A district judge in Louisiana admitted the testimony of a law enforcement expert despite its alleged lack of documentary support and supporting methodology.
This lawsuit stems from injuries sustained by Anthony Efthemes, a Louisiana State Police officer, while assisting in an emergency pursuit of a vehicle on Interstate 10 in Calcasieu Parish, Louisiana. The Plaintiff, Efthemes was tasked with deploying “stop sticks” on the interstate to intercept the target car, which was being pursued by several other police vehicles with their lights and sirens activated.
Defendant Malik Aleem, driving an 18-wheeler, approached Efthemes’ point of interception around the same time as the target car. Aleem’s vehicle hit the stop sticks shortly after Efthemes deployed them, resulting in a violent tug on the device cord that caused injuries to Efthemes’ left hand.
Efthemes subsequently filed a lawsuit in state court against Aleem, his employer, and their insurer. The suit asserts that Aleem was liable for Efthemes’ injuries due to his negligent actions, including failing to yield to emergency vehicles, failing to slow down, and not attempting to avoid the hazard. Efthemes claims Aleem’s careless operation of his vehicle directly led to the injuries sustained during the incident.
Kerry Najolia has been qualified as, and has testified as, an expert on police practice, procedure, training, police officer survival/defensive tactics, police use of force, and police canines in numerous Louisiana state and federal courts. He has worked in various divisions in law enforcement, which includes patrol, investigations, Training and SWAT.
Najolia issued two reports in this matter, in June 2021 and February 2024. In both documents he opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols.”
He noted the privileges accorded to law enforcement in emergency pursuit. He also emphasized that Efthemes was trained not to wrap any part of the tire deflation device around any part of his body, and instead “to hold the handle of the device, take the slack out and place the device across the road or highway.”
Najolia concluded that the Troopers and other Officers were driving, acting and deploying the tire deflation devices with due regard for the safety of others and themselves.
He allowed, however, that the trier of fact would determine the reasonableness of each party’s actions and could conclude that “Malik’s actions may not have entirely or partially contributed to Trooper Efthemes’s injury” if it determined that Efthemes had not followed his training.
Defendants, however, found fault with certain statements in the report, asserting that they lacked documentary support and supporting methodology. They asserted that Najolia’s opinions were duplicative of those that will be elicited from two other Plaintiff witnesses.
The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials. The Court added that the challenged factual assertions in this case concerned the credibility of the testimony, not the admissibility.
Plaintiff may elect not to call the witnesses whose testimony overlaps with Najolia’s opinion or may elect not to elicit cumulative testimony. The Court cannot determine before trial whether such overlap creates a basis for exclusion.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Kerry Najolia.
Key Takeaways:
Najolia opined that Efthemes deployed the stop sticks “as he was trained and in accordance with LSP policy, procedures and protocols” after Efthemes sustained injuries while assisting in an emergency pursuit of a vehicle. The Court held that Najolia’s reports reflected that his opinions on Efthemes’s use of stop sticks were based on his years of law enforcement experience as well as his review of discovery and relevant training materials.
Najolia’s application of law enforcement policies and procedures, through the lens of his experience, to the facts of this incident is within the realm of Rule 702 and potentially helpful to the trier of fact.
Challenged factual assertions typically concern the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
The personal injury case stemmed from a rear-end collision on August 7, 2019. The Plaintiff, Sarah Ann Stratemeyer filed negligence claims against Kyle Thomas Pliler and his employer, Northstar Construction Management Company, Inc., seeking damages for bodily injuries, loss of e arnings, and loss of ability to earn money. At the time of the accident, Sarah was a nursing student at Renaissance Health Institute. In January 2022, she failed her nursing school exit exam, which she attributed to a mild traumatic brain injury allegedly sustained as a result of the accident. The Plaintiff intended to call two expert witnesses: Dr. Craig H. Lichtblau, a physical medicine and rehabilitation doctor, to testify about future medical costs and disabilities, and Dr. Julianne Frain, a vocational rehabilitation expert, to discuss limitations on the Plaintiff’s future ability to work.
Defendants requested that the Court prohibit Lichtblau and Frain from testifying about Plaintiff’s pre-incident intellectual and cognitive functioning and Plaintiff’s inability to pass her nursing school exit examination as a result of the 2019 accident.
Defendants attacked the testimony on three bases: (1) neither expert is qualified to opine on these matters; (2) the experts’ testimony is ipse dixit, unreliable, and unsupported by facts or evidence; and (3) the testimony would confuse the jury.
Vocational Rehabilitation Expert Witness
Dr. Julianne Frain is a Certified Rehabilitation Counselor, Certified Life Care Planner, and Diplomate with the American Board of Vocational Experts. She is typically hired in the areas of vocational rehabilitation, life care planning, or both concentrations combined. Dr. Frain has 15 years of experience handling claims within various forms of injury and family law matters. She renders opinions on vocational assessment, disability, pre-and-post incident earning capacity, re-employment, rehabilitation, and life care planning. Additionally, she provides insights on the usual and customary costs of medical care.
Dr. Craig H. Lichtblau specializes in physical medicine and rehabilitation, focusing on medical functional capacity and impairment levels. His areas of expertise include disability evaluations, chronic pain management and defining impairment, disability and cost for future medical care.
Frain, a vocational rehabilitation expert, provided testimony based on her evaluation of the Plaintiff and review of medical records. She focused on assessing the Plaintiff’s future earning capacity and loss of earning potential following the 2019 accident.
In her analysis, Frain assumed the Plaintiff would have likely completed her nursing program if the accident had not occurred. She presented this as an assumption rather than a causation opinion. She explicitly stated that she did not have independent medical causation opinions. Instead, she relied on medical records and diagnoses from treating doctors and other medical experts involved in the case.
During her deposition, Frain initially expressed uncertainty about whether the Plaintiff would have passed the exit exam without the accident. However, she later opined that the 2019 accident was a “contributing factor” and “likely” caused the Plaintiff to fail the examination. Frain declined to offer opinions on the Plaintiff’s pre-accident intellectual or cognitive functioning. She deferred to neuropsychological evaluations for such assessments.
While not explicitly mentioned in the Court’s analysis, she likely included an assessment of the Plaintiff’s work capacity and potential job options in her report, as is typical for vocational rehabilitation experts.
Craig Lichtblau
Lichtblau, an expert in physical medicine and rehabilitation, provided testimony focused on the Plaintiff’s medical functional capacity and level of impairment following the 2019 accident. In his report, he opined that the Plaintiff had the functional capacity to work 8 hours per day on an uninterrupted basis. He recommended “sedentary light” positions and noted that the Plaintiff’s disability would increase as she aged. He also stated that she would suffer from acute, intermittent exacerbations of chronic pain and discomfort. Lichtblau attributed many of the Plaintiff’s current medical conditions to the 2019 incident. He repeatedly stated that her medical issues were “secondary” to the injuries sustained in the accident.
During his deposition, he described the Plaintiff’s injuries and how they affected her post-accident levels of cognitive functioning. However, he did not directly address her pre-accident intellectual functioning in his report or deposition. Regarding the Plaintiff’s exit examination failure, Lichtblau declined to comment on the likelihood of her passing the exam in the future but stated that it would be “a very difficult road for her” due to her injuries. He did not provide a specific opinion on whether the 2019 accident caused the Plaintiff to fail her exit examination.
Findings of the Court
The Court found that both experts failed to properly disclose opinions on the Plaintiff’s pre-accident intellectual functioning and causation for failing the exit exam. This was required under Federal Rule of Civil Procedure 26(a)(2)(B)(i). The Court emphasized that expert reports must include “a complete statement of all opinions the witness will express and the basis and reasons for them.”
For Frain, the Court noted that her report did not offer opinions on pre-accident intellectual functioning. She explicitly stated in her deposition that she would not opine on this topic. Regarding the Plaintiff’s failure to pass the exit examination, Frain’s report mentioned the accident as a contributing factor. However, she presented it as an assumption rather than a causation opinion.
The Court also determined that the Plaintiff failed to adequately refute the Defendants’ arguments in her response. The Plaintiff’s brief focused on general qualifications and methodology rather than addressing the specific topics the Defendant sought to exclude.
For Lichtblau, in addition to the disclosure issues, the Court conducted a Daubert analysis. It found that his testimony on these topics did not meet the reliability standard. The Court noted a lack of methodology for assessing pre-accident intellectual functioning. It also found a failure to consider alternative causes for the exam failure, such as the low overall passage rate.
Held
The Court barred Julianne Frain and Craig Lichtblau from offering opinions on the Plaintiff’s pre-accident intellectual functioning and the causal link between the 2019 accident and her exit exam failure.
Key Takeaways
1. Experts must properly disclose all opinions they intend to offer at trial in their reports, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(i).
2. Parties must adequately respond to and refute opposing arguments in motions, addressing specific points raised rather than making general arguments.
3. Expert testimony must meet the Daubert standard for reliability, which includes having a sound methodology, considering alternative explanations, and avoiding impermissible analytical leaps.
4. Courts may exclude expert testimony on specific topics even if the expert is generally qualified in their field, particularly when the expert lacks the necessary basis or methodology for those specific opinions.
5. Assumptions used in an expert’s analysis should be clearly distinguished from causation opinions.
6. Failure to consider obvious alternative explanations (such as the low overall passage rate for an exam) can render an expert’s opinion on causation unreliable.
7. The Court’s gatekeeping role under Daubert is crucial in ensuring that only reliable and relevant expert testimony reaches the jury.
Case Details:
Case Caption:
Stratemeyer v. Northstar Constr. Mgmt. Co.
Docket Number:
9:23cv80147
Court:
United States District Court for the Southern District of Florida
A district judge in Georgia barred certain opinions of an life insurance industry expert because no authority, underwriting or otherwise, was cited in support of such opinions.
This case is about whether Pacific Life was entitled to rescind two life insurance policies and deny claims for benefits under them when it learned during the contestable claim period that Jimmie Long (“Mr. Long”) made material misrepresentations about his history of, and treatment for, abusing alcohol. Plaintiff Ronald Blalock (“Plaintiff”) owned, and was the beneficiary under, both policies. The policies were issued in January 2022, approximately four months before Long died in a car accident. Seven days after Long’s death, his insurance producer submitted claims for the benefits provided for in the policies. In accordance with the policies’ terms, Pacific Life conducted a contestable claim investigation—a routine action taken when an insured dies within two years of a policy’s issuance—to determine if the benefits were payable.
Long’s medical records and Pacific Life’s investigation revealed that Long made material misrepresentations in his applications for insurance coverage. Pacific Life accordingly decided to rescind the policies and deny Plaintiff’s claims. Apparently dissatisfied with Pacific Life’s decisions, Plaintiff commenced this lawsuit. Plaintiff asserted claims for breach of contract and bad faith failure to pay benefits against Pacific Life.
Plaintiff identified Vera Dolan as an expert witness to support his claims. Plaintiff asked Dolan to investigate two issues. He asked her to investigate Pacific Life’s contestable claim review of the two policies to determine if the review was fair, reasonable, and consistent with the standard of care. He also asked Dolan “to investigate the denial of claim payment to Long’s policies beneficiary, Ronald Blalock.”
Insurance Expert Witness
Vera Dolan has been involved in the life insurance industry as an underwriter for over 41 years, since 1982. She is one of the leading mortality experts in the life insurance industry. She writes underwriting manuals and policy and procedure manuals for life and health insurance companies.
Dolan, addressed the question of whether the medical records warranted Pacific Life’s finding of material “alcohol abuse” and concluded that “Long’s underwriting profile was not consistent with the profile of an alcohol abuser as defined by Pacific Life’s underwriting guidance.”
Dolan opined that “Pacific Life is falsely stating that reviewing ten years of medical records at time of claim is fair and justified, when only five years of the most contemporaneous medical records were reviewed at time of issue without any finding of alcohol abuse.” Pacific Life argued that Dolan’s opinion was based on “speculation” and “unreliable principles and methods.”
The Court held that Dolan cited no authority, underwriting or otherwise, supporting this opinion. Dolan did not dispute that it was appropriate to ask Long about his medical history for the ten years preceding his application for insurance. Nor did she dispute that Pacific Life could appropriately rely on the truthfulness of the information Long provided when it issued the Policies.
When Long died within the contestable period, the only means available to confirm the accuracy of that information was to request records from the providers who saw Long during that ten-year period.
Held
The Court excluded Dolan’s opinion regarding the consideration of ten years’ worth of medical records. Her other opinions were limited pursuant to the parties’ consent.
Key Takeaway:
Vera Dolan argued that Pacific Life’s practice of reviewing ten years of medical records at the time of claim, despite only reviewing five years at the time of policy issuance, was not fair or justified. She added that Long’s underwriting profile was not consistent with the profile of an alcohol abuser as defined by Pacific Life’s underwriting guidance. The Court, however, rejected her opinion regarding the consideration of ten years’ worth of medical records.
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.
Defendants, City of Daytona Beach as well as Marville Tucker and James Mackenzie filed respective Daubertmotions to exclude the testimony of Plaintiff’s expert Thomas Tiderington. Tiderington opined that the Daytona Beach Police Department has consistently demonstrated a custom and practice of inadequately supervising, training, and disciplining its personnel.
Law Enforcement Expert Witness
Thomas J. Tiderington has served as a full-time law enforcement officer with three different police departments and as a Group Supervisor for the United States Drug Enforcement Administration’s South Florida Regional Task Force. He has trained over 10,000 federal, state, and local law enforcement officers on police practices and criminal investigations.
Tiderington stated that Defendants’ actions were unreasonable, unjustifiable, and deviated from acceptable law enforcement standards. Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion and will mislead the jury.
The Court held that Defendants’ motion to exclude opinion one was granted to the extent that Tiderington may not opine that Defendants’ application of force was unreasonable or unjustifiable. Defendants’ motion was otherwise denied as to opinion one.
Opinion Two
Tiderington stated that the Daytona Beach Police Department has a custom and practice of inadequately supervising, training, and disciplining its personnel and but for this pattern Plaintiff would not have been detained and incarcerated.
Defendants Marville Tucker and James Mackenzie argued that Tiderington’s opinion should be excluded because it is a legal conclusion that encroaches on the purview of the jury.
The Court held that Tiderington’s report discussed his experience but failed to establish “how that 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.”
Opinion two discussed the custom, practice, and patterns of the Daytona Beach Police Department, but the report only cited one example beyond the present case. Tiderington confirmed this limited basis for the opinion in his deposition.
The Court excluded Tiderington’s opinion two as unreliable because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.
Held
Defendant, City of Daytona Beach’s, motion to exclude expert opinions of Thomas Tiderington was fully granted by the Court. However, the Court granted in part Defendant Marville Tucker and Defendant James Mackenzie’s motion to exclude certain opinions of Tiderington.
Key Takeaway:
Tiderington’s opinion concluding that Defendants’ application of force was unreasonable or unjustifiable was excluded as to opinion one since it is a legal conclusion and could mislead the jury. Tiderington’s opinion in opinion two concerning Defendant’s custom and practice was also excluded because it lacked a reasoned analysis supported by data, identified standards, or comparison with practices in other sheriff’s offices.
This matter arises from the tragic death of James Lemaster, a technician employed by Orbis Corporation at the company’s manufacturing plant in Georgetown, Kentucky. Lemaster’s job duties involved fitting industrial molds for filling and pressing to produce various made-to-order plastic hardware. On August 12, 2021, Lemaster was operating a hoist crane to lift and move a large mold encased within a mold fixture. The crane was hooked onto the mold fixture with a swivel hoist ring manufactured by Defendant American Drill Bushing (“ADB”). While the mold and mold fixture were suspended twenty feet above ground, ADB’s swivel hoist ring failed causing the mold and fixture to fall. Lemaster was struck by the falling mold and fixture, and he was killed on impact.
Plaintiff filed the instant lawsuit on behalf of Lemaster’s estate and alleged that the fatality was the result of negligence on the part of ADB and/or Defendant Strohwig Industries, Inc. (“Strohwig”).
Strohwig filed a motion to exclude certain testimony by Plaintiff’s expert Paul Sweeney, a mechanical engineer, with regard to Sweeney’s statements alleging that Strohwig and American Bushing were aware of why the lifting bracket failed but are intentionally not disclosing that information.
Mechanical Engineering Expert Witness
Paul Sweeney is a registered professional mechanical engineer in the State of Connecticut with decades of experience in the field of cranes and rigging.
Sweeney began his career in 1984 by graduating #1 in his class at the GDEB Career Development Program which places engineers in the shipyard as supervisors after intensive training. Sweeney has held several positions at GDEB. As Ship Superintendent he managed the construction of missile compartments on Trident submarines. In 1990 Sweeney was promoted to the position of Supervisor of Crane Engineering where he held technical oversight for the safety, repair, maintenance, modification, overhaul, inspection, quality control, testing, and certification of Electric Boat’s cranes and nuclear lifting and handling equipment.
The Court held that Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals. Plaintiff did not offer Sweeney as an expert on those topics. Nor did he profess to be such an expert. He is a mechanical engineer. Accordingly, the Court will grant the motion to exclude any testimony from Sweeney that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.
Strohwig also objected to a statement in which Sweeney seemed to indicate that the Strohwig lifting bracket may have caused the swivel hoist ring to fail. However, Plaintiff conceded that there is no evidence in the record to support Sweeney’s statement that the lifting bracket may have caused the swivel hoist ring to fail. Accordingly, the Court prohibited this testimony.
In its motion to exclude Sweeney, Strohwig also moved the Court to strike Sweeney’s report from the record, largely because of the accusations that Strohwig and American Bushing knew of the cause of the accident and have withheld that information. While Plaintiff did not object, the Court denied this portion of the motion.
Held
The Court granted in part and denied in part Strohwig’s motion to exclude Paul Sweeney’s testimony.
Key Takeaway:
Since Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals, the Court rejected any testimony by Sweeney that indicated that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.
On March 22, 2021, Plaintiff Brandon Long, an employee of Helmerich & Payne International Drilling Co. (“H&P”), was supervising the de-rigging of an oil rig in the Unita Basin near Myton, Utah.
H&P hired a subcontractor to assist with moving the drilling rig and other equipment, which in turn hired Defendant J&C Enterprises, Inc. (“J&C”) to operate a crane as part of the de-rigging process. While Long was on the rig, employees of J&C allegedly removed some pins from a rig deck, which caused the load to shift and swing uncontrolled towards Long, hitting Long’s foot and pinning it between two other pieces of equipment. Long claimed J&C was negligent in securing the rig deck to the crane hook and has sued to recover for the injuries he sustained as a result.
In defense of these claims, J&C has designated Daniel T. Reinke as an expert in oil and gas operations to testify on its behalf. Reinke opined that Long’s injury was the result of his own actions.
Long filed a motion to strike Reinke’s opinions pursuant to Rule 702 as his “statements were simply lay testimony given the imprimatur of expert opinion and/or were unhelpful to the jury because they were untethered from any authority suggesting the customs and practices of the industry.”
Oil & Gas Expert Witness
Daniel Reinke is a professional engineer who has over 48 years of experience, both as an employee and consultant, in oil and gas operations. He has served as an operator, drilling engineer, reservoir engineer, and production engineer on over 2,000 oil and gas wells. He is the founder and president of an operating company which has served as operator and contract operator of more than 100 wells.
The Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions
The Court held that since Long has not shown Reinke’s articulation of industry customs and practices is contrary to established standards or otherwise infirm, Reinke’s statement of those standards based on his own experience is sufficient for admissibility. In other words, there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment.
The Court added that Reinke’s opinion that J&C was not directing the work reasonably appeared to be an outgrowth of his observations that each contractor was responsible for its own piece of the de-rigging process and that, as the owner of the rig, H&P was responsible for directing the work.
Moreover, it is unlikely a lay jury could be expected to know the layout and components of an oil rig or how the various parts of the rig and the equipment involved in the derigging process move and interact with one another which is why the Court admitted Reinke’s opinions that Long’s injuries were the result of his own actions and not the fault of J&C, as well as his suggestion that Long would not have been injured had he located himself anywhere else.
According to Rule 704, the Court found that Reinke explained the bases of his conclusions as to the relative fault of each party, and to the extent his testimony may embrace an ultimate issue in the case, it seemed likely to “assist, rather than supplant, the jury’s judgment.”
One of Reinke’s opinions struck the Court as potentially problematic
However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic.
Since Reinke did not describe the contents of the report; it may be the conclusion whether Long violated his employer’s safety policies is self-evident from the document itself.
Held
The Court granted in part and denied in part the Plaintiff’s motion to strike the testimony of Daniel Reinke.
Key Takeaway:
The Court held that there is nothing objectionable in Reinke’s statements that everyone on site has Stop Work Authority, that each employee is responsible for his own safety while working at the site and must follow his own employer’s safety policies, that each contractor performs specialized services requiring different skills and safety protocols, and that it is a basic safety rule of the oilfield not to locate oneself between two unstable pieces of equipment. However, Reinke’s conclusion that, “based on the incident report published by H&P, Long did not follow the safety policies and procedures of his employer” struck the Court as potentially problematic since it was not at all apparent why it required expert interpretation.
Pamela Ahmed has a history of back problems dating back to a traffic accident in approximately 1988. By 2020, Ahmed had a litany of “bad orthopedic issues,” leading her doctor to deem her an “orthopedic disaster.”
She began to experience significant hip arthritis, and her doctor diagnosed her with end-stage osteoarthritis. Ahmed underwent a right total hip arthroplasty on November 4, 2020, during which her doctor implanted her with a Pinnacle Altrx polyethylene liner, Pinnacle cup, and Biolox ceramic femoral head.
On February 25, 2021, Ahmed reported to her doctor that her hip was popping and that she had fallen. Ahmed underwent a revision hip arthroplasty in March 2021, and received a new femoral head and acetabular liner. On March 19, 2021, Ahmed underwent an additional surgery as a result of an infection. In June and August 2021, Ahmed experienced two incidences of hip dislocation.
Ahmed filed this lawsuit alleging that she was injured when her polyethylene hip implant (the Pinnacle Altrx) became dislocated. She retained two expert witnesses Richard Edwards and Dr. Kenneth Sands.
Defendants have since moved to exclude all opinions of Plaintiff’s expert, Edwards, and Plaintiff’s rebuttal expert, Sands.
Materials Science Expert Witness
Richard Edwards held a Bachelor’s degree in materials science and engineering and had studied in a mechanical engineering graduate program. He had extensive experience conducting failure analyses on various materials, including medical device implants and hip replacement systems. Edwards had analyzed plastics, including polyethylene used in the hip implant liner. He examined the failed hip implant components, reviewed relevant literature, and conducted non-destructive testing. However, he had not previously analyzed a polyethylene hip implant liner prior to this product liability case.
Dr. Kenneth Sands M.D. is an orthopedic surgery expert witness from Florida. He is certified by the American Board of Orthopaedic Surgery. Dr. Sands completed his BS in 1992 from Duke University. He completed his MD in 1996 from Tulane University School of Medicine. He also completed his residencies in 2002 from SUNY Downstate Health Sciences University. Currently, Dr. Sands is an Orthopedist at Melbourne Regional Medical Center.
The Court held that Edwards’ design defect opinions are generally reliable, but he may not testify as to alternative design theory.
1. Edwards Is Qualified to Testify as an Expert Regarding the Hip Implant
The Court held that Defendants’ attempts to narrow the subject matter about which Edwards must be qualified to testify are unavailing. His mechanical engineering background and decades of experience conducting failure analyses, including of medical devices and of hip implants specifically, meant that this subject matter was “sufficiently within his expertise.”
2.Edwards’ Design Defect Opinions are Generally Reliable, but he may not Testify as to Alternative Design Theory
Defendants argued that Edwards’ design defect opinions should be excluded because they are not the product of objective scientific testing or methodology. The Court found that Edwards’ design defect opinions are scientifically reliable despite his lack of destructive testing of the incident product. Defendants also attacked Edwards’ opinions as unscientific resting on a “selective and incomplete review of the literature.” Yet, Edwards’ report cited the 25 sources that he reviewed while investigating the product failure, including a variety of academic papers and published industry reports. Defendants argued that that Edwards’ conclusions amounted to “unauthorized conclusions from limited data” because “none of the papers he considered actually concluded that the Pinnacle hip replacement device or any component parts (including the Altryx liner at issue) were defective. The Court held that Edwards’ literature review was part of a wider technical process, which also included examining and measuring the Hip Implant’s ball and liner; conducting an infrared spectrograph of the liner material; and creating a replica to better visualize some of the liner’s characteristics.
3.Edwards may not Reliably Testify as to Alternative Design Theory
Edwards’ expert report consisted of multiple alternative design proposals. The Court disagreed as to Edwards’ ability to testify regarding a theoretical alternative design when applicable case law suggests that the failure to test a proposed alternative design or cite another’s testing of the design is fatal to the admissibility of said testimony.
4.Edwards’ Manufacturing Defect Opinions are not Impermissible Ipse Dixit
According to Defendants, Edwards’ manufacturing defect opinions are pure ipse dixit, “based on speculation, conjecture and inference, rather than reliable principles and methods.” The Court held that while Edwards may not reliably testify as to alternative design theory, his defect opinions are “the product of reliable principles and methods” and reflect “a reliable application of the principles and methods to the facts of the case.” Like many (if not most) scientists, Edwards did not have direct evidence of a manufacturing or design flaw in the Hip Implant but instead employed inductive reasoning to reach the hypothesis that the product was defective in either manufacturing or design.
5.Edwards’ Non-Medical Causation Opinions Are Not Excludable
Defendants also asked that the Court exclude Edwards’ causation opinions because he is not qualified to offer medical causation opinions, and even if he were qualified to offer medical causation opinions, “his opinions would still be inadmissible because he failed to meaningfully account for far more likely factors and causes of Ahmed’s alleged injuries.” Edwards concluded that the Hip Implant malfunctioned because the locking mechanism between the Altrx liner and Pinnacle cup was inadequate to hold the liner in place after impingement occurred. The Court held that this is a product defect opinion from a materials scientist and engineer with over forty years’ experience in failure analysis of various materials. It is not a medical causation opinion. And, as explained infra, an expert opinion regarding medical causation is not necessary under the facts/allegations of this case.
6.Opinions that Edwards Revealed for the First Time at his Deposition May Come In
Edwards discussed at his deposition the following that were not included in his expert report: (1) his opinion that “the plastic in the liner is too deformable,” and (2) a free body diagram to calculate the forces exerted on the Hip Implant. As to both, the Court cannot see how Defendants’ objections hold water. For Rule 26(a)(2)(B) experts, the party’s duty to supplement extends to both to information in that expert’s report and information given during the expert’s deposition. The Court held that no supplementation was needed for merely explaining an opinion that Edwards already detailed in his report. Rule 26(e) envisions supplementation when a party’s discovery disclosures happen to be defective in some way so that the disclosure was incorrect and incomplete, and therefore, misleading. To conclude, Plaintiff had no duty to supplement Edwards’ expert report.
Kenneth Sands
The Court held that Sands may not testify in Plaintiff’s case-in-chief to establish medical causation. He may only testify to rebut the Defendant’s expert. Nonetheless, as discussed infra, expert medical causation testimony is not necessary in this case because the Record does not reveal a genuine dispute that the Hip Implant’s failure caused Plaintiff’s injuries — only whether there was a defect in the Hip Implant that caused it to fail. The Plaintiff tendered Edwards’ testimony in aid of the latter purpose.
1.Sands Reliably “Ruled In” Defect as a Cause of Ahmed’s Injuries
Sands based his opinion that the cause of the failed Hip Implant was multifactorial on his review of Ahmed’s medical records, depositions of relevant parties, medical case reports, Edwards’ expert report, and his own experience with total hip arthroplasty.
Defendants attacked Sands’ reliance on case reports as impermissible because “they are not the kind of scientific materials on which experts would rely outside the courtroom.”
The Court held that Sands’ rebuttal report cannot properly and did not prove causation — that’s Edwards’ job. All the same, given that the Court already held supra that Edwards’ design defect opinions were generally reliable, Sands was allowed to rule on them in support of his refusal to rule out the Hip Implant itself as a major contributing factor for Ahmed’s failed total hip replacement.
2. Sands Did Not “Rule Out” Any of the Three Variable as Potential Causes for the Hip Implant’s Failure and Was Not Obligated to Do So
An expert’s differential diagnosis testimony is unreliable when it fails to sufficiently explain why other potential causes have been ruled out. Yet a differential diagnosis is not an absolute requirement to survive a Daubert challenge.
The Court held that Sands did not conduct a differential diagnosis in this case and was not required to do so.
Both Sands and Defendants’ expert Barrington agreed that a successful arthroplasty necessitated the alignment of three variables: the surgeon, the implant, and patient-specific factors. Sands did not rule out any of these as potential causes; rather, his detailed concerns with respect to each factor undergird his conclusion that Ahmed’s failed total hip replacement was multifactorial. Nor did he find that all possible causes were causes.
Held
The Court granted Defendants’ motion to exclude opinions of Richard Edwards to the extent that Edwards was prohibited from testifying as to any alternative design for the Hip Implant but denied it as to every other respect.
The Court denied Defendants’ motion to exclude opinions of Kenneth Sands.
Key Takeaways:
Rebuttal experts can address the same subject matter as opposing experts and arrive at contradicting conclusions, provided they directly respond to the opposing expert’s opinions.
Experts may rely on case reports to support their opinions, acknowledging the limitations of such reports and using them in conjunction with other evidence.
A formal differential diagnosis is not always required for expert testimony on causation to be admissible.
Expert qualifications are assessed liberally, with experience in a related field qualifying an expert to testify on specific issues.
Alternative design theories must undergo testing or validation to be admissible as expert testimony.
Opinions first disclosed during an expert’s deposition may be admissible if they do not materially differ from the expert’s report and are disclosed before the pretrial deadline.
Case Details:
Case Caption:
Ahmed v. Johnson & Johnson Healthcare Sys.
Docket Number:
1:22cv190
Court:
United States District Court for the Southern District of Alabama
This case stems from a very minor rear-end motor vehicle accident on March 26, 2021, which resulted in slight bumper damage to Plaintiffs’ truck. Defendant Ryan Transport employed Defendant Cummings and was under dispatch for Defendant Lenk Express at the time of the subject accident.
To begin with, Plaintiffs retained and identified Linda Day to testify, in essence, that Defendant Cummings did not follow trucking industry standards in the operation of his vehicle and that Defendants Lenk Express and Ryan Transport did not follow trucking industry standards in their training of Defendant Cummings.
Linda Day has been involved in various aspects of the transportation and warehousing industry since 1984. She has a master’s degree in Organizational Management with a specialization in Leadership. She has 30 years of experience working in various positions within the transportation industry.
First, the Court held that a jury does not need to be told by an expert witness that a driver should look for traffic or not follow too closely and jurors do not need an expert to tell them that by failing to stop and rear-ending the Plaintiffs that Defendant Cummins was not observing the standard of care required by the driver of a motor vehicle on Georgia’s public road.
Second, the Court added that her opinions consist of abstract propositions applicable to any accident but just not applicable to the particular facts of this case other than the fact that the accident happened, which is undisputed. Her opinions rely solely on the information contained in the police report for the subject accident. She has no opinions on the particular facts involved in the subject accident or why Defendant Cummings failed to stop.
Held
The Court granted Defendants’ motion to exclude the opinions of Plaintiffs’ expert Linda Day under Federal Rule of Evidence 702.
Key Takeaway:
The Court found that Linda Day’s opinions consisted of abstract propositions and were based on facts contained in the police report for the subject accident.
A district judge in California limited the testimony of the Defendant’s substantial similarity expert witness as he lacked the requisite qualifications to express his opinions regarding Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture.
Plaintiff Buck Goodday Woodall filed a copyright infringement case against Defendant The Walt Disney Company, Buena Vista Home Entertainment Inc et al. The present case involves allegations of copyright infringement and misappropriation of trade secrets between Plaintiff’s “Bucky” and Defendants’ animated film Moana.
The Defendants disclosed expert Jeff Rovin as their “substantial similarity expert.” Plaintiff filed a motion to exclude Rovin’s testimony on Daubertgrounds. Plaintiff aimed to prevent Defendants’ expert, Jeff Rovin, from presenting testimony and opinions, arguing two primary grounds. Firstly, Plaintiff contended that Rovin’s “prior art” methodology was unreliable and had been dismissed by Ninth Circuit Courts, asserting its inapplicability to copyright cases. Secondly, Plaintiff argued that Rovin lacked the qualifications to provide opinions on “Oceanic mythology, folklore, religion, culture, and/or history.”
Art and Humanities Expert Witness
Jeff Rovin has written numerous histories on heroic and fantasy films, including works such as Of Mice and Mickey (1975), The Fabulous Fantasy Films (1977), From the Land Beyond Beyond (1977), The Fantasy Almanac (1979), The Encyclopedia of Monsters (1989), The Illustrated Encyclopedia of Cartoon Animals (1991), and Adventure Heroes (1995). During his career, he wrote, edited, and created many comic book characters, several of whom were teenagers like The Dark Avenger, Wulf, and Vicki P.I. He also served as a testifying and consulting expert in numerous intellectual property claims.
Defense expert Rovin’s initial and rebuttal reports cited various other works. Plaintiff sought to exclude both reports entirely, arguing that Rovin’s opinions relied on an unreliable “prior art” methodology rejected by Courts within and beyond that Circuit.
Rovin clarified the methodology he employed in applying the extrinsic test for substantial similarity. The Court found that he did not utilize a “prior art” approach but instead referenced other works to support his opinion that the alleged similarities identified by Plaintiff included elements not protected under copyright.
Additionally, the Court held that merely referencing prior works within the same genre does not automatically render an expert’s opinion unreliable or inadmissible. Plaintiff also contested Rovin’s identification of different genres in his reports but Defendants countered that these genres were defined by Plaintiff’s own expert. Even if there were differences in how the experts defined relevant genres, this does not justify excluding Rovin’s reports and testimony under Daubert standards.
Furthermore, if Rovin’s reports referenced works outside the relevant genres, this would affect the weight of his opinion, not its admissibility. Plaintiff further argued that Rovin’s references to other “prior art” could mislead the fact-finder into believing certain scenes were familiar stock scenes when they were not. But this concern also pertained to the weight of Rovin’s testimony, not its admissibility.
The Court concluded that Rovin’s methodology did not involve a “prior art” approach, thus refuting Plaintiff’s assertion that his opinions and testimony were unreliable and inadmissible. Consequently, the Court rejected Plaintiff’s motion to exclude Rovin’s testimony and opinions based on reliability concerns.
B. Expert’s Qualifications
Plaintiff had also sought to exclude Rovin’s opinions and testimony, arguing he lacked the requisite qualifications to discuss “Oceanic mythology, folklore, religion, culture, and/or history.”
Defense counsel had disclosed that they specifically designated Rovin “as their substantial similarity expert.” Therefore, the Court prohibited Rovin from offering expert opinions or testimony concerning Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture.
Held
The Court ruled as follows:
The Plaintiff’s motion to exclude opinions and testimony from defense expert Rovin, arguing his opinion was unreliable, was denied.
Plaintiff’s motion to exclude expert testimony or opinions from defense expert Rovin regarding Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture was granted.
Key Takeaway:
The Court rejected Plaintiff’s argument that employing “prior art” approach rendered Jeff Rovin’s opinions unreliable, stating that referencing works within the same genre does not inherently undermine an expert’s credibility. The Court held that Rovin did not use a “prior art” methodology, but instead referenced other works in opining that the alleged similarities in the parties’ works identified by Plaintiff include unprotectable elements.
As Rovin was designated solely as a substantial similarity expert, the Court granted Plaintiff’s motion to preclude him from providing opinions or testimony on Polynesian, Oceanic, or Hawaiian subjects.
Case Details:
Case Caption:
Buck G. Woodall V. The Walt Disney Company
Docket number:
2:20cv3772
Court:
United States District Court, California Central (Western Division – Los Angeles)
Plaintiff, Jamaal Nelson applied for housing with Younger Developments in Texas around February 2023. He alleged he was denied housing on February 7, 2023 because Defendant’s consumer credit report reported Plaintiff as “Deceased” on a Capital One tradeline and this happened because Defendant failed to investigate the alleged inaccuracy. He added that due to his being denied housing in Texas he had to take a lower paying job in Florida where he paid higher rent. Against Defendant, Plaintiff pursued claims for (1) violation of the Fair Credit Reporting Act (“FCRA”) for failure to assure maximum possible accuracy and (2) violation of the FCRA for failure to investigate.
Defendant Experian Information Solutions, Inc. filed a motion to exclude the testimony of Plaintiff’s expert Douglas A. Hollon.
Credit Reporting Expert Witness
Douglas A. Hollon is currently the President and Owner of Credit Experts of North Texas, LLC. He began his career in the consumer reporting industry in 2005 as a Dispute Agent with Experian Information Solutions, Inc. Initially, he helped consumers with their mail or telephone disputes of items listed on their consumer file. Hollon was later promoted to Consumer Affairs Special Services (CASS), now known as Experian Consumer Affairs (ECA). In ECA, he handled escalated credit report disputes.
In addition to his dispute training, he received specialized training involving fraud (identity theft) disputes and mixed file disputes.
The Court has reviewed Hollon’s report in its entirety. Hollon’s principal conclusion is that that Defendant “failed to follow reasonable procedures to assure maximum possibly accuracy” and that if Defendant “had reasonable procedures to assure maximum possible accuracy, it would have verified a deceased notation reported by a data furnisher before storing the information on an [individual’s] file.”
Hollon never explains the factual materials on which he bases his conclusion
After a careful review of the parties’ briefing and Hollon’s expert report, the Court excluded Hollon’s testimony as to whether Defendant’s credit accuracy procedures are reasonable. As to the conclusion that it is not reasonable for Defendant to rely on data furnishers, the Court found that Hollon did not articulate concrete factual materials or sources on which he based his conclusion.
At best, Hollon attempted to rely on his prior experience working for Defendant to reach his conclusions. For example, Hollon alleged that while he worked for Defendant, he observed that Defendant prioritized “costs of doing business . . . over doing what was right.”
The Court held that Hollon never explained concretely, however, how such financial incentives were relevant to his conclusion that Defendant failed to follow reasonable procedures to assure maximum possible accuracy.
Hollon also claimed Defendant’s dispute resolution system is “biased,” “cost driven,” and that his conclusion is supported by “[his] own personal experience.” The Court, once again, noted that Hollon never explained the factual materials on which he based his conclusion that it is unreasonable for Defendant to rely on Data Furnishers.
Hollon also opined about the economic difficulties consumers faced due to “misreporting on a credit report.” Further, in a declaration submitted with Plaintiff’s opposition to Defendant’s motion, Hollon attempted to explain why he was qualified to opine on the psychological impact of inaccuracies in a credit report. The Court, however, excluded Hollon’s testimony as to Plaintiff’s non-emotional and emotional damages.
The Court found that Hollon is qualified to speak, in general terms and as found relevant at trial, about the sort of damages that are typically caused by errors on credit reports.
Held
The Court granted in part and denied in part the motion to exclude the testimony of Plaintiff’s expert Douglas A. Hollon.
Key Takeaway:
Hollon’s testified about whether Defendant’s credit accuracy procedures are reasonable. He also opined about the economic difficulties consumers faced due to “misreporting on a credit report.” After a careful review of the parties’ briefing and Hollon’s expert report, the Court excluded Hollon’s testimony as to whether Defendant’s credit accuracy procedures are reasonable.
The Court, however, excluded Hollon’s testimony as to Plaintiff’s non-emotional and emotional damages.
The Court found that Hollon is qualified to speak, in general terms and as found relevant at trial, about the sort of damages that are typically caused by errors on credit reports.
