This is an automobile negligence case alleging that the Plaintiffs, Fred Young and Jeff Firman were permanently injured in a rear-end collision by an employee of the Defendant, Panera, LLC.
Plaintiff filed a motion to exclude or limit the testimony of Defendant’s medical billing expert, Keyona White. Plaintiffs argued White’s testimony should be excluded because her testimony is irrelevant, unhelpful to the jury, and because coding “experts” are generally unqualified to testify as to the reasonable charges for the myriad medical procedures involved in injury cases.
Medical Billing Expert Witness
Keyona White has nearly 20 years of experience in health information management and as a medical billing and coding professional, with specialized expertise in inpatient, outpatient, ancillary, radiology, and CDI services. She is responsible for the revenue cycle management of over 20 facilities in a large national healthcare system and is proficient in both federal program requirements and hospital compliance program obligations. Her extensive experience with coding and compliance analysis for pricing of medical services, along with applicable geographic considerations for similar services in the community, provides her with the bill review expertise needed to audit billing records in the context of clinical settings.
The Court held that White is a coding expert. She has no expertise in the reasonableness of medical procedures or their associated costs. She offers no opinion that any bills submitted were fraudulent or billed under incorrect codes such that a correct code would yield the accurate billing value for the services rendered.
Moreover, the data underlying her opinions is drawn from national averages or mean billing rates across a number of reimbursement scenarios (i.e., Medicare, insurance, self-pay, etc.). Defendant, it seems, does not intend to call a witness to opine that Plaintiffs should have shopped around to find the least expensive fees for the medical services or treatments they were prescribed. Additionally, the mean billing rates Defendant proposes the jury should consider appear skewed by a myriad of factors, including Medicare billing requirements, insurance rates paid for the service rendered, and geographical differences in rates charged.
The Court added that if this testimony were admitted, the trial would devolve into side disputes about the fairness of the various providers’ billing practices—practices over which Plaintiffs had no control. This would be extremely confusing to the jury.
Also, Defendant has not raised a defense of collusion or fraud in the submission of medical bills, and White is not offered as a witness on that issue.
Finally, Defendant has secured a medical expert to opine on several issues, including the reasonableness of the amounts charged for Plaintiffs’ treatments. If White were qualified to testify on that point, which she is not, any testimony she would offer would be cumulative and, for that reason as well, would be unduly prejudicial.
Held
The Court granted Plaintiff’s Daubert motion to exclude or limit the testimony of Defendant’s medical billing expert, Keyona White.
Key Takeaways:
To begin with, White lacks expertise in the reasonableness of medical procedures or their associated costs.
Finally, if White’s testimony were admitted, the danger of unfair prejudice on these points would far outweigh any probative value the average or mean coding values would offer in this simple car accident case.
This civil rights action arises out of an October 23, 2020 traffic stop involving Plaintiff, Kary Jarvis and Daytona Beach Police Department officers Marville Tucker and James Mackenzie. As a result of the traffic stop, Plaintiff was injured and filed a complaint alleging false arrest.
Plaintiff sought to exclude Defendants’ expert witness Dr. Richard Hough from testifying during the trial. Defendants retained Hough to provide expert witness testimony concerning police practices in Florida and to rebut the opinions of Plaintiff’s expert witness Thomas J. Tiderington.
Law Enforcement Expert Witness
Richard Hough holds master’s degrees in public administration and a Doctor of Education degree with a concentration in public administration. He was previously employed for more than twenty years in law enforcement, including work at the Florida Department of Juvenile Justice, Florida Sheriff’s Office, and police departments throughout the state of Florida. He has also held academic appointments at various universities, where he taught courses focused on criminal justice, policing, and criminology.
Plaintiff sought to exclude Hough’s opinions contending they are “not based on credible methodology in policing, unreliable, and will not assist the trier of fact as to the ultimate issue in this case.”
Competence
Plaintiff sought to exclude certain opinions of Hough, contending that Hough lacks competence to render those opinions.
In his report, Hough opines about the high crime rate in Daytona Beach, law enforcement’s reaction to high-stress situations, the investigation at issue, industry standards, and whether a “Response to Resistance/ Blue Team Report” was required “in all arrest incidents.”
The Court found Hough qualified to testify about the “high-stress circumstances police officers must evaluate when investigating a suspect that may be involved in criminal activity” on account of his extensive educational background and experience.
Helpfulness
Plaintiff argued that certain opinions offered by Hough “will not be helpful to the jury” and comprise “purely legal conclusions.”
The Court held that Hough’s opinions are sufficiently helpful under Daubert as they relate to law enforcement’s practice, procedures, and training. A lay juror would not know this information.
As for Hough’s opinions concerning whether Defendants Tucker and Mackenzie’s “tactics . . . were reasonable” and in accord with “constitutional guidance,” and whether a “pattern or practice of intentional behavior or official misconduct” or “a violation of established law” exists, the Court excluded them as legal conclusions. Whether Defendants Tucker and Mackenzie acted in a “objectively reasonable” manner “is the very question that a jury would decide should this case go to trial.”
Hough opined “[t]he official report of [the] officers in this matter are consistent and agree on the facts and do not contradict physical evidence in the case.” The Court found that this opinion is not helpful to the jury, as the jury does not need an expert to determine whether the officers’ reports are consistent with each other and the physical evidence in the case. In other words, a jury can compare the reports and the evidence in this case and make consistency determinations without Hough’s assistance.
Federal Rules of Evidence Rule 403
Plaintiff further argued that Hough’s “testimony should be excluded pursuant to Rule 403.” The Court did not find that Hough’s remaining opinions warrant Rule 403 exclusion as they constituted probative evidence and were not substantially outweighed by unfair prejudice, confusion of the issues, or the likelihood of misleading the jury.
Held
In conclusion, the Court granted in part and denied in part the Plaintiff’s Daubert motion to exclude the testimony of Defendant’s expert Richard Hough.
Key Takeaways:
When Hough opined that the official report of the officers in this matter are consistent, the Court held that the jury can make consistency determinations without Hough’s assistance.
A lay juror would not know about Hough’s area of expertise which is law enforcement’s practice, procedures, and training.
With more than twenty years of extensive experience in law enforcement and academic appointments at various universities, the Court considered Hough qualified to opine about the high crime rate in Daytona Beach, law enforcement’s reaction to high-stress situations, the investigation at issue and industry standards.
This claim arises from 2B’s negligent handing of an auto insurance claim brought by Harold and Milagros Lacey against GoAuto insureds, Alisha and Kayranasia Hill resulting from a motor vehicle accident in Panama City Beach, FL on July 31, 2020 (the “Lacey Claim”). GoAuto is a Louisiana-based insurance company that writes policies in Louisiana, Texas, Ohio, and Nevada and whose senior claim adjusters are not licensed in the state of Florida. GoAuto therefore engaged 2B to handle the adjustment of this Florida-based claim.
The parties, Plaintiff GoAuto and Defendant 2B Claims, each moved to exclude opposing expert witnesses. GoAuto filed a motion to exclude the expert testimony of Kelly Gray while 2B Claims filed a motion to strike expert witness Susan Kaufman based on GoAuto’s untimely disclosure.
Insurance Expert Witnesses
Kelly Kathleen Gray is an attorney licensed to practice law in the State of Florida since 1993. During the past thirty years, she has focused her practice on insurance coverage and extra-contractual matters, both as a litigation attorney and as a corporate claims attorney. This includes first-party property litigation. In addition, she has several years of experience litigating various types of personal injury matters, including catastrophic automobile accidents, construction defect litigation, and professional liability.
Susan Kaufman has been retained as a claim handling expert or consultant in jurisdictions across the United States, including cases in Colorado, Florida, Kentucky, South Carolina, Utah, South Dakota, Indiana, Wyoming, Illinois, Nevada, Washington, and Arizona. She has given testimony as an expert in insurance claim practices on 80 or more occasions in state or federal court. She is presently a Florida Licensed All Lines Adjuster (620), and she has held such license since 1986.
GoAuto did not challenge Gray’s qualifications. Instead, it argued her testimony would not assist the jury for three reasons: it focused on irrelevant facts, did not articulate an objective industry standard, and constituted legal argument rather than expert opinion.
As to relevance, GoAuto argued Gray’s differentiating between a third-party administrator (TPA) and independent adjuster (IA) is a “red herring” since “the crux of this case is not whether 2B’s relationship with GoAuto was that of an IA or that of a TPA, but whether 2B made negligent misrepresentations to GoAuto on proper Florida claims handling.” But regardless of “the crux” of the case, the Court held that the nature of the parties’ relationship (which is disputed) is relevant in determining what duties were owed. And to the extent GoAuto argued Gray was wrong about the relationship, that is a question for the jury.
Next, GoAuto argued Gray did not articulate an objective, industry standard—that she provided only general statements of a professional standard without clearly defining it. But, the Court found that Gray described industry norms and customs of the insurance adjustment process that are “beyond the understanding of the average layperson.”
GoAuto claimed Gray did little more than summarize the record and make legal conclusions that usurped the jury’s role. Gray opines about the different relationships within the insurance industry, what the standards are for those relationships, and whether 2B Claims’ conduct was consistent with those standards, which, according to the Court, are admissible opinions.
Susan Kaufman
2B Claims moved to strike expert witness Susan Kaufman based on GoAuto’s untimely disclosure. The expert disclosure deadline had been April 30, 2024. 2B Claims had served its expert disclosure by that deadline, but GoAuto had not. GoAuto disclosed Kaufman as a rebuttal expert witness on May 30. The parties disputed whether Kaufman was a true rebuttal witness and whether the disclosure had been timely.
The Court held that the rule-breaking party has the burden to show its failure to disclose was harmless. Here, GoAuto has shown that the delay is harmless. As GoAuto argues, the disclosure came a month before the close of discovery and several months before trial, leaving ample time for discovery and trial preparation with the new information. Indeed, 2B Claims does not appear to contend that the disclosure’s timing prejudices it, but rather that the testimony itself is harmful.
Held
The Court denied both motions to exclude the testimony of Kelly Gray and Susan Kaufman.
Key Takeaways:
According to Rule 704, the fact that expert testimony may “embrace[] an ultimate issue” does not, in itself, make the testimony inadmissible. Gray opines about the different relationships within the insurance industry, what the standards are for those relationships, and whether 2B Claims’ conduct was consistent with those standards.
Gray described industry norms and customs of the insurance adjustment process that are “beyond the understanding of the average layperson.”
The expert disclosure deadline had been April 30, 2024. 2B Claims had served its expert disclosure by that deadline, but GoAuto had not. GoAuto disclosed Kaufman as a rebuttal expert witness on May 30. As GoAuto argues, the disclosure came a month before the close of discovery and several months before trial, leaving ample time for discovery and trial preparation with the new information.
Case Details:
Case Caption:
Goauto Insurance Company V. 2b Claims Services, Inc.
In this trademark infringement action, Plaintiffs, Makina Ve Kimya Endustrisi AS (“MKE”) accused the Defendants, A.S.A.P. Logistics Ltd. of engaging in massive fraud when they offered to sell millions of rounds of Plaintiff’s military goods, to multiple purchasers, without permission or right.
MKE’s damages expert, Pamela O’Neill, opined that MKE suffered millions of dollars in damages. She offered three alternative bases of calculating MKE’s alleged damages: $11.175 million for a reasonable royalty, $7.4 to $8.1 million for corrective advertising costs, or a “floor calculation” of $4.34 million for lost profits from a single customer. Defendants moved to have O’Neill’s opinions excluded.
Reasonable royalties are an especially bad fit here, where there was no licensing agreement ever contemplated between the parties, no sales related to the infringing use, and no rationale for why a licensing agreement would have ever been agreed to.
Business Valuation Expert Witness
Pamela O’Neill has spent more than 30 years as a valuation professional and has directed more than 900 valuation assignments. Early in her career, she was called to testify before the New York Stock Exchange Arbitration Panel and was cited by the Panel as “an excellent expert witness”.
Her international valuation career has included significant assignments in North America, South America, Europe, Asia, the Middle East, Australia, and New Zealand. She has prepared expert reports for litigation purposes as well as for financial and tax reporting, dispute resolution, investigations, antitrust matters, negotiations, acquisitions, divestitures, reorganizations, solvency and bankruptcy.
The Court held that O’Neill’s use of a reasonable-royalty model is not a fit for the facts of this case.
In addition, her calculation of the royalty rate is plainly unreliable. Since O’Neill could not rely on a licensing agreement that the parties had with each other or with third parties, she attempted to identify comparable licensing agreements. But the six licensing agreements she cites are far from comparable. O’Neill did not actually review the licensing agreements themselves. Instead, she reviewed summaries of transactions available on a database. Also, Defendants say that two other transactions involved celebrity endorsement deals. O’Neill’s report does not acknowledge any of these differences or explain how she accounted for them in her calculation.
O’Neill applied a royalty rate of 5% (gleaned from these allegedly comparable licenses) not to Defendants’ sales—because there were none—but rather to two transactions that resulted in no sales: an unsigned contract with TD Group for $216 million, and an unfulfilled $7.5 million purchase order and invoice relating to M42, resulting in a calculation of $11.175 million in damages.
In selecting these transactions, her report simply states that they were chosen because TD Group and M42 “intended to enter into and be bound by these contracts.” O’Neill does not point to any evidence that a hypothetical negotiation between the parties would have been informed by these deals (which arose after the infringement commenced), anything in the parties’ dealings with each other or third parties that would support their use, or anything from the allegedly comparable licenses to support this kind of royalty base. Plus, O’Neill does not even address the fact (which MKE does not dispute) that the TD Group contract allowed the purchase of “up to” $216 million in ammunition but did not have any minimum purchase requirement.
Lost Profits
Defendants did not put forward a traditional lost-profits model of damages, and O’Neill confirmed that there was insufficient evidence to support such a model.
MKE pointed to O’Neill’s expert report, which it says “directly ties Defendants’ misconduct to MKE’s lost profit damages.” MKE says that O’Neill relied on an interview she did with John Sharpley, the individual who handles procurement and contractual issues for non-party Shawnee Outdoors, in reaching her conclusions. Sharpley allegedly told O’Neill that he had conversations with Bear Tactical’s CEO. But “a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.”
MKE contended that O’Neill may properly rely on otherwise inadmissible “facts or data” as a basis for her opinion. But here MKE is just using O’Neill to skirt the rules of evidence by having her relay double hearsay to the jury on an issue of historical fact as to which her expert opinion would not be permitted—the reasons for Bear Tactical’s termination of its contract. O’Neill’s testimony cannot serve as factual support that MKE’s lost profits from Bear Tactical can be attributed to Defendants.
Due to the lack of admissible evidence linking MKE’s claimed lost profits to Defendants, the Court did not consider Defendants’ motion to exclude O’Neill’s lost-profits calculations.
Corrective Advertising
The Court held that O’Neill’s so-called expert analysis simply involved a calculation of the relative increase in MKE’s “Marketing, Sales & Distribution” expenses for the first half of 2022. As a threshold matter, the Court notes that while O’Neill’s report was required to include “a complete statement of all opinions the witness will express and the basis and reasons for them,” her discussion of corrective advertising damages is limited to two paragraphs and a related exhibit containing calculations. Those paragraphs and the exhibit don’t explain the specifics of what the “Marketing, Sales & Distribution” category contains, does not explain why advertising—as opposed to some other factor—accounted for the increase in that line-item for 2022, and provides no basis—not even explaining conversations had with MKE—to attribute that increase to corrective advertising due to Defendants’ conduct.
O’Neill admitted that she did not know what was encompassed within the sales component or the distribution component of the figure and said the expenses that these categories may include are different for each company.
The Court held that O’Neill therefore lacked reliable basis to conclude that the increase of the “Marketing, Sales & Distribution” figure (which may or may not have included MKE’s advertising that may or may not have taken place in response to Defendants’ conduct) was an accurate approximation of corrective advertisement in this case.
As the Court can see, O’Neill did not rely on any information, such as the underlying expenses that made up the financial data. In fact, MKE never provided O’Neill that data despite her specific requests.
Held
The Court granted in part the Defendants’ motion to exclude Pamela O’Neill’s opinions.
Key Takeaway:
The Court cannot ignore the limited number of licensing agreements that O’Neill considered, the differences identified between those licensing agreements and the alleged hypothetical negotiation here, and O’Neill’s failure to acknowledge or account for these differences in her report.
The Court noted that O’Neill was left to rely on MKE’s sayso that calculating the change in the “Marketing, Sales & Distribution” expenditure would measure corrective advertisement. And since the Court does not even know who provided O’Neill these assurances, the Court cannot verify just how reliable that source of information was. All to say, as an expert witness, O’Neill was not permitted to simply rely on her client’s assurances that it expended money.
Case Details:
Case Caption:
Makina Ve Kimya Endustrisi A.S V. A.S.A.P. Logistics Ltd Et Al
Defendant Ryan Vangdy is charged with knowingly possessing firearms while being an unlawful user of a controlled substance.
The government filed a motion to exclude Defendant’s expert, Dr. Gregory Nawalanic. The government argued that the Court can exclude Nawalanic under Rule 702 for several reasons, specifically that the testimony is irrelevant, unhelpful to the jury, only serves to confuse the issues, and is likely to introduce inadmissible hearsay.
Psychiatry Expert Witness
Gregory Nawalanic, Psy.D., is a clinical assistant professor in the Department of Psychiatry and Behavioral Sciences at the University of Kansas Medical Center and the clinical director of Psychology Services at The University of Kansas Health System’s Strawberry Hill Campus.
In addition to supervising the behavioral health staff, he provides clinical instruction to psychology interns and postdoctoral fellows, as well as psychiatry residents. He also operates as part of the executive leadership of the facility.
Along with a bachelor’s degree and a master’s degree in psychology from Florida International University and Pepperdine University, respectively, he also holds a master’s degree and a doctor of psychology in clinical psychology from the American School of Professional Psychology at Argosy University.
To begin with, the Defendant proposed to introduce testimony from Gregory Nawalanic regarding the DSM-V criteria for cannabis use disorder, and to testify as to the difference between “frequent and infrequent” use of controlled substances.
Defendant’s expert disclosure indicated that Nawalanic would testify that a hypothetical user who consumed marijuana two to four times a month would not meet the criteria for being diagnosed with cannabis use disorder under the DSM-5. Nawalanic would not offer an opinion as to whether Defendant was an unlawful user of a controlled substance on October 6, 2021.
The Court found that Nawalanic’s testimony was relevant to the issues being presented to the jury. The primary inquiry for the jury is whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance.
Cannabis use disorder would make it more likely that the individual was an unlawful user within the meaning of the statute. Moreover, the Court held that this potentially helpful information was not greatly outweighed by the risk of confusion because Nawalanic is not trying to testify to the ultimate legal issues, and any hearsay concerns can be dealt with by contemporaneous objection.
Held
The Court denied the Government’s motion to exclude Dr. Gregory Nawalanic’s testimony.
Key Takeaway:
In conclusion, Nawalanic’s testimony provided the Court with potentially helpful information to determine whether Defendant possessed a firearm in or affecting interstate commerce when he was a regular and ongoing user of a controlled substance.
This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana (the “JPLF”), and the resulting odors emitted from the JPLF between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who are Jefferson Parish residents, filed several individual lawsuits that were consolidated into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500 individual Plaintiffs.
The Defendants asserted several “alternative source arguments,” including that: (1) Plaintiffs’ alleged damages were sustained in whole or in part as a result of intervening or superseding causes, including noxious odors originating from sources other than the JPLF; and (2) Plaintiffs’ claims are barred or diminished to the extent their injuries were caused by their own comparative fault or the comparative fault of third parties or sources of odors for which the Defendants are not responsible.
The Defendants offered Michael Corn, P.E., as an expert in emissions rates, fate and effect analysis, and non-landfill odors and emissions sources.
The Plaintiffs sought to exclude Corn’s testimony under Rules 401, 403, and 702, insofar as Corn’s testimony is not relevant, is unreliable, and will not assist the trier of fact, and has the potential to confuse the issues and mislead the jury.
Environmental Engineering Expert Witness
Michael Corn has over 50 years of experience as an environmental and water resources engineer and environmental consultant, working in industrial and government-operated facilities, like the non-landfill emissions sources.
Corn has conducted or supervised other engineers and scientists in developing air emissions estimates, air permitting, air modeling, and Toxics Release Inventory reporting.
The subject of Corn’s testimony may be relevant under Rule 401
The Defendants contended that Corn’s testimony supports their alternative source arguments and is directly relevant to the causation element of Plaintiffs’ claims.
On July 17, 2024, the Court issued its Order and Reasons determining, in relevant part, that “evidence related to Defendants’ alternative source arguments is relevant under Rule 401, as ‘any potential alternative theories of causation go directly toward a key underlying issue’ in this case.” Because Corn’s proposed testimony is relevant to the Defendants’ alternative source arguments, the Court will not exclude Corn’s testimony under Rule 401.
Corn’s testimony will be excluded under Rules 702 and 403
Corn expressed four distinct opinions based on his findings:
First, given that the weather data collected do not show a preferential wind direction, it is my opinion that no one source (i.e., the Landfill) could have impacted all [Trial Plaintiffs] at all times.
Second, emissions from the alternative odor sources, permitted or not, resulted in odors in areas that the [Trial Plaintiffs] lived and traveled through.
Third, the proximity of the receptor to sources released at or near ground level is more likely to impact a receptor.
Fourth, given the variable wind direction in the area and the plaintiffs’ close proximity to many known odor sources, he opined that the [Trial Plaintiffs] are more likely than not subjected to multiple different pollutants released from the industrial facilities
Plaintiffs argued Corn’s testimony should be excluded under Rule 702 because his opinions are “matters of common knowledge,” which “ordinary jurors” can ascertain from their own experience without “special expertise or training,” and thus will not assist the trier of fact.
A. Non-Facility Emissions Sources
Corn supports Opinion No. 2 in part by his finding that localized emissions from the Sewer System generated odors that likely impacted the Trial Plaintiffs “resid[ing] nearby.” The Court held that Corn provides no analysis of the extent of the impact of this one event or how long the impact would have lasted. Corn’s documentation of this one incident report does not support his finding that localized emissions from the Sewer System generated odors that likely impacted the Trial Plaintiffs.
Corn supports Opinion No. 2 by pointing to the “the large expanse of wetlands and forested wetlands that surround the local areas,” which he says “presents a significant likely alternative emissions source to the [Trial Plaintiffs] at their residences and the areas [through which] they travel.” The Court held that Corn’s finding, which is based purely on his speculation with no data relevant to the specific wetlands at issue, does not provide sufficient support for Opinion No. 2. His speculation does not support his finding that localized emissions from the Wetlands generated odors that likely impacted the Trial Plaintiffs.
B. Facility Emissions Sources
Corn based Opinion No. 2 in part by his finding that several “industrial and municipal facilities . . . more likely than not” emitted odiferous pollutants in quantities sufficient to “impact[] the individual [Trial Plaintiffs] at their residence[s].”
The Court held that to the extent Corn relies on LDEQ Incident Reports of emissions events outside the 30-month relevant time period (i.e., July 1, 2017, through December 31, 2019), his findings on those facilities are excludable under Rule 401 because they are irrelevant to the issue of whether an alternative source of odors impacted the Trial Plaintiffs during the relevant time period.
1. Cornerstone Chemical Complex
Corn supported Opinion No. 2 in part by his finding that several operating facilities within the Cornerstone Complex generated emissions that likely impacted the Trial Plaintiffs.
The Court held that Corn does not explain the significance of the emissions rates reported therein of other pollutants or explain how the data is relevant to his finding that operating facilities in the Cornerstone Complex generated odors that could have been detected by the Trial Plaintiffs, effectively nullifying any probative value they may have.
a.The Acrylonitrile Plant
Corn based Opinion No. 2 in part by his finding that the Acrylonitrile Facility is a potential alternative source of odors that may have impacted the Trial Plaintiffs.
The Court held that assumptions based on emissions events that occurred outside the relevant time period are irrelevant to the issue of whether the Acrylonitrile Plant impacted the Trial Plaintiffs during the relevant time period. Because the basis of Corn’s finding on the Acrylonitrile Plant is unreliable and irrelevant, it does not support Opinion No. 2.
b. The Urea and Melamine Plant
Corn supports Opinion No. 2 in part by his finding that the Urea and Melamine Plant is an alternative source of odors that “might have” impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, the two incident reports during the relevant time period, the several incident reports that occurred outside the relevant time period, and the Facebook video does not support his finding that emissions from the Urea and Melamine Plant generated odors that likely impacted the Trial Plaintiffs.
c.The Sulfuric Acid Regeneration Plant
Corn supports Opinion No. 2 in part by his finding that the Sulfuric Acid Regeneration Plant (the “Regeneration Plant”) is an alternative source of “regularly occurring” emissions that “likely” impacted nearby Trial Plaintiffs.
Summarizing Corn’s evidence to support his finding that the Regeneration Plant “likely” impacted the Trial Plaintiffs during the relevant period, the Court found there was one odor complaint during the 30-month relevant time period, documented in the LDEQ Incident Report dated December 13, 2018. The other two LDEQ Incident Reports and the two Cornerstone Letters cited in the Corn Report concern releases from the facility for which there were no related odor complaints. Corn failed to provide evidence or opinion supporting his finding that the isolated incident, which was the subject of the odor complaint “likely” affected the Trial Plaintiffs.
d. The Utilities Plant/Site Services
Corn based Opinion No. 2 in part by his finding that the Utilities Plant “was a source of likely odors in Jefferson Parish.”
The Court held that the finding was unreliable because it was based on the unfounded and speculative extrapolation of three isolated incidents of de minimis releases during the 30-month relevant time period.
e. The Dyno Nobel Ammonia Plant
Corn bases Opinion No. 2 in part by his finding that the Dyno Nobel Ammonia Plant is an alternative source of odors that “likely” impacted some of the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, TRI Reports, two incident reports from the relevant time period, and the Facebook video does not support his finding that emissions from the Dyno Nobel Ammonia Plant generated odors that likely impacted the Trial Plaintiffs.
f. The Roehm America Plant
Corn based Opinion No. 2 in part by his finding that the Roehm America Plant is an alternative source of odors that may have impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit, TRI Reports, and the one incident report during the relevant time period does not support his finding that emissions from the Roehm America Plant generated odors that likely impacted the Trial Plaintiffs.
g. The Kemira Chemicals Plant
With respect to the Kemira Chemicals Plant located within the Cornerstone Complex, Corn represents the Kemira Chemicals Plant has a Title V Permit and presents information related to the facility’s Title V Permit for the relevant time period in Table 19 of the Corn Report.
The Court held that inferring the types and quantities of pollutants emitted by a facility from the facility’s air permit is unreliable. Accordingly, the basis of any purported finding of Corn on the Kemira Chemicals Plant is unreliable and does not support Opinion No. 2. Corn’s documentation of the facility’s air permit does not support his finding emissions from the Kemira Chemicals Plant generated odors that likely impacted the Trial Plaintiffs.
2. The ARTCO Facility
Corn supported Opinion No. 2 in part by his finding that the ARTCO Facility is an alternative source of odors that “likely impacted nearby [Trial Plaintiffs].”
The Court held that Corn does not describe the duration of this event nor how the odor travelled. To the extent that Corn’s finding on the ARTCO Facility is based on the unfounded and speculative extrapolation of one isolated incident of a de minimis release during the 30-month relevant time period, the finding is unreliable.
3. The IMTT Facility
Corn supported Opinion No. 2 in part by his finding that the IMTT Facility is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and one incident report from outside the relevant time period does not support his finding that emissions from the IMTT Facility generated odors that might have impacted the Trial Plaintiffs.
4. The Harahan Waste Treatment Plant
Corn based Opinion No. 2 in part by his finding that the Harahan WTP is an alternative source of odors that “likely” had an impact on the Trial Plaintiffs.
The Court held that Corn bases his vague conclusion on two isolated complaints of sewage intrusion onto individuals’ properties during the relevant time period, rather than any widespread complaint of noxious odors in the air.
5. The ADM Grain Facility
Corn supported Opinion No. 2 in part by his finding that the ADM Grain Facility is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and incident reports from outside the relevant period does not support his finding that the ADM Grain Facility generated odors that might have impacted on the Trial Plaintiffs.
6.The Cargill Westwego Marine Terminal
Corn supports Opinion No. 2 in part by his finding that Cargill is an alternative source of odors that “might have” had an impact on the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and four incident reports during the relevant time period does not support his finding that emissions from Cargill generated odors that might have impacted the Trial Plaintiffs.
7.Kirby Inland Marine
Corn supported Opinion No. 2 in part by his finding that Kirby Inland Marine is an alternative source of odors that “likely” impacted Trial Plaintiffs.
The Court held that assumptions based on emissions events that occurred outside the relevant time period are irrelevant to the issue of whether emissions from Kirby Inland Marine impacted the Trial Plaintiffs during the relevant time period. Further, to the extent that Corn’s finding on Kirby Inland Marine is based on the unfounded and speculative extrapolation of one isolated incident of a de minimis release during the 30-month relevant time period, the finding is unreliable.
8. The Composing Facility
Corn supported Opinion No. 2 in part by his finding that “odor emissions (ammonia, hydrogen sulfide, etc.) during composting are practically unavoidable,” thus “numerous unpermitted air emissions events” associated with the Composting Facility that occurred “before the relevant time period . . . illustrate the impacts the facility might have [had] on [the Trial Plaintiffs] during the relevant time period.”
The Court held that Corn’s documentation of the facility’s incident reports from outside the relevant time period does not support his finding that emissions from the Composting Facility generated odors that might have impacted the Trial Plaintiffs.
9. Non-landfill operations at the River Birch Landfill
Corn supported Opinion No. 2 in part by his finding that non-landfill operations at the River Birch Landfill constituted alternative sources of odors that might have impacted the Trial Plaintiffs.
The Court held that Corn’s documentation of the facility’s air permit and one incident report during the relevant time period does not support his finding that emissions from River Birch generated odors that might have impacted the Trial Plaintiffs.
Held
The Court granted Plaintiffs’ motion in limine to exclude the testimony of Michael Corn.
Key Takeaway:
Rule 702 charges the Court as “gate-keeper” with the responsibility of conducting a preliminary assessment into whether the reasoning and methodology underlying expert testimony is scientifically valid and reliable. As set forth above, the proponent of expert testimony must prove by a preponderance of the evidence that the testimony is reliable. Having conducted a comprehensive review of Opinion No. 2 and the relevant reliance documents, the Court finds that the Defendants have not satisfied their burden of proving Corn’s testimony is reliable by a preponderance of the evidence. Corn’s opinion is peppered with his statements that the emissions sources “may have” or “might have” impacted the Trial Plaintiffs, or at the very best “likely” did so.
The Plaintiffs — Carmelo Leon and Wanda Leon — brought this action against the Defendants — United Industries Corporation (“UIC”), Spectrum Brands, Inc. (“SBI”), Cutter, and Home Depot U.S.A., Inc. (“Home Depot”) — after Carmelo Leon sustained burn injuries during an incident involving a mosquito-repelling candle manufactured and sold by the Defendants.
The Defendants initially moved to exclude the testimony of the Plaintiffs’ expert, Courtland Imel. In this case, the Defendants challenged Imel’s testimony on the second factor under Rule 702: whether the proposed expert opinion is based upon reliable data and methodology.
FDA Expert Witness
Courtland Imel is a senior consultant with experience in product development, quality, validation, training, regulatory compliance, and regulatory submissions (IND, NDA, ANDA, 510K, PMA, and DMF) for pharmaceutical, medical device, nutraceutical, cosmetic, and vet products. He has 36 years of experience in the FDA regulated industry.
Imel started Ceutical Labs to provide the needed infrastructure that many companies lack, but require to manage projects and daily activities. He has a Bachelor of Science degree in Chemistry from Baylor University.
Imel’s expert report contains four general “possible causes for candle fires.” However, the report did not contain an opinion as to the cause of the candle fire in this case. In fact, Imel testified that he can test his hypothesis in his lab but had not yet. In Imel’s deposition, he confirmed that he “had not done any work in this case to rule in or rule out any of those possible explanations.” Therefore, the Court held that Imel’s opinions are not based on reliable data and methodology.
The Plaintiffs argued that Imel “can still test his theories before the time of trial and render an opinion.”
For a Court to determine whether an expert opinion is admissible, that “opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.” Therefore, it is at this stage of the litigation that the Court requires information about the tests and data underlying Imel’s testimony. The time for discovery in this case has passed, and Imel cannot now go back and conduct the testing to support his hypotheses.
Held
The Court granted the Defendants’ motion to exclude Courtland Imel’s expert testimony.
Key Takeaway:
Imel was yet to test his hypothesis in this case and he had not done any work in this case to rule in or rule out any of the possible explanations. While testing is not an absolute prerequisite for admitting an expert opinion, it is usually critical to show that an expert “adhered to the same standards of intellectual rigor that are demanded in their professional work.” The Court held that Imel’s expert report did not contain an opinion as to the cause of the candle fire in this case.
Plaintiff, Mostafa Natour was injured in a car accident with a United States Postal Services delivery truck. Natour received medical treatment that consisted of imaging studies, chiropractic care, epidural injections, and pain management care. He sought to recover, among other things, his past medical expenses. Natour retained Alex Cruz, M.D. of Abacus Analytics as an expert on causation as well as the reasonableness and necessity of Natour’s medical expenses.
The Government argued that Cruz’s testimony about the reasonableness of Natour’s medical expenses should be excluded because: (1) Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion; and (2) Cruz is unqualified.
Orthopedic Surgery Expert Witness
Dr. Alex Cruz is a distinguished orthopedic surgeon specializing in spine surgery, with extensive training and recognition in his field. He earned his MD at the University of South Florida, followed by an orthopedic surgical residency and a spine fellowship at Baylor College of Medicine and University of Wisconsin, respectively. Favored for his conservative, patientfocused approach, Cruz excels in performing minimally invasive procedures for a range of spine conditions. His work has earned him significant recognition, and he holds memberships in the North American Spine Society and the American Academy of Orthopedic Surgeons.
Cruz testified that he did not utilize his own personal knowledge and experience when determining the reasonable cost of Natour’s medical care. Cruz instead relied solely upon the value generated by the Abacus Analytics website.
To begin with, Cruz’s methodology for determining the reasonable cost of Natour’s medical expenses was very simple: he typed in the CPT code and zip code, and the database generated a range of values. He then used that output in his report. He does not know how the figure was determined. Neither does he know anything about the underlying data. Cruz disregarded his own experience, even when it conflicted with the information that the database was giving him. He cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. At his deposition, he did not “recall how it’s done” or know how the website aggregated the data from the various “industry standard databases.” The Court held that Cruz did not know much about the data within the industry standard databases or the differences between them.
He stated that his opinions relied on the Abacus Analytics website because he would “rather have [the UCR values] from an objective source” and did not “want to give . . . whatever [he thought was] correct . . . based on [his] own experiences.” Cruz stated that he never tried to make his own determination as to what the usual, customary and reasonable value was. The Court held that Cruz did not compare Natour’s charges to the amounts Cruz charges in his own medical practice or the amounts paid by the various private insurers with whom he works.
In conclusion, Cruz’s expert opinions are not based on reliable data and are not the product of reliable principles and methods.
Held
The Court granted Defendant’s motion to exclude Plaintiff’s retained expert Dr. Alex Cruz.
Key Takeaway:
In the context of medical billing, courts have held that an expert’s testimony about the reasonableness of medical expenses may be admitted when the expert utilized reliable databases and explained the methodology for determining the value of the medical care provided. Cruz, however, cannot explain how the Abacus Analytics website determines the “UCR” value of medical services. Cruz did not employ valid reasoning or methodology and thus offered an unreliable opinion.
This suit arises from alleged damage to Plaintiff, Curt Marcantel’s primary residence in Lake Charles, Louisiana, and his ranch in Singer, Louisiana, during Hurricane Laura. At all relevant times the properties were insured under policies issued by State Farm. Plaintiff filed suit in this court on June 6, 2022, alleging that State Farm had not timely or adequately compensated him for his covered losses. Accordingly, he raised claims for breach of insurance contract and bad faith under Louisiana law.
Stevephen Lott has been providing professional public adjuster & consulting services to Insureds and Clients across the country. Prior to this, he spent 10 years working claims for several large Insurance Carriers on the other side of the aisle. He started Integrity Claims Consultants out of a strong belief that the Insured’s interests were not being represented fairly, by both the Carrier’s he was representing and the Public Adjusting firms they were being represented by.
Notably, Lott testified that he did not use any moisture meters to determine readings on which he based his opinion that certain repairs needed to be made to the interior of the home. Rather, Lott relied on Norman’s moisture meter readings.
State Farm challenged the scope of damages identified by Lott because he had relied on moisture meter readings conducted by Charles Norman. In two separate Daubert motions, State Farm had challenged Norman’s technique in using the moisture meter as well as his failure to account for the fact that both properties had sat in Louisiana’s humid weather without air conditioning for nearly a year before his inspection. The Court had denied those challenges as impacting the weight rather than the admissibility of Norman’s testimony. Accordingly, there was no basis for excluding or limiting Lott’s testimony.
Held
The Court denied State Farm’s motion to exclude or limit the testimony of Plaintiff’s expert Stevephen Lott.
Key Takeaway:
The Court refrained from excluding Lott’s opinions based on moisture meter readings conducted by Plaintiff’s expert Charles Norman because State Farm had previously challenged Norman’s technique in using the moisture meter as well as his failure to account for the fact that both properties had sat in Louisiana’s humid weather without air conditioning for nearly a year before his inspection. The Court had denied those challenges as impacting the weight rather than the admissibility of Norman’s testimony.
Plaintiff La Canada Ventures, Inc., is a health and beauty retailer offering cosmetic products. Defendant MDalgorithms is a company that offers computer software and app technology for education and advice about the treatment of acne. Both parties create and market skin and haircare products with the root mark “MD.”
Plaintiff brought this action against Defendant, advancing several claims related to trademark infringement and false advertising.
Plaintiff owns seven trademarks. Defendant creates and sells MDacne and MDhair, which are customizable skincare and haircare product kits. Plaintiff does not sell a product called MDacne but does have an acne skincare product that displays the mark “MD” on the packaging. Plaintiff avers that its customers nonetheless confuse the source of MDalgorithm’s products as coming from Plaintiff. Where a customer confuses the source of the junior user’s product as the senior user, that is known as “forward confusion.” Other types of confusion actionable under the Lanham Act include “reverse confusion,” which occurs when consumers approach the senior user, mistakenly believing they are dealing with the junior user, as well as the newly minted “initial interest confusion,” which occurs when customers are drawn to one party’s brand during their search for its competitor’s products, and the former “capitalizes on the goodwill associated with [the latter’s] mark.”
Defendant filed a motion to strike the opinion of Plaintiff’s expert, Richard Kostick. In his report, Kostick opined that (1) Plaintiff consistently followed best practice for effective digital marketing and (2) the sales and revenue generated by Plaintiff do not reflect the expected return from its digital marketing investment. Defendant challenged Kostick’s research methodologies as deficient and self-serving.
Marketing Expert Witness
Richard Kostick is the Founder and CEO of Purity Cosmetics (100% PURE) and has demonstrated expertise in leading and growing a successful cosmetics company with a strong focus on natural and organic beauty products. Under his leadership, Purity Cosmetics became a leader in prestige natural and organic beauty products. The flagship brand, 100% PURE, was committed to producing the purest and healthiest products while promoting environmental sustainability and improving the lives of both people and animals. With almost two decades of experience as the CEO of Purity Cosmetics, he gained extensive knowledge and expertise in the digital marketing strategies and tactics employed within the beauty industry. He employed this knowledge for the strategic decision-making that was instrumental in positioning Purity Cosmetics as a recognized brand in the market.
There are several reasons why an expert’s proposed testimony may be excluded, including the expert’s lack of qualification, the inapplicability of the proposed testimony, and the unreliability of the proposed testimony. Defendant primarily contended that Kostick’s report and any associated testimony should be excluded because it is unreliable.
Kostick’s opinion that Plaintiff engaged in best practices for digital marketing
Plaintiff argued that Kostick’s methodology is adequately stated and that cross-examination, not exclusion, is the appropriate way for Defendant to attack his opinions.
The Court observed that none of the other four analytical steps enumerated in Kostick’s report provide any greater insight into his actual methods, making it impossible to test his results. Kostick described the steps of his analysis in only the most general of terms. For example, he stated in only four lines of text that he conducted a “website audit” using three tools: Google Search Console, Google Optimize, and GTMetrix. He did not state what he actually did with these tools. Further, while Kostick stated that the audit provided “valuable insights” and “potential areas for improvement,” he did not elaborate as to either.
Moreover, Kostick did not record his work. Kostick’s report might be admissible if its vagueness could be cured by complete contemporaneous notes and documentation because Defendant could use that documentation effectively to cross-examine him. The Court noted that no such documentation exists.
Kostick’s report simply states that he used GTMetrix to conduct his website audit. When asked at his deposition if he took any notes during that process, Kostick replied that he could not recall and that he provided Plaintiff with any notes he did write, but Plaintiff has not produced any notes regarding GTMetrix. Similarly, Kostick’s report states that he used Ubbersuggest to conduct keyword research, but he does not recall whether he preserved any results or data from his use of that program and no such documents have been produced by Plaintiff.
The Court held that Kostick’s report ran afoul of Rule 26 which requires that an expert’s report contain “the facts or data considered by the witness in forming” their opinions. “
Kostick’s opinion that Plaintiff did not achieve the expected return from its digital marketing investment
The Defendant moved to strike an additional opinion in Kostick’s report; specifically, that “a solid investment in digital marketing should result in a return of 2-5 times during the short term and more in lifetime value of the customer.” However, the Court held that the report did not provide any additional information about this claim or its basis. When asked during his deposition about the claim, Kostick confirmed that he had not cited a source and could not identify a potential source supporting this claim despite it being supposed common knowledge.
The ten blog posts and articles that Kostick had listed as “authoritative sources” to shed light on the potential returns from the kinds of marketing investments employed by the Plaintiff added nothing to support his report’s reliability. Since he had not provided citations for any of these ten sources, Kostick failed to make clear exactly what articles he was relying on. However, even a cursory search for these ten sources made clear that they were not from reliable peer-reviewed publications. Instead, Kostick had apparently cited industry magazines and blogs run by technology companies who were likely writing with incentives irrelevant here.
Held
The Court granted Defendant’s motion to strike and exclude the report and associated testimony of Richard Kostick.
Key Takeaway:
Whether Kostick’s methodology is sound is unknowable because he does not state his methodology with sufficient specificity to satisfy even the very liberal standard under Daubert.
Defendant challenged Kostick’s failure to document and disclose his methods. Basic documentation of an expert’s analytical process is not, as Plaintiff argues, merely additional information that Defendant would like to see, but rather an essential part of an expert report that cuts to the heart of whether the method “can be or has been tested.”
Case Details:
Case Caption:
LA Canada Ventures, Inc. v. Mdalgorithms, Inc.
Docket Number:
3:22cv7197
Court:
United States District Court for the Northern District of California
