Expert Witness Profiler

Category: Education & Schools Expert Witness 

  • Education & Schools Expert Witness’ Testimony Excluded Because of its Untimeliness and Insufficiency

    Education & Schools Expert Witness’ Testimony Excluded Because of its Untimeliness and Insufficiency

    In October 2023, Plaintiff Leslie Baldwin sued Kalispell School District #5 and Glacier High School (collectively “the District”) on behalf of her minor son, K.B., alleging that K.B. was sexually assaulted in February 2022 on a bus returning from a school-sanctioned wrestling event.

    The District sought to exclude the testimony of Baldwin’s retained expert, Thom Luedemann, arguing its untimeliness and insufficiency. 

    Education & Schools Expert Witness 

    Thom Luedemann is experienced administrator who has spent many years working in the education management industry. He received his masters in education from the Northern Arizona University.

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

    Discussion by the Court

    The District pointed out several inadequacies in Baldwin’s expert disclosures, highlighting her counsel’s explicit noncompliance with Rule 26(a)(2)(B).

    The Scheduling Order stated Baldwin’s liability expert disclosures were due by September 13, 2024. On September 12, Baldwin provided the District with her “Notice of Expert Witnesses’ Designation,” noticing an intent to use unidentified treating “Medical and Mental Health Experts” and a single retained expert, Luedemann. Attached to that Designation was Luedemann’s CV. It was not until the District reached out to Baldwin’s counsel about the present motion that, on September 27, Baldwin provided Luedemann’s signed expert report, the contents of which are almost identical to the attorney-prepared Designation.

    The District accurately argued that Luedemann’s disclosure is insufficient because a signed report was not originally provided and neither the Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). The District further claims that any attempt to supplement that disclosure now would be untimely. Baldwin’s response is limited to a single page stating that: (1) she provided the signed report as soon as the failure was noted and (2) she intends to supplement her disclosures following depositions of key witnesses despite the passage of the expert disclosure deadline.

    Failure to Provide a Timely, Signed Report

    Here, there is no dispute that Baldwin’s counsel failed to disclose a signed expert report by the deadline. There are also no facts upon which to find substantial justification. Thus, Baldwin’s only safe harbor is harmlessness. Weighing in Baldwin’s favor is the fact that counsel provided an expert report to the District three weeks later. And the District itself notes that the content of that report was consistent with that included in the attorney-prepared Designation.

    However, the fact that Baldwin’s counsel tried to fix this particular insufficiency is undermined by the fact that counsel knew at the time of the expert disclosure deadline that the expert would need to rely on the depositions of school officials that counsel failed to schedule prior to the deadline. As a result, Baldwin’s counsel knew the initial report was insufficient and supplementation of that report is not necessarily appropriate under Rules 26(e)(2).

    Insufficiency of the September 12 Designation

    Setting aside the absence of a separate report, neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation fails to provide “a complete statement of all opinions” Luedemann intends to give.

    She argued he needed to review the subsequent depositions, her counsel failed to take. Additionally, other than broad statements regarding “review of case notes,” the Designation does not identify “the facts or data considered by” Luedemann in forming his opinions.

    Nor does it identify the relevant exhibits as required by Rule 26(a)(2)(B)(iii). Luedemann’s CV does not list other cases he has been involved with, or state his compensation. Accordingly, the Court held that the September 12 disclosure failed to meet the requirements of Rule 26(a).

    Insufficiency of Luedemann’s Untimely Signed Report

    Finally, the District argued that Luedemann’s September 30 signed report is also deficient under Rule 26(a)(2)(B)(i), (ii), and (iii), and that he is not qualified to opine on K.B.’s emotional harm. 

    All Opinions

    Baldwin herself has stated that supplementation of the expert report is required in light of the September 2024 depositions. And apparently such supplementation has already occurred. The Court held that there is no real dispute that Luedemann’s September 30 report did not fully state his opinions and the basis for them.

    Facts of Data Considered

    In his signed report, Luedemann identifies the information he reviewed in preparing his opinion. Specifically, he stated that he reviewed the pleadings, “school policies on Title IX compliance and student supervision,” “statements from school officials involved,” “relevant federal and state guidelines on student safety and harassment prevention,” and “case notes and personal statements from Leslie Baldwin regarding her son’s experience with Kalispell School District, CPS, and other authorities, providing additional context to systemic issues.”

    The District argued that list is fatally deficient in that it does not include the Title IX investigation report or indicate that Luedemann has reviewed any other Title IX complaints so as to have a basis of comparison. The District is also concerned that Luedemann does not identify any of the underlying documents that would support his conclusions of, inter alia, a “documented hazing culture,” a “broader pattern of mishandling Title IX-related complaints,” and “numerous warning signs” of a “well-known hazing culture.”

    Ultimately, while Luedemann’s failure to consider the Title IX investigation report is fodder for a challenge under the Federal Rules of Evidence or for cross-examination, the Court held that it is not a clear Rule 26 disclosure problem. This may be a serious trial challenge for Baldwin as Luedemann’s failure to consider this central document is likely to fatally undermine his credibility. Although a closer question, the District’s other concerns fall in this same category. The vagueness of Luedemann’s references makes it difficult to determine what specific information he relied on in formulating his opinions.

    Exhibits

    Luedemann does not identify any exhibits he intends to use.

    Emotional Harm

    The District argued that Luedemann is not qualified or at least has not demonstrated his qualification to assess K.B.’s alleged emotional harm. Recognizing his extensive experience as a teacher and with school administration, the Court held that nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.

    Ultimately, the cumulative inadequacies in Baldwin’s disclosure regarding Luedemann are simply too many. Counsel’s failure to provide a timely and sufficient expert report under Rule 26(a)(2)(B) is therefore neither substantially justified nor harmless. The District’s request to exclude Luedemann as an expert is granted.

    Hybrid Expert Disclosures

    Although not raised by the District, Baldwin also has a serious problem as it relates to her disclosure of the treating physicians in the case. Her Rule 26(a)(2)(C) disclosure merely states:

    “Plaintiff reserved the right to elicit testimony from any and all of Plaintiff’s medical providers as “hybrid” fact/expert witnesses, to testify regarding any and all impressions, opinions and observations developed in the court and scope of their treatment of Plaintiff, as well as the information contained in their records, which have been previously provided to counsel, or which have been requested and will be provided. Plaintiff further reserves the right to elicit testimony of these witnesses for future treatment opinions to which they have already opined or to which they opine in the future in either their medical records and/or deposition testimony.”

    While this disclosure may be benevolently read to state the subject matter of the anticipated testimony, the Court held that it fails to provide a summary of the facts and opinions at issue. More fundamentally, it does not even identify the medical personnel at issue.

    Prior to exclusion, however, the Court will give Baldwin an opportunity to show that her failure was either substantially justified or harmless.

    Held

    The Court granted the District’s motion to exclude Thom Luedemann from testifying based on his inadequate disclosure.

    Key Takeaway:

    Neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation failed to provide “a complete statement of all opinions” Luedemann intended to give.

    Despite his extensive experience as a teacher and with school administration, nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.

    Case Details:

    Case Caption: Baldwin V. Kalispell School District #5 Et Al
    Docket Number: 9:23cv127
    Court: United States District Court, Montana
    Order Date: December 2, 2024
  • Marketing Expert Witness’ Testimony on Students’ Exposure to Fraudulent Rankings Admitted

    Marketing Expert Witness’ Testimony on Students’ Exposure to Fraudulent Rankings Admitted

    Plaintiffs Iola Favell, Sue Zarnowski, Mariah Cummings, and Ahmad Murtada (“Plaintiffs”) alleged that Defendant University of Southern California (“USC”) engaged in a scheme to artificially inflate the U.S. News & World Report (“US News”) ranking of USC’s Rossier School of Education (“USC Rossier”) by submitting incomplete data to US News — and then marketed that fraudulent ranking to the public.

    An internal investigation conducted by USC’s outside counsel, Jones Day, determined that USC had submitted student selectivity data only for USC Rossier’s highly selective, in-person PhD program — but not from its less-competitive EdD program.  The less-competitive EdD program was offered online after 2015 in collaboration with 2U, a company that offers technology platforms for online programs and provides advertising and recruiting for those online programs. 

    Plaintiffs alleged that USC, knowing the importance of the rankings on prospective students’ school choice, heavily marketed USC Rossier’s rapidly rising ranking to the public to boost enrollment in the online programs. USC orchestrated this scheme, Plaintiffs alleged, through its submission of false/incomplete data and then promoted the resulting ranking knowing that it was misleading.

    USC filed Daubert motions seeking to exclude three of Plaintiffs’ expert witnesses, Dr. John Chandler, Sara Neher and J. Michael Dennis.

    Marketing Expert Witness

    Dr. John Chandler is a professor of marketing at the University of Montana who holds a master’s degree in mathematics and a doctorate in statistics and has worked in analytics and data science for 25 years with a focus on digital marketing. 

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

    Education & Schools Expert Witness 

    Sara Neher is a partner at Kennedy & Company Higher Education Strategies, a higher education consulting firm. She has an MBA and has worked in higher education for more than twenty years, including academic leadership positions at two business schools. Neher has experience consulting higher education clients about their US News rankings, including constructing models like the one she submits in this case, and has also been part of the submission of data to US News for multiple schools. 

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

    Survey Research Expert Witness

    J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.

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

    Discussion by the Court

    John Chandler

    John Chandler submits a 95-page report explaining digital marketing practices in the context of student recruitment for graduate programs, the stages of a prospective student’s journey through the “marketing funnel,” what marketing strategies are typically deployed for student recruitment, and how USC Rossier applied these principles in its marketing strategy.

    The first portion of Chandler’s report expresses extensive opinions on marketing practices, the enrollment journey, and the comprehensive marketing strategy that USC and 2U deployed to market USC Rossier.  The second part of Chandler’s report discusses the exposure — i.e., the reach — of USC Rossier’s marketing materials containing the allegedly fraudulent ranking information.  In the end, Chandler’s bottom line conclusion is: “Given the extensive and varied exposure methods outlined above, I can state with a reasonable degree of scientific certainty that all or nearly all students at USC Rossier in the MAT and OCL programs during the period of ranking manipulations were exposed to the fraudulent rankings. The pervasiveness of these rankings across multiple touchpoints ensured their near-universal reach.”

    Reliability

    USC did not challenge Chandler’s opinions on general marketing principles or the specifics of the extensive marketing strategy 2U and USC implemented with regard to USC Rossier. Instead, USC challenged the exposure/reach aspects of Chandler’s opinions. The crux of USC’s argument is that Chandler has no quantitative basis to opine that all or nearly all prospective students were exposed to fraudulent rankings through emails and/or other means.

    USC further contended that Chandler did not have reliable site traffic data to substantiate an opinion that the vast majority of students visited the USC Rossier website and were exposed to a ranking representation.

    The Court first observed that Chandler’s report extensively details the marketing strategy that USC and 2U deployed on behalf of USC Rossier, including specific opinions on how the marketing strategy was designed to move interested students through the marketing funnel from “awareness” to “enrollment.”

    To arrive at his exposure conclusions, Chandler relied heavily on testimony from 2U’s 30(b)(6) representative, Dr. Joana Gerber. The Court has reviewed Gerber’s deposition transcript, as well the arguments both USC and Plaintiffs make about her testimony. 

    The Court agreed with Plaintiffs that the thrust of Gerber’s testimony and Chandler’s report is that 2U orchestrated an extensive marketing strategy designed to move all prospective students through the marketing funnel. It also agreed with Plaintiffs that Chandler’s opinions are the result of extensive review of record evidence, including Gerber’s testimony, and that USC’s placement of rankings on the USC Rossier website and in social media further supports his exposure conclusions.

    Sara Neher

    Sara Neher submitted a 13-page expert report explaining a model she constructed to project the US News ranking USC Rossier would have received if USC had submitted accurate data. US News publishes its methodology each year, including the relative weights of the various factors that underlay its rankings, with each school receiving an assigned rank based on its overall score on a 100-point scale. 

    Neher’s model standardizes the data in each category

    Neher begins her reconstructed model with the data published by US News. First, Neher’s model standardizes the data in each category using z-scores, which are multiplied by the relative weights published by US News and added together to create a total for each school. Then, the total is indexed such that the top score always equals 100. The critical component — and the factor USC most vigorously challenges — is what Neher does to account for the information US News does not release. Neher acknowledged that she does not have access to information US News does not make publicly available, including the number of faculty with awards, the number of doctoral students who submitted a GRE score, the overall score for the lowest ranked 25% of schools, and the process for applying a logarithmic transformation to the student-faculty ratio. 

    Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted

    To account for this unavailable information, Neher calculated what she labels a “hidden-data constant” by comparing how much her model’s raw score (using the publicly available data) deviates from the school’s actual US News ranking. This, Neher reports, “captures the difference between what our model is able to calculate as the indexed score and what US News reports as the final score.” Then Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted, based on an internal report from USC’s Director of Institutional Research who was instructed to investigate the matter. After generating a new overall score for USC Rossier using this information, Neher applies the hidden-data constant to account for the information she cannot recreate. 

    The result led to a dramatic decrease in USC Rossier’s ranking. Under Neher’s model, USC Rossier’s rank would have dropped from 15 to 48 in 2018; from 10 to 34 in 2019; from 12 to 61 in 2020; from 11 to 63 in 2021; and from 11 to 64 in 2022. 

    USC argued that Neher’s opinions regarding USC Rossier’s adjusted US News rankings must be excluded because they are the result of an unreliable methodology. Specifically, USC argued that the “hidden data constant” Neher calculates varies both school-to-school and year-to-year, resulting in a score that is sometimes close to US News’ ranking, but other times is dramatically far off. In other words, USC argued that there is no consistency to the hidden-data constant, so the methodology cannot be reliably used to predict adjusted scores based on different data input.

    Qualifications

    USC challenged Neher’s qualifications on the grounds that she does not have the training, experience, or specialized knowledge to qualify as an expert in statistical modeling. In addition, USC argued that she has never worked for or been trained by US News and has never before tried to replicate US News’s model; instead, she knows only what US News publicly discloses. 

    As USC sees it, absent insider knowledge about US News’s rankings, it is not possible to reliably replicate US News’ ranking at all — and any attempt to do so is “a pure guessing game.” 

    The Court declined USC’s invitation to announce a rule — especially in a discretionary evidentiary ruling — that the only way to reliably prove rankings fraud is to use (or, more likely, to misappropriate) insider knowledge of US News’s proprietary methodology. The Court is not convinced that any attempt to do so is necessarily a “pure guessing game” that categorially forecloses Neher’s proffered reconstructed rankings. This is especially true considering that Plaintiffs have identified other consulting firms and academic research that attempt to reconstruct US News rankings. 

    The Court held that Neher’s extensive experience working in higher education consulting constitutes a sufficient foundation to qualify her to offer her proffered opinions. 

    Reliability

    The Court would begin by observing that neither Plaintiffs nor Neher purport to represent the proffered adjusted rankings model as a perfectly exact replication of the US News rankings. In addition, though USC did not challenge in its moving papers the result of Neher’s model — i.e., that USC Rossier’s ranking would experience a large decline — it indicated at the hearing that it does challenge Neher’s ultimate conclusion that rankings would have dropped.

    For present purposes, the crux of USC’s challenge is how close Neher got in making a rankings prediction.

    The Court also disagrees with USC that Neher’s methodology cannot be tested. Neher has described the methodology she deploys in her model in transparent and understandable terms, meaning USC and its experts can verify it, test it against different data, and/or critique the application of the hidden data constant. 

    USC does, however, point to numerous examples where the hidden data constant does not come close to replicating the school’s actual US News ranking, and that it also varied year-to-year. The question becomes, then, whether the inconsistencies with the outcome of Neher’s model compared to US News’s actual rankings are the result of unreliable methodology or instead go to the weight of the evidence. The Court notes that USC does not challenge Neher’s replication of the published aspects of US News’s methodology, only the methodological step of capturing the “hidden data constant.” 

    J. Michael Dennis

    J. Michael Dennis submitted a 55-page report proposing two yet-to-be-conducted choice-based conjoint surveys that would estimate what USC Rossier’s tuition prices would have been but for USC’s alleged conduct. Dennis defines a choice-based conjoint survey as a “standard marketing research technique for quantifying consumer preferences for products and for the component features that make up a product. Conjoint analysis can be used to break down the value of a conceptual feature ( i.e., claims about the USC Rossier’s credentials) into its component parts (i.e., the claim that USC Rossier is a ‘top ranked’ program, or more specifically, that it was ranked between 10-15 by U.S. News & World Report in the 2017-2022 time period). Conjoint surveys take advantage of the fact that consumers are profoundly familiar with the task of shopping — comparing products, evaluating them, and making choices. Consumers are accustomed to making choices in their real-world shopping experiences.”

    To calculate damages, Dennis explains:

    “I define the but-for world as a world where the actual U.S. News rankings were in fact between 34 and 64 (corresponding to my fourth level of “30 to 59” for the “Rankings” attribute). In contrast, class members paid program costs when the advertised rankings were between 10 and 15 (i.e., corresponding to my second level of “10 to 19” for the “Rankings” attribute). If Plaintiffs’ allegations have merit, the market-clearing prices in the but-for worlds will be lower than the prices paid by class members.”

    Reliability

    USC first argued that Dennis’ opinions must be excluded because they rely on Neher’s inadmissible opinions. However, the Court would not exclude Neher’s opinions, thereby rendering this argument moot.

    USC next argued that Dennis’ opinions must be excluded under Fed. R. Evid. 702(b) because they are based on insufficient facts or data.

     USC argued that higher education does not operate in normal supply-and-demand conditions because of the impact of other economic incentives, including scholarships, fellowships, and grants. In addition, USC argued that universities address scarcity through selective admissions, not tuition price. USC’s argument, then, is that Dennis has no evidence justifying his assumption that the market value of an education from USC Rossier is anything other than what USC Rossier decides to charge. 

    Relatedly, USC also argued that Dennis has no evidence supporting his assumption that USC Rossier’s tuition responded to US News rankings. USC relies on a report from its expert witness to argue that there is no empirical analysis showing that tuition for EdD programs is affected by changes in school rankings.

    This Court agrees that the real-world and market realities evidence upon which USC relies speak to the weight of Dennis’ analysis — which certainly could persuade a jury — but are not supportable reasons for excluding Dennis’ expert report and testimony.

    Finally, the fact that Dennis’ survey has not been fully developed or implemented does not warrant exclusion at this juncture. There is no basis to exclude Dennis’ proposed conjoint survey. However, the Court will not preclude USC from bringing a later Daubert challenge to Dennis’ final report and testimony after his conjoint survey has been fully executed.

    Held

    The Court denied USC’s Daubert motions to exclude the expert report and testimony of Dr. John Chandler, Sara Neher, and Dr J. Michael Dennis.

    Key Takeaways:

    • While Chandler is not able to offer at this juncture a quantifiable number of students exposed to fraudulent rankings — an issue that might make the specific contours of his testimony subject to a later motion in limine — the Court does not find too great of an analytical gap between the record evidence and his exposure opinions. The core of USC’s argument goes to the weight of Chandler’s opinion and the identified shakiness of Gerber’s testimony, but “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
    •  The fact remains that Plaintiffs intend to use Neher’s model to show how consumers would react to USC Rossier’s adjusted rankings range, as compared to being a top-ranked school. With this in mind, the argument USC makes about the exact precision of Neher’s estimation cannot carry the weight that USC places upon it. But to be sure, USC has identified several weaknesses of Neher’s model which can be subject to “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” The Court cannot and will not consider whether Neher’s model is right or wrong; it is satisfied at this juncture that Neher transparently and thoroughly explained her methodology in a way that can be tested and cross-examined. The Court is therefore not convinced that Neher’s model is the product of such unreliable methodology as to fail Daubert‘s gatekeeping standard.
    •  The Court noted that Dennis extensively details the structure of his survey and has considerable experience executing similar surveys. And as just examined, the Court is satisfied at this juncture that Dennis is qualified and has proposed a reliable methodology. Accordingly, there is no basis to exclude Dennis’ proposed conjoint survey.

    Case Details:

    Case Caption: Iola Favell Et Al V. University Of Southern California Et Al
    Docket Number: 2:23cv3389
    Court: United States District Court, California Central
    Order Date: November 13, 2024