Expert Witness Profiler

Category: Economics Expert Witness

  • Psychology Expert Witness’ Supplemental Report on Complex PTSD Struck as Untimely

    Psychology Expert Witness’ Supplemental Report on Complex PTSD Struck as Untimely

    Plaintiff Arthur Williams (“Plaintiff”) filed this action against Defendants East Meadow Union Free School District, Matthew Melnick, Scott Eckers, Alisa Baroukh, Eileen Napolitano, Joseph Parisi, Marcee Rubenstein, Melissa Tell, Dr. Kenneth Card, and Dr. Patrick Pizzo (collectively, “Defendants”), alleging discrimination based on race, color, and age, as well as a hostile work environment and retaliatory actions.

    The Plaintiff, a former employee of East Meadow Union Free School District, alleged that the Defendants discriminated against him based on his race and age and created a hostile work environment during his employment. In 2016 Defendant Patrick Pizzo, District Assistant Superintendent for Business and Finance, encouraged Plaintiff to apply for a position as Assistant to the Superintendent for Administration and Special Projects, for which he was subsequently hired. Despite his superior performance in that role, Plaintiff claimed that he was treated differently than his white counterparts and was subjected to excessive scrutiny and performance evaluations.

    Following the Superintendent’s retirement, Pizzo made discriminatory comments on account of Plaintiff’s age and race and such conduct worsened upon Plaintiff attempting to report the conduct. Pizzo placed Plaintiff on a performance improvement plan, and ultimately Pizzo terminated Plaintiff from his position. 

    Discovery deadlines were extended numerous times for a host of reasons throughout the protracted history of this case. Following a status conference on July 10, 2024, the dates were extended so that expert in chief reports were due no later than July 15, 2024, rebuttal reports were due no later than September 11, 2024, and the end date of all expert discovery was October 2, 2024. The parties were forewarned that “[t]his will be the final extension of discovery dates and deadlines.” 

    Final Discovery Deadline Violation

    Dr. Michael J. Vernarelli, Plaintiff’s forensic economist expert submitted his initial report on August 16, 2022, and, following his deposition, produced his supplemental report on October 14, 2024. Similarly, Dr. Darlene Powell Garlington , a clinical psychologist, submitted her initial report on July 12, 2024, was deposed by Defendants on October 2, 2024, and then submitted a supplemental report on November 6, 2024. It should be noted that both expert reports were served after the final discovery deadline.

    Defendants filed a motion to strike both supplemental reports under Federal Rule of Civil Procedure 37, claiming they were not only untimely but also went beyond the permissible scope of supplemental reports. Plaintiff filed timely opposition to the motion on December 23, 2024.

    Economics Expert Witness

    Michael J. Vernarelli is a forensic economist and a noted academic. He has significant experience consulting with Plaintiff and Defense attorneys, performing appraisals of loss of lifetime earnings and economic value in
    cases of wrongful death, personal injury, age discrimination, and equitable distribution in addition to providing expert testimony.

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

    Psychology Expert Witness

    Darlene Garlington is a nationally-recognized, licensed clinical psychologist, certified school psychologist, and media psychologist. She is a renowned author of eleven books which focus primarily on building resilience, parenting, family dynamics, spirituality, multiculturalism, co-parenting, male-female relationships and diversity.

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

    Discussion by the Court

    The Vernarelli Reports:

    Vernarelli’s initial and supplemental reports were prepared to calculate the lost back pay and front pay for Plaintiff as a result of his allegedly wrongful termination.

    On October 14, 2024, Vernarelli amended his initial report, which he had submitted on August 16, 2022. In his amended expert disclosure, Vernarelli explained that during his deposition, he realized that he needed to deduct Plaintiff’s Social Security benefits as mitigating income for both lost back pay and lost front pay through Plaintiff’s projected retirement date. He admitted to making a “big oversight” and discovered “an error” in not taking into account these benefits in calculating either back pay or front pay. Vernarelli acknowledged that his calculation method was flawed because he did not account for the fact that this is a civil rights/discrimination case and not a personal injury case where social security benefits ordinarily are not an offset until post-verdict.

    Moreover, Vernarelli failed to, but now admits he needed to, account for the higher Social Security benefits Plaintiff would receive upon turning 70—his projected age of retirement. As Vernarelli stated, this meant Plaintiff’s pre-retirement damages should be lower while his post-retirement damages should be higher. Indeed, Vernarelli initially concluded Plaintiff was entitled to lost earnings (back and front pay) of $892,308 and lost pension benefits (front pay) of $296,475. Conversely, in his amended report, after taking into account the Social Security benefits, Vernarelli determined Plaintiff’s lost earnings (back and front pay) should be $702,848 while his lost pension benefits (front pay) should be $545,192, thereby increasing the total damage assessment by $59,257.00.

    The Garlington Reports:

    Garlington’s initial report, submitted on July 12, 2024, was based on a psychological assessment of Plaintiff’s mental and emotional well-being. In this report, Garlington concluded that Plaintiff suffered from Post-Traumatic Stress Disorder (PTSD) with co-occurring depression and anxiety, referencing bouts of low confidence and cognitive difficulties like inability to focus or recall events. Garlington added that PTSD is a “disease of non-recovery,” and concluded that symptoms “do not dissipate or become manageable to be able to function as the individual did prior to the trauma.” 

    On November 6, 2024, Garlington submitted an amended report after reviewing additional medical records provided by Plaintiff. These records included findings from Dr. Abraham Glasman, a neurologist who began treating Plaintiff in 2022, and Dr. Christine Weber, who conducted a neuropsychological consultation with Plaintiff in August 2022. Glasman diagnosed Plaintiff with “mild cognitive impairment,”  and eventually updated it to “dementia with unspecified severity without behavioral disturbance, psychotic disturbance, mood disturbance and anxiety.” Weber diagnosed Plaintiff with “unspecified dementia with behavioral disturbance” after noting a slow and continuous progression of cognitive decline and corresponding symptoms.

    Garlington concluded that Plaintiff had developed Complex PTSD (CPTSD), which she attributed to the ongoing nature of his traumatic experiences.

    The Parties’ Arguments

    Argument by Defendant

    Defendants argued that both the supplemental reports should be struck due to their untimeliness. This case is in the Daubert and summary judgment briefing stage, thus reopening discovery on these experts’ new information would prejudice Defendants through increased costs and delays. Moreover, Vernarelli had ample  opportunity to “update and revise” his initial findings as he had access to Plaintiff’s financial information for calculating damages, specifically Social Security damages, yet has failed to indicate why he did not revise his initial report sooner. Furthermore, Defendants posited that Vernarelli “significantly altered his prior damages assessment” by lowering Plaintiff’s pre-retirement damages while increasing post-retirement damages. 

    With respect to Garlington, Defendants argued that she “drastically revised” her conclusions after reviewing Plaintiff’s prior medical and psychological treatment records. In other words, her supplemental report introduced entirely new theories on which Defendants have had no discovery at all. With the new diagnosis, Defendants claimed that the scope of the first report expanded and is now inconsistent with the initial report.

    Argument by Plaintiff

    Plaintiff contended that the supplemental reports were a direct result of information raised at the experts’ respective depositions, ones scheduled for the last and second to last day of expert discovery.

    Plaintiff specifically argued that Vernarelli’s supplemental report was in direct response to his realization during his deposition that his Social Security calculation was “not fully accurate.” Moreover, as alleged, his initial report did not account for the higher Social Security benefits Plaintiff would have received upon retirement at 70 years old. Such a drastic change in damages, as Plaintiff contends, “is a reflection of the accurate calculations.” Similarly, as argued, Garlington amended her report to provide a “fair and accurate depiction of Plaintiff’s psychological state” after learning, during her deposition, of prior medical reports diagnosing Plaintiff with dementia. 

    Analysis

    Courts “will not admit supplemental expert evidence following the close of discovery when it expounds a wholly new and complex approach designed to fill a significant and logical gap in the first report.” To allow such new evidence to be presented would undermine the purpose of the discovery rules, circumvent the discovery schedule that was ordered by the Court, and prejudice a Plaintiff. 

    a. Vernarelli’s Report

    Vernarelli, though his amended report sought to clarify an “inaccurate” calculation, nothing in the record indicates that the Social Security damages were “unknown or unavailable” to him. In fact, Vernarelli had access to all of Plaintiff’s financial information, including Social Security damages, when he formed his initial report. Additionally, Plaintiff sought to submit Vernarelli’s supplemental report in order to correct his flawed approach to his damages calculation. At bottom, the Court held that Vernarelli’s inaccurate damages calculation resulted from his utilization of a damages calculation tailored towards personal injury cases, not civil rights or discrimination cases. Having chosen to utilize an incorrect methodology in calculating damages, as Vernarelli has done here, does not warrant admitting a supplemental report aimed at correcting that flawed method. 

    b. Garlington’s Report

     Garlington offered several new diagnoses in her amended report, like CPTSD and dementia, that stretched far beyond the scope of her conclusions enunciated in her initial report. The Court held that Garlington’s supplemental report offers new medical opinions and conclusions, rather than clarifying or elucidating the conclusions in her original report.

    In considering whether to preclude supplemental experts reports under Federal Rule 37(c)(1), courts, in exercising their discretion, usually consider the following four factors: 

    1. The Party’s Explanation for the Delay in Advancing the New Evidence
    2. Importance of the Precluded Evidence
    3. Prejudice Suffered by the Opposing Party
    4. Possibility of a Continuance

    i. The Party’s Explanation for the Delay in Advancing the New Evidence

    In conclusory fashion, Plaintiff stated that Vernarelli realized the Social Security benefits needed to be deducted and that he did not take them into account despite the fact that Vernarelli had access to this financial information when he formed his initial report. As to Garlington, it is argued that she did not know about the other expert’s reports before she was deposed, namely because Plaintiff allegedly withheld medical information from her. The Court noted that Garlington had numerous opportunities to ascertain this information as the discovery schedule was extended at several different points during this almost four-year litigation.

    Plaintiff offered nothing to the Court explaining why Garlington could not obtain this new evidence before examining Plaintiff herself, or why Vernarelli did not account for Social Security damages in his initial report before discovery closed.

    ii.  Importance of the Precluded Evidence

    The reports were important as each were crucial to different elements of Plaintiff’s damages. The Court recognized that evidence affecting even a relatively small portion of total damages could be sufficiently important to weigh against preclusion which is why this factor favors admitting Vernarelli’s report. Moreover, relevant to Garlington, previously conducted medical examinations and subsequent findings were important because they formed the basis for a change in diagnosis.

    iii. Prejudice Suffered by the Opposing Party

    The case was approaching four years since its commencement on June 11, 2021. Allowing these supplemental reports would necessitate reopening expert discovery, potentially leading to further depositions, reports, and motion practice, thereby resulting in increased time and resources to an already lengthy litigation nearing its end. The Court found this factor heavily favored preclusion keeping in mind the purported prejudice Defendants stood to suffer.

    iv. Possibility of a Continuance

    The Court held that a continuance was not appropriate as the case has been ongoing for almost four years, other discovery motions have been filed in addition to the current motion to strike, and discovery deadlines, particularly as to experts, have been continuously extended.

    In sum, the Court excluded the supplemental reports offered by Vernarelli and Garlington.

    Held

    The Court granted Defendants’ motion to strike the supplemental expert reports of Michael J. Vernarelli and Darlene Powell Garlington.

    Key Takeaway:

    Vernarelli noted that his calculation method was wrong because he did not account for the fact that this is a civil rights/discrimination case and not a personal injury case where social security benefits ordinarily are not an offset until post-verdict. Similarly, Garlington’s revised report, which introduced new diagnoses of CPTSD and dementia, was deemed improper because it went beyond her initial psychological findings. The Court applied a four-factor test, considering the delay in submitting the reports, their importance to Plaintiff’s damages, the prejudice to Defendants, and the unavailability of a continuance. Ultimately, the Court ruled that allowing the reports would unfairly extend the litigation, increase costs, and introduce new, unvetted theories, thereby prejudicing the Defendants.

    Case Details:

    Case Caption: Williams vs. East Meadow Union Free School District Et Al
    Docket Number: 2:21cv3310
    Court: United States District Court for the Eastern District of New York
    Order Date: January 16, 2025
  • Claimants’ Arguments Address the Weight of the Government’s Experts’ Statements

    Claimants’ Arguments Address the Weight of the Government’s Experts’ Statements

    On March 2, 2022, President Biden instructed the Department of Justice (“DOJ”) to seize the assets of wealthy Russians as part of his administration’s response to the Russian operations in Ukraine. Specifically, the Government sought forfeiture of the M/Y Amadea, International Maritime Organization (“IMO”) No. 1012531, including all fixtures, fittings, manuals, stocks, stores, inventories, and each lifeboat, tender, and other appurtenance thereto (the “Amadea”).

    Eduard Yurievich Khudainatov commissioned the building of the Amadea in or about 2012. Khudainatov put the Amadea on the market in 2018, but due to its unique style and the Covid pandemic, it never sold. In addition, Khudainatov received and rejected offers to buy the Amadea at prices he considered too low. In a civil in rem forfeiture action, the moving party—here, the government—has the burden of proof to show why the Court should order the property sold.

    The government retained Captain Sean P. Meagher to opine on the M/Y Amadea and practices aboard the Amadea while Anders Åslund was engaged to shed light on the “the estimated historical and current net worth of Russian businessman Eduard Khudainatov and the business activities that generated his wealth.”

    Eduard Khudainatov and Millemarin Investments, Ltd. (collectively, ‘Claimants’) sought to exclude the testimony of Anders Åslund and Sean P. Meagher. Claimants put forth arguments attacking, inter alia, the experts’ qualifications, the evidentiary basis for their opinions, and the propriety and usefulness of those opinions.

    Economics Expert Witness

    Anders Åslund is a leading specialist on Eastern European economies, especially Russia and Ukraine. He was a Professor of International Economics and the founding Director of the Stockholm Institute of Transition Economics at the Stockholm School of Economics from 1989-94.

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

    Maritime Expert Witness

    Sean P. Meagher is a managing partner of Marinus Vectors, a company founded by senior professionals in maritime, intelligence, special operations, and international industries. He attended the Naval honors school Tabor Academy, pursued his undergraduate studies at the University of Massachusetts Boston, and continued his education at Massachusetts Maritime Academy.

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

    Discussion by the Court

    Here, Claimants asked this Court to perform its “gatekeeping role,” by excluding the Government’s experts’ testimony. However, upon careful review of Claimants’ submissions, the Court found that Claimants’ arguments go to the weight, and not the admissibility, of the Government’s experts’ statements. 

    To the extent that Claimants wish to challenge the reliability of the Government’s experts, the Court held that they may do so via, inter alia, “vigorous cross-examination” and by “presenting contrary evidence.”

    The proceeding for which Claimants sought to exclude these experts’ testimony is an evidentiary hearing to resolve the Government’s motion to strike for lack of standing. In this proceeding, the Court will be the factfinder; there is no jury. It is well established that, in such a proceeding, the trial court’s gatekeeping role is relaxed, and expert evidence should generally be admitted subject to a later finding by the Court that the evidence is not reliable under Rule 702. 

    At this point, however, the Court will reserve judgment on the substance of the arguments raised in Claimants’ motions in limine with respect to the Government’s experts.

    Held

    The Court denied without prejudice Claimants’ motions in limine with respect to Anders Åslund and Sean Meagher.

    Key Takeaway: 

    Disagreements over the strength of an expert’s credentials, faults in the expert’s methodology, or the “lack of textual authority” for the expert’s opinion, “go to the weight, not the admissibility, of his testimony.” Claimants make arguments of this nature in their motions in limine. And such arguments are not enough to overcome the fact that the Government’s experts’ testimony facially meets the criteria outlined in Rule 702. 

    Case Details:

    Case Caption: United States V. Amadea
    Docket Number: 1:23cv9304
    Court: United States District Court, New York Southern
    Order Date: January 15, 2025
  • Court Admits Economics Expert Witness’ Analysis of Plaintiff’s Postinjury Economic Capacity in the Absence of the Incident

    Court Admits Economics Expert Witness’ Analysis of Plaintiff’s Postinjury Economic Capacity in the Absence of the Incident

    The present lawsuit involves a tort dispute arising from an incident in which Andrés González-Pérez (“Plaintiff” or “González”) was allegedly injured after he fell from a poorly maintained ladder that provided access to a vessel owned and operated by Harley Marine Financing LLC (“HMF”) and Harley Marine NY, Inc. (“HMNY,” collectively “Defendants” or “Harley Marine”).

    In the course of the legal proceedings, the Defendants filed the following three motions:

    1. Motion to exclude portions of the Life Care Plan prepared by the Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez.
    2.  Motion to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin.
    3. Motion to exclude the testimony of the Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes.
    Economics Expert Witness

    Physical Medicine Expert Witness

    Gloydian Cruz-Gomez is a Physical Medicine & Rehabilitation and Pain Medicine specialist who has practiced medicine in Florida since 2011.

    Cruz is a licensed physician in the state of Florida, and she is certified by the American Board of Physical Medicine & Rehabilitation and the American Board of Pain Medicine. Cruz is also a Certified Life Care Planner, as designated by the International Commission on Health Care Certification.

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

    Economics Expert Witness

    Kenneth G. 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.

    Want to know more about the challenges Kenneth G. McCoin has faced? Get the full details with our Challenge Study report.  

    Vocational Rehabilitation Expert Witness

    Ashley G. Lastrapes has worked in rehabilitation counseling since 2011. She holds a Ph.D. in Counselor Education and Supervision from the University of Holy Cross, a Master of Health Science in Rehabilitation Counseling from Louisiana State University Health Sciences Center, and a Bachelor of Science in Psychology from the University of New Orleans.

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

    Discussion by the Court

    A. Gloydian Cruz-Gomez

    i) Defendants’ Argument

    The Defendants sought to exclude portions of the life care plan prepared by Gloydian Cruz-Gomez. They argued that her calculation of the cost of medications that González will incur for future use is unreliable. Specifically, they contended that her estimates, which included the cost of NSAIDs, opioids, antidepressants, and Zanaflex for the next 25 years of his life, lacked a reliable foundation.

    ii) Plaintiff’s Counter-Argument

    In response, the Plaintiff defended the reliability of Cruz-Gomez’s Life Care Plan by pointing out that her estimates were grounded in Plaintiff’s medical records, consultations with treating physicians, and established medical guidelines. Additionally, he argued that she applied well-recognized principles in life care planning and offered a rational basis for her cost estimates.

    iii) Analysis

    While Harley Marine agreed that Cruz-Gómez is qualified to render the opinions included in her report and that the methodology used in reaching said opinions met the standards of Rule 702, Daubert and its progeny, the Court was still required to examine whether the experts’ opinions on future medications was based on reliable foundations.

    In her life care plan, Cruz-Gomez explained that she relied on all past medical, social, psychological, educational, vocational, and rehabilitation data to the extent they are available and applicable. This included records of medications prescribed by González’s treating physician. She used this information, in addition to her education, training, and experience as a board-certified physical medicine and rehabilitation specialist and certified life care planner to determine González’s future medication needs. She based her conclusions on a “reasonable degree of medical probability,” indicating it was more likely than not that González would require the medications outlined in the plan. The Court held that her analysis followed reliable principles and methods and relied on sufficient facts and data, meeting the requirements of Rule 702.

    Conclusion

    Consequently, it should be noted that Harley Marine objected only to the section of Cruz Gómez’s report addressing the costs of Plaintiff’s future medications. Defendants’ experts’ competing opinion was the sole basis for their challenge to the factual basis of Cruz Gómez’s opinions on Plaintiff’s future medications. Citing United States V. Vargas, 471 F.3d 255 (1st Cir. 2006), the Court held that when the factual underpinning of an expert is weak, it is a matter affecting the weight and credibility of the testimony— a question to be resolved by the jury. Thus, their challenge goes to credibility of the expert, not the reliability of her opinions. 

    B. Kenneth McCoin

    i) Defendants’ Argument

    To begin with, Harley Marine sought to exclude Kenneth McCoin’s opinion on González’s earning capacity, arguing that his analysis lacked sufficient facts and data, making it unreliable. Specifically, the Defendants contended that McCoin failed to consider González’s post-injury earnings and relied on an unsupported assumption that wages increase over time when the record did not provide evidence of such a conclusion.

    ii) Plaintiff’s Counter-Argument

    In response, the Plaintiff defended McCoin’s methodology, asserting that he based his calculations on González’s tax returns and employment contract. These, according to the Plaintiff, provided a valid and reasonable foundation for estimating his earning capacity in the absence of his injuries. The Plaintiff also argued that any income earned by González after his injury was irrelevant to McCoin’s analysis. Moreover, McCoin’s use of a “societal wage growth” factor is a recognized method of forecasting future earning capacity.

    iii) Analysis

    First, the Court observed that Harley Marine appeared to confuse “earning capacity” with “lost earning capacity.” McCoin was tasked with estimating González’s postinjury economic capacity in the absence of the incident. The jury would then determine the actual loss of income based on this estimate. However, the Court found that Harley Marine incorrectly argued that McCoin’s failure to consider medical information, vocational data, and post-employment history undermined the reliability of his analysis. The Court clarified that McCoin’s role was to provide an estimate of what his earning capacity would have been, but for the accident, from which the jury can make a lost earning capacity determination.

    Second, the Court found that McCoin’s assumption that González was not working after the injury did not affect his analysis of his earning capacity. His task was to evaluate earning capacity absent the injury, making post-injury employment irrelevant to this assessment. McCoin relied on González’s tax returns from 2019–2021 and an independent contractor agreement with PETROCARE Marine Consultants, Inc., which provided a sufficient and reliable basis for his calculations.

    The Court found that McCoin’s application of a “societal wage growth factor” in his earning capacity analysis does not make his conclusions unreliable. McCoin explained at deposition what a “societal wage growth factor” is and the purpose for including it in his analysis: “Those are wage growth that redounds to employees due to the increase in general labor productivity.”  Courts are instructed to consider “societal factors” which contributes to “wages of workers increase over time.”  Therefore, the Court held that McCoin’s implementation of a “societal wage factor” in his earning capacity calculation was well-reasoned, not overly speculative.

    Conclusion

    The Court also rejected Harley Marine’s claim that fluctuations in González’s earnings from 2019–2021 proscribe McCoin from having a reliable basis to apply a societal wage growth factor to the earnings capacity analysis. In other words, variations in income over three years did not undermine the reliability of McCoin’s methodology. As McCoin explained in his deposition, even self-employed individuals experience market changes in wages. For the Court, a fluctuation of earnings over three years does not seem to be sufficient basis to discredit the expert’s methodologies.

    C. Ashley G. Lastrapes

    i) Defendants’ Argument

    Harley Marine sought to exclude Ashley Lastrapes’ vocational assessment for González, claiming it lacked a sufficient factual basis to evaluate his earning capacity under Rule 702.

    ii) Plaintiff’s Counter-Argument

    González countered that despite Lastrapes issuing a “guarded” assessment of his post-injury earning capacity, her report offered valuable insights with regard to his capacity to work which are relevant to the case, including the following:

    a) Lastrapes provided opinions on the Life Care Plan developed by Gloydian Cruz-Gomez. She also assessed González’s physical limitations, decreased ability to perform daily activities, and the resulting loss of vocational opportunities.

    b) She analyzed the potential impact of a future surgery, as predicted by Cruz Gómez, on González’s ability to earn income.

    c) Lastrapes evaluated González’s inability to travel for work-related tasks, as well as the economic losses stemming from this limitation.

    iii) Analysis

    Lastrapes was retained to conduct a vocational assessment evaluating the factors affecting González’s post-injury earning capacity following his May 2022 injury. She relied on medical and employment records, litigation case materials, and expert reports from Cruz-Gomez and McCoin, and conducted a clinical interview with González.

    Regarding vocational prognosis, Lastrapes concluded it was “guarded,” explaining that she needed additional information to provide a definitive opinion on future wage loss. However, the Court noted this was only one aspect of her report because Lastrapes also addressed other critical issues, including the Life Care Plan by Cruz-Gomez, González’s physical limitations, and his diminished ability to perform daily activities, which reduced his vocational opportunities. She further analyzed how a potential future surgery would impact his earning capacity and highlighted economic losses tied to his inability to travel for work-related tasks.

    Harley Marine argued that the absence of a conclusive vocational prognosis warranted the exclusion of all of Lastrapes’ testimony. The Court disagreed, emphasizing that her opinions were grounded in reliable data and aligned with the scope of her assignment.

    Therefore, the Court observed that the parties could address any challenges to Lastrapes’ credibility or conclusions through cross-examination and the presentation of contrary evidence, as outlined in Daubert. It refused to penalize González because his expert presented sound opinions within the scope of her task only where a reliable basis existed.

    Held

    Accordingly, the Court issued the following orders:

    1. Motion in limine to exclude portions of the Life Care Plan prepared by Plaintiff’s physical medicine expert witness Gloydian Cruz-Gomez was denied
    2. Motion in limine to exclude the testimony of Plaintiff’s economics expert witness Kenneth McCoin was denied
    3. Motion in limine to exclude the testimony of Plaintiff’s vocational rehabilitation expert witness Ashley G. Lastrapes was denied.

    Key Takeaway:

    First, physical medicine expert witness Gloydian Cruz-Gomez’s Life Care Plan, based on medical records and professional expertise, was deemed grounded in sufficient data, despite conflicting opinions from the Defendants’ expert.

    Moreover, economics expert witness Kenneth McCoin’s analysis of the Plaintiff’s postinjury economic capacity in the absence of the incident was supported by tax returns and an independent contractor agreement, with the Court affirming that his use of a societal wage growth factor was a valid and recognized method.

    Lastly, vocational rehabilitation expert witness Ashley Lastrapes’ vocational assessment was upheld as it was based on comprehensive medical and employment records, despite her “guarded” prognosis, as the Court noted that such conclusions could be addressed during cross-examination.

    Case Details:

    Case caption: González-Pérez v. Harley Marine Fin. LLC
    Docket Number: 3:22cv1519
    Court: United States District Court for the District of Puerto Rico
    Dated: January 6, 2025
  • Economics Expert Witness Allowed to Opine on Educational Loss 

    Economics Expert Witness Allowed to Opine on Educational Loss 

    Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) brought intentional discrimination claims against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.

    Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.

    Plaintiffs filed a motion to preclude the opinions of Dr. Howard Shane, an anticipated expert witness for the District who will opine on the “effectiveness and appropriateness of using the method known as Spelling to Communicate (S2C) with Alex LePape.”

    In response, the District filed a motion to preclude the opinions of Chad Staller, an anticipated expert witness for Plaintiffs who will opine on the damages that Plaintiffs incurred for Alex’s past and future educational services and the future costs for Alex’s psychiatric treatment, and all evidence of educational loss.

    Speech-Language Pathology Expert Witness

    Howard Shane has been a practicing and licensed Speech Language Pathologist for 49 years. The vast majority of his professional life has been spent working with individuals who are non-speaking as a result of autism, cerebral palsy, or intellectual impairment. He holds a Master’s degree and a Doctoral degree in Speech Pathology with a minor in Developmental Psychology and Audiology. For his doctoral work, he specialized in neurogenic speech problems. Moreover, he completed a Doctoral Fellowship at the Mayo Clinic in Rochester, Minnesota, where he worked with patients who experienced severe motor speech disorders, including Apraxia of Speech.

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

    Economics Expert Witness

    Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

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

    Discussion by the Court

    Chad Staller

    Motion to Preclude the Expert Testimony of Chad Staller and All Testimony and Evidence of Educational Loss

    The District contended that because it has been judicially determined that the District provided Alex with a free appropriate public education (“FAPE”) and is not entitled to recover compensatory education or tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), Plaintiffs cannot recover educational loss damages under the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act, which renders Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

    Basically, evidence of educational loss is relevant to establish the specific compensatory damages that Plaintiffs seek. Accordingly, the Court denied the District’s motion with respect to evidence of Plaintiffs’ educational loss, including Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred.

    Staller’s testimony on future medical care damages

    To begin with, the District argued that Plaintiffs are not entitled to recovery of emotional distress damages under the ADA or the Rehabilitation Act, which rendered Staller’s opinions as to those damages irrelevant under Rule 401 and unfairly prejudicial under Rule 403. 

    The Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 142 S. Ct. 1562, 212 L. Ed. 2d 552 (2022), that emotional distress damages are not recoverable in private discrimination actions brought under the Rehabilitation Act.

    The Court is not convinced by Plaintiffs’ argument that the non-educational loss damages that they seek—payment of Alex’s future psychiatric treatment expenses—are not emotional distress damages and, therefore, are still recoverable.

    The vast majority of district courts confronted with this issue in the wake of Cummings have held that mental health treatment costs constitute emotional distress damages because they stem from emotional distress as the underlying injury. 

    Therefore, the Court found that Plaintiffs are precluded from recovering Alex’s future psychiatric treatment expenses, as these fall into the category of emotional distress damages that are not recoverable under the ADA and the Rehabilitation Act.

    The Court granted the District’s motion with respect to Staller’s opinions as to the projected cost of future psychiatric treatment for Alex.

    Howard Shane

    Plaintiffs argued that because Shane’s opinions are not based on any analysis of “Alex’s communication with a letter board and communication partner,” they are irrelevant under Federal Rule of Evidence 401. Alternatively, Plaintiffs argued for the preclusion of Shane’s opinions under Federal Rule of Evidence 403 because these opinions “would invade the province of the jury, offering an opinion as to the credibility of [Alex’s] testimony with the letter board.”

    The Court held that Shane’s opinions are relevant to the material factual issues of the efficacy of a letterboard and communication partner for Alex, the efficacy of other communication supports that the District provided to Alex, and the District’s knowledge when it refused to permit Alex to use S2C at school at least in part due to the perceived lack of supporting scientific research.

    Moreover, Plaintiffs’ contention that Shane did not base his opinions on any “personal interactions” with Alex or investigations of “authorship with Alex’s use of the letter board” is not entirely accurate, as Shane indicates in his affirmative report that he compared the “content of [Alex’s] work produced independently with [his] work produced with the assistance of a facilitator.”

    Also, considering that Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex, the Court found that Plaintiffs will not be unfairly prejudiced, and the jury will not be confused or misled, by the introduction of Shane’s contrasting opinions.

    However, the Court precluded Shane’s opinions to the extent they relate to human rights violations, including violations of the United Nations Conventions on the Rights of Persons with Disabilities, because such opinions are impermissible legal conclusions and unfairly prejudicial and confusing to the jury. 

    Held

    1. The Court granted in part and denied in part Plaintiffs’ motion in limine to preclude opinions of Howard Shane.
    2. The Court granted in part and denied in part Defendant’s motion in limine to preclude the testimony of Chad Staller.

    Key Takeaway:

    • The Court did not find that the probative value of Shane’s opinions is substantially outweighed by the dangers of unfair prejudice because the Plaintiffs will offer their own expert opinions as to the efficacy of Alex’s use of S2C as a means of communication and the significance of a communication partner for Alex.
    • Also, Staller’s opinions as to the amount of educational loss damages Plaintiffs incurred is relevant to establish the specific compensatory damages that Plaintiffs seek and are entitled to recover for their ADA and Rehabilitation Act claims.

    Case Details:

    Case Caption: J.L. Et Al V. Lower Merion School District
    Docket Number: 2:20cv1416
    Court: United States District Court, Pennsylvania Eastern
    Order Date: December 30, 2024
  • Economics Expert Witness’ Event Study Admitted Despite the High Rate of False Positives

    Economics Expert Witness’ Event Study Admitted Despite the High Rate of False Positives

    Plaintiffs Richard Dennis, Port 22, LLC, and Michael Glass asserted Commodity Exchange Act and Sherman Antitrust Act claims, alleging that The Andersons, Inc. (“TAI”)  and Cargill Incorporated, who were supposed competitors, operated multiple grain storage warehouses in Ohio and collaborated to manipulate prices of soft red winter wheat (“SRW wheat”) futures and options contracts on the Chicago Board of Trade (“CBOT”). 

    According to the Plaintiff, the Andersons, Inc. sold SRW wheat to the major purchasers in October and November 2017 to suppress demand for physical SRW wheat and then, on November 29, 2017, registered for delivery two thousand certificates of CBOT December 2017 SRW wheat.

    This registration (falsely, Plaintiffs say) signaled that TAI would sell ten million bushels of physical SRW wheat to parties holding long positions in December 2017 SRW wheat futures and caused a marked price decrease in the December 2017 SRW wheat futures contract and widened the spread between the December 2017 and March 2018 SRW wheat futures contracts.

    TAI and Cargill later repurchased some of the shipping certificates TAI had delivered at the decreased prices. Plaintiffs allegedly transacted in December 2017 and March 2018 SRW wheat futures and lost money because of the decreased prices caused by the scheme.

    Plaintiffs’ expert Craig Pirrong opined that Defendants’ manipulation of December 2017 and March 2018 SRW wheat futures injured Plaintiffs on a class-wide basis. Pirrong estimated class-wide damages and proposed a methodology for determining individual damages. Defendants challenged the reliability of Pirrong’s study through the report of their expert, Professor Justin McCrary.

    Economics Expert Witness

    Craig Pirrong‘s extensive qualifications includes approximately 30 years of concentrating professionally on competition and manipulation of prices with a focus on Chicago Mercantile Exchange wheat, soybean, and corn futures contracts; publishing a dozen peer-reviewed articles and a book on commodity futures manipulation and pricing; presenting to and consulting with federal agencies on manipulation; and testifying as an expert.

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

    Discussion by the Court

    Defendants argued that the magistrate judge’s order contained the following four clearly erroneous conclusions. First, the magistrate judge declined to exclude the March 2018 portion of Pirrong’s event study, which Defendants alleged lacked sufficient statistical significance. Second, the magistrate judge declined to exclude Pirrong’s ipse dixit assumption that Defendants’ manipulation caused a constant level of price artificiality that persisted for three months. Third, the magistrate judge found that the December 2017 portion of Pirrong’s event study is admissible despite the high rate of false positives that it produces. Fourth, the magistrate determined that Pirrong’s linear programming (“LP”) damages model, which Defendants contend is neither reliable nor helpful to a factfinder, is admissible. With the deferential standard of review discussed above in mind, the Court will review the magistrate judge’s order for clear error on each of these four bases.

    Statistical significance of March 2018 event study

    Pirrong’s expert report includes an event study, a regression analysis that uses specified control variables to estimate the daily market price of SRW and then compares those estimates to the prices observed in the market. An event study is used to determine the direction and magnitude of the effect of an unspecified variable, here, the alleged market manipulation.

    Pirrong’s event study contains p-values associated with the cumulative residual on each day of the study. A residual is the difference between the observed value (here, the actual daily market price) and the estimated value (here, the daily market prices estimated by the control variables). The cumulative residuals used in Pirrong’s event study are simply the sum of each day’s residual and all the residuals that came before it within the period studied.

    Because many of the p-values in Pirrong’s event study exceed commonly used thresholds of statistical significance (such as the 1%, 5%, and 10% thresholds), Defendants argued before the magistrate judge that Pirrong’s entire event study is unreliable. After carefully considering the issue, the magistrate judge was “unconvinced that all of [Pirrong’s] results should be excluded due to some p-values above 0.05, particularly where seven of eleven days (November 30 through December 8, 2017) within the December 2017 SRW wheat contracts regression analysis returned p-values with statistical significance at the five percent level.”

    Defendants advanced the same statistical significance arguments before this Court, contending that the magistrate judge’s conclusions constitute clear error.

    The Court held that it is reasonable that the magistrate judge, like many of our sister courts, declined to use statistical significance at the five percent level, or any other bright line threshold, as a proxy for reliability, and thus the admissibility, of Pirrong’s entire event study.

    The Court is not left with the definite and firm conviction that a mistake has been made

    Plaintiff’s theory of this case is that a discrete event—the registration of two thousand certificates of CBOT December 2017 SRW wheat on November 29, 2017, (after Defendants had saturated the market through major SRW wheat sales in October and November)—drove the market price of December 2017 and March 2018 SRW wheat futures downward. Pirrong’s event study uses a regression analysis to isolate the effect of this event from the innumerable other market factors—captured by the control variables—that determine the market price of SRW wheat futures.

    The downward price impact of this discrete event would be easiest to pick out from the “noise” of other market factors right at the time of the event. As time passes and the other market factors continue to exert pressures on price, the manipulation event would become more difficult to pick out from the noise; what was first a bang fades into an echo. This is what Pirrong’s event study shows. For December SRW wheat futures, the lowest, or most statistically significant, p-values occur on November 30, 2017, and the days immediately following it. The Court found Pirrong’s conclusion that Defendants’ alleged market manipulation depressed prices in the December SRW wheat futures market statistically robust.

    For March SRW wheat futures, the same conclusion is considerably less statistically robust. Even on the first day after Defendants’ registration of two thousand certificates of CBOT December 2017 SRW wheat, the negative residual returns a p-value of 0.20. Given the mixed statistical robustness of the results of the event study, this Court agreed with the magistrate judge that they are sufficiently reliable to be admissible. 

    Ipse dixit assumption that price artificiality in the commodities marketplace spanned three months at a fixed amount

    Before the magistrate judge, Defendants argued that Pirrong’s conclusion that the March 2018 SRW wheat futures contract had a permanent, fixed, artificial price depression of 1.2¢ per bushel from December 14, 2017, to March 14, 2018, is unreliable because it is asserted with no empirical proof. Defendants renew that challenge here, arguing that Pirrong “is left only with his own word as to the existence of permanent price artificiality spanning three months in a marketplace where prices change every second of every day.”

    The magistrate judge determined that Pirrong “reviewed the identified records, performed studies, and applied his extensive experience in futures markets to reach” his conclusion that the 1.2¢ per bushel artificial price depression held through the period from December 14, 2017, to March 14, 2018. 

    The Court held that while Pirrong’s explanation of why the price artificiality would remain constant is open to dispute, a disputable explanation is different than no explanation.

    False positives

    Defendants argued before the magistrate judge that Pirrong’s event study is unreliable because of the high rate of false positives it produces. A test for false positives takes Pirrong’s model and applies it to time periods where there is no alleged market manipulation. A false positive occurs when a residual has a p-value below a specified threshold of statistical significance. Defendants’ test for false positives employed a 43% threshold of statistical significance because that is the highest p-value reported for any day in Pirrong’s event study. Using a high threshold of statistical significance yields a high rate of false positives. Here, it indicated that there was price manipulation on “85% of the days for which Plaintiffs do not claim manipulation.”

    After carefully considering this issue, the magistrate judge concluded that “[b]ecause Defendants’ false positives argument spins off from the p-values discussion and applies an across-the-board 43% threshold for statistical significance not adopted by Pirrong, the Court is disinclined to reach a different result here.”

    Defendants advanced the same false positives argument here. The Court finds that the magistrate judge’s decision to admit the event study despite the high rate of false positives was correct. The 85% false positive rate reported by Defendants comes from the application of an across-the-board 43% threshold for statistical significance that is not endorsed by Pirrong (and is obviously not endorsed by the Defendants given their arguments on statistical significance). More troubling is the 19.66% false positive rate yielded by testing at a 5% level of statistical significance. The magistrate judge concluded that Pirrong’s testimony is “closer to shaky than unreliable.”

    Linear programming (“LP”) damages model

    First, Defendants renew their argument that Pirrong’s LP damages model is unreliable because it relies on an estimate of artificiality generated by the event study to calculate a range of aggregate damages for the class members. The reliability of the use of a constant 1.2¢ artificiality estimate is already addressed above.

    Second, as the magistrate judge notes throughout her opinion, Defendants attack the output and not the methodology of Pirrong’s estimation of a theoretical range of possible damages.

    Third, Defendants argued that the LP damages model is not helpful to the finder of fact because it “estimates a theoretical $20 million range of possible damages” and “provides no means for the trier of fact to estimate where in that broad range a reasonable, or probable, estimate of damages falls.” The magistrate judge correctly concluded that “the Court is not seeking to calculate actual damages” at the class certification stage. Instead, Plaintiffs must show that “proof of the damages caused by the scheme will either fail or succeed on a class-wide basis.”

    The Court agreed with the magistrate judge that Pirrong’s LP model is sufficiently helpful and reliable to be admissible.

    Held

    The Court denied Defendants’ objection to the order denying in part Defendants’ motion to exclude the testimony of Plaintiffs’ expert Dr. Craig Pirrong.

    Key Takeaways:

    • It is noteworthy that Defendants attacked the output and not the methodology of Pirrong’s estimation of a theoretical range of possible damages.
    • The magistrate judge concluded that Pirrong’s testimony is “closer to shaky than unreliable.” The 85% false positive rate reported by Defendants comes from the application of an across-the-board 43% threshold for statistical significance that is not endorsed by Pirrong (and is obviously not endorsed by the Defendants given their arguments on statistical significance).
    • The Court held that while Pirrong’s explanation of why the price artificiality would remain constant sparks a debate, a questionable explanation is not the same as having no explanation.

    Please refer to the blog previously published about this case:

    Economics Expert Witness’ Improper State-of-Mind Testimony Excluded

    Case Details:

    Case Caption: Dennis V. The Andersons Inc.
    Docket Number: 1:20cv4090
    Court: United States District Court, Illinois Northern
    Order Date; December 17, 2024
  • Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

    Psychiatry Expert Witness’ Opinions on the Sufficiency of the County’s Suicide Prevention Policies and Training Admitted

    This case arises from the in-custody death of Joseph Morton (“Morton”) at Vista Detention Facility (“VDF”). Morton was arrested for attempted robbery and booked at VDF on May 11, 2020, one day after release from a 5150 hold. Morton committed suicide six days later, on May 17. Plaintiffs allege medical care claims under 42 U.S.C. § 1983 and state law theories claiming that Morton should have been designated as “high risk” for suicide and placed in a safety cell in Inmate Safety Program (ISP) housing.

    Defendants County of San Diego, Hosanna Alto, and Janine Sparks (“County Defendants”) claimed that they did not violate Morton’s civil rights. Mental health clinicians (MHC) Hosanna Alto and Janine Sparks were accused of being deliberately indifferent to Morton’s suicide risk.

    County Defendants have filed two Daubert motions: they sought to exclude certain opinions offered by Plaintiffs’ experts Dr. Jeffrey Metzner, and Dr. Kaycea Campbell.

    Psychiatry Expert Witness

    Jeffrey Metzner is a licensed medical doctor who has been engaged in clinical and forensic psychology since 1978. From 1980 to 1981, Metzner served as Chief of Psychiatry at Colorado State Penitentiary and he served as a consulting psychiatrist to the National Prison Project and the United States Department of Justice for 30 to 40 years, respectively. He has published numerous newsletters, books, book chapters, and peer reviewed journal articles, including on the topics of mental health and psychiatry in prisons.  Between 1989 and 2022, he served as an expert in 178 cases.

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

    Economics Expert Witness

    Kaycea Campbell is an economist with a Ph.D. from Claremont Graduate University, a Master of Arts in Economics from the University of Southern California, and a Bachelor of Science in Economics from the University of the West Indies. Campbell is a tenured economics professor at Pierce College and is also the Department Chair for a multidisciplinary Political Science, Economics, Administration of Justice, and Chicano Studies unit. She has worked as a professional economic researcher for about twenty (20) years during which time she has published articles on economic analyses associated with loss of income and calculated and researched issues such as the recovery of damages for lost profits, wrongful death, personal injury, and intellectual property damages. She has served as an economics expert in thirteen (13) cases since 2014. 

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

    Discussion by the Court

    Motion to Exclude Metzner’s Opinions

    1. Mental Health Clinician Standard of Care Opinions

    Metzner opined that the care provided to Morton by various mental health and medical professionals at VDF fell below the standard of care. According to County Defendants, although Metzner is a licensed psychiatrist, he has no experience in supervising MHCs in a correctional setting and has not received formal training in the MHC standard of care.

    The Court is not persuaded by this argument. Metzner has some thirty (30) years of experience in correctional psychiatry as well as extensive academic and research experience in correctional psychiatry and mental healthcare. Further, it is noteworthy that Metzner has served as a court-appointed expert in numerous cases. 

    2. Opinions re MHC Alto

    County Defendants challenged Metzner’s specific opinions that MHC Alto: (1) did not obtain records regarding Morton’s recent hospitalization; (2) made the improper assumption that because he was released from the 5150 hold, there was no significant safety risk; and (3) that if MHC Alto had obtained the records from Morton’s recent hospitalization, “they would have figured out he was still suicidal.”

    a. Records from Prior Hospitalization

    Metzner opined that “[i]t was below the standard of correctional mental healthcare to not, at least, attempt to obtain information regarding Morton from the Alvarado Parkway Institute/BHS as part of the gateway assessment process” because “obtaining such information would have demonstrated that Morton was not a reliable historian and that he omitted significant factors leading to his very serious suicide attempt.” 

    The Court is satisfied that Metzner possesses the necessary qualifications and relevant experience to testify that the standard of care for QMHPs performing an ISP assessment would include requesting prior suicide-related hospitalization records.

    b. Improper Assumption

    County Defendants challenged Metzner’s opinion that MHC Alto’s assessment fell below the standard of care because she improperly assumed that following his 5150 hold release, he posed no significant safety risk.

    According to County Defendants, MHC Alto did not rely on any assumptions in completing the ISP assessment, as confirmed by her deposition testimony.

    The Court noted that there appears to be no opinion offered by Metzner about any assumptions MHC Alto made during her ISP assessment.

    It was held that Metzner’s opinion in this respect is, by his own admission, only relevant if MHC Alto made an assumption regarding the 5150 hold release during her ISP assessment of Morton. As such, to the extent Plaintiffs put forth evidence that MHC Alto made such an assumption during the ISP assessment, Metzner may testify that, in his expert opinion, relying on such an assumption contributed to the reasons her care fell below the acceptable standard. But if Plaintiffs fail to offer evidence that MHC Alto relied on this assumption, or any assumption regarding Morton’s release from the 5150 hold, during her ISP assessment, Metzner cannot, and seemingly does not, offer an opinion in this respect.

    c. Causation

    County Defendants also take issue with Metzner’s opinion “that if Alto had obtained Morton’s Alvarado Parkway Institute (“API”) Records, it would have made a difference for Morton here because, according to Metzner, Morton’s medical history as provided by him to VDF medical staff was not consistent with information in the API records.”

    The Court held that Plaintiffs can put forth evidence of the 5150 hold records and Metzner can opine that MHC Alto’s care was substandard for her failure to obtain these records. But ultimately, it is up to the jury to determine the import of these records and opinion testimony—for example, whether MHC Alto would have or should have done anything different, including whether she would have concluded Morton was suicidal, had she obtained and reviewed these records.

    3. Opinions re MHC Sparks

    County Defendants challenged Metzner’s opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment. The Court held that Metzner’s opinion as to the reasoning behind why MHC Sparks did not perform the follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience.

    County Defendants also challenged two opinions Metzner offered during his deposition as beyond the scope of his report. First, Metzner opined that the nature of Morton’s phone conversations with girlfriend and mother were much more suicidal related to the conditions to confinement. He felt that a 24-hour assessment was necessary.

    The Court agreed that this opinion appears to be beyond the scope of Metzner’s expert report. However, the Court is not persuaded that it should be excluded on this basis alone. In this case, County Defendants do not explain how they have been prejudiced by Metzer’s failure to include this opinion in his written report. In any event, the record is clear that his failure to do so was harmless because County Defendants had sufficient time and ability to question Metzner on this opinion when he raised it during his deposition. 

    County Defendants also challenged an opinion Metzner made on page 67 of his deposition. The record is devoid of page 67 of Metzner’s deposition transcript. Without the benefit of the evidence County Defendants seek to exclude, the Court cannot determine whether it is subject to exclusion.

    4. Policies & Training

    County Defendants asked the Court to exclude Metzner’s opinions on the sufficiency of the County’s suicide prevention policies and training. 

    Metzner further opined during his deposition that the  the ISP “assessments were not very standardized and really varied depending on who the clinician was doing it.” 

    It should be noted that Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting. And here, Metzner identifies the policies he reviewed prior to coming to this conclusion.Thus, he adequately explains the basis for his opinion, and the Court is satisfied that his opinion is sufficiently reliable.

    5. Opinions re Nurse Macanlalay

    According to Metzner, “[t]he decision by Samantha Macanlalay RN on 5/11/2020 that a release of information for outside healthcare records was not indicated was problematic in the context of a very recent psychiatric hospitalization following a serious suicide attempt. Obtaining such information would have assisted in the suicide risk assessment process.”

    County Defendants sought to exclude Metzner’s opinions about Nurse Macanlalay as irrelevant because she has since been dismissed from this lawsuit. 

    The Court agreed with County Defendants that Metzner’s opinion that Nurse Macanlalay’s assessment was “problematic” is not probative of any fact or issue in this case.

    6. Summary of Records

    Finally, County Defendants challenged Metzner’s summary of the record in his report. According to County Defendants, this evidence is impermissible because his summary paraphrases the evidence and is incomplete.

    To the extent Metzner’s report includes an unadorned regurgitation of the facts, evidence, and/or record in this case, the Court held that his opinion and testimony is impermissible.

    County Defendants also specifically challenged Metzner’s summary of the Citizens’ Law Enforcement Review Board (“CLERB”) report, State Auditor’s report, Critical Incident Review Board (“CIRB”) reports, and Disability Rights California (“DRC”) report.

    As to the CLERB report summary, the Court agreed that Metzner’s evidence is subject to exclusion. Metzner quoted a portion of the report and comments that a statement contained therein is inaccurate based upon evidence elsewhere in the record. This opinion does not appear to be based on any expertise or particular experience, and a factfinder does not need any specialized knowledge to review two documents and determine whether they are inconsistent.

    A review of Metzner’s summary of the State Auditor’s report, reveals no opinions or other commentary— Metzner simply summarizes the report and its findings. The Court held that it is impermissible.

    Turning to the CIRB reports, Metzner indicated that he reviewed reports from January 2015 to August 2019 and opines on the adequacy of these reports and that there are “common themes” between the prior incidents and the issues he identifies as connected to Morton’s suicide. The Court is satisfied that, if relevant, this opinion is reliable and based on Metzner’s experience and qualifications.

    Finally, as with his summary of the State Auditor’s report, Metzner merely restates part of the DRC report. The Court held that this evidence is subject to exclusion as unreliable and improper.

    Motion to Exclude Campbell’s Opinions

    To suggest that Morton’s estate is not a party to this litigation is inaccurate

    Campell offers her opinion on Plaintiffs’ economic damages based upon Morton’s income projections, personal consumption, and household services as well as other costs attributed to his wrongful death. 

    First, County Defendants asserted that Campbell’s report estimates the value of Morton’s hypothetical future estate as the value of wrongful death damages, but that “Morton’s estate, should one exist, is not a Plaintiff in this litigation.” 

    To suggest that Morton’s estate is not a party to this litigation is inaccurate. The Court held that County Defendants appear to misapprehend the distinction between wrongful death claims and survival claims and their related damages. Damages for a wrongful death claim are personal to those who survive the decedent whereas damages for claims that survive death are personal to the decedent. For wrongful death claims, i.e., where heirs or survivors can recover their own damages based upon the death of their loved one, a Plaintiff may recover both economic and noneconomic damages.

    A review of Campbell’s report reveals that her opinions fall squarely within the realm of permissible wrongful death damages evidence and that she does not improperly include damages particular to Plaintiffs as individuals. And because Plaintiffs press a wrongful death claim, this evidence is relevant assuming they can prove liability.

    Campbell calculated Morton’s earning potential based upon various factors and variables

    County Defendants asserted that Campbell’s opinions are unreliable. The Court disagreed. Campbell calculated Morton’s earning potential based upon various factors and variables.

    She also considered his past history of work. And she sufficiently explained and supported the basis for her calculations. Her ultimate conclusion is that, based upon these variables, Plaintiffs’ damages range from $495,702.17 to $1,082,185.53 if Morton was single with no children, which he was at the time of his death. The Court is satisfied that Campbell’s opinion is based upon a reliable methodology and that County Defendants challenges goes to the weight of Campbell’s evidence, which they can attack on cross-examination. 

    Held

    • The Court granted in part County Defendants’ motion to exclude the expert opinions and testimony of Dr. Jeffrey Metzner.
    • The Court denied County Defendants’ motion to exclude the expert opinions and testimony of Dr. Kaycea Campbell.

    Key Takeaway:

    Metzner has ample experience in correctional mental healthcare including suicide prevention programs, policies, and training in the correctional setting but his opinion regarding MHC Sparks’ failure to complete Morton’s 24-hour ISP follow-up assessment appears to be based wholly on speculation and not any reliable methodology or specialized experience. 

    Also, Campbell arrived at Morton’s earning potential based upon various factors and variables after considering his past history of work. And she sufficiently explains and supports the basis for her calculations. 

    Case Details:

    Case Caption: Morton Et Al V. County Of San Diego Et Al
    Docket Number: 3:21cv1428
    Court: United States District Court, California Southern
    Order Date: December 16, 2024
  • Economics Expert Witness Allowed to Calculate the Plaintiff’s Decreased Earning Capacity

    Economics Expert Witness Allowed to Calculate the Plaintiff’s Decreased Earning Capacity

    This matter arises from an automobile accident in Valparaiso where one of the Plaintiffs, Terry Larson, sustained serious injury. His wife, Jayne, also seeks damages for a loss of consortium.

    Larson disclosed that he expected Stan Smith to testify “regarding the economic harm caused by the injuries that Plaintiff suffered as a result of the April 30, 2020 crash. Smith’s economic analysis addresses Plaintiff’s loss of income and loss of household services.” 

    In his August 2023 report, Smith listed two categories of expert testimony: (1) an estimate of Larson’s loss of wages and employee benefits and (2) an estimate of Larson’s loss of housekeeping and household management services.

    To reach these conclusions, Smith reviewed the following materials: (1) the individual tax returns for Terry and Jayne Larson from 2015 through 2022; (2) the S Corporation tax returns for Larson-Danielson Construction from 2015 through 2022; (3) the W-2s for Terry Larson from 2015 through 2022; (4) the Complaint; (5) Plaintiff, Terry Larson’s Answers to Defendants’ First Set of Interrogatories; (6) Plaintiff, Terry Larson’s Supplemental Answers to Defendants’ First Set of Interrogatories; (7) Plaintiff, Jayne Larson’s Answers to Defendants’ First Set of Interrogatories; (8) the deposition of Terry Larson taken on August 31, 2021; (9) an informational interview with Terry Larson dated September 10, 2021; and (10) the case information form.

    Defendants challenged the methodology of Smith’s opinions and alleged that they lack foundation in sufficient facts and data.

    Economics Expert Witness

    Stan Vladimir Smith, Ph.D. is a nationally renowned economist who received his Ph.D. from the University of Chicago. He is President of Smith Economics Group, Ltd., headquartered in Chicago, IL, which provides economic and financial consulting nationwide. He has worked as an economic and financial consultant since 1974, after completing a Research Internship at the Federal Reserve, Board of Governors, in Washington, D.C.

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

    Discussion by the Court

    Smith noted that he relied upon Larson’s statements concerning his employment history, future plans, and the effects of the accident on Larson’s ability to work. He added that Larson also had reported a shift from being a full-time, salaried employee to being a part-time, hourly employee by 2023.

    Methodology

    As far as methodology, Smith stated he relied upon data from the National Center for Health Statistics to estimate Larson’s remaining life expectancy. Smith then outlined his use of data from the Bureau of Labor Statistics and the Federal Reserve for “past wage growth, interest rates, and consumer prices” to generate an estimated real wage growth rate of 0.95% per year, real discount rate of 1.20% per year, and annual inflation rate of 2.51%.

    Smith also outlined his methodology for calculating Larson’s estimated loss of tangible housekeeping chores and household management services using Bureau of Labor Statistics data, information collected from the interviews of Larson, and practices recommended by economist Dr. Gerald Martin.

    Defendants’ Position

    Defendants argued that while Smith “may be qualified to offer testimony as to the amount of an alleged economic loss”, he lacked a sufficient factual basis or reliable methodology to testify that Larson “suffered an economic loss related to the April 30, 2020, automobile accident.” 

    Defendants also appeared to argue that because Smith assumes that Larson is no longer able to work in a full-time capacity, his testimony is “nothing more than speculation as to when and why Larson will retire.” In further refinement of their argument, Defendants argued that Smith’s testimony lacks any evidence that Larson is “unable to continue working in his prior occupation.” 

    Analysis

    During his deposition, Smith acknowledged that he assumed the information Larson provided to him was accurate and incorporated that information into his report.

     Smith said it was up to “the trier of fact to give . . . whatever weight to [Larson’s statements] they believe is appropriate.” He also indicated the limited nature of his testimony as focused on calculating decreased earning capacity and not on the cause of that decrease in earning capacity (be it personal choice or the accident).

    That said, there were several instances in his deposition where Smith walked the line and appeared to opine on the cause of changes to Larson’s earning capacity. 

    To the extent that Smith acknowledges the statements made by Larson that he relied on for his calculations, the Court deemed it permissible. But the Court agreed with Defendants that Smith lacked the foundation to testify as to the truth of those assertions or that the accident in fact caused Larson’s reduced earning capacity. Those opinions are prohibited. 

    The Court concluded that Defendants’ arguments primarily concern the weight of Smith’s testimony, which are arguments best pitched not to the judge, but to the jury. Larson has established a sufficient basis for the admissibility of Smith’s testimony limited in scope to a calculation of Larson’s alleged economic loss. Smith may not testify as to causation because, as Defendants argue, he lacks sufficient foundation to do so.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Larson’s economic expert Stan Smith.

    Key Takeaway:

    In Defendants’ eyes, there is a missing connection between the data Smith relied upon (Larson’s allegations concerning his inability to continue working in the same capacity as before the accident) and Smith’s opinion (which calculates lost wages and earning capacity).

    Larson has established a sufficient basis for the admissibility of Smith’s testimony limited in scope to a calculation of Larson’s alleged economic loss. However, Smith may not testify as to causation because, he lacks sufficient foundation to do so.

    Case Details:

    Case Caption: Larson Et Al V. Davidson Trucking Inc Et Al
    Docket Number: 2:20cv250
    Court: United States District Court, Indiana Northern
    Order Date: December 02, 2024
  • Vocational Rehabilitation Expert Witness’ Opinions On Wage Rates in the Mexican Labor Market Admitted Despite Alleged Flaws

    Vocational Rehabilitation Expert Witness’ Opinions On Wage Rates in the Mexican Labor Market Admitted Despite Alleged Flaws

    After Aries Marine filed its Complaint for Exoneration from or Limitation of Liability (the “Limitation Action), seven individuals filed claims for personal injury, including Glenn Gibson, Ronald Williams, Luis H. Jimenez (aka Gilberto Gomez Rojas), Gabriel Vilano, Lee Bob Rose, Tomas Arce-Perez, and Calvin Abshire.

    The first six Claimants referenced above have retained Glenn Hebert as an expert in vocational rehabilitation and/or life care planning. They have also retained Randy Rice as an economic expert.

    It appears undisputed for purposes of this motion that Rozas is an undocumented immigrant who is not authorized to work in the United States. During depositions and discovery requests in connection with this matter, Rozas repeatedly invoked the Fifth Amendment’s protection against self-incrimination, refusing to answer questions related to his citizenship status and personal history.

    Before the Court in this limitation-of-liability action arising from the capsizing of the liftboat RAM XVIII is Petitioner Aries Marine Corporation’s motion to exclude the testimony of two of Claimants’ experts—vocational-rehabilitation specialist Glenn Hebert and economist G. Randolph Rice—under Federal Rule of Evidence 702 and Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

    Economics Expert Witness

    G. Randolph Rice is a well renowned economist. He has a PhD. from the University of Kentucky.

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

    Vocational Rehabilitation Expert Witness

    Glenn Hebert, MRC is a licensed Rehabilitation Counselor and certified Life Care Planner. He has a master’s degree in Vocational Rehabilitation Counseling.

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

    Discussion by the Court

    Aries contended that (1) Hebert’s opinions about Claimant Luis Jimenez’s future lost wages are unreliable because Hebert is not qualified to opine on wage rates in the Mexican labor market; (2) Hebert’s opinions about the cost of Jimenez’s future surgeries are unreliable because Jimenez has testified that he is “not seeking further surgery,” and Jimenez’s doctor has not recommended surgeries of the sort discussed in Hebert’s report; and (3) Hebert’s opinions about the cost of Claimant Glen Gibson’s future lumbar fusion are unreliable because Gibson’s doctor has not recommended that Gibson undergo that procedure. As for Rice, Aries briefly contended that the Court should exclude his opinions because they are based on Hebert’s unreliable opinions.

    However, the “danger that the factfinder will place improper weight on [the experts’] opinions is not implicated here” because the Court “is capable of assessing the probative value of the evidence and the weight [each expert’s] testimony should be given.”

    Held

    Therefore, the Court denied Aries’s motion to exclude the Claimants’ expert testimony provided by Glenn Hebert and G. Randolph Rice.

    Key Takeaway:

    In conclusion, Aries has not persuaded the Court that the alleged flaws in Hebert’s and Rice’s expert opinions cannot be adequately attacked through “[v]igorous cross-examination, presentation of contrary evidence, and careful [attention to] the burden of proof.”

    Case Details:

    Case Caption:  In The Matter Of Aries Marine Corporation Et Al
    Docket Number: 2:19cv10850
    Court: United States District Court, Louisiana Eastern
    Order Date: November 20, 2024
  • Economics Expert Witness’ Estimate of ED Treatment Utilization Deemed Reliable

    Economics Expert Witness’ Estimate of ED Treatment Utilization Deemed Reliable

    Plaintiffs Molly C. and Naomi L. are beneficiaries of group health insurance plans administered by Defendant Oxford Health Insurance, Inc. (Oxford). Beginning in 2019, Plaintiffs were diagnosed with eating disorders, received outpatient nutritional counseling as part of their treatment, and submitted claims for that counseling to Oxford, which denied them on the ground that their plans did not cover  those services. Because Oxford did cover nutritional counseling for diabetes, Plaintiffs contended that its failure to do the same for eating disorders violated the Mental Health Parity and Addiction Equity Act (Parity Act).

    Plaintiffs sought to certify a class consisting of all persons who were covered under an Oxford group health insurance plan in New York, were diagnosed with one of five specified eating disorders (EDs), received outpatient nutritional counseling from November 30, 2015 to the present (the Class Period), and either (a) submitted claims for that counseling, which Oxford denied on the ground that it was “not a covered benefit” (the Denied Claims Subclass), or (b) did not submit claims (the No Claims Subclass). In order to establish the required numerosity of each proposed subclass, Plaintiffs rely on two expert declarations from Frank Fox, Ph.D., who estimates — based on claims data supplied by Oxford — that during the Class Period at least 458 Oxford members with EDs submitted at least 1,461 claims for outpatient nutritional counseling that were denied because the treatment was “not a covered benefit.”

    Motion to Exclude

    Fox also opines that, during the same period, 1,300 to 1,795 Oxford members per year would have received nutritional counseling for their EDs, had it been a covered benefit, and that 513 to 709 Oxford members per year actually did receive such treatment.

    Oxford filed a motion to exclude Fox’s opinions pursuant to Fed. R. Evid. 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny.

    Economics Expert Witness

    Frank Fox is an economist, who has owned and operated his own consulting practice since 1996. He earned his Ph.D. in Economics from the University of Washington in 1977. He has extensive experience providing expert testimony estimating utilization and cost expenditures for various disease states.

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

    Discussion by the Court

    In his initial declaration, Fox (i) estimates the number of Oxford members in New York who received nutritional counseling for EDs between November 30, 2015 and the present (the Study Period); (ii) analyzes the claims data produced by Oxford (OXF0032564) to independently determine the number of claims for such counseling that were submitted over the Study Period, as well as those that were denied on the ground that the services were not covered; and (iii) compares the two sets of figures, offering a hypothesis as to the difference.

    In his supplemental declaration, Fox defends his analysis against Michael J.  Petron’s challenges. He disagreed with Petron’s definition of an “allowed” claim, calling it “overly expansive.” Even using that expansive definition, Fox counts 413 unique members whose nutritional counseling claims for EDs were denied before Oxford’s 2021 reconfiguration, and estimates that there were 430 (still well above the numerosity threshold) across the entire Study Period. Fox also “disagree[s] with Petron’s conclusion that it is not possible to estimate the population of individuals within the proposed Class from the provided Claims Data.” He argued that Petron’s “conjectured hypothetical” that some nutritional counseling claims might have been denied for other reasons is “meaningless,” because, by definition, a member with an ED whose claim was denied for lack of coverage meets the criteria for inclusion in the class.

    Lastly (as relevant here), Fox agreed that his utilization estimates for nutritional counseling are based on “statistics with degrees of uncertainty,” but defended his conclusions as “reliable and reasonable” in light of available data.

    In their class certification papers, Plaintiffs relied on Fox’s work to show that both the Denied Claims Subclass and No Claims Subclass were sufficiently numerous to permit certification.

    Reliability

    Oxford challenged the reliability of Fox’s opinions on several different grounds.

    Rule 26(a)(1)(B)

    During his deposition, Fox drew a distinction between a declaration and an expert report. He explained that his initial declaration (at 14 pages, not including his CV and list of prior testimony) “was intended to be succinct,”  whereas, in his experience, expert reports are longer, “more like 40 to 80 pages,” “much more in depth, [with] much more support, much more analysis, much more exploration of why I reached the conclusions I did, more quantitative, more qualitative.” From this testimony, Oxford concluded that Fox has “admitted” that neither of his declarations is an expert report “as required by the Federal Rules of Civil Procedure,” and has “fully acknowledged” that his testimony “does not even come close to meeting the exacting standard for reliable testimony.”

    The Court held that Fox’s declarations satisfy this standard. Although Oxford argued that Fox failed to “test certain assumptions,” failed to “comprehensively analyze the studies he relied upon,” and failed to “document his assessment” of those studies, these critiques go to the quality of his analysis, not his compliance with Rule 26(a)(2)(b).

    Insufficient Data

    Oxford argued that Fox’s estimates are unreliable because he had insufficient data to “validate his assumptions.”

    Specifically, Oxford asserted, Fox failed to validate his “assumption that the age and sex mix of Oxford’s ERISA plan members is comparable to that of the entire state [of] New York,” because he “didn’t have the data.” But Oxford — which does have the data — offers no reason to believe that the age and sex mix of its covered population in New York differs in any material respect from the age and sex mix of all New York residents.

    Oxford also faults Fox for relying on the 2019 Ward Study for his estimates of “one-year treatment rates by condition,” without “validating his assumptions.” At deposition, Fox explained that “he did not have any ‘better data than the originators of the study.” 

    According to Oxford, this rendered Fox’s opinions “unreliable and subject to exclusion.” The Court noted that Defendant presented no inconsistent data or contradictory research. Nor does it suggest that experts in Fox’s field cannot “reasonably rely” on prior academic research such as the Ward Study to construct healthcare utilization models. 

    The courts draw a distinction between insufficient data and imperfect data. If a proposed expert lacks the basic information required by professionals in his field to form an opinion, his testimony will be excluded.

    The Court held that Defendant has failed to show either that Fox’s opinions were based on “insufficient data,” in violation of Rule 702, or that he relied upon facts or data beyond those that experts in his field “would reasonably rely on,” in violation of Rule 703.

     Unrepresentative Studies

    Lastly, Oxford contended that the studies upon which Fox relied rendered his opinions unreliable because they were too old, not specific to New York, or “cherry-picked” to support Fox’s conclusions. For example, Oxford questioned Fox’s reliance on the “first nationally representative study of eating disorders in the United States,” because he “did not perform any analysis to confirm that this data was representative of recent nutritional counseling rates in New York for eating disorders.” But Fox did not rely on the Hudson Study to determine “recent nutritional counseling rates in New York.” He relied on it (in part) to determine overall “treatment rates” for EDs. And Oxford offered no reason to believe that overall ED treatment rates in the State of New York are materially different from those in the rest of the country.

    The research that Fox actually relied on for his “low estimate” (that 24% of the Oxford members in New York who were in treatment for their EDs received nutritional counseling as part of their treatment) was the Yager Survey, published in 1989, based on a survey of 641 American women with eating disorders. Oxford characterizes that data as “outdated” and argues that it “cannot be used to reliably forecast current eating disorder treatment trends.”

    The Court held that although Oxford might have raised questions about some of the assumptions made by Fox, it has not shown that his reliance on the Ward Study, the Hudson Study, or the Yager Survey is “so ‘speculative,’ ‘conjectural,’ or ‘unrealistic and contradictory’ that they render his estimate of [ED treatment utilization] fundamentally unreliable.”

    Held

    The Court denied the Defendant’s motion to exclude Frank Fox’s opinions.

    Key Takeaways:

    • An expert need not base his or her opinion on the best possible evidence, regardless of availability, but upon good grounds, based on what is known.
    • Imperfect data goes to the weight of the expert’s opinion, not its admissibility, and is not grounds for exclusion. 

    Case Details:

    Case Caption: Molly C. Et Al V. Oxford Health Insurance, Inc.
    Docket Number: 1:21cv10144
    Court: United States District Court, New York Southern
    Order Date: November 21, 2024
  • Economics Expert Witness’ Opinion on the Necessity, or Lack Thereof, of Expert Economic Analysis Excluded

    Economics Expert Witness’ Opinion on the Necessity, or Lack Thereof, of Expert Economic Analysis Excluded

    The tenant-Plaintiffs in this case alleged that the Defendants, a national real estate investment and property management conglomerate, use illegal leases and engage in practices that violate the Plaintiffs’ rights under Washington’s Residential Landlord Tenant Act (“RLTA”).

    The Plaintiffs also contend that the Defendants breached their duty of good faith and fair dealing. They sought damages, declaratory relief, and prospective injunctive relief.

    Plaintiffs asserted additional claims which have been dismissed. Certain grounds for their claims under the RLTA, and for the breach of the duty of good faith and fair dealing, were dismissed. Additionally, their claims for violations of the Washington Consumer Protection Act, unjust enrichment, retrospective injunctive relief, rescission, restitution, and disgorgement have also been dismissed.

    After their first motion to certify a class was denied without prejudice, the Plaintiffs moved for a second time for class certification, appointment of class representatives, and appointment of class counsel. Defendants filed a motion to exclude Plaintiffs’ damages expert, Robert Kneuper.

    Economics Expert Witness

    Robert Kneuper is currently a Managing Director and Expert Economist with McClave + Associates (“MC+A”), formerly Infotech Consulting. He has also served as an Adjunct Professor at Loyola University Chicago School of Law, Charleston Southern University, and Johns Hopkins University, where he has taught courses in antitrust economics, managerial economics, corporate finance, and political economy. With over 30 years of experience, Kneuper has worked as an antitrust, regulatory, and financial economist in both the federal government and private consulting. He has contributed to a wide variety of economic and financial consulting matters for private clients and government bodies.

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

    Discussion by the Court

    August 15, 2023 Opinion

    Kneuper’s August 15, 2023 opinion was on the putative maintenance and repair subclass’s damages.  The putative maintenance and repair subclass and its claims are not suitable for class certification. Accordingly, the Court decided that Kneuper’s opinion on Plaintiffs’ classwide RLTA repair and maintenance damages claims is not “relevant to the task at hand” relating to those claims.

    September 17, 2024 Supplemental Opinion

    In his September 17, 2024 supplemental declaration, Kneuper opined that “expert economic analysis is unnecessary” with respect to the other subclasses’ damages claims. He contended that fees charged could be presented to a factfinder in a “summary fashion, such as through a ‘summary, chart, or calculation’ which [he] underst[ood] is permitted under Rule 1006 of the Federal Rules of Evidence.” According to Kneuper, “a person with general familiarity and experience with reviewing financial documents (e.g. an accountant) could review and analyze Defendants’ ledgers and perform such calculations.”

    The Court excluded Kneuper’s opinion, that no expert economic analysis is necessary to determine the remaining subclasses damage because there is no showing that this opinion will “help the trier of fact to understand the evidence or to determine a fact in issue.”

    Further, to the extent that Kneuper opines on whether the subclasses’ damages evidence is admissible under Rule 1006 of the Federal Rules of Evidence, it was held that those are determinations for the Court.

    Held

    • The Court granted in part and denied in part the Plaintiffs’ amended motion for class certification and for appointment of class representatives and class counsel.
    • The Court granted Defendants’ motion to exclude the opinions of Robert Kneuper, Ph.D.

    Key Takeaway:

    Kneuper’s opinion that no expert economic analysis is necessary to determine the remaining subclass’s damages was considered unhelpful. Moreover, Kneuper was not allowed to opine on whether the subclass’s damages evidence is admissible under Rule 1006 of the Federal Rules of Evidence because the Court was meant to determine that issue.

    Case Details:

    Case Caption: Richmond Et Al V. Home Partners Holdings Llc Et Al
    Docket Number: 3:22cv5704
    Court: United States District Court, Washington Western
    Order Date: November 19, 2024