Expert Witness Profiler

Category: Economics Expert Witness

  • Economics Expert’s Opinion on Copyright Damages Excluded

    Economics Expert’s Opinion on Copyright Damages Excluded

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

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

    Gaming Expert Witness

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

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

    Economics Expert Witness 

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

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

    Accounting Expert Witness

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

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

    Discussion by the Court

    Miller’s Motion to Exclude Plaintiff’s Expert  Bogost

    Bogost is qualified to testify about TCGs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Held

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

    Key Takeaway:

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

    Case Details:

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

  • Economics Expert Allowed to Opine on Stock Inflation

    Economics Expert Allowed to Opine on Stock Inflation

    Plaintiffs alleged that Defendants engaged in a scheme to defraud and made numerous materially false and misleading statements and omissions to investors regarding Acadia’s business and operations.

    Defendants filed a motion to exclude the testimony and opinions of Plaintiff’s expert witness W. Scott Dalrymple. Specifically, Dalrymple was retained to analyze share price inflation and damages associated with Plaintiffs’ allegations.

    Dalrymple purports to calculate the inflation in the stock price caused by these alleged misrepresentations by measuring the abnormal stock price decline following “curative events” that allegedly disclosed the truth behind the misrepresentations.

    Economics Expert Witness

    W. Scott Dalrymple is a Partner at BVA Group LLC (“BVA Group”). He is an economist and a CFA charter holder with extensive experience in economic, financial, and statistical analyses. During his career, he has worked on issues relating to the analysis of economic damages involving securities litigation, business valuation, structured finance, financial derivatives, antitrust, intellectual property, and breach of contract.

    Dalrymple holds a Master of Science in Economics from the London School of Economics and Political Science and a Bachelor of Business Administration in Finance and Business Honors from the University of Texas at Austin. 

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

    Discussion by the Court

    To begin with, Defendants challenged the admissibility of Dalrymple’s opinions under Rule 702. As grounds, Defendants contended that Dalrymple did not offer opinions of loss causation which rendered his opinions on damages irrelevant and unhelpful; that his opinions are unreliable because he failed to disaggregate the impact of the corrective disclosure from any other non-fraudulent information; and that his opinions are results oriented (i.e., not reliable) because he measured inflation using a four-day window for one of the alleged corrective disclosures.

    Plaintiffs, however, noted that Dalrymple conducted multiple event studies in which he considered and disaggregated confounding information and that the only assumption in Dalrymple’s analysis is that the jury will find the alleged misstatements were, in fact, actionably false and misleading.

    For the most part, Defendants’ arguments challenged the factual bases for Dalrymple’s opinions, they go to the weight, rather than the admissibility, of his testimony.

    The Court found that Plaintiffs have shown by a preponderance of the evidence that Dalrymple is qualified, his opinions have a reliable basis in the knowledge and experience of his discipline, and that he will testify to knowledge that will assist the trier of fact in understanding the evidence and deciding why Acadia’s stock price fell when it did and the issue of damages.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Plaintiff’s expert witness W. Scott Dalrymple. 

    Key Takeaway:

    To determine reliability under Rule 702, the Court must determine not whether the expert’s opinion is correct, but rather whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.

    The facts of this case do not show that Dalrymple’s opinions are “so fundamentally unsupported that they can offer no assistance to the trier of fact.”

    Case Details:

    Case Caption: St. Clair County Employees’ Retirement System V. Acadia Healthcare Company, Inc. Et Al
    Docket Number: 3:18cv988
    Court Name: United States District Court for the Middle District of Tennessee, Nashville Division
    Order Date: October 01, 2025
  • Economics Expert’s Testimony on Loss of Society Excluded

    Economics Expert’s Testimony on Loss of Society Excluded

    This is a medical negligence case filed by Plaintiff Tanya Soule, as holder of Power of Attorney for Marlene Do, her mother, a currently disabled adult, and Long Do, her husband. Specifically, Plaintiffs alleged that Defendants were negligent in failing to timely diagnose and manage Marelene’s ischemic stroke on December 11, 2019.

    Subsequently, Defendants Blessing Hospital; Scott Hough, M.D.; Shaila O’Dear, R.N.; Jason Little, APRN; Kristin Hampton, R.N.; Angelo Liana, M.D.; and Rebecca Dennison, R.N. filed a motion to exclude all but the present value of future life care opinion testimony of Plaintiffs’ expert witness on economics, Stan Smith, PhD.

    Economics Expert Witness

    Stan V. Smith, PhD is the President of Smith Economics Group, Ltd., headquartered in Chicago, Illinois, which provides economic and financial consulting nationwide.

    Moreover, Smith has worked as an economic and financial consultant since 1974. He has performed economic analysis in a variety of cases, including personal injury and wrongful death actions. Smith has over 40 years of experience in the field of economics and wrote the first textbook on Forensic Economic Damages. 

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

    Discussion by the Court

    Defendants sought to bar Smith from providing testimony at trial regarding purported loss of household/ family services sustained by Long Do, hedonic damages sustained by Marlene, and loss of society or relationship sustained by Long. Specifically, Defendants contend all of these opinions are based on methodologies that are unreliable and are not supported by facts specific to Marlene.

    Loss of Household/Family Services

    With respect to household/family services, Smith’s opinions included two subcategories alleged to be sustained by Long Do: (a) loss of housekeeping and household management services; and (b) loss of advice, counsel, guidance, instruction, and training services. Defendants argued that these damages are speculative and would not assist the jury.

    For example, regarding loss of housekeeping and household management services, Smith opined that Long suffered a loss in the amount of $378,775. Essentially, Smith multiplied the amount of time it would take a non-professional to complete a particular task by the costs it would take to hire a professional.

    In addition, Smith included a 50% non-wage component to the hourly wage rate. However, he acknowledged that Marlene was not a professional of any trade upon which he relied. Furthermore, he did not ask Marlene or Long whether they paid for any of the services considered. Smith admitted the calculation is his “estimate of the market value of the services performed by a female in the household on average.”

    To illustrate, Smith created three tables to show his calculations for past and future loss of housekeeping and household management services. He then created a similar calculation to opine on the monetary loss of advice, counsel, guidance, instruction, and training services for Long.

    Specifically, Smith assumed a loss of one hour per day for these advisory services based solely on his interview with Marlene’s daughter.

    On the other hand, Plaintiffs noted that loss of household services is a compensable form of injury. They alleged that Smith’s testimony involves the loss of household services sustained by the family from the time of Defendants’ alleged negligence through Marlene’s life expectancy.

    Conclusion

    The Court allowed Smith’s testimony regarding the loss of housekeeping and household management services while excluding his testimony concerning the loss of advice, counsel, guidance, institution, and training services.

    C. Hedonic Damages

    Smith opined on the reduction in value of life or loss of enjoyment of life for Marlene. Plaintiffs claimed that the hedonic value of life refers to the value of the pleasure, the satisfaction, or the utility that human beings derive from life, separate and apart from the labor or earnings of life.

    In his report, Smith stated that his “estimate of the value of life is consistent with estimates published in other studies that examine and review the broad range of economic literature on the value of life.”

    Smith estimated the value of life “to be approximately $5.9 million in year 2023 dollars.” Defendants noted that Smith only interviewed Marlene’s daughter. He did not interview Marlene or Long.

    Smith provided a “lower estimated impairment rating” and an “upper estimated impairment rating,” based on his range for either 50% or 80% reduction in value of life. Pursuant to his methodology, Smith estimated a total loss of value of life of $1,954,626 for 50% reduction and a total of $3,127,391 for 80% reduction. To determine future loss, Smith accounted for a discount factor to create a present value. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered-either 50% or 80%. Defendants noted that Smith did not consult with a single medical professional to arrive at his impairment rating.

    Conclusion

    Defendants alleged that federal and state courts have routinely barred Smith’s testimony as to hedonic damages.

    After considering Smith’s testimony on hedonic damages, the Court agreed with the reasoning of the overwhelming majority of federal district courts. Therefore, the Court granted Defendants’ motion to the extent it sought exclusion of Smith’s testimony on hedonic damages.

    Loss of Society or Relationship for Long Do

    To begin with, Smith presented his opinions on loss of society or relationship relating to Long Do. In particular, Plaintiffs noted that Illinois law recognizes loss of society or relationship as a recoverable pecuniary loss. In other words, this is the total value of loss of society or relationship Long did and will suffer due to Marlene’s alleged injuries. Specifically, Smith testified that the loss is “the loss of love and affection that he has sustained, the loss of the quality of the relationship that he had that has impacted his quality of life.”

    Defendants noted that Smith calculated loss of society in the same manner as his calculation for reduction in value/hedonic damages for Marlene. This loss is calculated from 2019 through 2030, which ends at Long’s estimated life span of 81 years old. Smith picked $5.9 million as the value of each human life in 2023 dollars. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered. For loss of society, Smith chose 50% disability. He determined Long’s loss of society was $403,273. For future loss, Smith accounts for a discount factor to create a present value.

    Conclusion

    As Defendants alleged, the jury is capable of processing that information to calculate damages guided by their observations, experience, and sense of fairness. The Court held that Smith’s opinions on this topic are speculative and potentially misleading in focusing on the statistically average person instead of the individuals in this case.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the opinions of Plaintiffs’ economic expert Stan Smith, Ph.D.

    Key Takeaway:

    Rule 702 requires a flexible inquiry and recognizes that the accuracy of proposed expert testimony can be explored adequately via the normal adversarial process of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”

    It is “the soundness and care with which the expert arrived at her opinion” that is the focus of the inquiry and not “the ultimate correctness of the expert’s conclusions.”

    Case Details:

    Case Caption: Do Et Al V. Blessing Hospital, A Corporation Et Al
    Docket Number: 1:20cv1398
    Court Name: United States District Court, Illinois Central
    Order Date: September 23, 2025
  • Economics Expert’s Stock Valuation Opinions Admitted

    Economics Expert’s Stock Valuation Opinions Admitted

    Plaintiffs Thomas O’Keefe, Kenneth Cunningham, Joseph Lewis, Brian Judge, Byounghoon Ahn, Dione Heusel, Betsy Riggs, and Thomas West are former executives and employees of Defendant Smoothie King Franchises, Inc.

    This action arises out of Defendants’ allegedly wrongful decision to terminate
    Plaintiffs’ stock options in SK USA, Inc.

    Plaintiffs engaged expert Craig J. McCann, Ph.D. and CFA, “to provide an analysis of the value of the Plaintiffs’ options on stock of SK USA.”

    However, Defendants filed the motion to exclude McCann’s testimony based on three reasons: (1) McCann failed to adhere to the applicable professional standards in his field; (2) McCann’s stock valuation opinions focus on irrelevant time frames; and (3) there is too great an analytical gap between the facts of this case and McCann’s analysis.

    Economics Expert Witness

    Craig J. McCann, Ph.D. is Principal, SLCG Economic Consulting, LLC. He has taught graduate investment management at Georgetown University and at the University of Maryland, College Park. McCann is a Chartered Financial Analyst.

    McCann received a B.A. and an M.A. in Economics from the University of Western Ontario and a Doctorate degree in Economics from the University of California, at Los Angeles.

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

    Discussion by the Court

    In his expert report, McCann summed up his findings with two main points:

    1. Value Based on Stock Sale: He calculated that each of the Plaintiffs’ stock options was worth about $3,164 using a standard valuation method (called the OPM backsolve) based on SK USA Holdings’ recent sale of preferred stock.
    2. Real Value is Higher: He argued that this number is too low because the company’s main shareholder deliberately chose to raise $100–$130 million in a way that avoided selling stock, which suggests the stock was more valuable than the sale price implied. Based on this, McCann concluded that the plaintiffs’ stock options were actually worth between $3,337 and $3,619 each.

    He also presented a table showing how the options’ value would change if the company’s total value was between $700 million and $800 million (as supported by private equity offers and executive testimony). In that case, he said the options would be worth $3,246 to $3,743 each — again, more than the $3,164 calculated using the first method.

    Motion to Exclude

    Defendants argued that the Court should exclude McCann’s testimony because he admitted that he did not adhere to the Uniform Standards of Professional Appraisers, the International Valuation Standards, the American Society of Appraisers’ standards, the National Association of Certified Valuators and Analysts’ standards, or the Association of International Certified Professional Accountants’ (“AICPA”) standards in forming his opinions.

    Defendants further argued that McCann violated industry standard by not using multiple methods to calculate the value of Plaintiffs’ stock options.

    Additionally, Defendants argued for exclusion of McCann’s testimony based on the dates he valued the Plaintiffs’ stock options. According to Defendants, the relevant date for the valuation of Plaintiffs’ stock options is the date the alleged breach of contract occurred.

    Finally, Defendants sought to exclude McCann’s testimony, arguing that there is too great an analytical gap between the facts he considered and the opinions he reached.

    Analysis

    However, the Court found McCann’s opinions to be relevant and reliable and found that his testimony will aid the jury in resolving the factual dispute as to the value of the Plaintiffs’ stock options. The Court was convinced that McCann’s reasoning is scientifically valid.

    Basically, the criticisms raised by the Defendants all are related to the bases and sources for McCann’s opinions.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Craig McCann.

    Key Takeaway:

    As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [factfinder’s] consideration. Furthermore, experts may rely on one version of disputed facts in forming their opinions. Any weaknesses in his testimony based on questionable assumptions may be dealt with on cross-examination.

    Basically, the Court is convinced that the Defendants will effectively cross-examine McCann as to the bases and sources of his valuation opinions and will highlight any weaknesses in his testimony for the benefit of the jury.

    Case Details:

    Case Caption: O’Keefe Et Al V. Smoothie King Franchises, Inc. Et Al
    Docket Number: 2:24cv2094
    Court Name: United States District Court, Louisiana Eastern
    Order Date: September 09, 2025
  • Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Plaintiffs Donrudy Loiseau, Quinton L. Hebron, and Dwayne Small (together, “the Plaintiffs”), brought an individual and class action suit against their former employer, Bozzuto’s Inc., alleging discrimination against black employees with respect to promotions, warehouse position assignments, pay, workplace discipline, and terminations.

    Plaintiffs retained Dr. David M. Lang “to analyze employment data provided by Bozzuto’s Inc. to determine whether there were racial disparities between White and Black employees, especially in pay, job roles, promotions, and terminations (but also in discipline), and if so, the extent of those disparities and whether they are statistically significant.”

    Defendants filed a Daubert motion to exclude the opinions of Lang.

    Economics Expert Witness

    Dr. David M. Lang is a Full Professor and Chair of the Economics Department at California State University, Sacramento (CSUS). He routinely teaches courses at the University of California, Davis, across the Economics, Statistics, and Mathematics Departments, with a particular focus on labor economics and econometrics.

    Lang has published eight research papers and presented his work at more than 30 academic conferences. He earned his B.A. in Economics from Stanford University and both his M.A. and Ph.D. in Economics from Washington University in St. Louis.

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

    Discussion by the Court

    Defendants challenged the Lang Reports on two grounds: that Lang’s analyses failed to consider major non-discriminatory factors, rendering his conclusions unreliable and Lang’s analyses cannot be tested or reproduced because Lang has not produced the data underlying his opinions.

    Lang’s Analysis is Unreliable Because it Failed to Account for Major Non-Discriminatory Factors

    Defendants first alleged that Lang’s analysis is unreliable because it failed to account for major non-discriminatory factors: job type and tenure, employee qualifications, and whether an employee applied for a position or sought a promotion. Defendants urged that not only is Lang’s analysis so flawed as to lack any probative value, but that the alleged lack of consideration of certain non-discriminatory factors is fatal to its admissibility altogether.

    Lang’s analysis controlled for several variables, including job title, race, and
    base pay. Other factors Lang employed included corrective reviews, voluntary termination rates, and involuntary termination rates. Therefore, the Court held that the Defendants’ characterization of Lang’s analysis as aggregated and obfuscatory is inaccurate and ignored the disaggregated data Lang included across his two reports.

    Moreover, Lang’s decision not to consider certain factors (such as job tenure) is within his discretion and implicates, at most, the probative weight of his conclusions. Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure. Moreover, Lang explained that certain other variables, such as “experience” are not amenable to review based on the data Bozzuto’s supplied. The assessment of Lang’s conclusions, in light of those factors he did and did not include within his analysis, rests with the factfinder in assessing their ultimate credibility.

    Lang Failed to Provide the Data Underlying his Opinions, Preventing Reproduction or Testing of his Analysis

    Defendants argued that “Lang’s testimony is unreliable and should be excluded because he has not produced the data underlying his opinions, and thus his analyses cannot be recreated.”

    Defendants claimed that Lang “prevented anyone from recreating or testing the accuracy of his work by purposefully conducting his work in a manner to leave no trail or evidence of his analysis.”

    However, Lang did supply the materials underlying his reports. Plaintiffs sent
    Defendants Lang’s expert materials on September 13, 2024, something Defendants acknowledged in their January 30, 2025 correspondence with Plaintiffs’ Counsel.

    Defendants tempered their initial assertion that Lang did not supply any of the materials underlying his reports by stating instead that the information supplied has not allowed the Defendants’ expert to replicate his results. As described above, this demonstrates a misunderstanding of the requirements of Rule 702 with respect to replication. Admissibility under Daubert does not demand that dueling experts supply one another with step-by-step instructions on how to replicate their results.

    Held

    The Court denied the Defendants’ Daubert motion to exclude the opinions of David M. Lang.

    Key Takeaway:

    As a general matter, variables excluded from a regression analysis impact the probative weight, not the admissibility, of expert evidence. Moreover, which variables to include in a regression analysis are within the professional judgment of the expert where certain variables may be tainted by discrimination.

    In this case, Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure.

    Case Details:

    Case Caption: Loiseau V. Bozzuto’s Inc
    Docket Number: 3:22cv1485
    Court Name: United States District Court, Connecticut
    Order Date: August 27, 2025
  • Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

    Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

    The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. As a result, the FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    The FTC requested that Dr. Neale Mahoney, Ph.D. provide an expert opinion on (1) “Whether Amazon’s Cancellation Survey provides a reliable basis from which to draw inferences regarding the behavior of its customers”; (2) “The extent to which customers were unintentionally enrolled in Amazon Prime, and how much such consumers paid to Amazon in Prime membership fees during their memberships”; and (3) “The extent to which customers attempted to cancel their Amazon Prime memberships and believed that they had done so but did not in fact complete the cancellation process, as well as how much such customers subsequently paid to Amazon in Prime membership fees.”

    The Defendants filed a motion to exclude Mahoney’s expert testimony. They contended that his testimony on unintentional Prime enrollments and cancellations is neither relevant nor reliable.

    Economics Expert Witness

    Dr. Neale Ashok Mahoney, Ph.D. is a Professor of Economics at Stanford University. He received a Ph.D. and M.A. in Economics from Stanford University. And he has taught economics courses at both Stanford University and the University of Chicago’s Booth School of Business.

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

    Discussion by the Court

    Mahoney’s report offered five opinions: First, Amazon’s Cancellation Survey provided a reliable basis to conclude that a significant number of Prime enrollees unintentionally enrolled in Amazon Prime. Second, unintentional enrollments in Amazon Prime through the at-issue “upsells” led to millions of dollars in harm. Third, a significant number of Prime customers who entered Amazon’s cancellation process did not complete the process and continued to pay Prime subscription fees to Amazon. Fourth, Prime benefit usage patterns showed that a significant number of Prime subscribers exited the cancellation process with the mistaken belief that they had cancelled their Prime subscription. Fifth, Prime subscribers who exited the cancellation process with the mistaken belief that they had cancelled their Prime subscriptions led to millions of dollars in harm. 

    Unintentional Enrollment Harm

    Defendants contended that Mahoney’s report is unreliable because it “assumes that the 99.998 percent of customers who intended to enroll in Prime nevertheless suffered some compensable harm because a very small fraction of other customers enrolled unintentionally.” But this argument is based on the misplaced premise that “[t]he FTC must prove its case by a preponderance of the evidence,” so only the 49 out of 2.7 million customers with a prediction score greater than 50 were likely harmed.

    Defendants next argued that “intent to subscribe is a binary choice; a consumer either meant to sign up or they did not.” Yet Defendants provided no evidence or caselaw to support this conclusory assertion.

    Defendants further criticized Mahoney’s analysis because he assumed “all subscribers who answered [the Amazon Cancellation Survey] by choosing ‘did not intend (DNI)’ are unintentional enrollments.” Even though Defendants have conjured up a hypothetical scenario where a subscriber might have selected DNI when they actually intended to sign up for Prime, that does not make Mahoney’s inference unreasonable.

    Defendants’ final argument is that Mahoney failed to consider the benefits that consumers gained from having a Prime subscription.

    Analysis

    However, Mahoney’s analysis logically advances the FTC’s argument that consumers were harmed by unintentional enrollment in Amazon Prime. This analysis will similarly help the factfinder determine facts that are in dispute. Mahoney also used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these techniques to facts of this case. As a result, the Court found that the FTC has met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional enrollment analysis is both relevant and reliable. The FTC has also met its burden of showing that Mahoney’s analysis is reliable even though it does not account for any potential benefits that a consumer gained from having a Prime subscription.

    Unintentional Cancellation Harm

    Defendants contended that Mahoney’s unintentional cancellation analysis is flawed too. They fault Mahoney for failing to failing to “separate lawful from unlawful conduct.” But the FTC alleged “all Prime subscriptions involve unlawful conduct as Amazon never had Restore Online Shoppers’ Confidence Act-compliant cancellation.” The hypothetical scenarios envisioned by Defendants did not render Mahoney’s analysis unreliable, nor did they show he cannot separate lawful from unlawful conduct. 

    Defendants’ final argument is that Mahoney’s unintentional cancellation analysis is unreliable because it failed to consider the benefits Prime subscribers received when they failed to cancel their memberships. This argument failed for the same reasons it failed for Mahoney’s unintentional enrollment analysis. The FTC alleged that the fraud was in Prime’s cancellation mechanisms, not the value of Prime. Thus, it was appropriate for Mahoney to include the full value of subscribers’ Prime subscription in his analysis.

    Much like his analysis of harm from unintentional enrollments, Mahoney’s unintentional cancellation analysis logically advances the FTC’s argument that consumers were harmed when they mistakenly believed they cancelled their Amazon Prime subscription. This analysis will also help the factfinder determine facts that are in dispute. Mahoney used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these technique to the facts of this case. As a result, the Court found the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation analysis is both relevant and reliable.

    Held

    The Court denied the Defendants’ motion to exclude Neale Mahoney’s testimony.

    Key Takeaway:

    Mahoney used techniques that enjoy wide acceptance in the field of economics and he showed that he appropriately applied these techniques to facts of this case.

    The Court found that the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation and enrollment analyses are both relevant and reliable.

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court for the Western District of Washington
    Order Date: August 22, 2025
  • Rehabilitation Expert’s Employability Report Partly Admitted

    Rehabilitation Expert’s Employability Report Partly Admitted

    Plaintiff Jean-Claude Franchitti brought retaliation claims against his former employers, Defendants Cognizant Technology Solutions Corp. and Cognizant Technology Solutions U.S. Corporation.

    More specifically, Franchitti alleged that Cognizant terminated his employment because he spoke out against the company’s unlawful efforts to eliminate experienced non-Indian employees in its workforce, questioned the legality of fraudulent visa applications the company was submitting to on behalf of Indian workers, and complained about discrimination.

    Cognizant retained Rona E. Wexler and Richard V. Turner as expert witnesses to testify about Franchitti’s efforts—or lack thereof—to obtain employment following his termination in 2016. Wexler and Turner coauthored a report (the “Wexler and Turner Report”) that presented their opinion that “Dr. Franchitti failed [to] perform[] a reasonably diligent job search since his separation from Cognizant.” 

    To rebut the opinions of Wexler and Turner, Franchitti proposed to call at trial Roberto J. Cavazos, who authored an “Expert Rebuttal Report” (the “Cavazos Report”) in response to the Wexler and Turner Report.

    Each side filed motions to exclude some or all of the testimony of the other side’s experts.

    Vocational Evaluation & Rehabilitation Expert Witnesses

    Rona E. Wexler, M.A., ADVE/D is the President and Founder of Wexler Vocational and Career Consulting LLC. She holds a B.A. in English and Education from Emerson College and an M.A. in Counseling Psychology and Guidance from New York University. She provides vocational/employability evaluations and expert witness services nationwide.

    With over two decades of experience as a Vocational Evaluator, Career Advisor, and Employability Expert, Wexler also brings 12 years of executive recruiting experience, having served as a principal/managing partner and director in two firms.

    Wexler is certified as a Diplomate (ABVE/D) by the American Board of Vocational Experts. She has served on the ABVE Board of Directors and chaired the committee responsible for overseeing the standards and credentialing process from 2015 to 2022.

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

    Richard V. Turner, Ph.D., CRC, IPEC is the Director of Research and Evaluations at Wexler Vocational and Career Consulting LLC. He holds a B.S. in Psychology with a minor in Biology from Kansas State University, an M.A. in Rehabilitation and Counselor Education from The University of Iowa, and a Ph.D. in Rehabilitation Counseling from Southern Illinois University Carbondale. Turner is a Certified Rehabilitation Counselor and received dual training in rehabilitation counseling and clinical mental health.

    Moreover, he has experience in integrated care settings providing rehabilitation and counseling services to individuals with serious mental illness, case management for individuals with disabilities, and vocational evaluation, with particular expertise in standardized testing and assessment.

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

    Economics Expert Witness

    Roberto J. Cavazos, Ph.D. is a professional economist with over 30 years of experience. He holds a bachelor’s degree, a Master of Public Administration, and a Ph.D. from the University of Texas. Basically, his work has focused on labor issues, including lost earnings in litigation matters, labor-management relations for global multinationals, and research and evaluation projects for the U.S. Department of Labor.

    He has served on the faculty of the University of Texas at San Antonio, Florida International University, and Carnegie Mellon University, where he taught graduate-level courses in economics and statistics. He is currently the Analytics Practice Lead at EmployStats, a research firm specializing in economic and statistical analysis for the legal, business, and governmental sectors, and also serves on the faculty of the University of North Texas School of Business.

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

    Discussion by the Court

    Franchitti’s Motion

    Rule 26

    To begin with, Franchitti argued that the co-authors Wexler and Turner report failed to comply with Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. That Rule requires an expert’s report to disclose “a complete statement of all opinions the witness will express and the basis and reasons for them.” Franchitti contended that the Wexler and Turner Report ran afoul of that requirement because it made no “distinction as to which opinions were attributable to which expert.”

    Allowing Cognizant to call both Wexler and Turner as experts would run afoul of Rule 403 of the Federal Rules of Evidence, which calls for exclusion of evidence “if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.” Accordingly, pursuant to Rule 403, the Court will permit Cognizant to call only Turner and will exclude Wexler from testifying.

    Since Franchitti is entitled to know whether all of the opinions in the Wexler and Turner Report represent the opinions of Cognizant’s testifying expert, Turner, Cognizant was directed to produce a copy of the report to Franchitti with any portions not adopted by Turner as his own struck through.

    Next, Franchitti argued that Turner should not be permitted to testify that Franchitti failed to conduct a “diligent” job search following his termination. The Court agreed. It would not be proper for [an expert] to testify as to whether [a Plaintiff’s] efforts to find comparable employment were ‘reasonable’ because this is an ultimate question . . . which is for the jury to decide. However, Turner may testify as to what a reasonable job search, in his experience, typically consists of, and how Franchitti’s job-search efforts compare.

    Qualification

    Also, Franchitti argued that Wexler and Turner’s opinion as to the amount of time it would have taken Franchitti to find comparable employment should be excluded. Specifically, Franchitti objected to Wexler and Turner’s conclusion that “if Franchitti had exercised a diligent, full-time job search of consistent and diverse activities, in four to six months he would have been hired in an Information Technology Management, Consulting, or similar role.”

    Franchitti complained that Wexler and Turner are neither qualified to offer this opinion, nor provide sufficient support for their conclusion. The Court disagreed. As to qualifications, the Court is satisfied that Turner’s professional experience — including prior expert-witness work — renders him sufficiently qualified to opine on the matter.

    And as to the reliability of Wexler and Turner’s opinion about the duration of a reasonable job search for someone in Franchitti’s position, the Court agreed that Wexler and Turner’s assessment is admissible.

    In short, Wexler and Turner’s use of general studies and their analysis of Franchitti’s age, skill set, labor market, actual job openings in his field, and unemployment rates, taken together, is sufficient. To the extent Franchitti believes otherwise, his remedy is “vigorous cross-examination” and “presentation of contrary evidence.”

    Cognizant’s Motion

    Cognizant sought to exclude the opinions of Cavazos. Applying the Daubert standard, the Court agreed with Cognizant that Cavazos is not qualified to rebut the employability report because he lacks the relevant expertise in recruiting and career counseling or in Franchitti’s industries — that is, information technology and consulting.

    Although Cavazos has a professional and educational background in economics, he has no experience working as a recruiter or career counselor, has neither taken nor taught courses on career counseling or job search efforts, and has never even provided advice on strategies for finding a new job.

    Cavazos’s closest experience to career coaching appears to be in his role as a university professor, “helping students try to get employment and giving them ideas.” However, this limited experience does not qualify him to offer opinions on Turner’s expert analysis of Franchitti’s job search.

    Held

    • The Court granted in part and denied in part Franchitti’s motion to preclude the testimony of Rona E. Wexler and Richard V. Turner.
    • The Court granted Cognizant’s motion to preclude the testimony of Roberto J. Cavazos.

    Key Takeaway:

    Where the co-authors reviewed the same materials and, working together, came to the same opinions and are both prepared to testify to all the opinions in the report, there is no reason why it would be inherently impermissible for them to file a joint report.

    On the other hand, Rule 26(a) may be implicated when it isn’t clear whether both experts adhere to all of the opinions in the report and they do not delineate which opinions belong to which expert so as to impede the opposing party’s preparation of effective cross-examination.

    Case Details:

    Case Caption: Franchitti V. Cognizant Technology Solutions Corporation Et Al
    Docket Number: 1:21cv2174
    Court Name: United States District Court, New York Southern
    Order Date: July 29, 2025
  • Economics Expert’s Testimony on Anti-Discounting Policies Admitted

    Economics Expert’s Testimony on Anti-Discounting Policies Admitted

    Plaintiffs sued Amazon.com, Inc., claiming that the company violated the Sherman Act. They contended that Amazon denied customers the “benefits of lower prices and fees” that would arise in a competitive market; and they said Amazon did so by imposing on third-party sellers “Most Favored Nation” policies that cause customers to pay supra-competitive prices. 

    Plaintiffs’ economics expert Dr. Parag A. Pathak, Ph.D. concluded that Amazon’s anti-discounting policies and practices collectively function as a Platform Most Favored Nation (PMFN) restraint.

    According to Pathak, Amazon is the largest online marketplace in the United States, with a market share of around 72% in the Online Retail Marketplaces Market. He added that Amazon’s conduct prevents price competition with other online retailers, which in turn allows Amazon to charge “monopoly referral fees—i.e., the price of connecting merchants and consumers to each other and completing the sales transaction between them.”

    Amazon filed a motion to exclude Pathak’s expert testimony.

    Economics Expert Witness

    Dr. Parag A. Pathak, Ph.D. is the Class of 1922 Professor of Economics at Massachusetts Institute of Technology. He is also a Research Associate at the National Bureau of Economic Research (NBER) and is the founding Director of the NBER’s working group on market design. 

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

    Discussion by the Court

    Pathak explained that microeconomic modeling shows that, “all else equal, a marketplace with market power (like Amazon) sets higher fees when merchants are constrained by an anti-discounting policy than when they are not.” He said that in this situation, “because merchants cannot discount prices, marketplaces have no reason to discount fees. Instead, the presence of the anti-discounting policy incentivizes the marketplace to increase fees.”

    The company challenged Pathak’s methodology, arguing that (1) the model Pathak used is not generally accepted in the field of economics; (2) the model has an extraordinary error rate; (3) the model rests upon unreliable and unfounded assumptions; and (4) the model ignores heterogeneity in sellers’ business strategies. Amazon also contended that Pathak’s regression analyses are unreliable because the data sample is too small, and that his regressions do not show a relationship between fees and prices.

    General Acceptance of Economic Model

    Amazon contended that Pathak’s methodology, derived from a 2016 paper by Andre Boik and Kenneth S. Corts, is unreliable because the model used is not widely accepted in the field of economics.

    The company asserted that there are no standards for applying the model beyond simplified assumptions and it does not reflect a generally accepted consensus in the field of economics. 

    The Court held that Pathak’s application of the Boik-Corts model to Amazon’s transactional data did not render his opinion unreliable. After all, Amazon did not point the Court to any economic literature describing flaws or errors in the model. 

    Moreover, Amazon’s contention that Pathak improperly extended the Boik-Corts model to the facts of this case is unavailing. Pathak said that he applied the Boik-Corts model to transactional data provided by Amazon to assess the impact of the company’s anti-discounting policies. He analyzed about 236 million individual items sold on Amazon from May 2017 to July 2023 across 30 different categories.

    In sum, Pathak took a peer-reviewed economic model and applied that model to transactional data provided by Amazon.

    Error Rate

    Amazon asserted that Pathak’s model has a 100% false positive rate because it always concludes that a PMFN is inflating all fees and prices even when analyzing data when no PMFN was in effect.

    In his rebuttal report, Pathak explained that the Boiks-Corts model “is not a test of whether a PMFN exists, and it does not return ‘positive’ or ‘negative’ results.”

    Pathak stated that he reviewed the record, and the facts supported his conclusion that Amazon’s anti-discounting policies constituted a class-wide PMFN.  In his report, Pathak explained the facts that lead him to reach this conclusion.

    That Pathak’s model assumed the existence of a PMFN did not automatically render it unreliable. The Court held that Pathak reviewed the facts and explained his basis for concluding that Amazon’s anti-discounting policies act as a PMFN. Thus, Amazon’s argument did not show that the economic model Pathak used is unreliable. 

    The Model’s Underlying Assumptions

    Amazon asserted that Pathak “assumes without justification” that Amazon’s policies and practices constitute a PMFN. Amazon added that Pathak’s opinion of class-wide injury and damages contains too many assumptions and was not supported by real-world evidence. 

    Pathak evaluated (1) the Price Parity Clause, (2) the Select Competitor Featured Offer Disqualification program, (3) the Marketplace Fair Pricing Provision, (4) Amazon’s Standard for Brands, and (5) the Seller Code of Conduct. He discussed these policies, described how Amazon enforced them, and assessed their impact on merchant and consumer conduct.

    The Court held that Amazon’s contention—that Pathak’s model was unreliable because its underlying assumptions did not reflect reality—was unpersuasive.

    Heterogeneity in Sellers’ Business Practices

    Amazon contended that Pathak’s methodology did not account for “focal point” pricing—i.e., a practice in which sellers commonly set prices ending with certain values such as $0.99. 

    Focal point pricing occurs when retailers set prices at “focal points,” such as prices ending in 99 cents or a round number. 

    Pathak made it clear in his rebuttal report that “The possibility of focal point pricing behavior does not affect [his] conclusion that all or virtually all class members were harmed by the conduct. This is because virtually all class members made enough purchases to have overpaid on at least one of them, even if they were not harmed on purchases of focally-priced items of merchandise.”

    Thus, Pathak accounts for focal point pricing and reasonably explains why focal point pricing does not impact his determinations.

    Reliability of Pathak’s Regressions Analyses

    Amazon contended that Pathak’s regression analyses are unreliable because they rely on a small, unrepresentative data sample.

    Pathak studied how Amazon’s fees affected merchandise prices by analyzing price changes following Amazon’s partial fee reduction in 2019 for four product categories: Baby, Health & Personal Care, Beauty, and Furniture. He stated that the results from his analyses confirmed the model’s predictions: lower fees lead to lower prices. He used a difference-in-difference econometric model to compare the prices of individual goods sold on Amazon to other online marketplaces like Walmart. Pathak said that his analysis “supplements and supports the findings of the economic model.”

    In 2019, Amazon lowered its fees in four categories of products: Baby, Health & Personal Care, Beauty, and Furniture. Pathak said that this change applied to a subset of goods within these categories. He explained that he analyzed these fee changes, separately and collectively, to empirically assess whether the change in fees had an impact on product pricing.

    In his rebuttal report, Pathak emphasized that he did not “cherry-pick subsets of the data.” He said that he “analyzed all available prices in every category where a fee reduction occurred.” 

    Moreover, whether the results are statistically significant is testable. Pathak noted that he tested for statistical significance using measures such as the t-statistic. There is nothing to suggest that Pathak selected the data in a biased manner; instead, he appears to have analyzed all the data available to him. Moreover, the Court held that Pathak performed these regression analyses on available empirical data to corroborate the conclusion of his economic modeling.

    Held

    The Court denied Amazon’s motion to exclude testimony of Dr. Parag A. Pathak, Ph.D.

    Key Takeaway:

    The Daubert inquiry is flexible, and the listed factors do not apply equally to every type of expert testimony. Here, Pathak’s conclusions are capable of being tested. And his opinions “are supported by rational explanations which [a] reasonable [person] might accept, and none of his methods strike the court as novel or extreme.” 

    Case Details:

    Case Caption: De Coster Et Al V. Amazon.Com Inc
    Docket Number: 2:21cv693
    Court Name: United States District Court, Washington Western
    Order Date: July 01, 2025
  • Economics Expert’s Lack of Specialized Credentials Did Not Provide a Basis for Exclusion

    Economics Expert’s Lack of Specialized Credentials Did Not Provide a Basis for Exclusion

    Plaintiff Michael Ruiz (“Ruiz”) is suing his former employer, Defendant Magellan Financial & Insurance Services (“Magellan”), under the theory that his alleged demotion and subsequent termination were due to his race and national origin and that he was also subjected to a hostile work environment.

    Ruiz retained an expert, Michael J. Stokes (“Stokes”) of Beta Business Consulting LLC (“Beta”), to calculate the net present value of his lost wages and benefits. Magellan, however, filed a motion to exclude the expert testimony of Stokes.

    Economics Expert Witness

    Michael J. Stokes earned an MBA from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He has been employed as a litigation-related economic expert for 6 years at Beta Consulting.

    Want to know more about the challenges Michael J. Stokes has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Qualifications

    Magellan argued that Stokes is unqualified because “his financial or accounting training concerned issues related to capital and corporate investment, and no other topics” and “he has no other certifications or licenses, and no publication history.”

    Analysis

    The Court held that Stokes is qualified to offer opinions about the net present value of Ruiz’s purportedly lost wages and benefits. First, Stokes’ opinions are “within the reasonable confines of his subject area.” Stokes holds an MBA from the University of Massachusetts, where he took classes on management, supply-chain management, entrepreneurship, finance, and basic economics. 

    As for the “finance and accounting” portion of his studies, Stokes studied “[a]nything from investment to just looking at capital investment, corporate investment.” These areas of study appear to encompass the opinions set forth in the report. Although Magellan may be correct that Stokes’ credentials are not highly specialized, the absence of specialization goes to the weight of Stokes’ testimony and did not provide a basis for exclusion.

    Second, Stokes’ experience also forms part of the basis for his qualification to testify as an expert. Stokes is an “economic analyst” for Beta, where he has worked since 2018, and is now the full owner of the company. Before assuming ownership, Stokes was trained by the founder and previous owner, Larry Stokes (his father), who has a Ph.D. in economics.  In addition to being trained and advised by his father, Stokes “occasionally reviews” trainings from the National Association of Forensic Economics (“NAFE”), a standards-setting association for forensic economists of which he is a member. 

    Relevance

    Magellan next argued that Stokes’ testimony is not relevant because it does not consider the relevant factors in an economic damages calculation “such as back pay or mitigation” and only “seeks to estimate what [Ruiz] might have earned from Magellan had he not been terminated.”

    Analysis

    Stokes’ report purported to calculate the net present value—$3,729,078—of the wages and benefits Ruiz would have earned had he remained employed by Magellan until his retirement. Although this figure likely overstated Ruiz’s economic damages, as it made no attempt to account for offsets and mitigation, it was still at least one piece of the puzzle.

    Magellan contended that even if relevant, Stokes’ testimony would be confusing, misleading, and/or prejudicial because Ruiz “claimed that Stokes’ calculation represents his damages.” In essence, Magellan argued that a jury would be confused by the difference between Stokes’ economic earnings projection and “economic damages,” which are calculated by incorporating a variety of figures, including mitigation. The problem with this argument is that although Ruiz has at times during this case appeared to characterize the report as showing his economic “damages,” the report itself did not purport to calculate Ruiz’s litigation damages and Stokes did not suggest as much in his deposition. In fact, he clearly stated the opposite.

    Moreover, Ruiz clarified in his response brief that the report did not purport to establish his damages and will simply “be helpful to the jury to determine [Ruiz’s] damages.”

    As a result, the Court will not categorically exclude Stokes’ opinions before trial based on Rule 403.

    Reliability

    Magellan’s final argument for exclusion is that “Stokes’ opinion is not reliable because it did not comply with his own assumptions.” Specifically, Magellan contended that Stokes “assumed that generally an employee’s earnings peak mid-career, and then ‘tend to’ decline toward the end of the employee’s working life.” The opinion that Stokes offered, however, assumed that [Ruiz’s] earnings would continue to increase through the end of his working life.

    Analysis

    The Court held that Magellan’s reliability-based arguments did not provide a basis for exclusion because the report is based on clear and accessible data, including Ruiz’s responses to a questionnaire, Ruiz’s W-2s from 2018-2023, publicly available government data, and scholarly research—all of which Stokes disclosed throughout the report. 

    In each section of the report, Stokes also explained his methodological approach. By disclosing his methodology and the data on which his analysis relies, Stokes’ calculations may be retested, refined, and challenged. This ability to be tested—also known as falsifiability—is a hallmark of the scientific method and a factor that courts may consider in testing for reliability.

    Additionally, the Court is sufficiently convinced that Stokes’ methods are “generally accepted in the scientific community.” The record indicated that Stokes devised his methods in compliance with NAFE, a professional standards-setting organization for forensic economists.

    Magellan argued that Stokes’ approach is unreliable because he failed to adhere to his own assumption by not lowering Ruiz’s projected wages closer to retirement. However, Stokes merely stated that a late-career decrease in earnings “often tends” to occur but that this tendency “is affected by a worker’s age, sex and level of educational attainment.” Given these caveats and qualifications, there was nothing inherently contradictory and unreliable in Stokes’ decision to assume that Ruiz’s earnings would not decrease over time. 

    For the same reasons, exclusion is not warranted based on Magellan’s contention that Stokes relied on other “unreliable assumptions.” As an initial matter, Stokes’ decision to use industry averages of similarly situated persons to quantify Ruiz’s projected health and retirement benefits, instead of basing the calculation on Ruiz’s actual health and retirement benefits, is not clearly unreliable. Magellan offered no authority suggesting that such an assumption is per se unreliable.

    Held

    The Court denied Magellan’s motion to exclude the testimony of Plaintiff’s expert Michael J. Stokes.

    Key Takeaway:

    Although an expert’s “failure to follow his own general practice” is a methodological flaw that may provide a basis for exclusion, the Court is not persuaded that Stokes engaged in such a failure here. Stokes merely stated that a late-career decrease in earnings “often tends” to occur but that this tendency “is affected by a worker’s age, sex and level of educational attainment.”

    Case Details:

    Case Caption: Ruiz V. Magellan Financial & Insurance Services
    Docket Number: 2:23cv2090
    Court Name: United States District Court, Arizona
    Order Date: July 10, 2025
  • Economics Expert’s Opinion on Lost Household Services Excluded

    Economics Expert’s Opinion on Lost Household Services Excluded

    The current dispute arises from a motor vehicle accident that occurred on October 26, 2022. While Plaintiff Altagrace Exume was following behind a tractor-trailer driven by Defendant Alexys Figueredo, a spare tire fell from the truck and struck Plaintiff’s vehicle. Plaintiff allegedly suffered injuries as a result of the collision. Plaintiff alleged that Defendant United Cargo Logistics, LLC (“UCL”) is liable for Plaintiff’s injuries under a variety of negligence and vicarious liability theories.

    UCL filed a motion to strike Plaintiff’s expert economist, Roberto Cavazos, arguing that his opinion was unreliable, speculative, and unsupported by the evidence.

    Economics Expert Witness

    Roberto Cavazos is a professional economist with over 30 years of experience. He holds a BA, MPA and PhD from the University of Texas. Cavazos has worked on labor issues including lost earnings litigation matters, labor management relations for global multinationals and research and evaluation for the U.S. Department of Labor. He has been a faculty member of The University of Texas at San Antonio, Florida International University and Carnegie Mellon University where he taught graduate level economics and statistics.

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

    Discussion by the Court

    Continuance Until Cavazos is Deposed

    Plaintiff urged the Court to postpone consideration of UCL’s Motion until after UCL deposes Cavazos. Discovery closed on March 20, 2025. Neither party has alerted the Court that Cavazos was deposed, even though months have passed since the filing of UCL’s motion. Thus, the Court found that ample time has passed, and it should rule on the instant motion.

    While the deposition of an expert witness is undoubtedly best practice and helpful to the Court when evaluating a Daubert challenge, a deposition is not required before a party moves to exclude the testimony.

    While UCL had the right to depose Cavazos to explore his opinions and chose not to do so, the right to depose an expert does not extinguish Plaintiff’s obligation to comply with Rule 26 and Daubert.

    Plaintiff has cited no binding authority for the proposition that an expert must be deposed before this Court can rule on UCL’s motion to strike. Further, UCL is correct that Rule 26 requires a complete statement of all opinions the expert will express, the basis for them, and the facts and data considered by the expert in forming those opinions.

    Cavazos’ Expert Report

    Cavazos’ general methodology to calculate lost wages and earning capacity is simple. First, he made his conclusion that Plaintiff will lose $15,000 per year in wages for the rest of her working life due to her injuries. Next, he estimated that Plaintiff has sixteen remaining years for her work. After determining Plaintiff’s remaining work life based on a single source, he then applied a corresponding annual increase to the $15,000 of 3.5% for inflation and annual present value of discount of 4.527%.

    Notably, Cavazos concluded, with no factual support, that Plaintiff’s lost wages will remain constant, meaning that he concluded that Plaintiff’s injury is permanent and will affect her earning capacity for the rest of her life. He then concluded that Plaintiff has suffered $248,219 in past and future lost wages and earning capacity.

    Cavazos provided a similar analysis for loss of household services. First, he concluded that prior to her injury, Plaintiff spent approximately 2.89 hours per day on various household services. His basis for this conclusion is a “survey” presumably conducted after Plaintiff’s accident . Additionally, Cavazos concludes that Plaintiff can only perform 50% of these household services for the rest of her life, due to her injury. He then states that Plaintiff will perform those services until her actuarial projected death, which is projected to be at the age of seventy-eight. After collecting the underlying conclusions, he then applies the same annual inflation and present value discount multipliers to conclude that Plaintiff has suffered a total of $395,294 in past and future loss of household services. To conclude his report, he adds all of Plaintiff’s economic damages together for a grand total of $643,513.

    Lost Wages and Earning Capacity

    Cavazos’ expert report has serious gaps in reasoning that make his opinion about the Plaintiff’s lost wages and reduced earning capacity unreliable. His main conclusion is that the Plaintiff will lose about $15,000 per year. To support this, he says he relied on an interview with the Plaintiff conducted on July 23, 2024. However, the report merely referenced the interview without explaining why she would lose that specific amount or even stating what her job is.

    Moreover, his report did not mention the nature of the Plaintiff’s injury, how it has affected her ability to work, how long she may be unable to work fully, or whether he consulted a vocational expert for a more thorough evaluation.

    The Court could reasonably find Cavazos’ opinion unreliable for these reasons alone.

    Social Security Earnings Statement

    Moreover, Cavazos’ opinion is wholly inconsistent with the evidence on the record. Three pay stubs from 2024 and Plaintiff’s Social Security Earnings Statement supported Cavazos’ claim that Plaintiff will lose $15,000 per year. However, the Social Security Earnings Statement shows earnings before her injury at $70,816 for 2020 and $64,855 for 2021. In 2022 (the year of her injury) she earned $69,330. In 2023 (the year after her injury) she earned $61,169. Thus, even using the highest amount Plaintiff earned in the period of 2020–2023, Plaintiff’s maximum earning was $70,816 and her lowest earnings after the injury was $61,189. That leaves a difference of $9,647, which is nowhere near the claimed $15,000 per year.

    Pay Stubs

    Likewise, Plaintiff’s pay stubs from 2024 showed a similar problem. The three pay stubs are for March 15, March 29, and April 26. The pay stubs showed that Plaintiff was paid on a biweekly basis. Averaging the three together yields an average biweekly pay of $2,599.37. Thus, simple math shows that Plaintiff’s yearly salary for 2024 based on the average biweekly pay would be $67,583.71. The difference between Plaintiff’s yearly earnings for 2020 and the approximate amount for 2024 is only $2,602.29.

    Assuming that Plaintiff was paid in accordance with the records she provided, her “lost” earnings are miles away from the claim of $15,000. Problematically, Cavazos did not explain how Plaintiff’s claim of losing $15,000 per year is consistent with any of her prior financial earnings. He concluded, with no analysis or discussion, that Plaintiff’s losses are what she claims, even when all of the documentary evidence suggests a contrary conclusion.

    The Court held that the largest gap in Cavazos’ analysis is his glaring assumption that Plaintiff’s injury, whatever it may be, will remain constant as a permanent disability for the remainder of her life. In short, Cavazos’ entire opinion is based on his own ipse dixit that Plaintiff will lose $15,000 per year and that her injury is permanent.

    Loss of Household Services

    In determining household services Cavazos again assumed that Plaintiff will be permanently disabled by assuming that her injury will decrease her ability to perform household services by 50% for the rest of her life. He stated that Plaintiff is projected to live until the age of seventy-eight. In performing his calculations, he states that Plaintiff will only be able to perform 50% of the household services she used to perform based on her injury.

    His chart showed that the amount of time she can dedicate to those tasks will remain constant for the remainder of her life. Yet, as with lost wages and earning capacity, the Court held that there is no evidence to support that her injury is permanent and will hinder her from performing household services for the remainder of her life, nor of the factual basis to determine the amount of time Plaintiff spends on the daily household services.

    For conclusions vital to the reliability of his opinion, he relied on an interview with Plaintiff. As far as the Court can tell, the interview consisted of two questions: (1) how much money do you expect to lose each year, and (2) what percentage of your household services can you no longer perform.

    Held

    The Court granted the Defendant United Cargo Logistics, LLC’s motion to exclude the testimony of Roberto Cavazos.

    Key Takeaway:

    Cavazos appeared to have accepted the Plaintiff’s claim at face value, basing his entire analysis on her unverified statement that she would lose $15,000 annually. While experts may consider what a party tells them, they are still required to conduct their own independent analysis. In this case, Cavazos failed to do so and instead relied solely on the Plaintiff’s word.

    Expert testimony is never appropriate when the witness merely synthesizes a party’s trial arguments and presents them as an expert opinion. Here, Cavazos relies upon an unsupported conclusion that Plaintiff is permanently disabled.

    Case Details:

    Case Caption: Altagrace Exume V. United Cargo Logistics, LLC, Et Al
    Docket Number: 4:24cv205
    Court Name: United States District Court, Texas Eastern
    Order Date: June 16, 2025