A district judge in Texas allowed a truck safety expert to testify about safety regulation compliance after stating that his testimony did not consist of methodological flaws.
Plaintiff Antoine Manson alleged that on March 20, 2021, at about 3:00 a.m., he was traveling on Loop 1604 in Bexar County, Texas when he was struck by Defendant Mariel A. Arias-Padilla (“Defendant Driver”), who was driving a commercial motor vehicle within the course and scope of her employment with Defendants B&S Trucking of Jackson, LLC (“Defendant Company”) and JJ&C Express Corp.
The force of the impact allegedly caused Plaintiff to lose control and subsequently crashed into the median concrete barrier. Plaintiff alleged that he suffered major injuries as a result.
Plaintiff sought to exclude the testimony of Rodney Ellis, Defendants’ expert witness. The Defendants designated Ellis as a commercial vehicle safety and safety regulation compliance expert. The Defendants stated that Ellis may testify regarding “commercial vehicle safety, hiring, training, supervision, risk management, loss prevention, regulatory compliance, operations, driver qualifications, driver safety procedures, hours of service regulations, and driving techniques.”
Safety Expert Witness
Rodney Dean Ellis II has been involved in the trucking industry as a licensed commercial truck driver and safety consultant since 1991, performed “dozens of audits of commercial motor carriers/shippers,” and received professional training by several transportation associations.
Plaintiff did not appear to challenge Ellis’ qualifications to testify. Rather, Plaintiff disputed Ellis’ conclusion that while Defendant Driver “was in off duty status, the global positioning data in the driver log records indicated that she had a co-driver who drove the tractor-trailer while she was off-duty.”
Plaintiff asserted that in reaching this conclusion, Ellis ignored key evidence including i) the driver logs do not indicate a co-driver; ii) Defendant Driver provided conflicting deposition testimony regarding the presence of a co-driver; and iii) the police report does not indicate the presence of such a co-driver.
Defendants countered that Ellis relied on several parties’ depositions (including Defendant Driver), driver logs, global positioning data contained within the driver logs, and an “Interview with [Driver Defendant] Mariel Arias-Padilla.”
Based on this information, Ellis testified he concluded there was evidence of a second driver because there was no unidentified driver movement of the vehicle in the logs, supporting that another driver with identifying credentials was logged into the system; that the logs contained no error messages consistent with Defendant Driver logged out but no other driver logged in; and that the data shows another driver logged into the database, though it does not specify which driver.
Moreover, the Court held that the Plaintiff did not identify any methodological flaws with Ellis’ work. Rather, Plaintiff pointed to extrinsic evidence—such as conflicting testimony from Defendant Driver or the police report—to undercut Ellis’ interpretation of the driver logs.
In conclusion, the Court found Ellis’ opinion reliable, because the driver logs were crucial in determining whether Defendant Driver was fatigued at the time of the accident.
Held
The Court denied the Plaintiff’s motion to exclude Defense Expert Rodney Ellis.
Key Takeaway:
The Court, citingHolcombe v. United States, 516 F. Supp. 3d 660, 675 (W.D. Tex. 2021), held that an opposing party’s “doubts about the bases” of an expert opinion did not render an expert opinion “unsupported,” and such questions affected “the weight to be assigned to that opinion rather than admissibility.”
A district judge in Colorado limited the opinion of a vocational expert because the injuries were obscure and a loss of future earnings capacity could not be deduced from the same.
This case arises from a car accident that occurred on July 7, 2020, between Plaintiff and a person who was operating a commercial semi-truck while in the course and scope of his employment with Defendant. The semi-truck collided with Plaintiff’s vehicle causing Plaintiff to suffer various claimed physical and cognitive injuries. Plaintiff has sued Defendant under theories of respondeat superior and agency liability. Defendant admitted the semi-truck driver was operating the vehicle within the course and scope of his employment at the time of the accident and has admitted liability. The parties, however, disputed the nature and extent of Plaintiff’s alleged injuries, damages, and losses.
In his Rule 26(a)(2)(B) disclosures, Plaintiff Timothy Korbe disclosed Daniel B. Best, a certified vocational rehabilitation counselor, to offer opinions regarding his calculations of Plaintiff’s past and future wage losses. Defendant Doug Andrus Distributing LLC filed a motion to preclude these opinions under Federal Rule of Evidence 702.
Vocational Rehabilitation Expert Witness
Daniel B. Best is a Certified Rehabilitation Counselor (CRC) with a Master of Arts in vocational rehabilitation counseling and vocational evaluation that he obtained in 1989. For numerous years of his career he has engaged in providing services which include labor market analysis, job analysis, counseling, earning capacity, vocational exploration, and job development and placement. These services sometimes require Best to analyze a worker’s earnings at different points in time.
Throughout his career, since 1989, Best has testified as an independent vocational expert in over 10,000 Social Security disability hearings and has been qualified as an expert in vocational rehabilitation counseling and vocational evaluation in over 250 workers compensation cases, approximately 20 to 25 divorce proceedings, and over 50 personal injury and other cases throughout the state courts of Colorado, administrative courts, and this United States District Court.
The Defendant argued that Best was not qualified to opine on Plaintiff’s past wage loss, his methodology was unreliable, and his opinions would not assist the fact finder.
Best’s Past Wage Loss Opinion
Considering his education, training, and experience, the Court found Best qualified to opine on Plaintiff’s past wage loss. But the Court noted the Defendant’s concern over his methodology for calculating that loss.
Best calculated Plaintiff’s past wage loss using simple math, considering a one year period when Plaintiff was placed on medical leave from work purportedly due to his accident-related injuries. He took the amount Plaintiff made the prior year—$85,463—and opined that “during the year off work . . . I believe [Plaintiff] lost $85,463 minus any wage replacement provided to him.”
The Court held that grounding in reliable facts and tie to Best’s expertise is what saved the opinion.
Plaintiff’s social security statement showed he made $85,463 in 2019. The accident in this case occurred on July 6, 2020. Plaintiff’s employer placed him on medical leave in August 2020 due to the severe headaches and “sensory overload” he experienced when he tried to return to work. Plaintiff eventually returned from leave and worked 40 hours a week beginning July 6, 2021. These are reliable and verifiable facts upon which Best based his past wage loss opinion. And while his methodology for calculating those damages is uncomplicated, Rule 702 neither expressly nor impliedly requires an expert’s mathematical calculations to be complex. To sum it up, the Court refused to strike Best’s opinions regarding Plaintiff’s past wage loss.
Best’s Lost Earning Capacity Opinion
Best Lacked Qualifications to Testify about Plaintiff’s Lost Earning Capacity
The Court held that Best’s qualifications to render an opinion on Plaintiff’s lost earning capacity were suspect. Black’s Law Dictionary defines “lost earning capacity” as “a person’s diminished earning power resulting from an injury.” While Best has experience calculating wage losses, there is little in his background to suggest his experience determining a person’s earning capacity, determining the extent of a reduction in that capacity, and then placing a monetary value on that diminution.
Best testified that calculating economic losses falls within his expertise from only “a basic standpoint.”
Best’s calculation of these damages is not based on sufficient facts or reliable principles or methods
Best’s opinion here is not based on any medical professional opining that it is probable Plaintiff will be unable to work in the future due to his accident-related injuries. It is instead based on the Plaintiff’s view that he “likely” will have to stop working before retirement age.
Plaintiff’s injuries are of the obscure variety. His injuries involve diagnoses of traumatic brain injury, sequelae, mild neurocognitive disorder, post-concussion syndrome, and he suffers from cervicogenic headache, posttraumatic headache of an unspecified chronicity pattern, visual disturbance, and other issues.
Because Best’s lost earning capacity calculation was not based on any factual predicates from a medical expert regarding the extent of his injuries and their probable effect on his ability to work at all in the future, the Court held that Best’s opinion in this regard failed to satisfy Rule 702.
Held
The Court granted in part and denied in part the motion to strike Daniel Best’s opinions. Plaintiff met his burden to show that Best’s past wage loss opinions satisfied the requirements of Fed. R. Evid. 702, but he did not meet his burden to show that Best’s lost earning capacity opinions did the same.
Key Takeaways:
There is no implicit requirement in Fed. R. Evid. 702 for the proffered expert to make complicated mathematical calculations.
Where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts.
This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient “to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use” unless the doctor or patient asks the pharmacist about these drugs’ efficacy first. A pharmacist who violates the statute by alerting a doctor or patient that the FDA has not approved either drug to treat a particular disease may be professionally disciplined, including potentially losing her license. But a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction. Plaintiff, a pharmacist, contended that the statute violated the First Amendment.
Dennis K. McAllister is a pharmacist Defendants have retained to offer expert testimony. After reviewing McAllister’s expert report, Plaintiff filed a motion to exclude his opinions that offered legal opinion and legal analysis.
It is his opinion that the societal interests at stake include protecting the prescriberpatient relationship, guarding the public from possible harassment, ensuring appropriate professional competence from pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.
The prescriber-patient relationship requires individual assessment and personalized care after examination by a doctor or medical professional. This relationship involves a level of time, trust, and sharing of information that is critical for society and the health of individual patients. According to McAllister, the statute protects this relationship by limiting the way pharmacists may interact with patients or doctors.
Pharmacy Expert Witness
Dennis K. McAllister is the founder of McAllisteRx Consulting LLC. He has been Director of Pharmacy in three hospitals. He is consultant and expert with years of experience in the areas of pharmacy standard of care, negligence, pharmacy laws and regulations, pharmacy automation and development of innovative practice models.
McAllister served on the Arizona State Board of Pharmacy for 23 years, and as its president four times. Moreover, he served on the Executive Committee of the National Association of Boards of Pharmacy (NABP) for 6 years, and as its president in 2005-2006.
In response, Defendants extolled McAllister’s expert qualifications as a pharmacist and noted that it is permissible for an expert to opine on industry standards and practices.
But Defendants did not dispute that Eighth Circuit law prohibits a pharmacist from interpreting statutes or offering legal opinions and analysis. Nor could they, because it is firmly established that an expert may not testify as to legal issues or express legal opinions.
Held
The Court granted Plaintiff’s motion to exclude McAllister ‘s opinions. The Court barred McAllister from testifying that : (1) the statute protects the prescriber-patient relationship by “limiting the way pharmacists may interact with patients or doctors;” (2) “the statute identifies an area where” the goal of public trust in pharmacists “may be furthered;” or (3) “the law furthers the important societal interests and interests of the profession of ensuring accurate, reliable, consistent, and authoritative information is conveyed, protecting the prescriber-patient relationship, ensuring appropriate professional competence for pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.”
Key Takeaway:
Expert testimony on legal matters is not admissible because matters of law are for the trial judge. In other words, a district court may exclude the testimony of an expert if it finds that such testimony constitutes an impermissible instruction on the law.
This Federal Tort Claims Act (FTCA) case arises out of an accident that occurred on January 5, 2021 between Plaintiff Avery Stinson and a U.S. Postal Service tractor-trailer driven by Stewart Henry. When the accident occurred, Plaintiff was operating a bicycle on a sidewalk and attempting to cross an intersection. At the same time, a U.S. Postal Service tractor-trailer was traveling in the same direction parallel to the sidewalk and initiated a right turn at the same intersection.The bicycle collided with the trailer portion of the tractor-trailer, and Plaintiff sustained injuries as a result of the accident.
Dean Nance has applied his training, experience, and skills in Accident Reconstruction on 100’s of motor vehicle crashes as a member of the Texas Department of Public Safety as a Trooper. During his service with the Texas Department of Public Safety, he completed all 6 Levels of training in Accident Reconstruction. He owns an Accident Reconstruction Investigations Company, and is licensed through the Texas Department of Public Safety Private Security Bureau as a Private Investigations Company.
Nance is also a member of professional societies which specialize in Accident Reconstruction: (TAARS) Texas Association of Accident Reconstruction Specialist, The Laser Scanner Forum, The American Association of Notaries, The Khan Academy of Science and Engineering, and The Crash Forum Group.
Nance’s report failed to meet the requirements of Rule 26(a)(2)
Defendant argued that Nance’s report failed to provide “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them” as required by Rule 26.
The Court held that Nance’s report listed his qualifications as an accident reconstructionist and the evidence he reviewed and the tasks he performed in reaching his conclusions. For example, the report stated that Nance “documented the crash scene” and “made a map of the crash scene location using Google Earth Pro.” The report identified materials he consulted such as excerpts from J.J. Keller Truck Driving Training Manual and Smith System Driver Study Guide.
Plaintiff also provided Nance’s curriculum vitae, listing professional experience, specialized training and certificates, awards received, and state and federal court testimony as an accident reconstructionist.
Defendant also moved to strike Nance’s opinions in his report on the ground that the report “promoted an objectively false narrative without evidentiary support.” However, Defendant’s objection to Nance’s report as a “false narrative” amounted to a dispute regarding the facts Nance considered and the conclusions he reached. The Court held that these objections were not a basis to exclude his testimony under Rule 26(a)(2)(B).
Nance’s opinions were “conclusory, lacked evidentiary support, and were unreliable and inadmissible” under Rule 702 and Daubert
Defendant’s motion to exclude Nance’s testimony under Rule 702 and Daubert did not challenge Nance’s qualifications. Instead, Defendant argued that Nance’s “disregard of the evidence and his objectively false narrative” warranted the exclusion of his testimony.
The Court held that objections like those raised by Defendant “relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”
Held
The Court denied the Defendant’s motion to exclude Plaintiffs’ expert Dean Nance.
Key Takeaways:
The factfinder generally should “hear the expert’s testimony and decide whether the predicate facts are accurate.”
Since the case will be tried before a judge and not a jury, most of the safeguards provided for in Daubert are not as essential.
A Washington state superior court judge recently rejected the admission of video exhibits “enhanced by artificial intelligence” as evidence in a triple murder case.
To begin with, the state of Washington charged Defendant Joshua Puloka with three counts of murder stemming from a 2021 shooting. The shooting was captured on a bystander’s smartphone and the unaltered 10-second-long source video of the shooting had been entered into evidence.
The defense, however, also sought to admit an AI-enhanced version of the video which is when the Court heard testimony from defense witness Brian Racherbaeumer and State’s witness Grant Fredericks regarding proposed defense video exhibits enhanced by artificial intelligence.
Video Expert Witnesses
Brian Racherbaeumer is a self-identified videographer and filmmaker who started working with video in 1993. He was very candid and open about the fact that he is not – and has not claimed to be – a forensic video technician and has not been forensically trained.
Grant Fredericks is a contract instructor of video sciences at the FBI National Academy and is one of the most experienced video experts in North America. Moreover, Grant is a Certified Forensic Video Analyst, who has testified as an expert witness over 150 times in courts at all levels. He is recognized as a leading instructor in the science of Photographic/Video Comparison, Reverse Projection and Vehicle Speed Analysis.
Racherbaeumer contended that the source video was low resolution, had substantial motion blur, and contained fuzzy images with “blocky” edge patterns. To fix these problems, Racherbaeumer stated that he had added clarity to the source video though the use of an AI-video editing tool in the Topaz Labs AI program before processing the video using an Adobe program. Racherbaeumer stated that the Topaz Labs AI program used technology that “intelligently scaled up the video to increase resolution,” as well as added sharpness, definition, and smoother edges to objects in the video.
However, the state challenged the proffered AI-enhanced video, asserting that it failed to meet the admissibility standard set forth in Frye v. United States – a standard requiring that evidence using novel scientific theories or principles must have achieved general acceptance in the relevant scientific community. According to Fredericks, the accepted forensic analysis of the video was impossible because of the AI tools used by the defense. Fredericks provided a litany of issues with the AI-enhanced video:
the video added 16 times the number of pixels as existed in the original video, using an algorithm and enhancement method unknown and unreviewed by any forensic video expert,
AI process removed information that was in the original images and it added information that was not in the original images,
The proffered AI-enhanced video removed artifacts on individual images, and altered shapes and colors in the video. It removed the opportunity to forensically analyze which frames in the video utilized reference, predictive, and bi-directional images.
Also, Fredericks testified that the Scientific Working Group on Digital Evidence, whose members represented state, local, and federal law enforcement agencies engaged in forensic video examinations, had issued warnings regarding the use of AI-enhancement tools in the courtroom instead of approving the use of such AI-enhancement tools.
Held
The Court held that the Topaz Video AI enhancement tools, which use machine-learning algorithms, have not been peer-reviewed by the forensic video analysis community, are not reproducible by that community, and are not accepted generally in that community. Racherbaeumer himself was unable to say whether the Topaz Video AI he used, which had been commercially available for about three years, is currently utilized by the forensic video analysis community.
Moreover, the Court found that AI-enhanced video failed to satisfy Washington Rule of Evidence (ER) 702, under which evidence may only be admissible if it is reliable and will assist the trier of fact, as well as ER 403, which states that evidence is not admissible if its probative value substantially outweighs the danger of unfair prejudice.
Key Takeaway:
In conclusion, the Court held that the Defendant had the burden to show that the method was accepted in the relevant community because using AI tools to enhance video introduced in a criminal trial was a novel technique. The Court, as a result, held that the defense had failed to meet its burden after it found that the relevant scientific community was the “forensic video analysis community.”
Memorial Day, originally known as Decoration Day, is observed on May 30. It is a federal holiday in the United States for honoring and mourning the U.S. military personnel who died while serving in the United States Armed Forces.
Lets revisit significant moments of the United States military history on this occasion, such as when the Supreme Court upheld the male-only requirement for selective service registration.
Facts:
Congress is given the power under the U.S. Constitution to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Congress enacted the Military Selective Service Act (MSSA).
Now, section 3 of the Military Selective Service Act empowered the President, by proclamation, to require the registration of “every male citizen” and male resident aliens between the ages of 18 and 26 in order to facilitate eventual conscription under the Act. Although registration for the draft was discontinued in 1975, President Jimmy Carter determined in early 1980 that it was necessary to reactivate the registration process and recommended that funds be transferred from the Department of Defense to the Selective Service System for this purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men.
Congress agreed that is was necessary to reactivate the registration process; however, it allocated only those funds necessary to register males and, although it considered the question at great length, it declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men pursuant to 3 of the Act. Ultimately ruling in a case which had been brought nearly ten years earlier in the United States District Court for the Eastern District of Pennsylvania by several men subject to registration for the draft and subsequent induction into the armed services, a three-judge Federal District Court held that the Act’s gender-based discrimination violated the due process clause of the Fifth Amendment.
On direct appeal, the United States Supreme Court reversed the same.
Discussion by the Court
The Court held that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the MSSA. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. The existence of the combat restrictions clearly indicated the basis for Congress’s decision to exempt women from registration because the purpose of registration was to prepare for a draft of combat troops. Men and women, because of the combat restrictions on women, were not similarly situated for purposes of a draft or registration for a draft.
By “considerations of equity,” the military experts acknowledged that female conscripts can perform as well as male conscripts in certain positions, and that there is therefore no reason why one group should be totally excluded from registration and a draft.
However, even military experts, who consistently testified that women have made significant contributions to the effectiveness of the military, remained opposed to the actual drafting of women.
It was suggested that in the scenario of a 650,000-draft, approximately 80,000 female inductees could be accommodated by the military. These 80,000 women could fill non-combat positions, freeing men to go to the front. In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers.
Held
The United States Supreme Court concluded that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act.
Key Takeaway:
Congress never disagreed with the judgment of the military experts that women have made significant contributions to the effectiveness of the military. On the contrary, Congress repeatedly praised the performance of female members of the Armed Forces, and even approved efforts by the Armed Services to expand their role. But Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need rather than “equity.”
Following an automobile accident in which driver Ronald Skinner struck Plaintiff’s vehicle, Plaintiff subsequently filed suit against Defendants. To offer opinion testimony as to Plaintiff’s damages, Plaintiff’s counsel identified Dr. Manijeh Berenji, an occupational and environmental medicine physician, as an expert life care planner and emailed Defendants a life care plan for Plaintiff that Berenji prepared.
Compiled after Berenji conducted a “detailed review” of Plaintiff’s medical records and interviewed Plaintiff, Berenji’s life care plan listed medical costs that Plaintiff was likely to incur—including surgeries such as a lumbar discectomy, lumbar hardware removal, and cervical microdiscectomy, various injections, and a Functional Restoration Program—totaling $446,350.
Manijeh Berenji is board-certified in occupational and environmental medicine as well as public health in general preventive medicine. She is the chief of Occupational Health at VA Long Beach Healthcare System.
She has over 10 years of experience in occupational and environmental medicine, preventive medicine, and population health.
Plaintiff failed to properly disclose Berenji as an expert witness
Defendants argued (1) that Plaintiff’s disclosure of Berenji failed to meet Rule 26(a)(2)(B)’s requirements for witnesses specifically retained to provide expert testimony and (2) Plaintiff cannot meet his burden in showing the noncompliance was justified or harmless.
Defendants first argued that Plaintiff failed to properly disclose Berenji as an expert witness because although Plaintiff’s counsel emailed the life care plan to Defendants, Plaintiff did not comply with Rule 26(a)(4)’s requirement that an expert disclosure be written, signed, and served on the other party.
Next, Defendants argued that Berenji’s written report failed to satisfy the requirements of Rule 26(a)(2)(B) for experts specifically retained to provide expert testimony. First, they argued, Plaintiff failed to meet the requirement to list all other cases in the past four years in which the witness has testified as an expert witness—despite that Berenji later testified that she is deposed at least a few times per month. The Court noted that Berenji’s life care plan did not include any such list.
Although Defendants ultimately obtained a copy of Berenji’s CV, they obtained it through a subpoena to Medical Life Care Planners, not Plaintiff’s expert disclosure. The Court held that Plaintiff failed to provide the basis for the expert’s qualifications.
While Defendants did ultimately depose Berenji, the Court held that Plaintiff’s failure to disclose the other cases in which she has provided expert testimony prejudiced Defendants by limiting their ability to compare her testimony in other cases and cross-examine her about any similarities or inconsistencies.
Defendants first argued that Berenji was not qualified to testify as an expert witness regarding life care planning because (1) she was not certified as a life care planner and (2) she lacked experience in the field. Although Defendants acknowledged that lack of certification was not dispositive, they argued that such a lack—paired with the fact that Berenji had only been preparing life care plans for about a year and only had any training by way of the introductory module of certification coursework and by following a listserv—demonstrated that she was not qualified to speak as an expert in that area.
2. Reliability
Defendants argued that Berenji “failed to take into account” that none of Plaintiff’s treating physicians recommended surgery when she formulated her life care plan. Berenji neither spoke with nor received any information from any of Plaintiff’s treating physicians.
In sum, Defendants argued that because Berenji’s life care plan was based on generalized medical guidelines, rather than Plaintiff’s specific circumstances with his treating physicians, Berenji’s expert opinion was not based on “sufficient facts or data.”
Because she did not discuss the need for more surgeries with qualified physicians, the Court held that Berenji cannot offer the requisite reliability for her opinions because she necessarily relied on her own lack of expertise or resorted to a generic set of guidelines to support her opinions.
The Court disagreed with the suggestion that Berenji’s testimony “did not relate to any issue in the case.” Although it may be disputable and unreliable, it certainly would be relevant if allowed. That said, given that the Court agreed that Berenji’s testimony failed Rule 702’s other requirements (namely, her lack of qualification to provide spinal and other surgery recommendations and her lack of consultation with the treating physicians), the Court found that her expert testimony must be excluded.
Held
The Court granted Defendant’s motion to strike Manijeh Berenji because her testimony failed to meet the substantive standard for expert witnesses under Federal Rule of Evidence 702 and Daubert.
Key Takeaways:
The Court held that Berenji is unqualified to provide spinal and other surgery recommendations. She previously testified that she is not in a position to recommend spinal surgeries to patients and does not have training in the areas in which she recommended Plaintiff have treatment (spinal surgery, neurosurgery, orthopedics, physical therapy, pain management, optometry, or radiology).
The Court found that Berenji’s guideline recommendations are not based on any consultation with Plaintiff’s treating physician because she did not discuss the need for more surgeries with qualified physicians.
A district judge in Texas admitted the testimony of an industrial engineering and workplace ergonomics expert in order to get a better sense of the lifting activities performed by the Plaintiff on the date of her alleged injury.
Plaintiff (“Yoakum”) filed this personal injury lawsuit against Tyson after an injury she allegedly sustained while working the night shift at the Tyson Foods beef processing plant in Amarillo, Texas. Yoakum’s alleged injuries stemmed from her lifting a 97-pound box of meat off a conveyor belt to place it onto a pallet. When Yoakum lifted the box to place it onto the pallet, she alleged that she felt a pop in her back that was accompanied by pain.
On October 20, 2023, Yoakum served on Tyson the expert reports of her retained experts, which included Adam W. Pickens, P.h.D—whom she retained to opine on lifting safety and the risks associated with her lifting the 97-pound box. Pickens opined that Yoakum lifting a 97-pound box created a high risk of injury. His opinion relied on two tools that are not adopted by any industry, including the meatpacking industry: (1) the NIOSH Lifting Equation (“the Lifting Equation”) and (2) the Liberty Mutual Psychophysical Tables (“the Liberty Mutual Tables”).
Industrial Engineering Expert Witness
Adam W. Pickens is an expert in industrial engineering and workplace ergonomics. He holds a Bachelor’s degree in Biomedical Sciences and a Master’s of Public Health in Environmental and Occupational Health from Texas A&M University. He holds a Ph.D. in Industrial Engineering from Texas Tech University in Lubbock, Texas. Pickens worked as a graduate researcher and in industry for Alliant Techsystems. He was a NIOSH trainee and served as a scientific review expert for them for over 10 years. Since 2008 he has been on the faculty of Texas A&M University in the School of Public Health.
Tyson’s motion to exclude Pickens is focused on three arguments. First, Tyson argued that Pickens’ use of the Lifting Equation is inadequate and unreliable because he did not input values and “actually run” the Lifting Equation. Second, Tyson argued that neither the Lifting Equation, nor the Liberty Mutual Tables have been accepted in the meatpacking industry—or any industry—as the industry standard. Third, Tyson argued that Pickens’ opinion was unnecessary to assist the jury in understanding the evidence or answering any fact questions in the case because he failed to address key facts and circumstances of the case.
A. Pickens’ testimony is based upon sufficient facts and data
The Court observed that Pickens reviewed relevant filings on the docket, Yoakum’s employment files, Tyson’s “Safe Lifting Training” and “Lifting Do’s and Don’ts”, the depositions of Yoakum and her coworkers, and Pickens was provided with the weight of the box Yoakum was lifting when she allegedly injured her back.
He relied on two foundational works/tools: the NIOSH Lifting Equation—which has been accepted as reliable by several federal courts—and the Liberty Mutual Psychophysical Tables.
The Court noted Pickens’ substantial experience as an expert in workplace ergonomics and his experience as a NIOSH Trainee, for which he has served as a scientific review expert for over 10 years. Pickens also relied upon scientific literature and industry materials to use his expertise to form an opinion on Yoakum’s lifting task in this case.
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety.
B. Pickens’ testimony is the product of reliable principles and methods, and Pickens applied those principles and methods reliably to the facts of the case
1. NIOSH Lifting Equation
Pickens’ testimony relied in part on the NIOSH Lifting Equation. The Lifting Equation is a tool used to estimate safe lifting limits for the average adult in the workplace. Specifically, the Lifting Equation was developed by NIOSH to quantify injury risks associated with manual lifting. The Lifting Equation consists of a load constant (51 pounds) that is then multiplied by six variables that only serve to decrease the load constant. In other words, regardless of the values input into the variables, the highest output the Lifting Equation will ever produce is 51 pounds.
The Court found that the Daubert factors suggested that the Lifting Equation is sufficiently reliable to form the basis of expert testimony.
As to the first factor, the NIOSH Lifting Equation can be and has been tested. Likewise, the Lifting Equation has been subjected to peer review and publication; thus, the second factor is met. As to the fourth factor, the NIOSH Lifting Equation appears to be accepted in the field of ergonomics and workplace safety. Pickens acknowledged that the NIOSH Lifting Equation has not been explicitly adopted by any industries, including the meatpacking industry, but that it is applicable to the work force at large. The fifth factor is also satisfied as there is no evidence whatsoever that the NIOSH Lifting Equation was developed expressly for litigation. As to the sixth factor, Pickens did not unjustifiably extrapolate from an accepted premise to an unfounded conclusion. Finally, the field of ergonomics is known to reach reliable results.
In sum, the enumerated Daubert factors are largely applicable in this situation and weigh in favor of admitting Pickens’ expert testimony.
2. Liberty Mutual Psychophysical Tables
Not dissimilar from the Lifting Equation, the Liberty Mutual Tables are a tool that Pickens used that led him to his conclusion that the box Yoakum lifted in this case exceeded the safe limit under all circumstances. According to Pickens, the Liberty Mutual Tables indicated that no female can safely lift a 97-pound box during a workday without risk of injury. Like the 51-pound limit in the Lifting Equation, the Liberty Mutual Tables established that a woman should never, under any circumstances, lift more than 83.6 pounds during a workday without risk of injury.
The Liberty Mutual Tables, developed by Liberty Mutual Insurance, covered tasks such as lifting, lowering, pushing, or pulling. According to Pickens and his references, the Liberty Mutual Tables are the product of more than 40 years of research on lifting, lowering, pushing, pulling, and carrying and have been subjected to peer review and publication. Accordingly, the Court found that the Liberty Mutual Tables are reliable in and of themselves.
Likewise, Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinions. As noted, he reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds. The Court held that Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury.
C. Pickens’ opinions are relevant
The relevance inquiry requires the Court to consider whether the opinions of Pickens will assist the jury in understanding the evidence or answering fact questions.
Liability in this case is dependent upon a finding of negligence; therefore, the issue before the Court is whether Pickens’ testimony will aid the jury in determining negligence. The Court found that Pickens’ testimony is sufficiently relevant and will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury. In sum, Pickens’ testimony may inform the determination of whether Tyson was negligent.
D. Tyson’s criticisms of Pickens’ opinions are topics for cross-examination, not a basis for exclusion
Tyson took issue with numerous aspects of Pickens’ testimony. But the aspect that Tyson focused on most is that Pickens did not input values into the Lifting Equation to calculate a Lifting Index.
First, when asked why he “did not run” the Lifting Equation, Pickens testified that he did not have the information to input values into the variables and calculate a Lifting Index. Ultimately, Pickens concluded it is irrelevant that he did not input values into the equation and calculate a Lifting Index because the maximum weight the Lifting Equation called for without a risk of injury is 51 pounds. And in this instance, Yoakum allegedly lifted a 97-pound box, so there was no need for Pickens to run the equation. This is because no matter what values he put into the Lifting Equation, the highest possible output value would be 51 pounds; thus, Pickens’ conclusion would remain the same.
The Court found that the best mechanism for Tyson to attack Pickens’ testimony was through cross-examination, not exclusion.
E. The Lifting Equation and the Liberty Mutual Tables cannot establish the standard of care; however, the tools will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury
The Lifting Equation and the Liberty Mutual Tables are not adopted by any industry as industry standards. As such, the Court agrees with Tyson that neither the Lifting Equation nor the Liberty Mutual Tables can take the place of the applicable standard of care.
Because neither the Lifting Equation nor the Liberty Mutual Tables have been accepted by any industry, including the meatpacking industry, Yoakum cannot rely on either tool to establish the standard of care in this case. And the Court will refuse to allow testimony from Pickens to that effect. However, given his expertise, the tools he used, and his reliable application of the facts of this case, the Court permitted Pickens to testify that Yoakum faced a risk of injury when she was asked to manually lift the 97-pound box.
The Court held that Pickens’ testimony may rely on his application of the facts of this case to both tools he chose to utilize, but his testimony cannot establish Tyson breached its standard of care based solely on Yoakum having lifted a 97-pound box.
Held
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety. Moreover, the Court was confident that any issues Tyson had with Pickens’ methodology and opinions could be addressed on cross-examination.
The Court denied Tyson’s motion to exclude the testimony of Adam W. Pickens.
Key Takeaways:
Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury. Pickens reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds.
Pickens’ testimony satisfied the relevance inquiry under Daubert because it assisted the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury.
Considering there are no certainties in science, the Court decided that should Tyson wish to challenge any shortcomings in Pickens’ methodology or his application of the facts to either the Lifting Equation or the Liberty Mutual Tables, it may do so through cross-examination.
A district judge in Indiana held that it did not require an insurance litigation expert’s assistance to interpret contract language considering no party in this case appeared to dispute the actual language of the policy.
Plaintiff Brenda Marie Stephens is a real-estate appraiser and is the President of Plaintiff Accent Consulting Group (collectively, “Ms. Stephens”). Ms. Stephens demanded that Defendant Great American Assurance Company (“Great American”) provide legal representation for her under an insurance policy (the “Policy”) it issued related to a professional disciplinary hearing and Great American refused. After Ms. Stephens successfully defended herself in the hearing, incurring legal costs, she and Accent Consulting initiated this litigation against Great American. With leave of Court, Great American filed a counterclaim against Ms. Stephens and Accent Consulting, alleging that Ms. Stephens’ insurance application contained a misrepresentation — specifically, that she was not subject to any complaint, investigation, or disciplinary hearing even though she was.
The parties filed Cross-Motions for Summary Judgment. In Great American’s Cross-Motion for Summary Judgment, it requested that the Court strike the expert testimony of Ms. Stephens’ expert, Professor William Warfel.
Insurance Expert Witness
William Warfel is a professor of insurance and risk management at Indiana State University where he teaches classes such as Property/Liability Insurance, Health Insurance, Life Insurance, Introduction to Risk and Insurance, Commercial Liability Insurance, and Insurance Seminar.
Great American argued that Warfel was not “qualified” to offer expert opinions on real estate appraisal disciplinary actions and “merely attempted to explain the legal effect of” the Policy.
The Court observed that Ms. Stephens did not file any response to Great American’s Cross Motion for Summary Judgment, which contained the motion to strike the expert testimony. Well after the deadline, Ms. Stephens filed an unauthorized “sur-reply.” The sur-reply did not address the motion to strike expert testimony and instead argued that Great American had not demonstrated prejudice from allegedly late notice of her insurance claim.
The Court held that Warfel’s expert opinion is largely a rehashing of Ms. Stephens’ arguments. For example, Warfel opined that “the trigger of coverage issue must be evaluated within the context of the insuring agreement,” that “the underlying claim against [Ms.] Stephens became ripe once The Office of the Indiana Attorney General filed its original Formal Complaint against her,” and that “an expectation that an insured must report to the carrier all Consumer Complaints against the insured is entirely unreasonable.”
The Court did not require Warfel’s opinion since no party in this case appeared to dispute the actual language of the policy, and the interpretation of a contract is a question of law for the Court.
Held
The Court granted Great American’s motion to strike the expert opinion of Professor William Warfel as well as Great American’s cross-motion for summary judgment.
The policy was rescinded and Great American was ordered to return $1,109.00 in premiums to Accent Consulting Group, Inc.
Key Takeaway:
The Court, citing Delta Mining Corp. v. Big Rivers Elec. Corp., 18 F.3d 1398, held that “Absent any need to clarify or define terms of art, science or trade, expert opinion testimony to interpret contract language is inadmissible.” In other words, the Court may not resort to extrinsic evidence unless terms are ambiguous.
Case Details:
Case Caption:
Accent Consulting Group, Incorporated Et Al V. Great American Assurance Company
A district judge in Florida limited the testimony of a Business Valuation Expert Witness because he did not identify how exactly the CFO breached his unidentified standard of care.
This case arises out of Nextplat’s termination of its former Chief Financial Officer (“CFO”), Thomas Seifert. Nextplat contended in its Second Amended Complaint (among other things) that Seifert breached his employment contract with Nextplat and sought damages as a result. Specifically, Nextplat claimed that Seifert’s errant administration of a $45,000.00 wire in response to a phishing scam breached the section of the employment agreement that required him to act “with such duties, responsibilities and authority as are commensurate and consistent with his position, as may be, from time to time, assigned to him by the [Nextplat board of directors].”
The bulk of Nextplat’s breach of contract claim, then, hinged on whether Seifert adequately complied with that subsection of the employment agreement. To support its case, Nextplat sought to elicit testimony from Gary Moll, CPA, MSA, to opine on Seifert’s duties and responsibilities as CFO and whether Seifert’s adequately performed those duties and responsibilities. Seifert, of course, disputed that he breached the employment agreement and disputed that he acted beneath the CFO standard of care incorporated by the employment agreement.
Seifert filed a motion to strike the testimony of Gary Moll on February 3, 2023.
Business Valuation Expert Witness
Gary A. Moll is the Director of Forensic & Valuation Services at Fiske & Company, a CPA firm specializing in business valuation and litigation support services. He joined Fiske & Company in 2022 and has provided business valuation and litigation support services to manufacturers, wholesalers, retailers, medical practices, restaurants, service entities, and family limited partnerships, including valuing intangibles and intellectual property. He is a frequent speaker on topics such as business valuation, economic damages, and forensic accounting and has written articles on these topics. Additionally, he is a member of the American Institute of Certified Public Accountants (“AICPA”) Forensic & Valuation Section (“FVS”).
The Court first addressed Seifert’s argument that Moll should be excluded because he was not timely disclosed as an expert.
After both parties moved for deadline extensions, the Court extended the deadline for disclosing expert witness summaries and reports to November 11, 2022. Subsequently, the Court ordered that the parties disclose their expert reports on or before December 19, 2022. Seifert argued that, while Moll’s expert report was filed on December 19, 2022, Moll’s expert summary was not disclosed before November 11, 2022, nor was he even disclosed as an expert witness. Essentially, then, Seifert had no idea that Moll was going to be an expert witness—despite the November 11 deadline to disclose expert summaries—until on December 19 when his full expert report was disclosed. The proper remedy for this failure to disclose, argued Seifert, was to strike Moll as an expert witness.
Even if a disclosure is untimely, there must be resulting harm. The Court observed that Seifert still had (and will have) adequate time to prepare for Moll’s testimony.
The Court acknowledged Nextplat’s failure to adequately and timely disclose its expert witness. But Seifert suffered no prejudice and thus had no remedy under Rule 37(c)(1) since that failure was promptly cured.
B. Whether Moll is qualified
Seifert argued that Moll’s undisputed experience as a Certified Public Accountant (“CPA”), CFO, and financial analyst did not qualify him to render opinions in this case. Specifically, Seifert argued that Moll had not served as a CFO for a publicly traded company, and that his curriculum vitae failed to specify the amount of time for which he served in his roles. Further, Seifert took issue with the fact that Moll had never written internal accounting controls.
Moll’s testimony and expert report indicated that he had experience as a financial analyst for a company that underwent the IPO process, had served as a CFO, and had CPA experience relevant to internal control issues. Given Moll’s experience serving in positions and in factual situations relevant to this case, the Court found that Moll is at the very least “minimally qualified” to serve as an expert witness in this case.
C. Whether Moll’s methodology is reliable
In Moll’s expert report, he rendered two expert opinions still relevant to this case: (1) that the “CFO is tasked with creating systems and controls to ensure the safeguarding of company assets” and ensuring compliance with those controls; and (2) that Seifert’s administration of the errant $45,000.00 phishing scam wire fell “far short of proper conduct of a CFO.”
Seifert argued that Moll, in reaching his expert opinions, employed no accepted method or analysis; rather, he just offered his personal, unsubstantiated judgment as to what the CFO should have done. As Seifert characterized it, Moll’s report was primarily “based on his review of various articles, internet searches, and the allegations provided by Nextplat’s counsel.”
Seifert bolstered this argument with the fact that Moll largely inherited the file from two of his associates, and relied substantially on their research and investigation to draw his conclusions.
Seifert argued that Moll’s experience did not carry the burden of rendering his opinion reliable—this was in fact his first time researching the “niche area of cyber security and the CFO’s role.”
1.Moll’s opinion as to the responsibilities of a CFO
Moll concluded that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
The Court noted that Moll has experience as a CFO; as a financial analyst working closely with a CFO for a company who was undergoing the IPO process; and as a CPA and auditor. His experience in this arena is coupled with his review of relevant SEC guidelines and other scholarly articles on the topic.
While Moll did not employ a peer-reviewed methodology to conclude that CFOs are responsible for implementing and ensuring compliance with certain internal controls, Seifert did not suggest a method that should have been used instead, nor did he point the Court even to the existence of such a method for this niche, non-scientific request.
The Court held that Moll’s testimony—based on his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert. If Seifert finds his testimony to be “shaky” or wishes to attack the factual underpinnings of Moll’s opinion, he can do so before the jury.
2.Moll’s opinion as to whether Seifert fell short of the proper conduct of a CFO
Moll concluded that Seifert’s errant administration of the Phishing Wire fell “far short of proper conduct of a CFO.”
The Court acknowledged Moll’s general qualifications but held that Moll’s experience and methodology were not sufficient to produce reliable findings.
Moll admitted that assessing whether Seifert’s actions conformed with a CFO’s standard conduct was more of a “one off” than it is a “typical type project” for which he is engaged as an expert. In fact, Moll had never assessed whether a CFO has complied with his duties.
Moreover, Moll’s auditing experience did not include “an audit of internal controls,” and did not include “cybersecurity risk assessment measures.” Additionally, Moll’s audit experience involved private—not public—companies, and involved audits that he did not “run or manage.”
Moll concluded that it is the CFO’s job to “develop internal controls to prevent or to preserve the security of the assets of the company.” Moll plainly admitted that he did not know what internal controls Seifert should have put in place.
The Court held that the lack of relevant experience and expertise could not be overcome on a reliability analysis, especially when Moll concluded with certainty that Seifert’s actions fell “far short” of proper conduct. Also, a pivotal area of this case is cybersecurity—i.e., the area in which Moll believed Seifert acted below standard. Moll conceded in his deposition that this case represented his first time researching the “niche area of cyber security and the CFO’s role.”
Moll did not explain how he arrived at his conclusion that Moll breached his standard of conduct as CFO, leaving the Court to infer that, simply, Moll made a judgment call.
D. Whether Moll’s testimony will assist the trier of fact
For this analysis, the Court addressed only the portion of Moll’s proffered testimony that was deem reliable; i.e, that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
Seifert’s argument as to this prong was primarily aimed at the portion of Moll’s testimony that the Court held to be unreliable (i.e., the Seifert fell short of the proper conduct of a CFO). But to the extent Seifert may argue that the reliable portion of Moll’s testimony is unhelpful, the Court disagreed. Here, it would certainly aid a jury to hear from a proffered expert that the SEC requires internal controls, the burden to implement those controls falls on the CFOs of publicly-traded companies, and those controls should include cybersecurity measures. The nature of Moll’s testimony (i.e., the duties and expectations of a CFO in publicly-traded companies in the context of cybersecurity) clearly goes beyond the “understanding and experience of the average citizen.”
Additionally, much, if not all, of Seifert’s argument in this area attacked the implications of the factual underpinnings of Moll’s testimony. But it is well established that Seifert can attack those factual underpinnings at trial.
E. Whether Moll’s Limited Testimony is Misleading Under Rule 403
As for Seifert’s argument that Moll’s testimony is likely to mislead, confuse, and persuade the jury to follow his opinions, the Court addressed only the portion of Moll’s proffered testimony about the CFO being tasked with creating systems and controls to ensure the safeguarding of company assets.
To this point, Seifert’s only argument concerned the portion of Moll’s testimony that was already deemed unreliable; i.e., that Seifert breached the proper conduct of a CFO. And specifically, at the heart of that argument was Seifert’s viewpoint that Moll would offer an impermissible legal conclusion as to Seifert’s conduct. Seifert advanced no argument that the other, reliable portion of Moll’s testimony violated 403—especially because his legal conclusion concerns did not extend to Moll’s standard-based testimony. Accordingly, this issue was effectively moot.
Held
The Court granted the Defendant’s motion to exclude Moll’s opinion and testimony as to whether Seifert’s conduct here fell “far short of proper conduct of a CFO.” The Court denied the Defendant’s motion in all other respects.
Key Takeaway:
Moll never assessed whether a CFO had performed within his standard of care; had never researched cybersecurity; had not suggested what internal controls Seifert should have put in place; had not analyzed how Seifert breached his un-identified standard of care; had not identified the methodology he used to conclude that Seifert breached that standard of care; and did not, it appears, complete the bulk of the relevant research in his report. Moll’s invalidating testimony, lack of methodology, and dearth of direct experience undermine the reliability of his opinion that Seifert acted beneath the proper standard of conduct for a CFO.
Yet, Moll’s opinion about the responsibilities of a CFO —based on his experience as CFO, financial analyst, and CPA of similarly-situated companies; his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert.
