Expert Witness Profiler

Category: Expert Challenges

  • Colorado Court weighs reliable basis of Pathology Expert’s testimony over semantics in medical negligence suit 

    Colorado Court weighs reliable basis of Pathology Expert’s testimony over semantics in medical negligence suit 

    Plaintiff, Deborah Duran pursued claims of medical negligence and malpractice against the Defendants, Donald Corenman, M.D.; Sean Bryant, M.D.; Jack Anavian, M.D.; The Steadman Clinic, Professional LLC; And Trystain Johnson, M.D. arising from the untimely death of her husband, Gilbert Duran due to a rare melanic schwannoma. Plaintiff is not only Mr. Duran’s widow but also acted as the personal representative of her late husband’s estate. The core contention in this case was that the Defendants, purported medical professionals, had delayed in diagnosing Mr. Duran’s schwannoma upon its initial discovery in 2015. This alleged delay led to the tumor metastasizing, ultimately resulting in Mr. Duran’s demise in 2019. Plaintiff sought to preclude certain opinions of defense expert Dr. Gross regarding the tumor’s likely characteristics and poor prognosis in 2015, but the Court admitted it regardless because it weighed reliable basis over semantics dispute. 

    Anatomic Pathology Expert 

    John McMahon Gross, M.D., M.S. had been designated by the Defendants to provide expert testimony regarding the pathology issues in this case and offer an opinion on the likely characteristics of the tumor back in 2015. Following pathology residency, Dr. Gross pursued specialized fellowship training in bone and soft tissue at the University of Washington in Seattle, WA followed by additional fellowship training in surgical pathology at the Mayo Clinic in Rochester, MN. In 2020, Dr. Gross became an assistant professor in the Department of Pathology at Johns Hopkins where he specializes in bone and soft tissue and surgical pathology. Dr. Gross has an academic interest in bone and soft tissue tumors and has authored over a half dozen articles and chapters and given national and international presentations on sarcoma pathology. Dr. Gross’s stance was that the tumor had been malignant in 2015, carrying a grim prognosis even with early intervention. 

    The Plaintiff sought to exclude a specific facet of Dr. Gross’ expert opinion from consideration. 

    Discussions by the Court 

    Citing his March 30, 2022 expert report, the Plaintiff presented several arguments to strike Dr. Gross’ opinion that increased mitotic activity predicted malignancy. First, the Plaintiff contended that Dr. Gross had failed to provide supporting medical literature for this opinion which rendered it unsupported and undermined its credibility. Second, the Plaintiff argued that this opinion was irrelevant to the central issues of the case since it lacked empirical backing to contribute meaningfully to the understanding of Gilbert Duran’s circumstances. Third, even if considered relevant, the Plaintiff invoked Rule 403 of the Federal Rules of Evidence which suggested that any potential probative value of the unsupported opinion was outweighed by its potential for confusion or prejudice. 

    In response, the Defendants asserted that the Plaintiff’s contentions were mischaracterizations of Dr. Gross’ opinion and its underpinnings. They argued that the Plaintiff had introduced the term “predict” during the deposition, whereas Dr. Gross had framed his opinion as an association or correlation between mitotic activity and poor prognosis. The Defendants further maintained that Dr. Gross’ opinion was built upon sufficient facts and data and highlighted the Plaintiff’s own reference to the Torres-Mora study that supported his stance and was thoroughly discussed during Dr. Gross’ deposition. The Defendants contended that Dr. Gross’ opinion was reliable, relevant, and logically derived from existing scientific knowledge. 

    In conclusion, the Court faced the critical task of evaluating the admissibility of Dr. Gross’ opinion, specifically his opinion which suggested an association or correlation between high mitotic rates and poor prognosis. The outcome of this decision held significant weight, as Dr. Gross’ expert testimony had the potential to shape the Court’s understanding of the medical aspects of the claim. Balancing the arguments presented by both parties, the Court’s determination would impact the course of the case and potentially influence the attribution of liability and the assessment of damages. 

    Plaintiff’s central argument revolved around their assertion that Dr. Gross intended to provide testimony which suggested that increased mitotic activity in 2017/2018 predicted aggressive behavior of tumors and was predictive of the tumor in 2015. The Plaintiff equated this opinion with the notion that mitotic rate predicted malignancy. Additionally, the Plaintiff emphasized the viewpoint of Dr. Folpe, Dr. Gross’ mentor and a respected expert in the field, who disagreed with Dr. Gross’ opinion and did not subscribe to the belief that mitotic rate predicted metastasis. The Plaintiff fervently urged the Court to strike Dr. Gross’ opinion about increased mitotic activity being predictive of aggressive behavior. 

    The Plaintiff conflated the term “predicts” with “causation” in their argument which further intensified the matter. They illustrated this by drawing an analogy which asserted that just as a correlation between ice cream sales and shark attacks did not imply that consuming ice cream caused shark attacks, a similar principle applied to the correlation between increased mitotic activity and metastasis. The Plaintiff contended that association was never the same as prediction and exemplified this with the analogy of a person associating with a criminal not necessarily predicting that the individual will commit a crime themselves. 

    However, the Court concurred with the Defendants’ stance that the Plaintiff aimed to exclude an opinion that Dr. Gross did not actually present. After carefully examination of Dr. Gross’ written opinion and deposition testimony, it was apparent that the core of his written opinion centered on Mr. Duran’s tumor being an exceptionally rare type of sarcoma which possessed aggressive traits and a malignant histology. Dr. Gross maintained that the aggressive features noted in the tumor’s 2018 diagnosis were likely present in 2015 which indicated a bleak prognosis even if diagnosed earlier. He argued that the aggressive nature of the tumor would have made a significant impact even if treated in 2015. Dr. Gross concluded by stating that the tumor’s aggressive attributes and the presence of these traits in 2018 imply their existence in 2015, and that early diagnosis and treatment may not have prevented recurrence or metastasis. 

    Contrary to the Plaintiff’s assertions, nowhere in Dr. Gross’ report did he offer the specific opinion that a high mitotic rate predicted malignancy. Even during his deposition testimony, when asked about whether he believed that mitotic activity was predictive of malignant behavior, Dr. Gross responded by saying that it had been associated with a worse prognosis. Despite further pressing from the Plaintiff’s counsel, Dr. Gross consistently maintained that mitotic activity had been merely suggestive or associated with an unfavorable outcome. 

    In conclusion, the Plaintiff’s argument hinged on the interpretation that Dr. Gross asserted a predictive link between increased mitotic activity and aggressive behavior of tumors. However, the Defendants and the Court contended that Dr. Gross’ opinion did not explicitly express such a predictive relationship, but was suggestive of a relationship of association between a poor prognosis and high mitotic activity present in the subject tumor. This nuanced distinction became pivotal in determining the admissibility and weight of Dr. Gross’ expert testimony within the context of the case. 

    The crux of the dispute in this case appeared to center around a semantic distinction. The Plaintiff seemingly equated the phrase “predictive of” with terms like “caused” or “causation.” However, the Court did not find that Dr. Gross’ opinion, as articulated in both his written report and deposition testimony, could be interpreted as encompassing a notion of prediction. Furthermore, even if it were assumed to involve prediction, in the realm of medicine, “predictive” did not necessarily denote causation. The term “predictive value” in a medical context, as defined by Stedman’s Medical Dictionary, referred to the likelihood that a given test result correlates with the presence or absence of a disease. This definition aligned with Dr. Gross’ medical opinion and underscored the Court’s understanding that his opinion was grounded in a correlation, not a statement of causality. In other words, the court weighed the reliable basis over semantics. 

    The Plaintiff’s challenge to Dr. Gross’ qualifications or experience did not seem to hold weight in this argument. Dr. Gross evidently derived his opinions not solely from referenced medical literature and scientific sources, but also from his substantial education, training, and experience as a pathologist. Moreover, the Court deemed the Torres-Mora study and the World Health Organization Classification of Tumors – Soft Tissue and Bone Edition (5th Ed.), in conjunction with other factors referenced in Dr. Gross’ report, as sufficient support for his opinion. This collective foundation rendered his opinion adequately reliable. 

    Held 

    Dr. Gross’ opinion regarding any observed association, suggestion, or correlation between heightened mitotic activity and a poor prognosis in the specific tumor in question was indeed relevant to the Plaintiff’s claim of delayed diagnosis and the Defendants’ defenses. Considering all factors, the Court found no substantial basis under Fed. R. Evid. 403 to exclude Dr. Gross’ opinion from the proceedings. This ruling acknowledged the relevance, reliability, and context of Dr. Gross’ testimony within the broader framework of the case. 

    The Defendants have effectively fulfilled their obligation to demonstrate that Dr. Gross’ opinion met the criteria stipulated in Fed. R. Civ. P. 702. It is worth noting that the Plaintiff retained the prerogative to subject Dr. Gross to thorough and respectful cross-examination regarding the matters addressed in her motion and during Dr. Gross’ deposition. Consequently, the Court denied the motion and upheld the admissibility of Dr. Gross’ opinion as evidence in the case. Since the remaining issues are yet to be resolved, the Court has not reached a final outcome for this case as of now.

    Key Takeaways 

    1. The Court rejected the Plaintiff’s argument that the expert’s opinion lacks sufficient basis and should be excluded as irrelevant or prejudicial. 
    1. The Court found the defense expert does not actually opine that mitotic activity predicts tumor metastasis or malignancy, only that there is an association or correlation between high mitotic rates and poor prognosis. 
    1. The Court viewed the dispute over the language used by the expert as merely semantic in nature. The term “predictive” does not necessarily imply causation in a medical context. 
    1. The Court held the expert’s opinions are sufficiently reliable based on his qualifications/experience as a pathologist and the medical literature cited in his report. 
    1. The Court found the expert’s views relevant to the issues in the medical malpractice case regarding delayed diagnosis and defenses. 
    1. The Court ruled the defense satisfied its burden under Rule 702 to show the testimony is admissible expert opinion. 
    1. The Court emphasized the Plaintiff can vigorously cross-examine the expert about his opinions at trial. 
    1. The Court denied the motion to strike/preclude the expert’s testimony, allowing him to offer opinions at trial on the characteristics of the tumor and likely prognosis. 

    In summary, the key takeaways are that the Court allowed the defense expert to testify despite Plaintiff’s challenges, finding his opinions supported, relevant, and reliable based on the appropriate expert methodology and standards. The Court saw flaws only in the semantics used to describe the opinion, not the underlying basis. 

  • Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Employment Law expert's testimony excluded

    Plaintiff Amanda Benson, a female firefighter/EMT, has initiated legal proceedings alleging violations of her civil rights against multiple defendants, including the City of Lincoln, Nebraska, various city officials, and personnel from Lincoln Fire and Rescue (LFR). Benson was hired by LFR as a Firefighter/EMT on July 1, 2013, and was permanently assigned to Station 8 and the Engine 8 crew for C shift on October 15, 2014. Subsequently, she became Acting Captain on Engine 1 at Station 1 and later Acting Captain of Truck 1 at the same station. 

    Benson contends that she experienced sexual discrimination, harassment, and retaliation throughout her tenure with LFR. The alleged mistreatment were largely linked to conduct attributed to Captain Shawn Mahler, who was the leader of the Truck crew at Station 8. She formally lodged complaints with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and with the federal Equal Employment Opportunity Commission (EEOC) on October 14, 2020. Notably, many of Benson’s claims regarding discrimination, harassment, and retaliation are tied to Captain Mahler’s actions. 

    A significant incident occurred on April 26, 2021, during which LFR responded to a warehouse fire involving both Benson’s crew in Truck 1 and Mahler’s crew in Truck 8. Benson asserts that Mahler abandoned her during this event, posing a potential threat to her and her crew’s safety. On May 5, 2021, Benson reported the incident and lodged a formal complaint with her superiors at LFR, contending that Mahler’s actions during the warehouse fire could have potentially killed or seriously injured her and her team. 

    Following an internal investigation, Fire Chief David Engler, who is not a party to this litigation, concluded that Benson’s allegations against Mahler were false and that her behavior amounted to obstructing LFR’s operations and casting discredit on the department. Consequently, Engler found “good cause” for her dismissal. 

    Benson disputed the findings of the internal investigation and commenced legal action by filing her original Complaint in Lancaster County, Nebraska’s District Court on July 6, 2018. The defendants opted to remove the case to federal court. However, her Fourth Amended Complaint, submitted on November 11, 2021, stands as her current operative pleading. 

    In her Fourth Amended Complaint, Benson asserts eight distinct causes of action. Her primary claims include allegations of a sexually hostile work environment, retaliatory harassment, sexual discrimination, and retaliation, with some claims brought under the Nebraska Fair Employment Practice Act (NFEPA) and others under Title VII of the Federal Civil Rights Act. Furthermore, she alleges violations of the Equal Protection Clause of the United States Constitution against both the City of Lincoln and individual defendants. 

    The Defendants countered by jointly filing an Answer on December 6, 2021, wherein they denied Benson’s claims and put forth various affirmative defenses. A subsequent court ruling addressed a Motion for Partial Summary Judgment by Benson and a Motion for Summary Judgment by the defendants. The court denied Benson’s motion concerning certain affirmative defenses and rejected the defendants’ motion for summary judgment regarding all claims detailed in Benson’s Fourth Amended Complaint. Benson offered the testimony of a forensic psychiatry expert and employment law expert to substantiate its claims of employment discrimination, harassment, and retaliation. As discussed below, the Court excluded the testimony of the employment law expert but admitted the testimony of the forensic psychiatry expert.

    Forensic Psychiatry and Employment Law Expert Witness

    Defendant filed successive Daubert motions to exclude the testimony of Benson’s experts Dr. Christiane Tellefsen, M.D. and Amy Johanna Oppenheimer J.D., B.A. 

    Dr. Christiane Tellefsen is a board-certified general and forensic psychiatrist, retained to provide opinions regarding Amanda’s medical diagnoses, causation, and damages. 

    Amy Oppenheimer is an attorney retained to offer expert opinions on the acceptable human resources practices of employers in response to complaints of workplace discrimination, harassment, and retaliation and whether Defendants’ actions with respect to Benson met the standard of care. 

    Discussion by the Court 

    Dr. Christiane Tellefsen

    Dr. Christiane Tellefsen was retained by Benson to opine on whether or not Benson had an disorder and if she did, Tellefsen was required to assess the possible effects it could have on Benson’s employment at the Lincoln Fire Department in Lincoln, Nebraska. Tellefsen was of the opinion that Benson had major depressive tendencies which exacerbated her PTSD symptoms resulting from her employment at the Lincoln Fire Department and that the nature of her condition was chronic which necessitated ongoing treatment. 

    Dr. Tellefsen reviewed the report of a neuropsychological evaluation conducted by Defendants’ expert Dr. Robert George Arias, Ph.D. and on her second report dated December 10, 2020 opined that Dr. Arias’ report was inconsistent with Benson’s history and treatment and the symptoms of personality disorder listed by him were either incorrect, such as pill abuse, or more fully consistent with her PTSD. Dr. Tellefsen opined that Benson relapsed into her depressive tendencies and anger issues stemming from her abusive childhood as a result of her situational stress at the Fire Department. She also attributed  Benson’s physical problems resulting from her work related injuries and her loss of relationships to situational work-related stress. 

    Defendants have not challenged the qualifications of Expert Tellefsen but have instead questioned the relevance of Tellefsen’s testimony contending it was of little assistance to the trier of fact. Expert Tellefsen has not elaborated which aspect of Benson’s employment exacerbated her mental health problems or how discrimination, retaliation or harassment worsened her mental health condition and not workplace stressors common to all firefighters.  

    But the Court however held that Tellefsen’s opinions were suggestive of Benson’s deteriorating mental health being linked to the discrimination, retaliation and harassment she was subjected to at her workplace instead of workplace stressors common to all firefighters because Tellefsen had acknowledged, especially in her deposition, that despite the existence of both sources of stress, Benson was able to cope successfully with the common stressors.  

    Defendants also contended that Tellefsen’s testimony lacked a reliable methodological basis considering her diagnosis of the sources of Benson’s mental health issues was not based on verifiable test results or scientific testing. For instance, Tellefsen by her own admission had ceased to use the Minnesota Multiphasic Personality Inventory (MMPI). 

    The Court noted that Tellefsen’s forensic methodology of conducting a psychiatric examination was universally recognized in the psychiatric community as a reliable method for differential diagnosis and causation analysis. Besides, the Court was of the opinion that the jury should take into account the sufficiency and validity of the reasons that Tellefsen stated for precluding the use of MMPI instead of rejecting her testimony for not using that one particular diagnostic tool. The Court admitted the testimony of Expert Tellefsen but nevertheless permitted the defense to pursue the issue through means of cross examination. 

     Amy Oppenheimer

    Oppenheimer is an attorney not licensed in Nebraska who was retained by Benson as a human resources expert to review the Defendant’s human resource practices with regard to allegations of discrimination, harassment and retaliation. Oppenheimer was tasked with opining on typical and acceptable human resource practice with regard to responding to and investigating complaints of employment discrimination.  

    Oppenheimer listed multiple flaws and deficiencies in the Defendant’s response to and investigation of Benson’s workplace discrimination, harassment and retaliation claims and concluded that Defendant’s termination of Benson was wrongful. 

    The Court held that Oppenheimer’s opinions were of no assistance to the trier of fact. The Court does not question the reliability of Oppenheimer’s testimony or her qualifications but held that Oppenheimer opined on matters of law which invaded the province of the Court such as her testimony on the acceptable human resource practices Defendant was supposed to follow to conduct its investigation of Benson’s claims seeks to define the “standard of care” followed by the Defendants by something other than this Court’s statement of the applicable law. Moreover, the testimony by Oppenheimer about reasonable investigation techniques that Defendants could have employed does not properly demonstrate the inadequacy of the investigation techniques Defendants did use. 

    Held 

    The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Tellefsen but granted the Defendants’ Daubert motion to exclude the Testimony of Plaintiff’s expert Oppenheimer. Since the issues involved in this case are yet to be resolved, the outcome of the case remains to be seen. 

    Key Takeaways: 

    1. Legal Conclusions: The expert is not allowed to invade the jury and the Court’s province by drawing conclusions as to matters of law. Oppenheimer in the instant case sought to define the “standard of care” by something other than the Court’s statement of the applicable law which served as basis to exclude her testimony. 
    1. Reliability of the testimony: Defendant sought to exclude the testimony of expert Tellefsen primarily because she precluded the usage of MMPI, a standardized diagnostic tool which did not warrant exclusion as was held by the Court because the Defendant was required to look into the sufficiency and validity of the reasons Tellefsen cited for excluding MMPI. 
  • Alaska District Court Limits Insurance Expert’s Testimony  

    Alaska District Court Limits Insurance Expert’s Testimony  

    In the spring of 2018, a building that Plaintiff, Tundra Mountain Holdings, LLC owned allegedly “suffered damages consisting of building roof failure due to snow load.” Plaintiff subsequently submitted a insurance claim to the Defendant, Markel Insurance Company. As per the report of Planning, Design & Compliance Engineers, it was recommended that snow guards be installed as a “life-safety concern” and that all 28 rafters be replaced with new beams but the recommendation of Planning, Design & Compliance Engineers did not state that replacing all 28 rafters was required by any law or ordinance nor was there any mention of replacing the metal roof on the building or anything about the water system or sprinkler system. 

    Rklawton, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

    Seim Construction’s proposal for estimate of repair based on the report submitted by Planning, Design & Compliance Engineers was for $687,500. Defendant only paid “$117,406.78” on Plaintiff’s claim because Defendant contended that the $687,500 repair estimate included upgrades that were not required by “ordinance or law.” Defendant subsequently sent Plaintiff a Reservation of Rights Letter stating that Plaintiff’s insurance policy excluded coverage for defective designs which in this case was the roof, the loss or failure of which was due to poor construction and not due to the alleged weight of ice and snow. 

    Plaintiff subsequently commenced this action on April 02, 2020 asserting a breach of contract claim, a tortious bad faith claims handling claim, and a breach of the covenant of good faith and fair dealing claim.  

    Insurance Claims and Accounting Expert Witness

    Plaintiff offered the testimony of Elliott S. Flood J.D., M.P.A to opine on insurance industry customs, practices, and standards. Elliott S. Flood  has over 30 years of experience in the insurance industry and has “worked as an investigator and defense attorney for major insurers, as well as insureds” and “as an executive for an insurance company” serving as “vice president of special investigations” and then as “senior vice president of internal audit.” 

    Defendant filed a motion to exclude some of his opinions. 

    Discussion by the Court 

    Flood opined that the amount of the bid from Seim Construction to repair to minimum code requirements was $687,500 and that Defendant’s payment of $117,406.78 did not meet the minimum code requirements to repair the losses. Flood also opined that Defendant lacked reasonable basis to exclude paying for the cost of repairs necessary to rebuild as per the minimum current building codes requirements as reflected in the Seim proposal.

    The Defendant called into question Flood’s expertise to render opinions related to Seim Construction’s bid, repair costs, building codes, and insurance contract interpretation because he is not a certified engineer or architect and he has no expertise in construction, renovation, or restoration of a commercial building. Flood also had no expertise in the application of the building codes or ordinances that applied at the relevant time. By Flood’s own admission, he lacked expertise in building codes and specifically only dealt with the general concepts of insurance and what they meant. 

    At his deposition, Flood testified that this case was a straightforward adjuster issue of building back to the code standards which involved meeting minimum requirements for repairing the loss that might imposed by the code. Defendant argued Flood’s lack of expertise in building codes made him unqualified to opine on whether Seim’s proposal adhered to legal requirements. His opinions on such issues therefore lacked a reliable basis. 

    Flood opined on the defective design exclusion. He contended that even if there was a flawed design, coverage wouldn’t be negated if a covered peril caused the loss, like collapse due to snow weight. Flood argued that Potter’s theories of the defective design exclusion were unsupported and criticized the Defendant’s decision to send a Reservation of Rights stating the loss or partial failure to the roof was due to poor construction and was not due to the weight of ice and snow letter based on it. Defendant asserted that Flood’s opinions amounted to legal conclusions and thus should be excluded. 

    Flood’s evaluation of the Defendant’s net worth was challenged by the Defendant on grounds of relevance but the Court held that the law found it relevant to a jury’s consideration of the amount of punitive damages citing Flood’s background as the former head auditor and Certified Public Accountant with special expertise in insurance accounting. 

    The Court granted the motion to exclude regarding the rest of Flood’s opinion, admitting Flood’s testimony only in part. 

    The Court also held that Flood opining on:

    • the amount of the bid from Seim Construction to repair to minimum code requirements or
    • the Defendant’s payment being short of the Seim Construction price, the lowest bid, to re-build back up to code or
    • the Defendant lacking reasonable basis to exclude paying for the cost of repairs necessary or
    • the defective design not defeating coverage or Potter’s theories being baseless or the Defendant’s lacking reasonable basis to send the Reservation of Rights letter

    encroached upon the province of the Court and the jury.  

    Held 

    The Court admitted Flood’s testimony in part.

    Key Takeaways: 

    1. Legal Conclusions: An expert witness is expected to examine and analyse the facts of the issues involved based on their training and expertise and opine on matters beyond the understanding of the lay person. Courts always reserve the authority to draw conclusions on matters involving questions of law and the expert is not permitted to breach the province of the Court or the jury. 
    2. Qualifications: The expert is not permitted to opine beyond the scope of their qualifications. Due to Flood’s lack of expertise in construction, renovation, or restoration of a commercial building or in the application of the building codes or ordinances applicable at the relevant time, the Court rejected Flood’s testimony regarding the Defendant’s payment being inadequate to cover the cost of repairs as per the minimum code requirements. 
  • Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Legal Gavel and Scale - Symbol of Justice

    In this case, Plaintiff Jaketra Bryant is representing her minor son, C.B., who has Autism Spectrum Disorder (autism) and Attention Deficit Hyperactivity Disorder (ADHD). They are asserting claims of unlawful racial and disability-based discrimination against Calvary Christian School of Columbus, Georgia. The school is a private elementary school affiliated with Calvary Baptist Church, receiving state and federal funding. C.B. was enrolled in the Discovery School Program, a small instruction-based program for students with learning difficulties which had a 5:1 student-teacher ratio. To qualify, students needed an Individual Education Plan (IEP), a 504 Plan, or a psychological evaluation. C.B.’s evaluation diagnosed autism and ADHD, recommending specific accommodations. 

    At first, C.B. performed well academically. However, during his seventh year, he exhibited certain behavioral issues, including temper outbursts, class disruption, throwing objects and misusing his laptop. The school recommended Applied Behavioral Analysis (ABA) therapy and medication evaluation, which the Plaintiff did not pursue initially. C.B. and another student reported racial comments, but no action was taken. 

    After more such incidents, C.B. was suspended, and the school decided to shift him to virtual instruction due to his behavioral challenges. The school required completion of ABA therapy in a classroom setting for him to return to in-person classes. A therapy plan was devised by Kya Grier Williams involving in-person instruction and shadowing. The therapy plan included fifteen hours of in-person instruction at Calvary where an assistant would shadow C.B. during class to support implementation of the plan. Alternatively, Williams offered to train Calvary staff on ABA behavioral therapy techniques for free to help ensure that the therapy plan was implemented correctly. 

    Shortly after being briefed on the therapy plan, Headmaster Koan was reluctant to go through with the execution of the plan because it required C.B.’s return to campus in person without proof of his satisfactory progress. Since the headmaster was hesitant to implement it, it led to an impasse. The school eventually considered C.B. withdrawn as a student. 

    Overall, the case involves allegations of discrimination, inadequate support for C.B.’s special needs, racial comments, and disputes over the implementation of therapy and accommodations. 

    Behavioral Therapy Expert Witness

    Calvary School moved for summary judgment on all of Bryant’s claims under the 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

    Calvary also moved to exclude the expert testimony of Bryant’s expert Kya Grier Williams M.S., BCBA, LBA on individualized behavioral interventions alleging that her recommendations were wrong. 

    Williams is a licensed behavioral therapist, dedicated to and specializing in the treatment of behavioral issues in children and adolescent diagnosed with Autism and related Developmental Disorder, and Addiction and Compulsion in teens and adults.

    Discussion by the Court 

    The Court held that based on the facts of the case, though C.B did have a disability within the meaning of the Rehabilitation Act, Bryant does not seriously dispute that C.B. violated Calvary’s behavioral standards by throwing objects in class and misusing his laptop or contend that Calvary’s progressive disciplinary responses to each incident were atypical punishments when Bryant asserts that Calvary denied C.B. the following accommodations: enforcement of the positive reinforcement behavior plan in Ms. Cameron’s class, transferring C.B. to a teacher other than Ms. Cameron, and allowing C.B. to return to in-person classes at Calvary in the spring 2021 semester under the conditions of C.B.’s ABA behavioral therapy plan.

    The Court noted that Calvary incorporated sufficient adjustments such as:

    • Implementing all of C.B.’s psychologist’s recommendations, including his recommendation that C.B. be put on a behavior plan that incorporated positive rewards,
    • Adjusting the conditions of his dismissal to enable C.B. to return in person by fall 2021 without having to enroll in another school,
    • Allowing C.B. to continue attending Calvary through its virtual learning program for the rest of fall 2020 and
    • Even granted Bryant’s request to allow C.B. to continue learning virtually in spring 2021 in an effort to accommodate C.B.

    Based on the above, the Court granted Calvary’s summary judgment motion on Bryant’s Rehabilitation Act claims. 

    The Court also held that to establish a prima facie case of discrimination, Bryant must show that:

    1. C.B. is a member of a protected class
    2. He suffered an adverse action
    3. He was qualified to attend Calvary under Section 1981 of the U.S. Code and
    4. Calvary “treated ‘similarly situated’ [students] outside his class more favorably.”

    The parties do not dispute that C.B., a black male, is a member of a protected class, that he was qualified under Section 1981 of the U.S. Code or that he suffered an adverse action when Calvary dismissed him. The Court noted that to establish discrimination, Bryant must show that Calvary treated similarly situated individuals more favorably. A “similarly situated” comparator is typically someone who engaged in the same misconduct and had a similar disciplinary history as C.B.

    Bryant contended that the increasingly racially hostile environment at Calvary exacerbated C.B.’s disability manifestations, which led to his outbursts in class.The Court noted that this argument did not show that Calvary’s asserted reasons for dismissing C.B. were excessive or unjustified based on Calvary’s progressive discipline of C.B. after each behavioral incident (first checkmark, then suspension, then removal from in-person classes). 

    The Court also granted summary judgment on Bryant’s section 1981 claim. 

    Bryant further contends the following conduct is actionable racial harassment:

    1. Student comments in a virtual meeting about “God hating blacks and gays;”
    2. Director Jones’s comment to Bryant that C.B. needs to be careful or he “would end up with his hands behind his back;”
    3. Calvary’s repeated encouragement that Bryant have C.B. evaluated for medication; and
    4. Calvary forcing another black male student to withdraw from the school. 

    The Court found that this conduct did not rise to the level of actionable racial harassment. Although the comments made by the students were offensive and unacceptable and the Court understood how Director Jones’s comments could have been interpreted as insensitive, the Court found that these isolated comments were not sufficiently pervasive such that they effectively denied C.B. equal access to education. 

    Calvary School’s repeated insistence on evaluating C.B. could not be construed as objectively offensive or race-related conduct considering Calvary School wanted to effectively manage C.B.’s repeated classroom disruptions and also because Dr. Kevin Weis, C.B.’s treating doctor, had also recommended a physician’s evaluation for potential evaluation. 

    Moreover, when Bryant contended that Calvary forced another black male Discovery School student to withdraw from Calvary around the same time C.B. withdrew, she failed to back-up her claim with adequate evidence. Also, Bryant did not dispute that Calvary also expelled at least four white students and barred two others from in-person classes during C.B.’s time at the school. 

    The Court concluded that Calvary School was entitled to summary judgment on Bryant’s Title VI of the Civil Rights Act of 1964 claims. 

    Calvary School challenged the testimony of Plaintiff’s expert Kya Grier Williams arguing that Ms. Williams lacked adequate behavioral data to base her initial hypothesis on and to add to that she never tested her initial hypothesis. Moreover, Williams recommended that C.B. receive twenty hours of intensive, one-on-one behavioral services every week, for a six-month period. Essentially, she wanted CB to have a one-on-one shadow for half the school day in case he acted out again without taking into account the possibility that more intensive interventions can even have negative consequences as far as behavioral services or accommodations are concerned.  

    Held 

    The Court granted Calvary’s summary judgment motion on Bryant’s claims under Title VI of the Civil Rights Act of 1964, under Section 1981 of the U.S. Code and Section 504 of the Rehabilitation Act as a consequence of which it terminated Calvary’s motion to exclude Bryant’s expert Kya Grier Williams as moot. The Court entered the judgment in Defendant Calvary School’s favor stating that Plaintiff shall recover nothing of Defendant and Defendant shall also recover costs of this action. 

    Key Takeaway:

    In this case, the Court ruled in the Defendant’s favor and held that even though comments made by the students were offensive and the school’s conduct can possibly come across as insensitive in more than one instance, it does not constitute actionable harassment considering the school had made necessary adjustments in accordance with the psychological evaluation to accommodate C.B. and henceforth Williams’ testimony on individualized behavioral interventions submitted by the Plaintiff to substantiate its claims against the Defendant was no longer relevant for the Court to decide the issues involved in this case based on which the Court declared the Defendant’s motion to exclude Williams’ testimony moot. 

  • Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Image: Female Athletes Participating in Sports - Title IX Violations Case

    Title IX violations expert testimony

    Plaintiffs, Elizabeth Niblock and Meredith Newman filed this class action complaint against the University of Kentucky Director of Athletics, Mitch Barnhart, President, Eli Capilouto and Board of Trustees (collectively “UK”) alleging practices violative of the Title IX of the Education Amendments Act of 1972, an act prohibiting sex-based discrimination of any form in any school or any other education program that receives funding from the federal government. UK has refused to add any female sports to help bridge the participation gap between male and female student athletes. Due to lack of women’s opportunities, female student athletes are being deprived of the same scholarship opportunities as male student athletes. In other words UK is promoting men’s sports at the expense and detriment to women’s sports.  

    Gender Equity Expert

    Plaintiffs have offered the testimony of expert, Donna Lopiano, the president of Sports Management Resources, LLC, her own, single-member LLC through which she runs a consulting practice “that focuses on helping educational institutions and sport organizations solve sports program integrity, equity, growth, and management challenges.” Donna Lopiano has opined that UK was not accommodating the interests and abilities of female students under Prongs One, Two, or Three of Title IX’s participation options which emphasize on the number of male and female student-athletes being proportional to the overall male and female student enrolment in the institution, on the school in question demonstrating a history and continuing practice of expanding athletic opportunities for female students to align with their interests and on schools with disproportionate athletics programs not currently expanding, to comply with Title IX by demonstrating that their existing program adequately accommodates the interests of female students. Lopiano further testified that UK failed to regularly and properly assess the interests and abilities of the underrepresented sex for the purpose of identifying unmet interests and abilities.  

    Lopiano also concluded that UK had only considered adding the financially least expensive and alumni/audience appealing women’s sports, women’s sports that have never appeared on UK interest and ability surveys. 

    Lopiano stated that UK would be unable to count its current UK sideline cheerleading squad and the dance team as varsity sports and participants as varsity athletes, whether or not coaches, scholarships or other services were being provided to these programs and also added that UK’s proposed plan to add a women’s Stunt and women’s junior varsity soccer team did not achieve Prong One gender equity. UK demanded exclusion of the testimony of Plaintiff’s expert Donna Lopiano. 

    Discussion by the Court 

    Defendant contended that all of Lopiano’s proposed opinions should be excluded considering they constitute legal conclusions or are otherwise inadmissible for various reasons such as lack of required qualifications or lack of a reliable basis. 

    The Court admitted the Defendant’s argument that Lopiano crossed the line into impermissibility when Lopiano opined about UK’s current compliance with Title IX. Plaintiff replied that Lopiano merely wanted to establish industry standards for compliance yet in her report Lopiano “compares what UK has done on all elements—compares it to what Title IX requires” and stated that her report was “all about the University of Kentucky’s fact situation compared to the Title IX standards.” Moreover, Lopiano’s expert report does not consist of opinions about other universities’ compliance. The Court held that Lopiano’s opinions amounted to legal conclusions. 

    Defendant also alleged that Lopiano’s opinions on participation derived from the Equity in Athletics Disclosure Act (“EADA”) survey analysis are premised on the cursory analysis performed by Lopiano and hence are unreliable, irrelevant, and unhelpful to the trier of fact. Lopiano testified that she compared a University’s EADA submissions with website participant counting data and actual NCAA (National Collegiate Athletic Association) squad lists instead of performing the comparison and using only publicly available EADA data to form the basis of some of her conclusions. 

    The Court also found that Lopiano ceased to examine the specifics of UK’s Cheer or Dance teams in performing her analysis and though Plaintiff contends this argument should go to the weight of Lopiano’s testimony instead of its admissibility, the Court held that whether certain teams should be counted for the purposes of Title IX compliance fell under its domain instead of Lopiano’s and henceforth it could not be reasonably concluded if Lopiano’s testimony was relevant or helpful to the trier of fact. 

    When the Defendant testified that Lopiano’s opinions regarding the UK’s athletic interest surveys should be excluded considering she was unqualified to offer such opinions, the Court observed that despite Lopiano’s extensive history and involvement in women’s sports and the area of Title IX, she was not a survey design expert and by her own admission had relied on another survey design expert’s work to form her own conclusions and held that her opinions regarding athletic interest surveys were beyond her area of expertise. 

    Since the proceedings are ongoing, the outcome of the case remains to be seen. 

    Held 

    The Court excluded the opinions and testimony of Plaintiff’s expert Donna Lopiano because they consisted of legal conclusions, lacked a reliable basis and Lopiano opined on topics beyond her area of expertise. The outcome of the case is yet to be decided since the issued involved in the case still remain unresolved. 

    Key Takeaways:

    1. Legal Conclusions: The Court found that Lopiano compared the University of Kentucky’s fact situation with the standards and requirements of Title IX of the Education Amendments Act of 1972 without following it up with reports of other universities’ compliance as was required for objective assessment. The Court, henceforth, concluded that the testimony of Lopiano amounted to legal conclusions in this case. 
    1. Reliability: The Court held that Lopiano’s conclusions lacked a reliable premise on account of being based on publicly available Equity in Athletics Disclosure Act (“EADA”) data instead of her own comparisons or specifics of UK’s Cheer or Dance teams not being adequately examined by her in performing her analysis. 
    1. Qualification: Though recognized as one of the foremost national experts on gender equity in sport, Lopiano, unfortunately, by her own admission is not a survey design expert. Usually the Court deems an expert qualified to opine if the topic is sufficiently within the confines of the expert’s scope of expertise but athletic interest surveys were not within the confines of Lopiano’s expertise. 
  • Michigan Court excludes the misleading testimony of Mechanical Engineering Expert in Maritime Personal Injury Action

    Michigan Court excludes the misleading testimony of Mechanical Engineering Expert in Maritime Personal Injury Action

    Mechanical Engineering Expert Testifying in Court

    Plaintiff Hussein Al Qari was employed as a Steward’s Assistant aboard Defendant American Steamship Company’s vessel, the M/V H. Lee White. Plaintiff alleges that on November 5, 2020, he was climbing a flight of stairs from one level of the vessel to another, while carrying a box containing six jars of coffee grounds. He had one hand on the handrail and the other hand on the box. The box started to slip, and Plaintiff let go of the handrail to try to catch the box, lost his balance, and fell. Plaintiff claims he was seriously injured as a result of falling down the stairs. 

    On March 24, 2021, Plaintiff filed this lawsuit against Defendant based on his November 5, 2020, fall and injuries, asserting claims for (1) Jones Act Negligence, 46 U.S.C. § 30101, et seq. (2) Unseaworthiness under the general maritime law of the United States, and (3) Intentional/Negligent Failure to Provide Maintenance and Cure under general maritime law.  

    Facts of the case 

    In support of his claims, Plaintiff produced the expert report of Captain Daniel Franklin, a Licensed Master of Unlimited Tonnage on the Great Lakes and a Federal Seaway Pilot in District 2, and then supplemented with this expert — Dr. John Samuel Morse, Ph.D., P.E., a mechanical engineer with experience in teaching, research, and industrial applications, primarily in Occupational Safety and Health Administration (OSHA) cases. 

    Morse opined that Plaintiff removed his left hand from the handrail because the cardboard tray of coffee cans was slipping from his right hand and subsequently fell on the ships [sic] ladder when he lost his balance. Morse alleged that American Steamship Company violated the standard of care by ignoring the potentially dangerous condition since this incident could have been avoided if Morse had been equipped with an alternative means of carrying the cardboard tray of coffee cans, such as a backpack or supplied with an alternative means of moving the items to the main deck, such as a lifting system including a bucket and rope or mailbag and rope. 

    Defendant demanded exclusion of the testimony of Plaintiff’s expert Dr. John Samuel Morse. 

    Discussion by the Court 

    Morse cited four OSHA regulations pertaining to “Walking-Working Surfaces” generally. More specifically, these regulations pertain to ladders, stairways , and fall protection such as each ships [sic] ladder being equipped with handrails on both sides which applies regardless of how narrow the ships [sic] ladder is, or if one side or both is enclosed and each ship stairs and alternating treat type stairs being equipped with handrails on both sides. Morse added that it was the employer’s duty to ensure that no employee carried any object or load that could cause the employee to lose balance and fall while climbing up or down the ladder and that this regulation should be followed for loads carried on stairways. 

    Defendant’s motion to exclude the testimony of Morse rested primarily on the fact that OSHA regulations did not apply to U.S. Coast Guard inspected vessels, like the M/V H. Lee White which even the Plaintiff did not dispute but contended nevertheless that most of Morse’s opinions did not reference OSHA at all and were based on his remarkable experience of investigating over 575 ladder and climbing equipment accidents.  

    Defendant argued that Morse’s opinions were based on irrelevant OSHA regulations which if admitted would cause a significant risk of unfair prejudice and mislead the jury. 

    The Court agreed with the Defendant and held that OSHA regulations referenced by Dr. Morse were irrelevant to the claims and defenses in this case and confirmed their inadmissibility as non-binding evidence of the standard of care. 

    The Court also noted that any expert testimony Dr. Morse could provide regarding the physical structure or condition of the stairway was not at issue considering Plaintiff himself conceded in this case that there was nothing wrong with the stairway at the time of his accident. 

    Held  

    The Court declared the testimony of Plaintiff’s expert John Samuel Morse inadmissible since it was premised on irrelevant regulations. The outcome of the case is yet to be decided since the issues involved in this case still remain unresolved. 

    Key Takeaways: 

    1. Relevancy of Regulations: Before admitting the testimony of an expert, it is imperative for the Court to assess if the regulations based on which the expert is testifying have any significant bearing on the issues involved in this case. In this case, Morse based his testimony on OSHA  regulations which did not apply to U.S. Coast Guard inspected vessels and hence his testimony was found likely to confuse the jury. 

  • Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Legal case involving employment discrimination claims and expert testimony

    Plaintiff Terrence T. Batiste II has initiated legal action against Defendant Titan Medical Group LLC, asserting claims of wrongful termination and employment discrimination. These claims stem from allegations that Batiste, a homosexual black man who had explicitly communicated his identity during pre-employment interviews, experienced pay disparities and unequal treatment. He contends that his base salary was $15,000.00 lower than that of fellow managers and that he was excluded from receiving quarterly performance bonuses, resulting in a substantial income discrepancy. The case also revolves around a contentious exchange that transpired on July 17, 2020, involving Batiste and another corporate employee, Tammy Corwin, regarding the scheduling of a meeting with Titan Medical’s CEO. This exchange was documented through text messages and a recorded phone call. Subsequently, after an internal investigation, Titan Medical Group terminated Batiste’s employment on August 3, 2020. The lawsuit invokes Title VII of the Civil Rights Act of 1964 and the Nebraska Fair Employment Practices Act as legal bases for the allegations, asserting violations of these statutes in relation to employment discrimination based on race and sexual orientation. The action was removed from the District Court of Douglas County, Nebraska under 28 U.S.C. §1446 to the United States District Court for the District of Nebraska. 

    Equal Opportunity Expert Witness 

    Defendant, Titan Medical Group LLC offered the report and testimony of Timothy D. Loudon. Timothy D. Loudon is a retired attorney. Loudon spent the beginning of his career as a Nebraska Equal Opportunity Commission investigator, investigating charges of discrimination. He later represented employers and employees in private practice for 34 years. In that capacity, he advised and trained companies and management on employment practices and has drafted and reviewed personnel policies and employee handbooks, including policies addressing discrimination and harassment, affirmative action, performance evaluations, and progressive discipline. He has been identified as an expert to testify as an expert witness in human resources, performance management, performance management system and processes, employment law and policies, employment investigations, human resources training and expertise, workplace harassment/discrimination and workplace harassment/discrimination complaints. 

    Plaintiff has filed a motion to strike the testimony and report of Defendant’s expert Loudon. 

    Discussion by the Court 

    In his report, Timothy D. Loudon opined about Titan’s alleged failure to utilize progressive discipline or to conduct an annual performance evaluation for the plaintiff; the adequacy of the Titan’s investigation of the plaintiff’s complaint of racial discrimination; and Batiste’s allegation of retaliation, specifically, whether he engaged in protected activity. 

    He concluded that Titan might have failed to utilize progressive discipline but the purpose was served anyhow when Titan gave Batiste adequate notice of his performance deficiencies and that Plaintiff’s annual performance evaluation was overlooked due to rising COVID-19 cases and also financially benefited Batiste. Loudon opined that Batiste’s supervisors Jennifer Lyman, COO (hereinafter “Lyman”) as well as Carrie Miller, CFO (hereinafter “Miller”) had done an adequate job of conducting a full investigation when they ruled out the possibility of Batiste’s race being a possible factor in his altercation with Corwin. 

    Loudon further opined that Batiste must show that he engaged in “protected activity” (complained of discrimination); suffered an “adverse action” (termination); and prove a causal connection between his complaint and his subsequent termination. “Temporal proximity” (closeness in time) between the protected activity and the adverse action could be used to create an inference of retaliation and concluded that Batiste cannot meet the threshold showing that he engaged in protected activity based on these factors. 

    Batiste in turn alleged that since Loudon did not back up his claims with statistical analysis or other empirical testing or explanations of what comprises common practices in the industry without applying industry standards to the facts of the case, he had invaded the province of the Court since his opinions amounted to legal conclusions. 

    Batiste also stated that Loudon doesn’t demonstrate considerable experience when it comes to cases dealing with racism in the workplace which is crucial to evaluate the validity of Batiste’s discrimination and retaliation claims. 

    Loudon’s conclusions are not based on a reliable methodology because he has failed to cite common industry standards, customs, or practices in the report or any peer reviewed literature on the topics. 

    Batiste also argued that Loudon had given greater weight to irrelevant facts and mischaracterized testimony from witnesses in hopes of persuading the jury that the testimony meant something else than what it actually did. 

    The Court found Loudon qualified based on his education and experience but maintained that it would refrain from allowing Loudon to provide testimony regarding issues that invaded the province of the Court or the jury. The Court denied the Plaintiff’s motion to strike the testimony and report of Loudon, without prejudice to objections raised at trial contending that the Plaintiff’s objections concerned the weight instead of the admissibility of Loudon’s testimony. The Court was unable at that juncture to assess the expert’s testimony in the context of objections to be interposed at trial. The testimony might be subject to such objections as foundation, relevance, and unfair prejudice. 

    Since the proceedings are ongoing, the outcome of the case remains to be decided. 

    Held 

    The Court denied Batiste’s motion to strike the testimony and report of Defendant’s expert Loudon without prejudice to objections raised at trial. Since the issues remain unresolved, the outcome of the case is yet to be seen. 

    Key Takeaways:

    1.General vs. Specialized Expertise: The Plaintiff alleged that Loudon lacked the required experience to opine on wrongful termination cases involving racial discrimination claims but the Court admitted his testimony anyway since the topic was sufficiently within the confines of his expertise. 

    2.Weight vs. Admissibility: When the Plaintiff alleged that Loudon’s testimony was of little assistance to the trier of fact and was likely to confuse and mislead the jury because it was grounded on unreliable methodology, the Court held that these arguments called into question the weight instead of the admissibility of Loudon’s testimony. Since Plaintiff was yet to prove grounds warranting exclusion of expert Loudon, the Court found it more appropriate to assess the substance of Loudon’s testimony in light of objections raised at trial by the Plaintiff. 

    3.Experts cannot invade the province of the Court or the jury: In this case, Loudon breached the province of the Court and the jury and drew legal conclusions on their behalf when he opined that the Plaintiff cannot prove that he did engage in protected activity considering whether an activity is protected under the statute for purposes of a retaliation claim is a question of law as was held in Morris V. City of Chillicothe . 

  • Florida Court admits construction expert’s testimony assessing negligence claims in personal injury action 

    Florida Court admits construction expert’s testimony assessing negligence claims in personal injury action 

    Image depicting a construction site cap of workers, representing the context of the expert testimony in the construction industry

    Expert Testimony on Workers’ Compensation Insurance Practices

    Plaintiff Dennis Scott initiated a personal injury lawsuit against Defendant Paychex Insurance Agency, Inc. The case revolves around a Certificate of Insurance (COI) that Paychex Insurance Agency issued to James A. Jones, a general contractor. The situation arose in connection with a construction project for which Jones engaged Central Florida Siding Pros, LLC (CFSP) as a subcontractor.

    Jones required proof of workers’ compensation insurance from subcontractors, and CFSP obtained its policy through Paychex Insurance Agency, with a coverage period of April 29, 2017, to April 29, 2018.

    On February 6, 2018, the Paychex Insurance Agency issued the COI to Jones, stating CFSP’s coverage period as April 29, 2017, to April 29, 2018. However, at this time, CFSP’s workers’ compensation insurance policy was facing potential jeopardy due to non-payment of premiums.

    Paychex Insurance Agency had an obligation to notify NorGuard, the insurer, if CFSP failed to pay premiums, which could lead to the loss or non-renewal of coverage. Paychex Insurance Agency knew that notifying NorGuard of CFSP’s noncompliance might result in the policy’s cancellation. 

    By January 16, 2018, CFSP had not paid premiums, and on January 23, 2018, Paychex Insurance Agency informed NorGuard of CFSP’s noncompliance. Subsequently, on January 24, 2018, NorGuard issued a Notice of Cancellation, with the policy set to expire on February 10, 2018. The exact point at which Paychex Insurance Agency learned of this impending cancellation is disputed. 

    Despite the looming cancellation, the COI falsely indicated that CFSP’s insurance would continue until April 29, 2018. However, the policy was actually cancelled on February 10, 2018. On April 24, 2018, Plaintiff Dennis Scott sustained injuries while working on the Project. 

    During the ensuing workers’ compensation proceedings, the Judges of Compensation Claims (JCC) determined that CFSP was Scott’s employer at the time of the injury, despite lacking workers’ compensation insurance.

    Additionally, Jones was considered the employer and was deemed liable for Scott’s injuries since he didn’t have the necessary workers’ compensation coverage for non-lease employees. Following this determination, Jones and Scott reached a settlement agreement, and Jones assigned to Scott any potential claims against Paychex Insurance Agency, Inc. 

    Overall, the lawsuit revolves around the allegedly fraudulent or misleading COI issued by Paychex Insurance Agency to James A. Jones, which falsely indicated insurance coverage for CFSP beyond the actual policy cancellation date. This misinformation played a role in the subsequent workers’ compensation proceedings and the determination of liability for Scott’s injuries. 

     
    Construction Industry Expert Witness

    Paychex Insurance Agency, Inc. offered the expert testimony of Eric Todd Alford at trial “to testify as to the best practices for general contractors in obtaining proof of workers compensation insurance from subcontractors, and verification of coverage, pursuant to industry standards.”  Alford reviewed documentary evidence from this case to offer opinions on the likely identity of Scott’s employer at the time of the accident; the responsibilities of general contractors regarding obtaining and verifying workers’ compensation insurance; and the interactions between insurers, insurance agents, and contractors. Alford also provided expert opinions about the “best practices and applicable standard of care for general contractors.” 

    Alford is a state of Florida Certified General Contractor, and past president and member of the Board of Directors for Association of Subcontractors. He has worked in the construction industry for almost four decades and holds numerous construction and contracting certifications. 

    Dennis Scott demanded exclusion of Alford’s testimony contending it was inadmissible as per the Daubert standards since it consisted of unreliable, unqualified, improper lay opinions which were also impermissible legal conclusions. 

    Discussion by the Court  

    The Court observed Plaintiff’s argument that Alford was offering unqualified, improper lay opinions basically involved two separate questions: One question was whether Alford was a qualified expert; the other was whether Alford’s opinions were helpful enough to be of assistance to the jury, rather than improper lay testimony.

    Plaintiff argued that Alford was not qualified as an expert in employment law, taxation principles, or statutory analysis. The Court held that Alford’s testimony was limited to matters within the scope of his expertise such as the best practices for general contractors in obtaining proof of workers’ compensation insurance from subcontractors and verification of coverage, pursuant to industry standards considering he had worked in the construction industry for almost four decades and held numerous construction and contracting certifications.

    The Court concluded that neither the Defendant nor Alford’s expert report consisted of any opinions from the topics the Plaintiff identified. The Court rejected the Plaintiff’s argument that Alford was only qualified to offer opinions on “highly technical construction issues” as opposed to opinions otherwise resulting from the expertise he gained in a lifetime of work as a general contractor 

    Plaintiff was free to take up his concerns regarding the scope of Alford’s expertise with the jury but no ground was found to warrant the Court’s disqualification of Alford’s testimony. 

    Usually the expert testimony must be of assistance to the Court and the jury when it comes to deciding matters beyond the understanding of the average lay person in order to be admissible. 

    The Court found that Alford’s opinions were crucial to analyse the claims critical to the Plaintiff’s case and the Defendant’s defense. For instance, when the Plaintiff accused the Defendant of negligent misrepresentation and the negligent-supply-of-information, Alford addressed the issue of whether or not Jones exercised the necessary reasonable diligence regarding his reliance on the COI by looking into whether it was appropriate for Jones, as a seemingly experienced general contractor, to take no further action once he obtained the COI through his expert opinions which could be relevant to Defendant’s comparative negligence defense. As previously established, Alford’s understanding of contractors and workers’ compensation insurance qualified him to opine on such issues and hence his testimony was very helpful to the trier of fact. 

    When an expert is retained, his opinion is generally sought regarding the ultimate issue of fact and he is supposed to refrain from testifying as to the legal implications of the conduct. The Court noted that even though Alford had referenced certain Florida statutes so as to apply the facts and evidence in order to provide an opinion, his testimony did not consist of impermissible legal conclusions since he was not providing opinions as to the official interpretation of the sections concerned. 

    Plaintiff insisted that Alford’s opinions were unreliable because they rested “on a flawed and incomplete analysis” and “jumped to conclusions based upon misconstrued and incomplete evidence.” When the Plaintiff attacked Alford’s methodology, the Court felt it was partially justified considering the substance of Alford’s opinions left something to be desired since he based some of his opinions on disputed facts. But the Court also held that it was the jury’s place to assess the persuasiveness of Alford’s proffered opinions. Even though the Plaintiff listed multiple flaws in Alford’s methodology, the Court held that it could only be effectively addressed through means of cross examination instead of a motion to exclude.

    Held 

    The Court held that Alford’s opinions were reliable as per the Daubert standards since his opinions were sufficiently based on the application of his expertise and denied the Plaintiff’s motion to exclude the testimony of Defendant’s expert witness, Todd Alford. Since the proceedings of the case are ongoing, the outcome of the case is unknown. 

    Key Takeaways: 

    1. Qualification: If an expert testifies within the scope of his expertise, the Court deems him qualified to provide opinions that shed light on the issues being addressed based on his experience and training. 
    1. Lay Testimony vs Expert Testimony: If the expert is providing testimony on matters beyond the understanding of the average lay person and such testimony is found to be helpful to the trier of fact, it qualifies as expert testimony instead of lay testimony. 
    1. Persuasiveness vs Admissibility: Usually the testimony is found to be admissible if it is premised on the application of the expert’s training and experience hence if the jury finds that the testimony is not persuasive enough or if the opposing party finds the expert’s methodology error-prone, it may not always necessarily affect the admissibility of the expert’s testimony if those errors are found to concern the persuasiveness of the expert’s testimony. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded. 
    1. Legal Conclusion: The expert is allowed to refer to and mention legal sections as long as he is not testifying about the official interpretations of the legal sections or the legal implications of the conduct. 
  • Texas Court admits medical expert testimony in prenatal care medical malpractice case 

    Texas Court admits medical expert testimony in prenatal care medical malpractice case 

    Legal Experts Discuss Admissibility of Medical Testimony in Healthcare Case

    Medical Expert Witness Admissibility in Healthcare Case

    Plaintiff Irene Rodriguez (“Rodriguez”) brought this lawsuit on behalf of herself and as parent and legal guardian of her surviving prematurely born twin, A.R. Plaintiff Maria Antonia Santos (“Santos”) brought this lawsuit as representative of the estate of B.R., Rodriguez’s other prematurely born twin, who is now deceased. Rodriguez and Santos (collectively, “plaintiffs”) alleged that Defendants Southern Health Partners, Inc. (“SHP”), Grady Shaw, M.D. (“Dr. Shaw”), and Linda Hullett, R.N. (“Hullett”) failed to provide proper prenatal care to Rodriguez while she was incarcerated as a pretrial detainee at the Navarro County Jail (the “Jail”). Defendants moved for summary judgment and to strike Plaintiffs’ designated medical experts. 

    Medical Expert Witness

    Defendants first contended that they were entitled to summary judgment on the grounds that Plaintiffs’ claims against Dr. Shaw were time-barred. 

    Defendants also moved for summary judgment on the ground that Plaintiffs had failed to designate expert witnesses qualified under Federal Rules of Evidence 702 and Texas Civil Practice and Remedies Code § 74.401 (West 2003) to testify to the standard of care that Dr. Shaw and Hullett should have provided to Rodriguez and her twins. 

    Robert James Carpenter, Jr., M.D. (“Dr. Carpenter”) is board certified in obstetrics and gynecology, has taught courses in obstetrics and gynecology, and has published several articles on topics related to obstetrics and gynecology. He is a reviewer for several relevant academic journals, has served on several related committees, and currently practices medicine in obstetrics and gynecology. 

    Donald F. Meyn, Jr., M.D. (“Dr. Meyn”) is board certified in general pediatrics and in neonatal-perinatal medicine. He also completed several post-doctoral training programs in pediatrics and neonatology, and he has published and presented research in these fields. He has practiced neonatology since 2006 and presently practices with a company that provides neonatology services. 

    Dr. Carpenter and Dr. Meyn were retained by the Plaintiff to testify about the applicable standards of care, deviation from those standards, causation, and damages.  

    Defendant argued that Dr. Carpenter and Dr. Meyn were not qualified considering they lacked the training to practice medicine in a correctional setting. Moreover, they practiced in different specialties from Dr. Shaw and they lacked the background to testify to Hullett’s obligations as a nurse.  

    Plaintiff replied that it was not necessary for the expert to practice in the same specialty or setting to be familiar with and adequately testify regarding the standards of care applicable. 

    Discussion by the Court 

    According to Federal Rules of Evidence 702, “the court may admit proffered expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable.”  

    The Court found both Dr. Carpenter, board certified in obstetrics and gynecology, and Dr. Meyn, board certified in general pediatrics and in neonatal-perinatal medicine qualified to opine on the issues involved in this case, such as the standard of care that should be exercised when treating a patient who is pregnant with twins and displaying signs of imminent labor. Their testimony was also relevant since they were testifying regarding the standard of care applicable, which was a critical issue in this case. The Court also held that the methodology employed by Dr. Carpenter and Dr. Meyn was indeed reliable despite being of a kind repeatedly used in medical malpractice cases so long as the medical records of the Plaintiff were reviewed and certain conclusions regarding the treatment that Defendants administered were reached based on their training and experience as insisted by Dr. Carpenter and Dr. Meyn on their deposition testimony. The Court held that even though the deposition testimony of both these doctors were considered conclusive proof of the admissibility of their testimony, Defendants were still permitted to challenge the weight of their testimony through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. 

    Defendants did not challenge the general medical qualification of Dr. Carpenter and Dr. Meyn but argue that their testimony is inadmissible as per Texas Civil Practice and Remedies Code § 74.401 (West 2003) owing to their lack of specialized expertise and experience in a correctional setting. The Court once again held that this argument calls into question the weight to be assigned to instead of the admissibility of the testimony which the Defendants are free to take up through cross examination. Both the experts specialize in a relevant field and hence are familiar with twin pregnancies and imminent preterm labor, which are the medical conditions involved in this case. Texas law clearly provides that the critical factor is the expert’s familiarity with the medical condition involved. Moreover, Dr. Carpenter and Dr. Meyn have relevant experience working with and overseeing the work of nurses as well as contributing to some extent to the training of nurses and hence are qualified to opine on the standards of care applicable to nurses in their respective fields of medicine. The Court found them qualified to opine on the standard of care which Hullett was expected to adhere to in the instant case.  

    Held 

    The Court decided that Defendants established beyond peradventure that Rodriguez’s individual claims against Dr. Shaw were time-barred. The Court granted Defendants’ motion for summary judgment in this respect. Defendants failed, however, to show that the claims against Dr. Shaw brought on behalf of A.R. and B.R. were likewise time-barred. Thus, the motion for summary judgment was denied by the Court as to those claims. The Court denied the Defendants’ motion to strike the testimony of Robert James Carpenter, Jr. and Donald F. Meyn, Jr., M.D.  

    Since the proceedings in the instant case are ongoing, the outcome of the case remains to be seen. 

    Key Takeaways:

    1. Lack of Specialized Expertise–> Both federal– and state –law standards of admissibility insist on the medical expert being familiar with the medical conditions involved in a medical malpractice case. Specialized Expertise is not needed to generate admissible opinions as long as the expert demonstrates sufficient understanding of the medical conditions involved. 
    1. Weight vs. Admissibility–> If the Court declares that the opposing party’s arguments calls into question the weight to be assigned to instead of the admissibility of the expert’s testimony, the opposing party is free to pursue the challenge by cross-examining the expert instead of demanding an exclusion on grounds of inadmissibility. 
    1. Relevance of the testimony–> Dr. Carpenter and Dr. Meyn’s testimony regarding the applicable standards of care, deviation from those standards, causation, and damages was relevant to assess applicable standard of care and determine alleged negligence in the instant case. 
    1. Reliability of the testimony–> The Court found the deposition testimony of Dr. Carpenter and Dr. Meyn reliable as long they were sufficiently based on their training and experience since bases and sources of the expert’s testimony being called into question affect the weight to be assigned to the testimony rather than its admissibility. 
  • Arizona District Court finds Railroad expert witness testimony inadmissible in wrongful termination suit; dismisses case 

    Arizona District Court finds Railroad expert witness testimony inadmissible in wrongful termination suit; dismisses case 

    A railroad expert witness was recently excluded in a wrongful termination suit in Arizona. Image depicts a rail engine.

    Plaintiff Matthew Thomas was formerly employed by the Defendant, BNSF Railway Company (“BNSF”) as an engineer. Thomas filed this wrongful termination suit against BNSF claiming it was a retaliatory measure on account of his whistleblower status under the Federal Railway Safety Act (“FRSA”) due to his engagement in protected activities such as reporting concerns regarding BNSF’s hours of service violations to the Federal Railroad Administration (“FRA”) and voicing safety and mistreatment concerns to his supervisors. BNSF alleged that Thomas’ termination was caused by his handling of a train which derailed under his control and caused $2.2 million in damages. According to the report generated by Technical Research and Development (“TR&D”) group, train handling was deemed to be the cause of the derailment, specifically the use of excessive dynamic braking by Thomas. 

    The Railroad Expert Witness Testimony 

    BNSF moved to exclude two of Thomas’s purported experts: (1) George Robert Newman, MSME, PE, AMS and (2) Robert T. McCarthy as per Federal Rule of Civil Procedure 26(a)(2), Federal Rule of Civil Procedure 37(c)(1) and Daubert standards. 

    Newman, a Mechanical Engineer by profession is also a Railroad Track Consultant and Railroad Expert Witness who was retained by Thomas to opine on the train derailment incident that occurred during his employment at BNSF.  

    McCarthy is a Railroad Consultant who has worked on several high-profile cases involving rail equipment and severe injury to employees. He was retained by Thomas to opine on the policies and procedures of BNSF besides the derailment incident in question. 

    BNSF also moved for summary judgment on Thomas’ FRSA retaliation claim. 

    Discussion by the Court 

    As per Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure, Thomas was expected to disclose his experts by September 16, 2022, BNSF was required to disclose experts by  October 17, 2022 and the rebuttal expert disclosures were expected to be submitted by November 17, 2022. The discovery deadline, including expert depositions, was originally scheduled for December 16, 2022, and was continued for an additional 30 days until January 15, 2023.

    Months after his expert disclosure deadline, Thomas (Whistleblower) submitted an amended expert disclosure statement disclosing Newman and McCarthy as retained expert witnesses on November 18, 2022 claiming that instead of seeking an extension from the Court, an agreement was reached with BNSF regarding the submission of expert disclosures by November 18, 2022. The November 18 Disclosure, however, only included Newman’s report. Thomas did not submit another amended expert disclosure report or provide McCarthy’s report till December 9, 2022. 

    Except for arguing that his initial disclosure of McCarthy was identical to BNSF’s disclosure of one of its witnesses, Thomas provided no sufficient explanation regarding his failure to timely disclose McCarthy. The Court decided that McCarthy’s report warranted exclusion on account of Thomas’ failure to prove that his late disclosure was substantially justified or harmless. 

    But the Court found Robert Newman’s late disclosure harmless based on Thomas’ agreement with BNSF to submit his expert disclosures by November 18, 2022 and because BNSF had over a month to review Newman’s deposition transcript considering  his deposition took place on December 15, 2022. 

    BNSF nevertheless sought the exclusion of Newman’s testimony arguing that it failed to meet the Daubert standards. BNSF argued that it was based on speculation and also added that the methodology used by Newman was unreliable. Thomas, heavily relying on Arizona and New Hampshire law, argued that Newman’s report could be “shaky” yet permissible and that the jury should “exercise its fact-finding function.” 

    Newman testified regarding possible rail defects that could have existed, and how such a hypothetical rail defect could lead to a derailment. When Newman explained that a sunkink could have contributed to the derailment while he was being questioned, it was found that Newman never examined the actual site or the track of the derailment at issue, and only looked at a few pictures taken from a distance by someone else which is why he was not certain of a rail defect existing on the July 25, 2020 train derailment or that any such hypothetical defect caused that derailment.

    It was also found that he did not take into consideration facts as fundamental as the location of the derailment or the temperature of the location when he said he did not know the exact location of the derailment incident in Arizona except for the fact that it was “nearby” and went on to rely on the temperature in Phoenix, Arizona despite the derailment occurring in the mountains, near Prescott, Arizona. 

    The Court observed that Newman needed to be able to point to some objective source to be able to justify his conclusions and his research had to be described in sufficient detail for the Court to assess its scientific validity yet no such showing was made by Thomas with regard to Newman in this case. 

    Held 

    The Court held that however well-qualified an expert may be, it was necessary for him to take substantial as well as fundamental facts such as where the derailment occurred and the temperature of the location into consideration in order to generate a sound opinion which Newman had failed to take into consideration in this case. 

    The Court excluded the testimony of both experts, Robert McCarthy and Robert Newman. McCarthy’s testimony was excluded as per Federal Rule of Civil Procedure 26(a)(2) as well as Federal Rule of Civil Procedure 37(c)(1) and Newman’s testimony was excluded on Daubert grounds. The Court granted BNSF’s motion for summary judgment on Thomas’ Federal Railway Safety Act (“FRSA”) retaliation claim and entered judgment in favor of Defendant, BNSF Railway Company and against Plaintiff, Matthew Thomas prior to dismissing the case. 

    Key Takeaways 
    1. Regardless of an expert’s qualifications, their arguments are only convincing to the Court if their testimony is premised on substantial as well as fundamental facts and if the methodology employed by them is reliable. 
    1. Both parties have to stick to the expert disclosure deadline although an exception may be made if an agreement is reached with the opposing party regarding the disclosure of the expert witness in question. In any case, it is important for the opposing party to have enough time to be able to review the transcript of the expert in question’s deposition. If an expert witness is disclosed late, the party retaining them has to provide a sufficient explanation that proves that the delay was justifiable or harmless.