Expert Witness Profiler

Category: Expert Challenges

  • Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Roger and Reuki Schutt (the “Schutts”) are the owners of a house located at Canton, Massachusetts. On April 24, 2019, the house sustained water damage resulting in the payment of insurance benefits by Safety to the Schutts. The water damage was determined to have originated from a leak in a water filter system manufactured and sold by EcoWater under the tradename Northstar.

    On October 23, 2019, the filter system was examined at a joint inspection by experts for both EcoWater and Safety. The sump was observed to have a “throughwall crack extending the entire length of the housing,” as well as “additional cracks.” EcoWater did not use annealing in the production process for its clear sumps. Post-mold annealing is the process of cooling a mold-injected polymer after manufacture.

    On April 4, 2022, Plaintiff Safety Insurance Company (“Safety”) filed suit in Massachusetts Superior Court against Defendant EcoWater Systems, LLC (“EcoWater”), asserting its right of subrogation arising from water damage to the property of Roger and Reuki Schutt. 

     Safety disclosed two experts in support of its case: (1) “appliance failure inspector” expert Thomas Zarek and (2) materials science expert Timothy Kenney. 

    Zarek opined that the product failed prematurely at the loss location and caused the water damage while Kenney concluded that it was common practice to post-mold anneal these thick wall parts to reduce these residual stresses and improve the performance of the part.

    EcoWater filed motions in limine to exclude the opinions and testimony of Thomas Zarek and Timothy Kenney under Rule 702.

    Appliances Expert Witness

    Thomas Zarek has been employed as an appliance failure inspector since 1997. Regarding his areas of expertise, Zarek holds himself out as a warnings expert, a certified fire and explosion investigator, a certified vehicle fire investigator, and a licensed oil heating inspector and installer. Also, he has taken “a number of courses on appliance failure analysis and on HVAC systems installation,” covering a variety of appliances and materials, including polymers and metals.

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

    Materials Science Expert Witness

    Timothy Kenney’s qualifications and experience include a degree in geology, undergraduate engineering courses in materials science, graduate courses in metallurgy, ceramics, and selection of steels, and various publications. Besides, he serves as the Laboratory Director of New Hampshire Materials Laboratory.

    NHML provides consulting and technical services in chemical, materials, mechanical design, and industrial processing.

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

    Discussion by the Court

    Thomas Zarek

    To begin with, Safety’s complaint claimed negligence and breach of warranty based solely on defective manufacture of the filter system. Therefore, the Court held that Zarek’s opinions as they relate to other theories of negligence, such as failure to reasonably warn or defective design, are irrelevant since any expert testimony must therefore be limited to establishing the manufacturing defect claim.

    Zarek testified that his conclusions regarding the filter system’s allegedly premature failure are based, at least in part, on his review of EcoWater’s Test ID 4499, which tested canisters similar to the subject sump through a cycle test and hydrostatic test. Yet, the Court found that Zarek himself admitted that he has never performed a cycle test himself for any kind of product and that he does not know what cycle testing is intended to evaluate. As for the hydrostatic testing, Zarek likewise testified that he has never conducted a hydrostatic test on a polymer product or on the styrene acrylonitrile (“SAN”) material used in the subject product, and that the purpose of a hydrostatic test is not to test to failure.

    The Court held that Zarek’s lack of relevant experience and knowledge pertaining to the claims alleged makes clear that he is not qualified to offer expert testimony here.

    Second, the Court held that Zarek’s opinions reflected little to no expert analysis or review done by Zarek. Several of his proffered opinions merely repeated Kenney’s conclusions, without adding anything more. He stated that he personally did no analysis of the data from the testing performed by Kenney.

    Timothy Kenney

    In opining that post-mold annealing is a “general industry practice,” Kenney exclusively relied on the ASM International Volume 2 of the Engineered Materials Handbook. The Court held that Kenney himself undermined the relevance of this guidance where he testified that there is a difference between thick-section and heavy wall parts, that the subject sump is a thick-section part, and that the ASM handbook only recommends post-mold annealing for heavy-wall parts and not thick-section parts.

    Also, he conceded that he did not conduct any testing to evaluate the effects of post-mold annealing on the product and whether such annealing would have alleviated residual stress, nor has he seen any studies or test reports to that effect.

    Moreover, EcoWater also filed a motion for summary judgment seeking to dismiss the case entirely. The Court held that where Safety has no expert support for its claims—which, again, arise exclusively from allegations of negligent manufacture—Safety’s claims cannot survive summary judgment.

    Held

    To sum it up, the Court granted EcoWater’s motions in limine to exclude Plaintiff’s experts, Thomas Zarek and Timothy Kenney as well as his motion for summary judgment.

    Key Takeaway:

    In conclusion, the Court held that many of Zarek’s opinions reflected little to no expert analysis or review done by Zarek. While Zarek’s opinions were irrelevant to Safety’s claims regarding negligent manufacture of the filter system, Kenney had no basis to opine as to whether post-mold annealing would have prevented the subject product from failing here, after fourteen years of use.

    Case Details:

    Case Caption: Safety Insurance Company Et Al V. Ecowater Systems, Llc
    Docket Number: 1:22cv10887
    Court: United States District Court, Massachusetts
    Order Date: May 17, 2024
  • Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    This lawsuit arises from a minor automobile accident that occurred at approximately 1:30 p.m. on October 9, 2020, in Española, New Mexico. Plaintiff Charles Hartung (“Plaintiff”) was a passenger in a four-door GMC pickup operated by his friend Ralph Andrew, Sr. Plaintiff.

    Gommert, a salesman employed by McLane, entered the road from an adjacent gas station and did not see the pickup as it approached. The front end of Gommert’s company car collided with the rear wheel on the passenger side of the pickup.

    Plaintiff disclosed Brian M. Shelley, M.D., and Mark K. Crawford, M.D. (collectively, the “Retained Experts”), as unified, retained experts. They testified that “the treatment [Plaintiff] received was reasonable, necessary, and appropriate; and that [Plaintiff’s] current conditions related to the motor vehicle collision are closed head injury and cognitive difficulties (by report), right shoulder pain and motion deficits, low back pain with right lower extremity radiation (aggravated), SI joint injury, headaches, anxiety (aggravated) and depression (aggravated).”

    In response, Defendants argued that the Court should exclude testimony from these experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), because some facts supporting their opinions are undermined by medical records which the experts did not review before rendering their opinions.

    Family Medicine Expert Witness

    Brian M. Shelley MD is board-certified in family medicine and serves as an Attending Physician at the University of New Mexico Pain Consultation and Treatment Center. Additionally, at UNM, Dr. Shelley is Professor of Family and Community Medicine and trains medical residents in chronic pain management. Moreover, Dr. Shelley has published several peer-reviewed articles about innovative approaches to chronic pain education and co-created the Advanced Diplomate credential for the American Academy of Pain Management. Also, Dr. Shelley is the Director of Albuquerque Independent Medical Services LLC and is currently certified by the American Board of Independent Medical Examiners.

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

    Orthopedic Surgery Expert Witness

    Mark K. Crawford MD is a retired Fellowship Trained Orthopedic Spine Surgeon. He previously worked at UNM, Optum Health, and New Mexico Orthopaedics in Albuquerque, NM. Moreover, he is certified by the American Board of Independent Medical Examiners and has also served on many IME panels.

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

    Discussion by the Court

    To begin with, among the expert testimony Defendants sought to exclude is testimony related to closed head injuries and cognitive difficulties. In his response brief, Plaintiff represented that his experts are not offering any opinions related to a head injury or cognitive difficulties. Thus, Defendants’ motion to exclude expert testimony related to head injury or cognitive difficulties is granted.

    Experts were not furnished with all Plaintiff’s pre-accident medical records and imaging studies

    Below is a summary of the inaccuracies Defendants contend exist in the expert reports, along with Plaintiff’s responses:

    • First, Defendants noted that Plaintiff told the experts he takes ibuprofen for pain and that his wife would not let him take opioid medications, and Plaintiff said he was nervous about them as well. Yet, during his deposition, Plaintiff testified under oath that he was a chronic user of hydrocodone. Plaintiff responded that he was prescribed opioid pain medications in the past. At the time of the IME, however, Plaintiff was no longer taking opioids. Accordingly, when asked about opioids at the IME, Plaintiff’s statements were accurate.
    • Second, Defendants argued that over a year after the subject accident, Maximo Santiago M.D. reviewed and referenced a pre-accident MRI and observed that the pre-accident and post-accident findings appear similar. The experts did not have Dr. Santiago’s report. Plaintiff responded that the experts reviewed an MRI taken approximately two months after the accident, which provided a comparison to MRIs taken prior to the accident.
    • Third, Defendants noted that Plaintiff reported to the experts that he had not experienced any sexual dysfunction before the accident. Yet Plaintiff received treatment for erectile disfunction and low testosterone in November 2017. Plaintiff responded that their experts are not opining on sexual dysfunction.
    • Finally, Defendants argued that Plaintiff told the experts that he had not suffered from lower extremity pain, numbness, or weakness before the accident. However, Plaintiff’s neurologist and pain management doctor, Dr. Kandel, whose records are absent from the experts’ chronology, documented chronic pain in Plaintiff’s legs, weakness, numbness, and difficulty sleeping in May 2019.

    The primary focus of the admissibility question is on the data the expert had

    Situations might arise in which an expert’s failure to consider certain information makes the expert’s opinion unreliable.

    However, the primary focus of the admissibility question is on the data the expert had, not the data he did not have. Moreover, even if Defendants mounted a legally sufficient attack on the reliability of the data under Federal Rule of Evidence 702(b), the Court found that Plaintiff has shown the experts had sufficiently reliable data when forming their opinions.

    Held

    In conclusion, the Court granted in part Defendants’ motion to exclude the testimony of Brian M. Shelley And Mark K. Crawford. The Court denied the remainder of the Defendants’ motion.

    Key Takeaway:

    In short, the circumstances of this case did not present a situation where the underlying data on which experts found their opinions was so unreliable that the experts’ opinions should be excluded. Moreover, the Court held that assertions that experts failed to consider all available data or founded their opinions on unreliable data are common fodder for cross-examination.

    Case Details:

    Case Caption: Hartung V. Gommert Et Al
    Docket Number: 1:23cv569
    Court: United States District Court, New Mexico
    Order Date: June 18, 2024
  • Psychology Expert Witness’ Testimony about Facilitated Communication Lacks Sufficient Evidentiary Grounding

    Psychology Expert Witness’ Testimony about Facilitated Communication Lacks Sufficient Evidentiary Grounding

    A district judge in Virginia refused to admit the testimony of a psychology expert even though he provided the Court with multiple experimental means to test the validity of the communications in question.

    Plaintiff, Kevin Plantan filed a lawsuit arising from his belief that he was wrongfully accused of sexually molesting his minor daughter S.P., an autistic child, and that the allegations made by the child were not really S.P’s words, but rather, that they came about via a method of communication that is not reliable.

    Plaintiff claimed Wendy Atkinson, an occupational therapist, was hired by defendant Kelly Smith, his ex-wife and mother of S.P., to “begin using a form of facilitated communication with S.P.” He asserts that during the course of S.P.’s interactions with, inter alia, Defendant Wendy Atkinson, S.P. disclosed that the Plaintiff had sexually abused her when she was six and nine years old.

    Plaintiff designated Dr. James Todd (“Dr. Todd”) who opined that Ms. Atkinson “has recklessly disregarded the clear and overwhelming conclusions of the scientific community that facilitated communication is ineffective and dangerous.”

    The Defendants filed a motion to exclude Todd’s opinions, arguing that “they are inadmissible for numerous reasons,” including that “the opinions offered are not only an improper attack on the credibility of Atkinson” but also  “venture into territory that is off limits to experts.”

    Psychology Expert Witness

    James Todd is a “professor of Psychology at Eastern Michigan University” and teaches courses on “experimental methodology and basic behavioral principles, including  stimulus control and prompting.” Todd earned a Ph.D. in Developmental and Child Psychology and a Master’s Degree in Human Development. His training and experience include “severe, multiple handicaps, including autism.” He has “formally studied facilitated communication and variants of it since about 1991,” including “attending several trainings and didactic workshops and information sessions about facilitated communication given by top authorities in the field.” Todd has “authored or co-authored several articles and chapters” on facilitated communication.

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

    Discussion by the Court

    Defendants first argued that Todd is not qualified because “he does not practice in the same or similar” field of occupational therapy, namely habilitation and rehabilitation, as does Atkinson. 

    Plantan countered that Todd need not be an expert in occupational therapy “to testify that the technique that the Defendants employed . . . is ‘facilitated communication’ and that such method is an illegitimate means by which communication may be assessed for its substantive value.”

    Even though Todd presented ample qualification to testify, as a general matter, about what facilitated communication is and how to design an experiment to screen for extraneous variables to determine the validity of the results, Defendants contended that his testimony did not satisfy other aspects of Rule 702, including that which prevents an expert from rendering a legal opinion.

    Todd’s Specialized Knowledge Could Assist the Trier of Fact But is Not Presented in a Manner the Jury Can Hear

    Despite Todd’s extensive experience in facilitated communication and in measuring the efficacy of various behavioral interventions—especially focused on individuals with autism spectrum disorder, the Court held that Todd’s report consisted of statements that constituted legal conclusions and, rather than helping the trier of fact understand the evidence, risked supplanting the province of the jury.

    Todd stated that “Atkinson has recklessly disregarded the clear and overwhelming conclusions of the scientific community.” The Court held that it is unclear whether Todd intended to introduce recklessness as “a legal standard or . . . a legal conclusion” but in either case, this testimony is inadmissible.

    Todd’s Opinion Is Not Based on Sufficient Facts or Data

    First, Todd did not review the Cornerstone Therapy records regarding Ms. Atkinson’s occupational therapy services with S.P.

    Second, Defendants stated that Todd was unaware that S.P. had testified twice in Plantan’s criminal proceedings and did so on at least one occasion with typing assistance provided by an individual wearing headphones who could not hear the questions being asked. Certainly Todd should have considered such events as grounding before he concluded that any typing did not represent S.P.’s own words.

    Third, Plaintiff’s counsel acknowledged at oral argument that Todd did not review the depositions of any of the multiple other individuals who assisted S.P. with typing.

    Because he read only one day of Atkinson’s two days of deposition testimony and an unspecified “letter,” Todd made assumptions “about the position of S.P.’s fingers on the keyboard, about who put pressure on the keys, about hand positions generally, and about who typed the words at issue,” without sufficient evidentiary grounding.

    The Court held that in the absence of actual observation of the typing that he characterizes as facilitated communication, Todd forms his assumptions from his conclusion that facilitated communication is occurring. In other words, Todd’s speculation—derived from his conclusory, albeit expert, observations about the apparent fallacy underlying facilitated communication—are inadmissible with respect to S.P.’s treatment here.

    Todd’s Opinion Is Not the Product of Reliable Principles and Methods

    Todd rightly observed that the lack of any testing to verify the true author of the communications raises concern. Todd’s report suggested that if he had tested the validity of S.P.’s communications, that test would reveal that S.P. was not the true author. Although Todd articulated principles and methods—such as single-blind and double-blind tests—that may constitute reliable methods by which to discern whether Atkinson engaged in facilitated communication, he failed to actually conduct such tests, “leaving those matters open to speculation.” 

    Todd’s Opinions Do Not Reflect a Reliable Application of the Principles and Methods to the Facts of This Case

    Defendants argued that Todd’s “opinions lack ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’, and that “he fails to explain what facts he considered in forming his opinions.”

    Plantan responded by asserting that Todd reliably applied his principles of review as they relate to identifying specific measures used by Atkinson with S.P. and scrutinized those measures according to academic studies.

    The Court found that Todd’s opinion did not reflect a reliable application of those principles and methods to the facts of this case. 

    Analysis Under Federal Rule of Civil Procedure 26 Would Be Duplicative

    Defendants asserted that “Todd’s report is deficient under Rule 26” because “Todd provides only a general description of facilitated communication” and “fails to provide any specific information from which the Court could determine what facts or data he considered in arriving at his opinion.”

    The Court “has determined that Rule 702, rather than Rule 37(c), is the proper vehicle to address the deficiencies of Todd.” 

    Having already found in favor of the Defendants under Rule 702 and Daubert, the Court declined to undertake a Rule 26 analysis. 

    Held

    The Court granted the Defendant’s motion to exclude the opinions of James Todd.

    Key Takeaway:

    Even though Plantan conceded that the reliability of Todd’s testimony could have been reinforced by procedures not undertaken in this case, such as video observation of S.P.’s typing, in-person observation of S.P.’s typing, or experimental tests of the reliability of S.P.’s typing, the Court found that Todd’s testimony was not the product of reliable principles and methods, but rather of ipse dixit based on his experience and insufficient case-specific facts and data. Todd identified multiple experimental means to test the validity of the communications, but he deployed none of them to verify the authorship of S.P.’s typed communications. 

    Case Details:

    Case Caption: Plantan V. Smith Et Al
    Docket Number: 3:22cv407
    Court: United States District Court, Virginia Eastern
    Order Date: June 18, 2024
  • Correctional Healthcare Expert Witness’ Testimony on the Risks of MOUD in Correctional Settings Excluded

    Correctional Healthcare Expert Witness’ Testimony on the Risks of MOUD in Correctional Settings Excluded

    A district judge in West Virginia barred the Correctional Healthcare Expert from opining that there was no evidence of medical malpractice, deliberate indifference, discrimination, or negligence.

    Joseph Taylor has struggled with opioid addiction for nearly half his life. He is diagnosed with Opioid Use Disorder (“OUD”) and is treating this chronic brain disease with Medications for Opioid Use Disorder (“MOUD”).

    Wexford and the West Virginia Division of Corrections and Rehabilitation (“WVDCR”) denied Taylor access to MOUD while he was detained from January through March at Central Regional Jail. Plaintiff alleged that Defendants had a policy of forced withdrawal from MOUD, which was discriminatory and evinced deliberate indifference to his clear and acute need for MOUD while detained at CRJ.

    Wexford provided an expert report from Dr. Grady Bazzel who testified that the Defendants met the standard of care in their treatment of Taylor. Taylor filed a motion to exclude the testimony of Bazzel as an expert in addiction medicine.

    Correctional Healthcare Expert Witness

    Dr. Grady Judson Bazzel is currently the Patient Safety Officer and Medical Director of Care Management for Wellpath, a company that provides correctional healthcare throughout the United States. He has worked in corrections since 2005 and is licensed to practice medicine in multiple states. In his current role, he investigates patient deaths and other care errors and helps improve quality of care across Wellpath-managed sites. He has familiarity with the Bureau of Prisons (BOP) Clinical Guidelines for the Diagnosis, Evaluation, and Treatment of Opioid Use Disorder (OUD), although he did not review them specifically while compiling his report. 

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

    Discussion by the Court

    Bazzel explained that there are risks to the use of MOUD in correctional settings that are not present in the outside world, including the risk that other inmates will target a patient to obtain the medication.

    Bazzel stated that “proper patient selection is the key to a successful Medication Assisted Treatment (MAT) program.” He stated that the “psychological triggers for relapse are less present and the access to substances of abuse is greatly diminished,” during incarceration, reducing the need for treatment. Bazzel suggested that gaps in Taylor’s treatment record, both before and after his period of incarceration, showed a “pattern of spotty follow-up for this medication that he claims to need so badly.”

    He offered the opinion that Taylor was not a good candidate for MAT while incarcerated because of his lack of compliance with Clinical Opiate Withdrawal Scale (COWS) assessments, his urine drug screen results, and his gaps in treatment before and after his incarceration.  He further opined that “the medical staff at CRJ were under no obligation to continue [buprenorphine] until such time that it became clear that it was needed. This need never presented itself,” as demonstrated by “the fact that his first drug screen post-incarceration was negative for illicit drugs.”

    Bazzel lacks experience and specialized training related to OUD, MOUD, and opioid withdrawal

    Taylor conteded that Bazzel lacked the necessary qualifications as per Rule 702. He noted that Bazzel has “never conducted an OUD screening or a Rapid Opioid Dependence Screen and is not sure if he has ever reviewed such a test.”

    Plaintiff added that Bazzel’s opinions were contradicted in key areas by the Federal Bureau of Prisons (“BOP”) Guidelines, a resource that he stated he was familiar with and considered authoritative.

    Absent full exclusion, the Plaintiff argued that several specific opinions offered by Bazzel are improper. He argued that Bazzel should not be permitted to offer opinions on the legal issues of medical malpractice, deliberate indifference, discrimination, and negligence. In addition, he contended that Bazzel’s opinion on the reduction in psychological triggers in jails and prisons should be excluded because it lacks any scientific support, and he is not a psychiatrist or psychologist with any qualification to offer such testimony.

    Since Bazzel’s report did not contain citations or references to medical or scientific sources, the Court looked to his deposition to gain an understanding of how he formed his conclusions.

    When asked what relevant medical literature he relied on in formulating his opinions, he replied, “None.” He stated that he did not review any scientific literature or journal articles related to COWS scores. As to his opinion that some patients who would be appropriate candidates for treatment with MOUD in the community are not good candidates in a correctional setting, he stated that he did not know if any literature or reports existed to support that viewpoint. He did not review any medical or scientific literature to formulate his opinion that there are fewer triggers for opioid cravings or relapse in jail, stating, “I’m sure I could find some. But it’s just commonsensical.”

    Bazzel’s testimony related to incidents of alleged diversion and urine screen results should be excluded 

    The Plaintiff next argued that Bazzel’s testimony and conclusions related to incidents of alleged diversion and urine screen results, all occurring after the Plaintiff’s January — March 2023 detention, should be excluded because medical staff could not have considered future events when determining Taylor’s medical treatment at the time. He further argued that Bazzel’s opinions regarding security concerns in a correctional setting related to MOUD are “pure conjecture.” Bazzel admitted in his deposition that he ‘has no experience in correctional security,’” and cited no scientific or medical sources. Finally, he argued that Bazzel’s testimony opining about Taylor’s credibility should be excluded.

    The Court held that Bazzel’s opinion that the Defendants met the standard of care in their treatment of Taylor was formed based on the analysis of Taylor’s treatment as discussed above, none of which was based on facts, data, or reliable principles or methods. 

    Held

    The Court granted the Plaintiff’s motion to exclude certain opinions of Grady Bazzel.

    Key Takeaway:

    Bazzel’s report lacked citations or references to medical or scientific sources. When asked what relevant medical literature he relied on in formulating his opinions, he replied, “None.”

    The Court held that Bazzel’s opinion that the Defendants met the standard of care in their treatment of Taylor was formed based on the analysis of Taylor’s treatment, none of which was based on facts, data, or reliable principles or methods. 

    Case Details:

    Case Caption: Taylor V. Wexford Health Sources, Incorporated, Et Al
    Docket Number: 2:23cv475
    Court: United States District Court, West Virginia Southern
    Order Date: June 17, 2024
  • Security Expert Witness’ Opinions Admitted because of its Strong Factual Basis

    Security Expert Witness’ Opinions Admitted because of its Strong Factual Basis

    A district judge in New Jersey admitted the testimony of the security expert despite the opposing party contending that it was based on his own personal, subjective beliefs.

    The present case arises out of Plaintiff, Ebony Thames’ fall from the roof of Bally’s Wild West Casino in Atlantic City, New Jersey. On April 6, 2019, Plaintiff, a patron at Defendants’ property, was served alcohol by Bally’s employees. Later that evening, Plaintiff was in a hotel room at the property when a security officer responded to a noise complaint. Upon arrival, the security officer encountered Plaintiff, who ran off down the hallway towards the fire tower. Plaintiff exited an unalarmed door onto the roof of the building then diverted her path from the walkway along the fire escape route where she fell from the third-floor roof of the adjoining building while attempting to climb down the facade. In order to reach the Bally’s ledge where Plaintiff started to climb down the building, Plaintiff needed to traverse barriers that included HVAC piping, two five foot walls, and one nine-foot wall.

    After Plaintiff fell several stories to the boardwalk below, she filed this lawsuit on account of severe and permanent injuries sustained as a result.

    Defendants filed a motion to bar the opinion and findings of Plaintiff’s security expert witness, Russell Kolins under Federal Rules of Evidence 702 and 703.

    Security Expert Witness

    Russell Kolins leads the Kolins Security Group, a division of Russell Kolins Associates. He holds a Bachelor of Science Degree in Security Management and specialized in the defense industry during the first two decades of his practice, undergoing extensive training and education in the fields of Risk Management, Risk Assessments, Premises Liability, Security Inspections, and Civil Liability.

    Russell Kolins’ expertise is well-earned. He is a certified trainer in the two nationally accepted responsible alcohol management programs. Russell has been a consultant to some of the largest Nightclub entertainment venues as well as country clubs, resorts and hotel and motel businesses. His skills extend to Facility Physical Security Design and he is a CPTED Practitioner.

    Get in-depth insights into Russell Collin’s expert witness experience by requesting his Expert Witness Profile today

    Discussion by the Court

    Defendants argued that Russell Kolins’ conclusions constituted net opinion based on his subjective opinions regarding the facts of the case. Also, they added that Kolins’ opinions improperly extrapolated from the facts of a prior matter involving the same Defendant, Bally’s, and that his opinions consisted of legal conclusions. In his report, Kolins asserted that Bally’s was obligated to protect people on their property and failed to place a reasonable barrier to detect, delay and ultimately respond to people who were in this unsafe area.

    Moreover, Defendants argued that Kolins applied an unreasonably high standard created using his own personal, subjective beliefs to reach his conclusions and created a unreasonable duty of care.

    According to the Court, Kolins’ response to a question posing a hypothetical scenario was distinct from his opinion that Defendants had an obligation to protect Plaintiff under the specific circumstances of this case. As Kolins set forth in his Report, the materials he relied on in forming this opinion included information that “Defendant had a history of people being up on and falling off the roof” and “people being on the roof was so prevalent that security was responsible for patrolling this area for customers.” Together, the Court held that this information reasonably explained the factual basis underlying Kolins’ opinion.

    The Defendant had previously filed a motion to preclude Plaintiff’s expert report of Russell Kolins arguing that it was nearly two (2) months late in violation of this Court’s Orders and all applicable rules in New Jersey. The Court denied the Defendants’ motion to preclude the untimely expert report submitted by Kolins.

    Held

    The Court denied the Defendants’ motion to exclude to the opinion of security expert witness, Russell Kolins.

    Defendants also filed a motion for summary judgment combined with this motion to bar Kolins’ testimony. Defendants argued that Plaintiff failed to retain an expert in order establish the alleged negligence responsible for the Plaintiffs’ injuries. Court ruled that the expert testimony of Kolins may be admitted to establish general principles for negligence and Defendants’ motion for summary judgment on that issue.

    Key Takeaway:

    According to Defendants, Kolins drew his conclusions applying an unreasonably high standard created using his own personal, subjective beliefs but the Court found out that Kolins’ conclusions were actually supported by reliable information regarding the Defendants’ security practices and previous incidents.

    Case Details:

      Case Caption: Thames v. Bally’s Park Place, LLC
     Docket Number: 1:21cv1876
     Court: United States District Court, New Jersey
     Order Date: June 17, 2024
  • Judge Declares Law Banning Transition Care Unconstitutional

    Judge Declares Law Banning Transition Care Unconstitutional

    More often than not, public school employees call students by the pronouns matching the gender on their birth certificate, no matter the child’s preference and it is a misdemeanor to use restrooms in public buildings that do not correspondent to the person’s gender at birth. If lawmakers advance bills that mandate the same, how do we expect discrimination against transgender individuals to diminish?

    Four transgender adults and seven parents of transgender minors challenged the constitutionality of a Florida statute that prohibited transgender minors from receiving widely accepted gender-affirming medical care and impose restrictions on how such care can be provided. The Plaintiffs had urged the Court to specifically block one part of the law that bars doctors and nurses from prescribing or administering transition-related medication to children, and another part that exposes medical providers to criminal liability and professional discipline for doing so.

    The kinds of care at issue are puberty blockers and cross-sex hormones. For many years, the State of Florida allowed use of these medications to
    treat gender dysphoria. Yet, while other states restricted the use of state funds to pay for transgender care, Florida was the first to restrict care for transgender adults who were not relying on Medicaid. “But then the political winds changed,” wrote Judge Robert L. Hinkle of Federal District Court in Tallahassee.

    Last June, Judge Hinkle temporarily blocked enforcement of parts of the law for the children of the three families who filed the lawsuit. He ruled specifically that three transgender children can be prescribed puberty blockers despite the new state law, which also added new hurdles for adults seeking similar care.

    Psychiatry Expert Witness

    Dr. Stephen B. Levine is an expert in gender dysphoria and gender identity. He is a Distinguished Life Fellow of the American Psychiatric Association and a professor with many years of experience in the fields of gender and sexuality.

    Levine chaired a committee that crafted a pioneering set of standards of care for individuals suffering from gender dysphoria, and he has been a senior editor for three editions of the Handbook of Clinical Sexuality for Mental Health Professionals. He also founded a gender identity clinic in 1974, which he continues to lead as co-director.

    Levine did a psychiatric internship and residency at University Hospitals of Cleveland, working in that hospital’s Sexual Dysfunction Clinic. In 1993 the clinic separated from University Hospitals to become The Center for Marital and Sexual Health (now called DELR).

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

    Discussion by the Court

    The challenged statute prohibited gender-affirming care for minors—for patients under age 18—subject to a grandfather provision allowing minors who were already receiving this care to continue do so. It restricted the manner in which gender-affirming care could be provided to adults and to grandfathered minors. Such laws deprive parents of their fundamental right to make medical decisions for their children and underestimate the impact denial of transition care has on the physical and mental health of the children.

    Judge Hinkle said that “gender identity is real” and that a “widely accepted standard of care” includes puberty blockers and hormone treatments that Florida unlawfully banned. He added, “The State of Florida can regulate as needed but cannot flatly deny transgender individuals safe and effective medical treatment.” Not just the Defendants, but also defense expert Dr. Stephen B. Levine with his extensive experience treating a significant number of transgender patients admitted it.

    Stephen B. Levine

    At a committee hearing, a minor from another state gave comments indicating she received gender-affirming care and a mastectomy, without meeting the prerequisites to such care under the Endocrine Society and WPATH guidelines.

    Hinkle noted that Levine’s testimony providing a legitimate, nondiscriminatory basis for restricting the availability of gender-affirming care for minors met the Daubert standard.

    Levine has repeatedly testified about the many risks associated with “affirming” transgender identity in children in various cases. According to Levine, both the long-term and short-term implications of life as a transgender individual are crucial when it comes to social transitioning. He has cited multiple studies from different nations that have documented the increased vulnerability of the adult transgender population to substance abuse, mood and anxiety disorders, suicidal ideation, and other health problems.

    Levine casts doubt on the claim that puberty blockers are completely reversible. He adds that there are social risks associated with delayed puberty. Levine writes, “individuals in whom puberty is delayed multiple years are likely to suffer at least subtle negative psychosocial and self-confidence effects.”

    However, at one point in this case, Levine testified that treatment with GnRH agonists and cross-sex hormones is sometimes appropriate. He would demand appropriate safeguards, as discussed below, but he would not ban the treatments. Levine suggested prerequisites to gender-affirming care.

    Held

    Hinkle found Levine’s arguments in favor of restricting the availability of gender-affirming care persuasive but sided with advocacy groups and three families who had said that the law deprived them of parents’ rights to make medical decisions for their transgender children.

    He declared key parts of a Florida law banning gender transition care for minors and imposing hurdles on adults seeking such care unconstitutional.

    Key Takeaway:

    Puberty blockers and other forms of gender transition care for children give transgender adolescents and their families time to weigh important medical decisions. Studies report that teens who had access to puberty blockers and hormone therapy require fewer gender-affirming surgeries as adults. Plaintiffs, in this case, challenged the constitutionality of a statute that denied transgender individuals safe and effective medical treatment.

    The legislation codified policies adopted last year by the Florida Board of Medicine and Board of Osteopathic Medicine — whose members are appointed by the governor — that banned hormone treatments for people under 18 unless they were already receiving such care.

    While laws prohibiting access to gender transition care might end up causing irreparable harm, it is equally important weigh in social risks associated with delayed puberty.

    Levine is of the opinion that ushering gender-dysphoric children toward social transition to the opposite sex is an experimental therapy that exposes these vulnerable children to more mental health risks.

    Case Details:

    Case Caption: Jane Doe V. Joseph A. Lapado
    Docket Number: 4:23cv114
    Court: United States District Court for the Northern District of Florida, Tallahassee Division
    Order Date: June 11, 2024

  • Testimony of Audio Engineering Expert Witness Admitted Despite Being Based on Assumptions

    Testimony of Audio Engineering Expert Witness Admitted Despite Being Based on Assumptions

    This case arises out of the shooting of Plaintiff Jake L. Sheeler (“Plaintiff”) on September 25, 2020 by officers of the Pocatello Police Department.

    Plaintiff Jake Sheeler was on the run from the police at the time that he was shot. He stole a Taurus Judge (a .45 caliber handgun) from a resident of Pocatello, Kirk Hendricks. Plaintiff then threatened Mr. Hendricks, his wife Mary Hendricks, and their neighbor Mr. Richard Hernandez with the Taurus Judge before he fled.

    Officers Eldridge and McArthur finally located Plaintiff and gave him commands to surrender. Plaintiff ignored the commands that he was given and shouted “I gotta gun!” and “back up!” at Eldridge and McArthur. Officers McArthur and Eldridge reacted to this threat to themselves and to others in the area by shooting Plaintiff.

    When Sheeler initiated this lawsuit against Defendants, Defendants moved for summary judgment on all of Sheeler’s claims. Sheeler opposed Defendants’ summary judgment motion and filed a motion to exclude their expert Durant Begault’s testimony.

    Audio Engineering Expert Witness

    Durant R. Begault is an expert in “audio-video media authentication, voice identification, enhancement of audio-video media, audibility of speech and warning signals, recorded gunshot analysis, and forensic musicology.” 

    He is a research scientist specializing in psychoacoustics, human factors, multimodal systems, and communications engineering. In 2002, Durand Begault bagged the Audio Engineering Society Fellowship Award for his many contributions.

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

    Discussion by the Court

    Defendant retained Begault mainly to enhance and interpret the footage from Officer McArthur’s bodycam.

    Begault’s audio enhancement was not reliable

    Sheeler raised four challenges to Begault. First, Sheeler argued Begault’s audio enhancement was not reliable. In support, he noted Begault “did not disclose metadata nor hash values of the recordings” or “the software, equipment, or import settings, features or expert setting used to create and export the video.”

    Sheeler contended that, without this information, Begault’s results cannot be replicated, verified, or shown to be reliable.  In support, Sheeler cited the deposition testimony of his rebuttal expert, who reported he cannot duplicate Begault’s results without the missing information.

    The Court held that Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.

    Although Begault offered at his deposition on January 3, 2024, to provide Sheeler with the information, Sheeler responded that offer came after the expert disclosure deadlines.

    The Court held that Defendants timely disclosed the report at least by October 2, the deadline for Defendants’ expert disclosures. Sheeler’s rebuttal deadline was not until October 16. Based on this timeline, Sheeler could have requested the information his rebuttal expert needed for purposes of attempting to duplicate Begault’s work before the rebuttal deadline. 

    Begault did not perform any measurements

    Second, Sheeler challenged Begault’s opinion that Sheeler, not an officer, can be heard saying “back up” on the bodycam footage. Sheeler claims this opinion “depends solely upon distances of the various officers at the time of the shooting” and “Begault did not perform any measurements [but rather] relied on estimates provided by Defendants’ counsel.”

    According to Rule 702, an expert may rely on assumptions when formulating his opinions.That Begault did not himself perform the measurements and relied on counsel to provide him that information is not a basis to exclude his opinions. The Court held that Begault assumed the accuracy of the measurements counsel provided him.  The Court refused to exclude Begault’s testimony simply because he relied on assumptions Defendants’ counsel provided.

    Begault’s opinions regarding what the footage reveals

    Sheeler’s third and fourth challenges relate to Begault’s opinions about what can be heard on the enhanced audio of the bodycam footage. Sheeler claimed Begault admitted that “he has no greater ability than the jury to listen to the enhanced audio,” admitted that “he made no attempt to decipher any commands given to Sheeler,” and yet offered an opinion that “Sheeler did not comply with commands.” 

    The Court could not exclude Begault’s opinions regarding what the footage reveals without a more detailed analysis of the specific opinions Sheeler sought to exclude.

    The Court granted in part and denied in part the Defendants’ motion for summary judgment.

    Held

    The Court denied without prejudice Plaintiff’s motion to exclude or limit the testimony of Durand R. Begault.

    Key Takeaways:

    • First, Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.
    • Second, the Court refused to exclude Begault’s opinions just because he did not himself perform the measurements and relied on counsel to provide him that information. An expert may rely on assumptions when formulating his opinions.

    Case Details:

    Case Caption: Sheeler V. Eldridge, Et Al
    Docket Number: 4:22cv313
    Court: United States District Court for the District of Idaho
    Order Date: June 12, 2024

  • Court Refuses to Exclude Meteorology Expert Witness’ Conclusion about Wind Damage

    Court Refuses to Exclude Meteorology Expert Witness’ Conclusion about Wind Damage

    A district judge in Nevada admitted the testimony of an expert meteorologist despite lack of certain tests or calculations.

    In 2003, the Mindens purchased a new high-end custom home in Henderson, Nevada, where they have resided since then. They maintained an active insurance policy over the property through Allstate. A sudden storm hit the property on or around September 1, 2019, which Allstate determined to be the “time of loss.” The property sustained substantial damage to the roof, exposing the underlying roof membrane or felt.

    This dispute stems from Plaintiffs’ deprivation of certain insurance coverage benefits guaranteed to them by Allstate, as Allstate has acted in bad faith and refused to honor the terms of Plaintiffs’ insurance policy. The Mindens’ home suffered hundreds of thousands of dollars in damage, for which Allstate paid the Mindens a mere $2,887.56. After over a year and a half of litigation, Allstate admitted that in its view, it owed the Mindens an additional $29,506.79, about ten times what it initially paid and likely over twenty times less what it actually owes.

    Plaintiffs argued that Allstate’s wind and roof damage expert, Timothy Marshall should be excluded from testifying under Daubert because he reached his conclusion that no wind damage occurred to the Mindens’ roof based on an inspection, review of submitted photographs, and weather information, but he did not test the roof tiles in a wind machine and did not perform wind pressure calculations. 

    Meteorology Expert Witness

    Timothy P. Marshall, P.E., M.S., is a Forensic Engineer and a Meteorologist for Haag Engineering Co. in Dallas, Texas. He has been with Haag since 1983, and has inspected tens of thousands of homes and building for damage from hail, wind, and other issues.

    Marshall is a member of the American Association of Wind Engineering, American Meteorology Society, American Society of Civil Engineers, International Conference of Building Officials, National Weather Association, and the Southern Building Code Congress International. He earned a Master of Science in Atmospheric Science from Texas Tech University in 1980, and a Master of Science in Civil Engineering from Texas Tech University in 1983. 

    Marshall is a widely published author, writing and contributing to more than 100 articles, technical papers, and damage surveys.

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

    Discussion by the Court

    Plaintiff’s Arguement

    The Plaintiffs demanded exclusion of Marshall’s testimony due to the inaccuracy of his conclusion about wind damage.

    Plaintiff argued that Marshall chose not to do a wind machine test or wind pressure calculations. Marshall explained that he chose not to conduct the wind machine tests or make wind pressure calculations because it was unnecessary to do so as he had already concluded that there was no wind damage. The Court held that his reasoning was based on his inspection of the roof, review of photographs and weather research, and application of his knowledge and experience about wind damage to roofs.

    Lastly, the Plaintiffs argued that the exclusion of one wind data point showed that Marshall is biased. The Court held that they failed to provide any authority to explain why the exclusion of one data point made Marshall’s methodology unreliable or showed that he is biased.

    Held

    The Court denied Plaintiffs’ motions in limine to exclude Allstate’s expert Timothy Marshall.

    Key Takeaway:

    The key takeaway is that under Daubert, courts scrutinize the reliability of an expert’s methodology and principles. They do this rather than dissecting the accuracy of their specific conclusions.

    Criticisms about an expert’s judgment, potential biases, or failure to consider particular information or testing are for the jury to weigh through cross-examination. These are not grounds for excluding the expert’s testimony altogether.

    In the previous article, we discussed the wind speed opinions of the Plaintiff’s forensic engineering expert witness.

    Case Details:

    Case Caption: Minden v. Allstate Prop. & Cas. Ins. Co.
    Docket Number: 2:21cv151
    Court: United States District Court, Nevada
    Order Date: June 11, 2024
  • Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    A district judge in Alabama excluded the testimony of the firearms & ballistics expert because he did not offer any evidence to show any of the alleged dangerous conditions in order to support the product liability claims.

    Plaintiff James Andrew Scott, II filed a complaint against Remington Arms Company, LLC (“Remington”) alleging that defects in the trigger mechanism for a Remington Model 770 bolt-action rifle caused it to fire unexpectedly, resulting in the death of his daughter, Alyssa Brooke Scott.

    On November 13, 2017, 15-year-old Alyssa and her godmother Christal Davis went deer hunting together. After Alyssa and Davis decided to end the hunt, Davis closed the rifle’s bolt and tied a nylon rope through the trigger guard to lower the rifle to Alyssa. Davis testified that she tied the rope behind the trigger and made sure there was no slack in the knot. Alyssa told Davis that she turned on the rifle’s manual safety switch before she handed over the gun, but Davis does not remember personally checking the position of the safety before she began to lower the rifle from the deer stand. 

    Davis lowered the rifle with the muzzle pointing down and the rope fastened through the trigger guard. About halfway down, the gun fired and the bullet struck and killed Alyssa. 

    Before the Court is Remington’s combined motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris and motion for summary judgment.

    Firearms & Ballistics Expert Witness

    Jerry Morris has been a gunsmith for 51 years and has worked on hundreds of makes and models of firearms, serviced over 10,000 firearms,” and taught classes on gunsmithing. His expert report represented that he “had extensive knowledge and experience with the Remington 770 rifle, and the trigger system in particular.” 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Jerry Morris’ expert testimony. 

    Discussion by the Court

    Rule 26

    Remington argued that Morris’ affidavit is a violation of Rule 26 since it was untimely under the existing scheduling order and consisted of new reasoning and opinions.

    The Court held that Scott “was not allowed to use [the Morris affidavit] to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

    But Scott did not argue that the failure to timely disclose this evidence was substantially justified or harmless, despite being given the opportunity to do so. Instead, Scott stuck to his argument that the evidence was an expansion or elaboration of Morris’ previous testimony, which the Court rejected.

    The Court held that the affidavit did not qualify as a supplementation under Rule 26(e) because it went well beyond correcting or completing inaccuracies or omissions in the original expert report.

    Rule 702

    Remington challenged all of Morris’ opinions. First, Remington contended that he was not qualified to offer his defect opinion and that this opinion was not based on any reliable method-based testing, literature, observations, or experience. Second, Remington argued that Morris’ causation opinion was not supported by any testing, the evidence in this case, or his personal experience.

    1. Qualification

    Morris based his opinion on the manufacturing process of the Model 770’s trigger and sear. He claimed that Remington uses “inferior powdered metal in the components of the trigger system” and that the rough sear contact was unpredictable and inconsistent.

    The Court held that Morris may know a lot about guns, but there is no evidence that he ever investigated or studied the materials in the Model 770 trigger mechanism. He has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle. In fact, he admitted that he has only repaired two 770 rifles and cleaned about a dozen in his long history as a gunsmith. And as to this particular gun, he did not measure the sear engagement or contact points between the trigger and sear since he did not have the proper tools. In other words, Morris was not qualified to offer an opinion on the metallurgical properties or design process of the trigger or sear in the Remington Model 770 rifle.

    2. Reliability

    The Court held that even if Morris had the qualifications to offer his opinions, they would fail the reliability prong of the Daubert inquiry.

    To begin with, Morris did not provide any measurements or objective observations of rough contact points or surfaces between the sear and trigger in the rifle at issue here. In fact, he admitted that he did not have the tools to measure them. Likewise, when Morris offered the opinion that the low and inconsistent trigger pull forces he documented resulted from a chipped trigger or rough contact points between the trigger and sear, his testimony merely assumed the presence of a chipped trigger or rough contact points without any evidence supporting that assumption.

    The Court found that Morris did not perform any testing or offer any evidence to show that any of the alleged dangerous conditions—“powdered metal” trigger components, rough sear contact points, a chipped trigger, or inconsistent trigger pull weights—caused the rifle to fire without activating the trigger.

    3. Assisting the Trier of Fact

    The Court found that Morris’ theory that the gun could have bumped the tree as it was lowered to the ground lacked evidence; instead, the uncontroverted evidence from the single surviving eyewitness is that the gun did not bump the tree.

    The Court concluded that multiple portions of Morris’ opinions were not based on facts in evidence, and thus would not assist the trier of fact.

    With the exclusion of Morris’ expert opinions, Remington contended that Scott did not offer sufficient evidence to support his product liability claims. The Court agreed and entered final judgment in favor of Remington and against Scott.

    Held

    The Court granted Defendant’s motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris.

    Key Takeaway:

    Morris based his defect and causation opinions on the materials and process Remington used to manufacture the trigger and sear. The Court excluded his opinions because he did not produce any literature, reports, or other documentation to support his contention that the Model 770’s components are inferior to other fire controls using different processes or materials. Importantly, he did not provide any testing, explanation, or other support for his theory that using hardened forged steel would create a more consistent contact point between the sear and the trigger. Instead, there is simply no explanation in the record for the methodology he used in reaching his conclusions. Morris has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle.

    Case Details:

    Case Caption: Scott V. Remington Arms Company., LLC
    Docket Number: 2:19cv1891
    Court: United States District Court, Alabama Northern
    Order Date: June 13, 2024

  • Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    A district judge in Washington refused to admit the Law Enforcement Expert Witness’ testimony with regard to the claims of outrage, negligence and assault filed against the Seattle Police Department.

    On May 30, 2020, organizers planned two demonstrations in downtown Seattle to protest the May 25, 2020 killing of George Floyd in Minneapolis: (1) “The March for George Floyd,” scheduled from 12:00 p.m. to 6:00 p.m. on Fifth Avenue, and (2) “The Defiant Walk of Resistance Against Injustice,” scheduled to begin at 3:00 p.m. and to go from Westlake Park to the federal courthouse at Seventh Avenue and Stewart Street. Sergeant Sean Moore served as the leader of Platoon 1’s West Bikes #3 at The Defiant Walk of Resistance Against Injustice. 

    After learning about the demonstrations through his parents or his church, Avery decided to attend the events along with his young son J.A., other family members, and church members.

    Plaintiffs Are Injured During the May 30, 2020 Demonstrations

    An escalation between officers and demonstrators ensued after the arrest of one of the demonstrators. Several demonstrators, including two female demonstrators (one wearing a black sweatshirt and one wearing a white t-shirt and bike helmet), moved toward the police line. At one point, Officer Moore ran up to the line from behind and repeatedly yelled “Move back!” with a blast ball in his left hand and OC spray in his right hand. The female demonstrator wearing the bike helmet then shouted “You move back!” while pushing over the line, grabbing an officer’s baton, and pushing back against him.

    At the beginning of this disturbance, Avery moved quickly to his left towards the disturbance, holding J.A. to his right side and approaching until he was immediately behind the female demonstrator. Then, without verbal warning, Officer Moore deployed OC spray in the direction of this demonstrator.

    When Officer Moore deployed the OC spray at the female demonstrator in the bike helmet, Avery had his left arm around her waist as she turned away from the spray, exposing his left side to Officer Moore’s deployment. Avery had his right arm around J.A., who stood behind his father and the female demonstrator. As Avery and J.A. retreated from the altercation, Avery placed his left hand on or near J.A.’s face and kept his arms around him as they walked away. Moments later, J.A. began reacting to the OC spray’s painful effects and received assistance from other demonstrators.

    Motion to exclude

    Avery initiated this action in April 2022, raising claims for violations of the Washington Law Against Discrimination, outrage, negligence, assault, and constitutional violations under 42 U.S.C. § 1983.

    The City moved to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks, because his report consisted of opinions which were “improper legal conclusions and lacked any expert analysis that might be helpful to a jury.”

    Law Enforcement Expert Witness

    Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. He was a commissioned police officer from 1991-2016. He was also an instructor at the Washington State Criminal Justice Training Commission (WSCJTC) from 2007-2021.

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

    Discussion by the Court

    Many of Hicks’ Opinions Consisted of Legal Conclusions

    The Court agreed with the City when it contended that many of Hicks’ opinions consisted of legal conclusions. For instance, Hicks repeatedly characterized the actions of Seattle Police Department “SPD” as “negligent,” concluded that Officer Moore’s use of force was “excessive,” and stated that Plaintiffs “were seized” by Officer Moore’s use of force. The Court held that almost all of Hicks’ opinions are supported by nothing more than conclusory statements. 

    Hicks’ Opinions Were Mostly Unsupported

    Hicks speculated that it is more likely than not that if Officer Moore had provided a warning about the pepper spray, she would have let go of the baton and Sgt. Moore wouldn’t have deployed this MK-9 pepper spray. The Court held that Hicks provided no support whatsoever for this opinion, rendering it unreliable. He did not explain how his experience led to the conclusion reached.

    As for Hicks’ opinion that SPD’s failure to “provide or call for aid for Avery and his 7-year-old son” was contrary  to law, training, and policy, the Court held that it did not offer any specialized knowledge and in fact contradicted the video evidence. He asserted that the alleged failure to aid was contrary to training, explaining only that officers “are provided with instruction on providing first aid to subjects injured by law enforcement” at WSCJTC training. The Court held that he did not explain how such training bears on the facts at issue beyond the suggestion that officers knew how to administer first aid.

    The Court found Hicks’ opinion that “Officer Moore deviated from SPD policy regarding providing warnings in advance of deploying pepper spray despite having enough time to give a warning” similarly unsupported because untrained layman would be qualified to determine that issue.

    Finally, Hicks opined that Officer Moore should have used the MK-4 pepper spray instead of the MK-9 because “it is possible that the smaller dispersal area [of the MK-4] would have satisfied the immediate safety goal.” The Court, once again, held that Hicks failed to “back up his opinion with specific facts.”

    Held

    The Court granted the City’s motion to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks.

    Key Takeaway:

    The Court held that almost all of Hicks’ opinions were supported by nothing more than conclusory statements. Conclusory assertions like those contained in Hicks’ report would not assist the trier of fact to understand the evidence.

    Nothing in either Daubert or Rule 702 requires the district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

    Case Details:

    Case Caption: Avery V. City Of Seattle Et Al
    Docket Number: 2:22cv560
    Court: United States District Court, Washington Western
    Order Date: June 12, 2024