, auditing, and accounting.

    Levy has been a Certified Public Accountant in Illinois since 1978 and has nearly ten years of accounting experience at several large accounting firms; has been the chief financial officer of four companies and the chief operating officer of one company; has served on the boards of directors of fifteen public companies; has served as chair of the audit committees for eight companies, which required him to write and review public filings; was involved in one public offering in his role as a company officer and another in his role as an outside director; and has taught corporate governance for state accounting societies and other organizations since 2005.

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

    Discussion by the Court

    Qualifications

    Defendants argued that Levy “lacked the necessary expertise to opine on disclosure obligations or the level of investigation required to satisfy the reasonable investigation defense.”

    That Levy has limited previous experience with public offerings generally or with disclosure issues such as those at issue in this case specifically is insufficient to justify declining to qualify him as an expert.

    The Court held that Levy’s education plus his decades of business experience qualify him to opine on the level of due diligence customarily performed in connection with public offerings.

    Reliability

    According to the Court, Defendants’ criticism that Levy failed adequately to describe his methodology was misplaced: Levy’s methodology was to apply his experience to the facts of the case.

    As required, Levy’s conclusions are testable under Daubert in the sense that they are “provable (or disprovable) by equivalent testimony by experienced participants in the industry.”

    Defendants’ assertion that Levy “could not articulate specific examples” of times he conducted due diligence did not require excluding his expert opinions as unreliable.

    Relevance and Helpfulness

    Defendants argued that Levy’s testimony is merely “a vehicle for factual narrative” and includes “improper credibility assessments.”

    To begin with, Defendants’ argument that Levy’s report is nothing more than a recitation of the facts of the case is not persuasive in light of the fact-intensive nature of any analysis of the adequacy of due diligence. However, Levy explained that customary due diligence requires officers and directors to ask certain questions of counsel, and he opined that Defendants should have asked whether “the risk of failing to meet the $15 Million [Capitalization] Requirement should be included in the Offering Documents.” Levy goes on to say that his review of the record reflects that Defendants failed to ask that question; he therefore concludes that Defendants performed less-than-customary diligence.

    A jury does not need expert testimony to understand whether Defendants, in fact, asked questions of counsel about whether to include certain risks. Levy may not testify that the record reflects a failure by Defendants to ask their outside advisors certain questions; he may testify using “hypotheticals based on assumptions about testimony in the record.”

    Defendants’ assertion that Levy makes “improper credibility assessments” has force as well. According to the Court, Defendants are correct that Levy went “at least one step” beyond “reviewing and considering” testimony.

    Held

    The Court granted in part and denied in part the Defendants’ motion to disqualify John Levy from providing opinions.

    Key Takeaway

    Lack of extensive practical experience directly on point does not necessarily preclude an expert from testifying and a formal education in a particular field is sufficient to qualify a witness as an expert.

    Case Details:

    Case Caption: Sabby Volatility Warrant Master Fund Ltd., Et Al V. Kennedy
    Docket Number: 1:23cv601
    Court Name: United States District Court, New York Southern
    Order Date: December 16, 2025
  • Accounting Expert was Allowed to Opine on the Fair Market Value

    Accounting Expert was Allowed to Opine on the Fair Market Value

    Upper Deck claimed that Pixels has marketed and sold wall décor featuring images that infringe upon Upper Deck’s trademarks and Michael Jordan’s name, image, likeness, and publicity rights. Basically, Upper Deck brought this action pursuant to an exclusive agreement with Jordan (the “Jordan Agreement”) for the use of his name, image, likeness, and other publicity rights. Upper Deck asserted that the agreement also gives Upper Deck the right to commence actions on behalf of Jordan for infringement of the rights assigned in the Jordan Agreement.

    Amongst other things, Upper Deck alleged violation and deprivation of the right of publicity, violations of the Lanham Act, registered trademark infringement, violation of California’s Unfair Competition Law, and California common law unfair competition. 

    Christian Tregillis was retained as a damages expert by Upper Deck to opine on the fair market value of Pixels’ alleged unauthorized use of Jordan’s rights. Pixels filed a motion to exclude Tregillis’ testimony, contending that his methodology is unreliable and based upon insufficient facts and data.

    Pixels also contended that the premium multiplier Tregillis uses in his fair market value calculation is unreliable and that Tregillis’s two “Evidence Indicates” opinions are irrelevant.

    Accounting Expert Witness

    Christian Dale Tregillis holds an M.B.A. in Finance and Accounting. He has more than thirty years of experience analyzing financial, accounting, economic, statistical, and market issues, primarily relating to disputes, valuations, and license agreements covering intellectual property rights.

    Tregillis has held leadership positions with many public accounting and licensing professional groups. He is also accredited in Business Valuation and certified in Financial Forensics, Public Accounting, and Licensing.

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

    Discussion by the Court

    A. Methodology

    Tregillis calculated the fair market value of Pixels’ use of Jordan’s rights by analyzing comparable licenses for rights similar to those used by Pixels as a starting point to construct a hypothetical license.

    Tregillis then adjusted the value of the benchmark comparable license to account for the other athletes included in the benchmark license, the length of time of Pixels’ use, and the fact that Pixels’ use of Jordan’s rights was not subject to any quality assurance or approval clauses. Pixels argued that the benchmark agreement chosen by Tregillis is insufficiently comparable and that Tregillis made improper assumptions to inflate the value of the benchmark license.

    1. Underlying Facts and Data

    Tregillis determined the Trends Agreement to be the most comparable to the facts at issue here and uses this agreement as the benchmark for his hypothetical license analysis. The Trends Agreement was a licensing agreement between Brevettar, described as “the exclusive licensing agent for Upper Deck,” and Trends International, LLC. The Trends Agreement granted Trends a license to manufacture, distribute, and sell collector’s edition posters and calendars featuring the name, image, likeness, signature, and statistical data of Michael Jordan, Wayne Gretzky, and Tiger Woods. A later amendment to the Trends Agreement also allowed Trends to sell canvas wall décor.

    Pixels argued that the Trends Agreement is an improper comparable because Upper Deck was not a party to it, Upper Deck did not receive royalty payments from the agreement, and the Trends Agreement was not effective until two and a half years after Pixels alleged unauthorized sales began.

    Here, the Trends Agreement concerned the same rights at issue in this case, Jordan’s name, image, likeness, and publicity rights. Further, the Trends Agreement covered the same types of products as those at issue here—posters, calendars, and wall décor. The Trends Agreement also covered products similarly priced to those sold by Pixels. Consequently, the Court found the Trends Agreement sufficiently comparable to serve as a reliable basis for the hypothetical license analysis Tregillis conducts.

    2. The Premium Multiplier

    After identifying the Trends Agreement as the best benchmark for his hypothetical license analysis, Tregillis used a premium multiplier to adjust for the fact that Pixels’ use of Jordan’s rights was not authorized and not subject to the quality assurance and approval clauses typically included in Jordan’s licensing agreements.

    Tregillis calculated this multiplier by comparing two similar situations where Jordan’s rights were used, one of which was authorized (the “Hanes Transaction”) and one of which was unauthorized (the “Panini Settlement”). ) Tregillis compared the values of those transactions to calculate the percentage premium for unauthorized uses of Jordan’s rights.

    Pixels argued that the application of this premium multiplier is unreliable and that the Hanes Transaction and Panini Settlement are not reliably comparable to the conduct at issue here.

    Tregillis demonstrated the necessity of this premium adjustment by discussing Jordan’s carefully tailored brand and restrictive approach to licensing agreements.

    Then, Tregillis conducted a comparative analysis using otherwise analogous transactions to calculate the value of unauthorized uses of Jordan’s rights. This analysis is grounded in evidence, and Tregillis’s application of his analysis logically follows. Therefore, the premium multiplier calculation and its application to the hypothetical license are sufficiently reliable to present to a jury. 

    Tregillis spent paragraphs of his report, supported by citations to the record, discussing the Hanes Transaction and Panini Settlement as well as how he used them in his analysis.

    Tregillis did not use the Hanes Transaction and Panini Settlement as comparable to this case for the purpose of hypothetical license analysis; rather, he uses them in a comparative analysis to determine the value of Jordan’s rights when their use is not subject to any quality assurance or approval clauses.

    B. The “Evidence Indicates” Opinions

    Tregillis offered two “Evidence Indicates” opinions. First, “Evidence indicates that, as Upper Deck values its relationship with Jordan, one of the world’s most iconic athletes and personalities, Upper Deck protects both its rights and Jordan’s rights, while also ensuring it only produces and/or approves high-quality products that feature appropriate and value-enhancing uses of Jordan’s rights of publicity and trademarks.” And second, “Evidence indicates that the use made by Pixels is unauthorized and would not have been authorized by Jordan and/or Upper Deck.” Pixels argued that these opinions are irrelevant and should be excluded.

    The Court found that the two “Evidence Indicates” opinions will aid the jury in understanding Tregillis’ hypothetical license analysis. The “Evidence Indicates” opinions shed light on the fair market value of Jordan’s rights as Pixels used them and demonstrate the necessity of the premium multiplier. More specifically, the opinions will help the jury to understand how Upper Deck and Jordan value Jordan’s rights and typically license them.

    Pixels argued that the second “Evidence Indicates” opinion “is a naked attempt to elevate Upper Deck’s allegations of unauthorized use by Pixels into a liability opinion against Pixels.”

    The Court agreed that Tregillis’ second “Evidence Indicates” opinion goes to brand standards and addresses how the fair market value of Jordan’s rights is impacted when subject to quality assurance and approval clauses.

    However, grounding the second “Evidence Indicates” opinion in language about “authorization” toes the line of embodying a legal conclusion. Accordingly, while the Court found that Tregillis is not offering a legal conclusion, his testimony at trial should make clear that Tregillis is merely assuming Pixels’ liability for the purposes of his analysis and is offering opinions about authorization solely to support his damages analysis, not to offer a legal conclusion. 

      Held

      The Court denied Defendant Pixels.com’s motion to exclude the testimony of Plaintiff The Upper Deck Company’s expert witness, Christian Tregillis.

      Key Takeaway:

      Any lingering doubts as to the negative impact of Tregillis’s testimony can be managed by instructing the jury to follow only the judge’s instructions as to what the law is and to disregard any testimony that is inconsistent with those instructions.

      Case Details:

      Case Caption: The Upper Deck Company V. Pixels.Com, LLC
      Docket Number: 3:24cv923
      Court Name: United States District Court, California Southern
      Order Date: December 09, 2025
    1. Accounting Expert’s Financial Testimony on Mitigation Admitted

      Accounting Expert’s Financial Testimony on Mitigation Admitted

      Plaintiffs sought to develop affordable housing in Brevard County. The Venue at Heritage Oaks Partners, Ltd. was the contract purchaser of the property. They, along with Atlantic Housing Partners L.L.L.P., intended to develop as “The Venue at Heritage Oaks,” a development comprised of multi-family dwelling units.

      Canton Construction, LLC was to construct the development, and once completed, Concord Management, Ltd. was to manage it. The project did not come to fruition, however, because in December 2023, Defendant’s board of commissioners rejected Plaintiffs’ bond financing application. 

      Plaintiffs brought this action against Defendant for damages under the Fair Housing Act and the Florida Fair Housing Act, alleging that Defendant’s rejection discriminated against racial minorities.

      Defendant affirmatively alleged that Plaintiffs must mitigate their damages and have failed to do so,” and as such, argues that “Plaintiffs’ claims should either be barred, or in the alternative, comparatively reduced in accordance with Plaintiffs’ failure to mitigate damages.

      Defendant retained Patrick Kelleher as an expert to demonstrate that “Plaintiffs’ damages model does not consider mitigation and that reasonable possibilities likely existed with respect to mitigation.”

      Plaintiffs filed a motion to exclude Kelleher’s opinions pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

      Accounting Expert Witness

      Patrick F. Kelleher is a Certified Public Accountant (CPA) and Certified in Financial Forensics (CFF) with both a Bachelor of Science in accounting and a Master of Business Administration focused on finance, and he has more than twenty years of experience in forensic and investigative accounting. Kelleher submitted a twenty-page report that stated his opinions, included the documents he considered, and explained the analysis he performed, among other things.

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

      Discussion by the Court

      Kelleher opined that “Plaintiffs have not demonstrated any economic damages with reasonable certainty, but rather have provided a model that does not reflect the timing and accuracy of the cash flows associated with the housing] project.” Kelleher also identified alleged errors and deficiencies with Plaintiffs’ model and with testimony from two of Plaintiffs’ witnesses. With respect to his methodology, Kelleher reviewed Plaintiffs’ documents and used them to render accounting and financial testimony related to mitigation. In doing so, he used calculations and analysis in accordance with the American Institute of Certified Public Accountants (AICPA) Statement on Standards for Forensic Services. He also used AICPA prescribed methods for calculating damages.

      Analysis

      Plaintiffs stated, without citations to the record or supporting caselaw, that Kelleher’s opinion was unreliable as it was not based in accounting—Kelleher’s area of expertise—but is based on a qualitative analysis. Plaintiffs also asserted that Kelleher’s opinion cannot be tested and did not use a generally accepted methodology. However, Kelleher noted that he performed his analysis in accordance with AICPA standards and followed AICPA prescribed methods for calculating damages. Courts have consistently found that such methodologies are generally accepted and thus reliable.

      Plaintiffs further challenged Kelleher’s opinions as unhelpful because they are “not beyond the understanding of the average lay person.” Plaintiffs also contended that Kelleher’s opinions offered just what Defendant’s attorney could argue in closing arguments. However, Kelleher’s testimony can assist the jury with financial and accounting principles.

      Even if Kelleher’s opinion “boils down to at its essence,” something a layperson may understand, the purpose of an expert is to help simplify complex concepts, boiling them down—as Plaintiffs point out—so that laypersons can comprehend them. 

      Although Kelleher’s conclusions may be simple, the mathematical calculations leading to such conclusions are beyond the understanding of the average layperson, so his opinions would help the jury.

      Kelleher can explain field-specific information that the average layperson does not know, including, but not limited to, the capital forces specific to Plaintiffs’ business model, the ownership structure of the entities at issue, and how these topics affect the ability to redeploy capital.

       Given the “liberal standard for relevance to whether expert testimony will aid the jury in resolving the facts,” the Court declined to exclude Kelleher’s testimony under Daubert. 

      Held

      The Court denied the Plaintiffs’ motion to exclude the opinions offered by Patrick Kelleher.

      Key Takeaway:

      If Plaintiffs wish to undermine Kelleher’s opinions, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”

      Case Details:

      Case Caption: Atlantic Housing Partners L.L.L.P. Et Al V. Brevard County
      Docket Number: 6:23cv2473
      Court Name: United States District Court, Florida Middle
      Order Date: November 07, 2025
    2. Insurance Expert’s Testimony on Overhead and Profit Calculations Admitted

      Insurance Expert’s Testimony on Overhead and Profit Calculations Admitted

      Plaintiff Nirangtar LLC (d/b/a Red Roof Inn Cave City) (“Red Roof”) alleged that a storm caused damage to its property. At the time of the loss, Red Roof had an insurance policy with Defendant Navigators Specialty Insurance Company (“Navigators”). Because Navigators has not paid Red Roof for its claimed losses, Red Roof filed suit in Barren Circuit Court (Kentucky), which Navigators removed to Federal Court.

      Red Roof has recently disclosed expert witnesses, including Deanna Ramsey (“Ramsey”) and Dennis James Kurttila (“Kurttila”). Ramsey, a certified public accountant, was disclosed to express opinions regarding Red Roof’s lost revenue; Navigators contended that Red Roof provided her with the necessary information, then she “simply multiplied (the number of rooms) times (the number of nights they were allegedly unavailable) times (the average rental rate).” Kurttila, a public insurance adjuster, was offered to provide his cost estimate for Red Roof’s repairs and losses resulting from the storm.

      Navigators filed motions to exclude the testimony of these two experts.

      Insurance Expert Witness

      Dennis James Kurttila has been in the construction and general contracting business since 1996. He has gained substantial work experience since 2007 in the claims industry and submitting/ parent damage claims. He is licensed as a Public Insurance Adjuster in the following states: Kentucky, Tennessee, Indiana and Mississippi.

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

      Accounting Expert Witness

      Deanna Ramsey, CPA, is a certified public accountant. She has a master’s in accounting. She has prepared individual and business tax returns involving several issues related to trusts, estates, adoptions, independent contractors, education trusts, farming (business and sale), and other variations of business issues.

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

      Discussion by the Court

      Red Roof did not object to the exclusion of Ramsey’s testimony. Certainly, a jury would be capable of performing simple multiplication without the aid of an expert, so that motion was granted. Red Roof did, however, contest the exclusion of Kurttila’s testimony. Navigators argued that Kurttila’s testimony should be excluded because it is unreliable and unhelpful, but did not question Kurttila’s qualifications.

      A. Reliability

      Navigators argued that Kurttila’s proffered testimony is unreliable. Navigators asserted that Kurttila is biased and contested the reliability of his methods and the factual basis of Kurttila’s report.

      1. Bias

      It is not uncommon for employees of parties—and sometimes the parties themselves—to testify as experts. Thus, though Kurttila may have just “switched hats” from public adjuster to expert witness, that is not sufficient reason to exclude his testimony.

      2. Methods

      a. Overhead and Profit

      Navigators asserted that Kurttila’s testimony relating to his overhead and profit (“O&P”) calculations was unreliable because Kurttila did not know whether Red Roof had retained a contractor nor whether Red Roof could be paid for O&P under Kentucky law. He did testify that, in his opinion, Red Roof should be paid for O&P, that this is standard practice in the insurance business, that this is the case in Tennessee, and two Kentucky hotels damaged in the same storm received settlements that included O&P. Thus, Kurttila had a reasonable basis in his knowledge and experience to include O&P in his estimate.

      b. Professional Standards

      Navigators noted that Kurttila was unable to articulate the professional standards he used in preparing the estimate.

      Red Roof did not contradict this assertion. Though unable to name any specific professional standards, Kurttila testified that he used his “years of contracting and public accounting and working with Xactimate” to come to his conclusions.

      Courts have held that Xactimate, a program used by insurance companies and public adjusters to develop estimates, is a reliable method for creating estimates.

      However, Kurttila’s inability to name any “professional standards” used does not make his estimate unreliable per se—Red Roof has demonstrated that Kurttila’s estimate has a basis in his knowledge of and experience with these sorts of estimates.

      c. Date

      Navigators highlighted the fact that Kurttila did not know why he used the month reflected in the estimate.

      The Court was convinced that Kurttila’s use of November of 2023 in his estimate did not make his testimony so unreliable that it should be excluded.

      November 2023 is after the storm loss occurred, and, on a practical note, the use of November 2023 rather than October 2024 is likely favorable for Navigators, as Kurttila believes prices would have only increased, resulting in a higher estimate.

      3. Factual Basis

      Navigators argued that Kurttila’s testimony should be excluded because he relied on questionable facts and figures provided by Red Roof. In many cases, Kurttila did not know how Red Roof acquired or calculated that underlying data. Additionally, Navigators avers that the claimed damages exceed the scope of Red Roof’s causation expert’s testimony.

      However, Kurttila has remedied some of the inaccuracies. Even where Kurtilla’s estimate may be inaccurate, however, it was based on information supplied to him by Red Roof or from his own observation. Kurttila may rely on Red Roof’s data in his estimate without independently verifying it, under the assumption that it was caused by the storm. Navigators may challenge that data and any assumptions at trial; any weakness in the factual support for Kurttila’s estimate goes to weight, not admissibility.

      B. Helpfulness

      Navigators argued that Kurttila only performed multiplication and addition to construct his estimate. However, Kurtilla did more than just “basic math.” He generated estimates for several line items using Xactimate, relying on his own professional experience and, in one case, own measurements.

      Held

      The Court granted the Navigators’ motion to exclude the testimony of Deanna Ramsey but denied the Navigators’ motion to exclude the testimony of Dennis Kurttila.

      Key Takeaway:

      Some courts have held that, because jurors can perform basic math, expert testimony that can be reduced to a simple calculation violates the principle that an expert’s testimony must involve “specialized knowledge” that “will help the trier of fact to understand the evidence or to determine a fact in issue” and is therefore inadmissible. However, courts “have also treated public claims adjusters and their use of Xactimate as within the realm of expert testimony.” Thus, Kurtilla’s preferred testimony will not be excluded on the basis that it is unhelpful.

      Case Details:

      Case Caption: Nirangtar LLC V. Navigators Specialty Insurance Company
      Docket Number: 1:23cv184
      Court Name: United States District Court, Kentucky Western
      Order Date: November 10, 2025
    3. Economics Expert’s Opinion on Copyright Damages Excluded

      Economics Expert’s Opinion on Copyright Damages Excluded

      Plaintiff The Upper Deck Company (“Upper Deck”) sued its former contractor, Ryan Miller (“Miller”), and its competitor, Ravensburger North America Inc. (“Ravensburger”), for claims arising from the alleged copying of Upper Deck’s new trading card game (“TCG”), Rush of Ikorr.

      Miller filed motions to exclude Plaintiff’s expert witnesses Dr. Roberto J. Cavazos and Dr. Ian Bogost while Plaintiff filed a motion to exclude Miller’s expert witness James E. Pampinella.

      Gaming Expert Witness

      Dr. Ian Bogost serves as a professor of Film and Media Studies as well as Computer Science and Engineering at Washington University in St. Louis and enjoys international recognition “as a key figure in game design and game studies.”

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

      Economics Expert Witness 

      Dr. Roberto J. Cavazos is an economics professor with thirty years of experience. He has worked in a number of areas including lost earnings, business damages, labor management relations for global
      multinationals.

      Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Roberto Cavazos’s expert testimony. 

      Accounting Expert Witness

      James E. Pampinella CPA, CFF, CLP has been providing consultation services in the area of complex commercial litigation and valuation services for over 30 years, specializing in intellectual property strategic consulting and disputes, including matters involving copyrighted works.

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

      Discussion by the Court

      Miller’s Motion to Exclude Plaintiff’s Expert  Bogost

      Bogost is qualified to testify about TCGs

      Miller sought to exclude Bogost’s testimony, arguing that he is not qualified to opine on TCGs, that his methods are unreliable, and that he offered improper legal opinions.

      The Court noted that Bogost’s CV has a marked video game slant. However, his CV also contains several indications of general game expertise: throughout his career, Bogost has written several publications on games and game theory generally, taught multiple university courses on game design, and presented at several conferences on games.

      Given Bogost’s ample experience in the field of games, game design, and game review—and because his opinions are based on specialized knowledge other than science—the Court found that Bogost met the minimum bar set by Rule 702 to qualify as an expert on TCGs.

      Bogost’s methodology is sufficiently reliable to offer expert opinions about the two TCGs

      Miller also challenged the reliability of Bogost’s methodology. Bogost first obtained two sets of Lorcana starter decks, which included “ready to play” decks, a booster pack of cards, a tabletop play mat, printed rules, and “a set of cardboard chits.” Bogost next considered what version of Rush of Ikorr to use in his analysis. After reviewing case materials, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design. 

      Miller took issue with how Bogost played Version 2.6 because he did not use overlays, and did not play in team mode. But as Upper Deck pointed out, Bogost could not recall whether he used the overlays and Rush of Ikorr can be played as a single-player or team-based game.

      Bogost initially made determinations as to which versions of the games to obtain based on the particular facts in the record, then proceeded to play the games, and draw conclusions based on his knowledge of game mechanics.

      Miller also moved to exclude Section E of Bogost’s report. In Section E, Bogost first explained that “rough-looking” materials, such as Version 2.6, still represent a substantially complete work product in the game design process. While the completeness of Version 2.6 was relevant to the copyright claim, the state of that work product when Miller left Upper Deck and whether it was sufficiently complete or valuable may also be relevant to Plaintiff’s contract claim.

      Accordingly, the Court denied Miller’s motion to exclude Bogost.

      B. Defendant’s Motion to Exclude Upper Deck’s Copyright Damages Expert Dr. Roberto Cavazos

      In this case, Cavazos provided his opinion on copyright damages, estimating economic harm by analyzing the “market value” of rights allegedly taken, and by calculating Defendant Ravensburger’s profits allegedly derived from infringement of Upper Deck’s TCG.

      Cavazos testified that his methods arise under copyright law, and were based upon his understanding from counsel of the applicable measure of copyright damages.

      Cavazos does not attempt to quantify any alleged breach of contract by Miller, nor assign value to Miller’s work on Version 2.6 in the context of the profits from the Lorcana game, nor does it seem he would be qualified to do so. Rather, the royalty rate that Cavazos calculated considered only Ravensburger’s total global revenues and profits from sales of Lorcana, and did not attempt to apportion any value to Miller’s alleged disclosures of confidential information.

      Cavazos admitted that he was not an expert in game design, did not identify the intellectual property at issue, and did not provide a basis for his one-third opinion, beyond that it “stands to reason” that some people would buy the game because of the underlying game design, not just because of the use of Disney IP. 

      The Court held that Cavazos’s opinions are no longer relevant to the issues in this case, and to the extent that they could be, he is not qualified to provide them. 

      C. Plaintiff’s Motion to Exclude Defense Damages Expert James Pampinella 

      With regard to Upper Deck’s general objection to Pampinella’s use of the costs approach, Upper Deck acknowledged that the method is one of three that is accepted by economic literature. Thus, Upper Deck’s objection to Pampinella’s decision to rely solely upon the costs approach concerned the weight rather than admissibility.

      Upper Deck also took issue with Pampinella’s results under the costs approach, arguing that “it is illogical and unreliable for Pampinella to assert that there are no actual damages.” While Pampinella found no actual damages as to the alleged conduct of Ravensburger and Miller, he also concluded that Upper Deck could have suffered economic damages of up to $39,000—the amount paid to Miller under his contracts with Upper Deck.

      The Court is also unpersuaded that Pampinella’s lack of expertise in the gaming industry damages renders his opinion inadmissible for the same reason it found Bogost’s lack of specialized TCGs experience not to be dispositive. 

      Held

      • The Court denied Miller’s motion to exclude Dr. Ian Bogost’s testimony.
      • The Court denied Upper Deck’s motion to exclude James E. Pampinella’s testimony.
      • The Court granted Miller’s motion to exclude Dr. Roberto Cavazos’ testimony.

      Key Takeaway:

      It is true that the Daubert standard can be more difficult to apply where “expert testimony is ‘experience-based’ rather than ‘science-based.’ But here, Bogost obtained the materials Miller submitted to Upper Deck prior to his departure (“Version 2.6”), then played both games. After playing the games, Bogost made observations about each game, and formed opinions as to particular “bundles of expression” drawing on his experience in game design.

      Case Details:

      Case Caption: The Upper Deck Company V. Miller Et Al
      Docket Number: 2:23cv1936
      Court Name: United States District Court, Washington Western
      Order Date: October 20, 2025

    4. Accounting Expert’s Opinions on the Potential Damages Admitted

      Accounting Expert’s Opinions on the Potential Damages Admitted

      Go Global Retail sued Defendants Dream On Me Industries and Dream On Me, Inc. (collectively DOM) for misappropriation of trade secrets, breach of contract, and unjust enrichment.

      Go Global is a “private equity and brand investment firm” that often buys up “distressed retail assets.” It uses its in-house research and industry know-how to try to spot profitable opportunities. When it learned that Bed Bath & Beyond planned to auction off assets of its subsidiary, buybuy BABY (BBBY), Go Global started to structure a bid.

      During that process, Go Global—together with DOM and at least thirty potential investors—were granted access to a data room that contained hundreds of documents with BBBY’s financial information, so that they could conduct due diligence. 

      Using that data, Go Global developed three alleged trade secrets: its Financial Model, its Bidding Strategy, and its Technology Plan. 

      But the alleged trade secrets alone weren’t enough to win a bid: Go Global needed financing. It eventually turned to DOM. After the parties talked about bidding on BBBY’s assets jointly, Go Global sent DOM a nondisclosure agreement (NDA), and DOM’s Chief Marketing Officer, Avish Dahiya, signed it.

      Like Go Global, DOM already had access to BBBY’s historical financial data. But it didn’t have access to Go Global’s Financial Model. So after DOM signed the NDA, it downloaded the contents of Go Global’s data room, which included the Financial Model.

      DOM filed a motion to exclude the opinions of Go Global’s expert Alan Schachter.

      Accounting Expert Witness

      Alan A. Schachter, CPA, ABV, CFF, CVA, CFE has been a senior executive and partner in various consulting and accounting firms for 40 years. His experience includes assisting government agencies, private companies and their counsel with complex valuation, economic damages, and compliance issues. During his professional career, he has been very active in several types of matters that relate to intellectual property, healthcare, financial services, franchising, white-collar criminal defense, personal injury, matrimonial, wrongful termination, partnership disputes, and other civil & criminal matters.

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

      Discussion by the Court

      DOM asserted that because Schachter’s damages model relied on terms of a planned joint bid that are “entirely speculative,” it flunked the Daubert test. 

      But the factual basis is the NDA itself: If DOM had complied with the Non-Circumvention Obligation, then DOM would have had to bid for BBBY with Go Global. Given that DOM won the bid on its own, it isn’t “entirely speculative” that Go Global would have won a bid as DOM’s partner. And any argument that DOM would have chosen not to bid at all rather than bid with Go Global is foreclosed by DOM’s admission that it was “always going to submit a bid for the [BBBY] assets, with or without Go Global.” 

      Next, DOM challenged Go Global’s lost profits theory on the grounds that Schachter’s calculation “ignores the actual financial performance of BBBY since it was acquired by DOM which shows net losses of approximately $17.4 million.” 

      But to the extent DOM argues that Schachter relies on “unrealistic assurances provided by Go Global” in preparing his model, that boils down to whether Go Global is correct that it would have turned BBBY profitable had it bought the company with DOM—a question that is firmly within the province of the jury.

      The Court permitted Schachter to testify at trial about the opinions in his report.

      Held

      The Court denied DOM’s motion to exclude the testimony of Go Global’s damages expert, Alan Schachter.

      Key Takeaway:

      Alan Schachter calculated damages in the form of actual losses, unjust enrichment, and reasonable royalty for the Damages Period. Schachter’s testimony was grounded on sufficient facts and data in accordance with the Daubert standard.

      Case Details:

      Case Caption: Go Global Retail, LLC V. Dream On Me, Inc.
      Docket Number: 1:23cv7987
      Court Name: United States District Court, New York Southern
      Order Date: September 26, 2025
    5. Food Science Expert’s Testimony on the Condition of Berries Excluded

      Food Science Expert’s Testimony on the Condition of Berries Excluded

      This case involves a breach of contract claim and a negligence claim regarding Stahlbush’s sale of black raspberries to Bama. Bama principally manufactures food products for the quick service restaurant industry. The dispute was over whether Stahlbush berries used by Bama in pies it produced were contaminated with stones. 

      Plaintiff filed a motion in limine to exclude certain opinions of Defendant’s experts, Dr. Siobhan Reilly and Mr. Gregory Gadawski. 

      Siobhan Reilly tested 10 boxes of berries and 61 boxes of fruit pies “to determine the presence of foreign materials in the product.” Defendant sought to introduce the results of Reilly’s testing. Plaintiff argued that Reilly’s opinions should be excluded because the product that she tested was not randomly sampled or a scientifically representative sample of the products at issue. Defendant argued, in rebuttal, that Reilly did not conclude that no rocks could have been present in Bama’s pies; instead, Reilly would testify that “some of the supposedly contaminated pies may have contained, not rocks, but organic matter common to blackberries.”

      Plaintiff also argued that there is “no credible evidence” that it should have ceased producing pies on March 6, 2017 and accordingly, any opinion of Gadawski calculating Plaintiff’s damages based upon the assumption that it should have ceased production on that date is purely speculative and not based in evidence. Defendant argued that Gadawski’s opinions, even if hypothetical, are grounded in the facts and issues in this case and entirely permissible. 

      Food Science Expert Witness

      Dr. Siobhan Reilly has over 25 years of experience in industrial food safety, food microbiology, and probiotic research. Reilly earned her Ph.D. in Food Science and Microbiology from Oklahoma State University. She is a member of the International Association of Food Protection, the Institute of Food Technologists, and the Pet Food Institute.

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

      Accounting Expert Witness

      Gregory A. Gadawski, CPA/ABV, CVA, CFE, CIRA is a member of the Oregon Society of Certified Public Accountants (OSCPA), the American Institute of Certified Public Accountants (AICPA), the National Association of Certified Valuation Analysts (NACVA), the Association of Certified Fraud Examiners (ACFE), and the Association of Insolvency and Restructuring Advisors (AIRA). He has served as an expert witness/consultant in a variety of complex litigation matters including breach of contract, business valuation, fraud, alter ego, lost profits, marital dissolution, personal injury, wrongful death, intellectual property infringement, fraudulent conveyance, solvency, and others.

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

      Discussion by the Court

      Reilly will not be permitted to testify regarding the condition of any berries or pies that she did not personally test

      The Court was not persuaded by Defendant’s arguments that Reilly’s testing need not be of a random, representative sample. In addition, it was unclear to the Court whether Defendant’s reference to “supposedly contaminated pies” referred to the pies that Reilly tested or to the pies that caused Bama to cease production and file suit. Consequently, if Reilly sought only to testify as to the condition of the berries and pies tested (and which are not the subject of the suit), then it would seem her testimony is of limited relevance.

      Furthermore, Defendant failed to demonstrate that Reilly tested a random, representative sample of product. From Reilly’s deposition testimony, it did not appear that any kind of methodology was employed to obtain a random, representative sample.

      Specifically, Reilly testified that there were “hundreds, for sure, maybe even thousands” of boxes of berries in cold storage. Yet, without any apparent selection criteria, she took only 10 boxes of berries for testing. It was further established that the 10 boxes of berries were all drawn from two of eight lots of berries, and there was confusion on Dr. Reilly’s part regarding the significance of the lot numbers. Although she testified that her selection was “random” in that there was “no design to how the population was presented,” she also admitted there was “no opportunity to position the population and randomize it so that I could strategically pull a random sample.”

      Ultimately, Reilly’s testimony and report, and the fact that only berries from two of eight lots were examined, led the Court to believe that no efforts at all were made to obtain a random, representative sample and that, instead, the product was taken in a haphazard manner.

      Gadawski’s proposed testimony is admissible

      Plaintiff argues that Gadawski’s testimony is hypothetical and not based in fact.

      Firstly, there is nothing improper about an expert presenting opinions or testimony based upon hypotheticals, and Plaintiff has cited no authority to the Court suggesting otherwise. Plaintiff’s objection that there is no factual basis for the challenged opinion is similarly unavailing — the factual basis appears to be that this is when Plaintiff first learned that there may have been an issue with the shipment of berries. Whether a jury will credit this testimony or draw the conclusions advocated by Defendant is up to the jury, not the Court.

      Held

      The Court partly granted and partly denied the Plaintiff’s motion in limine to exclude portions of the expert reports of Siobhan Reilly and Gregory A. Gadawski.

      Key Takeaway:

      Though Reilly stated that it was not possible to “position the population and randomize it” so that she could pull a random sample, neither she nor Defendant explains why this is so. Defendant failed to demonstrate that Reilly tested a sufficiently random, representative sample and, accordingly, she will be precluded from offering any opinion as to any product that she did not personally test.

      Case Details:

      Case Caption: Bama Companies, Inc., The V. Stahlbush Island Farms, Inc.
      Docket Number: 4:18cv45
      Court Name: United States District Court, Oklahoma Northern
      Order Date: September 29, 2025