This is an employment lawsuit brought by Stephen (Rex) Sanders and Terri Levels, who both worked at the Bay Area Air Quality Management District. Sanders served as the Chief Administrative Officer, and Levels served as the Human Resources Officer. In 2023, the District terminated the employment of both Sanders and Levels.
Sanders and Levels claimed that they were fired in retaliation for complaining about workplace discrimination. Plaintiff’s motion in limine sought to exclude Defendant’s highly credentialed economic expert Kaycea Campbell, Ph.D. from testifying altogether because a portion of her opinion asserted what Plaintiffs contended is a legal conclusion (i.e., that damages should be cut off on the date that Plaintiffs voluntarily withdrew from Defendant’s internal grievance process).
Economics Expert Witness
Kaycea Campbell holds a master’s degree and Ph.D. in economics, and has worked, consulted, taught, and published in this field for over two decades.
Plaintiffs did not challenge Campbell’s qualifications or the reliability of her testimony under Rule 702, but instead challenged her use of the date of Plaintiffs’ withdrawal from the internal grievance appeals process as a cut-off for damages on the basis that this is a legal conclusion.
However, Campbell may properly testify that, in her opinion, the Employment Development Department (EDD) requirements for unemployment claims are relevant in order to assess whether damages had been mitigated, and that those requirements involve pursuit of the appeals.
Campbell need not be an HR expert to state that, from an economic perspective, the EDD’s guidance is probative of the industry standard, and may then provide the jury with a damages calculation based on applying the EDD’s standard.
Held
The Court denied Plaintiffs’ motion to exclude the testimony of Defendant’s economic expert Kaycea Campbell.
Key Takeaway
Campbell’s limited opinion about Plaintiffs’ claimed damages is admissible because she properly makes an expert assessment as to the relevant damages cut-off dates.
Case Details:
Case Caption:
Sanders V. Bay Area Air Quality Management District
This case involves a Federal Employers Liability Act (“FELA”) claim for emotional distress and a Federal Railroad Safety Act (“FRSA”) whistleblower claim based on alleged retaliation.
Despite the failure to timely file the required documents, the Union Pacific’s Employee Assistance Program (“EAP”) granted Nathan Walker a grace extension of his medical leave of absence.
On May 14, 2022, Walker was flagged in the EAP system for revocation of leave because he failed to timely submit the required medical documents. Union Pacific revoked Walker’s medical leave, placed him in an absent without leave status (“AWOL”), and sent a termination letter to Walker for failure to protect employment. On May 23, 2022, Walker’s counselor cured the defect, and EAP extended Walker’s medical leave of absence until October of 2022. On October 19, 2022, Walker was released from his medical leave of absence and ultimately did return to work.
Walker asserted that Union Pacific unlawfully retaliated against him for engaging in protected activity under the FRSA.
Walker designated Dr. Kenneth G. McCoin, Ph.D. as his economic expert. Union Pacific filed the instant Daubert motion, arguing that (1) McCoin’s methodology and calculations are based off incorrect facts, and (2) his expert opinion is “fundamentally unsupported” and irrelevant because it has no “validity when applied to the pertinent factual inquiry.”
Economics Expert Witness
Kenneth Glen McCoin is a consulting economist and a chartered financial analyst. He holds a Ph.D. in Economics from the University of Houston. His professional experience includes serving as Chief Economist at American General Capital Management. He also taught investments and corporate finance at Houston Baptist University.
First, Union Pacific argued that McCoin has been excluded by a previous Court and thus should be excluded by this Court as well. However, even if other courts have given little weight to McCoin’s testimony or excluded him as an expert, that does not mean his ostensible testimony here will not satisfy a Daubert analysis.
Union Pacific argued that McCoin based his methodology and calculations off incorrect facts because his appraisal of Walker’s earning capacity was “based on the wholly incorrect assumption that [Walker] had not returned to work.”
However, Union Pacific noted that Walker was released from his medical leave of absence and returned to work on October 18, 2022. Union Pacific asserted that McCoin’s opinion is misleading because it assumes a leave of absence three times longer than the actual leave.
Walker conceded that McCoin’s statement of his return-to-work date was an incorrect statement of fact in his report. However, in an affidavit, McCoin stated that he is providing an appraisal of the earning capacity of Walker from the alleged date his economic loss began and continues through his remaining work life. Therefore, Walker contended that fact is not critical to McCoin’s opinion because his opinion is dependent on evaluating a pre-injured Walker and that person’s career earnings prospects.
Analysis
The Court’s role is to ensure that the admitted expert testimony is both reliable and relevant.
McCoin attests that he is determining what Walker “more likely than not could have earned in wages through the rest of his work life if not for his injury.” McCoin further attested that his calculations are not based on what Walker’s actual wages are or will be for any period since his injury or in the future.
It is within the province of the jury, not the Daubert gatekeeper, to analyze and weigh an expert’s findings to determine whether they do in fact support his conclusion.”
Therefore, the Court found the methodology used by McCoin acceptable under Daubert. Additionally, any reliance on incorrect facts in forming some of his opinions did not render all his opinions inadmissible.
Held
The Court denied Union Pacific’s Daubert motion to exclude the opinions of Dr. Kenneth McCoin .
Key Takeaway
The original reliance on the incorrect facts goes to the weight of his testimony not the admissibility of the testimony itself. Thus, the Court concluded that McCoin’s expert testimony is admissible as both relevant and reliable.
Plaintiff Serra Chevrolet, Inc. (“Serra”) sued Defendant General Motors, LLC (“GM”) for breach of contract, violations of Alabama’s Motor Vehicle Franchise Act, negligence, wantonness, and violations of the federal Dealer’s Day in Court Act.
Serra retained Patrick L. Anderson to provide an expert report on lost sales and lost profits in this matter. GM filed a motion to exclude the testimony of Anderson.
Economics Expert Witness
Patrick L. Anderson founded Anderson Economic Group in 1996, and currently serves as the company’s principal and chief executive officer.
Anderson is a graduate of the University of Michigan, where he earned a Master of Public Policy degree and a Bachelor of Arts degree in political science. He is a member of the National Association for Business Economics and the National Association of Forensic Economists. The Michigan Chamber of Commerce awarded Anderson its 2006 Leadership Michigan Distinguished Alumni award for his civic and professional accomplishments.
Anderson has written over 100 published works, including the Economics of Business Valuation from Stanford University Press.
First, GM did not argue that Anderson’s testimony will not assist the trier of fact, and, after thorough review, the Court found that it will.
Second, although GM did not explicitly argue that Anderson is not qualified to act as an expert in this case, GM did state that Anderson merely “purports” to be an economic expert, is not an accountant, and “only holds degrees in ‘public policy.’” This called Anderson’s qualifications into question. The Court found that Anderson is qualified to act as an expert witness in this case.
Anderson’s training, education, and experience all qualify him as an expert: his undergraduate and graduate degrees involved extensive coursework in economics, he worked as an economist for multiple employers, he founded and serves as CEO of Anderson Economic Group, he has published multiple journal articles on economic topics, and he has been recognized by professional economics societies.
Anderson Economic Group has previously done work for numerous automotive manufacturers, including GM, and in the first few months of 2025, several major news outlets cited Anderson Economic Group regard to automotive economic issues. Anderson’s expert testimony regarding damages has been admitted in multiple automotive cases.
II) Reliability
GM did challenge the reliability of Anderson’s opinions and methodology. However, Anderson’s lost sales and lost profits analyses are sufficiently grounded in GM’s own metrics and industry data. He used GM’s Retail Sales Index and Planning Volume projections—metrics that GM itself uses to gauge expected dealer performance—as well as comparisons to similar dealerships’ market penetration. These provide an objective basis for estimating how many more vehicles Serra would have sold if not constrained by GM’s allocations. While GM criticizes Anderson for assuming Serra would sell every additional vehicle allocated, this assumption aligns with evidence that dealers typically sell whatever inventory they receive over time.
GM also argued that Anderson improperly ignored Serra’s actual (poor) profitability and instead applied an average profit per vehicle from other regional dealers. However, Anderson explained that Serra’s own financials were abnormally low because GM’s failure to allocate enough inventory made Serra unprofitable.
Indeed, the entire point of a lost profits analysis is to determine what profits would have been in the absence of the allegedly harmful conduct. Constraining Serra’s lost profit calculation by requiring it to consider its own depressed profits when considering what its profits should have been would run counter to this goal. And using the regional average gross profit per new vehicle provides a reasonable estimate of what Serra could have earned if it, like other dealers, had adequate inventory.
The Court held that any gaps or debatable assumptions in Anderson’s opinion (such as not conducting a customer survey or perfectly allocating sales among competing dealers) are points that GM can attack on cross-examination.
III) Legal Conclusions
Finally, GM raised concerns that Anderson made legal conclusions throughout his report. Specifically, GM is concerned about Anderson’s conclusions that GM’s allocation process is “arbitrary,” “inconsistent with their contract,” “not consistent with the Alabama statute,” and the “proximate cause” of Serra’s damages.
A) Arbitrariness
GM argued that Anderson may not testify that GM’s allocation system is “arbitrary” because whether GM’s allocation system is arbitrary is a question of fact for the jury. GM also argued that because Anderson’s finding of arbitrariness permeates his entire report, Anderson should not be allowed to testify at all.
Because in testifying that GM’s allocation system is arbitrary Anderson would indeed be substituting for the court in charging the jury regarding the applicable law, the Court agreed that Anderson may not testify that GM’s allocation system is arbitrary.
However, it did not follow that Anderson’s entire testimony should be excluded. Instead of saying that a part of GM’s allocation process is “arbitrary,” Anderson can simply use a different word, such as “unexplained” or “discretionary,” and leave it to the jury to determine if such unexplained and discretionary decisions constitute arbitrary behavior. This simple change in word choice is sufficient to bring Anderson’s testimony in line with Rule 702.
B) Contractual Interpretation
GM also argued that Anderson may not opine that GM’s allocation process is “inconsistent with their contract.” Such testimony from Anderson would entail first testifying as to the meaning of contractual provisions and then testifying that GM breached those contractual provisions.
The Court held that Anderson may not testify that the contract between GM and Serra requires GM to consider Serra’s sales requirements and sales potential, because such testimony by Anderson would simply constitute a reiteration of Serra’s interpretation of the contract. This type of testimony is properly excluded regardless of whether it is “within the scope of [the expert’s] undisputed knowledge, training, and qualifications.” Once the Court has found a contract provision to be ambiguous, what an expert witness may provide is extrinsic evidence—such as that of trade usage or industry meaning—to guide the jury’s interpretation of the provision. Thus, although Anderson may not interpret the contract himself, he may provide extrinsic evidence to help the jury interpret the contract.
As to the second issue—whether Anderson may testify that GM breached the contract—the answer is no. Thus, Anderson may not testify that GM breached its contract with Serra.
C) Statutory Interpretation
GM also argued that Anderson may not state that GM’s allocation process is “not consistent with the Alabama statute.”
The Court properly excluded such testimony because stating that GM’s allocation system is not consistent with the Alabama statute did no more than offer expert opinion in the form of legal conclusions, risking confusing, prejudicing, or misdirecting the jury.
D) Proximate Cause
Finally, GM argued that Anderson may not state that GM’s allocation process is the “proximate cause” of Serra’s losses because to state the existence of proximate cause is to make an improper legal conclusion.
The more salient issue is whether Anderson’s testimony as to proximate cause will be helpful to the trier of fact.
Stripped to its core, the causal chain is one that a layperson can easily grasp: a reduction in vehicle allocations necessarily produces a reduction in inventory, which in turn yields fewer sales and lower profits. But this causal chain is heavily contested. Throughout Anderson’s report, he delves into the finer points of how exactly GM’s allocation system caused Serra financial harm.
These are issues on which the opinions of an expert economist who is familiar with the automotive industry would be helpful to the trier of fact.
Held
The Court granted in part and denied in part GM’s motion to exclude the testimony of Patrick Anderson.
Key Takeaway
GM claimed that Anderson’s opinions are unsupported ipse dixit, but this assertion is contradicted by the record. Anderson’s report explicitly lays out how he reconstructed GM’s allocation process from internal documents, identified nine arbitrary aspects of that process (e.g., unexplained use of tiers, inconsistent time frames for sales data, lack of criteria for discretionary allocations), and then used GM’s own sales potential metrics to quantify lost sales. And he did not simply assert in a vacuum that Serra lost sales due to GM’s allegedly unlawful allocations; he tied each lost sale estimate to data points GM itself calculated for Serra’s market. This kind of analysis is not ipse dixit because it is “‘supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.’”
Plaintiff John Doe brought facial and as-applied constitutional challenges to the reporting requirements contained in Arizona’s sex offender registry statutes. Under Arizona’s statutory scheme, Doe is required to register as a sex offender for life.
Intervenor-Defendants Warren Petersen and Ben Toma retained Dr. John Lott as an expert witness. Plaintiff filed a motion to exclude the testimony of Lott in whole and in part.
Economics Expert Witness
John Richard Lott holds a Ph.D. in economics and served as the chief economist for the United States Sentencing Commission. Presently, Lott is the President of the Crime Prevention Research Center, a role he has served in since 2021.
Doe argued that Lott is not qualified to offer the opinions in Lott’s report because Lott has had “no training in criminology, sociology, psychology or any related fields,” possesses “no certification or formal training in the treatment or assessment of sex offenders,” and “has never been qualified by another court as an expert in general recidivism, sexual offense recidivism, or any other topic relevant to this case.” The Court disagreed.
Lott possesses some background in statistics and has been retained by Intervenor-Defendants to conduct a statistical analysis; Lott thus possesses the “minimal foundation of knowledge, skill, and experience” necessary to be qualified as an expert under Rule 702.
Held
The Court denied Doe’s motion to exclude the testimony of Dr. John Lott in whole and in part.
Key Takeaway
Lott possesses no discernible specialized knowledge or expertise in the area of sex crimes, sex offender recidivism, or recidivism more broadly. Nonetheless, Doe’s arguments for excluding Lott’s testimony from this matter ultimately go to the weight, not the admissibility, of Lott’s testimony.
Plaintiffs are the estates of three decedents, Robert W. Petersen (“Mr. Petersen”), Mary Ann Simons, (“Ms. Simons”) and Charlotte Elaine Guilford (“Ms. Guilford”) (collectively, “Plaintiffs”). Plaintiffs were residents of Canyon Creek, an assisted living facility in Billings, Montana specializing in memory care, during the height of the COVID-19 pandemic in 2020. Plaintiffs alleged that Canyon Creek was negligent in the care of Mr. Petersen, Ms. Simons, and Ms. Guilford and that its negligent care caused their deaths.
Defendants retained Dr. John Bowblis, Ph.D “to provide an economic and regulatory analysis of the Plaintiffs’ allegations as they pertain to the staffing levels at Canyon Creek.”
Plaintiffs sought to exclude the testimony of Bowblis, arguing that he is not qualified to opine on assisted living facility administration issues or nursing care and that his opinions are not relevant.
Economics Expert Witness
John R. Bowblis is an economics professor at Miami University in Ohio, where he serves as a research fellow at the Scripps Gerontology Center—a leading academic center on aging and aging policy. He is recognized as an expert on staffing levels in long-term care, with papers cited by the Centers for Medicare and Medicaid Services. In 2022, the Department of Health and Human Services sought his consultation regarding nursing home staff and expenditures.
Bowblis has also contributed to COVID-19 research and policy. During the pandemic, he served on a special task force in Ohio that assisted with deploying the National Guard to long-term care providers. This work eventually expanded into a federally funded grant studying the effectiveness of visitation bans in nursing homes. His expertise is further evidenced by his roles in research teams funded by Ohio’s state government, his publication and presentation record, and the citations to his work by both state and federal policymakers.
Plaintiffs challenged Bowblis’ qualifications and the relevance of his proposed testimony. As to his qualifications, Plaintiffs argued that Bowblis has never worked in an assisted living facility, is not licensed as an assisted living administrator or nurse, and does not hold a healthcare management degree.
They also objected to several of his rebuttal opinions, claiming those opinions exceeded the scope of his expertise. Those challenged opinions included: (1) appropriate use and availability of personal protective equipment (“PPE”), (2) whether Plaintiffs’ acuity mandated a higher level of care, and (3) the management relationship between Koelsch and Canyon Creek. As to relevance, Plaintiffs argued that Bowblis’ opinions will not assist the jury because they rely on quantitative and statistical comparisons instead of Montana’s standard of care or whether Defendants’ staffing levels met that standard in light of the residents’ acuity and specific needs.
Analysis
Defendants countered that Bowblis is qualified because he has significant experience analyzing staffing and regulatory issues in assisted living facilities. Defendants pointed to his Ph.D. in economics, his extensive authorship and research in the field, and his practical experience.
The Court agreed with Defendants that Bowblis is qualified to testify as an expert and that his testimony is relevant to the disputed issues in this case.
The Court found that his knowledge, education, and experience directly relate to the staffing analysis he offers, rendering his opinions reliable and relevant. Whether Defendants breached the standard of care and caused harm to Petersen, Simons, or Guilford is a factual issue for the jury. A central component of that inquiry is whether Defendants provided adequate staffing levels. Bowblis’ testimony will assist the jury by explaining and contextualizing Canyon Creek’s labor reports, financial and monthly operation reports, staffing level data of other assisted living facilities, and COVID-19 data.
His testimony will also aid the jury through his rebuttal opinions. Bowblis may address PPE shortages because he worked with assisted living facilities facing such shortages in 2020 and later published research on the issue.
Additionally, Bowblis may testify about assisted living facilities caring for residents who require higher levels of care because of his extensive knowledge of Medicaid’s Home and Community-Based Services (“HCBS”) waiver, which allows individuals to receive long-term care outside of nursing homes.
Finally, Bowblis may testify about the relationship between Canyon Creek and Koelsch. As noted, much of his research focuses on how health care and long- term care providers make operational decisions, and how those decisions impact staffing, quality, finance, as well as the relationship between operators and other parties.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of John Bowblis, Ph.D.
Key Takeaway
Bowblis has significant experience analyzing staffing and regulatory issues in assisted living facilities. His background, combined with his review of the facts in this case, provides a reliable and relevant foundation for his opinions.
Please refer to the blog previously published about this case:
Plaintiff Misty Blanchette Porter was previously employed as a physician in the Reproductive Endocrinology and Infertility (“REI”) Division within Dartmouth Health’s Department of Obstetrics and Gynecology (“OB/GYN”).
After Dartmouth Health made the decision to shut down the REI Division entirely and to terminate all three physicians employed therein—including Porter—Porter filed suit against Dartmouth Health citing disability discrimination.
Dartmouth Health argued that the testimony of Porter’s damages expert, Dr. Robert L. Bancroft, should have been excluded due to untimely disclosure under Rule 26.
Economics Expert Witness
Robert L. Bancroft holds a bachelor’s degree in economics from the University of Vermont (“UVM”); a Master of Science in agricultural economics from UVM; and a Ph.D. in agricultural economics from Purdue University.
From June 1979 until August 1981, Bancroft worked for the United States Department of Agriculture to develop an econometric forecasting model to forecast farmers’ participation in certain government programs and to provide testimony and research to the U.S. House of Representatives. Next, Bancroft began work as an assistant professor in the Department of Agriculture and Resource Economics—later renamed the Department of Community Development and Applied Economics—at the University of Vermont in August 1981. Bancroft continued as an assistant professor of economics until 1991, when he became an adjunct professor. He worked as an adjunct professor of economics until 1996.
Dartmouth Health contended that the Court erred by admitting testimony and exhibits offered by Porter’s expert damages witness, Bancroft, because Porter failed to timely disclose several of his expert opinions under Rule 26.
The Court found that the timing of the disclosure of Bancroft’s March 19, 2025, supplemental report did not warrant a new trial. The March 2025 supplemental report was a direct response to defense counsel’s cross-examination of Bancroft at a hearing on Dartmouth Health’s motion to exclude Bancroft from testifying as an expert witness at trial.
Cross-examination elicited that Bancroft was unaware of certain information relevant to his calculations. Bancroft subsequently updated his report on March 19 to incorporate this new information. Dartmouth Health plainly knew this information before Bancroft issued his March 19 report, as defense counsel raised the issue at the evidentiary hearing.
Moreover, Bancroft did not change the substance of his opinion. He used the same methodology in his March supplemental report as in his prior reports, changing only the inputs to produce updated damages calculations.
The Court did not share Defendants’ view that Bancroft issued his corrective March 2025 report because his testimony at the March 12 evidentiary hearing revealed that his August 2024 report “had not included key facts and assumptions . . . such as Porter’s promotion to full professor in July 2023 and her most recent earnings from UVMMC at a higher rate of pay than what Bancroft had projected.”
Rule 37
Even if the disclosures were untimely, admitting Bancroft’s testimony was not error because the disclosures were substantially justified or harmless under Rule 37.
The first factor—the willfulness of the non-compliance regarding the March 2025 report and the reason for the noncompliance—did not weigh definitively in either party’s favor. Porter knew well before March 2025 that she had received a $7,698 tuition credit for her son’s undergraduate education at UVM in 2019, and Bancroft could have included that information in his August 2024 report. On the other hand, Dartmouth Health knew that it had approved salary freezes in 2020 and 2021, and Dartmouth Health did not allege that Porter or Porter’s expert had that information until March 2025.
The efficacy of lesser sanctions and the possibility of a continuance weigh against excluding Bancroft’s testimony. Dartmouth Health’s proposed alternative—introducing its own expert witness to rebut Bancroft’s supplemental report—was simply not feasible only four days before a three-week trial.
The duration of noncompliance factor was inconclusive. Although Porter was aware of some information that impacted her expert’s damages calculations well in advance of the March 2025 report, other information was only in the possession, custody, or control of Dartmouth Health until the March evidentiary hearing. Bancroft submitted his updated report one week after the evidentiary hearing.
The Court is unaware of any previous warning to Porter that an untimely supplemental expert report could result in exclusion of the expert witness.
Moreover, Dartmouth Health already had a significant amount of the updated information Bancroft relied on for his March 2025 supplemental report. It is difficult to conceive how admitting the March 2025 report, or Bancroft’s testimony consistent with that report, prejudiced Dartmouth Health given that the report estimated substantially lower damages figures than any of Bancroft’s previous reports.
Held
The Court held that the relevant factors weighed against excluding Robert Bancroft’s testimony.
Key Takeaway:
Without Bancroft’s testimony, Porter would have been severely disadvantaged in quantifying her claimed economic damages. Such a sanction would have been disproportionate to the alleged noncompliance given that the late disclosure had a reasonable basis; Bancroft’s methodology did not change from one report to the next, and Bancroft’s final report substantially reduced Porter’s estimated damages.
Case Details:
Case Caption:
Blanchette Porter V. Dartmouth Hitchcock Medical Center
The fiery dispute in this case comes on the wings of a disagreement about dragon-themed boot buttons. In April 2021, Plaintiff, Edward Beard Jr. (“Beard”), filed a complaint against Defendants Arik Helman (“Helman”)1Link to the text of the note; Son of Sandlar, LLC; Son of Sandlar, Inc., Sandlar Manufacturing, LLC; and Twisted World, LLC (“Defendants”) for direct copyright infringement, contributory copyright infringement, vicarious infringement, and breach of contract.
Defendants filed a motion to exclude the testimony of Dr. Wesley Austin while Plaintiff Edward P. Beard Jr. filed a motion to exclude the testimony of Cari Freno and Julie Newman.
Economics Expert Witness
Dr. Wesley Austin is an Associate Professor of Economics at University of Louisiana at Lafayette and has been in that position for eleven years. He also has worked as an expert witness in various litigation since 2009.
Austin holds a Bachelor of Arts in Finance and a Master of Arts in Economics—both from the University of South Florida. He received a Ph.D. in Economics from the University of South Florida, as well. His Ph.D. studies focused on health economics and public sector and labor economics and statistics.
Cari Freno is the chair of the art and art history department at Ursinus College. She has twenty-five years of experience “working with art materials and processes including drawing, carving, and casting” and has served as an art teacher since 2010.
Freno has a Bachelor of Fine Arts from the University of the Arts and a Master of Fine Arts from Virginia Commonwealth University.
Julie R. Newman is the Founder and CEO of Jewel Branding & Licensing, Inc. She has been a licensing agent for the past twenty-two years and represents artists whose artwork is used in manufacturers’ products. According to Newman, she “has developed licensing programs around the globe in categories such as health & beauty, stationery, apparel, gift, and home decor.” She holds a Bachelor of Arts in Finance from the University of Akron.
The purpose of Austin’s “report is to estimate [Beard’s] economic damages/losses” from the alleged copyright infringement.
Challenges to Austin’s Qualifications
While Defendants did not explicitly question the qualifications of Austin, their entire argument is premised on their belief that he “lacks experience or expertise in negotiating or structuring licensing deals, which is critical for providing a reliable opinion on reasonable royalties in the context of copyright infringement.”
While Austin has an impressive background in economics, he has no experience, knowledge, or training relating to licensing agreements of the kind at issue in this case.
So, while he may be qualified to testify regarding general economic matters, he lacked the requisite qualifications to be admitted as an expert on economic damages of the more specific area of art licensing agreements.
Challenges to Austin’s Reliability
Much of the Defendants’ challenge to Austin’s proposed expert testimony focused on his alleged unreliability. They noted that the focus of Austin’s analysis is improperly focused on what Plaintiff would have demanded, not what the parties would have negotiated.
The Court agreed. Austin’s analysis is entirely focused on what Beard would have wanted, not what Helman would have offered.
Be that as it may, the Defendants’ concerns are chiefly with Austin’s methodology and lack of an independent investigation.
The lack of investigation is shown by the fact that there is no evidence in the information provided to Austin that Beard ever received an advance against royalties (AAR) on a per year or per product basis, nor that an upcharge for color variants using his products was ever given. While Plaintiff is correct in noting that there is a basis for determining that an AAR is possible, Defendants contention is that the type of AAR which forms the basis of both of Austin’s scenarios (one granted for that high an amount on a per year, per product, and per color variant basis) has no basis in the record provided to Austin. That, specifically, is what the Court sees as having no evidence in the record to support a basis for an economic analysis and one of the things Austin should have conducted an independent investigation into.
Relevance/Fit of Austin’s Analysis of Loss related to the Boot Buttons
As a final note on Austin, the Defendants pointed out that he included lost future income for the Dragon Boot Buttons in his report.
On March 06, 2024, the Court stated that “Helman is a joint author of the dragon buttons, and he cannot be sued for copyright infringement.”
Since that opinion was released, more than one and half years have passed and Plaintiff has not amended its complaint to include a claim for accounting for profits from the boot buttons—a remedy that remains as viable as it was when it was mentioned in that opinion.
Unless and until that motion and amended pleading are filed, Austin’s proposed analysis relating to the boot buttons is irrelevant to the claims currently within this case.
The Court viewed Austin’s potential testimony, and will view any testimony proffered on this topic, irrelevant until the amended complaint is filed.
Cari Freno
The purpose of Freno’s report is to “provide an opinion of the visual qualities appertaining to the items related to this case.”
1. Challenges to Freno’s Qualifications
Defendants’ chief issue with Freno’s report is that she “references no scholarly sources, industry standards, or error-rate analyses to validate her approach.” That is, their main concern is that her expertise is not scientific, and therefore not reliable.
Freno has established that she has experience working within the art field and that is a sufficient basis for her expert opinion.
Defendants did raise the valid point that while Freno has established an extensive background in the field of art, she provided no evidence that she has experience in the fields of leatherwork or metalwork. Further, she provided no mention that she has ever had experience turning a drawing or model into a physical product like an applique or a metal button. Nevertheless, this experience could be inferred from her previous work, and excluding the testimony of Freno based on her qualifications is not warranted.
2. Challenges to Freno’s Lack of Investigation
Freno’s report made it clear that she relied extensively on conversations with Helman. Freno provided no indication that she ever independently verified what Helman told her and she told the Court, explicitly, at the Daubert hearing that she did not conduct an investigation into what Helman told her.
Freno’s visual analysis concluded by describing the differences between the various designs. It was only based on her extensive conversations with Helman that she ultimately concluded which design was based on the other.
The obvious reliance on Helman’s opinions cannot be ignored by the Court—especially when it is admitted that nothing was done to verify the information. Ultimately, Freno’s lack of an independent investigation into what was told to her ultimately renders her testimony as an expert unreliable.
Julie Newman
Newman stated that the “primary purpose of [her] report is to summarize a licensing arrangement that would be typical for Helman and Beard to enter into.”
Newman spent around half of her report arguing that many of the points made in the information given to Austin’s were “misleading and not based in real world licensing agreements.”
Challenges to the Reliability of Newman’s Opinion
Plaintiff’s chief concern with Newman’s report is its reliability. He first pointed to the fact that she did not rely on “any peer-reviewed or scientific model” and only relied on her extensive experience in the licensing field to come to her conclusions.
The Court disagreed. Plaintiff seemed to want a peer reviewed paper or universally accepted formula to provide the basis for an expert report, but that was not required. Far from pulling figures out of thin air, she based her opinion on more than two decades of experience working to create licensing agreements like the one that could have been made in this case.
She concisely explained in her report how and why she reached the conclusion that a 10% royalty rate was likely and that this would lead to royalties owed in the amount of $400.
Challenges to the Fit of Newman’s Opinion
According to the Plaintiff, because the “report fails to explain how her licensing experience anecdotes align with the specific market for this particular Dragon Design, or the specific infringement scenario before the Court – her report thus failed the “fit” test.”
Despite Plaintiff’s implication that there is a lack of fit due to the lack of science used in the report, all that must be done for the fit element is for the trial judge to determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.”
Here, Newman’s report has more than a sufficient reliable basis for her opinions—she has worked within the relevant field on the exact documents at issue for over two decades. The fact it is an experience-based opinion rather than a scientific based one, did not affect the ability of the expert to provide her report or testimony in this case.
Finally, when Newman stated that she has worked with artists as “a licensing agent” for twenty-two years, she also explicitly stated that she has worked on several art licensing agreements. She set forth these anecdotes almost immediately prior to laying out her conclusion and explained how her conclusion is based on her prior experiences.
Held
The Court granted Defendants’ motion to exclude the opinions and testimony of Dr. Wesley Austin.
The Court granted in part and denied in part Beard’s motion to exclude the expert testimony of Cari Freno and Julie Newman- the motion to exclude was granted as to Cari Freno but denied as to Julie Newman.
Key Takeaway:
Experience is a valid basis to provide an expert opinion. The scientific factors simply are not applicable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.
When an expert relies solely or primarily on experience, they must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Maryland resident Douglas J. Furlong, and two out-of-state breweries, Varietal Beer Company (“Varietal”), and Vortex Brewing Company, LLC (“Vortex”) (collectively, “Plaintiffs”) challenged the constitutionality of Maryland laws that limit out-of-state breweries’ ability to deliver beer directly to consumers in Maryland.
Defendants, Anthony Brown, in his official capacity as the Attorney General of the State of Maryland, and Jeffrey A. Kelly, in his official capacity as Executive Director of the Maryland Alcohol, Tobacco, and Cannabis Commission (together, “Defendants”) proffered William C. Kerr, Ph.D. (“Dr. Kerr”) as an expert witness.
Plaintiffs sought to preclude Kerr from testifying, contending that any expert testimony must be limited to (1) to whether facts and data show that beer from out-of-state manufacturers poses an actual threat of being unfit for public consumption; and (2) to exclude legal opinions and areas beyond the scope of Kerr’s expertise.
In response, Defendants objected to the proposed testimony from Plaintiffs’ expert Mr. Jim Kuhr.
Economics Expert Witness
William C. Kerr is an economist who serves as Senior Scientist and Scientific Director of the Public Health Institute’s Alcohol Research Group. The Public Health Institute is a non-profit health, equity, and wellness organization that conducts research.
Kerr received his Ph.D. in economics from the University of California-Davis (1997).
Also, he has been involved in researching alcohol use and related public policies for over 25 years.
Jim Kuhr is the owner of Catalyst Beverage Consulting,LLC, which offers brewing consulting services to the public and to breweries around the country.
He has 41 years of hands-on experience with beer, breweries, beer delivery and shipping systems, state and federal alcohol regulators, and a broad variety of beer industry practices.
He has worked in various capacities for breweries, brewing associations, and beverage manufacturing and development since 1984 and holds a Bachelor of Science degree in Business Administration & Management and an associate’s degree in business.
Kerr’s expert report provides information regarding how “Maryland’s direct beer delivery law promotes the health and safety of Maryland’s consumers and other legitimate state interests.” His report includes opinions regarding the purpose of Maryland’s three-tier system, the purpose and scope of the challenged statutes, the economic impacts of the statutes and limited alcohol delivery, and the negative effects of direct delivery of beer by out-of-state manufacturers.
Basically, Kerr is an economist who has conducted research regarding various states’ public and economic policies pertaining to alcohol. As the parties agreed on the record, Kerr’s proposed expert testimony generally relates to three categories of public health and safety: (1) pure public health concerns; (2) broader public health and safety concerns; and (3) taxation and economic effects of alcohol regulations as related to public health. Some of the proposed expert testimony in Kerr’s report, however, pertains to broad sociological risks or concerns of alcohol consumption, including drunk driving, alcohol-involved crimes, risky sexual behavior, and productivity loss.
Kerr’s testimony will be limited in part
The Court held that Kerr is qualified as an economist to testify to the economic effects of alcohol regulations, including his proffered opinions: (1) about how Maryland’s regulatory scheme promotes orderly market conditions; (2) that permitting out-of-state retailers to ship and sell alcohol that is not routed through Maryland’s regulatory system compromises Maryland tax revenues; (3) that Maryland’s direct beer delivery law protects the health and safety of Maryland’s citizens by precluding the availability of lower cost alcohol; and (4) that increased availability of alcohol leads to increased price competition, lower prices, and higher alcohol consumption.
As explained on the record, these opinions fall squarely within his expertise as an economist who has conducted extensive research of alcohol regulation and policies.
Kerr is also qualified to testify to a limited extent regarding his opinion that Maryland’s direct beer delivery law prevents the sale of beer to underage drinkers and limits the geographic range of a producer’s beer sales by requiring delivery by the producer’s employees. As a result, Kerr may testify to this opinion to the extent that he limits his testimony to the economic effect of the limited geographic range of beer sales.
Kerr is not qualified, however, to testify about broad sociological or societal concerns regarding the use of alcohol.
Although Defendants asserted that Kerr has extensive research experience regarding the social and public health concerns related to alcohol consumption, his education is focused on the economic impact of various alcohol regulations. Accordingly, as explained on the record, he can offer minimal testimony as to his opinion that subjecting alcohol sold to Maryland consumers to Maryland’s higher taxation promotes numerous public and safety objectives.
Jim Kuhr
Kuhr bases his testimony on his personal knowledge and experience, including experience in “industrial scale and craft beer, brewing, packaging, fermentation, blending, product development, quality assurance, food safety, occupational safety, sustainability, and project management.”
To begin with, Kuhr represents that his “expertise ranges from quality, brewhouse, and cellar operations, process improvement, product development, packaging management, occupational and food safety, supply chain, and systems commissioning and optimization.”
Kuhr’s testimony will be limited in part
Defendants specifically objected to Paragraphs 2, 4, 8, and 9 of Kuhr’s expert report on the basis that he was not qualified as an expert on those topics.
First, Paragraph 2 of Kuhr’s report generally stated that the FDA, manufacturer, local or state health agencies, and the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) are involved in food safety recalls, and “state alcohol regulatory and law enforcement agencies would not usually play a role.”
Second, Paragraph 4 of his report generally provided that “food safety risks involved in the production of wine mirror those of beer” and “Maryland currently allows the transportation of wine from out of state producers directly to consumers by common carriers.”
Third, Paragraph 8 stated, “the concern for the sale and delivery of beer to minors is the same as with wine. The same rules applied to wine can be used for beer.”
Finally, Paragraph 9 of Kuhr’s report provided “it is my opinion that the Three Tier System of alcohol distribution in the United States is one designed to facilitate the collection of taxes rather than one designed with an eye toward food safety.”
However, Defendants conceded that they did not object to Kuhr’s proposed testimony in Paragraphs 2, 4, and 8 to the extent that he offered such opinions from a product safety standpoint. Plaintiffs agreed that Kuhr is offered only as a food- and product safety expert such that his proffered opinions do not reflect sociological or broad public health and safety opinions.
Moreover, all parties agreed on the record that Kuhr’s proposed opinion in Paragraph 9 of his report regarding the purpose of alcohol regulation systems in the United States is beyond the scope of his expertise and must be excluded.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude certain testimony of Plaintiffs’ expert Jim Kuhr.
The Court granted in part and denied in part the Plaintiffs’ motion in limine to exclude the proffered opinions of William Kerr.
Key Takeaway:
Kerr’s testimony regarding the broad public health and safety concerns was excluded. The Court refused to admit any specific or extensive testimony regarding reductions in drunk driving, alcohol-involved crimes and mortality, risky sexual behavior, and lost productivity.
It all started when the Plaintiffs, Lance and Kevin McCulloch, purchased Chandler Gas and Store on May 27, 2021. They alleged that the Marathon’s mandated point-of-sale, back-office management system, and computer system (collectively, the “Required Operations System’), which controlled both the gas pumps and registers in the C-store, frequently malfunctioned.
The Plaintiffs claimed that they have lost profit in several areas due to the malfunctioning of the Marathon operations system.
Both sides filed expert-exclusion motions: Chandler Gas filed a motion to exclude the opinions of John Umbeck and Marathon filed a motion to exclude the opinions of Max McDevitt.
Economics Expert Witnesses
John R. Umbeck is a professor of economics at Purdue University who has more than 40 years of experience researching the petroleum industry and the marketing of petroleum products.
Max J. McDevitt is an economist at the consulting firm, The Fontana Group, Inc., and has “assisted with” over two dozen cases related to franchisee issues, generally in the automotive industry. He has a doctorate in economics from Boston University.
Umbeck explained that he was retained by Marathon to determine whether Chandler Gas was profitable and the amount of damages the business might have incurred due to the alleged point-of-sale problems. Based on his review of “all of the available information,” Umbeck drew eight “conclusions,” which the Court will treat as the opinions Umbeck hopes to offer at trial:
The Chandler station was profitable when operated by Prima Investments.
The Chandler station was profitable when operated by the McCullochs.
The financial data shows no evidence of any significant financial harm to the station during the time of the alleged failure of the operating system.
The actual computer problems, using Verifone data, shows no evidence of any significant loss of gasoline sales.
The customer reviews show no evidence of customers being upset about any inconvenience caused by the computer problems.
Based on opinions 3–5, the alleged failure of the operating system would have no significant negative impact on the expected future revenues or the market value of the business when sold.
The business experienced a significant decrease in the volume of fuel it sold, compared to the sales when operated by Prima. However, these lost fuel sales were caused by the new retail pricing policy implemented by the McCullochs and not the alleged problems with the operating system.
Any loss in value the business might have incurred during this time period was caused by the Plaintiffs.
b. Analysis
Opinions 1 and 2 Regarding Profitability
Chandler Gas argued Umbeck’s first two opinions should be excluded because they are not relevant.
Those opinions addressed the profitability of the station under its prior owner (Prima) and then after Chandler Gas took over. Chandler Gas claimed hundreds of thousands of dollars in damages based on alleged lost sales volume. Umbeck’s opinion that the station was profitable during the relevant period and that observed volume declines were more consistent with pricing decisions than computer outages bore directly on causation and damages.
Evidence of profitability is relevant because it provides economic context against which the jury can assess the plausibility and magnitude of Chandler Gas’s claimed losses. A central issue to this case is whether any alleged operating system outages actually caused a measurable financial impact. Evidence showing the operations before Chandler Gas assumed control and that the business remained profitable during the relevant period will assist the jury in understanding the evidence or determining a fact in issue. And although profitability alone does not disprove damages, it is probative of whether the alleged operating system issues caused significant economic harm, and the weight to be given to that evidence is a matter for the jury, not a basis for exclusion.
The Court found that Umbeck’s testimony provided relevant background and probative evidence that may assist the jury in evaluating the scale of Chandler Gas’ claimed damages.
Opinions 3 and 4 Regarding Operating System Failures
Chandler Gas contended that Umbeck failed to consider relevant evidence about the frequency and severity of operating system failures or outages, making his opinions unreliable.
To determine the impact the operating system had on sales, Umbeck looked exclusively to “a Verifone log” that included 75 problems each assigned a unique case number. He did not explain why he only looked at Verifone logs and did not consider other sources that could have demonstrated system outages.
The majority of Verifone problems were, according to Umbeck, “resolved in 5 minutes or less.” Apparently based solely on his personal experience with computer problems, Umbeck contended that customers did not leave a station and go elsewhere if a problem can be resolved within five minutes. Umbeck provided no evidentiary basis for this five-minute view of consumer behavior. Umbeck then identified the problems that “took more than 15 minutes to resolve.”
As a result, the Court refused to admit Umbeck’s opinions based on his “analysis of the actual computer problems.”
Even if Umbeck were qualified to analyze computer problems—which he is not—he has neither demonstrated any expertise in consumer behavior nor provided a basis for his assumption that a delay of less than five minutes would have no effect.
Finally, Umbeck seemed to expect the Court and factfinders to draw meaningful conclusions from a chart containing gross fuel sales revenue, C-store revenue, and total sales revenue. Umbeck presented a chart with these figures and blankly states “the table shows no significant decline in revenues from fuel sales or store sales.”
Yet there is zero explanation or analysis to show why differences the chart shows in revenue should be considered insignificant. Umbeck thus provided no reliable reasoning supporting his conclusion that no significant loss of revenues occurred over the relevant time period.
Opinion 5 Regarding Customer Reviews
Umbeck obtained 36 customer reviews through Google Maps from the relevant period and concluded that there is no evidence of customers being upset about the computer problems, and thus “no evidence of a significant loss of business due to the alleged computer problems.”
The Court found that Umbeck’s conclusion did not meet the Daubertstandard. Even assuming the accuracy of the customer reviews, the Court determined that Umbeck had provided no reliable method for extrapolating economic harm from qualitative anecdotal feedback. His methodology appeared to consist of reviewing a relatively arbitrary collection of consumer reviews of Chandler Gas, and nothing more. The Court further found that nothing in Umbeck’s background qualified him to perform a qualitative analysis of customer reviews obtained through his own unexplained research on Google Maps.
Opinion 6
Opinion 6 relied entirely on excluded Opinions 3 through 5, and therefore depends on unreliable and inadmissible testimony. Although inadmissible evidence may be considered in formulating expert opinions, Umbeck may not rely on evidence that itself is unreliable.
Umbeck’s conclusion depends substantially on Opinions 3-5, which have been excluded as methodologically unreliable. Because the foundation for Opinion 6 is unreliable and that opinion is otherwise broad and unsupported by independent valuation methodology, the Court excluded it.
Opinion 7 Regarding the Causation of Lost Profits
Umbeck’s opinion 7 concluded that any decrease in fuel sales volume during the relevant period was caused by Chandler Gas’s pricing decisions and not the alleged operating system failures. Chandler Gas argued that this opinion—which is based primarily on price differentials between Chandler Gas and the nearby Circle K station—should be excluded because it is “flawed and unreliable” and prejudicial.
To provide support for Opinion 7, Umbeck used data on the station’s average monthly retail prices before, during, and after Chandler Gas’s ownership. Umbeck first compared Chandler Gas’s prices with those of its eight closest competitors, which seems to show nearly identical pricing between 2018 and 2024. But then Umbeck provided stronger support for his conclusions. He demonstrated a gradual decline in monthly average gasoline sales for Chandler Gas and a gradual increase in the differential between the retail price offered by Chandler Gas and the wholesale price at which it purchased the gasoline.
Finally, Umbeck compared the monthly price of Chandler Gas with a competitor Circle K station just under one mile away. Umbeck’s data showed that Chandler Gas’s average monthly retail price was often a few cents below Circle K’s price for the last half of 2021, but several cents higher than Circle K’s in 2022 (and even up to more than fifteen cents higher in November 2022). In the same chart, Umbeck also showed a mostly-gradual decline in the average monthly volume of gasoline sold by Chandler Gas.
From this data, Umbeck concluded the retail prices set by Chandler Gas—and not the computer problems—caused the volume of gasoline sales to drop. This testimony is relevant to causation and damages because it offers an alternative explanation for the decline in sales volume, which is a key contested issue in the case.
Opinion 8 Regarding Plaintiffs Having Caused All Loss in Value
Umbeck’s opinion 8 stated that “any loss in value the business might have incurred during this time period was caused by the Plaintiffs.”
Unlike Umbeck’s pricing analysis in opinion 7, Umbeck did not identify a valuation methodology or provide an evidentiary basis for this opinion. Umbeck did not perform a discounted cash flow analysis, comparable sales analysis, or any other recognized valuation technique. Nor did he provide an economic model linking the alleged causes (e.g., pricing decisions) to any measurable diminution in business value. In fact, Umbeck’s report included essentially no discussion or reasoning to support this opinion; there was not a single sentence about the business value or how Chandler Gas might have caused any loss in value.
The Court found this opinion too unreliable to satisfy the necessary standard because it did not have an adequate analytical or methodological basis.
Rebuttal Report
Chandler Gas also objected to portions of Umbeck’s rebuttal report, arguing that Umbeck impermissibly exceeded the scope of proper rebuttal. Accordingly, the Court declared that Umbeck would be permitted to offer rebuttal testimony only to the extent it directly responded to or contradicted McDevitt’s opinions.
II. Marathon’s Motion to Exclude McDevitt
McDevitt intended to introduce the following opinions at trial:
Chandler Gas lost an estimated 907,708 gallons of fuel sales between June 2021 and July 2024
Chandler Gas lost an estimated $1,731,972 in C-Store sales between June 2021 and July 2024
Chandler Gas lost an estimated $333,040 in fuel profits between June 2021 and July 2024
Chandler Gas lost an estimated $388,532 in C-Store profits between June 2021 and July 2024
Chandler Gas lost an estimated $721,572 in total profits (combined fuel and CStore) between June 2021 and July 2024
Chandler Gas’s estimated loss of value on the sale of business assets was $784,604
b. Analysis
Marathon challenged McDevitt’s qualifications on the basis he lacked specialized experience in retail gasoline markets and the petroleum industry.
However, the Court found that McDevitt is not going beyond his specialized field of applied economics. Though he did not appear to have extensive experience in the petroleum industry, he did have the necessary background to conduct damages modeling and offer opinions on lost profits, sales, and value.
Marathon also challenged McDevitt’s methodology. Marathon contended that McDevitt’s damages opinions were based on biased assumptions, particularly that all lost sales were caused by operating system glitches rather than price increases or competition. The Court found, however, that McDevitt’s clearly stated assumptions did not extend into territory that would warrant excluding his testimony. McDevitt had reviewed historical data, incorporated alternative pricing scenarios, and based his damage calculations on the station’s actual financial records.
The record indicated at least some basis for McDevitt’s assumptions that the operating system malfunctions resulted in declined sales and values.
Marathon further asserted that McDevitt ignored basic principles of economics like the law of demand. Though Marathon may contend that McDevitt’s analyses were flawed because Chandler Gas raised its prices above competitors, this argument did not render McDevitt’s testimony inadmissible. He did not rely on unsupported speculation and the fact that he did not conduct independent causation analysis is no issue.
Lastly, Marathon argued that McDevitt’s opinions should be excluded because the opinions would mislead the jury and cause unfair prejudice.
The Court held that McDevitt’s calculation of damages has probative value given the issues at hand, and any risk of prejudice or confusion can be mitigated through cross-examination, the presentation of Umbeck’s competing analysis, and appropriate jury instructions.
Held
The Court granted in part and denied in part Chandler Gas’ motion to exclude the opinions of John Umbeck.
The Court denied Marathon’s motion to exclude the opinions of Max McDevitt.
Key Takeaway:
Expert testimony that helps the jury evaluate competing causal explanations for damages claims is within the scope of Rule 702.
Economic experts like Umbeck may rely on historical price data and market comparisons to form opinions about the effect of pricing on sales. Here, Umbeck presents data showing evidence of patterns between price changes and volume shifts. Since the analysis is informed by Umbeck’s background as an economist and relevant experience within the petroleum industry, it sufficiently satisfies the Daubert standard.
Case Details:
Case Caption:
Chandler Gas & Store Inc. V. Treasure Franchise Co. LLC
Docket Number:
2:23cv400
Court Name:
United States District Court for the District of Arizona
On May 22, 2021, Keith Anderson (“Anderson”) and Lorena McCaigue (“McCaigue”) (“Plaintiffs”) brought this action against Pasadena Police Chief John E. Perez (“Perez”) and the City of Pasadena (“City”). The action arises out of Defendants’ alleged retaliation against Plaintiffs in response to the following actions: (1) bringing a civil action against the City of Pasadena and certain Pasadena police officers in which violations of the California Tort Claims Act were alleged; and (2) making a request under California’s Public Records Act (“CPRA”) to obtain copies of police body camera footage.
To begin with, McCaigue is a federal law enforcement agent who was based in the Los Angeles area. On July 22, 2019, Pasadena police responded to a call reporting a supposed suicidal person. Thereafter, McCaigue’s identity was publicized in such a way that it was no longer safe for her to continue her work in the Los Angeles area. McCaigue applied for and was granted a transfer to a new locality that has not been disclosed. However, in this new locality McCaigue lacked the same opportunities for meaningful advancement, thus negatively affecting her lifetime total earnings.
Defendant argued that the opinions of Phillip D. Sidlow, Plaintiff’s expert, were insufficient to prove that Defendant’s conduct caused McCaigue’s lost wages because his testimony was unreliable and based on “assumptions.”
Economics Expert Witness
Phillip D. Sidlow has a Master’s Degree in Applied Economics from Johns Hopkins University and is employed as a vocational economics analyst. Moreover, he has published articles about earning capacity loss, and has served as an expert in calculating lost economic opportunities suffered by parties in hundreds of lawsuits.
Defendant argued that Sidlow’s testimony should have been excluded because it “lacked foundation and was based on pure speculation,” including assumptions he and Plaintiff McCaigue made, rather than Sidlow’s independent “research,” “review,” or consultation with Plaintiff McCaigue’s supervisors.
Based on Sidlow’s experience, education, and specialized knowledge, the Court determined that Sidlow was qualified to provide expert testimony as to Plaintiff McCaigue’s lost earning potential, based on information provided by Plaintiff McCaigue.
In other words, Defendant’s challenge to Sidlow concerned the weight, not admissibility, of his testimony.
Held
The Court denied the Defendant’s motion to exclude the testimony of Phillip Sidlow.
Key Takeaway:
Although Defendant asserted that Sidlow’s testimony must be excluded because it was based on “pure speculation and assumptions,” the assumptions of an expert go to the probative weight, rather than the admissibility, of the evidence.
Case Details:
Case Caption:
Anderson V. Perez
Docket Number:
2:21cv4290
Court Name:
United States District Court for the Central District of California
