Expert Witness Profiler

Category: Expert Challenges

  • Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    Obstetrics and Gynecology Expert Witness’ Testimony About Medical Necessity of Certain Procedures Performed Admitted

    In this defamation lawsuit, Plaintiff Mahendra Amin (“Amin”), a doctor, alleged that Defendant Nbcuniversal Media, LLC aired several broadcast segments on MSNBC which included multiple false and defamatory statements about Amin and his medical treatment of detainees at Irwin County Detention Center (ICDC). To support his case, Amin retained Eldridge Bills to review the medical records of the Plaintiff’s patients and provided opinions on the medical necessity of various procedures Amin had performed.

    The Defendant filed a motion to exclude Eldridge Bills’ testimony as it was claimed to be unreliable and inconsistent with the Daubert Standard and Rule 702.

    Obstetrics and Gynecology Expert Witness

    Elbridge Frederick Bills II, M.D., F.A.C.O.G., is an expert in obstetrics and gynecology based in Georgia. He holds medical licenses in both Florida and Georgia and was certified by the American Board of Obstetrics and Gynecology. He earned his medical degree from Emory University School of Medicine in 1989. Afterwards, he completed his residency at the University of South Florida Morsani College of Medicine in 2001. He also finished a fellowship at Emory University School of Medicine. At present, he practices in Alpharetta, Georgia.

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

    Discussion by the Court

    Bills’ Medical Knowledge and Experience Support His Opinions

    Defendant challenged Bills’ methodology, arguing it lacked reliability. They contended that Bills failed to apply his specific experience to this case or support his opinions with medical records.

    Moreover, they noted that Bills did not reference medical literature or guidelines in his report or deposition. They argued that his opinions were merely assertions without supporting evidence.

    In contrast, Plaintiff asserted that Bills’ methodology was reliable due to his 30 years of experience as an OB/GYN. His previous experience as an expert witness in five trials was also highlighted.

    To establish reliability, Bills needed to demonstrate a clear connection between his experience and his opinions. He did so by explaining how his OB/GYN background informed his analysis. His report listed his qualifications and detailed his review of 69 patient records, focusing on the medical appropriateness of procedures.

    Defendant’s objections to Bills’ methodology did not justify excluding his testimony. They argued that Bills’ opinions lacked data, methodology, or study, characterizing them as mere assertions. However, Bills utilized his OB/GYN experience and medical knowledge to review patient records and link his expertise to his opinions. He referenced relevant medical literature and studies during his deposition. The Court found that Defendant’s issues were about the weight of the testimony, not its admissibility. As such, challenges to expert testimony should be addressed through cross-examination, not exclusion. Bills’ opinions were deemed to be based on a reliable methodology.

    Bills’ Opinions Are Based on Sufficient Facts and Data

    Bills’ expert report claimed that every procedure by Amin was “medically indicated as documented by various modalities including the history and physical, preoperative ultrasound evaluation, intraoperative surgical images documentation, and final pathology.” Defendant argued that Bills did not specify which modalities he considered in his review of each of the 69 patient records. Defendant also pointed to Bills’ deposition testimony, in which he acknowledged some ultrasound images and surgical images were either low resolution or not clear enough for him to conduct an independent evaluation. 

    The Court found Bills’ opinions are based on a reliable methodology, in that they are based on sufficient data and the “modalities” he considered are sufficiently discernible. He provided sufficient detail about how he applied his experience to his medical records review and he discussed individual patient considerations and modalities throughout his deposition testimony.

    Additionally, in Bills’ supplemental chart, he lists each patient chart reviewed, relevant preoperative notes for each patient, and the corresponding treatment and procedure for each patient and notes any missing documentation for each patient chart.

    Bills Provides Sufficient Analysis to Support His Opinions

    Defendant argued Bills provided no analysis supporting his opinion every surgery Amin performed was “medically indicated” and, therefore, his methodology is unreliable. Defendant argued Bills included generalized statements about why a doctor could perform these surgeries in his expert report, but he does not explain how each patient’s medical records led him to conclude the surgery Amin performed was medically indicated. 

    The Court held that Bills reviewed a collection of patient medical records and offered a categorical opinion about all of the procedures on those patients. Bills explained how (i.e., the methodology) he formed that opinion. Defendant has failed to show anything unreliable about that methodology. Defendant, instead, contended Bills was required to explain how he assessed each and every procedure in order for Bills’ overall methodology to be deemed reliable.

    Bills’ Presumptions Do Not Warrant Exclusion

    Defendant argued that Bills’ methodology was unreliable due to several inadequately explained assumptions. Specifically, Defendant noted Bills’ presumptions about Plaintiff’s patients being high-risk and indigent, consenting to surgery, and facing possible deportation without notice. Defendant also contended that Bills presumed cysts were removed because they caused pain, despite some patients’ cysts being undocumented.

    In response, Plaintiff argued that these assumptions were reasonable given Bills’ experience and the medical records reviewed. Plaintiff asserted that reasonable inferences are acceptable in expert testimony and that Defendant could address these issues through cross-examination.

    The Court found that Bills’ assumptions were based on reasonable inferences drawn from available data and personal experience. Although the assumptions might not be entirely correct, they provided a reasonable factual basis for Bills’ opinions. Therefore, the Court concluded that Bills’ methodology was reliable and did not warrant exclusion.

    Held

    The Court denied Defendant’s motion to exclude the opinions of Plaintiff’s obstetrics and gynecology expert witness, Eldridge Bills.

    Key Takeaway:

    The Court denied Defendant’s motion to exclude Eldridge Bills’ testimony, finding it reliable under the Daubert standard. Although Defendant argued Bills’ methodology lacked specificity and relied on inadequate assumptions, the Court determined his expert opinions were supported by his extensive OB/GYN experience and medical records review.

    Bills had categorized patient cases and provided explanations in his reports and deposition, despite some generalizations. The Court viewed the Defendant’s concerns as issues of weight rather than admissibility, suitable for cross-examination rather than exclusion. Bills’ reasonable inferences and thorough analysis were deemed sufficient to support his opinions.

    Case Details:

    Case Caption: Amin V. Nbcuniversal Media, Llc
    Docket Number: 5:21cv56
    Court: United States District Court for the Southern District of Georgia, Waycross Division
    Order Date: July 11, 2024
  • Mortgage Lending Expert Witness’ Testimony Regarding Deviation from HUD Standards Limited

    Mortgage Lending Expert Witness’ Testimony Regarding Deviation from HUD Standards Limited

    On November 22, 2019, Plaintiffs Alfredo and Chelsie Dominguez (“collectively “Plaintiffs” or “Dominguez”) refinanced their manufactured home with Wallick & Volk, working with loan originator and W&V employee, Christina Bingham. In February 2020, W&V sold the loan and transferred servicing to The Money Source, Inc. (“TMS”). Nine months later in November 2020, Plaintiffs’ hazard insurance policy premium became due but was not paid by TMS from the loan servicer’s escrow account, resulting in cancellation of the policy on February 6, 2021, for non-payment of premium. On March 22, 2021, more than a year after W&V transferred the loan to TMS, the home suffered severe fire damage.

    Plaintiffs sought to recover approximately $300,000 for the loss of real and personal property, as well as emotional distress damages and attorney fees, resulting from the fire that destroyed their home on March 22, 2021.

    Defendant The Money Source, Inc. (“TMS”) filed a motion to exclude Plaintiffs Alfredo Dominguez and Chelsie Dominguez’s (“Plaintiffs”) expert Curtis Novy’s expert reports and testimony.

    Mortgage Lending Expert Witness

    Curtis L. Novy is a licensed financial crimes investigator and seasoned mortgage & real estate expert witness with many years of experience. His work focuses on complex investigations, corporate risk management, elder financial abuse, private equity & family office investigations, and providing court certified expert witness testimony. 

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

    Discussion by the Court

    Qualifications

    TMS first argued that Novy is unqualified to offer mortgage servicing opinions because his expertise is in mortgage fraud investigations and underwriting.

    Novy, however, has over 30 years of experience in commercial and residential lending, which includes “loan servicing compliance.” Since 1997, Novy has served in various capacities in the mortgage industry—his expertise includes lending operations, mortgage banking standards and practices, and ensuring loans meet industry standards. Furthermore, since 1997, Novy has been retained as a subject matter expert and consultant, where his areas of testimony included mortgage lending for both commercial and residential mortgages. Novy also testified that he received Housing and Urban Development (“HUD”) training as to loan servicing matters and he has reviewed loan servicing records as part of his role in compliance and auditing. The Court therefore found Novy’s qualifications met the knowledge and experience of an expert to discuss the mortgage servicing industry.

    In their response, Plaintiffs attached a declaration from Novy expounding upon his expertise and expert conclusions. The Court held that this declaration amounts to an untimely supplemental expert report because it was produced after the deadline to disclose supplement expert witness opinions.

    Reliability

    TMS argued that Novy’s opinion lacks reliability, calling it speculative and full of legal conclusions.

    Preliminary Report Opinion No. 4

    TMS argued that opinion number 4 in Novy’s preliminary report improperly opined that “TMS failed to properly audit the loan file from Wallick & Volk and therefore accepted all liability and risks.” Novy relied on HUD regulations to reach this conclusion. TMS also argued that Novy did not identify the correct HUD regulations in his deposition testimony.

    The Court found that this statement is an improper legal conclusion because Novy concluded that TMS violated HUD standards and accepted liability. As an expert, Novy may address the factual question of whether TMS deviated from the customs, practices, and standards of the mortgage industry, but not the ultimate legal issue of whether TMS is liable. 

    TMS also argued that Novy improperly testified that Chelsie Dominguez “had no obligation to provide TMS with the Perkin Insurance Policy” because he “had not reviewed the Deed of Trust” to verify who was required to provide proof of insurance. In fact, Novy’s report explained that he did review the Deed of Trust. He testified at this deposition that he did so but could not “recollect the exact wording in there.” Therefore, the Court found this testimony reliable.

    Supplemental Report Opinion No. 5

    TMS argued that Novy’s opinion number 5, concluding that TMS failed to service the loan to HUD standards, was unreliable. TMS failed to develop this argument. The Court found that Novy’s conclusion was reliable because he had “a sufficient basis to support an opinion.”

    Novy relied on TMS procedures, loan servicing records, deposition testimony, HUD QC Audit Checklist, and his knowledge of industry standards and practices.

    The Court reserved the question of whether Novy’s opinion that TMS did not service the loan to HUD standards as an improper legal conclusion for trial.

    Supplemental Report Opinion No. 6

    TMS argued that Novy’s opinion number 6, which concluded that TMS failed to properly monitor its subcontractor work, was unreliable because he never managed or oversaw an insurance vendor.

    The Court found that Novy’s opinion is reliable. Novy testified that he relied on the deposition testimony of Linda Case, who was responsible for managing Assurant, TMS’s servicing vendor. Novy also relied on HUD regulations and “QC plan standards.” 

    Supplemental Report Opinion No. 7

    TMS argued that Novy’s opinion number 7, which concluded that it was improper of TMS to place Plaintiffs’ loan in default status, was unreliable because Novy testified that he did not know the reason the loan was put in default status.

    The Court found Novy’s opinion reliable because he had “a sufficient basis to support the opinion.” Novy reviewed TMS procedures, loan servicing records, deposition testimony, and HUD QC Audit Checklist, which includes property insurance verification. Using these materials and his expertise, Novy concluded that it was improper to put the loan in default status. 

    Supplemental Report Opinion No. 8

    TMS argued that Novy’s opinion number 8, concluding that TMS did not follow FHA (“Federal Housing Administration”) Guidelines to ensure that hazard insurance is filed and settled “expeditiously,” was unreliable because Novy testified that he had no opinion as to the industry standard timing. 

    The Court found Novy’s opinion reliable because his conclusion was based on his knowledge and experience from the industry. Novy testified that HUD does not set a timeline but that “based on [his] 30-plus years of experience” the timing should be between 30 days to 90 days.

    Held

    The Court granted in part and denied in part the Defendant The Money Source, Inc.’s motion to exclude expert Curtis Novy’s reports and testimony. It also struck Curtis Novy’s declaration.

    Key Takeaway:

    Novy reviewed TMS procedures, loan servicing records, deposition testimony, and HUD QC Audit Checklist and used his extensive knowledge of industry standards and practices to arrive at his conclusions. However, Novy may address the factual question of whether TMS deviated from the customs, practices, and standards of the mortgage industry, but not the ultimate legal issue of whether TMS is liable. 

    Case Details:

    Case Caption: Dominguez Et Al V. Wallick And Volk Incorporated Et Al
    Docket Number: 2:22cv768
    Court: United States District Court for the District of Arizona
    Order Date: August 23, 2024
  • Automotive Mechanics Expert Witness’ Testimony Rejected Because it is Based Solely on her Experience

    Automotive Mechanics Expert Witness’ Testimony Rejected Because it is Based Solely on her Experience

    On December 31, 2021, Plaintiffs and Defendant entered a Stock Purchase Agreement (SPA) whereby Plaintiffs purchased all the issued and outstanding shares of 411 Flash Corporation (“Company”) from Defendant. Plaintiffs alleged Defendant breached Section 4.09 of the SPA because the repairs made to these vehicles went beyond “ordinary, routine maintenance and repairs” and they were “material in nature or cost,” all within the meaning of Section 4.09.

    In support of this claim, Plaintiffs engaged an expert witness, Alyssa Nieto, whom they disclosed as a “mechanics expert.” Nieto opined that the vehicles “were not in good operating condition and in need of substantial, material repair, well beyond that which could be considered ordinary or routine that should have been communicated.”

    In Section 4.09 of the Purchase Agreement, Defendant agreed, represented, and warranted that the “vehicles and other items of tangible personal property of the Company” were “structurally sound,” “in good operating condition and repair,” and “adequate for the uses to which they are being put.” Additionally, Defendant represented that “none of” the vehicles were “in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.” Despite his representations, the Company spent a total of $33,000 in repairs made to 13 vehicles transferred at the closing.

    However, Defendant argued Nieto’s testimony must be excluded under Fed. R. Evid. 702 “because her general experience managing an auto body repair shop does not qualify her to opine on specific issues of automobile mechanics,” and he further argued her opinions would not be helpful to the factfinder.

    Automotive Mechanics Expert Witness

    Alyssa Nieto graduated high school from Colorado Academy in Denver, Colorado, in 2014. She began her career in the automotive industry in December 2016 as a receptionist at Community Auto Repair Shop. In 2017, the owner decided to open a second location. From 2017 to 2020, she mentored under the owner/proprietor and the lead technicians, working her way from receptionist to Service Advisor. She eventually earned her role as Service Manager, where she oversaw the day-to-day operations of both locations.

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

    Discussion by the Court

    In its own review of her report, the Court disagreed over the reliability of any methodology Nieto might have employed. Throughout her report, Nieto failed to “explain how [her] experience led to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”

    For example, Nieto opined that “[m]ost of the repairs detailed in this Report could have been prevented if the vehicles had been serviced pursuant to their factory maintenance schedule.” Here she did identify the specific factory maintenance schedule for transmission service for three of the vehicles, and then opined, “[i]f the transmissions had been serviced with fresh fluid on their regular maintenance schedule (at 60,000 miles), there would not have been metal in the fluid and could have potentially prevented internal transmission failure.” However, she did not explain her methodology supporting this opinion.

    Held

    In conclusion, the Court granted Defendant’s motion in limine to exclude expert testimony from Alyssa Nieto.

    Key Takeaway:

    Nieto has failed to demonstrate her opinion is based on any methodology that renders her opinions reliable under Rule 702. Federal courts routinely exclude as unreliable expert opinions that are based solely on the expert’s experience and which lack any methodology.

    Case Details:

    Case Caption: Harriman Et Al V. Smart
    Docket Number: 1:22cv1883
    Court: United States District Court, Colorado
    Order Date: August 22, 2024
  • Financial Expert Witness’ Cash Flow Analysis Admitted

    Financial Expert Witness’ Cash Flow Analysis Admitted

    Plaintiff, Yoel Weisshau challenged the constitutionality, under the dormant Commerce Clause, of the Port Authority’s toll and fare increases, in effect since September 18, 2011, on all the Port Authority’s bridges and tunnels within the Interstate Transportation Network (“ITN”).

    Plaintiff filed a motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis, as well as her reply to Plaintiff’s expert report. By his motion, Plaintiff additionally sought an order “precluding the submissions of the expert witness Elizabeth McCarthy, precluding the Port Authority of New York and New Jersey from submitting any documents and printouts, calculations, and data downloaded from its General Ledger, and sanctioning Defendant for withholding discoverable information.”

    Financial Expert Witness

    Elizabeth M. “Libby” McCarthy joined the Port Authority as Chief Financial Officer (CFO) in January 2013.

    As CFO, McCarthy is responsible for overseeing, managing, and directing the Port Authority’s financial and accounting functions. This includes responsibility for over $5 billion of annual revenues, $3 billion of annual operating budget expenses, and the annual Capital Plan investments in support of the agency’s 2017 to 2026 Capital Plan.

    Discussion by the Court

    Plaintiff argued that McCarthy’s “cash flow analysis is pure hearsay and inadmissible for purposes of trial and summary judgment.” For Plaintiff, the information is hearsay because McCarthy “does not have personal knowledge of the figures cited in [the cash flow analysis] to be accurate” since her staff prepared information on her behalf. However, Rule 703 states that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.

    The Court held that McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed. Thus, the Court declined to find here that McCarthy’s cash flow analysis is inadmissible hearsay.

    Held

    The Court denied Plaintiff’s motion to strike Elizabeth McCarthy’s affidavit and cash flow analysis.

    Key Takeaway:

    As per 703, McCarthy’s “cash flow analysis” is not hearsay because McCarthy’s staff made her aware of information from the General Ledger, which they reviewed and discussed.

    Case Details:

    Case Caption: Weisshaus V. The Port Authority Of New York And New Jersey Et Al
    Docket Number: 1:11cv6616
    Court: United States District Court for the Southern District of New York
    Order Date: August 22, 2024
  • Business Valuation Expert Witness’ Financial Projections Admitted

    Business Valuation Expert Witness’ Financial Projections Admitted

    Plaintiff American Northwest Distributors Inc. (“ANW”) was the Washington distributor of Four Roses bourbon, produced by Defendant Four Roses Distillery LLC (“Four Roses”), for about five years from 2015-2020. In 2020, after a pattern of late payments from ANW, Four Roses terminated the distribution agreement and switched to a competitor, Young’s Market Company, LLC (“Young’s Market”). ANW went to arbitration with Young’s Market, as provided for in Washington’s statutes regulating liquor distribution, and the arbitrator awarded ANW what she found to be the fair market value of ANW’s lost distribution rights.

    After the arbitration, ANW sued Four Roses, claiming Four Roses had breached the parties’ contract and interfered with ANW’s other business relationships, causing ANW damages beyond what it received from Young’s Market in arbitration. Four Roses counterclaimed for invoices ANW had never paid.

    ANW has retained Neil Beaton to analyze and determine the damages it has incurred as the result of Four Roses’ wrongful termination of ANW’s distribution agreement.

    Four Roses filed a motion to exclude ANW’s expert witness, Neil J. Beaton. Four Roses first argued that Beaton’s testimony regarding ANW’s lost profits is inadmissible because ANW cannot recover those profits as a matter of law, so that any testimony on this issue is “not helpful to the trier of fact.” The Court held that ANW may seek such recovery under common law contract claims and Four Roses’ argument on this point is unpersuasive. Four Roses also contended that Beaton’s testimony is a “rehash” of the damages he attested to in arbitration. While there may be overlap in Beaton’s financial figures, there are genuine disputes between the parties as to how that impacts the damages analysis in this case.

    Business Valuation Expert Witness

    Neil Beaton is a Managing Director with Alvarez & Marsal Valuation Services in Seattle. He specializes in the valuation of public and privately held businesses and intangible assets for purposes of litigation support (lost profits claims, marriage dissolutions and others), acquisitions, sales, buy-sell agreements, ESOPs, incentive stock options and estate planning and taxation. He also performs economic analysis for personal injury claims, wrongful termination and wrongful death actions.

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

    Discussion by the Court

    Four Roses also questioned the reliability of Beaton’s financial projections, asserting that they are overly optimistic and lack “reasonable certainty.” The Court held that while Beaton’s projections may be “optimistic,” that does not make his testimony unreliable if he lays an acceptable foundation for those calculations.

    Beaton has disclosed his assumptions and methodology for projecting lost profits, and Four Roses has not shown that those methods lack a reliable basis in the knowledge and experience of Beaton’s discipline. Four Roses can challenge Beaton’s approach at trial, but his choice of assumptions does not render his testimony inadmissible—only more or less persuasive when evaluated as a whole.

    The judge at arbitration took a similar approach, recognizing that Beaton held undeniable expertise in business valuation—but the assumptions upon which he applied that expertise did not lead to a persuasive conclusion. 

    As the judge at arbitration recognized, business valuation “is as much an art as a science.” Four Roses did not challenge Beaton’s methods—it questioned the growth assumptions and discretionary factors that were necessary to financial projections and challenged the figures he arrived at.

    Beaton’s convoyed sales estimate relied on the assumption that Four Roses’ conduct interfered with ANW’s sales relationships. Beaton’s testimony regarding “convoyed sales,” however, is no longer relevant, even if it could be considered reliable (an issue the Court need not decide). Beaton opines that ANW’s sales of Four Roses products motivated its customers to buy more products overall—such that Four Roses’ termination negatively impacted these purchases. In light of the Court’s determination, however, that Four Roses did not tortiously interfere with ANW’s other business relationships, Beaton’s “convoyed sales” testimony is no longer relevant and will be excluded. 

    Held

    In conclusion, the Court denied Four Roses’ motion to strike the testimony of Neil J. Beaton as to testimony regarding lost profits and other damages and granted it as to testimony regarding ANW’s loss of “convoyed sales.”

    Key Takeaway:

    The Court has “broad latitude” in determining an expert’s reliability and finds no reason to question the reliability or relevance of Beaton’s testimony on lost profits under Rule 702. Moreover, Beaton has disclosed his assumptions and methodology for projecting lost profits, and Four Roses has not shown that those methods lack a reliable basis in the knowledge and experience of Beaton’s discipline.

    Case Details:

    Case Caption: American Northwest Distributors Inc V. Four Roses Distillery Llc
    Docket Number: 2:22cv1265
    Court: United States District Court for the Western District of Washington
    Order Date: August 20, 2024
  • Psychology Expert Witness’ Testimony Assessing Causal Factors Leading up to a Suicide Admitted

    Psychology Expert Witness’ Testimony Assessing Causal Factors Leading up to a Suicide Admitted

    This case involved various claims arising from the death of SGT, a minor and former student at St. Marys Middle School in the Camden County School District. Plaintiffs alleged SGT died of suicide because of multiple bullying incidents at the school and Defendants’ failures to adequately respond to and address those incidents and asserted claims under the Americans with Disabilities Act (“ADA”) and Georgia law.

    Plaintiffs retained a psychology expert, Dr. Sheila Crowell, to opine on the causal chain of stressors leading to SGT’s suicide and SGT’s symptoms of ADHD. In her report, Crowell opined SGT experienced stress as a result of actions and inactions by staff at St. Marys Middle School and the cumulative nature of these stressors exceeded the typical level of stress most children encounter. 

    Crowell opined there was a clear precipitating event for SGT’s suicide on November 18, 2019. SGT made “origami rockets” for a classmate on November 15, 2019. The classmate threw the origami rockets in the math classroom, and one got stuck in the ceiling. On November 18, 2019, Jackson sent SGT to the “ownership room” for this incident.

    Crowell opined this event appeared to have been on the forefront of SGT’s mind on the day he died by suicide. In Crowell’s deposition, she detailed a process called “chain analysis.” “A chain analysis is where you go through the chain of events that led to a person harming themselves.”

    Defendants argued Crowell formed her opinions based on information that was narrowly focused on stressors SGT experienced at school, and Crowell did not sufficiently consider stressors outside the school. Defendants asked the Court to exclude Crowell’s opinions.

    Psychology Expert Witness

    Sheila Crowell is a tenured Psychology Professor at the University of Utah. She has been a licensed and practicing psychologist since 2013. Crowell has received funding from the American Foundation for Suicide Prevention and the National Institutes of Health to better understand and prevent suicide. Crowell has produced 115 peer-reviewed and invited publications, of which 30 publications deal directly with the topic of suicide or self-injury. 

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

    Discussion by the Court

    Crowell’s Opinions Are Based on Reliable Methodology

    Defendants argued Crowell’s methodology was not reliable for two reasons. First, Defendants contended Crowell’s opinions are based solely on deposition testimony that was narrowly focused on stressors SGT may have encountered at school. Defendants argued SGT could have encountered other stressors, including discipline at home, interactions with peers outside of school, and SGT’s relationship with his parents, but Crowell did not consider these additional stressors in forming her opinions. Second, Defendants argued Crowell’s “chain analysis” was merely her subjective opinion.

    Crowell’s opinions are based solely on deposition testimony that was narrowly focused on stressors SGT may have encountered at school

    Crowell’s report and deposition testimony demonstrated that she reviewed numerous documents to determine which stressors contributed to SGT’s suicide. In addition to depositions from school administrators, Crowell considered SGT’s suicide note, SGT’s suicide video, an interview with SGT’s brother, and Plaintiff Kohn’s deposition.

    Crowell’s report and testimony showed that although she considered information about other stressors from outside of school, like SGT’s home life and parental discipline, she determined those stressors were not “proximal stressors” on the day of SGT’s suicide.

    The Court did not find that Defendants have shown Crowell’s opinions were improperly based on insufficient information.

    Crowell’s “chain analysis” was merely her subjective opinion

    The Court held that the Defendants’ second challenge regarding the reliability of Crowell’s chain analysis methodology is also unconvincing.

    Crowell has sufficiently explained the connection between her training and experience and her opinion that actions and inactions by staff at St. Marys Middle School likely increased SGT’s vulnerability to mental health struggles and led to SGT’s suicide. Defendants have not shown Crowell’s chain analysis is based on an unreliable methodology.

    Crowell relied on her training and experience as a clinical and research psychologist when she performed a chain analysis in this case. Crowell identified several documents she reviewed related to this case, including depositions, a forensic interview, and an academic article focused on youth suicide. After reviewing those materials, Crowell noted there was no evidence of any mental health support for SGT or any efforts to protect him from bullying.

    Crowell’s Opinions Will Assist the Trier of Fact

    Defendants argued causation is the “[t]he legal issue” in this case, and Crowell’s opinions would not assist the trier of fact in resolving that issue. According to the Defendants, Crowell’s opinions focused only on what happened immediately before the suicide, not long-term stressors, and, therefore, her opinions will not help the jury determine whether and to what extent other events could have contributed to SGT’s death.

    Defendants’ contention that Crowell’s opinions will not assist the trier of fact is unconvincing. The Court held that Crowell’s opinions concern the relevant time period for assessing causal factors leading up to a suicide and self-harm generally, and, specifically, concern the proximal stressors that may have contributed to SGT’s suicide. Crowell’s opinions on these topics arise from her specialized training and experience in psychology and assessing risk of self-harm and suicide (with special focus on risks for adolescents). Crowell’s opinions concern a core issue in this case—the cause of SGT’s suicide—and the opinions concern topics likely beyond the understanding of the lay person.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Sheila Crowell.

    Key Takeaway:

    • Crowell identified the “ownership room” incident as a clear precipitating event for SGT’s suicide, particularly because the “ownership room” probably had negative historical meaning for SGT. Crowell noted the “ownership room” incident occurred in the context of ongoing academic struggles.
    • Crowell’s opinions concern a core issue in this case—the cause of SGT’s suicide—and the opinions concern topics likely beyond the understanding of the lay person. Therefore, Crowell’s opinions would be helpful to the trier of fact.

    Case Details:

    Case Caption: Kohn Et Al V. Camden County School District Et Al
    Docket Number: 2:21cv108
    Court: United States District Court, Georgia Southern
    Order Date: August 21, 2024

  • Law Enforcement Expert Witness’ Testimony About Defendants Deviating from Nationally Accepted Principles Excluded

    Law Enforcement Expert Witness’ Testimony About Defendants Deviating from Nationally Accepted Principles Excluded

    On May 26, 2020, South Bend police officers began clearing a homeless encampment on city property after prior notice and concerns about crime and COVID-19. Tracy Leliaert, a person with a home who protested the clearing, refused to leave even when warned repeatedly. Officer Joshua Morgan and Officer Ryan Williams eventually arrested her and two others for trespassing. She pursued excessive force claims under the Fourth Amendment and a First Amendment right-to-assembly claim, though only one claim remains today. 

    Leliaert retained Chet Epperson to review the evidence and opine on police practices and standards. Chet Epperson opined that the City of South Bend, Indiana, Officers Joshua Morgan, Ryan Williams, and Police Chief Scott Ruszkowski deviated from Nationally Accepted Principles of First Amendment Right to Assembly, Use of Force in Their Interactions with Leliaert, Internal Affairs Investigations and Early Identification Systems in the Complaint of Tracy Leliaert.

    Defendants argued that Epperson did not have the necessary facts or knowledge to reach his conclusions, that some of his opinions did not fit the case, and that he at times supplanted the jury’s role.

    Law Enforcement Expert Witness

    Chet Epperson earned a bachelor’s degree in sociology and anthropology, and then a master’s degree in public administration from Rockford University. He has published and taught seminars on police standards. He has served as a police practices consultant and appointed court monitor for police practices since 2015.

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

    Discussion by the Court

    The Court held that the opinions neither fit nor serve the legitimate purpose of educating the jury, much less without substantial and overweighing confusion.

    Epperson also proposed to opine about the First Amendment claim (first opinion), but this claim too cannot survive summary judgment as a matter of law. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on the First Amendment claim (or Eighth Amendment claim); and that proves truer still when no such claim survives at summary judgment.

    Epperson also acknowledged that whether the land was a public forum would make a difference to a First Amendment claim, but he admitted that he has no information to determine whether it was. He admitted he hasn’t done any investigation and doesn’t have any facts that would make the tent city a public forum.

    When Epperson opined that Officer Morgan deviated from nationally accepted principles of use of force, the Court held that the jury is well positioned to decide whether Officer Morgan acted reasonably.

    Epperson intended to opine that Officer Morgan deviated from a nationally-accepted practice on less lethal encounters in using a knee over Leliaert’s neck. The Court held that the Fourth Amendment standard for excessive force is an objective standard, and his testimony about standards of police practice are immaterial to determining what is objectively reasonable under the Fourth Amendment.

    Held

    The Court granted the motion to exclude the testimony of Chet Epperson.

    Key Takeaway:

    Epperson’s opinion has a glaring factual gap at the start that renders it unreliable—it assumes Leliaert was homeless when she was not. Whether the City had a plan in place to remove and then safely house the homeless has no bearing on a First Amendment claim (or Eighth Amendment claim) for someone who was not homeless.

    Epperson just assumes Leliaert had a right to be there because, simply stated in his words, she was there and it was property owned by the City. His factual gaps thus reveal gaps in his methodology, and reveal his opinion to be barely more than his say-so.

    Case Details:

    Case Caption: Leliaert V. City Of South Bend Et Al
    Docket Number: 3:22cv359
    Court: United States District Court for the Northern District of Indiana, South Bend Division
    Order Date: August 20, 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
  • Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Orthopedic Surgery Expert Witness’ Opinion on Alleged Personal Orthopedic Injuries Admitted

    Plaintiff Rickie Russell, Jr. (“Russell) alleged that, on August 13, 2021, Terry Delmer Prater (“Prater”) crashed an 18-wheeler truck into Russell’s roadside work crew Russell claimed he was pinned between two vehicles and suffered serious injuries as a result of that motor vehicle collision. Russell brought suit against Defendants Prater and Big V Feeds, Inc. for the injuries he sustained.

    As part of their defense, Defendants retained Vishal Patel, M.D. to offer expert testimony. Russell filed a motion to exclude Dr. Patel’s testimony because: 1) Patel lacks proper qualifications as an expert; and 2) his methodology is unreliable.

    Orthopedic Surgery Expert Witness

    Vishal Patel has been board certified by the American Board of Orthopaedic Surgery since 2015, a Fellow of the American Academy of Orthopaedic Surgeons since 2019, and an attending spine surgeon for over ten years. Patel’s medical practice is devoted to orthopedic surgery, and he maintains a full, unrestricted license to practice medicine.

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

    Discussion by the Court

    Patel has sufficient qualifications to serve as an expert

    First, Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.”

    Russell seemed to contend that because Patel did not treat Russell, Patel is not qualified to serve as a retained expert physician. However, that cannot be the case. To hold otherwise would be to exclude all retained expert physicians.

    After reviewing Patel’s curriculum vitae, the Court was satisfied with his education, training and experience to qualify him to offer his opinion on Russell’s alleged personal orthopedic injuries and the reasonableness and necessity of Russell’s medical treatment.

    Patel’s methodology is reliable

    After reviewing Patel’s expert report, the Court found that his methodology is reliable.

    The Court held that Patel identified the medical records for Russell that he reviewed and then summarized those records in detail in his report. Thereafter, he applied his education, training, experience, and knowledge of the medical facts within the medical records to reach his opinions regarding Russell’s personal orthopedic injuries and necessity of medical treatment in reasonable medical probability. Therefore, Patel has sufficiently described his methodology and has adequately supported his opinions such that his methodology is reliable.

    Additionally, Russell argued that Patel’s methodology was not reliable because “[a] diagnosis typically involves a physician physically examining a patient, to which there is no argument that Patel did not examine Russell.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Held

    The Court denied Plaintiff’s motion to exclude the testimony of Vishal Patel.

    Key Takeaway:

    Russell argued that Patel lacked the requisite qualifications to serve as an expert in the present case because he “has never physically examined Russell, listened to his complaints, and would not even recognize Russell if he was standing across the hall from him.” The Court held that a retained expert physician’s role is to “examine a patient’s medical files and reach a conclusion about the diagnosis.”

    Please refer to the blog previously published about this case: Neurology Expert Witness’ Opinions About the Potential Presence of a Mild Traumatic Brain Injury Admitted

    Case Details:

    Case Caption: Russell, Jr. V. Big V Feeds, Inc. Et Al
    Docket Number: 4:23cv622
    Court: United States District Court, Texas Eastern
    Order Date: August 16, 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