This matter is a False Claims Act case wherein the Relators alleged that Defendant pharmacies submitted false or fraudulent claims to obtain federal funds from Government Healthcare Programs to which Defendants were not entitled. The Relators alleged this occurred through the electronic submission of inflated usual and customary charges to Government Healthcare Programs because Defendants failed to report their cash price matches as their usual and customary prices.
On May 21, 2018, SuperValu (“Defendants”) filed its first motion to exclude Ian Dew and memorandum in support. On March 20, 2019, U.S. District Court Judge Richard Mills entered an order denying Defendants’ motion and concluding that Dew’s expert testimony should not be excluded based on methodology, reliability, or relevance.
On February 26, 2024, Defendants filed a second motion to exclude the testimony of Dew. Defendants argued that this Court should not follow the prior ruling of Judge Mills from 2019 because the ruling was incorrect considering the changes to Federal Rule 702 and based on a supplemental report of Dew.
Data Analytics Expert Witness
Ian Dew has a bachelor’s degree in mathematics and psychology, a Master of Engineering from the University of Virginia, and a Master of Environmental Science from Johns Hopkins. He has worked on complex, computer-assisted data analysis for more than 25 years, focusing on complex healthcare litigation since 2004.
Defendants asked this Court to reconsider its prior ruling on Dew’s methodology and his application of this method in a more recent report. Specifically, Defendants took issue with a new report issued by Dew in December 2023. According to Defendants, this report, which the Relators describe as using the same methodology but filtered in a different way, is unreliable.
Relators pointed to the testimony of Dew regarding the filtering of results in the updated report. This filtering involved whittling down numbers, by “applying filters to identify a subset within the full set from my rebuttal report.” Further, Relators noted that the Actual Usual and Customary Prices that were filed in the supplemental report are the same prices and data as the first report just presented in a different manner.
Qualifications
The Court has, in 2019, discussed Dew’s qualifications at length and will not repeat each of those points. The Court finds based on the knowledge, skill and experience of Dew, that Dew is qualified to provide data analysis of large sets of electronic information.
Methodology
Defendants specifically highlighted Dew’s per-state, per-month analysis as unreliable. Defendants argued the record in this case established that the usual-and-customary price was determined based on a particular store’s prices on a particular day. Relators initially instructed Dew to assume that lower price matches that are widely available are the usual and customary prices that Defendants should have charged Government Healthcare Programs for their drugs. Dew analyzed the massive amounts of raw data provided by the Defendants and determined the best way to group information that could be plugged into an algorithm while excluding potential outliers. The Court noted that this methodology, in relying on information provided by others, including counsel, would be appropriate when rendering an opinion.
The specific methodology in calculating usual and customary pricing by using the most frequently occurring discounted cash price offered by month is a more conservative calculation according to Dew. Further, Dew testified that his use of the most frequently occurring price is recognized as a statistically valid method to find the central tendency of a large data set.
Defendants took issue with Dew’s alleged refusal to review government contracts for each of the Defendants. However, Dew’s work had a limited scope. He was asked to calculate the difference between the two types of price points found within Defendants’ data production: (1) discounted cash override prices and (2) reimbursement based upon undiscounted reported usual and customary prices.
To sum it up, Defendants’ arguments regarding Dew’s methodology are largely the same as their arguments in their initial motion, and the Court declines to reverse its earlier order regarding the exclusion of Ian Dew’s testimony.
Reliability
Defendants take issue with Dew’s per-state, per-month analysis, arguing that a per-store, per-day analysis is more appropriate. Further, Defendants argue that Dew’s lack of justification as to why he utilized a per-state, per-month analysis further supports Defendants position. Dew’s failure to review Pharmacy Benefit Manager contracts and failure to utilize geographic and time parameters specified by state Medicaid are two additional factors Defendants believe should have been considered. Lastly, Defendants point to the fact that Dew has indeed calculated hypothetical usual and customary prices using a per-store, per-quarter methodology.
Dew has testified as to his rationale for his analysis and his use of an alternate method in the past does not disqualify his conclusions in the present matter.
The Court found that Dew’s opinions and reports quantifying alleged overcharges regarding usual and customary price reflect a reliable application of his principles and methods.
Relevance
Defendants argued that Dew’s methods are irrelevant as they do not use the “relevant” unit of per-store, per-day usual and customary pricing which reflects the record in this matter.
However, the Court decided that Dew’s testimony and reports provide the type of context and analysis that would clearly assist a trier of facts in determining whether there were overcharges to Government Healthcare Programs. This testimony regarding how often these claims were submitted and the overages claimed above the usual and customary prices may be helpful to jurors as this subject matter is not within a juror’s usual scope of knowledge.
Held
The Court denied the Defendants’ motion to exclude the testimony of Ian Dew.
Key Takeaway:
Although Defendants took issue with the way Dew organized and grouped tens of millions of purchases, that alone is not enough to disqualify his opinion. Dew’s failure to review Pharmacy Benefit Manager contracts and failure to utilize geographic and time parameters specified by state Medicaid are two additional factors Defendants believe should have been considered. However, the Court is unpersuaded that Dew’s methodology has changed in any significant manner, so the Court will not reverse its prior ruling.
Case Details:
Case Caption:
United States Of America Et Al V. Supervalu Inc Et Al
Between 2015 and 2016, Lucy Letby harmed babies in her care with the intention of killing them. The means of harm varied: causing air embolus by introducing air via intravenous lines; forcing air into the abdomen via nasogastric tubes; force feeding milk; poisoning by administering insulin; physical trauma. She alone was present on the unit at the time of all the deaths and deteriorations.
Following an internal review of the deaths, and the suspension of the applicant from nursing duties, the police began an investigation in May 2017. Letby was convicted in August 2023 of seven counts of murder and seven of attempted murder of infants at the neonatal unit at the Countess of Chester Hospital. She was acquitted on two further counts of attempted murder and the jury was unable to agree on a further six counts of attempted murder. The Court of Appeal rejected Letby’s application for leave to appeal against her convictions after the credibility of Prosecution’s lead expert, Dewi Evans‘ testimony was affirmed.
Evans, a retired paediatrician, was asked to review initially 33 sets of clinical records involving death or deterioration of an infant on the unit and then a further 28 sets of records.
He was asked to provide an opinion on the cause of the collapse of each baby. As the lead expert during the investigation, he advised the police to seek further expertise from the fields of histopathology; paediatric radiology; paediatric haematology; paediatric endocrinology; paediatric neuroradiology and paediatric surgery.
Pediatrics Expert Witness
Dewi Evans provides expert medical advice regarding clinical issues where child abuse is suspected or where there are allegations of clinical negligence. He has prepared reports for the Court for over 25 years and has given evidence in court in Wales, England, Ireland and Northern Ireland.
He was appointed a consultant paediatrician in 1980; he had been trained in neonatology although, at the time, this was not a specific sub-specialty, hence he was never a consultant neonatologist; he set up a neonatal intensive care service in Swansea; he designed a new neonatal unit in 1990.
On appeal, Letby argued that Evans’ evidence should have been excluded from the jury’s consideration because he was not a neonatologist; he had not been in full time practice since 2009; most of his current work was purely as an expert witness; he could not be considered sufficiently independent because he had been part of the original investigation; his evidence was not sufficiently reliable to be admitted; he had been the subject of previous adverse judicial comment.
The Court, however, found him to be a “highly experienced consultant paediatrician” with “decades of clinical hands-on experience with neonates”. Moreover, to the extent that he was acting as an investigator or director of the investigation, he was not doing so in a way that precluded him from being an expert witness in the case. Evans’ evidence was provided without him being given access to the other circumstantial material, so it was uninfluenced by matters outside his expertise and knowledge. Also, his opinions were independently corroborated by other expert witnesses.
As for being the subject of previous adverse judicial comment, Evans pointed out that the document in question was not in fact an expert witness report for Court, but a letter to solicitors in a care case. It had been used by them without his knowledge or consent in applying for permission to appeal. The criticism was put to him; he had not been aware of it before; he explained his understanding of the context; the matter was left for the jury to consider. The Court found nothing wrong with that approach.
Air Embolus in Neonates
Letby sought to admit fresh evidence in the form of two reports from a neonatologist, Shoo Lee, to address the defense assertion that the prosecution experts were wrong to diagnose air embolus on the basis of a research paper. The Court held that ““although their direct clinical experience of air embolus in neonates was inevitably very limited, each of the prosecution’s expert witnesses was well qualified in their respective fields to give the evidence which they gave.”
Defense did not call any expert witness evidence at trial
It was open to the defense to call expert evidence of their own. They did instruct a number of experts and serve their reports on the prosecution, but they did not call any expert witness evidence at trial.
In the trial, the result was that the prosecution expert witnesses were challenged strongly by the defense; but the points made in the challenge could only become evidence in the case if, either the defense called their own witnesses who could then provide that evidence, or the prosecution witnesses accepted the points made in the challenge.
Held
The Court of Appeal admitted Dewi Evans’ testimony and rejected Letby’s application for leave to appeal against her convictions.
Key Takeaway:
Evans was familiar with the courts’ approach and ready to deal with the inevitable challenges of the criminal justice system.
The issue of admissibility (whether or not evidence is put before the jury) is a question of law which is dealt with by the judge. If they rule that the evidence is admissible, it is then considered by the jury. The ruling to admit the evidence can be challenged on appeal.
The issue of the weight to give to any evidence is a matter entirely for the jury. Counsel can seek to persuade them to take one view or another of the evidence. The judge must leave it up to the jury. What weight the jury has in fact given to each piece of evidence might be inferred from the verdict that they reach.
This case involves a dispute concerning the contamination of the drinking water in Hoosick Falls, New York by perfluorooctanoic acid, a chemical commonly referred to as PFOA. Following multiple settlement agreements with certain Defendants, DuPont is the only remaining Defendant. Plaintiffs alleged that DuPont is liable for producing the PFOA that ultimately contaminated the water supply in Hoosick Falls.
Plaintiffs retained Jamie DeWitt to opine on the information DuPont possessed in the 1980s regarding potential adverse risk to human health from PFOA exposure which required that they conduct a thorough and comprehensive human health risk assessment. According to DeWitt, DuPont never completed an appropriate human risk assessment for PFOA exposure consistent [with] generally recognized and accepted methodology.
DuPont sought to exclude testimony from DeWitt on three specific aspects of her opinion:
First, DeWitt opines that, as early as the late 1970s, human exposures and initial animal tests known to DuPont obligated it to “inform and involve” health agencies regarding the human health risks of PFOA.
Second, DeWitt asserts that, although DuPont possessed sufficient information to do so, it never completed and produced an “appropriate” final, written report of human health risk assessment for PFOA exposure in the late 1990s/early 2000s as part of its “C-8 PACE Team” effort.
Third, DeWitt claims that if DuPont had conducted a “proper” human health risk assessment in the late 1990s or early 2000s and prepared a final “report” using EPA guidelines, it would have uncovered information that may have led DuPont to (i) issue additional or different warnings regarding PFOA exposure and (ii) eliminate sooner the use of PFOA as a surfactant in certain products.
Toxicology Expert Witness
Jamie DeWitt’s research career has focused on synthetic compounds of industrial significance that are or might become environmental contaminants of concern.
She has co-authored 20 review articles/commentaries on PFAS toxicity and use, two book chapters related to PFAS immunotoxicity, and edited one of the first comprehensive texts on the toxicity of PFAS. Her other publications concern toxicological effects of environmental contaminants, including their impact on human diseases.
Defendant first sought to exclude testimony from DeWitt on the ground that she is not qualified to offer expert testimony. This argument was primarily based on the fact that while DeWitt offers opinions about DuPont’s failure to perform proper human risk assessments, she has never performed one herself.
The Court held that her educational and professional background involve significant study and work in the field of toxicology or risk assessment. Her doctorate work included a concentration in risk assessment. She has teaching and work experience in the conduct of risk assessments. The record amply demonstrates that her background involves “knowledge, skill, experience, training, or education” sufficient to render her qualified to offer an expert opinion in this case.
Admissibility of the Second Opinion
The second opinion is that, based on information then available to it, DuPont was required to conduct a human health risk assessment in the 1980s. DuPont maintained that this opinion is based on nothing beyond DeWitt’s own personal views and thus should be excluded because it lacks any scientific basis.
Environmental Protection Agency had, in the early 1980s, published material on the need for risk assessment. The Court held that there is a factual basis for DeWitt to testify about the nature of risk assessments, what information was available about conducting such studies in the 1980s and 1990s, what information was available to DuPont that could or should have led them to conduct such an assessment, and what form such an assessment should, in her opinion have taken.
On one point, however, Defendant has carried its burden of warranting preclusion. DeWitt’s Report opines that DuPont was “required” to conduct a risk assessment in the 1980s based on information then known by DuPont and 3M. That opinion does appear to lack a reliable basis in fact sufficient to permit its introduction to the jury. It appears to the Court that the record is devoid of evidence that DeWitt knew of any specific standard that mandated such a reporting requirement. Moreover, DeWitt’s report also makes no connection between any then-existing protocol that would have required DuPont to take the actions set forth in her report. This is especially true given DeWitt’s separate testimony that she did not believe the EPA had standards requiring chemical companies to conduct human health risk assessments.
Admissibility of the Third Opinion
The Court reached a different opinion regarding the third opinion, namely what actions DuPont may have taken had a proper risk assessment been conducted.
Nothing in the present record establishes a solid basis for DeWitt to opine on what DuPont could have done decades ago if it had performed a particular type of study. She does not even offer an opinion about what DuPont should have done, only that it could have provided greater notice to customers or remove PFOA-related chemicals from products altogether — her opinion simply is that DuPont could have done one or both of these things. Defendant may have done exactly what DeWitt suggests, but it may not. DeWitt does not appear to offer an opinion that DuPont was obligated to do either by any legal authority nor by any industry standard.
Held
The Court limited the testimony of Jamie DeWitt in response to Defendant’s motion to exclude her testimony.
Key Takeaways:
Despite never performing a human risk assessment, the Court noted her significant experience in the conduct of risk assessments and allowed her to testify.
DeWitt was allowed to testify about the nature of risk assessments and what information was available about conducting such studies in the 1980s and 1990s since it was based on her review of toxicological and blood studies.
The third opinion seems to be based solely on a speculative assumption that had DuPont done a study it would have become aware of information that could have led it to take the actions described.
Please refer to the blogs previously published about this case:
On a foggy night in November 2015, Plaintiff Kedron Gaston, a minor at the time, was heavily injured in a car accident. The car, driven by her aunt, collided with the back of a semi-truck, resulting in her aunt’s death. The Plaintiff’s mother, seated in the front passenger position, suffered severe injuries that made her unable to care for the Plaintiff and her sister. Consequently, Plaintiff entered foster care. She subsequently sued the semi-truck driver, Defendant Jackie Hazeltine (“Hazeltine”) and his employer, Defendant Royal Paper Stock Co., Inc. (“RPS”), for negligence and for causing emotional distress. The Plaintiff also filed a lawsuit against RPS and Hazeltine’s insurer, Defendant Grange Mutual Casualty Co. (“Grange”), for spoliation related to testing performed on the semi’s rear lighting in July 2016 by Grange’s expert Adam Hyde.
Key issues include the functionality and activation of the semi’s rear lighting system at the time of the accident; the handling of the lighting system after the accident, especially the right rear taillight; and the nature and extent of Plaintiff’s loss and injuries as the result of the accident.
The Defendants hired expert witnesses to provide insights on these matters. Forensic psychiatry expert witness Stevan Weine concluded in his expert report dated March 2, 2023, that the Plaintiff did not exhibit any psychiatric condition during her February 2023 interview, despite previous psychiatric diagnoses. Automotive engineering expert witness Erik Anderson determined that the semi’s rear-facing light assembly was well preserved and capable of being tested to determine whether the bulbs were energized at the time of the accident. Accident reconstruction expert witness, Steven Grundhoefer confirmed that the semi’s taillights were functional and illuminated at the time of the accident.
Stevan M. Weine is the Professor of Psychiatry at the UIC College of Medicine, where he’s also the Director of Global Medicine and Director of the Center for Global Health. For 30 years he has been conducting research both with refugees and migrants in the U.S. and in post-conflict countries, focused on mental health, health, and violence prevention.
His work has been supported by multiple grants from the NIMH, NICHD, DHS, NIJ, and other state, federal, and private funders, all with collaboration from community partners. This work has resulted in more than 130 publications and three books. He has been awarded two Career Scientist Awards: “Services Based Research with Refugee Families” from the National Institute of Mental Health and “Labor Migration and Multilevel HIV Prevention” from the National Institute of Child Health and Human Development.
Weine is the 2020 recipient of the Abraham L. Halpern Humanitarian Award of the American Association for Social Psychiatry and the 2023 recipient of the Piergiorgio L.E. Uslenghi Global Engagement Faculty Award.
Erik Selmer Anderson is an automotive engineer with nearly twenty years of professional experience, fourteen of which were spent working directly for automotive manufacturers. He has direct design and testing experience in vehicle structures, crashworthiness, and closure systems engineering. Erik applies his expertise to expert witness investigations pertaining to vehicle crashworthiness, crash reconstruction, vehicle systems performance, and exterior/interior upper body mechanisms.
Upon completion of his degree in Mechanical Engineering, Erik worked for eight years with Nissan. There, he held positions in Body Design, Closures Design, and Crash Safety. As a Crash Safety engineer, he was responsible for ensuring the achievement of dynamic safety targets, both on a component basis and for complete vehicle performance. This included work in both the virtual design phase through simulation analysis, as well as overseeing and analyzing physical crash testing. Erik performed design/test work on sedans, pickup trucks, crossovers, and cargo vehicles throughout the entire development lifecycle and into mass production.
Continuing his automotive career, Erik then worked at Honda Research & Development for six years, where he was responsible for closures design engineering as a design team chief. At Honda, Erik led a team of design engineers in developing all aspects of minivan slide doors. He also served as design chief for minor-model updates on pickup truck door and tailgate closures. Erik has expertise in all elements of upper body design, including structures, dynamic and static crash safety, sealing, NVH, power-door systems, latches, and exterior/interior components, among others.
Erik earned his Engineering degree from the University of Michigan, one of the nation’s most respected programs. Throughout his career, he has accumulated a multitude of patents for key innovations in upper body design. His education and deep industry experience designing and testing vehicles qualify Erik to investigate a broad range of vehicle topics.
Steven Grundhoefer has 20 years of experience in traffic accident reconstruction. In addition to being ACTAR certified, he is a licensed Professional Engineer in Indiana, Kentucky, Ohio, and Illinois. He possesses extensive trial and deposition experience. He holds a Bachelor’s Degree in Civil Engineering from Purdue University and has approximately 10 years of experience in roadway and site design.
Plaintiff argued that Weine lacked expertise regarding adolescents impacted by traumatic events like car crashes. She pointed out that his CV highlighted experience in global health and refugee issues, but it lacked specific trauma experience related to car accidents involving children. One reference in his CV mentioned “Forensic Psychiatry Practice,” but it did not provide dates to indicate his experience in this area.
However, the Court found that Weine’s CV showed significant experience in analyzing and treating adolescents affected by trauma. He held a fellowship at Yale focused on college students’ mental health and worked as an attending psychiatrist in their Adolescent Partial Hospital. He co-authored articles related to psychiatric care for child and adolescent patients.
In an affidavit, Weine stated he had extensive experience with children and adolescents in traumatic situations. He explained that diagnosing PTSD due to various traumatic events followed a similar approach. His forensic psychiatric practice spanned over 20 years, including cases involving trauma from motor vehicle accidents.
Plaintiff also claimed Weine lacked experience in forensic interviews, citing a failure to discuss informed consent extensively during their interview. However, the transcript along with Weine’s affidavit shows that he discussed the elements of informed consent, including the limits of confidentiality, the extent of his intended disclosures, and the purpose of the interview, with Plaintiff before she agreed to proceed with the interview.
Grange successfully demonstrated that Weine’s qualifications allowed him to address the effects of the Plaintiff’s injuries on her development. The Court held he was qualified to testify as an expert witness under Rule 702.
B. Reliability
The Plaintiff argued that Weine’s opinions from his March 2023 report lacked reliability for two reasons. First, she claimed he did not review enough facts or data before reaching his conclusions about her mental health and history. Second, she criticized his methodology for its inconsistency with ethical guidelines followed in the practice of forensic psychiatry. Based on these points, Plaintiff asserted that Weine’s opinions did not reflect reliable principles in the mental health field.
1. Collateral Information
AAPL Forensic Guideline 5.3 emphasizes the importance of reviewing collateral information in forensic assessments. The Plaintiff claimed Weine violated this guideline by excluding collateral information. However, the argument failed for two reasons.
First, Forensic Guideline 1 clarified that the guidelines do not dictate standards for evaluations. Psychiatrists must use professional judgment to determine appropriate methods of performing a forensic evaluation based on unique circumstances.
Second, the Court found that Weine did consider collateral information. Plaintiff defined collateral information as data obtained from sources other than the subject but did not specify what collateral information Weine excluded from his analysis. According to his report, he reviewed “a variety of documents and videos, including Gaston’s school records from elementary school to present, her employment and training records, medical records, video footage of her deposition, and video footage of the depositions of her guardians, Matthew and Tamara Cochran” in addition to collateral information listed in his report.
Despite these claims, any potential non-compliance with Rule 26(a) was harmless. Courts assess harmlessness based on factors like prejudice to the opposing party and whether the omission disrupted the trial. The Court held that prejudice to Plaintiff is minimal and has been remedied to a degree with Weine’s recent affidavit, which discloses his sources.
2. Context, Frequency, Intensity of Symptoms
The Plaintiff further argued that Weine’s assessment failed to address the context, frequency, and intensity of her symptoms. However, Weine’s notes and report showed he investigated her experiences at school and work. Disagreements between Weine and Westcott about the adequacy of this context relate to substance rather than reliability, making it an issue for the factfinder.
Regarding the frequency and intensity of her symptoms, the Court found that Weine had asked about these aspects during the interview. Though he and Westcott employed different styles, he adequately explored the necessary details.
Plaintiff also contended that Weine did not follow accepted methodologies for diagnosing her potential psychiatric disorders. However, he reported her scores on relevant diagnostic tests consistent with best practices.
The Plaintiff criticized Weine’s report for presenting her history through unattributed quotations, alleging many inaccuracies and typographical errors. However, Weine explained he relied on his notes during the report’s preparation. The discrepancies between his report and the interview transcript were minor and did not undermine his reliability.
Finally, the Plaintiff disputed Weine’s assessment of her quality-of-life post-accident, alleging he manipulated facts. The Court observed that such factual disputes should be explored through cross-examination rather than exclusion of evidence. The evidence showed that Weine’s testimony was admissible under Rule 702 and Daubert.
C. Federal Rule of Evidence 403
Federal Rule of Evidence 403 allows Courts to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice or confusion. The Plaintiff further argued that Weine’s report could mislead the jury due to alleged mishandling of facts. However, her previous challenges to his reliability had been dismissed, and she presented no further arguments of undue prejudice.
There was no indication that Weine’s testimony would evoke irrational behavior from the jury. His report clearly explained the Plaintiff’s history and his conclusions. Given the central nature of her damages to the case, Weine’s opinions held significant probative value. Therefore, his testimony remained admissible under Rule 403.
II. Erik Anderson
Erik Anderson was retained by Grange to assess whether the rear right trailer taillight bulb could be analyzed for energization during the crash. In forming his conclusions, Anderson reviewed evidence, including video footage and photographs from a visual inspection conducted on November 29, 2022 which he did not attend. This inspection was notice by RPS and Hazeltine on November 17, 2022. The notice aimed to confirm the condition of the light assembly previously inspected by Grange’s expert, Adam Hyde, in July 2016.
The notice outlined a protocol for the inspection. This protocol restricted all contact with the light assembly to Hyde and required electronic recording by an identified individual. It also mandated a certification process for attendees.
In response, the Plaintiff reiterated her stance that Hyde had destroyed the light assembly in 2016, calling the visual inspection a “sham.” However, she did not object to any part of the inspection protocol but repeated her argument that Hyde’s actions precluded further analysis. Neither she nor her representatives attended the inspection.
Plaintiff argued that Anderson’s opinions should be excluded under Fed. R. Evid. 702 and Daubert due to unreliability. She claimed he relied on evidence from an improperly conducted inspection and disregarded conflicting evidence. Alternatively, she contended that his testimony could confuse the jury and should be excluded under Fed. R. Evid. 403.
A. Reliability
The Plaintiff argued that Anderson’s opinions were unreliable because they stemmed from his review of the November 2022 visual inspection, conducted without an agreed protocol or Court order. She claimed RPS and Hazeltine violated local rules by proceeding without proper certification of a discovery dispute. However, their notice did not demonstrate any unresolved dispute that required her involvement.
Moreover, the Plaintiff’s response to the notice did not request any relief regarding the inspection. She did not question the protocol or seek to halt the visual inspection. Instead, she expressed skepticism about RPS and Hazeltine’s motivations. Consequently, her response did not raise any legal issues for the Court. Later, she aimed to undermine Anderson’s reliability based on her previous response, yet she provided no authority to connect her concerns to his methods. Therefore, the Court allowed Anderson’s testimony under Rule 702 and Daubert.
B. Federal Rule of Evidence 403
The Plaintiff’s alternative argument for excluding Anderson’s opinions under Fed. R. Evid. 403 also failed. She focused on this Court’s acceptance of findings from her mother’s case against RPS and Hazeltine regarding spoliation of the light assembly. The Court confirmed that the findings on spoliation applied here and stated that while RPS and Hazeltine could not relitigate the spoliation issue, Grange could.
The Plaintiff suggested that Anderson’s differing opinions would confuse the jury about how the same event could represent spoliation for one party but not another. However, her concern lacked merit. The condition of the light assembly was crucial to the spoliation claim against Grange, making Anderson’s insights highly relevant.
The Plaintiff merely implied that the differences between his opinions and those of other experts would confuse the jury. Yet, the jury’s role is to weigh competing evidence to resolve factual questions. She failed to provide substantial support for her claim that Anderson’s opinions would confuse the jury regarding spoliation.
Thus, the Court determined that the probative value of Anderson’s opinions outweighed any risk of undue prejudice or confusion. Consequently, his opinions and testimony remained admissible under Fed. R. Evid. 403.
III. Steven Grundhoefer
Steven Grundhoefer was hired by RPS and Hazeltine to study and survey the November 2015 collision site. His work aimed to assist in analyzing and reconstructing the accident. Grundhoefer summarized his findings in 43 bullet points. The Plaintiff challenged one of these opinions and requested to exclude Grundhoefer’s entire opinion as unreliable under Fed. R. Evid. 702 and Daubert, or as potentially confusing under Fed. R. Evid. 403.
The Plaintiff contested Grundhoefer’s assertion that the four rear taillights on the semi-trailer were illuminated during the collision. She argued that he based this conclusion on police photographs taken after the crash. Additionally, she claimed this opinion conflicted with Hyde’s expert testimony from her mother’s case before the Wabash Court, which stated the lights were off at the time of the accident. The Plaintiff also pointed to conflicting testimonies from officers present at the scene, suggesting that Grundhoefer selectively used evidence to support his preferred conclusion. She argued that the differing expert opinions indicated Grundhoefer’s findings were unreliable.
The Plaintiff’s arguments highlighted that this case might require a “battle of the experts” to resolve the issue of the lights’ illumination during the crash. Expert testimony would likely help the factfinder assess the conflicting evidence regarding illumination, crucial for determining the Plaintiff’s negligence and spoliation claims. The Plaintiff attempted to undermine Grundhoefer’s opinion without solid support, which did not diminish its relevance to the factfinder.
Moreover, RPS and Hazeltine demonstrated that Grundhoefer considered more than one set of police photographs in forming his opinion about the lights. His amended report and affidavit revealed he reviewed photographs and videos from inspections of the taillights and bulbs, alongside police scene images.
The Plaintiff argued that Grundhoefer selectively ignored key evidence. Specifically, he overlooked the deposition testimony from Detective Sergeant Mike Davis and Trooper Swisher. Officer Davis had testified about the flashers’ illumination while at the scene. The Plaintiff suggested that his testimony contradicted Grundhoefer’s conclusions regarding the lights, but she did not clarify this alleged contradiction.
In contrast, RPS and Hazeltine argued that Officer Davis’s testimony did not contradict Grundhoefer at all. Trooper Swisher noted that he believed the taillight was not functioning before the crash. While this testimony might seem to contradict Grundhoefer, the Plaintiff failed to provide evidence showing that an expert must align with every witness’s account to be deemed reliable. Her concerns highlighted the necessity for the factfinder to consider all evidence, including Grundhoefer’s opinion.
Therefore, Grundhoefer’s opinion about the lights’ illumination and his entire expert report were sufficiently reliable for admission under Rule 702 and Daubert. The Plaintiff’s unsupported claim that Grundhoefer’s opinion could confuse the jury did not justify the exclusion his testimony under Fed. R. Evid. 403.
Held
The Court denied the Plaintiff’s motions to exclude the testimony of Defendants’ expert witnesses Stevan Weine, Erik Anderson, and Steven Grundhoefer.
Key Takeaways:
The Court allowed the testimony of Defendants’ expert witnesses based on their qualifications and the reliability of their methodologies.
The Court determined that each expert witness had extensive relevant experience—Weine in forensic psychiatry concerning trauma, Anderson in automotive engineering with a focus on vehicle safety, and Grundhoefer in accident reconstruction.
The Court also determined that the expert witnesses employed established methods appropriate for their fields. Weine reviewed adequate collateral information, Anderson followed an inspection protocol, and Grundhoefer considered multiple sources in his analysis.
The Court concluded that the probative value of the expert witnesses’ testimonies outweighed any potential for confusion or prejudice, reinforcing the need for juries to assess conflicting evidence in determining facts.
In conclusion, the Court upheld the admissibility of the expert testimony under Federal Rules of Evidence 702 and 403.
Case Details:
Case Caption:
Gaston V. Hazeltine
Docket Number:
3:21cv896
Court:
United States District Court for the Northern District of Indiana, South Bend Division
Plaintiff, Rudolph Mills filed this action against Defendant, Steuben Foods, Inc., alleging employment discrimination based on race after numerous complaints about shocking and wildly inappropriate racial slurs used against him by supervisors and managers.
Defendants moved, pursuant to Fed.R.Civ.P. 16(f)(1)(C), 26(a)(2)(A), (D), 37(c)(1)(C), for an order striking the expert report of Mark D. Lerner, PhD. Alternatively, Defendants requested the Court award Defendants’ expenses which may be incurred to counter Lerner’s opinions, including any costs Defendants incur in connection with taking Lerner’s deposition.
Plaintiff e-mailed Defendants a copy of a Confidential Psychological Report prepared by Lerner who was also expected to testify concerning Plaintiff’s alleged psychological and emotional distress Plaintiff suffered as a result of the alleged discriminatory conduct of Defendants. According to the report, Lerner examined Plaintiff on December 9, 2023 and issued the report on December 10, 2023.
Plaintiff’s opposition is based on Plaintiff’s assertion that a dispute between Plaintiff’s counsel and one of Plaintiff’s other expert which “resulted in [a] delay of production of the expert report” does not warrant striking Lerner’s report and preclusion.
Psychology Expert Witness
Mark D. Lerner, Ph.D. is a clinical and forensic psychologist with over 35 years of experience helping people through challenging times. He sees individuals, couples, and families in his office in Melville, New York, and works with clients virtually online.
Moreover, as chairman and CEO of The National Center for Emotional Wellness, Inc., Lerner provides practical information, training, and support for organizations, corporations, educational institutions, healthcare providers, and emergency responders worldwide.
The Court held that this reason for non-compliance fails to explain why Plaintiff’s counsel failed to secure a different psychological expert, presumably Lerner, prior to the deadline for Rule 26(b)(2) expert disclosure.
To begin with, Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial. Specifically, Lerner’s testimony would be limited to the question of Plaintiff’s damages, not Defendants’ liability, and, as such, is not critical to Plaintiff’s case. Moreover, the Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress.
Finally, the Court saw that Plaintiff also failed to establish good cause required by Rule 16(b), for excusable neglect.
Defendants also requested the Court, pursuant to Rule 37(c)(1)(A), award Defendants’ expenses in connection with taking Lerner’s deposition, or alternatively, pursuant to Rule 16(f) or Rule 37(c)(1)(A), Defendants’ expenses incurred in connection with bringing the instant motion.
The Court decided that responsibility for the late service of Lerner’s report is solely attributable to Plaintiff’s counsel’s complete disregard of the deadline for service of Plaintiff’s expert report. Therefore, such responsibility should be assigned to Plaintiff’s counsel, Seamus P. Barrett, Esq. and the Derek Smith Law Group, PLLC, and not Plaintiff, should the Court award Defendants’ attorneys fees incurred in making the instant motion pursuant to Rule 16(f)(1)(C).
Held
The Court granted the Defendants’ motion to strike and preclude the report of Plaintiff’s expert Mark D. Lerner.
Key Takeaways:
The party that failed to comply with its discovery obligations bears the burden of proving that its failure was both substantially justified. Plaintiff’s delay is not harmless as failing to strike Lerner’s report and preclude his expert testimony would necessitate granting Defendants an opportunity to secure a rebuttal expert who would need to interview Plaintiff thereby further prolonging the trial.
Moreover, harmlessness means an absence of prejudice. However, Defendants will be severely prejudiced by having the jury hear unrebutted expert testimony that Defendants’ racial slurs caused Plaintiff to suffer emotional distress
This case concerns Defendant’s alleged transmission of illegal robocalls. Plaintiff, Office of the Attorney General, State of Florida, Department of Legal Affairs brought this action pursuant to the Telemarketing and Consumer Fraud and Abuse Prevention Act. Apparently, Smartbiz courts robocaller customers by allowing them to place a high volume of calls in quick succession, billing only for the duration of completed calls – sometimes in as little as .6 second increments and ignoring clear indicia of fraudulent call traffic.
Plaintiff retained Mike Rudolph “as an expert witness to analyze several relevant datasets, specifically: Defendant’s Call Detail Records (“CDRs”), consumer voicemail recordings provided by YouMail, traceback data provided by the Industry Traceback Group (“ITG”), and consumer complaint data provided by the Attorney General.”
Defendant filed a motion to strike Rudolph’s expert testimony “because it does not carry the hallmarks of reliability.”
Defendant argued that Rudolph’s testimony and methods are unreliable because they are based on confidential and proprietary processes, use algorithms and codes to do much of the work, have not been peer reviewed, have an error rate of less than 1% that is inherently suspect, and cite the average length of Defendant’s calls as a metric.
Technology Expert Witness
Mike Rudolph is the CTO and Chief Architect of YouMail’s telephony, cybersecurity, and robocall mitigation platforms. Rudolph works directly with Fortune 500 organizations, service providers, and working groups, employing AI, machine learning, and forensic analytics to combat illegal and unwanted calls. Moreover, Rudolph holds over a dozen patents featuring a number of startups and public companies adding intelligence through AI and expert systems to highly scaled platforms in communications, compliance and governance, business process management, activity monitoring, background checks, and consumer advertising.
Rudolph prepared an Expert Report describing several types of analysis using different methodologies including the following:
First, is the behavior call analysis which identifies indicia of fraudulent or otherwise unwanted calls in Defendant’s CDRs and consists of five sections of his Summary of Findings: (1) Analysis of “Snowshoeing” Calling Tactics, (2) Analysis of Low Answer Rates and Short Duration Calls, (3) Analysis of Phone Number Spoofing, (4) Analysis of Recipient Geographic Location, and (5) Analysis of Telemarketing Hours and Do-Not-Call-Registry (DNC) Data.
Next, Rudolph analyzed Defendant’s CDRs in conjunction with YouMail Consumer Voice Call Evidence, which consists of call records for calls to YouMail subscribers, recordings of voicemails left by those calls, and transcriptions of those voicemails, identifying examples of calls that Defendant transmitted to YouMail subscribers; third, Rudolph performed an analysis of traceback information to identify patterns in Defendant’s traceback responses to the ITG.
Finally, Rudolph analyzed Defendant’s CDRs and YouMail data in conjunction with consumer complaint data supplied by Plaintiff to identify individuals who complained about the types of calls Defendant transmitted.
According to Plaintiff, Defendant’s contentions that Rudolph’s methods are unreliable because they use algorithms and have not been peer reviewed are not relevant to the type of expert opinion Rudolph has produced. Defendant relies primarily on factors relevant to scientific testimony to rebut the reliability of Rudolph’s methodology, but Rule 702 does not bar non-scientific expert evidence, and allows expert opinions based on technical or other specialized knowledge.
This Court found that Defendant’s issues with Rudolph are insufficient to warrant the exclusion of his testimony and are best addressed on cross-examination.
Held
The Court denied the Defendant’s Daubert motion to exclude the testimony and report of Mike Rudolph.
Key Takeaway:
Rudolph submitted a comprehensive expert report on the relevant datasets, which the Court admitted because the Defendant’s arguments against it were unpersuasive. It was held that the expert’s opinions should not be excluded, but rather be subjected to “vigorous cross-examination” and “presentation of contrary evidence.
Case Details:
Case Caption:
Office Of The Attorney General, State Of Florida, Department Of Legal Affairs V. Smartbiz Telecom LLC
Plaintiff, Raul Rodriguez brought this suit to recover for personal injuries sustained by Plaintiff as a result of an accident which occurred on February 22, 2021 in Jal County, New Mexico on a well owned and operated by Defendant, Kaiser-Francis Oil Company. Rodriguez was an independent contractor attempting to open a ball valve on a skid mounted manifold which was built and maintained by Defendant, Flow Testing, Inc. on Defendant’s, Kaiser-Francis Oil Company, well when he fell causing personal injuries.
Brian McDonald is an economist who served as the director of the Bureau of Business and Economic Research (BBER) at the University of New Mexico (UNM) from 1982 to 2000. Brian Earned his B.A. in economics from Georgetown University and went on to earn his Ph.D. in economics from The University of Pennsylvania
During his tenure as director, McDonald oversaw research on the economic conditions of New Mexico, including analyzing the state’s energy sector, labor market, and income distribution. He also led efforts to expand the BBER’s outreach to the broader community by establishing partnerships with government agencies, businesses, and other organizations to provide economic analysis and forecasting.
Plaintiff agreed that McDonald may not testify to a specific number or range for Plaintiff’s hedonic damages but argues that Defendants’ proposed limits on McDonald’s testimony are overbroad.
Judge M. Christina Armijo excluded any attempt by McDonald to quantify the Plaintiff’s hedonic damages because “the majority rule in federal courts … is that expert testimony which places a dollar figure before the jury in an attempt to quantify the value of a human life is inadmissible and does not meet the relevance and reliability factors set forth in Daubert and its progeny.”
The Court found Judge Armijo’s analysis persuasive and adopted it herein. In conclusion, McDonald’s testimony relating to hedonic damages will be limited to explaining the meaning of hedonic damages and areas of human experience that the jury may consider in quantifying such damages. The Court will not permit McDonald to provide any quantification of Plaintiff’s loss of enjoyment of life or to testify about the statistical value of life or studies related thereto because such testimony would be irrelevant, unreliable, and unfairly prejudicial. Nor will the Court permit McDonald to testify about or explain the caselaw regarding hedonic damages that he discusses at length in his report.
Held
The Court granted the Defendant’s motion to exclude any testimony by M. Brian McDonald insofar as McDonald may not testify about caselaw on hedonic damages but he may testify about other aspects of hedonic damages, including its definition and a general explanation of the components of an individual’s life that the trier of fact may consider in deciding whether to award hedonic damages and, if so, in what amount.
Key Takeaway:
It is well settled in the Tenth Circuit that an expert may not testify about his quantification of the value of Plaintiff’s hedonic damages. However, an economist expert may testify about the meaning of hedonic damages, how they differ from other damages, and areas of human experience to be considered in determining hedonic damages.
This case arose when Defendant Jacob Salamon, a police officer for the City of Loveland, Ohio, arrested Plaintiff Amanda Caton, an off-duty police officer for the City of Cincinnati, Ohio, for operating a vehicle when intoxicated (“OVI”). Plaintiff Patrick Caton, Amanda Caton’s husband and also an off-duty police officer for the City of Cincinnati, was a passenger in the vehicle when Amanda Caton was pulled over and arrested, and he was present when Officer Salamon later dropped off Amanda Caton at their home. The Catons have sued Officer Salamon, former Loveland Police Chief Dennis Rahe, Officer Shawn Parks, and the City of Loveland for violating their civil rights.
Joseph Suhre is the owner and principal of Suhre & Associates DUI and Criminal Defense Lawyers. Suhre has dedicated his practice to the defense of OVI cases and other criminal offenses. Suhre has over 20 years of criminal defense experience and an additional 5 years of experience as a police officer. He has handled hundreds of DUI cases before dozens of judges in numerous counties. Because of this, Joe is uniquely qualified to defend his clients against DUI and criminal charges.
As an attorney, he completed training in OVI detection through courses with the Nation Highway Traffic Safety Administration (“NHTSA”) and Advanced Roadside Impaired Driving Enforcement, both likely more than fifteen years ago.
Tony Corroto served the City of Atlanta Police Department as a police officer for 17 years, spending 14 of them as a senior police officer assigned to the driving under the influence (DUI) task force. He specialized as a standardized field sobriety test (SFST) and drug recognition expert (DRE) instructor. He taught 46 police recruit classes DUI enforcement at the Atlanta Police Academy (APA).
Plaintiffs first argued that Suhre is not qualified to testify as a police practices expert. The Court agreed with Defendants that Plaintiffs framed the issue too broadly. The issue is whether Suhre is qualified to offer expert testimony on police practices involving investigations into potential instance of OVI by applying the NHTSA’s OVI-detection standards.
Though Suhre has not offered expert testimony in a court of law before, he has been retained to instruct about NHTSA standards by the publishing industry, attorneys, and law enforcement organizations. The Court finds that he is qualified with specialized knowledge in the application of NHTSA standards that “will help the trier of fact to understand the evidence or to determine a fact in issue.
First, Plaintiffs criticized Suhre’s statement in his expert report that Officer Salamon observed what the NHTSA refers to as a “vigilance problem” when there was “a 4-second delay between the [traffic] light turning green and Caton’s vehicle proceeding forward.” The NHTSA Visual Detection publication does not define what amount of time is “normal” versus “unusually long.” With no further guidance, the Court cannot say that Suhre’s opinion applying his own judgment to the NHTSA standard is unreliable.
Elsewhere, Suhre opines that Officer Salamon had probable cause to pull Amanda Caton over for traffic violations. However, the Court held that Suhre’s opinion that she did violate a certain traffic provision will not help a factfinder “determine a fact in issue” for purposes of Rule 702(a).
Second, Plaintiffs objected that Suhre cannot testify about whether Officer Salamon had reasonable suspicion or probable cause to pull over Amanda Caton for a violation. The Court agreed because Suhre’s opinions constituted inadmissible legal conclusions.
The Court also excluded Suhre from testifying on the application and meaning of statutes and case law generally.
Tony Corroto
Defendants do not challenge his Corroto’s qualifications to offer expert testimony. Rather, they moved to strike his testimony to the extent that he states in his report that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. The Court already held in regard to Suhre’s testimony that an expert witness cannot testify about whether probable cause exists.
Therefore, the Court will strike and not consider Corroto’s report to the extent that he opines that Officer Salamon did not have probable cause to stop or arrest Amanda Caton. However, the Court refused to exclude Corroto’s report or testimony in full because of the improper opinion about probable cause.
Held
The Court limited the opinions of both Joseph Suhre and Tony Corroto. Suhre will not be excluded from testifying because he is unqualified to give opinion testimony under Federal Rule of Evidence 702. Corroto will not be permitted to testify about whether probable cause existed to stop or arrest Amanda Caton, but his report will not be otherwise excluded.
Key Takeaways:
Expert witnesses may not testify to legal conclusions or to the applicability or interpretation of a particular statute or regulation. Courts are “capable” of interpreting statutes “without the assistance of an expert.
Although an expert’s opinion may ’embrace an ultimate issue to be decided by the trier of fact, the issue embraced must be a factual one.
Courts permit experts to testify about discrete police-practice issues when those experts are properly credentialed and their testimony assists the trier of fact.
Case Details:
Case Caption:
Caton V. Salamon
Docket Number:
1:22cv345
Court:
United States District Court for the Southern District of Ohio, Western Division
On December 9, 2021, Plaintiff Darryl Everson was driving in Montz, Louisiana, when he claimed that Defendant David Rugg (“Rugg”) negligently felled a tree along the roadway. The Plaintiff contended that the tree landed on his car, causing injuries to his back and neck. Additionally, Plaintiff alleged that Rugg was employed by Defendant Romesberg Trucking Inc. (“RTI”), which was covered by Nautilus Insurance Company. He asserted that RTI and Rugg failed to exercise reasonable care in their tree-cutting activities near an active roadway. Specifically, Plaintiff claimed that they did not provide warnings, did not monitor approaching vehicles, inadequately trained Rugg, and created a dangerous situation.
Defendants filed a Daubert motion to exclude the testimony of Plaintiff’s expert arborist, Frederick Fellner.
Meanwhile, the Plaintiff, too, filed a motion seeking to exclude the testimony of Defendants’ expert arborist, James Culpepper.
Arborist Expert Witnesses
Frederick Fellner
Frederick Joseph Fellner, Ph.D., worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.”
James Culpepper has been a licensed arborist since 1979. Among other experience, he spent 33 years with the Louisiana Forestry Commission, in positions such as the “Chief of Information, Education, and Urban Forestry.” Additionally, he founded an arboricultural consulting company specializing in “hazard tree assessments” and “tree protection planning.”
A. Defendants’ Motion to Exclude Fellner’s Testimony
i. Defendant’s Arguments
Defendants questioned Fellner’s qualifications, asserting he was “not a safety specialist but an arborist.” During his deposition, Fellner described his expertise as focusing on the evaluation and health of trees. Since his specialty did not encompass tree-cutting safety, Defendants contended he lacked the qualifications to assess Rugg’s safety measures.
Defendants also criticized Fellner’s methodology, deeming it unreliable for several reasons. First, they pointed out that he did not identify which tree species struck Plaintiff’s vehicle. This omission was significant, especially since he acknowledged in his deposition that species was crucial when cutting trees. Second, they noted that Fellner failed to adequately assess the weather conditions on the day of the incident. While he examined weather data, he did not attach this data to his report. Defendants argued that he relied on reports from Plaintiff’s attorney without verifying their accuracy.
Additionally, Defendants highlighted that Fellner never visited the accident site, despite expressing hope to do so during his deposition. They also noted that he struggled to recall essential case details, such as the road name and accident date, which raised doubts about his analysis. Moreover, they claimed he neglected to research any relevant executive orders or ordinances regarding debris cleanup following Hurricane Ida. Finally, they stated that his testimony lacked reliability, as he identified safety errors without referencing any specific legal provisions that Defendants failed to follow.
ii. Plaintiff’s Argument
Plaintiff opposed the motion to exclude Fellner’s testimony. He explained:
Fellner did, in fact, consider weather conditions.
Fellner could not identify the tree species because Defendants had improperly disposed of it.
Fellner’s choice not to investigate executive orders regarding tree removal was a valid decision to avoid giving legal opinions.
Fellner’s assertion that Defendants failed to meet industry safety standards would provide valuable assistance to the jury.
iii. Analysis
The Court determined that Fellner was qualified to provide expert testimony in this case. Although Defendants argued that his testimony should be excluded because he was “not a safety specialist but an arborist,” the Court found this claim to be inaccurate. According to his resume, Fellner had worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. His extensive experience in landscape construction and risk reduction for the protection of people and property from failure of trees made him suitable to discuss tree removal safety.
The Court acknowledged Defendants’ concerns regarding Fellner’s methodology but asserted that these concerns “affect the weight of the evidence rather than its admissibility.” Plaintiff provided reasonable explanations for Fellner’s alleged shortcomings, such as his inability to identify the tree species because the Defendants disposed of it.
At trial, Defendants could thoroughly cross-examine Fellner regarding his methodology and the assumptions he made. They had also retained a rebuttal expert to critique his testimony.
B. Plaintiff’s Motion to ExcludeCulpepper’s Testimony
i. Plaintiff’s Argument
Plaintiff argued that Defendants did not provide sufficient information regarding Culpepper’s qualifications. He noted that Culpepper only identified himself as a “Consulting Arborist” in his report. He claimed that Defendants had failed to demonstrate Culpepper’s qualifications to offer expert testimony. Additionally, Plaintiff stated that Defendants did not comply with Federal Rule of Civil Procedure 26(a)(2)(B). This rule requires parties to disclose expert qualifications, publications from the past ten years, previous cases, and compensation details.
Second, Plaintiff contended that Culpepper’s report lacked a clear methodology. He pointed out that the report contained only four paragraphs.
In the first paragraph, Culpepper mentioned that the time of the accident was unknown and that Plaintiff left the scene and later returned. Plaintiff argued that this information would not aid the jury, as witnesses would present the facts of the accident, and Culpepper’s comments had no relevance to his expertise.
In the second paragraph, Culpepper claimed there was no weather research in Fellner’s report and attached a weather report for December 9, 2021. Plaintiff countered that this claim was inaccurate, as Fellner’s report included the weather history for Kenner, LA. He noted that Fellner had also addressed and refuted Rugg’s assertion about wind causing the tree’s fall.
In the third paragraph, Culpepper merely quoted snippets from Fellner’s deposition without providing any analysis or opinions.
Lastly, in the fourth paragraph, he criticized Fellner for not visiting the accident site or identifying the tree species. Plaintiff noted that Fellner was retained years after the accident, making it impossible to identify the tree. He also pointed out that Culpepper did not mention visiting the scene himself.
Plaintiff argued that the Defense counsel could effectively cross-examine Fellner regarding these points, deeming Culpepper’s testimony unhelpful to the jury.
ii. Defendant’s Argument
Defendants opposed the motion, arguing that Plaintiff could have gathered more information about Culpepper and his testimony by deposing him, which Plaintiff did not do. They described Culpepper as a “veteran arborist” who had testified in fourteen cases, many involving falling trees. Defendants believed Culpepper’s testimony would help the factfinder by identifying flaws in Fellner’s methodology.
Additionally, Defendants provided Culpepper’s resume, a list of his publications, details of his trial experience, and a statement of his compensation. They emphasized that this information supported Culpepper’s qualifications and the relevance of his testimony.
iii. Analysis
Failure to Disclose
In this case, the Court decided not to exclude Culpepper’s testimony based on Defendants’ alleged failure to provide his resume. First, the Court lacked sufficient information to determine if Defendants met the timeliness requirements of Rule 26(a)(2)(D). This rule states that if evidence is intended to contradict another expert’s testimony, disclosures must occur within 30 days after the other party’s disclosure. The Court was unsure when Plaintiff disclosed information regarding Fellner, making it difficult to assess Defendants’ timeliness.
Furthermore, the Court noted that Plaintiff opted not to depose Culpepper. Plaintiff received the required information about Culpepper on September 9, 2024, nearly a month before the October 7, 2024 trial date. Thus, Plaintiff had adequate time to review the information and potentially depose Culpepper before trial. The Court concluded that any prejudice to Plaintiff was minimal. Since the Court permitted Plaintiff’s expert to testify, it also favored allowing Defendants’ expert to do so.
Daubert Analysis
The Court concluded that Culpepper was qualified to testify. He has qualified in several courts to offer expert testimony in cases where falling trees caused injuries or death.
Although Culpepper’s report was brief, the Court determined that his testimony was reliable. He possessed extensive experience in the industry, which would help the factfinder assess Fellner’s testimony. Moreover, Culpepper’s report demonstrated that he considered significant documentation when forming his opinions, indicating that his findings were not merely personal opinions. He reviewed incident reports, weather reports, statutes, and deposition testimony to prepare his report. The Court also noted that Plaintiff would have the opportunity to cross-examine Culpepper during the trial.
Plaintiff also argued that Culpepper unnecessarily recited facts about the case, such as Plaintiff allegedly leaving the scene of the accident. However, the Court held that if Culpepper began to discuss irrelevant details about the case during trial, the Court would consider objections at that time.
Held
The Court denied the Defendant’s motion to exclude Plaintiff’s arborist expert witness, Frederick Fellner as well as the Plaintiff’s motion to exclude Defendant’s arborist expert witness, James Culpepper.
Key Takeaway:
The Court allowed the testimony of both arborist expert witnesses, Frederick Fellner and James Culpepper, recognizing their qualifications and the relevance of their expertise.
The Court determined that Fellner’s extensive experience in landscape construction and risk reduction rendered him qualified to discuss tree removal safety, despite criticisms of his methodology.
Similarly, Culpepper’s long-standing background in forestry and prior experience as an expert witness provided him with the credibility necessary to assist the jury in evaluating Fellner’s analysis.
The Court observed that any concerns regarding the methodology employed by both experts concerned the weight of their evidence instead of their admissibility.
Jeremy Knorr (“Plaintiff”) worked as a firefighter for the Daisy Mountain Fire District (“the District”) from 1992 until 2019, when he was terminated at least in part due to his inability to comply with a new fitness policy (“the Health Center Policy”), adopted by the Daisy Mountain Fire District Board (“the Fire Board”) in late 2017, that required all District firefighters to take a yearly treadmill test and receive a Metabolic Equivalent Task (“MET”) score—which is a measure of cardiorespiratory and aerobic fitness—of at least 12.
In this action, Plaintiff has sued the District, the Fire Board, and the individual members of the Fire Board (together, “Defendants”) for age discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) and for disability discrimination in violation of the Americans with Disabilities Act (“ADA”).
Defendants retained Mark Hyland to “review and analyze the necessity for, and the requirements of, the Health Center Policy at the Daisy Mountain Fire District and to explain the various tests offered by the District to measure cardiovascular and aerobic fitness ability” while Plaintiff retained Michael Stokes to “calculate and revise the present value of the loss of earnings, income and fringe benefits sustained by Plaintiff.”
Plaintiff moved to exclude the opinions of Hyland while Defendant filed a motion to exclude the opinions of Stokes.
Occupational Therapy Expert Witness
Mark Hyland is a licensed occupational therapist, is “certified in functional capacity evaluation,” has been the director of clinical operations at STI for nearly 30 years, has “performed extensive research and analysis into the health and fitness needs of local business in various industries” including “the Phoenix, Glendale, Goodyear, Prescott and Tempe Fire Departments,” has “consulted on the subject of various government rules, regulations, and laws, including the [ADA] and OOSHA compliance,” and has testified as an expert in multiple occasions since 2001.
Michael J. Stokes earned a Master’s in Business Administration from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He is a partner at Beta Business, a leading consulting firm throughout the Southwest. Beta Business provides economic analysis reports, research and expert testimony for economic damage claims involving personal injury, wrongful death, employment (loss of earning capacity) and more.
Hyland opined that the “the District has a legitimate interest and duty to determine and ensure its employees can perform their duties safely.”
Plaintiff moves to preclude Hyland from testifying on the grounds that “1) Hyland is not medically qualified to testify regarding several areas and 2) the few areas he may have experience with do not require expert testimony.”
Hyland is not medically qualified to testify regarding several areas
Plaintiff’s primary objection to Hyland’s remaining opinions is that Hyland is unqualified to render them because they call for medical expertise but Hyland is not a doctor and did not play a direct role in administering the treadmill tests at STI. Although this challenge is not frivolous, the Ninth Circuit has emphasized that Rule 702 “is broadly phrased and intended to embrace more than a narrow definition of qualified expert.”
The Court is satisfied that this background, training, and experience as the director of clinical operations provides the necessary “minimal foundation” for Hyland to be qualified to opine on the the suitability and necessity of the Health Center Policy for firefighters; whether Plaintiff’s inability to comply with the Health Center Policy precluded Plaintiff from performing the functions of his job; the differences between the treadmill test, the walking test, and the bike test; and how Plaintiff would have fared on the latter two tests.
Nor is there any merit to Plaintiff’s contention that Hyland’s opinions on these topics should be excluded because they are contradicted by other evidence. As the Ninth Circuit has repeatedly emphasized, “[s]haky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”
The few areas Hyland may have experience with do not require expert testimony
As an initial matter, Plaintiff argues in his motion that several of Hyland’s proffered opinions should be excluded as irrelevant and unfairly prejudicial because they relate to obvious, undisputed issues that do not require expertise.
However, Defendants make no effort to respond to these arguments in their response. Instead, they contend— incorrectly—that “the only opinions [Plaintiff] challenges are Hyland’s opinions regarding the fitness tests provided to the District’s employees, the suitability and availability of other tests, and [Plaintiff’s] overall health and fitness levels” and then proceed to offer a defense of those opinions. It follows that Defendants have forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds and have thus not met their burden of establishing the admissibility of those opinions.
Accordingly, the Court excluded Hyland’s first (“Firefighters require a high standard of physical fitness for safe and efficient job performance for their essential job demands.”), second (“The District had a legitimate interest and duty to determine and ensure its employees can perform their duties safely and that its employees are not a danger to themselves, their coworkers, and members of the public”), and fifth (“Cardiovascular standards are necessary for firefighters to adequately perform their job and for the health and safety of the firefighters, their coworkers, and the public.”) opinions.
Hyland’s opinions are not based on methods and procedures of science, but rather on subjective belief or unsupported speculation
Plaintiff’s motion also raises a fleeting challenge to the reliability of Hyland’s opinions but Hyland explains in his report that the Health Center Policy “was developed and based upon National Fire Protection Association (‘NFPA’) 1500 & 1582,” which “standards include, among other factors, spirometry pulmonary function screening and sub-maximal ECG performance tests”; that Hyland has also reviewed “[r]esearch with firefighters [that] indicates that a minimum aerobic capacity of 12.0 METS . . . is necessary for safe fire ground operations.” The Court held that Hyland has adequately explained how his opinions are “grounded in an accepted body of learning or experience in the expert’s field” and has also adequately “explain[ed] how the conclusion is so grounded.”
Hyland’s opinions are not subject to exclusion based on late disclosure
As background, under the scheduling order in this case, expert opinions were subject to a staggered disclosure schedule—the “party with the burden of proof on an issue” was required to provide expert disclosures by a certain date and the “responding party (not having the burden of proof on the issue)” was required to provide expert disclosures about a month later. Both sides were subject to the same deadline for completing expert depositions, which was about a month after the responding party’s disclosure deadline.
Plaintiff’s hyper-technical argument, raised for the first time in his reply, is that because Defendants have now clarified that Hyland’s opinions are intended to support Defendants’ affirmative defenses (as opposed to being used to undermine Plaintiff’s claims), they should have been disclosed by the first expert disclosure deadline in the scheduling order rather than the second, slightly later one. But even assuming this is correct, the Court held that the fact that Hyland’s opinions were disclosed about one month late would not automatically compel their exclusion.
As per Rule 37, any late disclosure was harmless because Plaintiff still received Hyland’s report more than a month before the expert-deposition deadline and was, in fact, able to depose him by that deadline.
Michael Stokes
Stokes calculated the present value of the loss of earnings, income and fringe benefits sustained by Plaintiff as $749,041. When doing so, Stokes assumed that but for Plaintiff’s termination, Plaintiff would have worked for an additional 13.5 years as a firefighter. Stokes also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period.
Defendants argued that Stokes’ opinions should be excluded because they are based on the false assumption that Plaintiff would have worked for another 13.5 years as a firefighter but-for his termination. According to Defendants, this assumption is false because Plaintiff successfully applied for disability benefits in 2020, with a disability onset date of February 20, 2019. Defendants conclude: “Stokes’ did not know [Plaintiff] is disabled. This fundamental error permeated throughout Stokes’ entire analysis, including wrongfully relying upon a ‘normal work life expectancy’ rather than a disability work expectancy, and wrongfully assuming no disability exists in his calculation of [Plaintiff’s] claimed economic damages.”
Stokes’ opinion is based upon incorrect and incomplete facts
Stokes assumed, for purposes of his calculations, that Plaintiff would have worked for another 13.5 years as a firefighter (until the age of 64.6) and also used Plaintiff’s past earnings as a firefighter as the foundation for his assumptions about what Plaintiff would have earned during this 13.5-year period. If it were undisputed that Plaintiff became permanently disabled as of 2019, such that Plaintiff was thereafter unable to hold any paying job, there is a strong argument that Stokes’ assumptions would simply be too untethered to reality to permit the admission of his opinions.
However, Plaintiff retained the ability to continue working and earning wages and will continue to work until the age of 64.6, just as Stokes assumed. Furthermore, although the disability finding may eliminate the possibility that Plaintiff could have held one particular job—his previous job as a firefighter—following his termination, this at most means that Stokes’ assumptions about the amount of wages Plaintiff would have earned from his 13.5 years of posttermination work are incorrect. The Court held that the possibility that Stokes’ calculated damages figure may need to be reduced, because it is based on an inaccurate assumption, is not a reason to categorically exclude Stokes from testifying.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude Mark Hyland.
The Court denied the Defendants’ motion to exclude Michael Stokes.
Key Takeaway:
Despite Hyland’s lack of medical expertise, the real reason the Court limited his opinions was that the Defendants forfeited any defense of the subset of Hyland’s opinions challenged on relevance/403 grounds, and therefore, they did not meet their burden of establishing the admissibility of those opinions.
Stokes did not know that the Plaintiff is disabled but his testimony was admitted despite this fundamental error.
Case Details:
Case Caption:
Knorr V. Daisy Mountain Fire District Et Al
Docket Number:
2:22cv608
Court:
United States District Court for the District of Arizona
