EPP and Paveloc both construct and sell “erosion prevention” systems that are used in retaining walls. The systems are made up of interlocking hiocks. EPP has a patent on its “Channel Lock II block” (US Patent No. 8,123,435) (“the 435 patent”).
At some point the business relationship soured. Paveloc stopped making the EPP product and began manufacturing a competing product, the ARP block. EPP alleges that the ARP block is a “knock off” of the Channel Lock II block and that Paveloc was making the ARP blocks using the same molds that FPP had provided to Paveloc to make the Channel Lock II product.
In 2020, Fort Bend County Levee Improvement District No. 2 opened a new project for bidding. It awarded the contract for the project to TLC, a general contractor for construction projects. TLC took bids from subcontractors for erosion prevention blocks. Both Paveloc and EPP submitted hids. TLC accepted Paveloc’s bid. According to EPP, Paveloc got the project by using the ARP block, the alleged knockoff of EPP’s Channel Lock II block.
With the trial just a week away, Plaintiff supplemented its expert Evans’ report, offering opinions on the USPTO patent process and the validity of the ‘435 Patent as a rebuttal to Defendants’ claim of invalidity.
Defendants argued that this supplementation is untimely and circumvented this Court’s ruling that Evans is not a person of ordinary skill in the art, unqualified to give opinions on invalidity.
At this point, the Court is faced with several evidentiary motions, including the Defendants’ motion to strike Andrea H. Evans’ supplemental report and Plaintiff’s omnibus motion in limine to exclude the testimony of Defendants’ expert—Dan Bullock.
Intellectual Property Expert Witness
Andrea Evans is a former patent and trademark examiner, has a civil and environmental engineering degree from Georgia Tech, and worked at an engineering company between college and law school.
She has been a licensed attorney in good standing by the State of Texas since 2003. Evans has been a member of the USPTO Patent Bar since 2007. She has been a member of the U.S. Supreme Court Bar since 2009.
Daniel B. Bullock is a principal at Bullock, Bennett & Associates, LLC, an engineering and geoscience firm. He is a licensed professional engineer in Texas and also holds inactive professional engineer licenses in Arkansas, New Jersey, and Louisiana. He has over thirty years of professional experience working in the field of water resources and geotechnical engineering.
As a patent examiner, however, Evans did not work in the field of erosion prevention or cement block manufacturing, but instead, examined time-measuring devices, keyboards, and press printing systems. Consequently, this Court held that she is not a person of ordinary skill in the relevant art, and thus, she cannot opine on invalidity of the patent.
The question then becomes whether Evans can offer substantially similar expert opinions regarding the validity or invalidity of the ‘435 Patent as she did in the excluded report simply by couching it in her patent-examiner experience.
Evans is a patent attorney with extensive experience in patent law and procedure. As this Court has held, however, she is not a qualified technical expert on the issues of infringement or validity. Thus, she is not qualified to give opinions on issues that are “exclusively determined from the perspective of ordinary skill in the art.” To hold otherwise would be to convert every former patent examiner into a person of ordinary skill in every art, regardless of how tenuous their patent-examination experience is to the patent dispute at hand.
EPP may argue, Evans can testify to what a patent examiner may determine. The Court held that Evans cannot establish any similar connection between her experience in time-measuring devices, keyboards, and press-printing systems and the claimed invention of certain concrete revetment blocks. Thus, Evans cannot cloak her expert testimony on validity with her experience as patent examiner. That would amount to a circumvention of this Court’s order that she is not qualified as a person of ordinary skill in the art.
Dan Bullock
Plaintiff asserts in parts of its Omnibus Motion in Limine that the testimony of Defendants’ expert—Dan Bullock—should be excluded. The Court observed that the two subparts regarding Bullock are verbatim duplicates of Plaintiff’s earlier motion to strike the declaration of Dan Bullock.
This Court has already ruled on the motion to strike. The Court denied the motions in limine because the Plaintiff has not provided any new facts, reasons, or authority for it to deviate from its earlier ruling.
Held
The Court granted Defendants’ motion to strike Andrea Evans to the extent the report purports to discuss invalidity and/or what a reasonable patent examiner would or would not conclude regarding the 435 Patent.
Moreover, the Court denied Plaintiff’s motions in limine regarding the testimony of Defendants’ expert—Dan Bullock.
Key Takeaway:
Evans is not a qualified technical expert on the issues of infringement or validity. Thus, she is not qualified to give opinions on issues that are “exclusively determined from the perspective of ordinary skill in the art.” To hold otherwise would be to convert every former patent examiner into a person of ordinary skill in every art, regardless of how tenuous their patent-examination experience is to the patent dispute at hand.
Case Details:
Case Caption:
Pave/Lock/Plus Ii Llc V. Erosion Prevention Products Llc Et Al
A district judge in Texas refused to admit the insurance expert witness’ bad faith report because it failed to explain how exactly the Defendant violated the generally accepted adjusting standards.
On February 17, 2021, a Texas winter storm damaged a commercial building owned by Barron. Century insured that building under a surplus lines renewal policy. Barron filed a claim with Century for damages to the metal roof of the insured building. Immediately after the storm, Barron began emergency repairs to the metal roof of the building. Barron also repaired damage to the interior of the building and the domestic plumbing.
On March 5, 2021, a field adjuster inspected the building on Century’s behalf. On June 16, 2021, Century sent a letter to Barron that adopted its field adjuster’s net replacement cost of less than $4,000 and claimed that damage to the metal roof, domestic plumbing lines, and the interior of the building was excluded from coverage. Century identified “freeze damages to the domestic plumbing lines” as the cause of damage to the building’s interior. Further, Century stated that the indentations in the roof resulted from activities excluded from coverage under the policy exclusions.
Motions to exclude
Barron designated Phil Spotts as an expert to testify regarding damages and bad faith. Spotts inspected the damaged building on October 6, 2021. Spotts prepared his final estimate on December 6, 2021, relying on both his inspection and “additional information that was provided by the insured.” His estimate of the replacement cost value of the roof totaled $370,020.81. Spotts also rendered an opinion on whether Century’s claim investigation and adjustment were conducted in bad faith. Additionally, Barron designated Joshua Reeves as an expert to testify regarding causation. Reeves conducted two on-site inspections of the damaged building on November 10, 2022 and November 23, 2022. Reeves opined that the damages to the metal panels that comprised the roof of Barron’s building were damages by environmental forces from the February 2021 winter storm. Century sought to exclude Spotts and Reeves’ expert reports.
Insurance Expert Witness
Philip N. Spotts is the founding member of The Mission Risk Consulting Group, LLC, having opened Mission Adjusting and Risk Management, LLC in 1993. He has over 40 years’ experience in handling or managing a wide variety of property and casualty claims, including commercial and residential property, national catastrophe, auto liability, general liability, and governmental liability.
He has several industry designations granted by the Insurance Institute of America, including Chartered Property and Casualty Underwriter, Associate in Risk Management, and Associate in Claims.
Joshua G. Reeves is a licensed Professional Engineer employed by Neches Engineers, an engineering firm located in Beaumont, Texas. He is a Licensed Professional Engineer in Texas and a Certified Texas Department of Insurance Windstorm Inspector. He has designed thirteen metal roofs for private commercial and industrial clients.
Regarding bad faith, Spotts concluded that the Century claim investigation and adjustment “fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation” based on his experience. Spotts also concluded that the Century estimate used as a basis for the claim payment was “underpriced” and “under scoped.”
Century challenged (1) Spotts’ qualifications as both a damage and bad faith expert and (2) the reliability of his report.
At the hearing, the parties agreed that expert reports on damages were unnecessary in light of the appointed umpire’s forthcoming appraisal of the damage to Barron’s property, which was binding on both parties pursuant to the appraisal provisions of the policy. Accordingly, Century’s instant Motion to Exclude was denied as moot with respect to Spotts’ expert report on damages. Additionally, to the extent Barron sought to offer Spotts as an expert on causation, Century’s instant Motion to Exclude was granted because Barron had not formally designated Spotts as an expert on causation. The Court considered Spotts’ qualifications, the relevance of his report, and the reliability of his methodology regarding only his bad faith report.
Spotts is Qualified to Serve as an Expert
Spotts stated that he had been licensed “on an All-Lines basis to supervise and adjust claims” involving “tens of thousands of residential and commercial structures due to a diverse number of causes” and that he “possessed over 40,000 hours of claims-related experience.”
The Court found that Spotts had demonstrated sufficient qualifications to serve as a bad faith expert.
Spotts’ Expert Report is Relevant to the Issues Presented in this Case
Century contended in conclusory fashion that Spotts’ damage report was not relevant but failed to specifically explain how the report lacked relevance to the issues presented in this case.
The Court found that Spotts’ opinions on bad faith were relevant to Barron’s breach of contract, statutory bad faith, and Prompt Payment of Claims Act claims. The parties’ dispute over whether Century properly adjusted Barron’s claim in good faith was central to the resolution of all three claims.
Spotts’ Expert Report Failed to Demonstrate Reliance on Reliable Methodology
Century contended that Spotts’ report on bad faith was not reliable because it “was not supported by any evidence” and failed to cite to “any Texas law, statute, policy provision, or any other standard that would apply to this claim.”
When Spotts claimed that the Century claim investigation and adjustment fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation, he identified two sources for the standards on which he relied in his report. First, he cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham but the Court found that Spotts’ conclusory statement on Century’s claim investigation and adjustment amounted to him stating “it is so.” In other words, Spotts did not explain how Century’s behavior failed to meet the vague standards of insurance adjusting he cited.
The second source on which Spotts based his conclusions was the “National Association of Insurance Commissioners Unfair Claims Settlement Practices Act” (“NAIC Act”), attached to his report as an addendum. The Court held that while the NAIC Act provided standards for proper adjustment and investigation of claims, Spotts failed to explain which specific sections of the NAIC Act he relied on in reaching his conclusions. Moreover, Spotts did not reference any specific sections of the NAIC Act at all in his expert report. Spotts’ general reference to the entire NAIC Act without reference to any specific provisions was insufficient to demonstrate a reliable methodology because he did not describe what specific standards were violated.
Joshua G. Reeves
In developing his report, Reeves relied on the inspections he conducted as well as various documents such as the International Building Code and International Existing Building Code.
It should be noted that Century challenged only the reliability of Reeves’ report. The Court held that Reeves was qualified to serve as an expert in this case and that Reeves’ expert report was relevant to Barron’s claims since Barron must show that the February 2021 winter storm caused the alleged damage to the metal roof of the building.
Reeves’ Expert Report is Based on Reliable Engineering Methodology
In his report, Reeves identified four potential causes for the damage to the metal roof of Barron’s building: “foundation settlement, faulty construction materials, poor methods of construction, excessive live loads such as wind, show, ice, or seismic.” Reeves determined that the first three causes were not applicable based on the Neches Engineering analysis of (1) the presence of foundation settlement, (2) the structural integrity of the original roof panels, and (3) whether the building’s construction complied with the 1988 Uniform Building Code, which was the governing design criteria when Barron’s building was constructed. After describing his analysis and conclusions on the first three potential causes of the damage, Reeves concluded that the damages “are directly linked to excessive loads: either mechanical or environmental loads.”
Reeves’ conclusion was based on a flawed process of elimination
Century contended that Reeves’ conclusion “was based on a flawed process of elimination.” It added that Reeves’ opinions on these potential causes amounted to “it is so” opinions, which made them unreliable. The Court disagreed because Reeves relied on both his own inspection of Barron’s building, relevant building codes, weather data, reports from other adjusters that examined the property, and documents containing information regarding the specific roof panels used. Reeves then analyzed each potential cause and reached a specific conclusion on each one, excluding three and concluding that the fourth was the cause of damage to Barron’s property.
The Court disagreed with Century that Reeves’ opinions regarding whether mechanical loads caused the damage to Barron’s property were based on insufficient information because Reeves inspected the damaged roof panels during his two on-site inspections of the damaged property and analyzed whether the damage was consistent with footsteps.
Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence
The Court held that Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence, not its admissibility such as when Century made no attempt to explain why the meteorological data or environmental load calculations Reeves used in his report were incorrect.
Held
The Court granted Defendant Century Surety Company’s motion to exclude Plaintiff’s witnesses Spotts and Reeves with respect to Phil Spotts’ expert report on bad faith; denied it as moot with respect to Spotts’ expert report on damages; and denied it with respect to Joshua Reeves’ expert report on causation.
To the extent Plaintiff Larry Barron sought to offer Spotts as an expert on causation, the Court granted Century’s instant motion to exclude Plaintiff’s Witnesses Spotts and Reeves.
Key Takeaways:
Phil Spotts identified two sources for the standards on which he relies in his report. He cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham and the National Association of Insurance Commissioners Unfair Claims Settlement Practices Act. The Court held that there is “too great an analytical gap between the data and the opinion proffered” to render these standards a sufficiently reliable methodology for determining whether Century’s claim investigation and adjustment were conducted in bad faith.
Determining whether an expert report is reliable is the product of a three-part analysis: (1) whether “the testimony is based on sufficient facts or data”; (2) whether “the testimony is the product of reliable principles and methods”; and (3) whether “the expert has reliably applied the principles and methods to the facts of the case.” Joshua Reeves’ testimony was the product of engineering analysis based on Reeves’ personal observations and inspections.
This is an insurance case arising out of a storm occurring on or about April 28, 2021, which allegedly caused damage to the roof of Plaintiff’s hotel located in San Antonio, Texas at 4 Piano Place, 78228. Plaintiff Nehal LLC d/b/a Quality Inn filed a claim to Defendant, Accelerant Specialty Insurance Company (“ASIC”) on or about March 20, 2022, after which the Plaintiff alleged the Defendant underpaid the claim. Nehal LLC then filed this action in state court alleging causes of action for breach of contract, violations of Section 542 of the Texas Insurance Code, unfair insurance practices in violation of Section 541 of the Texas Insurance Code, violations of the Texas Deceptive Trade Practice Act, and breach of the duty of good faith and fair dealing.
Plaintiff designated W. Tom Witherspoon, a licensed engineer in the State of Texas, to testify “regarding the condition of Plaintiff’s roof, the cause and extent of damage to Plaintiff’s roof, the proper method of restoring Plaintiff’s roof to its pre-loss condition, and any other matters within his expertise related to the wind and hail damage to Plaintiff’s roof.”
Witherspoon pointed to evidence of hail impact damage to the roof and recommended that the roof be replaced in his expert report.
So, ASIC filed a motion to exclude Witherspoon from testifying as an expert for Plaintiff on the basis that his report was unreliable and not relevant, and his conclusions were unreliable and not supported by any methodology.
Engineering Expert Witness
W. Tom Witherspoon is a Navy veteran and a licensed professional engineer in the State of Texas. He has been doing forensic analyses of hail damaged roofs for more than 25 years. He is also a certified Structural Repair Specialist. During his career, Witherspoon has done forensic evaluations of various buildings, homes and other structures affected by wind or hail more than 500 times.
Discussion by the Court
ASIC insisted on the inadmissibility of Witherspoon’s opinions due to certain inconsistencies. First, the date Witherspoon marked as the storm date was different from the date Plaintiff alleged as the storm date. Second, Witherspoon failed to explicitly say that the storms he referred to caused the damage at issue. ASIC further contended that Witherspoon’s conclusions were unreliable and not supported by any methodology because the data he relied on was insufficient.
At the hearing, ASIC also further clarified that Plaintiff has admitted it did not replace the roof after obtaining funds to do so from a settlement from a prior insurance claim for roof damage. At the hearing, Plaintiff did not dispute that Plaintiff did not make any repairs to the roof despite receiving funds to do so from a prior claim.
Witherspoon’s testimony is not reliable
Witherspoon’s unreliable methodology and conclusions were objected to by ASIC. They argued that he failed to differentiate between prior damage—since the roof was not replaced or repaired after prior damage for which Plaintiff received a settlement—and the damage Plaintiff alleged occurred due to the 2021 storm. Given this clarification, the Court held that Plaintiff did not meet its burden to show that Witherspoon’s testimony was reliable.
Plaintiff designated Witherspoon as an expert who might testify as to the cause of damage to the Plaintiff’s roof. The Plaintiff previously settled a claim with a reported loss date of April 12, 2016, with another insurer for damage to the property’s roof. The evidence also established that Plaintiff did not replace the roof after it settled that claim.
The Court noted that Witherspoon’s report and affidavit failed to address prior storms and did not attempt to differentiate damage caused by previous storms from that of the 2021 storm. Additionally, Witherspoon had not been deposed, and there is no recorded testimony from him specifically addressing the cause of the roof damage. Plaintiff submitted a sworn affidavit with its response, but the affidavit did not address whether Witherspoon analyzed or attempted to analyze what damage was attributable to prior storms versus the one at issue in this case.
The Court held that there was no proof of Witherspoon incorporating consideration of prior damage, or even that Witherspoon was aware that Plaintiff had received a settlement for a prior storm yet not replaced the roof.
Held
The Court granted Defendant’s motion to strike report and testimony of Engineering Expert Witness W. Tom Witherspoon.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
ASIC Objected to Witherspoon’s Methodology: ASIC raised objections to the reliability of Witherspoon’s methodology and conclusions regarding the cause of damage to the Plaintiff’s roof. They argued that Witherspoon failed to differentiate between prior damage and damage allegedly caused by the 2021 storm.
Court’s Decision Based on Burden of Proof: The Court determined that Plaintiff failed to meet its burden to demonstrate the reliability of Witherspoon’s testimony. This determination stemmed primarily from Witherspoon’s analysis not accounting for prior damage and its potential impact on the current case.
Plaintiff’s Settlement and Roof Damage History: Plaintiff had settled a previous claim with another insurer for damage to the roof, dated April 12, 2016. Despite this settlement, the roof was not replaced, indicating a history of prior damage.
Witherspoon’s Report Limitations: Witherspoon’s report and affidavit did not address prior storms, and there was no attempt to differentiate damage caused by previous storms versus the 2021 storm. Additionally, Witherspoon had not been deposed, and there was no record of his specific testimony regarding the cause of roof damage.
Lack of Consideration for Prior Damage: The Court found no evidence that Witherspoon considered prior damage, nor was there evidence that he was aware of the Plaintiff’s settlement for a previous storm and the subsequent lack of roof replacement.
Case Details:
Case Caption:
Nehal Llc V. Accelerant Specialty Insurance Company
Vincent McKinney’s death on April 15, 2021, at a U-Haul construction site led to a lawsuit, filed by his surviving spouse and next kin Alberta Louise Perry, Plaintiff, with Jenkins & Stiles, LLC, a construction company and the general contractor for the site, being the Defendant. Despite some disputed facts, parties agreed that McKinney, who was delivering cargo to the construction site, specifically five bundles of insulated panels, met his demise when the cargo, being unloaded by Curtis Kennedy, a forklift operator and jobsite superintendent for the Defendant, fell off the trailer and onto McKinney. McKinney lost his life on the scene.
According to Kennedy, he directed McKinney to complete the unstrapping of the load so that Kennedy could initiate the removal of the cargo from the trailer using a forklift. Kennedy asserted that McKinney had removed all the straps before the offloading began, although he wasn’t entirely certain. Kennedy testified that, based on McKinney’s body language, he believed McKinney knew he was approaching with the forklift. As Kennedy commenced offloading the cargo, the bundles fell off the forklift and landed on McKinney, who was still positioned next to the trailer.
Shortly after the incident, an investigator named Michael Johnson (“Johnson”), representing the Tennessee Occupational Safety and Health Administration (“TOSHA”), arrived at the scene. Johnson conducted interviews with several witnesses, including Robert Hutton (“Hutton”), who was then an employee of Chattanooga Fire, LLC. During his statement to the TOSHA investigator, Hutton mentioned that, before the incident, Kennedy had already unloaded some cargo, as he saw it stacked nearby. Hutton reported hearing someone say, “Curtis your [sic] clear, Go”. Following that, he heard a crash and observed McKinney under the cargo. Hutton explicitly stated, “Everyone was clear, Curtis had a good visual of the work area. I didn’t see anything that appeared to be unsafe”. Unfortunately, Hutton passed away on August 3, 2022.
As part of its expert disclosures, the Defendant identified Charles A. Eroh, P.E. Among several other conclusions, Eroh asserted that McKinney bore responsibility for the incident. This was attributed to his departure from the safe area at the driver’s side truck fender and entering the fall zone. Eroh claimed that McKinney was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading.
The Plaintiff contested Eroh’s conclusion under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. The challenge asserted that Eroh’s determination that McKinney bore responsibility would not assist the jury since it was the jury’s role to make that determination. Additionally, the Plaintiff argued that Eroh should not be allowed to testify about McKinney’s state of mind. The Plaintiff further contended that Eroh should be prevented from referencing Hutton’s statement. In response, the Defendant generally argued that Eroh’s opinion was based on reasonable inferences drawn from his accident investigation and that he had the right to rely on the evidence he considered.
Engineering Expert Witness
Charles A. Eroh is a professional engineer who works as a Principal Consultant at Rimkus Consulting Group. He is expected to testify within a reasonable degree of professional certainty in the field of commercial machinery operation and construction site safety. Charles Eroh will offer testimony on issues such as training and certification of forklift operators and construction site workers, industry standards in forklift operations and construction site procedures, industry standards of equipment maintenance, forklift operating capabilities, and service, maintenance, inspection and troubleshooting for type of forklift used on April 15, 2021, and post-accident inspections to determine cause.
Discussions by the Court
Federal Rule of Evidence 702 required judges to ensure the relevance and reliability of any scientific testimony or evidence. The Court’s gatekeeping function, as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., mandated that scientific testimony or evidence, including that based on specialized knowledge, be both relevant and reliable. The party offering the expert testimony bore the burden of proving admissibility, and district Courts had leeway in determining the reliability of expert testimony, with decisions subject to review for an abuse of discretion. The Court applied the current version of Rule 702, effective December 1, 2023, which clarified the preponderance standard for reliability-based requirements.
According to the Plaintiff, Eroh’s opinion that McKinney bore responsibility for the incident was deemed unhelpful to the jury, as it was the jury’s role to determine such issues. Although Eroh may have based his opinion on reasonable inferences drawn from his accident investigation, including a review of the TOSHA report, Hutton’s written statement, Kennedy’s deposition, and other relevant information, the Court agreed that it constituted a legal conclusion. The Court cited Asbury v. MNT, Inc., No. CIV. 12-252 KG/RHS, 2014 WL 6914235, (D. N.M. Apr. 22, 2014), which struck an expert’s opinion as an impermissible legal conclusion. The Court further highlighted that experts were not permitted to render legal conclusions, as explained in United States v. Melcher, 672 F. App’x 547, 552 (6th Cir. 2016), when he defines the governing legal standard or applies the standard to the facts of the case. Legal conclusions were considered unhelpful to the jury since they instructed the jury on the verdict to reach. Accordingly, the Court ruled that Eroh’s opinion assigning responsibility to McKinney for the incident was not admissible.
The Plaintiff also contested Eroh’s conclusion asserting that McKinney “was fully aware of ongoing offloading activities and had verbally communicated with Kennedy to proceed with the unloading”. Plaintiff argued that determining whether McKinney was fully aware was beyond Eroh’s expertise as he could not “read minds”. Eroh based this opinion on Hutton’s written statement, and Plaintiff contended that it was improper to rely on Hutton’s statement due to its inadmissible hearsay nature. The Plaintiff asserted that allowing the introduction of inadmissible hearsay through an expert’s opinion would be extraordinarily prejudicial.
The Defendant responded by asserting that an “expert may rely on hearsay testimony”. Given that they retained Eroh to “inspect the accident site and determine the cause of the accident”, the Defendant argued that Eroh was permitted “to reference the witness statement in discussing his opinions and bases for them”. The defense contended that not only did Eroh rely on Hutton’s statement, but he also drew from various sources, including the TOSHA report, Kennedy’s deposition, his site inspection, and the photographs and videos captured by the Knox County Sheriff’s Office.
The Plaintiff also mentioned a video recording taken by Attorney Graham Thompson on April 19, 2023, which included Hutton’s statements. However, according to the Defendant, Eroh reviewed this video after authoring his report, and “it did not form the basis of the opinions Eroh expressed in his written report”. The Defendant further stated that “Eroh testified in his deposition that although he reviewed that video, he did not remember what was said in it, and he believed it was similar to what was contained in Hutton’s written statement”. Since Eroh did not rely on the video recording, the Court did not address it.
In reviewing the parties’ arguments, two issues were identified: (1) whether Eroh was allowed to rely on Hutton’s statement in forming his opinion, and (2) whether Eroh was permitted to express opinions about McKinney’s state of mind. Regarding the issue of Eroh’s opinion about McKinney’s state of mind, specifically that McKinney “was fully aware of ongoing offloading activities”, the Court ruled that Eroh was not allowed to opine at trial about McKinney’s state of mind. The Court cited the principle that “an expert may not offer an opinion on someone else’s subjective beliefs or feelings”. The Court highlighted that experts can rely on a witness’s testimony but may not opine on someone’s thoughts. Consequently, the Court did not need to address the first issue in the context of the Plaintiff’s motion. The Court noted that the admissibility of Hutton’s statement was being contested through motions in limine filed by both Plaintiff and Defendant.
Held
The Court granted in part and denied in part Plaintiff’s Motion to Exclude or Limit the Testimony of Charles A. Eroh and Any Undisclosed Opinion Testimony by Defendant Jenkins & Stiles. Eroh was not allowed to testify that McKinney bears responsibility for the incident, nor was he permitted to provide testimony about McKinney’s subjective beliefs. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
The expert testimony in this case played a crucial role in determining liability for the tragic incident at a U-Haul construction site, where a cargo unloading operation led to the death of Vincent McKinney. Charles A. Eroh, P.E., identified by the Defendant as an expert, asserted that McKinney bore responsibility for the incident, citing his departure from a designated safe area and entering the fall zone. However, the Court, applying Rule 702 of the Federal Rules of Evidence, ruled that Eroh’s opinion assigning responsibility was inadmissible as it amounted to a legal conclusion. The Court emphasized that experts cannot render legal conclusions, particularly those instructing the jury on the verdict to reach. Additionally, the Court held that Eroh’s opinion on McKinney’s state of mind, specifically regarding awareness of ongoing offloading activities, was not admissible, as experts cannot offer opinions on subjective beliefs or feelings. The admissibility of witness statements, including Hutton’s, was contested due to hearsay concerns, with the Court emphasizing the importance of avoiding the introduction of inadmissible evidence through expert opinions. Overall, the Court’s rulings underscored the need for expert testimony to adhere to legal standards, focusing on admissible evidence and avoiding impermissible legal conclusions or opinions on subjective states of mind.
