Expert Witness Profiler

Category: Economics Expert Witness

  • Economics Expert Was Not Allowed to Opine on Technical Difficulties

    Economics Expert Was Not Allowed to Opine on Technical Difficulties

    This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.

    Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.

    Plaintiffs filed a motion to exclude Defendants’ expert, Lorin Hitt, because (a) his opinions do not rebut the opinions offered by Plaintiffs’ experts and are untimely, (b) they are not supported by relevant experience, knowledge, or expertise, and (c) they are unreliable.

    Economics Expert Witness

    Lorin Moultrie Hitt has decades of experience teaching and researching “the economics of consumer behavior, firm organization, and market structure, with particular emphasis on the role of information on pricing, performance, and competition.” He received his Bachelor and Master of Science degrees in electrical engineering from Brown University in 1988 and 1989, respectively, with a Ph.D. in management from MIT in 1996 that focused on economics and statistics.

    Hitt has written on the pricing and management of information products/services, the influence of information on consumer behavior in the online retail sphere, and how privacy concerns influence consumer choices. He has also been involved in consumer class actions, using various modeling techniques to measure economic injury, particularly in class actions involving data security incidents and the misuse of personal information.

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

    Discussion by the Court

    A. Knowledge and Expertise

    1. Legal Conclusions

    Plaintiffs argued that Hitt is not qualified to opine on what the law requires to state an invasion of privacy or intrusion upon seclusion claim.

    Hitt is an economist with experience and expertise in the impacts of information and privacy concerns on consumer behavior. He also has experience modeling and measuring damages in consumer class actions. While causation/reliance may be presumed for purposes of a CPA claim where the act or conduct at issue is an omission, the presumption is rebuttable and it may not apply to all of the causes of action asserted by Plaintiffs in this case. Hitt’s opinion that causation and/or damages cannot be accurately determined in this case without considering individualized factors is within his area of expertise and is a legitimate avenue through which to critique Plaintiffs’ damages theory.

    2. Hardware and Computer Processing Opinions

    Hitt offered opinions regarding the technical difficulties Amazon would face in trying to reduce the number of false wakes and the hidden costs of preventing Amazon from relying on and utilizing the voice recordings of Alexa users.

    Hitt studies “markets generally and markets for personal information specifically.” While his expertise and knowledge arguably form a basis for modeling the market for voice recordings (including demand, pricing, and the impact of the seller’s privacy concerns), they are inadequate to support opinions regarding hardware requirements and software limitations or trade-offs. Nor did his regurgitation of “academic literature” serve any purpose or form the basis of any opinion that is within his knowledge and expertise.

    3. Markets and Valuation

    Plaintiffs argued that Hitt lacked the necessary qualifications to opine regarding the market for voice recordings and that his degrees in economics have no bearing on this case. The Court found these arguments unpersuasive given his experience, expertise, and curriculum vitae.

    B. Reliability and Relevance

    1. Use of a Research Team

    Plaintiffs objected to Hitt’s use of a research team from Cornerstone Research to assist in the collection and analysis of documents. An expert’s use of support staff, be they Ph.D. students, employees, or a third-party, in the preparation of a report is neither unusual nor prohibited. Plaintiffs argued, however, that Hitt had nothing to do with the selection or review of the documents on which his report relies and that his proffered opinions are therefore unsupported by any facts or evidence. This argument ignored significant portions of Hitt’s deposition testimony and misquotes others. The actual testimony showed that, after consultations with counsel and Cornerstone Research, Hitt outlined an initial report, identified relevant documents, and indicated areas where additional support and analysis were needed.

    While Cornerstone Research was free to obtain other documents to support the requested analyses, the report was prepared under Hitt’s direction, using an iterative process, and he reviewed any documents on which the report relies. As a result, the Court overruled the Plaintiffs’ objection.

    2. Failure to Conduct Independent Research or Identify Supporting Evidence

    Plaintiffs argued that Hitt’s opinions regarding consumers’ privacy preferences should be excluded because (a) he failed to conduct his own research and (b) the sources on which he relied are irrelevant or contradict his conclusions. Hitt opined that “consumers (in aggregate) do not appear to materially change their behavior when information about Amazon’s retention and use of Alexa Recordings became more available.”

    While Hitt’s conclusions regarding consumer preferences are not unassailable, shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.

    3. Analytical Gaps and Internal Inconsistencies

    Plaintiffs argued that Hitt’s opinions regarding consumer privacy preferences are inadmissible because the studies he relied upon relate to other forms of personal information disclosed in other contexts. Those studies are used to support the proposition that there is a “privacy paradox” between what individuals say they intend to or are willing to disclose and their actual behavior. Plaintiffs did not explain why the cited studies are insufficient for that purpose.

    Hitt’s opinions regarding consumer privacy preferences are partly based on his analysis of media coverage between 2014 and 2024 regarding how Alexa works and whether there was a change in the number of users or purchases during periods of intensive coverage.

    Plaintiffs pointed out the superficiality of this analysis: Hitt searched “major” news and business publications on “Factiva” for articles that mention “Alexa” and/or “Echo” in conjunction with a wide range of marginally relevant “keywords.” He then reviewed the headlines of the 4,995 hits and excluded articles that seemed to be unrelated to false wakes or Amazon’s retention/use of voice recordings. Once periods of heightened media coverage were identified, Hitt (or his team) attempted to identify what precipitated the coverage and included an example quotation in the chart at Figure 2 of his report. As long as Hitt refrained from suggesting that all of the practices and conduct about which plaintiffs complain were disclosed in the articles represented in Figure 2, Plaintiffs’ other criticisms of his analysis go to the weight of the testimony rather than its admissibility.

    Held

    The Court granted in part and denied in part Plaintiffs’ motion to exclude the testimony of Defendant’s expert, Lorin Hitt.

    Key Takeaway:

    Ultimately, the test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology. The Court is a gatekeeper, not a fact finder. Accordingly, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.

    Please refer to the blog previously published about this case:

    Computer Science Expert’s Testimony on the Value of Data Admitted

    Privacy Expert’s Testimony on Alexa Users Limited

    Marketing Expert Not Allowed to Opine on Consumer Reaction

    Case Details:

    Case Caption: Garner V. Amazon.Com, Inc.
    Docket Number: 2:21cv750
    Court Name: United States District Court, Washington Western
    Order Date: March 30, 2026
  • Economics Expert Allowed to Opine on Lost Fringe Benefits

    Economics Expert Allowed to Opine on Lost Fringe Benefits

    Plaintiff, Mark McCown, a locomotive engineer, fell on his buttocks and immediately experienced pain upon his fall and developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Defendant pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury were due, at least in part, to Defendant’s negligence. While the parties did not dispute that a causal relationship existed between the Plaintiff’s fall and his CRPS diagnosis, they did dispute whether any negligent act or omission by Defendant contributed to Plaintiff’s fall.

    Plaintiff sought compensatory damages for his injuries and retained Dr. Robert McLeod to calculate his past and future economic losses. McLeod prepared two reports: a Personal Injury Economic Damages Report (“Personal Injury Report”) and a Life Care Plan Economic Report (“Life Care Report”).

    McLeod also prepared supplements that assumed Defendant was totally disabled and would have no future income as well as assumed Defendant is only partially disabled and will be able to engage in part-time work in the future.

    Defendant did not argue that McLeod is unqualified, nor did they contest the relevancy of his testimony. However, Defendant did assert that McLeod’s testimony should be excluded in its entirety as unreliable.

    Economics Expert Witness

    Robert Wesley McLeod has been a financial economics consultant for over 40 years. He earned his doctorate degree in finance and economics from the University of Texas in 1977.

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

    Discussion by the Court

    a. Personal Injury Economic Damages Report

    In attacking McLeod’s Personal Injury Report, Defendant first argued that the methodology used in calculating Plaintiff’s loss of fringe benefits was flawed.

    Defendant also asserted that McLeod relied on anecdotal evidence from a “single-year snapshot of 2024 benefits cost data,” and that relying on “outlier” anecdotal information is improper.

    Next, Defendant argued that McLeod’s methodology “lacked internal consistency.” Specifically, Defendant asserted that McLeod averaged multiple years of historic data in assessing Plaintiff’s future tax rate, but used a single, “cherry-picked” year in determining lost fringe benefits.

    McLeod explained that benefits are a percentage of earnings, so calculating lost fringe benefits based on that percentage is “a fairly standard approach.” Defendant argued that “a far more reasonable approach is to tie any increase to the projected inflation rate or healthcare-related costs indices, not wage growth.”

    McLeod is a well-qualified economist who provided detailed descriptions of his methods and reasoning in his reports, deposition, and declaration. The mere existence of another method of calculation did not make the method used by McLeod unreliable or not generally accepted among economists. As such, the Court is not persuaded by Defendant’s assertions that McLeod’s methodology is unreliable.

    b. Life Care Plan Economic Damages Report

    As to the portion of McLeod’s report that addressed pretrial expenses, Defendant argued that “the jury is fully capable of independently reviewing medical bills and adding up the medical expenses incurred by Plaintiff without the assistance of an economist.” While this may be true, the Court did not agree with Defendant’s argument that the inclusion of pretrial damages in McLeod’s report risked confusing the issues and misleading the jury so long as the pretrial damages are the sum of medical expenses Plaintiff has actually incurred to this point.

    While any testimony that Plaintiff’s pretrial damages is based upon hypothetical pretrial treatment that Plaintiff did not receive will be excluded, even a treatment that was declined pretrial may still be a necessary treatment in the future based on Plaintiff’s changing needs and responses to other treatments. As such, it is permissible for McLeod’s Life Care Plan Report to include the cost for treatments Plaintiff has previously declined in his calculation of post-trial expenses unless it is a treatment that Plaintiff has stated he will not consider in the future.

    Held

    The Court denied Defendant’s motion to exclude certain calculations from Plaintiff’s economist, Dr. Robert McLeod. 

    Key Takeaway

    The existence of other methodologies that McLeod chose not to apply was fodder for cross-examination, but it did not warrant the exclusion of his testimony.

    Case Details:

    Case Caption: McCown V. Norfolk Southern Railway Company
    Docket Number: 2:24cv63
    Court Name: United States District Court, Tennessee Eastern
    Order Date: April 07, 2026

  • 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
  • Economics Expert’s Earning Capacity Analysis Admitted

    Economics Expert’s Earning Capacity Analysis Admitted

    This case involves a workplace accident that occurred on July 13, 2023, while Plaintiff Jason Flores (“Plaintiff”) was working at ACS Manufacturing, Inc. (“ACS”) with a press brake machine (“Subject Press Brake”) manufactured by Accurpress.

    Plaintiff’s left hand was severely injured when the ram on the Subject Press Brake came down on his hand after he reached into the machine’s point of operation to retrieve a piece of debris.

    Plaintiff has brought a strict product liability claim alleging a marketing defect and a negligence claim alleging that Accurpress failed to exercise reasonable care in warning operators.

    Accurpress America, Inc. raised several arguments for excluding the opinions of Plaintiff’s economist, Lisa McGuff and prosthetics expert, Chris Lake.

    Economics Expert Witness

    Lisa McGuff has over 20 years of experience in economics and decision analysis. McGuff specializes in litigation and policy support for individuals, government, and the private sector. Her experience includes valuation and damages analysis, pricing, forecasting, royalties, and statistical analysis across a range of industries including energy, employment, real estate, and franchises.

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

    Prosthetics Expert Witness

    Chris Lake, L/CPO, FAAOP(D) is a Licensed and Certified Prosthetist Orthotist. Lake is a Fellow with Distinction of the American Academy of Orthotics and Prosthetics.

    Lake graduated from the University of Texas Southwestern Medical Center Prosthetics and Orthotics program in 1995. He completed a Prosthetic Residency (1996) at Southern Illinois University and an Orthotic Residency (1997) at the University of Oklahoma.

    Lake has specialized in upper-limb prosthetics since 1997.

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

    Discussion by the Court

    1. McGuff Daubert

    First, Accurpress argued that McGuff’s earning capacity analysis should be excluded under Daubert because she allegedly failed to calculate damages as a measure of Plaintiff’s future earning potential subtracted from his past potential. Second, Accurpress complained that these same capacity opinions are improper because McGuff assumed he would be employed as a “steel worker” until the age of sixty-seven, a job in which he had his highest earnings, and which he left before the time of his accident. Third, Accurpress argued that McGuff’s analysis of household labor should be excluded because she allegedly does not account for Plaintiff’s post-injury capability to perform household labor. Fourth, Accurpress argued that McGuff’s earning capacity and household labor analyses should be excluded under Rule 403 because such analyses will be “confusing and misleading” without comparison to Plaintiff’s post-injury abilities.

    As the Court explained during the hearing, loss of earning capacity is different from lost wages, and, while it is helpful to compare after-injury earnings, that is not required here. Plaintiff counsel also persuasively raised during the hearing that there will be evidence that his current position is as a sheltered employee, which could end prematurely and may not properly reflect his future earnings. Moreover, McGuff’s calculations represented familiar calculations within the purview of an economist based on actuarial data that is typical in a tort case such as this one.

    Therefore, the Court found that McGuff’s earning capacity and household labor opinions are sufficiently relevant and reliable to survive Daubert.

    2. Lake Daubert

    First, Accurpress argued that Lake’s opinion that Plaintiff needed prosthetics is unreliable because he did not consult “treating physicians” or conduct “functional capacity exams.” Second, Accurpress complained that Lake’s opinions on the maintenance costs (ranging from 10-20% of the cost of the prosthesis) of the three he recommends are based solely on his experience and are inconsistent with alleged normative industry data (reflecting 3%). During the hearing, Accurpress’ counsel raised an additional argument that Lake’s opinions on the prosthesis are unreliable because Plaintiff has not had an amputation yet in the two-and-a-half years since his accident, which is a prerequisite to fitting a prosthesis.

    While Accurpress raised a slew of additional arguments, it provided no basis for such arguments grounded in Lake’s opinions or the facts. As a result, the Court found that Lake’s prosthetics opinions are sufficiently reliable.

    Held

    The Court denied Accurpress’ motions to exclude the opinions of Lisa McGuff and Chris Lake.

    Key Takeaway

    For expert testimony on topics that lack exactness, courts should consider factors such as the expert’s professional experience. Rule 702 does not prohibit an expert from reaching an opinion based on the expert’s experience and a witness’ experience can provide a reliable basis.

    Case Details:

    Case Caption: Flores V. Capital Machine Technologies, Inc.
    Docket Number: 2:24cv81
    Court Name: United States District Court, Texas Eastern
    Order Date: March 16, 2026
  • Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    This is a trademark infringement and unfair competition action arising from the parties’ respective uses of the word “IMPOSSIBLE.” Impossible Foods is the widely known creator of the Impossible Burger and other plant-based meat products. Defendants/Counter-Plaintiffs Joel Runyon and Impossible X LLC (collectively, “Impossible LLC”) are an individual and his corporate entity who, over the past decade, have been involved in a variety of ventures—including search engine optimization, social media influencing, and fitness and dieting advice—all loosely affiliated with the word Impossible.

    Impossible Foods filed two motions in limine to exclude the testimony of Dr. Jennifer Vanderhart and Dr. Robert Palmatier, while Impossible LLC sought to exclude portions of John Plumpe’s rebuttal testimony.

    Economics Expert Witness

    Dr. Jennifer Vanderhart is an economist and the managing director of a consulting firm providing services in connection with litigation, regulatory proceedings, and valuation analyses. She holds a Ph.D. in economics from Texas A&M University, where she previously taught in the Department of Economics and the Department of Management in industrial organization, public economics, and econometrics.

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

    Marketing Expert Witness

    Dr. Robert W. Palmatier is a Professor of Marketing at the University of Washington’s Foster School of Business, where he has taught since 2007. He holds a Ph.D. in marketing from the University of Missouri and has held a variety of academic and industrial positions, with a focus on marketing strategy, consumer loyalty and decisionmaking., and methodological approaches for analyzing marketing data.

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

    Valuation Expert Witness

    John G. Plumpe is the managing director of an economic consulting firm and holds a Master of Science in Mechanical Engineering from the University of Illinois and an M.B.A. from the University of Chicago Booth School of Business. Plumpe’s practice focuses on the analysis of damages, monetary relief, and valuation issues in intellectual property litigation.

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

    Discussion by the Court

    Jennifer Vanderhart

    Vanderhart is Impossible LLC’s damages expert and has prepared a report in which she opined that Impossible LLC is entitled to corrective advertising damages for Impossible Foods’ use of its IMPOSSIBLE-formative marks in connection with its swag and cookbook.

    In her report, Vanderhart opined that corrective advertising damages may be calculated by multiplying Impossible Foods’ swag and cookbook-related expenses by three to five, based on Palmatier’s opinion that “Impossible LLC would likely have to spend 3 to 5 times as much to correct false or unwanted brand associations as was originally spent by Impossible Foods to create these associations.”

    During the relevant time period, she calculated that “Impossible Foods has spent an estimated $623,280 in ‘swag’-related expenses” and “has spent an estimated $194,722 in cookbook-related expenses,” opining that “total corrective advertising damages are in the range of $2,454,006 to $4,090,010.”

    Impossible Foods filed a motion to exclude Vanderhart’s opinions on three grounds. To begin with, Impossible Foods argued that she failed to assess any actual harm to the value of Impossible LLC’s asserted marks and has “made no attempt to calculate lost sales caused by the alleged infringement.” Second, Impossible Foods argued that she did not properly measure advertising costs because her calculations are based on production costs rather than advertising expenditures and include the cost of producing items that are not accused of infringing Impossible LLC’s marks. Finally, Impossible Foods argued that Vanderhart improperly relied on Palmatier’s three-to-five multiplier, which itself is “derived from a single, irrelevant study.”

    Analysis

    The Court agreed with Impossible Foods that Vanderhart neglects to quantify the harm to Impossible LLC’s asserted trademarks by Impossible Foods’ alleged infringement or to even estimate their value in the first instance. However, this does not require that her testimony be excluded at theDaubert stage, where the focus is on her qualifications and the reliability of her methodology.

    Impossible Foods also argued that Vanderhart’s testimony is unreliable because her calculations include expenses by Impossible Foods that are unrelated to advertising expenditures for allegedly infringing products. 

    The Court explained that the touchstone of corrective advertising damages is to restore the harm to the value of the asserted trademark which includes, among other things, marketing and advertising costs.

    As to Impossible Foods’ swag-related costs, Vanderhart was not required to separate marketing and advertising expenses from production costs because she explained that the swag items were themselves the advertising. Because the swag items were not offered for sale and were produced solely for promotional purposes, it would be reasonable to infer that the items themselves were the advertisements. That said, because Impossible LLC has not accused all swag items (e.g., water bottles, stickers, etc.) of infringement—and does not and cannot contend that the asserted trademarks even include those items—the Court agreed with Impossible Foods that her calculations are overinclusive. 

    While the Court will not exclude Vanderhart’s testimony in this respect, Impossible Foods will be permitted to impeach the correctness of her valuations through cross-examination and other evidence.

    As to Impossible Foods’ cookbook-related costs, Vanderhart’s testimony is excluded, since she relies exclusively on the cost of producing the cookbooks and does not include any expenses at all for marketing and advertising.

    Robert Palmatier

    Impossible Foods sought to only preclude Palmatier from testifying that corrective advertising damages may be calculated by applying a three-to-five multiplier to Impossible Foods’ marketing expenditures on the ground that this opinion is based “on a single academic paper,” namely, “a decades old study involving college students and radio advertising for mouthwash finding that three corrective impressions were required to correct one misimpression.”

    According to Impossible Foods, there is just “too great an analytical gap” between Palmatier’s multiplier opinion and the data upon which he relies.

    The Court did not read Palmatier’s multiplier opinion as narrowly as Impossible Foods did. Far from relying on a single outdated study, Palmatier explained why any harms to Impossible LLC’s brand equity caused by Impossible Foods’ alleged infringement would be “magnified” due to the “similarity of wordmarks due to other points of similarity,” “high level of marketing spend,” and “increased use of broadly-focused marketing.”

    Palmatier explained that linkages to unwanted and negative associations are more impactful and difficult to eliminate than positive associations and that these negative associations are particularly strong “due to the synergistic interaction” of multiple “magnifying factors” identifying industry practices of responding to such associations with targeted rehabilitative advertising.

    In articulating his reasoning, Palmatier relied on a variety of case studies and analyses and particularly pointed out how his multiplier opinion is based on the application of fundamental, well-accepted marketing principles.
    The Court accordingly agreed with Impossible LLC that Palmatier’s multiplier opinion is sufficiently supported to survive Impossible Foods’ Daubert challenge.

    John Plumpe

    Plumpe is Impossible Foods’ damages expert and has prepared a rebuttal report in which he argued that Vanderhart’s calculations are not a reliable estimate of corrective advertising damages.

    Plumpe asserted that Vanderhart’s damages calculation is speculative, unsupported, and would result in a windfall to Impossible LLC due to her failure to analyze the value of Impossible LLC’s marks, failure to account for Impossible LLC’s low revenues and marketing expenses, and “the lack of evidence of actual financial harm to [Impossible LLC] in the range contemplated by the prospective correcting advertising damages award.”

    Impossible LLC challenged Plumpe’s testimony on two primary grounds. First, Impossible LLC argued that several of his opinions (specifically, as to consumer confusion, corrective advertising, and search rankings) fell outside of the scope of his expertise as an economist and professional damages expert and are either irrelevant or unhelpful to the jury. Second, Impossible LLC argued that portions of Plumpe’s expert report included improper legal opinions that are not proper subjects of expert testimony.

    Despite Impossible LLC’s attempts to cast Plumpe’s testimony as venturing outside of his area of expertise (e.g., by improperly opining on “causation” and other “noneconomic” issues), the Court found that his opinions are properly limited to evaluating whether the damages claimed by Impossible LLC can be economically attributed to Impossible Foods’ alleged infringement. Specifically, Plumpe’s rebuttal report sets forth his economic reasoning and analysis for his conclusion that Vanderhart’s opinions failed to capture injuries plausibly attributable to Impossible Foods’ swag and cookbook by failing to account for external market forces.

    Regarding Impossible LLC’s argument that Plumpe improperly offered legal conclusions, the Court disagreed. It is permissible for Plumpe to explain the framework and underlying principles to orient the jury.

    Held

    • The Court granted in part and denied in part Impossible Foods’ motion in limine to exclude the testimony of Dr. Jennifer Vanderhart.
    • The Court denied Impossible Foods’ motion in limine to exclude the testimony of Dr. Robert Palmatier.
    • The Court denied Impossible LLC’s motion in limine to exclude the testimony of John Plumpe.

    Key Takeaway

    While it is true that Impossible LLC will not be able to recover corrective advertising damages without showing harm to its allegedly infringed marks, the Court is not aware of any authority suggesting that a damages expert must provide all the evidence required to support a damages award for their testimony to be admissible.

    Nor is the Court persuaded by Impossible Foods’ suggestion that Vanderhart’s testimony is “unreliable and unhelpful” absent a valuation of Impossible LLC’s asserted marks, since the jury is permitted to consider her testimony together with any other evidence presented at trial in considering the ultimate issue whether Impossible LLC’s marks have been harmed by Impossible Foods’ alleged infringement.

    Case Details:

    Case Caption: Impossible Foods Inc. V. Impossible X LLC
    Docket Number: 5:21cv2419
    Court Name: United States District Court, California Northern
    Order Date: February 26, 2026
  • Law Enforcement Expert’s Opinion on Reaction Time Admitted

    Law Enforcement Expert’s Opinion on Reaction Time Admitted

    This case arises from the fatal shooting of Caleb Slay by federal Drug Enforcement Administration (“DEA”) Agent Anthony Gasperoni. On November 2, 2020, Slay encountered DEA Agent Gasperoni and DEA Agent John Stuart. During the ensuing interaction, DEA Agent Gasperoni discharged his firearm, fatally shooting Slay. Slay’s mother, Tina Richardson, filed this case asserting numerous claims under federal and state law against the United States and DEA Agent Gasperoni for wrongful death. The parties timely designated expert witnesses in this case and now move to exclude the evidence and testimony of the other party’s expert.

    United States filed a motion to exclude the testimony of Robert W. Johnson while Plaintiff Richardson filed a motion to exclude the expert testimony of Craig Allen.

    Economics Expert Witness

    Robert Walton Johnson has more than 30 years of experience as a court-qualified economic expert and over 40 years of experience in financial and economic analysis. He has been qualified as an economic expert in both state and federal courts across more than 30 states. Johnson holds a Master of Business Administration from Stanford University and a Bachelor of Business Administration in Economics from Baruch College.

    He has directed and provided testimony on economic analyses for both plaintiff and defense clients in matters involving personal injury, wrongful death, wrongful termination, lost business profits, and antitrust cases. His professional background also includes Wall Street and corporate finance experience, including mergers and acquisitions, as well as roles as a securities analyst and portfolio manager.

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

    Law Enforcement Expert Witness

    Craig Allen is currently employed as the Director of Training and Senior Instructor with the Force Science Institute. He been a Police Officer for 30 years.

    He has held positions within the Hillsboro Police Department ranging from Patrol Officer, Field Training Officer, SWAT, Undercover Narcotics Investigator, Detective, Patrol Sergeant, Training Sergeant, Lieutenant of Internal Affairs, Training Lieutenant, and Patrol Lieutenant.

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

    Discussion by the Court

    I. Defendant United States’ Motion to Exclude Expert Testimony of Robert Johnson

    Johnson, a forensic economist, opined that the value of decedent Caleb Slay’s life is between $5,500,000 and $16,900,000, based on a “willingness-to-pay” methodology.

    As Johnson explained in his expert report, the willingness-to-pay methodology values human life based on “how much people are willing to pay (or willing to give up in dollars) to avoid an increase in the risk of death,” rather than taking into account any information specific to the decedent (such as physical health, history of mental illness, drug use, familial relationships, education, etc.).

    The willingness-to-pay model provided a value range for some general, average human life, rather than a value specific to a particular decedent. In addition to finding the willingness-to-pay methodology generally unreliable, the Court noted that Johnson’s report in particular has issues which cause his expert testimony to fall short of the Daubert standard.

    Johnson relied on two studies that are both now over 20 years old. Johnson did not explain why these studies were chosen, whether newer studies exist, or whether other studies exist with further variations in estimates of the value of human life.

    As a result, the Court found that Johnson’s expert testimony did not meet the standard under Rule 702 as amended and is inadmissible.

    II. Plaintiff Richardson’s Motion to Exclude Expert Testimony of Craig Allen

    A. “Force Science” Opinions

    Plaintiff Richardson sought to exclude Allen’s opinions that rely on “force science,” arguing that “force science” is not a generally accepted theory in the relevant scientific community and Allen is not qualified as an expert in a recognized scientific field such as cognitive psychology or behavioral science.
    Allen offered an opinion regarding the perception or reaction time of an officer responding to a threat, without opining about cognitive processes.

    Upon review, Allen’s opinion regarding reaction time did not appear to cross the line into cognitive psychology, physiology, behavioral science, or any other purely scientific field. Moreover, Allen’s opinion did not merely rely on his experiences at the Force Science Institute but also on his 30 years of experience as a police officer, over 25 formal certifications, relevant organization memberships, and review of publications on the issue of police perception and reaction times. Thus, it appeared to the Court that Allen’s area of expertise included police reaction times based on his experience as a police officer, his training, and his research.

    Plaintiff alternatively argued that Allen’s opinions relating to “force science” should be excluded under Rule 403 as unduly prejudicial. Plaintiff argued that the jury “may give force science too much weight over whether the DEA Agents Gasperoni and Stuart could have exercised other options, such as obtaining an arrest warrant based on probable cause.” First, the Court noted that this argument has little bearing on the specific opinion identified in the briefing—that is, Allen’s opinion that officer reaction time is longer when the officer must engage in decision-making. Second, the quoted language above is the entirety of Plaintiff’s argument that the Court should exclude this evidence under Rule 403. The Court is not persuaded that the value of the evidence is outweighed by any undue prejudice.

    B. Eyewitness Testimony Opinion

    Second, Plaintiff Richardson sought to exclude Allen’s opinions on eyewitness testimony, particularly his opinion elicited by Plaintiff Counsel in his deposition that “police officers involved in shootings can have specific, more precise memories of how the event unfurls as opposed to a lay witness watching the incident.” Plaintiff argued that Allen has no supporting education, credentials, or background in the field of memory and eyewitness testimony. 

    Here, Allen did not include any “eyewitness testimony” opinions in his report, and defense counsel states that they do not anticipate eliciting any such opinions from him at trial. Instead, the only reason Allen has opined on eyewitness testimony during the course of this litigation is because Plaintiff Counsel asked Allen in his deposition, “do you have some reason to believe that police officers who are active participants in a shooting incident would have better memories of the shooting incident than nonactive participants?” The Court is persuaded by Defendant United States’ argument that Allen should be able to respond to such questioning at trial, including providing his opinion, should Plaintiff Counsel again open that door.

    As set forth above, the Court found Richardson’s motion to exclude eyewitness testimony opinion premature, as Allen has not included any such opinions in his report and defense counsel did not intend to elicit any such opinions on direct examination.

    Held

    • The Court granted Defendant United States’ motion to exclude the expert testimony of Robert Johnson.
    • The Court denied Plaintiff Richardson’s motion to exclude the expert testimony of Craig Allen.

    Key Takeaway

    The Court joined the growing consensus among federal courts and concludes that the willingness-to-pay methodology generally is an unreliable way to measure the value of human life and did not satisfy the Daubert standard. Moreover, Johnson’s report in particular lacks sufficient explanation and support for his conclusions. The reasonable value of Slay’s life is within the purview and experience of the factfinder.

    Case Details:

    Case Caption: Richardson V. United States Of America
    Docket Number: 6:23cv3337
    Court Name: United States District Court, Missouri Western
    Order Date: March 02, 2026
  • Vocational Rehabilitation Expert Was Allowed to Opine on Economic Horizons

    Vocational Rehabilitation Expert Was Allowed to Opine on Economic Horizons

    Natasha Shea was involved in a slip and fall accident at Kalahari Resort in the
    Pennsylvania Pocono Mountains on March 11, 2023. Defendants sought to preclude Plaintiff Natasha Walkowicz Shea from offering any testimony from her economic loss experts John W. Dieckman, MS, CRC, CDMC and Andrew C. Verzilli, MBA. 

    Vocational Rehabilitation Expert Witness

    John W. Dieckman, MS, CRC, CDMC has been a licensed vocationalist since 1983. He has been qualified as an expert vocationalist numerous times in both state and federal courts.

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

    Economics Expert Witness

    Andrew C. Verzilli, MBA is an economist who holds an MBA and has also been qualified as an economics expert in both state and federal courts.

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

    Discussion by the Court

    A. Reliability of Plaintiff’s Economic Loss Experts

    The Court found that the opinions of Dieckman, as limited herein, and Verzilli are reliable based on the preponderance of the evidence presented at the Daubert hearings. Both relied on generally accepted principles in their respective fields.

    For Dieckman, the Court found his methodology to be reliable and based upon “good grounds” because he used his standard and customary methods that he used in other cases. Dieckman reviewed several medical and related reports, including emergency room records and Shea’s CV and tax returns from 2022-23.

    Dieckman also testified that the opinions he intended to offer are generally accepted in his field and are based on a reasonable degree of professional certainty.

    For Verzilli, the Court found that his methodology is reliable and generally accepted within the economics community and his testimony is supported by “good grounds.” He applied reliable methods standardly used by economists in calculating future lost earnings potential.

    B. Whether the Proposed Expert’s Testimony Fits the Case

    Specific Opinions Offered by Dieckman

    Dieckman intended to testify regarding the future economic losses suffered by Plaintiff as a result of her fall. He relied on his interview with Plaintiff, who informed him that her contract was not renewed because of the fall.

    Defendants’ principal issue with Dieckman’s testimony is that he relied upon his interview of Plaintiff in order to opine that Plaintiff’s contract was not renewed because of the accident. Whether Plaintiff’s contract was or was not renewed, and whether that renewal (or lack thereof) was caused by Plaintiff’s injuries due to the slip and fall are disputed facts.

    In sum, the Court permitted Dieckman to offer his opinions regarding Plaintiff’s future lost earnings capacity (i.e., shortened “economic horizons”) because he is qualified to offer those opinions, those opinions are reliable, and they fit with this case.

    Dieckman, however, was precluded from testifying as to any statements made to him by the Plaintiff wherein she informed him that the non-renewal of her contract of employment with the Port Jervis City School District was caused by, or the result of, injuries sustained by Plaintiff as a result of a slip and fall on the premises of the Defendants. The introduction of any such statements through Dieckman presented inadmissible hearsay and their probative value did not substantially outweigh their prejudicial effect.

    Specific Opinions Offered by Verzilli

    The methodology used by Verzilli in calculating Plaintiff’s future lost earning capacity is a well-accepted methodology in the fields of economics, which Defendants did not dispute. Therefore, Verzilli will be permitted to testify at trial. Like Dieckman, many of Defendants’ issues with his testimony go to weight, not admissibility.

    Held

    The Court granted in part and denied in part Defendants’ motion in limine to preclude Shea from offering any testimony from her economic loss experts John Dieckman, MS, CRC, CDMC and Andrew Verzilli, MBA. 

    Key Takeaway

    An expert is, nonetheless, permitted to base his opinions on a particular version of disputed facts and the weight to be accorded to that opinion is for the jury. It is also a proper subject of cross-examination at trial.

    Case Details:

    Case Caption: Shea V. Resorts
    Docket Number: 3:23cv814
    Court Name: United States District Court, Pennsylvania Middle
    Order Date: February 27, 2026
  • Economics Expert’s Testimony on Lost Productivity Excluded 

    Economics Expert’s Testimony on Lost Productivity Excluded 

    This case involves alleged damage to a plasma cutter that was to be used for a welding business. Plaintiff Giger Welding and Fabrication, LLC (“Giger”), purchased a plasma cutter from an auction in Texas to assist with its welding business in Missouri. To get the plasma cutter to Missouri, Giger contracted with Defendants DFW Movers & Erectors, Inc. (“DFW”), and AFC Transportation, Inc. (“AFC”), to load and transport it on a semitruck. The plasma cutter was allegedly damaged during shipment.

    Giger then sued DFW to recoup damages for the repair of the plasma cutter as well as lost profits.

    Giger’s expert, Dr. William Rogers, has submitted a report on economic damages. DFW sought to exclude Giger’s testimony that potential customers did not accept his bids because of the lead time and cost required due to Giger not having use of the damaged plasma cutter.

    Economics Expert Witness

    Dr. William Harris Rogers is an economist and owner of John Ward Economics focused on providing economic testimony in the Kansas City and St. Louis metro areas and beyond. He is a former associate professor of economics at the University of Missouri-Saint Louis (2004-2016) with a Ph.D. in Economics. Rogers has worked as a forensic economic consultant and expert witness estimating financial losses for litigation purposes since 2015.

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

    Discussion by the Court

    Rogers is an economist whose expertise is limited, in this litigation, to calculations of damages based on information provided to him by Giger. To begin with, the Court did not allow Giger to introduce otherwise inadmissible hearsay through its expert, when that expert’s expertise is unrelated to the welding trade or the reliability of the alleged statements of potential customers.

    Also, Rogers may not opine, as he does in his report, that he “believes it is appropriate to identify Giger’s losses through the lens of lost productivity while awaiting the plasma cutter’s replacement or repair.” This is, after all, an ultimate question of fact for the jury. Once Rogers explains how lost productivity and profits are calculated, the jury will be in a position to assess the appropriateness of lost profits as a measure of damages and apply Roger’s testimony to Giger’s claims.

    Giger testified under oath that he gave bids to multiple potential customers in response to requests from those customers. While Giger and its expert witness shall not testify about the reasons purportedly given by potential customers for their denials of Plaintiff’s work bids, the Court held that Giger and its expert may offer evidence of the bids themselves.

    Held

    The Court limited the testimony of Giger’s expert, Dr. William Rogers.

    Key Takeaway

    Expert witnesses are not allowed to to give an opinion on an ultimate question of fact. The experts are only permitted to explain the criteria by which they would form such an opinion.

    Case Details:

    Case Caption: Giger Welding And Fabrication, LLC V. Tranzact Technologies, Inc.
    Docket Number: 4:21cv741
    Court Name: United States District Court, Missouri Western
    Order Date: February 10, 2026
  • Economics Expert Was Allowed to Opine on Kidney Transplant Allocations

    Economics Expert Was Allowed to Opine on Kidney Transplant Allocations

    Plaintiff Anthony Randall (“Randall”) is an individual residing in Los Angeles, California. Randall identifies as Black. As of the time of the filing of his complaint, he was on the waiting list for a kidney transplant.

    Defendant United Network for Organ Sharing (“UNOS”) is a private nonprofit organization that manages the national organ transplant waiting list. UNOS coordinates with transplant hospitals that refer patients seeking placement on the list. Defendant Cedars-Sinai Medical Center (“Cedars-Sinai”) is one of those hospitals.

    Randall has designated Professor David M. Cutler as an expert witness and submitted Cutler’s expert report. Randall retained Cutler to evaluate the following questions:

    “(1) Do you find to a reasonable degree of professional and scientific certainty in the field of health economics that there is a well-accepted methodology to determine how class members’ wait times, and thus changes to be offered acceptable kidneys, were impacted by Defendants’ use of the race-based coefficient? (2) If yes, what are the methodologies and what is the impact?”

    However, Defendants filed a motion to exclude the expert opinions of Cutler under Rules 401, 403, and 702.

    Economics Expert Witness

    David Matthew Cutler is the Otto Eckstein Professor of Applied Economics at Harvard University. He has earned a Ph.D. in Economics from the Massachusetts Institute of Technology in 1991 and an A.B. from Harvard University in 1987.

    Cutler has been on the faculty at Harvard for over 30 years. Moreover, Cutler’s work in health economics and public economics has earned him significant academic and public acclaim. Professor Cutler served on the Council of Economic Advisers and the National Economic Council during the Clinton Administration and has advised the Presidential campaigns of Bill Bradley, John Kerry, and Barack Obama as well as being Senior Health Care Advisor for the Obama Presidential Campaign.

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

    Discussion by the Court

    a. Under Rule 402, Randall has sufficiently shown that Cutler’s opinions are relevant and will help the trier of fact

    Defendants suggested that the evidence would be irrelevant to the trier of fact because “Cutler fails to identify a single definitive measure the trier of fact should use to identify specific violations of the Unruh Civil Rights Act.” They also reasserted the argument that Cutler’s model cannot distinguish harm caused by Defendants from harm caused by a third-party actor. Even accepting those arguments as true, however, they do not establish that the evidence is irrelevant. To the extent Defendants’ arguments diminish the relevance of Cutler’s opinions, they go to the weight of the evidence—not its threshold admissibility.

    b. Under Rule 702(c), Randall has sufficiently shown that Cutler’s methodology is scientifically reliable

    Randall has offered, and Defendants did not seem to meaningfully dispute, that Cutler’s use of simulation modeling and partial equilibrium analyses have appeared in peer-reviewed literature and amassed acceptance among peer-reviewed economics articles and researchers in the medical industry.

    Instead, Defendants argued that Cutler’s methodology is unreliable because it has “never been tested by anyone” or “admitted into evidence.” But the standard that Defendants suggested—that studies adopting a similar methodology to Cutler’s in the same field as Cutler did not support Randall’s argument because they did not “address the impact of the race-based coefficient on an offer and/or acceptance of a kidney transplant” or “apply Cutler’s unique modeling” as constructed for this case—appeared to reach beyond what Rule 702 requires. In other words, the Court need not find that someone in Cutler’s position has used this specific combination of models to resolve an identical factual question to Cutler to find that Cutler’s opinions are reliable.

    c. Under Rule 702(d), Randall has sufficiently shown that Cutler’s methodology was applied reliably to the facts of this case

    Defendants argued that Cutler’s methodology is premised on factually inaccurate assumptions that invalidate his approach and lead to incorrect and unreliable conclusions.

    The sole premise that Defendants attacked on this basis is “the premise that a patient qualifies to be registered on the national kidney list and otherwise begins to accrue wait time as soon as he or she has an eGFR score of 20 mL/min or less.”

    It did appear that Defendants have submitted some evidence that the 20 mL/min threshold did not govern every patient’s eligibility for transplant. At the hearing, Defendants argued that Randall has not actually shown that this fact is in dispute—that is, that 20 mL/min is actually the threshold at which a patient qualifies to be registered on the national kidney transplant list and otherwise begins to accrue wait time.

    It appeared to the Court that Randall has failed to establish that the 20 mL/min threshold is dispositive. But this is of no moment, as it appeared that even if not dispositive, if it is significant at all—and Randall has presented evidence that it is—this would be a useful assumption for Cutler to use in his model. The fact that his model did not attempt to—and therefore cannot—account for other factors did not make his conclusions unreliable.

    Held

    The Court denied Defendants’ motion to exclude the expert opinions of David Cutler.

    Key Takeaway

    The Court’s role is to “determine the scientific validity of an expert’s principles and methodology, not to determine whether their hypothesis is correct, or to evaluate whether it is corroborated by other evidence on the record.”

    So, to the extent that the parties dispute the significance of the 20 mL/min threshold, Defendants can cross-examine the witness on the reliance on what they see as a disputed or false assertion. An expert need not align with every aspect of Defendants’ interpretation of the evidentiary record to meet the Rule 702(c) threshold. To that end, the fact that Cutler’s assumptions rely upon disputed facts is a matter best resolved through cross-examination, not exclusion altogether.

    Case Details:

    Case Caption: Anthony Randall V. United Network For Organ Sharing
    Docket Number: 2:23cv2576
    Court Name: United States District Court, California Central
    Order Date: February 12, 2026
  • Economics Expert Allowed to Opine on Pass-Through Damages Estimates

    Economics Expert Allowed to Opine on Pass-Through Damages Estimates

    In this action, the Plaintiffs, the Attorneys General of most of the States and several U.S. territories (“the States”), alleged that twenty-six pharmaceutical companies (“the Defendants”) participated in an overarching conspiracy to fix prices, allocate markets, and rig bids in the sale of generic drugs for skin ailments, and are thus jointly and severally liable for violations of federal and state antitrust and unfair and deceptive practices laws.

    The States claimed damages on behalf of various downstream entities that allegedly purchased these drugs: state agencies and insurance plans, and also consumers and businesses within the applicable States. The States retained economist Hal Singer to calculate putative damages based on the theory that alleged overcharges were passed through numerous intermediaries and re-sellers, from drug manufacturers to these end purchasers. Defendants filed a motion to exclude certain opinions of Singer.

    Economics Expert Witness

    Hal J. Singer has researched, published, and testified on competition-related issues in a wide variety of industries, including media, pharmaceuticals, sports, and finance. He has extensive experience providing expert economic and policy advice to regulatory agencies in the United States and Canada, as well as before congressional committees.

    He has also served as expert for the Federal Trade Commission in a merger challenge and for several U.S. states in monopoly cases. The American Antitrust Institute honored Singer with an antitrust enforcement award for his work in Lidoderm Antitrust in 2018 and for his work in Cung Le, et al. v. Zuffa LLC, d/b/a Ultimate Fighting Championship in 2023. He received his M.A. and Ph.D. in Economics from The John Hopkins University.

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

    Discussion by the Court

    The Defendants filed a motion to exclude Singer’s opinion related to his pass-through damages estimates. To begin with, the Defendants argued that Singer’s analysis failed to differentiate between increases caused by an alleged overcharge and those caused by intermediaries’ independent pricing decisions.

    The Court disagreed. Singer relied on sales and cost data produced by various third parties to calculate pass-through at each stage of the generic pharmaceutical supply chain.

    The States need not isolate all possible causes of cost increases at each step in the distribution chain or show that the Defendants’ unlawful conduct was the sole cause of their injuries (or those of the consumers they represent). It is enough for them to show that the Defendants’ conduct was a substantial or materially contributing factor in producing their injuries.

    The Defendants filed a motion to exclude Singer’s opinion concerning deadweight loss. In the summary judgment ruling, the Court concluded that damages for deadweight loss (and consumer surplus as it relates to “general economy” damages) are not available. Based on that ruling, the Court held that Singer will not be allowed to opine on these issues, and thus the Defendants’ motion to exclude his opinions in this respect was denied as moot.

    Third, the Defendants filed a motion to exclude Singer’s opinion related to the putative premium increases that Managed Care Organizations (“MCOs”) charged to certain States.

    Here, too, the Defendants’ motion to exclude Singer’s opinion on this issue was denied as moot based on the summary judgment ruling.

    Held

    The Court denied the Defendants’ motion to exclude certain opinions of Hal Singer.

    Key Takeaway

    Congress’s 2023 amendment to Rule 702 made clear that: (1) a preponderance of the evidence standard applies to questions of admissibility under Rule 702; and (2) expert testimony “must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

    Singer’s report will assist the jury in deciding whether they have met that standard, and it is based on adequate data that he reliably applies. The Court found Singer’s opinion on pass-through damages estimates to be reliable and based on sufficient data.

    Case Details:

    Case Caption: Connecticut V. Sandoz, Inc.
    Docket Number: 3:20cv802
    Court Name: United States District Court, Connecticut
    Order Date: February 12, 2026