Expert Witness Profiler

Category: Economics Expert Witness

  • Economics Expert Witness’ Analysis of Job Opportunities Available to Plaintiff Excluded

    Economics Expert Witness’ Analysis of Job Opportunities Available to Plaintiff Excluded

    Daniel J. Csaszar is a physician who worked at an urgent care facility run by Defendant Monarch Medical, LLC beginning in 2015, working one shift per week. In 2019, he moved to two shifts per week. Defendants terminated Csaszar on March 9, 2022, and Csaszar began new employment as a physician on October 17, 2022 at Lehigh Valley Health Network, LVPG Palmerton Family Medicine practice (after completing extensive credentialing for LVHN after he applied for this position on June 30, 2022).

    In virtually any type of employment case, an employee has a duty to mitigate their damages. This is a question usually left to the good judgment of the trier of fact.

    Defendants submitted the report of Chad Staller in furtherance of their theory that Csaszar failed to mitigate his damages by timely seeking another job. The report listed eight jobs that  Csaszar “made contact regarding” between March 15, 2022 and October 17, 2022, to conclude Dr. Csaszar made “0.27 efforts per week.”

    Csaszar insisted on the unreliability of Staller’s report, arguing that he made many more “job search efforts” and began subsequent employment very quickly relative to the credentialing and onboarding that is required for a physician to begin new employment.

    Economics Expert Witness

    Chad L. Staller is president of the Center for Forensic Economic Studies. He has extensive experience working with both plaintiff and defense counsel in a wide variety of civil matters, quantifying loss sustained by many types of plaintiffs, including union members, state and federal employees, business owners and injured children.

    He regularly analyzes claims brought in employment-discrimination matters, quantifying back-pay damages, front-pay damages and lost benefits, and also frequently consults on commercial matters, analyzing lost-profit and business-interruption claims. In addition to Staller’s litigation practice, Staller consults with clients in non-litigation matters related to labor-union negotiations, business valuations, and cost-benefit assessments. He serves on the faculty of Temple University’s Beasley School of Law LL.M. in Trial Advocacy program and lectures regularly at Villanova University School of Law and Drexel University’s Thomas R. Kline School of Law. 

    He received his Master of Business Administration, with honors, from the Fox School of Business and Management at Temple University.

    Discussion by the Court

    Plaintiffs argued that Staller’s report was unreliable and did not pass muster under Daubert because it included a compilation of jobs from an unidentified and unreliable source “JobStats”, included identification of job postings for physician jobs for which Dr. Csaszar was not certified or qualified to work, and included job postings for positions in geographical locations where Dr. Csaszar was not licensed to practice medicine to compare Dr. Csaszar’s (false) number of job search efforts to the alleged and inaccurate employment opportunities available to him.

    Additionally, Defendant’s report did not include any reference to Dr. Csaszar’s deposition and supplemental discovery wherein Dr. Csaszar supplied testimony and documentary evidence that indicated he applied for far many more than the “8 job search efforts” as Defendants’ expert concluded. Defendant did not produce a supplemental expert report to consider these numerous additional job searches that were a part of the record, making the report completely unreliable.

    The Report Did Not Assist the Trier of Fact

    The relevant facts in issue were whether substantially equivalent work was available, and whether Dr. Csaszar exercised reasonable diligence in obtaining other employment. Defendants did not dispute that Dr. Csaszar began working at Lehigh Valley on October 17, 2022 (at a job which he applied to on June 30, 2022), so the expert’s task was to help the jury determine whether Dr. Csaszar’s job search was reasonably diligent.

    The Court held that Staller’s report failed to meet the Rule 702 standards considering the report merely proffered the number of jobs that Dr. Csaszar applied to, and stated that “additional employment opportunities…existed and continue to exist.” In other words, the report would not aid the trier of fact in determining a fact in issue.

    The Court held that telling the jury that additional job opportunities existed would simply not provide them with the information they needed to conclude that Dr. Csaszar did or did not appropriately mitigate his damages. 

    Moreover, per Dr. Csaszar’s deposition testimony, Plaintiff agreed that “additional employment opportunities . . . existed” beyond the eight jobs listed in Staller’s report, since he alleged that he applied to many more jobs than just those eight. Accordingly, this conclusion did not bear on a fact in issue. Nor did relaying the number of job search efforts made help the jury determine whether that number of efforts was reasonable. Indeed, calculating eight job applications over 30 weeks to equal 0.27 job applications per week is an equation easily doable by the jury that did not require expert testimony. Staller may seek to forestall these critiques by claiming that his expert analysis resulted in aggregating 1,102 job opportunities that were available to Dr. Csaszar, but this merely leads to the second flaw: the lack of a reliable methodology underlying that analysis.

    The Report Lacked a Reliable Methodology

    Application of Job Listings

    Staller provided no methodology for assessing Dr. Csaszar’s employment background in order to determine which jobs were appropriate for him. Dr. Csaszar testified that he was “board certified in family medicine and primary care sports medicine,” and that he “would not apply for an internal medicine job or an emergency medicine position” or other specialty positions.

    Nevertheless, Staller’s report included one listing for an emergency medicine position, 42 listings for internal medicine physicians, as well as 21 listings in a catch-all category of “all other” physician positions. Staller had not provided any rationale or methodology for determining which listings were an appropriate fit for Dr. Csaszar, and many of the entries for family medicine were overly broad.

    The Court noted that Staller did not identify any specific documents that he reviewed to determine which jobs would be appropriate for Dr. Csaszar; the only items he reports having reviewed in the relevant section were the employment listings, but nothing that would shed light on Dr. Csaszar’s background.

    Geographic Analysis Specific to Dr. Csaszar’s Personal Licensure Status

    Aside from the substance of the job listings, the parties disputed whether Csaszar could legitimately have applied to job opportunities outside of Pennsylvania which concerned an issue that Staller should have considered at the outset. Csaszar argued that his license was only valid in Pennsylvania, which meant that he would not be able to work in any other state, including those like New Jersey or Delaware that are within commuting distance of Pennsylvania.

    Defendants pointed out that Dr. Csaszar had applied to locations in North Carolina, Florida, and Hawaii, arguing that Dr. Csaszar had opened the door to considering a broader geographic range of employment. The Court held that had Staller performed a geographic analysis specific to Dr. Csaszar’s personal licensure status, he would have developed a grounded, fact-based methodology for determining appropriate places of employment for Dr. Csaszar because it is possible that some states have licensing reciprocity agreements with Pennsylvania, or low barriers to entry for licensing of experienced providers.

    Staller did not employ any methodology for considering Dr. Csaszar’s employment record, or the locations that would be appropriate for him to apply to. Staller sought to sidestep these holes in his methodology by refraining from drawing the conclusion that Dr. Csaszar had 1,102 jobs to apply to, instead retreating to the vaguer assertion that “employment opportunities existed and continued to exist.”

    Defendants’ Alternative Request to Supplement the Report is Denied

    Defendants sought, in the alternative, to supplement their report to include the information raised in Dr. Csaszar’s deposition and document production pertaining to additional job applications that post-dated the initial report. The Court held that this supplement would be both untimely and futile.

    The Court permits supplementation under Federal Rule of Civil Procedure 26(e)(1)(A) when an expert receives newly produced information after submitting his or her expert report.

    Defendants submitted Staller’s expert report at the deadline to exchange expert reports, on December 22, 2023 while Dr. Csaszar’s deposition — at which he first revealed new information — took place on January 8, 2024.

    The Court held that even as they learned of this new information and received a production of documents pertaining to it, Defendants did not file a supplemental expert report, nor a motion for leave to do so, even up to the deadline for dispositive motions over a month later, on February 16, 2024.

    Moreover, even if Staller had supplemented his report in a timely fashion, that supplementation would not cure the deficiencies described above. The supplemented report would include a higher number of job search efforts and efforts per week for Dr. Csaszar. However, without any discussion of what a reasonably diligent job search should entail, the report still would not assist the jury in evaluating whether Dr. Csaszar exercised reasonable diligence in his job search. Additionally, the supplementation would have no impact on the unhelpful conclusion that “additional employment opportunities for Dr. Csaszar existed and continue to exist.”

    Held

    The Court granted Plaintiff’s motion to strike the expert report of Chad Staller.

    Key Takeaways:

    • Lack of a Reliable Methodology: As per Dr. Csaszar’s deposition testimony, Plaintiff agreed that “additional employment opportunities . . . existed” beyond the eight jobs listed in Staller’s report, since he alleged that he applied to many more jobs than just those eight. Accordingly, this conclusion did not bear on a fact in issue. Nor did relaying the number of job search efforts made help the jury determine whether that number of efforts was reasonable. Indeed, calculating eight job applications over 30 weeks to equal 0.27 job applications per week is an equation easily doable by the jury that did not require expert testimony. Staller did not employ any methodology for considering Dr. Csaszar’s employment record, or the locations that would be appropriate for him to apply to. Staller sought to sidestep these holes in his methodology by refraining from drawing the conclusion that Dr. Csaszar had 1,102 jobs to apply to, instead retreating to the vaguer assertion that “employment opportunities existed and continued to exist.”
    • Assistance to the trier of fact: The relevant facts in issue were whether substantially equivalent work was available, and whether Dr. Csaszar exercised reasonable diligence in obtaining other employment. The Court held that telling the jury that additional job opportunities existed would simply not provide them with the information they needed to conclude that Dr. Csaszar did or did not appropriately mitigate his damages. 
    • Supplementation Under Rule 26: The Court held that even as the Defendants learned of this new information pertaining to additional job applications that post-dated the initial report and received a production of documents pertaining to it, Defendants did not file a supplemental expert report, nor a motion for leave to do so, even up to the deadline for dispositive motions over a month later, on February 16, 2024.

    Case Details:

    Case Caption: Csaszar V. Monarch Medical, Llc Et Al
    Docket Number: 2:23cv1286
    Court: United States District Court, Pennsylvania Eastern
    Order Date: March 26, 2024
  • Economics Expert Witness’ Testimony Rejected on account of Half-Hearted Support for his Methodology

    Economics Expert Witness’ Testimony Rejected on account of Half-Hearted Support for his Methodology

    Plaintiffs James and Roxanne Thomas (“Plaintiffs”), on behalf of themselves and all others similarly situated, brought suit against GEICO Casualty Company, GEICO Indemnity Company, and GEICO General Insurance Company (collectively “GEICO” or “Defendants”) for violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”).

    Since 2013, Plaintiffs have been GEICO customers. Plaintiffs renewed their insurance policy with GEICO from January 22, 2020, to July 22, 2020. They asserted that GEICO had charged “excessive” premiums during the pandemic. Plaintiffs alleged that the premiums failed to account for the dramatic reduction in driving during that time. In other words, the premiums were not reflective of driving risks, which insurance companies assess when
    determining policy holders’ premium rates.

    GEICO instated a Giveback program, which offered a potential premium credit of 15% upon new and renewal of customers 6- or 12-month policies. Plaintiffs alleged that the discount inadequately accounted for the diminished insurance risk pool during the pandemic. According to Plaintiffs, GEICO provided no retroactive relief for consumers who had paid excessive premiums since the start of the pandemic and provided no additional premium relief as the pandemic continued.

    In their FAQ section, GEICO explained the Giveback program was created because “shelter in place laws have reduced driving,” and they were “passing these savings on to [their] auto, motorcycle, and RV customers.” Plaintiffs found this description misleading because it implied that customers would receive all the savings, whereas in reality, customers only received a 15% discount, while GEICO received a windfall of revenue.

    To determine what Plaintiffs’ refund should have been, or damages were, Plaintiffs relied on the testimony of Bernard “Birny” Birnbaum (“Birnbaum”). The parties disagreed on whether Birnbaum’s methodology was reliable, as required under Daubert, and whether it was admissible in this case. Plaintiffs also filed a motion for class certification.

    Economics Expert Witness

    Bernard Birnbaum is a consulting economist and former insurance regulator whose work focuses on insurance regulatory issues. Birny has served as an expert witness on a variety of economic and actuarial insurance issues in administrative and judicial proceedings.

    Discussion by the Court

    Plaintiffs sought GEICO to issue a refund for the “excessive” premiums, seeking monetary damages for the following:

    • policies they entered or renewed with GEICO that had a start date of effectiveness before March 21, 2020, and before GEICO’s Giveback program, but continued past March 21, 2020
    • policies they entered or renewed with GEICO after GEICO created its Giveback program

    In his report, Birnbaum explained that the purpose of his methodology was to calculate what refunds/damages Plaintiffs should have received for paying “excessive” insurance rates since the 2020 pandemic.

    Motion to Strike

    The Court separated the methodology employed by Birnbaum into two points for clarity. First, Birnbaum calculated the rate GEICO should have charged for policies effective on or after March 21, 2020, using information available at the time. This included policies initiated before the pandemic and those renewed or initiated after GEICO’s Giveback program launch. Termed the reasonable rate, this initial step mirrored a standard calculation for a private passenger automobile (“PPA”) insurance rate. While PPA rates typically consider future risks, Birnbaum’s approach was retroactive, determining 2020 rates today. Nonetheless, both methods analyzed risk transfers. Birnbaum justified his reasonable rate calculation with references to actuarial principles and model laws rooted in PPA ratemaking.

    Second, Birnbaum subtracted the reasonable rate from the rate GEICO charged Plaintiffs. The difference between the first and second steps was what GEICO would refund Plaintiffs. Birnbaum labeled this refund reasonable premium relief.

    The end date of the calculation was uncertain, as Birnbaum needed to assess GEICO’s records at the merits stage. Birnbaum performed his methodology to correspond with the relevant class members’ policy dates of effectiveness. The relevant class members are divided in the Unfairness Class and the Deception Class.

    Arguments Presented by Defendant

    Defendants argued that Birnbaum’s methodology was unreliable and therefore could not satisfy Federal Rule of Evidence 702. According to Defendants, the reasonable premium relief the Plaintiffs sought was applied retroactively, unlike other insurance calculations that were applied prospectively. Defendants argued that such a method allowed Birnbaum to determine what he believed GEICO should have charged for insurance rates based on what he knew then, whereas insurers usually issued premiums by assessing future risks based on information they knew at that given time.

    The Defendants supported their assertions by showing that Birnbaum failed to cite relevant examples, case law that found the method reliable, statutes, actuarial standards, model laws, or treatises that recognized reasonable premium relief.

    Arguments Presented by Plaintiff

    Plaintiffs explained that Birnbaum cited industry standard and actuarial principles as the roots of his methodology. They asserted that the standard Birnbaum used was the same methodology that GEICO had developed to create the Giveback program. Plaintiffs specified that the standards Birnbaum relied on explained that PPA rates might not be excessive and thus should reflect the cost of the transfer of risks. Plaintiffs further attempted to clarify that they applied the method prospectively, based on information GEICO knew at the time it decided the criteria and discount of the GEICO Giveback program, rather than retroactively.

    Court’s Decision on the Motion to Strike

    The Court deemed it imperative for Birnbaum’s methodology to be sound as a whole. The only time Plaintiffs cited a standard to support their arguments was when referring to ordinary PPA insurance ratemaking and/or determining what a reasonable rate would have been. The methodology before the Court at that time was not an ordinary PPA insurance rate. Instead, determining the PPA rate was only one part of the methodology, as Birnbaum first determined what the PPA rate or reasonable rate should have been and then subtracted that rate from the rate GEICO charged the Plaintiffs. Avoiding semantics, PPA rates determined future costs, while Birnbaum’s methodology sought to calculate returns. The Court concluded that Plaintiffs only attempted to support half of his methodology.

    The Court held that the Plaintiffs failed to raise in their briefing and oral argument that Birnbaum’s report cited a recognized methodology that mirrored the reasonable premium relief methodology. It could not simply rely on Plaintiffs’ assertions that Birnbaum said his methodology was rooted in industry standards. As for the Plaintiffs’ damages methodology, the Court made it clear that it did not “recognize” the Plaintiffs’ damages theory as truth.

    The Court denied the motion for class certification filed by the Plaintiffs, acknowledging commonalities with regard to the unfairness class but not the deception class, among other reasons.

    Held

    The Court granted Defendants’ motion to strike Birnbaum’s expert report and denied Plaintiffs’ motion for class certification.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Reliability: The Court stressed the importance of Birnbaum’s methodology being sound overall. It highlighted the complexity of the methodology, which involved determining reasonable rates and calculating what returns Plaintiffs should receive. The Court found that Plaintiffs failed to fully support their argument, particularly regarding recognized methodologies and damages theory.

    Case Details:

    Case Caption: Thomas Et Al V. Geico Casualty Company Et Al
    Docket Number: 1:20cv4306
    Court: United States District Court, Illinois Northern
    Citation: 2024 U.S. Dist. LEXIS 42709
    Order Date: March 12, 2024