Expert Witness Profiler

Category: Economics Expert Witness

  • Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Carol Stepien is a former employee of the National Oceanic and Atmospheric Administration (“NOAA”) in Seattle. She  worked at the Pacific Marine Environmental Laboratory (“PMEL”), a lab within NOAA, an agency in the Department of Commerce. She contended that NOAA had discriminated against her based on her sex and age, subjected her to a hostile work environment, and retaliated against her when she complained. NOAA countered that Stepien had engaged in various forms of misconduct, including mistreating colleagues, as detailed in an extensive, independent investigation.

    Stepien sought to exclude Erick West‘s testimony regarding mitigation, backpay, front pay, and lost retirement benefits while NOAA sought to exclude some of the opinions of Deborah Diamond, Stepien’s expert on “HR and [i]nvestigations.” 

    Economics Expert Witness

    Erick West has bachelor’s and master’s degrees in economics from the Washington State University and has been working as an economist since 2003. He is a forensic economist who serves as the President of West Economics, Inc. He has extensive experience investigating economic damages involving hundreds of different occupations and industries.

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

    Human Resources Expert Witness

    Deborah Diamond has worked as “a federal manager, management official, agency-grievance examiner, and certified mediator,” and has “extensive knowledge of federal government human-resource policies and procedures, including those regarding discipline.” She has worked as an EEO Officer and an investigator for the IRS, and as an independent fact-finder and licensed private investigator. 

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

    Discussion by the Court

    Stepien’s Motion to Exclude Erick West

    Stepien contended that although she has diligently searched for another job since leaving NOAA, she has been unable to obtain other employment. NOAA asserted an affirmative defense that Stepien failed to mitigate her damages, and disclosed Erick West as a rebuttal expert regarding Stepien’s claimed damages.

    West opined about the amount of Stepien’s past lost wages, health, and TSP benefits; her future lost wages, health, and TSP benefits; and her future lost FERS pension benefits. He calculated how her salary would have increased over time had she remained employed with NOAA, and noted the cash awards she could have received. West also opined that “with a reasonable job search effort, Stepien should have been able to secure alternative employment by at least April 1, 2023 that was commensurate with her education and extensive work experience.” He bases that conclusion on statistics from the U.S. Bureau of Labor Statistics (“BLS”) regarding the average duration of unemployment for job seekers in 2021 and 2022.

    Methodology

    Stepien argued that West cannot opine regarding whether she conducted a reasonable job search. Stepien also argued that West should not be permitted to testify regarding whether she would have found a job within two years based on BLS data because those statistics are “not even tailored to a person of her educational background and experience.”

    The Court held that the the problem here is not the reliability of BLS data in general, but the fact that West fails to set forth how he reached his assumption that it should have taken Stepien no more than two years (three to four times the average length of time) to obtain a job “that was commensurate with her education and extensive work experience.”

    West did not specify what that methodology was or how he applied it here to discern the amount of time it should have taken Stepien to secure another job. 

    Helpfulness to the Trier of Fact 

    West’s report listed six positions “that are commensurate with Stepien’s education and employment history.” The Court held that opinion to be the province of a vocational expert, which West was not.

    Even if West had the requisite experience to opine on this issue, his opinion about other “commensurate” positions is not helpful to the trier of fact because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    However, Stepien did not dispute that West’s analysis of Stepien’s alleged lost past and future wages and benefits, salary growth at NOAA, her paid health benefits, employer-paid retirement benefits, worklife expectancy, and life expectancy were within his expertise, consistent with Rule 702.

    NOAA’s Motion to Exclude Certain Testimony of Deborah Diamond

    NOAA noted that Diamond offered opinions “about the investigatory process, or what she describes as ‘investigating the investigations.’” Although NOAA contended that those opinions “are of little relevance,” it “did not challenge them.”

    NOAA objected to Diamond’s opinions about whether NOAA’s selected discipline complied with NOAA and DOC policies and “industry standards” as well as its administrative leave policy. It also sought to exclude Diamond’s opinions about whether NOAA retaliated against Stepien.

    Diamond opined on generally accepted standards of performance, included a chart regarding how NOAA “addressed Stepien’s performance/conduct issues compared to the standard practices for addressing performance/conduct issues,” opined that discipline should be “progressive,” and opined “on whether the discipline imposed was administered appropriately” to Stepien. She described generally accepted standards regarding when and how administrative leave should be used. Diamond opined, among other things, that “[f]or most human resource professionals, the decision to discipline Dr. Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable Equal Employment Opportunity (EEO) laws.”

    Helpfulness to the Trier of Fact 

    The Court held that the issue is not whether NOAA followed best practices but rather whether it followed its own policies, and whether its stated reasons for its actions were honest or the product of discrimination or retaliation. For the same reasons, Diamond’s opinions regarding adherence to industry standards and her suggestion of a lengthier progressive discipline process would not be helpful to the trier of fact. Moreover, NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    NOAA also argued that Diamond’s opinions about why the agency placed Stepien on administrative leave and requested a supplemental investigation are speculative and must therefore be excluded. Diamond opined during her deposition that NOAA might have (1) extended Stepien’s leave to create an opportunity for her to engage in further misconduct, (2) obtained a supplemental report from the investigators for improper reasons, and (3) added a broad conduct unbecoming allegation because the agency was not confident that other charges would be sustained.

    However, Diamond conceded that she had not seen any evidence to support her theory regarding the supplemental report and was speculating regarding the inclusion of the conduct unbecoming charge. The Court ruled that her “unsubstantiated speculation and subjective beliefs” do not equate to the specialized knowledge required for admissibility under Rule 702.

    Legal Conclusions

    NOAA argued that Diamond’s opinions regarding retaliation go to the ultimate issue, which is the province of the trier of fact. Diamond’s report opined: “For most human resource professionals, the decision to discipline Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable EEO laws.”

    Stepien argued that those statements do not “offer opinions that state whether Defendant retaliated or discriminated against Stepien,” but they are opinions on that front. The Court excluded those opinions as improper legal conclusions.

    One issue remained: NOAA argued that Diamond cannot base her opinions on evidence that Stepien allegedly “misappropriated” from NOAA. Stepien sought to strike that argument and the corresponding declaration paragraphs that addressed it. The Court found that Diamond’s non-investigation-related opinions were inadmissible for other reasons and declared the issue moot for purposes of this motion but added that it may be renewed in an appropriate motion in limine.

    Held

    The Court granted in part and denied in part Stepien’s motion to exclude the testimony of Erick West, and granted NOAA’s motion to exclude certain testimony of Deborah Diamond.

    Key Takeaway:

    The Court ruled that West’s opinions regarding the “average duration of unemployment” for other workers and “what specific jobs are “commensurate with Stepien’s education and employment history” were inadmissible because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    Diamond stated that the agency “did not follow some of its own policies and generally accepted standards when investigating and resolving Stepien’s EEO and 955 complaints, administering discipline in a constructive, progressive, consistent and timely manner, or following the rules for placing Stepien on extended administrative leave.” The Court held that NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    Case Details:

    Case Caption: Stepien V. Raimondo Et Al
    Docket Number: 2:21cv1410
    Court: United States District Court, Washington Western
    Order Date: September 4, 2024

  • Economics Expert Witness’ Conclusions Regarding Lost Profits Damages Admitted

    Economics Expert Witness’ Conclusions Regarding Lost Profits Damages Admitted

    In this action, the Frazier Parties alleged that the Eagle Air Parties lacked probable cause to sue them for defamation and other similar claims in an underlying lawsuit that concluded in 2020 (the “Underlying Action”). The Frazier Parties claimed that the Underlying Action damaged Sentinel’s existing or prospective client relationships, resulting in lost profits of at least several million dollars.

    Defendants Eagle Air Med Corporation and Valley Med Flight, Inc. filed a motion to exclude the testimony of proposed expert witness Dr. Ronald Luke, who was retained by Plaintiffs Jeffrey Frazier and Sentinel Air Medical Alliance, LLC under Fed. R. Evid. 702.

    Economics Expert Witness

    Ronald T. Luke has developed Research & Planning Consultants as an inter-disciplinary firm providing economic, financial, and public policy studies. As President and owner, he supervises RPC’s professional staff and maintains high standards for the firm’s work products. Also, he has been accepted as an expert in economics, socioeconomic impact analysis, and policy analysis by state and federal courts, and state administrative agencies.

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

    Discussion by the Court

    To begin with, Defendants’ motion primarily addressed the reliability of Luke’s expert testimony and did not challenge the qualifications of Luke. Defendants argued that (1) “Luke’s opinions regarding Sentinel’s lost profits damages are unreliable and inadmissible under Rule 702[,]” and (2) “any opinion [Luke] might try to offer on the litigation-related damages would be unhelpful and inadmissible.”

    Also, Defendants argued that “Luke’s lost profit opinions rests on unreasonable assumptions that are unsupported by the record” and “Luke failed to properly account for other factors that might affect the amount and existence of Sentinel’s alleged lost profits.” According to Defendants, Luke did not use a discount rate that accounted for certain risk factors in his calculations that other experts use in similar analyses, and he used a ten-year time period for his calculations.

    The Court held that the fact that Luke’s opinion and analysis take into account facts that are still in dispute does not justify exclusion of his expert testimony and report.

    As for the litigation expense damages, Defendants sought to exclude Luke’s inclusion of the litigation expense damages because he did not calculate, analyze, or offer expert opinion related to these damages. There is no indication in the report that Luke himself calculated the litigation expense damages; rather, he merely included the previously calculated litigation expenses in his lost profits analysis based on the other information in the record. Defendants did not dispute that there is evidence in the record supporting the litigation expenses. Therefore, Defendants did not provide grounds for the exclusion of litigation expenses in Luke’s report at that point.

    The Court reviewed Luke’s expert report and found that he had a reasonable basis for reaching his conclusions regarding Sentinel’s lost profits damages.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Plaintiffs’ proposed expert Ronald Luke.

    Key Takeaway:

    • Exclusion is not warranted just because Luke’s opinion and analysis take into account facts that are still in dispute
    • Luke’s inclusion of the litigation expense damages was not excluded due to evidence in the record supporting the litigation expenses. 

    Please refer to the blog previously published about this case: Law And Legal Expert Witness’ Testimony as to the Existence of Probable Cause Excluded

    Case Details:

    Case Caption: Frazier Et Al V. Eagle Air Med Corporation Et Al
    Docket Number: 2:22cv300
    Court: United States District Court, Utah
    Order Date: August 27, 2024
  • Testimony of Economics Expert Witness Excluded Because of his Inability To Produce a Coherent Model

    Testimony of Economics Expert Witness Excluded Because of his Inability To Produce a Coherent Model

    Plaintiffs brought an antitrust lawsuit against Defendants, asserting that Defendants entered a set of agreements with each other and their broadcast partners that suppressed the output of telecasts of out-of-market professional football games, resulting in higher prices for Sunday Ticket.

    Since Judge Philip Gutierrez decided the opinions provided by the Plaintiffs’ expert witnesses regarding financial damages were not reliable, the Sunday Ticket Plaintiffs won’t be getting a mulligan on damages, at least not for now.

    Daniel Rascher, one of the expert witnesses whose testimony was allowed until it wasn’t, crafted a model based on the NFL ditching Sunday Ticket and selling the out-of-market games to various networks that would broadcast the feeds from CBS and Fox.

    Economics Expert Witness

    Daniel Rascher has taught sports economics and finance, business research methods, and master’s project. As President of SportsEconomics, his clients have included organizations involved in the NBA, NFL, MLB, NHL, NCAA, NASCAR, MLS, PGA, WTA, media, sporting goods and apparel, professional boxing, mixed martial arts, minor league baseball, NHRA, AHL, Formula 1. He has authored articles for academic and professional journals, book chapters, and a text book in the sport management and economics fields, has been interviewed hundreds of times by the media for his opinion on various aspects of the business of sports, and has given over fifty presentations at professional and academic conferences.

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

    Discussion by the Court

    Rascher used college football as his model of what would happen in the absence of the competitive restraints at issue in the case (“college football but-for world”). He opined that if the NFL Teams stopped “colluding and selling” their out-of-market games through the NFL, but sold them either independently or in divisions, the result would be like college football as the games would “become available, just like on Saturday, on over-the-air channels and . . . basic sport cable channels” and customers would not “pay anything extra above what they were already paying for their TV package.”

    Judge Gutierrez held that Rascher’s failure to produce a coherent model is particularly problematic as there are significant differences between college football and the outcome in his college football but-for world. Unlike Rascher’s college but-for world, not all college football games are available on over-the-air networks and on the major cable stations as some college football games—including games of top 25 ranked teams—were available only by purchasing premium offerings like the Pac 12, SEC, or ACC network packages or viewable only on local regional networks.

    The judge upheld the finding that Sunday Ticket, as constructed, violated federal antitrust laws. 

    From June 5, 2024 to June 26, 2024, a trial took place, where the jury found that Defendants’ conduct violated § 1 and § 2 of the Sherman Act. The jury awarded the Commercial Class $96,928,272.90 and the Residential Class $4,610,331,671.74 in damages.

    Judge Gutierrez specifically found that there was enough evidence to justify the verdict as to the issue of liability. He threw the verdict out because he determined that the expert witnesses he allowed to testify weren’t reliable.

    Held

    The Court excluded Daniel Rascher’s testimony under FRE 702 because it relied on a college football model that was developed based on speculation and ipse dixit opinion.

    Key Takeaway:

    After review of Rascher’s testimony, the Court finds that his college but-for world was not based on a reliable methodology but rather ipse dixit opinion untethered to an economic analysis of what would have likely occurred in the but-for world and must be excluded. Rascher had to present a but-for world grounded in economic rationality.

    Case Details:

    Case Caption: In re: NFL “Sunday Ticket” Antitrust Litigation
    Docket Number: 2:15ml2668
    Court: United States District Court for the Central District of California
    Order Date: August 01, 2024
  • Economics Expert Witness’ Report ran afoul of Rule 26 Requirements

    Economics Expert Witness’ Report ran afoul of Rule 26 Requirements

    Plaintiff, a long-time employee of Chevron, filed his First Amended Complaint on August 22, 2023 and alleged that Chevron’s Pascagoula Refinery had been marred by racism and sexism, that his contributions to the company exceeded his compensation, and that “discriminatory practices have prevented him from being promoted.”

    The issue before the Court is whether the expert witness report for Plaintiff’s damages expert should be stricken. On July 19, 2024, Plaintiff designated Charles Baum as a damages expert and provided Defendant with a copy of Baum’s expert report.

    Defendant argued that Baum’s report ran afoul of Fed. R. Civ. P. 26(a)(2)(B)(ii) as the report “failed to identify all the documents upon which Baum relied in forming his expert opinions.” Specifically, Defendant contended that the following documents relied upon by Plaintiff’s expert were not clearly identified in the expert report nor were they produced by Plaintiff: (i) Income tax statement for [Plaintiff] for 2023 (ii) Chevron employee savings investment plan (January 1, 2014) (iii) Chevron employment benefits for [Plaintiff] (various dates).

    Economics Expert Witness

    Charles L. Baum II is a professor of economics and finance at Middle Tennessee State University. Moreover, he has a Ph.D. in economics from the University of North Carolina at Chapel Hill. In addition, he holds both a B.A. in political science and a B.A. in economics from Wake Forest University.

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

    Discussion by the Court

    Income Tax Statement for [Plaintiff] for 2023

    Regarding the “Income Tax Statement for [Plaintiff] for 2023,” Defendant claimed that Plaintiff has not produced any tax-related records for 2023.

    The Court held that Defendant should not be obligated to engage in guesswork as to which document may (or may not) be the “Income Tax Statement for [Plaintiff] for 2023” relied upon in Baum’s expert report. Nor should the Court. Accordingly, the Court found that the document identified as “Income Tax Statement for [Plaintiff] for 2023” was not properly disclosed in Baum’s expert report.

    Chevron employee savings investment plan (January 1, 2014)” and “Chevron employment benefits for [Plaintiff] (various dates)

    As to the other documents, Defendant asserted that Plaintiff has not produced any employee savings investment plan dated January 1, 2024, nor any documents related to “employment benefits” for any date.

    It is Plaintiff’s obligation under Fed. R. Civ. P. 26(a)(2)(B)(ii) to disclose “the facts or data considered by” Baum in forming his opinion. Plaintiff has not convinced the Court that he provided Defendant with the documents titled “Income tax statement for [Plaintiff] for 2023,” “Chevron employee savings investment plan (January 1, 2014),” or “Chevron employment benefits for [Plaintiff] (various dates)” as relied upon in Baum’s expert report.

    Authority to Strike

    Under Rule 37(c)(1), a party who fails to provide information required by Rule 26(a) “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”

    Turning to the first factor, and as noted above, Plaintiff does not explicitly dispute whether he provided the documents at issue that were relied upon in Baum’s expert report. Rather, he contends that Defendant either possessed the documents at issue or that it was obligated to produce them. Plaintiff ignores the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demands that he provide the documents relied upon in Baum’s written report. This factor weighs in favor of exclusion.

    As for the second factor, Baum’s testimony is certainly important. Baum is the only expert designated by Plaintiff to support any evaluation of damages in this matter. This factor weighs against exclusion.

    As for the third factor, Defendant contends that, without an adequate report, it has been prejudiced. Specifically, Defendant argues that it has been prevented from “adequate[ly] prepar[ing] for its expert designation, which is due August 20, 2024.” This factor slightly favors exclusion, but, as discussed below, any such prejudice can be cured. Finally, the Court may cure any prejudice to Defendant by allowing Plaintiff to supplement Baum’s report and by granting an extension of Defendant’s expert designation deadline.

    On balance, the Court found that striking Baum’s report is too harsh a remedy under the circumstances.

    Held

    In conclusion, the Court granted in part and denied in part the Defendant Chevron U.S.A., Inc.’s motion to strike the report of Plaintiff’s expert economist, Charles Baum.

    Key Takeaway:

    • First, the mere fact that the information relied upon in the report is public information does not absolve Plaintiff from disclosing it.
    • Second, Plaintiff ignored the mandates of Fed. R. Civ. P. 26(a)(2)(B)(ii) which demanded that he provide the documents relied upon in Baum’s written report.
    Case Caption: Harness V. Chevron U.S.A., Inc.
    Docket Number: 1:23cv210
    Court: United States District Court, Mississippi Southern
    Order Date: August 19, 2024
  • Economics Expert Witness Employs a “Before and After” Methodology to Quantify Plaintiff’s Damages

    Economics Expert Witness Employs a “Before and After” Methodology to Quantify Plaintiff’s Damages

    This action arises out of an alleged October 22, 2016 arrest and subsequent criminal prosecution of Plaintiff, which concluded with Plaintiff’s conviction for misdemeanor battery upon Officer Ermeri.

    On October 20, 2020, Plaintiff Richard John Lucibella (“Lucibella”) filed a nine-count complaint in state court against Officer Richard Ermeri (“Ermeri”), Officer Savino (“Savino”), and the Town of Ocean Ridge (“the Town”).

    Defendants filed a motion to strike a supplemental report provided by Fishkind, arguing that Plaintiff cannot establish substantial justification for the untimely disclosure, that the disclosure constitutes unfair surprise, and that the disclosure is inherently harmful.

    Defendants also filed a Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness, Henry Hank Fishkind. The crux of the motion to exclude Fishkind’s opinion testimony contended that he did not have the qualifications and experience necessary to render expert opinions on health care economics and that his methodology is neither reliable nor helpful to the jury. 

    Economics Expert Witness

    Henry Hank Fishkind is widely regarded as one of Florida’s premier economists and financial advisors. Fishkind’s career began in the public sector where he worked as an economist and associate professor at the University of Florida. In 1980, Fishkind became the associate director for programs at the University of Florida’s Bureau of Economic and Business Research. During his tenure at the university, Fishkind served from 1979-1981 on the governor’s economic advisory board. He began his career as a private sector consultant when he became president of M.G. Lewis Econometrics in Winter Park, Florida. In 1988, Fishkind formed Fishkind & Associates, Inc. as a full service economic and financial consulting firm.

    He has a Ph.D. in economics with specialties in Urban and Regional
    Economics and in Econometrics.

    Want to know more about the challenges Henry Hank Fishkind has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Defendants’ Motion To Strike Plaintiff’s Untimely Expert Disclosure

    The Court held that Fishkind was justified in providing the late-disclosed November Report because he did not have the necessary information, which was disclosed by Defendants after Fishkind’s initial report disclosure.

    The remainder of Fishkind’s November Report consisted of information that district courts in the Southern District of Florida have deemed admissible routinely. 

    Fishkind informed Defendants in his deposition that he would need to produce a supplemental report, and Fishkind’s tardy disclosure was justified based on the aforementioned difficulties with obtaining information, documents, and deposition testimony.

    The Court found that the untimely disclosure of Fishkind’s November Report was substantially justified, harmless, and that Defendants are not unfairly prejudiced by the untimely disclosure—thereby satisfying Rule 37‘s admissibility standard.

    Defendant’s Motion To Exclude The Testimony And Opinions Of Hank Fishkind

    Qualifications

    Defendants argued that Fishkind is not qualified to testify with respect to the subject-matter proffered by Plaintiff. The Court disagreed. Fishkind reviewed thousands of pages of financial and other records in this case.

    While Defendants argued that Fishkind lacked the qualifications and experience necessary to render opinions about health care economics, the Eleventh Circuit has allowed expert testimony in similar situations.

    Reliability and Helpfulness

    Fishkind used a “before and after” methodology to quantify Lucibella’s economic damages. 

    In calculating economic damages using the “before and after” method, Fishkind measured other factors such as economic considerations, regulatory changes, and Centers for Medicare & Medicaid Services policy changes, all of which could have explained the deterioration of the financial performance of Lucibella’s business outside of the impacts stemming from alleged wrongful acts. Fishkind’s report also supplied methodology explaining how he calculated the deterioration in risk rating of Lucibella’s business. 

    The Court found that most of the facts and/or data that Fishkind relied upon in calculating economic damages are the kind of information that economic experts would reasonably rely on in their field of expertise and in accordance with Federal Rule of Evidence 703.

    The Court, however, held that Fishkind’s report contains two specific opinions that are not rooted in well-established and reliable methodology and are therefore inadmissible. Fishkind merely relied on Lucibella’s own statements, never quantified the impact of Lucibella’s defense on the management of his business, and never quantified the amount of time that Lucibella devoted to his defense. 

    Finally, as it relates to the remaining claims in this matter—excessive force (Count II) and unlawful search of property (Count VII)—the Court found a sufficient nexus between the alleged acts from the date of the subject incident, the State of Florida disqualifying Lucibella from employment with State-licensed healthcare providers and the State’s Medicaid Program, and Fishkind’s economic calculations.

    Held

    The Court granted in part and denied in part the Defendant’s Daubert motion to exclude testimony and opinions of Plaintiff’s purported expert witness Hank Fishkind.

    Key Takeaway:

    • Fishkind’s expert report utilized metrics such as (1) risk rating impact and (2) reduction in growth rate to quantify his “before and after” methodology. The Court found Fishkind’s reasoning and usage of the “before and after” methodology sufficient to withstand Daubert scrutiny.
    • In calculating economic damages using the “before and after” method, Fishkind reviewed tax returns for Lucibella’s umbrella company along with detailed profit/loss statements for the underlying businesses. Additionally, Fishkind analyzed financial documents from 2012 to 2020 related to Lucibella’s businesses.
    • Fishkind’s damages opinion that relies upon the economic impact of the State’s disqualification is admissible—provided that sufficient facts are adduced and found at trial to support the existence of the alleged acts, the disqualification of Lucibella’s business, and causation that connects them.

    Case Details:

    Case Caption: Lucibella V. Town Of Ocean Ridge Et Al
    Docket Number: 9:20cv82156
    Court: United States District Court, Florida Southern
    Order Date: August 13, 2024
  • Montana Court rules against “fossil fuel–based provisions” in favor of a “clean and healthful environment”

    Montana Court rules against “fossil fuel–based provisions” in favor of a “clean and healthful environment”

    On March 13, 2020, sixteen Montana youth (collectively Plaintiffs or Youth Plaintiffs), then between two and 18 years old, filed a complaint against the State of Montana challenging the constitutionality of the State’s fossil fuel-based state energy system, which they alleged caused and contributed to climate change in violation of their constitutional rights guaranteed under Article II, Section 3; Article II, Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1; Article IX, Section 3 of the Montana Constitution; and the Public Trust Doctrine. 

    Specifically, the complaint challenged the constitutionality of certain fossil fuel-based provisions which prohibited the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews; and the aggregate acts the State took to implement and perpetuate a fossil fuel-based energy system.

    Youth Plaintiffs asked the Court to acknowledge the [Montana Environmental Policy Act] Limitation’s contribution to the depletion and degradation of Montana’s environment and natural resources.

    Ecology Expert Witnesses

    Dr. Steven Running is a University Regents Professor Emeritus of Global Ecology in the College of Forestry and Conservation at the University of Montana. Running currently co-chairs the standing Committee for Earth Science and Application from Space of the National Academy of Science. In 2007, Running shared the honor of the Nobel Peace Prize as a chapter Lead Author for the 4th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC).

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

    Dr. Dan Fagre holds a Ph.D. from the University of California, Davis. He joined the National Park Service as a research scientist in 1989 and, in 1991, he became the Climate Change Research Coordinator at Glacier National Park as part of the nationwide United States Global Change Research Program. His position was transferred to the United States Geological Survey (USGS), where he served until his retirement in 2020, after which he has continued as Scientist Emeritus. He also served as a Research Ecologist at the Northern Rocky Mountain Science Center.

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

    Dr. Jack Stanford received his Ph.D. in Freshwater Ecology at the University of Utah.He is Professor Emeritus at the Flathead Lake Biological Station (FLBS) of the University of Montana. He was the Director and Bierman Professor of Ecology at the University of Montana (1980-2016). His primary area of research is aquatic ecosystem processes, including influences of human activities. 

    Now that Held V. State has raised Jack Stanford’s profile, gauge if a deeper dive into his background is warranted through our Preliminary Screening. 

    Life and Earth Sciences Expert Witness

    Dr. Cathy Whitlock is Regents Professor Emerita of Earth Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State University (MSU). Whitlock was lead author of the 2017 Montana Climate Assessment, and in 2020 co-authored a state-level Montana Climate Solutions Plan and a 2021 special report of the Montana Climate Assessment entitled Climate Change and Human Health in Montana. Whitlock was also co-lead author of the 2021 Greater Yellowstone Climate Assessment.

    See Cathy Whitlock’s broader expert witness experience beyond Held V. State with our in-depth Expert Witness Profile.

    Climate Change Expert Witnesses

    Dr. Lori Byron obtained a Doctor of Medicine degree in 1984. She has been a board-certified pediatrician since 1988. Byron earned a M.S. in Energy Policy and Climate from Johns Hopkins in 2020. From 1988-2015, Byron worked with the Indian Health Service in Crow Agency, Montana, providing primary care, emergency care, and public health services to Crow Indian children. Byron now works as a pediatric hospitalist at SCL Health in Billings, Montana. Byron has decades of experience caring for children who have suffered Adverse Childhood Events (ACEs). Over the past decade, Lori Byron and her husband, Rob Byron, have made presentations on climate change and health locally, nationally, and internationally.

    Discover more cases with Lori Byron as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Dr. Lise Van Susteren is a board certified general and forensics clinical psychiatrist, in practice for thirty years. She is a Clinical Associate Professor of Psychiatry and Behavioral Sciences at George Washington University in Washington, D.C. In 2009, Van Susteren co-convened one of the first conferences on the psychological effects of climate change. In 2013, Van Susteren worked with Dr. James Hansen and other experts on a paper, Assessing “Dangerous Climate Change”: Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature. She received the Distinguished Fellow award of the American Psychiatric Association, its highest membership honor in May 2018. Van Susteren has helped develop youth climate anxiety assessment tools, conducted research and reviewed data in assessing the mental health of young people faced with climate change.

    Get in-depth insights into Lise Van Susteren’s expert witness experience by requesting her Expert Witness Profile today.

    Environmental Science Expert Witness

    Michael Durglo, Jr., is a member of the Confederated Salish and Kootenai Tribes (CSKT). He has a Bachelor of Science degree in Environmental Science from Salish Kootenai College. Durglo has worked in different capacities for the CSKT for over three decades. In his current role as Head of the Tribal Preservation Department and Chairman of the Climate Change Advisory (CCAC), Durglo has worked extensively with tribal elders and youth on climate related issues.

    Gain a comprehensive understanding of Michael Durglo’s qualifications and casework history with his Expert Witness Profile report.

    Environmental Law Expert Witness

    Anne Hedges received a B.S. in environmental policy analysis and planning from the University of California at Davis in 1988 and a Master of Environmental Law, magna cum laude, from Vermont Law School in 1993. She is Co-Director and Director of Policy and Legislative Affairs at the Montana Environmental Information Center (MEIC). She directs MEIC’s program work, including its legislative, regulatory, policy, and legal activities.

    Gain a comprehensive understanding of Anne Hedges’ qualifications and casework history with her Expert Witness Profile report.

    Environmental Expert Witness

    Peter Erickson received a bachelor’s degree in Geology in 1998 at Carleton College, Minnesota, as well as coursework in intermediate microeconomics and macroeconomics at the University of Washington. Erickson has worked as an environmental and climate policy and technical analyst in greenhouse gas emission accounting, most recently with the Stockholm Environment Institute, an international research institution providing, in part, technical analysis to government and NGOs on the details of climate policy and emissions accounting.

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

    Economics Expert Witness

    Terry Anderson has published widely in the popular press and professional journals, including The Wall Street Journal, Christian Science Monitor, Fly Fisherman, Journal of Law and Economics, and Economic Inquiry. During his career at Montana State University, Anderson received several outstanding teaching awards and is now professor emeritus of economics. He received his B.S. from the University of Montana and earned a Ph.D. in economics from the University of Washington.

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

    Environmental Engineering Expert Witness

    Mark Jacobson obtained a M.S. in Environmental Engineering, from Stanford University. Dr. Jacobson also obtained both a M.S. and later a Ph.D. in  Atmospheric Sciences from UCLA. In 1994, Jacobson became an Assistant Professor in the Department of Civil & Environmental Engineering at Stanford. Since 2007, he has been a full professor in that Department. Jacobson was a co-founder and is Director of Stanford’s Atmosphere/Energy Program, as well as a Senior Fellow at Stanford’s Precourt Institute for Energy, and Stanford’s Woods Institute for the Environment.

    Get in-depth insights into Mark Jacobson’s expert witness experience by requesting his Expert Witness Profile today.

    Discussion by the Court

    CLIMATE SCIENCE AND PROJECTIONS

    Steven Running provided testimony in the general areas of the climate system, including the energy balance and imbalance, the physics of GHG emissions that are driving climate change, the global carbon cycle, the global hydrologic cycle, how they control this energy imbalance, and then how human caused fossil fuel development is harming Montana’s ecosystems and hydrology while Cathy Whitlock explained how human-caused fossil fuel development and the resulting release of CO2 into the atmosphere are harming Montana’s ecosystems, water supplies, communities, and the Plaintiffs themselves. Whitlock’s testimony included projections for Montana’s future based on continuing or increasing the present rate of GHG emissions.   

    CLIMATE CHANGE HARMS CHILDREN AND SPECIFICALLY THE YOUTH PLAINTIFFS

    Lori Byron provided testimony that climate change and the air pollution associated with it are negatively affecting children in Montana, including Youth Plaintiffs, with a strong likelihood that those impacts Will worsen in the absence of aggressive actions to mitigate climate change. Lise Van Susteren provided testimony on the physiological harms caused by climate change to Montana’s youth, including the Youth Plaintiffs, the psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries. Michael Durglo brought to the table his extensive experience working with tribal elders and youth on climate related issues. The Court found their testimony informative and credible.

    CLIMATE CHANGE IS ALREADY ADVERSELY AFFECTING MONTANA’S NATURAL ENVIRONMENT

    Dan Fagre helped develop a national climate change research program within the National Park Service, coordinating with other scientists at national parks from Florida to Alaska. He built a research program centered on Glacier Park as a representative mountain ecosystem, engaging faculty and scientists from Montana universities and across the U.S. 

    Jack Stanford has published over 220 scientific papers and books on aquatic ecosystem processes, including influences of human activities. 

    Both Stanford and Fagre were of the opinion that anthropogenic climate change was impacting, degrading, and depleting Montana’s environment and natural resources.

    The Court observed that of the approximately 146 glaciers present in Glacier National Park in 1850, only twenty-six glaciers larger than twenty-five acres remained in 2015. 82% of Glacier Park’s glaciers were gone and there had been a 70% loss of area of all glaciers. Moreover, Montana’s water resources were critically important to Youth Plaintiffs and all Montana citizens and to many people beyond the State’s borders. Anthropogenic climate change was disrupting the natural range of variation in the flow paths of Montana’s river systems. 

    DEFENDANTS’ ACTIONS CONTRIBUTE TO CLIMATE CHANGE AND HARM PLAINTIFFS

    Anne Hedges shed light on pollution-related policy issues in Montana, emphasizing on impacts to air, water, landscapes, and climate from fossil fuels.

    Peter Erickson testified about Montana’s fossil fuel consumption, extraction, and infrastructure, focusing on three categories: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users. For each of these categories, Erickson quantified the amount of coal, oil, and gas and translated that in units of carbon dioxide (CO2) emissions released from the fuels once they are combusted. Erickson added up all the coal, oil, and gas to determine the emissions associated with the extraction, consumption, and transportation of those fuels. In his opinion, emissions from Montana’s fossil fuel consumption, extraction, and infrastructure were globally significant quantities.

    Defendants offered the testimony of Terry Anderson as an expert economist. Purporting to be based on data from the Energy Information Agency (EIA), Anderson provided extremely limited testimony in response to three questions: (1) the total greenhouse gas emissions for the world; (2) the 2020 greenhouse gas consumption emissions for the state of Montana; and (3) the 2022 greenhouse gas consumption emissions for the state of Montana.

    The Court held that Anderson’s testimony was not well-supported and contained errors.

    Defendants permitted three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users.

    Data indicated that in 2019, total annual fossil fuels consumed in Montana led to about 32 million tons of CO2 being released into the Atmosphere.

    THE MEPA LIMITATION PREVENTS FULL REVIEW OF THE TECHNOLOGICALLY AND ECONOMICALLY AVAILABLE ALTERNATIVES TO FOSSIL FUEL ENERGY IN MONTANA

    In this case, Mark Jacobson summarized his research related to Montana and the feasibility of transitioning Montana swiftly from fossil fuels to clean and renewable energy in all sectors by mid-century, where all energy sectors include electricity, transportation, heating/cooling, and industry.

    Data indicated that it was technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030 and 100% by no later than 2050, but as early as 2035.

    Held

    The Court ruled that the MEPA Limitation deprived Plaintiffs of their constitutionally guaranteed rights. It upheld Plaintiff’s fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.

    Key Takeaways:

    Informative and credible testimony presented by experts helped the Court see that Montana has already warmed significantly more than the global average. The science is clear that there are catastrophic harms to the natural environment of Montana and Plaintiffs and future generations of the State due to anthropogenic climate change.

    In terms of per capita emissions, Montana’s consumption of fossil fuels is disproportionately large and only five states have greater per capita emissions. Montana is a major emitter of [greenhouse gas] emissions in the world in absolute terms, in per person terms, and historically. The current barriers to implementing renewable energy systems are not technical or economic, but social and political. Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system.

    Case Details:

    Case Caption: Held V. State
    Docket Number: CDV-2020-307
    Court: First Judicial District Court of Montana, Lewis and Clark County
    Date: August 14, 2023
  • Economics Expert Witness’ Testimony on Disparities in Promotion Admitted

    Economics Expert Witness’ Testimony on Disparities in Promotion Admitted

    A district judge in Massachusetts admitted the findings of an expert economist meant to advance a theory of disparate impact.

    Plaintiffs Marc Savage (“Savage”) and Randolph Blake (“Blake”) (collectively referred to as “Plaintiffs”), a retired and current employee, respectively, of the Fire Department for the Defendant City of Springfield (“City” or “Springfield”), pursued claims of race discrimination against the City.

    Plaintiffs, who are Black, cited the Defendant’s failure to enforce the City’s residency ordinance which has denied promotional opportunities to Black and Hispanic firefighters. According to the Plaintiffs, Defendants maintained a racially hostile work environment and retaliated against them for engaging in protected activity.

    Plaintiffs indicated that they intended to call Dr. Christopher Erath as an expert during trial in connection with their claim that the City’s failure to enforce the City’s Residency Ordinance had a disparate impact on minority firefighters by depriving them of promotional opportunities within the department. Defendants asserted that Erath’s testimony should be excluded on Daubert grounds because disparities in promotion were not sufficiently significant to draw an inference of causation necessary to make out a prima facie case of disparate impact.

    Economics Expert Witness

    Christopher Erath received A.B. degrees in Economics and Mathematics from Bowdoin College and a Master’s and Ph.D. in Economics from the University of Wisconsin. Erath’s primary area of interest is labor economics. He has served as an expert witness in numerous matters involving damages in employment discrimination and wage and hour claims and has also prepared extensive studies of statistical liability in employment proceedings and opined on class certification issues.

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

    Human Resources Expert Witness

    Michael Campion is an Industrial and Organizational Psychologist and specializes in human resource management and organizational behavior. Dr. Campion operates a small consulting firm that has conducted over 1200 projects on a wide range of human resource topics for nearly 170 clients in both private and public sector settings. He has been a Professor of Management at Purdue University since 1986. Previously he worked full time for 8 years at IBM and Weyerhaeuser Cos.

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

    Discussion by the Court

    A. Expert Report of Christopher Erath, Ph. D.

    Erath indicated that he was asked to address two questions, as follows: (1) Are there racial differences in the rate at which employees satisfied the City of Springfield’s residency requirement?; and (2) Are there racial differences in the composition of the department’s officer ranks?

    According to Erath, his understanding was that any firefighter hired or promoted on or after March 17, 1995, was required to live in the City.

    In conducting his analysis, Erath utilized the spreadsheet provided by Plaintiffs’ counsel to calculate the percentage of firefighters who satisfied the residency ordinance by race (black, Hispanic, and white), both globally and by rank (firefighter, lieutenant, captain, and above). He then performed Fisher’s Exact tests to determine the likelihood that the different compliance rates by race could have occurred by chance. Finally, he calculated the percentage of firefighters of each race (black, Hispanic, and white) who achieved each rank (firefighter, lieutenant, captain, and above).

    Erath concluded that there was a high and statistically significant correlation between residency compliance and race among uniformed employees of the Springfield Fire Department and that if Springfield consistently enforced the 1995 residency requirement, the enforcement action would have disproportionately disqualified whites.

    B. Defendants’ Rebuttal Expert

    Defendants submitted an affidavit from Michael Campion, Ph. D., in rebuttal to the opinions of Erath. To begin with, Campion found fault with Erath’s analysis because it relied on data going back to 1984, rather than limited to the time periods established by the Court, for Plaintiff’s claims and for including the entire pool of Springfield fire fighters, rather than just those qualified for promotion.

    The Springfield Fire Department considered candidates who met the minimum experience requirements, took and passed the civil service exam, and had results coming within the 2n+1 formula for promotions.

    Campion then undertook his own analysis using what he maintains is a proper candidate pool for purposes of determining disparate impact in promotion consisting of candidates on the promotional lists from 2015 to the present.

    Campion claimed to find no statistical evidence of adverse impact for the jobs in either minority group during the period of the case.

    C. Motion to Exclude the Testimony of Christopher Erath

    Defendants contended that despite Erath’s use of the Fisher’s Exact test, the underlying data included stale data that goes back over thirty years and did not comport with Massachusetts Civil Service law governing eligibility for promotion because it included the entire pool of firefighters employed by SPD, without considering the Civil Service requirements.

    Defendant argued that if it involves the relevant statistical pool, consisting only of minorities and non-minorities qualified to undertake the ranked positions of Lieutenant, Captain, District, Chief, and Deputy Chief within the Springfield Fire Department during the pertinent time-period, the Court cannot draw an inference of causation based on the disparities in promotion.

    Plaintiffs argued that Defendants’ failure to disclose Campion as an expert under Rule 26 before the Court’s January 18, 2022 deadline compromised their ability to engage in requisite discovery, including deposing Campion.

    The Court held that Defendants were free to try to expose what they viewed as the shortcomings of Erath’s opinions on cross-examination, including by posing questions based on Campion’s analysis. However, the Court did not permit Defendants to call Campion as an expert witness based on their excused and unexcusable failure to comply with the deadline.

    Held

    The Court denied Defendant’s motion to exclude opinion testimony and declaration evidence of Christopher Erath.

    Key Takeaway:

    The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. In other words, cross-examination was the appropriate tool for probing the underpinning of Erath’s testimony and not outright preclusion of his expert opinions.

    Case Details:

    Case Caption: Savage v. City of Springfield
    Docket Number: 3:18cv30164
    Court: United States District Court, Massachusetts
    Order Date: June 3, 2024

  • Class Size Calculations of Economics Expert Witness Held to be Reliable

    Class Size Calculations of Economics Expert Witness Held to be Reliable

    Spokeo owns and operates the website spokeo.com. It collects consumer and public data from various public sources and private vendors, associates that data with particular names, and publishes it online.

    Using proprietary algorithms and systems, Spokeo “attempts to collect and aggregate and merge all that data into persons, person objects, which are then designated with a unique [personal identifier or ‘PID’] for that person object.” That aggregated data, associated with a particular PID, can then be searched for by users of the website. It is also used to populate “teaser profiles,” which can be viewed by the public without a subscription to the website. The teaser profiles advertise additional personal information about the subject of the profile, including about their family, court records, sex offender registration status, marital status, and more. 

    The Plaintiffs, Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens, and William Williams V, found a teaser profile associated with their personal information.

    The Plaintiffs said that they did not consent to Spokeo’s use of their information on its website. They asserted that Spokeo’s publication of their personal information violated their statutory rights of publicity and common law rights regarding misappropriation of name and likeness. They sought class certification against Spokeo for four classes of people in California and Ohio.

    Spokeo filed motions to exclude the declaration and testimony of Plaintiffs’ experts, Michael Naaman and Steven Weisbrot. In response, the Plaintiffs also filed a motion to exclude Spokeo’s expert, David Alfaro.

    Class Size Calculations of Economics Expert Witness Held to be Reliable

    Economics Expert Witness

    Michael Naaman, Ph.D., is a senior consultant specializing in antitrust, econometrics, and machine learning. He has provided economic and econometric analysis in issues relating to patent infringement and intellectual property, false advertising, and antitrust disputes.

    Naaman has a decade of experience in the economic consulting industry. He received his Ph.D. in economics from Rice University, and he received a M.S. in statistics and B.S. in economics, math, and physics from Tulane University.

    Get in-depth insights into Michael Naaman’s expert witness experience by requesting his Expert Witness Profile today.

    Law Expert Witness

    Steven Weisbrot, Esq. has been responsible for the design and implementation of hundreds of court-approved notice and administration programs. He is President and Chief Executive Officer of Angeion Group, a leading provider of comprehensive settlement management services. Weisbrot is a licensed attorney in Pennsylvania and New Jersey.

    Gain a comprehensive understanding of Steven Weisbrot’s qualifications and casework history with his Expert Witness Profile report.

    Data Science Expert Witness

    David Alfaro is a Senior Managing Director and co-leads the Data & Analytics West Coast practice and is based in San Francisco. Over his 30-year career, Alfaro has led more than 200 engagements as an expert witness and expert consultant, nearly all of which have been in the investigations and disputes space.

    Moreover, he is an expert in the areas of collecting enterprise-wide information with extensive experience in complex, data-intensive analyses in response to government or internal investigations and litigation. In this capacity, Alfaro has provided formal and informal testimony to federal and state courts, the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), the Federal Bureau of Investigation (“FBI”), the Securities and Exchange Commission (“SEC”), the Department of Justice (“DOJ”), the U.S. Attorney’s Office, the Financial Industry Regulatory Authority (“FINRA”) and other federal agencies.

    Get in-depth insights into David Alfaro’s expert witness experience by requesting his Expert Witness Profile today.

    Discussion by the Court

    Spokeo’s Motion to Exclude Declarations and Testimony of Michael Naaman and Spokeo’s Motion to Strike Naaman’s New Reply Declaration

    Spokeo filed a motion to exclude Naaman’s declaration and testimony, arguing that his class size calculations are unreliable and that his method to calculate damages is fundamentally flawed.

    Spokeo argued that Naaman failed to exclude Spokeo users, dead people, people who assigned their rights, duplicated profiles, profiles with inaccurate home addresses, and profiles that refer to people who are not real from his class size calculations. The Court considered the argument superfluous as Spokeo did not challenge numerosity. Even if Naaman should have excluded each of these, the classes clearly would still meet the numerosity requirements given the data upon which he relied and the evidence of Spokeo’s business model, which is apparently designed to have a teaser profile for every American adult.

    Also, Spokeo sought to exclude Naaman’s declaration and testimony about damages calculations, asserting that Naaman did not provide a method for calculating damages and instead simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. 

    The Court held that, pursuant to Rule 702, it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages, and this would help the trier of fact.

    Spokeo’s Motion to Exclude Declarations and Testimony of Steven Weisbrot

     Class Notification:

    Spokeo also moved to exclude the declaration and testimony from Weisbrot about class notification, asserting that it was irrelevant and that its methodology was unreliable.

    Weisbrot’s proposed notification method involved sending emails to potential class members using the email addresses posted on Spokeo’s teaser profiles, by publication in the media, and by website. Though his proposed method provided notice to the nationwide classes, he explained how he would and could use the same method on a narrower target audience if smaller classes were certified, such as statewide classes.

    Spokeo contended that Weisbrot’s notice plan will provide notice to all potential class members in the Purchase classes, and that this is overbroad because it is not directed only to members of the Viewed Prior to Purchase classes, for which notice is mandatory under Rule 23(b)(3). But the Federal Rules permitted notice to 23(b)(2) classes like the Purchase classes, and Spokeo offered no reason why notice should not be provided to them. 

    The Court rejected Spokeo’s argument that Weisbrot not offering a way to target solely Viewed Prior to Purchase members was merely another way to argue that the Plaintiffs were unable to identify their own class members from common evidence. Moreover, the Court found Spokeo’s argument about Plaintiffs self-identifying bizarre because claimants do not have to know pre-filing which class they are in.

    Notice Methodology

    Finally, Spokeo asserted that Weisbrot should not rely on the email addresses that Spokeo has in its possession and includes for teaser profiles because they might not be real or correspond to a real person. Despite Spokeo’s asserting that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court found it highly likely that many of the email addresses were correct for many of the teaser profiles.

    Plaintiffs’ Motion to Exclude Declaration and Testimony of David Alfaro

    Plaintiff argued that Alfaro misrepresented evidence about Spokeo data vendors, was unqualified to opine on class size or Naaman’s methodology, was not an expert on class notice and could not opine on Weisbrot’s methodology, and provided improper legal conclusions. 

    The Court held that it did not rely on Alfaro’s declarations to assess Naaman’s declaration or the validity of Weisbrot’s methodology. In other words, the Court denied Plaintiff’s motion to exclude Alfaro’s testimony as moot because that was the driving basis for which the Plaintiffs challenged Alfaro’s declaration.

    Held

    The Court granted Plaintiffs’ motion for class certification for the California and Ohio classes, with certain amendments to the class definitions. The motion for the nationwide classes was withdrawn.

    To sum it up, the Court denied Spokeo’s motion to exclude the testimony of Michael Naaman and Steven Weisbrot. The Plaintiffs’ motion to exclude David Alfaro’s declaration and testimony was denied as moot.

    Key Takeaway:

    • Naaman simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. The Court held it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages.
    • Despite Spokeo’s assertion that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court held that it was highly likely that many of the email addresses are correct for many of the teaser profiles. Hence, Weisbrot could rely on the email addresses that Spokeo had in its possession and remove junk, fake, or inaccurate emails, to the extent possible.

  • Court Refuses to Bar Expert Witnesses from Opining on Firearms Regulation

    Court Refuses to Bar Expert Witnesses from Opining on Firearms Regulation

    A district judge in Vermont refused to exclude the testimony assessing the impact of gun laws presented by the State’s expert witnesses.

    Plaintiffs, corporate entities affiliated with gun ownership and several Vermont residents, filed this action against Defendants, high-level Vermont state officials. Plaintiffs allege that 13 V.S.A. § 4021, which prohibits possession and sale of “large capacity ammunition feeding device[s],” and 13 V.S.A. § 4019a, which prohibits transfer of a firearm without a background check or expiration of a waiting period, are unconstitutional under the Second Amendment. On December 20, 2023, the Plaintiffs filed a motion for a preliminary injunction against the enforcement of the Vermont laws.  A hearing on that motion is set for May 23, 2024. In anticipation of that hearing, Plaintiffs filed a motion to bar the State’s expert witnesses from testifying. 

    Economics Expert Witness

    Lucy Allen is a Senior Managing Director of NERA Economic Consulting (“NERA”), a member of NERA’s Securities and Finance Practice and Chair of NERA’s Product Liability and Mass Torts Practice. She has analyzed issues related to mergers, ERISA claims, market microstructure, and alleged market manipulation and insider trading, including on complex financial instruments such as credit derivatives, futures, and swaps. She holds a bachelor’s degree from Stanford and three graduate degrees from Yale (M.B.A., M.A., and M.Phil.)

    Get in-depth insights into Lucy Allen’s expert witness experience by requesting her Expert Witness Profile today.

    Language & Linguistics Expert Witness

    Dennis Baron is a Professor Emeritus and Research Professor at the University of Illinois, serving in both the English and Linguistics Departments. He holds a Ph.D. from the University of Michigan and did his dissertation on “historical aspects of the English language.” In addition to his scholarly publications, he writes frequently on language and technology issues in the news, and his essays have appeared in the New York Times, the Washington Post, the Chicago Tribune, and many other papers.

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

    Criminal Law Expert Witness

    John Donohue is a law professor at Stanford Law School. He holds a law degree from Harvard and a Ph.D. in economics from Yale. He teaches a course on empirical law and economics issues involving crime and criminal justice and has “published extensively” on the impact of gun regulation (or the lack thereof) on crime.

    Don’t stop at Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al – review the grounds for prior Daubert challenges and judicial criticism of John Donohue in our Challenge Study.

    History Expert Witness

    Randolph Roth is a professor of history and sociology at The Ohio State University. He has a B.A. in history from Stanford and Ph.D. in history from Yale. He teaches and researches with a primary focus on “criminology and the history of crime.”

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

    Political Science Expert Witness

    Robert Spitzer is a professor of political science at the State University of New York at Cortland. He is currently teaching at William and Mary Law School. He has a Ph.D. in government from Cornell and has written extensively on American politics and gun policy. Professor Spitzer’s “expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues.”

    Gain a comprehensive understanding of Robert Spitzer’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    Lucy Allen

    The State sought to introduce Allen’s testimony on “the number of rounds of ammunition fired by individuals using a gun in real-life self-defense” and “the outcomes when large-capacity magazines are used in public mass shootings, including the associated number of casualties.”

    Allen analyzed more than 736 incidents in the NRA Armed Citizen database and 200 news stories from a random sample of 4,800 detailing incidents of self-defense and found that “it is extremely rare for a person . . . to fire more than 10 rounds [when using a firearm in self-defense].” Her research revealed only two incidents “where more than 10 rounds were used.”

    Allen also analyzed roughly 200 mass shootings from four different sources between 1982 and 2022 and found that “(1) large-capacity magazines are often used in mass shootings; (2) both injuries and fatalities were higher in mass shootings that involved large-capacity magazines than in other mass shootings; (3) it is common for offenders to fire more than 10 rounds when using a large-capacity magazine in mass shootings; and (4) the majority of guns used in mass shootings were obtained legally.”

    The Court held that her expert testimony made a “fact that is of consequence to the determination of the action” – namely, how LCMs are used – “more or less probable than it would be without” her testimony. Moreover, the underlying sources of Allen’s analysis – NRA data and news reports – are the kind that an expert would “reasonably rely” upon in forming an opinion on the subject.

    Dennis Baron

    Baron would testify that “during the Founding Era and the Reconstruction Era, ‘arms’ was used as a general term for weapons . . . but did not include ammunition [or] ammunition containers.” This is based on analysis of broader phrases such as “arms and accoutrements” which, in Baron’s opinion, were used to specify items (accoutrements) other than firearms themselves.  Baron would also testify that he has found “no lexical evidence that either repeater firearms or repeater air guns were used as military weapons in England or America in the Founding Era, or that they were used as weapons of personal self-defense at that time.”

    Baron’s analysis of the historical understanding of the term “arms” is relevant to determining whether the government’s regulation covers conduct protected by the Second Amendment. Resolution of that issue requires evaluating whether the restricted items – LCMs, in this case – qualify as “arms” under the Second Amendment. The Court held that Baron’s research is relevant to determining whether the regulation covers protected conduct requires textual analysis.

    Plaintiffs stated that there is no way to use a firearm without ammunition, rendering magazines integral to “arms” within the meaning of the Second Amendment, but the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court. Baron’s understanding of the historical context of these terms is relevant to this determination.

    John Donohue

    Donohue would testify that “restrictions on the size of large-capacity magazines . . . can be expected to reduce deaths and injury from gun violence.” He would also testify that “substantial empirical evidence illustrates that waiting periods prior to the purchase of weapons . . . will reduce suicides – particularly among young adults – and would be expected to reduce the risk of . . . enraged individuals buying firearms on the way to commit mass violence.” Finally, Donohue reported that restrictions on LCMs generally have “little or no effect on the ability of individuals to possess weapons for self-defense,” but “should have” a mitigating effect upon mass violence.

    Donohue stated that “the problem of public mass shootings in the United States is a serious and worsening national problem.” He added that governments “began responding to this growing menace with . . . restrictions on the type of weaponry that facilitated mass shootings.” 

    Donohue’s declaration goes directly to the question of whether mass shootings are a social problem addressed by previous generations, or whether they are a novel challenge requiring legislative innovation. 

    This is a substantial consideration undergirding the historical analysis pursuant to Bruen and is therefore relevant to the case. The Court held that Donohue’s causal claims are not solely applicable to interest balancing frameworks. Empirical research on gun regulation and violence rates is relevant to the question of whether societal problems are new, and whether they correspondingly mandate new solutions. 

    Plaintiffs correctly asserted that “reasoning by analogy” from a contemporary firearm regulation to historical regulation is a “commonplace task” for a lawyer or judge. But reasoning by analogy requires an analog. That is what Donohue’s testimony purports to provide.

    Randolph Roth

    Randolph Roth would testify that increased American homicide rates correlate with “political instability, a loss of trust in government and political leaders, a loss of fellow feeling among citizens, and a lack of faith in the justice of the social hierarchy.” He would also testify that “the availability of guns,” especially “rapid-fire semiautomatic weapons and extended magazines in the late twentieth century, have pushed the homicide rate in the United States well beyond what it would otherwise have been.” Roth also wished to address colonial firearm restrictions and the gradual development of firearm regulations.

    The Court held that Roth’s declaration demonstrated expertise in the history of violent crime and the relationship between “extended magazines” and the American homicide rate.

    Plaintiffs asserted that Roth’s testimony focused primarily on the rise in violence stemming from “breechloading” guns, and that his declaration failed to evince a “dramatic technological change” or “unprecedented societal concern.” The Court disagreed because Roth’s declaration traced homicide and mass killing rates as compared to advancing gun technology, and concluded that the advent of submachine guns led to increased threats to “public safety” and governmental regulation.

    Robert Spitzer

    Spitzer’s declaration stated that “[t]he current controversy surrounding legislative efforts to restrict large capacity magazines (LCMs) would seem to be a purely contemporary matter, responding to the modern phenomenon of mass shootings.” He would testify to the prevalence of assault weapon and LCM restrictions around the country. He would also state that “restrictions on LCMs are historically grounded.”

    With regard to waiting periods, Spitzer would testify that three features of the contemporary gun purchasing landscape explain the rise of gun purchase waiting periods. First, the rise of “mass production techniques” and “[r]paid, convenient, gun sales processes” are relatively new. Second, “no organized system of gun background checking could feasibly exist until the modern era.” And finally, “homicide rates in the colonies and early Federal era were generally low, and when homicides occurred, guns were seldom used because of the time involved in loading them, their unreliability, and (especially for pistols) their inaccuracy.” Additionally, Spitzer would testify that there are “similar, analogous historical gun laws” notwithstanding the lack of statutory waiting periods, such as “laws regulating weapons and intoxication, and weapons licensing laws.”

    The Court held that Spitzer’s proposed testimony was relevant considering analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case.

    Rule 403 Objection

    Plaintiffs stated that the Court should exclude the State’s expert testimony as “more prejudicial than probative” under Federal Rule of Evidence 403. Plaintiffs have not supported this contention with any detail, so that request is denied. Additionally, because the Court concludes that the State’s experts are admissible, it need not hold a Daubert hearing.

    Held

    The Court denied the Plaintiffs’ motion to exclude the State’s expert witnesses Lucy Allen, Dennis Baron, John Donohue, Randolph Roth, Robert Spitzer.

    Key Takeaways:

    • The Court refrained from excluding Allen’s testimony on hearsay grounds because if expert testimony drawing statistical conclusions based upon database records were to be excluded as hearsay, nearly all expert testimony would be excluded.
    • Baron’s analysis of the historical understanding of the term “arms” is relevant considering the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court.
    • Analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case. Spitzer’s testimony deals with the history of American gun regulation, which is a verifiable issue of fact material to this litigation.
    • The risk of prejudice from overly broad testimony is substantially reduced because the Court is the finder of fact at this stage of litigation.

    Case Details:

    Case Caption: Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al
    Docket Number: 2:23cv710
    Court Name: United States District Court, Vermont
    Date: May 14, 2024
  • Economics Expert Witness’ Testimony Based on Well-Tested Methods for Establishing Classwide Damages Admitted

    Economics Expert Witness’ Testimony Based on Well-Tested Methods for Establishing Classwide Damages Admitted

    A district judge in California refused to exclude the testimony of an expert economist despite objections raised against his methods for establishing classwide damages. The expert economist had adequately explained why his damages analysis would provide an accurate and common method to prove classwide damages.

    The Plaintiff contended that the Defendant Williams-Sonoma, Inc., and its advertising and marketing subsidiaries Williams-Sonoma DTC, Inc., and Williams-Sonoma Advertising, Inc. (collectively “WSI”) advertises and markets the thread count in certain of its Bedding Products in a way that is not only contrary to industry-accepted standards, but is also false, deceptive, or misleading to reasonable consumers. 

    On September 28, 2022, Perlin filed a Motion for Class Certification (“Certification Motion”) seeking to certify two classes: (1) a nationwide class of persons that purchased one of the seven lines of bedding seeking injunctive relief under the UCL, FAL, and CLRA pursuant to Rule 23(b)(2); and (2) a California subclass of persons that purchased one of the Bedding Products from WSI seeking monetary (and all other available) relief under the UCL, FAL, CLRA, and common unjust enrichment under Rule 23(b)(3). 

    The Defendant opposed the motion for class certification and moved to exclude the testimony of Jennifer Frank Rhodes and Russell L. Lamb, pursuant to Federal Rule of Evidence 702.

    Textiles Expert Witness

    Jennifer Frank Rhodes is the owner of Twin Gingers LLC, a consulting company serving the textile and consumer products industries specializing in the design, development and commercialization of textiles and textile consumer products, particularly bedding products. She is also employed at Thomas Jefferson University, as the Assistant Program Director, Textile Design B.S. Program and an Adjunct Professor. Rhodes has studied textile design and textile product development for more than 25 years and has worked in this field for more than 20 years.

    Economics Expert Witness

    Dr. Russell L. Lamb is the President and Co-Founder of Monument Economics Group. An expert in antitrust economics and applied econometrics, Lamb has more than 25 years experience as an economic consultant and more than a dozen years’ experience developing econometric models and providing expert witness and economic consulting services in cases involving antitrust, class action, and liability and damages analysis.

    Having taught economics for many years at both the undergraduate and graduate levels, Lamb specializes in explaining complex economic and econometric concepts in a clear and concise manner to non-economists, including the Courts.

    Prior to his work as an expert witness, Lamb developed extensive particular expertise in international and domestic agricultural economics and has undertaken extensive original research and econometric analysis related to markets for agricultural commodities. He has authored more than 50 articles in peer-reviewed journals, trade press, and major newspapers. Lamb also regularly presents at conferences on topics including the state of the U.S. Economy and farm policy.

    Discussion by the Court

     Jennifer Frank Rhodes

    Rhodes opined that the generally accepted method for calculating thread count for bedding products sold to consumers in the United States is to count the number of warp yarns (ends) and filling, or weft yarns, (picks) in an inch. Each yarn, or thread, is counted as one thread, even if it is two-ply. Accordingly, bedding that had 300 yarns per square inch had a thread count of 300, even if the thread is two-ply. ASTM (American Society for Testing and Materials) D3775-17 is the generally accepted industry standard for calculating thread count for woven cotton bedding products sold to consumers in the United States at all times during the proposed class period.

    Her testing of the WSI seven lines of bedding revealed that WSI’s advertised thread counts are not accurate. The stated thread count of each collection is approximately double the actual thread count. Each of the collections are represented to be two-ply. Accordingly, WSI improperly counted each ply in the yarn to falsely inflate the thread count, contrary to the industry standard for calculating thread count. She concluded that the various products sold under a single line or collection of bedding, such as sheeting, cases, duvets, and shams, are made of the same fabric. She explained the practical process of thread count testing and concluded that thread count could not be done with the naked eye or by the average consumer.

    Motion to exclude

    WSI moved to exclude her opinions of “industry standard” and “generally accepted methods” of thread count because she referred only to “industry” insider expectations that WSI argued were irrelevant and because she testified that there were no mandated “labeling requirements” for thread count and the ASTM standard she relied on was not applicable to how textiles might be marketed. WSI also argued that because Rhodes was not a consumer perception expert, she could not testify to what consumers expected regarding thread count as that was outside her area of expertise. Finally, it challenged the reliability of her opinions regarding consumer perception of thread count, contending that she improperly relied on only “a handful of articles and non-binding legal opinions” to support her conclusions.

    Court’s Ruling

    The Court held that WSI equation of “industry standard” with irrelevant “insider knowledge” in this consumer case is not a reason to exclude Rhodes’ opinions. While she will need to explain how she connects the existence and use (or non-use) of industry standards to her opinions, including opinions on consumer perception and opinions on how others in the industry calculate thread count, she may opine on these issues given her work and teaching experience, as well as her reliance on industry publications and textbooks.

    Considering Rhodes qualifications and given her experience in the industry, she is amply qualified to opine on the existence of industry standards and use or non-use of the ASTM standard.

    Dr. Russell L. Lamb

    The Plaintiffs retained Lamb to opine on whether the WSI’s “challenged conduct resulted in injury to all or nearly all proposed Class members, in that they paid higher prices for the Bedding Products they purchased from the Defendants; and whether the magnitude of damages can be calculated on a class wide basis without resorting to individualized inquiry.”

    Lamb proposed the benchmark analysis to measure damages on a class-wide basis. A benchmark analysis is used to compare prices paid by customers for the Relevant Bedding Products with prices that customers paid for “benchmark” bedding products. Benchmark bedding products are products of comparison that resemble the Relevant Bedding Products but are not a part of the Challenged Conduct, i.e. bedding products with properly labeled thread counts that are materially the same as or very similar to the Relevant Bedding Products. The benchmark analysis can be done in two ways: through a direct benchmark approach or a hedonic pricing model.

    He explained how he would construct and run both models to support his opinions, but did not — for class certification purposes — actually run both models. 

    Motion to exclude

    WSI first moved to strike Lamb’s opinions that are based on the materiality of thread count to consumers. It argued that his opinions assume that thread count is material without adequate expertise and without a reliable basis, given that he relied only on “cherry-picked” industry and WSI documents as well as the challenged testimony of Rhodes, and not on empirical consumer evidence, such as a survey of actual consumers regarding WSI’s Bedding Products.

    WSI next moved to exclude Lamb’s opinion that a “direct benchmark approach” can be used to determine class-wide damages, because in order to complete that benchmark analysis Lamb will rely on Rhodes’ selection of “benchmark products,” meaning products comparable to the Bedding Products at issue in this case but with “properly identified thread counts.” WSI argued that the benchmark products identified by Rhodes were not comparable to WSI’s Bedding Products in numerous ways.

    They also moved to exclude Lamb’s second proposed method of showing classwide damages, his proposed hedonistic-regression model. WSI argued, first, that a hedonistic-regression model did not fit the contours of this case, offering testimony from two WSI declarants regarding “actual” WSI’s pricing practices. It argued that those declarants’ testimony demonstrate that even a reduction in demand (an assumption in the hedonic model) would not result in a lower price or vice versa in the real world because WSI sets prices at a fixed rate above the supplier’s price and does not price sheets according to demand. It asserted that Lamb’s hedonic regression model, as Lamb admits, would be “artificially constructed” and should be excluded.

    Finally, WSI argued that because Lamb did not conduct his proposed hedonic-regression analysis or confirm that the data needed to run that analysis existed, his opinions regarding the hedonistic-regression model must be excluded as impermissibly vague and unreliable.

    Court’s Ruling

    The Court determined that how material thread count is to a reasonable consumer is, of course, subject to dispute by WSI and its experts. Whether the jury agrees that thread count is material has not yet been determined. But damages experts are allowed to assume the merits of a question in order to conduct their damages work, which is what Lamb did (although he did identify numerous sources supporting the materiality of thread count to consumers). That is particularly true here, where WSI successfully bifurcated damages discovery from class discovery and the Plaintiffs have not had the opportunity to fully engage in damages discovery.

    The Court held that damages experts are not required to have run their damage analyses, but instead are required to explain how they would do so and why the resulting analysis would provide an accurate and common method to prove classwide damages at the class certification stage. Lamb has satisfied that burden here with respect to the benchmark analysis.

    WSI ignored that hedonistic-regression models were based on real-world transactions and real-world data regarding price and other variables.

    The Court held that Lamb’s opinions regarding the hedonistic-regression model sufficed for class certification purposes.

    What the final hedonistic-regression model looks like, after damages discovery has been completed and Lamb has finalized the variables selected and run the analysis, can be tested pre-trial.

    The Court granted the Plaintiffs’ motion to certify a class of California purchases but denied the Plaintiffs’ motion to certify a nationwide injunctive relief class.

    Held

    The Court denied the Defendant WSI’s motion to exclude the Plaintiffs’ experts Jennifer Frank Rhodes and  Russell L. Lamb.

    Key Takeaways:

    • WSI’s position that industry standards were irrelevant to consumer perception may be argued to the jury and reraised post-trial if appropriate. The Court held that WSI’s challenge to Rhodes’ opinions based on a review of too few or “cherry-picked” industry or WSI documents were classic grounds for cross-examination, not exclusion. And it may raise “legal conclusion” objections in limine or during trial to her opinions regarding whether a product was “mislabeled” or is “misleading.”
    • At the class certification stage, damages experts are not required to have run their damage analyses, but instead are required to explain how they would do so and why the resulting analysis would provide an accurate and common method to prove classwide damages. Lamb has satisfied that burden here with respect to the benchmark analysis.

    Case Details:

    Case Caption: Rushing V. Williams-Sonoma, Inc. Et Al
    Docket Number: 3:16cv1421
    Court: United States District Court, California Northern
    Order Date: February 21, 2024