Category: Expert Challenges

Court Limits Transportation Safety Expert Witness’ Testimony After he Fails to Identify a Safety Rule Violation

A district judge in Pennsylvania limited the Transportation Safety Expert’s testimony about the Defendant’s failure to review safety and compliance data.

Defendant Gateway Freight Systems, Inc., on behalf of Defendant Tempel Steel, retained Defendant Foxway Transportation, Inc. to transport a shipment of Tempel’s product from Tempel’s Canadian location to two locations in Pennsylvania.

On October 20, 2019, Darlene L. Allen was driving her Mitsubishi Mirage on SR-17 in Tioga County, New York, when she hit a deer. At the time of the accident, Allen had her minor children T.G.A. and Z.D.A. as passengers in the rear seats. Volodymyr Frolyak, an employee of Foxway driving a Foxway-owned Freightliner, was traveling behind Allen and collided with her Mitsubishi. As a result of these accidents, Allen’s children, T.G.A. and Z.D.A. tragically lost their lives.

Plaintiff Robert C. Allen, co-administrator of the estates of T.G.A and Z.D.A, disclosed Kenneth Lacey for the first time attempting to support his partial motion for summary judgment concerning claims of direct negligence, including negligent entrustment, against Gateway.

According to the Report, Plaintiff engaged Lacey to specifically determine the
following:

Did Foxway’s programs comply with both Federal and State regulations and were otherwise consistent with the transportation industry safety, operational, and compliance program and practice standards
If the motor carriers’ programs safety, compliance programs were deficient did these failures contribute, or otherwise directly result in this crash
Did Gateway fail to properly screen, entrust and supervise any party moving product on its behalf
Where there were failures by Gateway to properly screen and supervise motor carriers’ and did these failures contribute, or otherwise directly result in this crash

Defendant Gateway filed a motion to exclude Kenneth Lacey’s opinion as per the grounds of Rule 702 and the Daubert standard.

Transportation Safety Expert Witness

Kenneth Lacey is a safety and operational consultant at KJL Safety and Claims Services LLC, Collegeville, PA.

As a safety consultant, his job entails working with transportation companies of varying degrees of sizes having commercial motor vehicles operating on highways within the United States and Canada, to establish and improve their safety programs and overall safety performance.

He had been retained in this case as a transportation safety expert witness to use his education, experience, and expertise with Motor Carriers, Transportation Brokerage, and Transportation Logistics operations and services, his previous experience as the person responsible for negotiating and education, experience, and expertise with the application of the Federal Motor Carrier Safety Regulations (“FMCSRs”), Uniform Commercial Drivers Manual (“UCDM”) and Safe Commercial Motor Vehicle Operations.

Gain a comprehensive understanding of Kenneth Lacey’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

Kenneth Lacey criticized Gateway for neglecting to ensure Foxway’s compliance with safety regulations. He pointed out that Gateway didn’t conduct adequate checks on Foxway’s safety record, including crashes and violations. Despite entrusting Foxway with numerous shipments, Gateway didn’t follow customary vetting procedures. Lacey highlighted that Frolyak, the driver, had previous speeding violations unknown to Gateway. He faulted Gateway for not utilizing monitoring services like Carrier 411, which could have alerted them to to crashes, moving violations, and disqualified driver violations involving Foxway. Lacey recommended Gateway should have implemented a corrective plan or terminated Foxway’s services due to their history of crashes and violations. He concluded that Gateway’s failure to review safety and compliance data directly caused the crash.

A. Qualification

Defendant Gateway argued that Lacey lacked the qualifications to testify on liability, causation, or negligence, especially regarding brokers.

The Court held that Lacey’s background as a safety and operational consultant in both motor carriers and brokerages qualified him. The Court asserted that Lacey’s broader experience in the transportation industry met the Third Circuit’s criteria for expertise. Gateway’s argument was that extensive experience in the transportation industry regarding driver safety, training, and compliance initiatives was insufficient unless Lacey had worked with brokers specifically. Put into the context of the facts of this case, an individual in such a role at Foxway, a motor carrier, would necessarily have experience regarding the practices and customs of Gateway, a broker, in the selection of motor carriers.

B. Reliability

Gateway argued that Lacey, despite possessing requisite qualifications, offered opinions which were unclear, conclusory, speculative, and unreliable, thereby warranting exclusion.

In his report, Lacey refrained from determining whether specific safety rules were violated in causing the crash, a point Gateway emphasized as a flaw in his methodology. Allen countered that Lacey’s expertise in brokerage industry standards justified his testimony, even without identifying statutory violations. The Court acknowledged the relevance of industry practices in determining negligence standards but upheld the requirement to avoid interpreting statutes.

However, the Court shared Gateway’s concern about Lacey’s methodology, considering the disconnect between Lacey’s methodology—which included identifying violations—and his conclusion—which did not mention any such violations—rendered those conclusions unreliable. For instance, Lacey suggested that Foxway “likely had to reduce its insurance due to being denied loads from shippers actually checking Foxway’s safety rating and refusing to use them.” The Court held that there was nothing in Lacey’s report to support this logical leap. Moreover, Lacey did not explain why, even if Gateway had been more closely monitoring Foxway, it would have been inappropriate for Gateway to continue to retain Foxway to deliver shipments. Lacey did not offer any context for any of the prior Foxway violations or accidents.

Ultimately, the Court found that Lacey’s report lacked specificity and failed to demonstrate how Gateway’s actions directly caused the crash.

C. Fit

Gateway argued that Lacey’s opinion should be excluded because it is unduly prejudicial and not tied to the facts of the case.

The Court focused on the only possibly admissible opinion from Lacey, which stated that it is consistent with industry standards for brokers to continually monitor the safety records of motor carriers. The Court found that Lacey’s opinion that it is common practice in the transportation industry to continually monitor safety records using third-party vendors, safety scores, and other sources is plainly relevant, and helpful to a jury tasked with determining what Gateway should have known about Foxway’s safety record.

Held:

The Court granted Gateway’s motion to exclude Kenneth Lacey, except as to his opinion that industry standards imposed upon Gateway a continuing obligation to conduct ongoing “safety and compliance data reviews.”

Key Takeaway:

Defendant’s motion to exclude Lacey was partially granted, allowing his testimony only with regard to the industry standard of ongoing safety and compliance reviews, which was deemed crucial for assessing Gateway’s obligations regarding Foxway’s safety record. Thus, while recognizing Lacey’s qualifications, the Court concluded that his broader assertions lacked the necessary specificity and evidentiary support to be admissible in their entirety

Case Details:

Case Caption:	Allen V. Foxway Transportation, Inc. Et Al
Docket Number:	4:21cv156
Court:	United States District Court, Pennsylvania Middle (Williamsport)
Order Date:	February 1, 2024

July 3, 2024

Testimony of Firearms and Toolmark Expert Witnesses Held to Meet Daubert’s Reliability Requirement

The Grand Jury charged Defendants Ariel Petersen, Ivan James, and John Williams with multiple firearms offenses and other crimes. The charges specified the illegal use of a Glock 40 caliber pistol, an Olympic Arms MFR AR rifle, and a Romarm WASR-10 AK rifle.

Defendants contested the reliability of expert testimony the United States intended to adduce at trial from proffered firearms and toolmark expert witnesses Kevin Rippman and Major Wells. They requested the Court to restrict the experts’ testimony on firearms examination and comparison, arguing that the science of firearm toolmark examination did not meet the reliability standards set by the Supreme Court in Daubert.

The Court granted the Defendants’ request for an evidentiary hearing to gather evidence on the reliability of the proffered opinions. The United States presented testimony from firearms and toolmark expert witnesses Todd Weller, Kevin Rippman, and Major Wells. The United States also introduced multiple studies purporting to show the reliability of firearms toolmark examination.

Firearms and Toolmark Expert Witnesses

Todd Weller

Todd Weller has been certified as a firearm and toolmark examiner by the American Federation of Toolmark Examiners (AFTE) since 2008, and he has received extensive academic and specialized training in this field. Although he did not conduct testing on the firearms in question in this case and was not included on the United States’ trial witness list, Weller effectively explained the theory, practice, and procedures involved in firearms toolmark examination.

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

Kevin Rippman

Kevin Rippman is a Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) firearm examiner based in the ATF lab in Atlanta, Georgia.

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

Major Wells

Major Wells is an ATF firearm and toolmark examiner currently based at the ATF lab in Washington, D.C., but previously based in the ATF Atlanta lab.

Discussion by the Court

Todd Weller’s Testimony

Todd Weller challenged the Defendants’ reliance on the 2008 and 2009 National Research Council (NRC) reports, noting these reports explicitly disclaimed aiming for admissibility of firearm toolmark examination science in trials. He explained the concept of class, subclass, and individual characteristics in firearm examination, emphasizing how each level helps analysts assess evidence. As an examiner progresses through these characteristics, the ability to include or exclude a specific firearm as the source of toolmarks on bullets or shell casings becomes clearer.

He detailed the process of firearms toolmark examination. Weller discussed the accepted standards and theory of firearm toolmark examination as outlined by the AFTE, the certifying body for firearm toolmark examiners. He emphasized that the AFTE requires examiners to establish “sufficient agreement” before declaring a same-source identification, defining significant agreement based on comparisons of individual characteristics.

He elaborated on the testability and error rate of firearm toolmark examination, citing “black box studies” as the most relevant for assessing reliability and accuracy. These studies gauge the process’s ability to yield consistent results using known matches and non-matches. Published in peer-reviewed journals, these studies indicate an error rate consistently below 2%, albeit potentially higher than field work due to deliberate constraints like consecutively manufactured firearms and steel bullets.

Weller highlighted the widespread use of firearm and toolmark identification globally, noting over 200 labs in the United States and numerous others internationally. He underscored that independent accrediting bodies certify all labs, with the AFTE fulfilling this role in the United States.

During cross-examination, Weller acknowledged the absence of definitive, objective criteria for determining identification. Despite numerical methods like Consecutively Matching Striations (CMS), which count matching marks, he stressed that the Pattern Matching method ultimately relies on subjective judgment based on objective criteria like striae patterns.

Kevin Rippman’s Testimony

Kevin Rippman testified that he followed the same procedure outlined by Todd Weller. He effectively explained the process of inspecting marks, comparing known samples with unknown ones against the evidence, and having another ATF examiner independently verify his findings. While aware of the CMS method, like Todd Weller, he employed Pattern Matching to reach conclusions. Pattern Matching is recognized as a valid methodology in firearm toolmark examination. During cross-examination, he acknowledged Pattern Matching involves a subjective element, but maintained that the final subjective determination relied on the objective observations made by the examiner through microscopic analysis of the samples.

Major Wells Testimony

Major Wells examined two firearms in this case: an Olympic Arms MFR AR rifle mentioned in Counts Nine, Twelve, and Thirteen, and a Romarm WASR-10 AK rifle cited in Count Nine. He affirmed he followed the same process outlined by Todd Weller and utilized by Kevin Rippman. Following his analysis, another examiner independently reviewed his work and reached the same conclusion. Wells described the use of a comparison microscope, enabling simultaneous examination of two items (bullets or casings) under identical lighting and magnification conditions.

He stated he employed the CMS method during his examination but did not document the number of matching striae. His conclusions were based on the “standard” or Pattern Matching method. Despite not recording the number of matching striae, another examiner independently replicated his findings. He acknowledged that achieving a “100% match” is not feasible in their field, emphasizing their approach focuses on identifying “sufficient agreement.” He defined this as an evidentiary sample surpassing the similarity of the best-known non-match and demonstrating significant alignment with the best-known match, aligning with the AFTE’s definition.

Court’s Findings

Following an evaluation of witness credibility, a review of submissions from both parties and an examination of the evidence presented during the hearing, it was determined that the United States’ presentation of the science of firearm toolmark examination met Daubert‘s reliability standards:

The witnesses had convincingly demonstrated that firearm toolmark examination science consisted of a testable hypothesis. This hypothesis posited that toolmarks on an item of known origin could be compared to toolmarks on an item of unknown origin to arrive at a conclusion about its provenance.

Firearm toolmark analysis had been subjected to peer review, with the theory reviewed through rigorous studies published in peer-reviewed journals. Individual conclusions in laboratory settings had undergone secondary, independent testing to either corroborate or dispel the original findings.

The error rate identified in academic studies closely mirroring fieldwork had been low, typically ranging between 0% and 2%. Real-world error rates were likely even lower due to intentional challenges placed before examiners during studies and additional safeguards in operational laboratories. Despite being subject to cross-examination, they considered these rates sufficiently low to demonstrate reliability.

Evidence presented by the United States demonstrated that the field of firearm toolmark examination maintained rigorous standards governing testing processes and techniques, overseen and certified by the AFTE.

The widespread use of firearm toolmark examination both domestically and internationally, alongside the general acceptance among professional peers, had underscored its credibility and validity.

The Pattern Matching technique employed by Messrs. Rippman and Wells had been validated through testing as reliable.

Neither the Defendants nor the United States had presented evidence on the non-judicial uses of firearm and toolmark examination, rendering this factor neutral in the assessment.

Held

The Court allowed the testimony of firearms and toolmark expert witnesses Todd Weller, Kevin Rippman, and Major Wells.

Key Takeaway:

The Court allowed the testimony of firearms and toolmark expert witnesses Todd Weller, Kevin Rippman, and Major Wells based on its findings that their scientific reasoning met the reliability standards under Daubert. This decision was supported by the scientific basis, peer review, low error rates, adherence to standards, widespread acceptance, and reliability of specific techniques presented in the case.

Case Details:

Case Caption:	United States of America v. Ivan James, Kai James, Joh Williams, Malachi Benjamin, Jahkiebo Joseph, Ariel Petersen
Docket Number:	3:19-cr-00079
Court Name:	United States District Court, Virgin Islands
Date:	January 16, 2024

July 3, 2024

Vocational Rehabilitation Expert Witness’ Analysis of the Plaintiff’s Earning Potential Rejected

Plaintiff, Alex Mundy, a former graduate student at the University of Wisconsin—Madison, filed this lawsuit against the Board of Regents of the Universities of Wisconsin (the Board of Regents) alleging illegal retaliation in violation of the Rehabilitation Act. Mundy claimed the Board of Regents retaliated against her by refusing to award her a coursework master’s degree because she filed a previous lawsuit alleging Professor Cameron Currie deprived her of a master’s research degree in bacteriology because of her disability in violation of the Rehabilitation Act.

In her first case, Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. Schutz did not update his 2021 report for this case. The Board of Regents moves to exclude his testimony as inadmissible under Federal Rule of Evidence 702.

Vocational Rehabilitation Expert Witness

Kevin Schutz has worked for Professional Rehabilitation Services for over 35
years, where he currently works as a vocational rehabilitation counselor. He also has a master’s degree in rehabilitation psychology.

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

Discussion by the Court

In his report, Schutz opined that Mundy would be able to earn approximately an additional $20,000 per year if she had a master’s degree in bacteriology. Schutz explained that this estimate is based on a comparison of the average pay of life scientists in the Madison labor market to the average pay of public health and social service workers.

He stated that these estimates were based on 2019 data from the Wisconsin Department of Workforce Development, and that, at the time Schutz interviewed Mundy to prepare his report, Mundy was earning $54,000 annually working as an associate project coordinator at a clinic research company, which put her in the middle of the pay range for public health and social service workers. Schutz also opined that Mundy could remediate her lost earning capacity by going back to school to earn the master’s degree, which would reduce her earning by $50,000 to $100,000 over the year or two year that it would take her to complete the degree.

The Court held that there were fundamental problems with how Schutz applied the general method in his report despite there being nothing inherently unreliable about the method that Schutz used to evaluate the earning gap that Mundy suffered without a bacteriology master’s degree.

Schutz concluded that her earning potential without the completed bacteriology degree was $50,000 to $60,000 per year, but with the degree it would have been $70,000 to $80,000 per year, resulting in annual lost earnings of $20,000.

Schutz’s analysis was severely flawed

The Court found several flaws wth Schutz’s analysis. To start, Schutz framed his analysis by citing “Examples of options available to Mundy with a completed Bachelor of Science degree in bacteriology would be positions found in life science and social science environments.” But Mundy was pursing a master’s degree in bacteriology. And she already had a master’s degree in pubic health. So it’s not clear that Schulz had properly identified Mundy’s qualifications and identified the proper comparator positions.

Next it’s not clear what positions Schutz thought would be available to Mundy with her completed bacteriology degree. Schutz provided the “the average pay to life scientists in the Madison labor market,” but he did not explain what positions were included in reaching that average. “Life scientist” could refer to a wide range of jobs, from that of a routine laboratory technician with a technical degree to high-level research requiring an advanced degree. It is impossible to assess whether it is reasonable to compare Mundy’s earning potential with a master’s degree in bacteriology to the average life scientist salary without knowing if the jobs included in that average are ones that Mundy might be able to get.

Schutz’s analysis of Mundy’s earning potential without the bacteriology master’s degree had similar problems. Schutz begins by saying that Mundy’s employment options without the bacteriology degree “would revolve around employment in public health and social service types of environments,” presumably because she already had a master’s degree in public health. But the example salaries that Schutz provided were for a “health education specialist,” “community and social service specialists,” “administrative assistant types of positions,” and “administrative or social/human service types of positions.”

Schutz’s 2024 deposition

Schutz testified that he stood by his original opinion that Mundy has a $20,000 annual earning gap without the bacteriology degree, and he opined that he believes the earning gap will last for the remainder of Mundy’s career.

Schutz’s deposition testimony is that Mundy, over the course of three years of work in her profession, has remediated any impairment in her earning potential. Perhaps Mundy endured some loss of earnings over the course of the last three years, but Schutz provided no opinion on that. Perhaps inflation played a role in the increase in Mundy’s salary, but Shutz provided no opinion on that either. In other words, Schutz’s own testimony earlier in his deposition contradicted his conclusion.

Held

The Court concluded that Schutz’s conclusion that Mundy will endure a permanent impairment of her earning potential of $20,000 per year is a mere conclusion without supporting analysis. The Court excluded the testimony of Kevin Schutz.

Key Takeaway:

Alex Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. The Court found several flaws wth Schutz’s analysis. For instance, Schulz had not properly identified Mundy’s qualifications or the proper comparator positions. Besides, Schutz’s own testimony earlier in his deposition contradicted his conclusion about Mundy’s $20,000 annual earning gap.

Case Details:

Case Caption:	Mundy, Alex V. Board Of Regents For The University Of Wisconsin System
Docket Number:	3:22cv561
Court:	United States District Court for the Western District of Wisconsin
Order Date:	June 26, 2024

July 2, 2024

Mergers & Acquisitions Expert Witness’ Testimony About Due Diligence Deemed Irrelevant

Plaintiffs, ECB USA, Inc. and Atlantic Ventures Corp. accused Savencia and Zausner, together with other persons and entities, of commiting a series of tortious acts, including, but not limited to, looting the assets of Schratter Foods Incorporated (“Schratter”), then fraudulently inducing Plaintiffs into executing an agreement to purchase all of Schratter’s shares (the “Stock Purchase Agreement”).

One of the key issues in this case is whether, prior to Schratter’s sale, Defendants secretly “stripped” Schratter’s Chief Executive Officer (“CEO”) Alain Voss (“Voss”) of certain of his powers and duties as CEO and then “lied” to Plaintiffs’ by holding “Voss out as Schratter’s trusted, knowledgeable, and effective chief, for the purpose of persuading [Plaintiffs’] representatives to accept Voss as a fiduciary and to partner with him to purchase Schratter.”

Defendants hired Alan Lee to analyze the due diligence conducted by Plaintiffs in connection with Plaintiffs’ purchase of Schratter Foods Inc.(“Schratter”)—and to provide opinions related to that due diligence process.

Plaintiffs filed a Daubert motion to exclude Lee’s opinions and testimony because they are not relevant to the action.

In his report, Lee provided three main opinions:

“Due Diligence is a tailored process that varies in scope based on the facts and circumstances of a specific transaction and is designed to identify and mitigate relevant risks to a prudent acquirer.”
“The Plaintiffs’ due diligence of the Schratter acquisition, supported by multiple experienced, independent financial and legal advisors was appropriate and adequate for the circumstances.”
“The Plaintiffs completed the acquisition of Schratter after thoroughly evaluating the financial, business, and commercial risks identified during due diligence and either mitigated or accepted these risks when acquiring Schratter.”

Mergers & Acquisitions Expert Witness

Alan Lee has been advising private-business owners as well as public-corporation senior management for more than 30 years in the areas of M&A, corporate finance, succession planning, monetization of ownership interests. Previously, he was an audit partner and regional managing partner at PwC.

He is a certified public accountant and a member of the Illinois Society of CPAs and the ESOP Association.

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

Discussion by the Court

The Court held that Defendants did very little to explain exactly how are Lee’s opinions said to be relevant to Defendants’ defenses in this regard. Lee’s proffered opinions did not really address that subject matter. Lee’s report did not mention breach of contract claims, nor did it specifically address Defendants’ disclosure (or lack thereof) of the details of Voss’ role or of the June 30 Stock Purchase Agreement.

Instead, the meat of Lee’s opinions are about how the due diligence Plaintiffs conducted “was appropriate and adequate for the circumstances.”

So far as the Court can tell, only one paragraph in Lee’s opinion—paragraph 68—explicitly touches on the subject of the data room in any detail. But even in that paragraph, Lee simply discusses—at a very high level—how Defendants put certain financial statements and Schratter Board documents in the data room, and how the parties’ “[letter of intent regarding the sale] was not a guarantee that every document requested would necessarily be provided within the compressed due diligence window (nor does that usually happen).”

The Court held that Lee’s opinions do not speak to any of the particular documents or facts at issue regarding the breach of contract theory. Nor do they seem intended to be used to do so.

The Court held that Defendants never clearly pointed to certain fraud allegations in the case and then explained why aspects of Lee’s testimony actually speak to one or more elements of those claims (or would otherwise help the jury assess the claims). In other words, Defendants failed to cogently explain how any of this type of due diligence work, or Plaintiffs’ identification of any particular “red flags,” relate to any of the elements of a fraud claim in Florida, or to any particular live allegations of fraud.

Held

The Court granted Plaintiffs’ motion to exclude Lee’s opinions and testimony.

Key Takeaway:

The meat of Lee’s opinions are about how the due diligence Plaintiffs conducted “was appropriate and adequate for the circumstances.” The Court held that Lee’s report did not mention breach of contract claims, nor did it specifically address Defendants’ disclosure (or lack thereof) of the details of Voss’ role or of the June 30 Stock Purchase Agreement.

Please refer to the blog previously published about this article: Corporate Law Expert Witness’ Opinions on Ordinary Corporate Behavior Excluded

Case Details:

Case Caption:	Ecb Usa, Inc. Et Al V. Savencia, S.A. Et Al
Docket Number:	1:19cv731
Court:	United States District Court for the District of Delaware
Order Date:	January 10, 2024

July 1, 2024

Preventive Medicine Expert Witness’ Testimony on the Air Quality Admitted

A district judge in Kentucky found the testimony of preventive medicine expert reliable while ruling on the Plaintiffs’ state law tort claims.

Plaintiffs Mark and Deborah Brackett (the “Bracketts”) and Doug Coomer (“Coomer”) (collectively “Plaintiffs”) own properties in Clementsville, Kentucky. Defendant Columbia Gulf Transmission, LLC own a natural gas compressor station (the “Compressor Station”) adjacent to Plaintiffs’ properties.

Plaintiffs alleged that since early September 2019, the Compressor Station has been emitting intolerable noise like “jet engines taking off” and exhaust odors that make breathing painful and cause headaches, and because of those conditions they have been distressed and unable to enjoy their properties.

Plaintiffs’ state law tort claims are also based on the odors and pollutants allegedly emanating from the Compressor Station. They have disclosed Dr. Erin Haynes (“Dr. Haynes”) as an expert who has analyzed air quality data collected by a monitor inside the Bracketts’ home from April 2022 to October 2022. Defendants sought to exclude Haynes’ testimony based on lack of compliance with Fed. R. Civ. P. 26(a)(2)(B), relevance, and reliability.

Preventive Medicine Expert Witness

Erin N. Haynes, DrPH, MS is the Kurt W. Deuschle Professor of Preventive Medicine and Environmental Health and Chair of the Department of Epidemiology and Environmental Health. She is a community-engaged environmental health scientist who has forged multidisciplinary research teams to investigate community-identified exposure issues. Her research expertise is pediatric manganese exposure but is also working to address community concerns about potential exposures related to oil and gas, hazardous waste incineration, and landfills.

Haynes received a Master of Science in Toxicology from the University of Cincinnati and a Doctorate in Public Health in Environmental Health Science from the University of Michigan School of Public Health.

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

Discussion by the Court

Rule 26

Defendants contended that Haynes’ testimony should be excluded because her report did not include a list of cases in which she has testified in the last four years nor her compensation for this case. Plaintiffs admitted that Haynes’ report did not contain statements about prior testimony or compensation, but they explained that they did not include them because Haynes has not testified in the past four years and she will not be compensated for her testimony in this case.

Plaintiffs explained that they did not disclose that Haynes has not testified in the past four years and that she is not being compensated because there was no need to disclose information that did not exist.

The Court held that this choice was understandable and did not prejudice Defendants.

Relevance

To begin with, Haynes’ report explained that the Bracketts installed an air quality monitor in their home, which summarized the air quality data, listed the detected levels of volatile organic compounds (“VOCs”), and noted which levels “exceeded the level of concern.”

Haynes determined that the VOC levels “would have likely been detected by the human nose/smell” and that they “could also result in headache, dizziness, and eye, nose, and throat irritation.”

Defendants argued that Haynes’ testimony should be excluded because VOCs can be caused by many items, including household products and appliances, so Haynes’ testimony is not helpful to the jury because it does not explain the origin of the VOCs inside the Bracketts’ home. The Court held that Defendants’ argument challenged the weight of Haynes’ testimony rather than its relevance. Haynes’ testimony will explain and analyze the air quality in the Bracketts’ home, which indisputably relates to their pollution and odor claims. The Court held that just because her testimony may not prove other aspects of Plaintiffs’ claims, it does not constitute a valid basis to exclude it as irrelevant.

Reliability

Defendants attacked Haynes’ methodology by noting that she did not visit the Compressor Station or Plaintiffs’ properties, set up the air quality monitor, or collect the data. The Court held that none of these concerns require exclusion.

Moreover, Defendants contended that Haynes’ reliance on the air quality monitor was inappropriate because she did not appear to be familiar with it, whether it is accurate, or whether the Bracketts operated it properly. Haynes’ report, however, explained what the monitor was, how it measured VOCs, and where the Bracketts installed it.

Held

The Court denied Defendants’ motion to exclude Plaintiffs’ Expert Erin Haynes.

Key Takeaway:

Because Haynes’ report adequately explained what the air quality monitor was, how it measured VOCs, and where the Bracketts installed it, the Court found that the expert report was sufficiently reliable. Also, it was relevant as far as the air quality in the Bracketts’ home was concerned.

Case Details:

Case Caption:	Brackett v. Columbia Gulf Transmission, LLC
Docket Number:	1:20cv168
Court:	United States District Court, Kentucky Western
Order Date:	June 27, 2024

June 28, 2024

Civil Rights Expert Witness’ Opinions About Defendant’s Conduct Limited

Plaintiff, Erika Pogorzelska filed this action in August 2019. She alleged in her remaining claims that VanderCook, a school she attended, violated Title IX of the Education Amendments of 1972 (“Title IX”) and the Illinois Civil Rights Remedies Restoration Act by its deliberate indifference to her allegations that she was sexually assaulted and battered by a classmate, former Defendant Eric Ballenger, and subsequently harassed.

Defendant retained Saundra Schuster to testify as an expert on industry standards for Title IX compliance, investigations, and responses.

Plaintiff sought an order barring Schuster from offering the following five opinions that are contained in her Amended Confidential Expert Report: (a) Schuster “cannot see any basis in the record to conclude that [Defendant’s] actions were clearly unreasonable or exposed [Plaintiff] to an ongoing hostile environment on the basis of sex.” (b) “Rather than being discriminated against, it appears from the record that [Plaintiff] was exceptionally well-accommodated and cared for by [Defendant] in ways that met or exceeded industry standards for supportive measures.” (c) Defendant “responded promptly and equitably to allegations of sexual assault made by” Plaintiff. (d) Defendant “responded promptly and diligently to [Plaintiff’s] complaints of violations of the No Contact Directive.” (e) Defendant’s “decision on the evidence was reasonable.”

Plaintiff maintained that Schuster’s opinions about Defendant’s conduct should be barred because they consisted of legal conclusions equivalent to testimony that Defendant acted in compliance with Title IX and they impermissibly tell the jury how to decide the issues.

Civil Rights Expert Witness

Saunie Schuster is a recognized expert in preventive and civil rights law for education, notably in the fields of harassment, discrimination and sexual misconduct and violence, ADA and disability issues and the First Amendment, Schuster has extensive experience and expertise in, and routinely advises clients on, the First Amendment and campus access issues; risk management and liability; behavior intervention and threat assessment; student discipline and campus conduct; intellectual property and employment issues.

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

Discussion by the Court

It should be noted that Plaintiff previously moved to exclude Schuster’s opinions in their entirety under Federal Rule of Evidence 702 and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Although Plaintiff previously objected to most of the opinions she now seeks to exclude, she challenged Schuster’s testimony only generally as consisting of improper legal conclusions and did not raise that ground in relation to the specific statements now at issue.

The Court excluded Schuster’s testimony with respect to a certain section of her amended report but declined to preclude her from testifying entirely.

The parties remained free to raise appropriate objections to specific aspects of expert testimony and proceeded to address in turn the five statements identified by Plaintiff.

The Court held that Schuster’s opinions that there is no basis to conclude that Defendant acted unreasonably or exposed Plaintiff to a hostile environment are obvious conclusions of law inappropriate for expert testimony. It also permitted Schuster to testify that Plaintiff was “exceptionally well-accommodated and cared for,” as long as that opinion is tied to industry standards. But the first portion of the statement (“rather than being discriminated against”) is a legal conclusion that Plaintiff was not discriminated against and is therefore inadmissible.

The Court held that Plaintiff’s motions in limine are denied as to testimony that Defendant responded “promptly” and “diligently.” It, however, added that Schuster, may not testify that Defendant responded “equitably.”

When Schuster expressed two points: one, that Defendant’s decision was “reasonable,” and two, that it comported with industry standards, the Court permitted Schuster to testify as to the latter point, but not the former.

Held

The Court granted in part and denied in part the Plaintiff’s motion in limine to bar the testimony of Defendant’s expert, Saundra Schuster.

Key Takeaway:

The Court allowed Schuster to provide testimony as to whether Defendant’s responses and investigation comported with industry standards and practice on Title IX responses and investigations but not as to whether Defendant violated Title IX or whether Plaintiff has proven the elements of a Title IX claim, including whether Defendant acted unreasonably.

Case Details:

Case Caption:	Pogorzelska V. Vandercook College Of Music
Docket Number:	1:19cv5683
Court:	United States District Court, Illinois Northern
Order Date:	June 26, 2024

June 27, 2024

Testimony of Plant Genetics Expert Witness Based on his own Academic Research Admitted

A district judge in Arizona decided against excluding the testimony of a plant geneticist considering his specialized technical expertise in wheat genetics and breeding.

Plaintiff, Calyxt Inc. is an agricultural company specializing in gene-editing technology for crops like wheat and soybeans. In October 2019, Calyxt planted a genetically engineered high fiber wheat (“HFW”) product in two different fields in Yuma, Arizona (“Field One” and “Field Two,” respectively). Calyxt claims that in 2019, pesticides sprayed aerially on nearby fields drifted onto Calyxt’s two respective fields and destroyed parts of the HFW crops in each field.

Plaintiff alleged two incidents of pesticide drift (collectively, “the Yuma Incident”), one incident affecting Field One and the other affecting Field Two. Field One and Field Two are miles apart. The aerial application near Field One occurred six days prior to the aerial application near Field Two. Moreover, the incidents involve two separate sets of Defendants. The Field One incident involved Amigo Farms, Inc. (“Amigo”), Morris AG Air Southwest (“Morris”), and Jeffrey Nigh, all of whom are no longer parties to this suit. The remaining Defendants—D’Arrigo, Tri-Rotor, Consaul, and Luke—are all allegedly involved with the pesticide drift onto Field Two.

Field Two Defendants’ filed motions to exclude two of Plaintiff’s expert witnesses, Michael J. Giroux and William W. Wilson.

Plant Genetics Expert Witness

Dr. Michael J. Giroux is a plant geneticist and breeder and has a Ph.D. in plant molecular and cellular biology. Currently, he is a professor and department head of the Plant Sciences and Plant Pathology Department at Montana State University.

Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Michael Giroux’s expert testimony.

Agriculture Expert Witness

Dr. William W. Wilson, Ph.D. is a Professor at North Dakota State University in Agribusiness and Applied Economics with periodic sabbaticals at Stanford University. Moreover, he received his PhD in Agricultural Economics from the University of Manitoba in 1980.

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

Discussion by the Court

Field Two Defendants’ Motion to Exclude Dr. Michael J. Giroux

Giroux has specialized technical expertise in wheat genetics and breeding

To begin with, Calyxt retained Giroux to opine on the reasonableness of Calyxt’s actions in developing its HFW product, both before and after it suffered damage from the alleged 2019 drift, and on the agronomic importance of Calyxt’s HFW project.

Field Two Defendants challenged four parts of Giroux’s opinion: (1) that Calyxt’s HFW product is “valuable” and “innovative;” (2) that the Yuma Incident killed Calyxt’s most desirable wheat lines; (3) that Calyxt’s HFW development plan post-Yuma Incident was reasonable; and (4) that Calyxt followed industry standards in developing its HFW product. Field Two Defendants did not challenge the reliability of Giroux’s methods or his application of such methods. Rather, they contended that Giroux is not qualified to opine on the value of Calyxt’s HFW and that Giroux’s remaining opinions are based on insufficient facts and data.

There is no dispute that Giroux has specialized technical expertise in wheat genetics and breeding. However, Field Two Defendants asserted that because Giroux is not an economist, he cannot testify about the “value” of Calyxt’s HFW.

The Court held that Giroux’s opinion on Calyxt’s product is based on his own knowledge, experience, and research in plant genetics and breeding and not, as Field Two Defendants contend, some unfounded understanding of the economy. Giroux noted that starch-based foods with increased resistant starch are associated with a variety of health benefits.

Giroux reviewed case pleadings and discovery materials

Also, Giroux reviewed case pleadings and discovery materials submitted by each party, including written discovery responses, deposition testimony, exhibits, and documents produced in the case. Moreover, these materials detailed, among other things, Calyxt’s HFW genetic selection and breeding process (including the specific gene-edits Calyxt used); Calyxt’s planting strategy (such as what seed lines were planted, how much was planted, and where the lines were planted); the testing and analysis of Calyxt’s HFW; and the phased design of Calyxt’s commercialization plan. Giroux also relied on his own as well as outside academic research and studies to support his findings.

To conclude, the Court found that Giroux’s opinion was based on sufficient facts and data.

Field Two Defendants argued that Giroux’s opinion on the value of Calyxt’s product was based on a speculative assumption that consumers want to eat higher dietary foods. The Court held that Giroux’s report sufficiently supported such an assumption with research and data.

Moreover, Field Two Defendants argued that Giroux did not examine breeding techniques that Calyxt’s competitors use; and that Giroux did not review certain documents related to Calyxt’s development plan post-Yuma Incident. Still, Field Two Defendants failed to persuade the Court that these points demonstrated that Giroux’s opinions were baseless.

Field Two Defendants’ Motion to Exclude Dr. William W. Wilson

Field Two Defendants did not challenge Wilson’s qualifications or credentials. Nor did they challenge his general methodology for calculating damages—using an empirical model to derive the estimated damages using standard net present value analysis.

Rather, Field Two Defendants challenged five assumptions that Wilson made in computing the estimated damages: (1) that the Yuma Incident was the sole cause of the one-year delay in Calyxt’s commercialization of its HFW; (2) that HFW will comprise 45% of the domestic wheat market by 2028; (3) that 2022 is the appropriate start date for the logistics market adoption curve model; (4) that Calyxt’s HFW product would capture one-third of the HFW market share; and (5) the royalty fee for Calyxt’s HFW product.

To begin with, Field Two Defendants’ asserted that Wilson failed to consider other potential setbacks that could have caused the one-year delay in commercialization and this failure was fatal to the reliability of Wilson’s opinion. Whether other potential setbacks could have caused the one-year delay is an issue related to causation. The Court held that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages.

As to the remaining four assumptions that Field Two Defendants challenged, the Court held that any criticisms go to the weight of Wilson’s opinion, not the admissibility. To conclude, although other assumptions could have been made, this does not render Wilson’s opinion so fundamentally flawed that it could be of no assistance to the jury on the issue of damages.

Held

To sum it up, the Court denied the Field Two Defendants’ motions to exclude Michael Giroux and William Wilson.

Key Takeaways:

First, as a plant geneticist, the Court held that Giroux was qualified to opine about the import of developing higher-fiber wheat crops. Contrary to Field Two Defendants’ assertion, Giroux need not be a trained economist to be sufficiently qualified to understand and opine about the wheat industry and to conclude that higher-fiber foods are valuable products.

Second, the Court also found that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages because it is perfectly permissible for an expert to assume liability (of which causation is an element) and simply focus on the issue of damages.

Case Details:

Case Caption:	Calyxt Incorporated V. Morris Ag Air & Sons Incorporated Et Al
Docket Number:	2:20cv1221
Court:	United States District Court, Arizona
Order Date:	May 23, 2024

June 26, 2024

Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

A district judge in California admitted the testimony of an industrial hygienist despite the legitimacy of her method being attacked.

Plaintiffs, former employees of Defendant, Bay Area Rapid Transit District (“BART”) brought First Amendment, Title VII, and FEHA claims against BART after losing their jobs due to their refusal to comply with BART’s COVID-19 vaccine mandate.

BART disclosed, inter alia, the expert report of Nancy McClellan, an industrial hygienist. The McClellan report concluded, based on the above, that “BART worksites were moderate to high in their COVID-19 transmission risk, warranting a vaccine mandate [and the expectation of] 100% compliance,” and that “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct according to the classic hierarchy of controls.”

Plaintiffs filed a Daubert motion seeking to exclude, or in the alternative limit, the testimony of McClellan.

Industrial Hygiene Expert Witness

Nancy McClellan holds a B.S. in Medical Technology from Michigan State University and a Master of Public Health with a focus on Industrial Hygiene from the University of Michigan. She has worked as an industrial hygienist for some 25 years and is certified by the American Board of Industrial Hygiene. She has served as the Chair of the American Industrial Hygiene Association, among other professional organizations, and currently serves on its Executive Board of Directors. McClellan has worked as an industrial hygiene consultant or testifying expert in several industries, including car manufacturing, pharmaceuticals, ordinance storage and testing, agriculture, and others. Expert McClellan has also worked on COVID-19. She provided guidance on controls for COVID-19 transmission in airports and other facilities, as well as the efficacy of air filtration systems on airplanes.

Discover more cases with Nancy McClellan as an expert witness by ordering her comprehensive Expert Witness Profile report.

Discussion by the Court

The Court held that the McClellan report was relevant to issues central to BART’s burden under both Title VII and FEHA. To meet its burden under Title VII, BART must show that accommodating unvaccinated employees would have imposed an undue hardship on BART.

The McClellan report ultimately concluded that engineering controls, such as vaccination, constituted the best feasible controls during the pandemic and that, in light of her worksite risk assessment, “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct.”

The Court also held the contents of both the McClellan report and the sources cited therein suggest that the methods underpinning McClellan’s analysis — namely the hierarchy of controls and worksite risk assessment — are common to the field of industrial hygiene. In other words, McClellan’s testimony was based on sufficient facts and data.

McClellan is not an Expert in a Cognizable Field

When Plaintiffs argued that McClellan is not an expert in a cognizable field: she is, instead, an “all-purpose expert” “market[ed] . . . in many divergent areas loosely categorized as industrial health,” the Court held that Plaintiffs’ characterization of McClellan’s experience omitted key details. McClellan had significant prior experience with COVID-19 and in any event, Plaintiffs’ assertion that industrial hygienists are so finely specialized as to require a “transit industrial hygienist” as opposed to an “ordinance testing industrial hygienist” was unsupported.

The Legitimacy of McClellan’s Method was Questioned

Plaintiffs attacked the legitimacy of McClellan’s method: ” McClellan claims that . . . the hierarchy of controls, is the same regardless of whether pickles are being made, bombs are being blown up, automotive parts [are] being made or pharmaceuticals [are] being manufactured. . . . This proves too much.”

The Court held that the hierarchy of controls is “an ingrained part of OSHA’s regulatory framework” for air contaminants in the workplace, and has been codified in Title 29’s Occupational Safety and Health Standards. Henceforth, McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” is supported.

McClellan Lacked Firsthand Knowledge

Plaintiffs advanced a number of arguments attacking McClellan’s “lack of firsthand knowledge.” The Court held that an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Moreover, Plaintiffs’ suggestion that McClellan should have contacted each Individual Plaintiff prior to preparing her report cuts against the norms of expert practice.

Held

The Court denied Plaintiffs’ motion to exclude Defendant’s expert Nancy McClellan.

Key Takeaway:

When Plaintiffs contended that McClellan lacked expertise in COVID-19, vaccines, or transit agencies, the Court held that there is no requirement that an expert be a specialist in a given field.

Also, the Court deemed McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” fully supported. According to the Court, Plaintiffs have identified various grounds for “vigorous cross-examination,” not exclusion.

Case Details:

Case Caption:	Chavez Et Al V. San Francisco Bay Area Rapid Transit District
Docket Number:	3:22cv6119
Court:	United States District Court, California Northern
Order Date:	June 21, 2024

June 25, 2024

Court refuses to exclude expert testimony on the application of local zoning regulations

In 2014, Plaintiffs asked Defendant to rezone a parcel of land from Agricultural (“AG-2”) to Community Facilities Planned Development (“CFPD”). They needed the rezoning to build a 72-bed residential substance abuse treatment center and detoxification facility. Plaintiffs were initially successful. Defendant’s staff and hearing examiner recommended rezoning because the facility was compatible with the surrounding area’s mixed-use character. But the success was short-lived.

The Lee County Board of Commissioners unanimously voted against the rezoning at a public hearing on August 5, 2015.

Plaintiffs disputed why their application failed. According to them, the Board rejected the rezoning because of community opposition to the facility.

Plaintiffs pursued multiple avenues to get the zoning approval. On August 1, 2019, they filed this Americans with Disabilities Act (“ADA”) suit seeking monetary damages, declaratory relief, and injunction relief. Plaintiffs have alleged that Defendant (1) intentionally discriminated against them and their proposed patients when it denied the rezoning application, and (2) did not provide a reasonable accommodation.

Defendant, Lee County, pursuant to Federal Rule of Evidence 702 (“Rule 702”), sought to exclude the improper expert opinions of Plaintiffs’ designated expert witnesses, Veronica Martin (“Martin”) and Mary Magno Mouracade, M.D. (“Mouracade”).

Project Management Expert Witness

Veronica Martin is a Senior Planner/Project Manager with 17 years’ experience at TDM Consulting, a civil engineering and planning firm. She has testified as an expert on planning matters more than 40 times.

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

Internal Medicine Expert Witness

Mary Magno Mouracade is a medical doctor and is board certified in internal medicine, nephrology, and integrated medicine, and is board-eligible for certification in addiction medicine.

She is the Chief Medical Officer for Kimberly Regenesis in Ft. Myers, Florida.

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

Discussion by the Court

First, Defendant maintained that neither Martin nor Mouracade had any specialized knowledge to help the Court understand the evidence or determine a fact. Second, Defendant claimed that Martin will usurp the Court’s role by stating legal conclusions on reasonable accommodations and the application of local zoning regulations. Third, both expert opinions are based on flawed methods and are not based on facts or data.

The Eleventh Circuit has recognized that the barriers to opinion testimony are more relaxed in a bench trial where the judge is serving as factfinder and the Court is not concerned about “dumping a barrage of questionable scientific evidence on a jury.” The Court held that Defendant’s concerns about Plaintiffs’ experts are more appropriately discussed at trial when all the facts can be considered.

If any shortcomings about an expert’s qualifications arise, or part of any expert’s testimony seems unhelpful or unreliable, Defendant may present its arguments through “vigorous cross examination and the presentation of contrary evidence.”

Held

The Court denied Defendant’s motion in limine to exclude the testimony of Plaintiff’s designated expert witnesses, Veronica Martin and Mary Magno Mouracade.

Key Takeaway:

The Court, sitting as trier of fact, is in the best position to distinguish between persuasive and insufficient expert evidence at trial.

In Gibbs V. Gibbs, 210 F.3d 491 (5th Cir. 2000), it was held that most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.

Case Details:

Case Caption:	Kimberly Regenesis, Llc, Et Al V. Lee County, A Florida Political Subdivision
Docket Number:	2:19cv538
Court:	United States District Court, Florida Middle
Order Date:	June 24, 2024

June 25, 2024

Retirement Plan Expert Witness’ Recordkeeping Fees Calculation Rejected

A district judge in Pennsylvania refused to admit the Retirement Plan Expert’s opinions on “excessive” recordkeeping fees being charged.

Plaintiff, John McCauley accused PNC Financial Services Group and a Committee appointed to oversee the administration of PNC’s 401(k) Plan of breaching their fiduciary duties under ERISA by allowing the Plan to pay “excessive” fees to the Plan’s recordkeeper, Alight.

McCauley sought to introduce Ty Minnich as an expert witness who would provide opinions on the following topics: (1) whether Alight charged excessive recordkeeping and administrative fees; (2) what the reasonable market rate for the Plan’s services would be; and (3) the amount of Plaintiffs’ damages.

PNC sought to exclude Minnich’s expert testimony, arguing that it was not reliable because his opinion was based solely on his experience “without [using] any reproduceable or traceable process.”

Retirement Plan Expert Witness

Ty Minnich has 30 years of experience as a financial services professional, during which he specialized in 401(k) and 403(b) retirement plans and the applicable fiduciary duties. For the past 15 years, he has been responsible for overseeing and conducting requests for proposals (“RFPs”) and pricing processes in the industry.

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

Discussion by the Court

Minnich’s Opinion on the Reasonable Market Rate

Minnich asserted that he based his expert opinion on his industry experience and three pertinent factors: participant count, the services provided, and any ancillary revenue. He maintained that the first factor was the most important, explaining that “[w]hen the number of participants increase, the necessary recordkeeping fees would exponentially decline.”

He further noted that in his industry experience, recordkeepers often create a pricing curve based on participant count and per person fees to determine the reasonable market rate. Minnich, however, did not create a pricing curve in this case.

He opined that the Plan received no services out of the ordinary that would have contributed to an increased price. Minnich also explained that an affiliate of the Plan’s recordkeeper received over $2.2 million in direct compensation in 2020.

He noted that this additional revenue stream meant that the recordkeeper “would likely have provided [] services to the Plan for substantially less throughout the Class Period had the Plan fiduciaries negotiated to achieve the reasonable market rate.”

Minnich, however, did not explain whether the recordkeeper received additional revenue in years other than 2020, and by how much exactly this compensation would have decreased the per person fees paid.

The Court held that Minnich’s opinions were based on his subjective belief and experience and, therefore, he has not demonstrated that it is more likely than not that his testimony is the product of reliable principles and methods. For instance, Minnich did not create a pricing curve—despite indicating this is the industry norm—nor could he point to any other reliable methodology or scientific procedure he used to calculate his reasonable fees.

Minnich’s Opinion that PNC could have negotiated lower recordkeeping fees

Minnich’s Report also pointed to four other retirement plans that he believed were comparable to the Plan and demonstrated that PNC “could have negotiated far lower recordkeeping fees.”

The Court found, however, that these four comparator plans did not salvage the reliability of Minnich’s opinion.

Minnich’s Opinion as to the Amount of Damages

Minnich further opined that, based on his reasonable fee calculations, the amount of damages in this case was $25,122,422. But because Minnich’s reasonable fee calculation was based on an unreliable methodology, the Court found that his opinion as to the amount of damages was also unreliable and should be excluded.

In addition to the motion to exclude Minnich’s testimony, PNC also filed a motion for summary judgment on McCauley’s claims. The Court also granted PNC’s motion for summary judgment.

Held

The Court denied the motion for summary judgment and motion to exclude the testimony of Ty Minnich, entering the final judgment in favor of PNC Financial Services Group, Inc.

Key Takeaway:

Minnich not only failed to identify a reliable methodology or process he used to calculate the reasonable market fee, he also chose his comparator plans with fees that supported his calculation. The Court found that Minnich’s comparator plans did not support the reliability of his methodology.

Case Details:

Case Caption:	John Mccauley V. PNC Financial Services Group, Inc. Et Al
Docket Number:	2:20cv1493
Court:	United States District Court for the Western District of Pennsylvania
Order Date:	June 21, 2024

June 24, 2024