Expert Witness Profiler

Category: Geology Expert Witness

  • Geology Expert Was Allowed to Opine on Subsurface Conditions 

    Geology Expert Was Allowed to Opine on Subsurface Conditions 

    This case arises out of Plaintiffs’ claim that structural damage to their home at 496 Southwood Drive in Madisonville, Kentucky, was caused by coal mine subsidence.

    Val Smith and Gwen Smith obtained a homeowners’ policy from American Strategic Insurance Corp. (“ASIC”) and claimed that mine subsidence caused structural movement and cracking.

    ASIC denied the claim based on the findings of NV5, a technical engineering consulting firm. In early 2024, the Smiths requested that ASIC reconsider its 2021 denial of their mine-subsidence claim.

    ASIC reopened the claim and requested that NV5 perform a supplemental evaluation of the AML documentation. NV5 issued a 20-page supplemental report, again concluding that the Smith residence had not experienced mine subsidence. ASIC reaffirmed its denial on February 16, 2024.

    The Smiths brought claims for breach of contract and bad faith under the common law the Kentucky Unfair Claims Settlement Practices Act (“UCSPA”).

    Plaintiffs disclosed the expert reports of their causation witness, Harold R. Gaston, as well as the damages opinion testimony of David Garrigan. ASIC disclosed the causation opinion testimony of Norman R. Meeks and Thomas Smith to Plaintiffs.

    Both parties sought to exclude the testimony of the opposing party’s experts.

    Civil Engineering Expert Witnesses

    Harold Ray Gaston received a B.S. in Civil Engineering from the University
    of Kentucky in 1982.

    He has more than 32 years of experience completing civil and structural design and years of experience investigating structural issues with residential and commercial buildings.

    He also has provided engineering reports/ testimony in multiple legal cases.

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

    Thomas Walker Smith has 16 years of civil/structural engineering design,
    project management, and construction management experience with
    commercial public building projects, pipeline projects, building mechanical
    system projects and pump station projects.

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

    Construction Expert Witness

    David Garrigan is an expert in the field of delivering commercial, institutional, historic renovation, and specialty construction on projects as he works as a commercial builder and contractor with over 30 years of experience. He has been the Founder and Owner of Garrigan Building and Construction since 2013.

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

    Geology Expert Witness

    Norman Randal Meeks is a professional geologist with 26 years of consulting experience in environmental and geotechnical applications.

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

    Discussion by the Court

    1. ASIC’s Motion to Exclude Gaston and Garrigan

    i. Whether Gaston’s Disclosures Satisfy Rule 26

    ASIC did not dispute that Gaston’s opinions and the bases for them were ultimately disclosed through his letters, the reliance materials, and his deposition testimony. Rather, ASIC argued that Gaston’s expert disclosures were not themselves enough to satisfy the disclosure requirements of Rule 26(a)(2)(B). Plaintiffs argued that Gaston’s letters satisfied the disclosure requirements of Rule 26(a)(2)(B), but that even if they did not, the late disclosure of the reliance materials did not warrant exclusion under Rule 37.

    After review of the record, the Cout found that Gaston’s deposition testimony was within the scope of opinions expressed in his expert reports.

    On the other hand, ASIC’s complaint that the Plaintiffs did not actually disclose the materials Gaston relied on to form his opinions until the day before his deposition is well taken. The Court therefore must consider whether this violation was “harmless or is substantially justified.”

    The testimony that Gaston intended to give at trial appears to be within the scope of the opinions disclosed in his report. There is no apparent risk that if Gaston testifies at trial, ASIC will be surprised by his testimony. Nor, as a result, is there a substantial likelihood that allowing Gaston’s testimony would disrupt trial. As for the ability to cure the violation, to the extent ASIC believes that it was prejudiced by Plaintiffs’ late disclosure, ASIC may move to compel additional discovery—but ASIC has not done so here or explained what additional information it might seek and so the Court will not order further discovery at this time.

    ii. Whether Gaston’s Opinions Satisfy Rule 702

    Next, ASIC contended that Gaston’s opinions, and by extension, Garrigan’s, did not “meet Rule 702‘s requirements of reliability and relevance.”

    Here, Gaston testified that he based his opinions on, among other things, the “presence of a large mine void” beneath the Property in relation to its location, and the “pattern and extent of structural damage.”

    Based on this data and his experience in similar cases, Gaston concluded that the damages to the Property were the result of mine subsidence and not soil or water issues alone.

    ASIC has not explained how Gaston’s reliance on core samples, for example, is unreliable, given that the record shows it is also the methodology employed by Kentucky Environmental and Energy Cabinet’s Division of Abandoned Mine Lands Reclamation (“AML”) to determine the presence of a mine subsidence issue.

    ASIC’s final contention that “Gaston’s opinions . . . would not assist the trier of fact” also fails. Essentially, ASIC argued that because Gaston cannot distinguish between damage documented at the Property before Plaintiffs purchased the Property or prior to the Policy period, his opinion would be unhelpful to the jury in determining causation. ASIC is correct that Gaston’s testimony is limited to “whether or not mine subsidence had” occurred and whether it had “affected the [Property].”

    And because nothing in the record shows that Gaston determined when the alleged damage to the Property occurred, it is true that Gaston’s testimony does not resolve the ultimate coverage issue. However, Gaston’s testimony does address the threshold issue of whether the damage to the Property is of the type that the Policy covers—i.e., whether it was caused by mine subsidence or other excluded causes, such as earth movement. As a result, the relevancy requirement of Rule 702 is satisfied.

    iii. ASIC’s Objections to Garrigan’s Opinions

    With respect to ASIC’s request to exclude Garrigan’s opinions under Rule 37, although Garrigan’s “Scope of Work” letter was deficient under Rule 26, the Court found that ASIC learned that Garrigan visited the Property with Gaston and based his report on that visual inspection, his experience as a professional, his knowledge of the Kentucky Building Code, and Gaston’s specific recommendations regarding the foundation. Indeed, ASIC failed to identify any information that it was unable to discover through Garrigan’s deposition.

    ASIC overstated the required qualifications and methodology for Garrigan’s opinions in case. Garrigan’s testimony in this case is limited to providing an estimate of repair costs for the damages Gaston attributes to mine subsidence. Garrigan need not be qualified as “an engineer, geologist, or subsidence specialist” to do so.

    Rather, Garrigan is entitled to rely on Gaston’s opinions as to the cause of the observed damages, as well as the necessity of certain foundational repairs.

    Likewise, while ASIC alleged that Garrigan’s “methodology amounted to walking around, making assumptions, and writing an estimate,” ASIC has not explained how this methodology necessarily renders Garrigan’s estimate unreliable. Garrigan’s methodology is based on his “personal knowledge and experience” estimating the cost of residential repair projects, as well as the engineering opinions of Gaston and other reliance materials discussed at his deposition on which Garrigan’s background knowledge of residential repair is based. Courts regularly admit damages testimony based on similar methodologies.

    2. Plaintiffs’ Motions to Exclude Meeks and Smith

    i. Plaintiffs’ Objections to Meeks’ Opinions

    Plaintiffs sought to exclude the testimony of Meeks pursuant to Rule 702. First, they argued that “Meeks is unqualified to offer his opinions in this case.” Plaintiffs asserted that Meeks’ experience as a “career geologist that works only for insurance companies, state and federal agencies, and hospitals” is insufficient because he lacked certain specialized experience with coal mine subsidence.

    Contrary to Plaintiffs’ assertion, Meeks is not required to have previously “worked for individuals like the Smiths. . . . given a deposition . . . . [or] written or published anything on coal mine subsidence” for him to be qualified to opine in this matter. Nor was Meeks required to have background knowledge of the coal industry. The Court held that Meeks’ opinions are based on his experience as a geologist—not a coal industry professional.

    Second, Plaintiffs contended that Meeks’ opinions are unreliable because he relied on “upon the results he obtained in his [Standard Penetration Testing (‘SPT’)] methodology” to the exclusion of contrary evidence.

    Contrary to Plaintiffs’ assertions, the record shows that Meeks had a sufficient factual basis for his opinions. In addition to the results of the SPT analysis, Meeks conducted a “visual inspection” and put in an “open records request . . . for records pertaining to historical mining activities that potentially occurred beneath the property.”

    Further, Meeks did consider whether there was a void beneath the Property. Meeks found that the AML maps indicated rooms and pillars but disputed “that that room had collapsed” based on the results of his SPT analysis.

    ii. Plaintiffs’ Objections to Smith’s Opinions

    According to Plaintiffs, “Smith’s reports are inadmissible for three independent reasons”:

    First, Smith is unqualified to offer his opinions in this case. Second, Smith’s opinions necessarily require full and complete determination of the existence of coal mine subsidence based solely on SPT soil analysis, without regard to other accepted testing techniques and/or methods to make that determination. This extraordinary analytical gap in his methodology invalidates each of his opinions. Third, Smith’s primary opinion- that the Smith home is not damaged by coal mine subsidence, is unreliable and fails to address the ‘specific practices’ of this case.

    Based on his education and experience as a structural engineer, the Court found that Smith is qualified to offer his opinions that the alleged damage was consistent with structural movement attributable to soil behavior identified by Meeks and other construction-related issues.

    Moreover, the fact that Smith relied on Meeks’ conclusions regarding subsurface conditions does not make Smith’s methodology unreliable under Rule 702. Smith testified that it is standard practice in subsidence investigation to rely on geologists’ findings in conjunction with visual inspections and analysis of other data, such as relative floor elevations, crack patterns, floor deflection, foundation behavior, and construction issues.

    Nor have Plaintiffs shown that Smith’s conclusions were the result of an unreliable application of his methodology to the facts of the case. For instance, the fact that Smith did not return for a site visit after the damage to the Property worsened goes to the weight of his conclusions but does not make his opinion unreliable.

    Held

    • The Court denied ASIC’s motion to exclude the proposed opinion testimony of Harold Gaston and David Garrigan.
    • The Court denied Plaintiffs’ motions to exclude the testimony of Norman Meeks.
    • The Court denied Plaintiffs’ motions to exclude the testimony of Thomas Smith.

    Key Takeaway

    While Rule 26(a)(2)(B) requires a complete statement of all opinions to be expressed and the basis and reasons therefore, it does not require that a report disclose all information that might be elicited on direct examination to establish the admissibility of the expert opinion under Daubert.

    Case Details:

    Case Caption: Smith V. American Strategic Insurance Corp.
    Docket Number: 4:24cv79
    Court Name: United States District Court, Kentucky Western
    Order Date: June 18, 2026
  • Geology Expert’s Testimony on Potential Alternative Sources Admitted

    Geology Expert’s Testimony on Potential Alternative Sources Admitted

    This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances known as “PFAS.”

    In essence, Plaintiff Earl Parris, Jr., alleged that the Defendants have contaminated his city’s water supply and thus his household water with PFAS. Parris is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department.

    The City of Summerville—which has intervened in this case—used Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. The Defendants are the following companies, which allegedly manufactured and supplied the PFAS discharged into Raccoon Creek: 3M Company (“3M”), Daikin America, Inc., E.I. du Pont de Nemours and Company, and The Chemours Company. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. The Plaintiffs jointly filed a motion to exclude the testimony of 3M’s expert witness Andy Davis.

    Geology Expert Witness

    Andrew Owen Davis is a hydrogeologist who holds a Ph.D. in geology and has been involved in investigating a wide range of environmentally contaminated sites for over 40 years.

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

    Discussion by the Court

    Davis concluded that no more than 0.2% of total PFAS load (or 2.9% of perfluorooctane sulfonate (PFOS) load) in the Raccoon Creek watershed originated from 3M’s products.

    This data is extrapolated from sampling data collected downstream of a farm where biosolids traceable to 3M were applied. Using data on the amount of biosolids applied and farm acreage, he calculated that 3M products could contribute approximately 0.052 mg/ton/day of PFOS. He then determined that biosolids traceable to 3M were deposited on two farms in the Raccoon Creek watershed, multiplied the total tons of biosolids applied to those farms by 0.052 mg/ton/day (with some adjustments), and concluded that 3M contributed “at most” 148 mg/day of 5,1000 mg/day (or 2.9%) of PFOS that made its way to Summerville’s water treatment plant.

    Factoring other types of PFAS, Davis found that 3M contributed 0.2% of total PFAS load. To account for the remaining PFAS concentration, Davis pointed to other potential sources of PFAS using existing PFAS literature and additional sampling data. According to Davis, these potential sources include the application of biosolids to farmland post-2000, poultry farms, cotton farms, septic systems, a fish hatchery, lumbar operations, fire retardant from a mill fire, and the household use of certain commercial products.

    Davis’ opinions regarding other ‘potential sources’ of PFAS in Raccoon Creek are speculative and unsupported by data

    Plaintiffs argued that Davis’ methodology amounts to speculation because (a) he relied on studies identifying PFAS in certain products but failed to verify whether those products were actually used in the Raccoon Creek watershed and (b) his sampling data does not adequately support ruling out 3M products as PFAS sources.

    The Plaintiffs advanced a variety of explanations for why Davis failed to prove that some of the potential alternative sources were at work or why they could not account for PFAS concentrations in the Raccoon Creek watershed. But these arguments spoke to the weight rather than admissibility of the evidence.

    For example, with regard to poultry farms, Davis found that several poultry farms in the Raccoon Creek watershed may contribute to PFAS levels because (1) there are several poultry farms in the area, (2) sampling data downstream of one of the farms revealed PFAS concentrations that did not contain the electrochemical fluorination signature of 3M’s products, and (3) studies have found PFAS in “[p]oultry farm bedding materials (litter)” made from recyclable materials and manure. The Plaintiffs did not challenge the sampling data results or the reputability of the studies.

    Instead, they argued that the sampling data and studies are not conclusive, as the PFAS concentrations may be caused by 3M-polluted water purchased by the farms from Summerville and the farms may not even use PFAS-based litter or manure.

    Here, the Court held that Davis’ methodology is adequately reliable for admissibility purposes. First, Davis’ report is not based on bare speculation regarding the potential non-3M PFAS sources. Davis takes his analysis one step further in identifying potential other sources of PFAS, but he is careful throughout his report to refer to these other sources as “potential” sources based on the available PFAS literature and his sampling data.

    Davis did not cherry-pick or conduct impermissible “results-based reasoning”

    The Plaintiffs took issue with Davis’ decision to base his calculation of the 3M-attributable PFOS load on only two farms where biosolids were applied, citing 3M’s and EPA’s supposed statements to the contrary.

    While the Plaintiffs may disagree with Davis’s decision to limit his 3M PFAS calculations to only two farms and may believe it contradicts 3M’s and the EPA’s statements, the Court found that Davis has provided a sufficient basis for his methodological choice.

    According to Davis, he limited his 3M PFAS calculations to two farms because he determined that those farms were the only two where biosolids were applied prior to 2001.

    Regarding cherry-picking certain reports, the Court agreed with the Defendants that Davis is free to rely on facts presented in published reports as well as his own experience and knowledge in forming his opinions where he does not agree with other facts presented in those reports.

    Held

    The Court denied the Plaintiffs’ motion to exclude the testimony of Andy Davis.

    Key Takeaway

    An expert report is not automatically unreliable merely because it agrees with some aspects of an existing report and not others. Therefore, Davis has shown his methodology is sufficiently sound and that it is “properly grounded, well-reasoned, and not speculative.”

    Please refer to the blog previously published about this case:

    Polymers Expert Allowed to Opine on PFOS Sources

    Case Details:

    Case Caption: Parris V. 3M Company
    Docket Number: 4:21cv40
    Court Name: United States District Court, Georgia Northern
    Order Date: March 16, 2026
  • Opinions of the Geology Expert Witness Regarding Copying of the Patented Technology Excluded

    Opinions of the Geology Expert Witness Regarding Copying of the Patented Technology Excluded

    This case involves an alleged breach of a non-disclosure agreement (the NDA) and patent infringement stemming from the management, construction, and operation of a large lagoon in St. George, Utah (the Lagoon) by Defendants, Desert Color Manager, LLC, Desert Color St. George, LLC, and Pacific Aquascape International, Inc.

    Specifically, Plaintiffs Crystal Lagoons U.S. Corp. and Crystal Lagoons Technologies Inc. (collectively, “Crystal Lagoons”) alleged that, after agreeing to the terms of the NDA, the Desert Color Defendants breached the NDA by disclosing designs, plans, technical information, and other confidential information to Defendant Pacific.

    Plaintiffs then alleged that all Defendants infringed on U.S. Patent No. 8,062,514 (the ‘514 Patent) due to their management and construction of the Lagoon, which allegedly employs Crystal Lagoons’ patented technology. In its most basic sense, the ‘514 Patent is a patented structure to contain a large body of water for recreational use.

     The ‘514 Patent involves, among other things, the design and construction of a structure to contain a water body larger than 15,000 m³, the use of a plastic liner to cover the bottom and walls of the structure, the use of a recycling system that uses pipes with injectors that also allow the application of chemicals, the use of a water inlet line and inlet chambers through which water is extracted to feed the fresh water feeding pipe system of the structure, and the use of a system of skimmers positioned along the border of the structure.

    Plaintiffs retained Christopher D. Lidstone as an expert to opine on the infringement and validity of the ‘514 Patent, and they retained Richard F. Bero as an expert to opine on the issue of damages. Defendant filed motions to exclude the opinions offered by Lidstone and Bero.

    Accounting Expert Witness

    Richard F. Bero is the executive vice president of The BERO Group’s Economic Damages division. He is a certified public accountant (CPA) and a certified valuation analyst (CVA). Bero received his BBA in Accounting and Finance from the University of Wisconsin-Madison.

    Bero provides accounting and financial consulting services and expert testimony pertaining to economic damages and valuation issues in a wide range of litigation matters with an emphasis on commercial litigation and intellectual property matters.

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

    Geology Expert Witness

    Christopher D. Lidstone is principal of CDLidstone, LLC, Fort Collins Colorado. He was formerly president and founder of Lidstone and Associates and managed that firm for 29 years until July, 2015. He sold Lidstone and Associates to Wenck Associates and served as a Principal and Regional Manager for that firm until January of 2021. In his current position as owner of CDLidstone LLC he continues his water resources engineering and geological career throughout the United States and internationally. He serves as a consultant to not only the mining but environmental industry as well as several municipalities, state and federal government. He has completed geological exploration and due diligence services in the US, Canada and Mexico and has completed work in Indonesia, Australia and Papua New Guinea.

    His work expertise addresses both ground water and surface water studies including water supply, water development, erosion and sedimentation, flood control, geomorphic stability, geochemistry and water quality studies.

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

    Discussion by the Court

    Christopher D. Lidstone’s Expert Opinions Regarding the Absence of Non-Infringing Alternatives, Long-Felt Need, and Copying Are Inadmissible

    Lidstone is a water geologist, not a recreational water structure designer

    First, Defendants argued Lidstone is a water geologist, not a recreational water structure designer. As such, he cannot be considered a person of “ordinary skill in the art,” which is necessary to opine on the infringement and validity of the ‘514 Patent.

    Plaintiffs responded by pointing to, among other things, Lidstone’s 42 years of experience in the field of hydrology; his degrees in Geological Sciences and Geomorphology; his work experience with the design and construction of water supply, water treatment, and storage projects for public water supplies; his experience previously serving as a technical expert in other patent cases related to groundwater storage; his experience teaching courses on the building blocks for pools, like the use of liners, flocculation, disbursement, cation exchange, water, and concrete; and more.

    The Court agreed with Plaintiffs that Lidstone has specific, relevant experience related to the ‘514 Patent to qualify him as a person of ordinary skill in the art with respect to water structure design generally, and there is no requirement that Lidstone have specific design experience with recreational water structures to opine on the validity and potential infringement of the Patent. After all, the potential  for recreational use of these structures is only a small part of the invention.

    Lidstone lacks a factual basis for his opinion that the ‘514 Patent is a “foundational” patent

    Second, Defendants argued that Lidstone lacked a factual basis for his opinion that the ‘514 Patent is a “foundational” patent.

    Defendants added that Lidstone never defined what the term “foundational” means, and they emphasized the potential lack of relevance of Lidstone’s testimony regarding the nature of the ‘514 Patent.

    However, the Court held that Lidstone defined “foundational” as being the original, or foundational, patent filed by an applicant directed to a particular subject matter. Indeed, Lidstone identified the ‘514 Patent family as the first family of patents filed in the United States by Crystal Lagoons related to this technology, and he acknowledged the fact that other patents issued from the same initial application.

    Lidstone relied on no data or facts whatsoever to support his opinion that there are no non-infringing alternatives to the technology of the ‘514 Patent

    To prove the absence of acceptable, non-infringing alternatives, the patentee may prove either that the potential alternative was not acceptable to potential customers or was not available at the time of infringement.

    Plaintiffs pointed to Lidstone’s opinions on the “foundational” nature of the ‘514 Patent as the basis for this opinion.

    It was unclear to the Court how this opinion independently constituted a sufficiently reliable basis for an “absence of non-infringing alternatives” opinion. The most relevant expert testimony the Court could identify potentially relating to this issue is when Lidstone testified how “the technology covered by the ‘514 Patent constituted a significant departure from the technologies for building and maintaining large bodies of water for recreational purposes available at the time” as it allowed for “the design, construction, and operation of sustainable, clear lagoons of virtually unlimited sizes.”

    Critically missing from Lidstone’s report and testimony, however, are any facts or analysis suggesting how at the time of Defendants’ alleged infringement there was an absence of acceptable, non-infringing alternatives.

     At best, Lidstone provides an opinion on the novelty of the invention but cabins it to the exact moment Crystal Lagoons first patented its lagoon technology in the United States (in 2007)—he did not opine on the existence of non-infringing alternatives when Defendants allegedly infringed on the Patent by designing and building the accused Lagoon (between 2019 and 2020).This did not reliably demonstrate how in 2019, at the time of the alleged infringement, there was an absence of acceptable, non-infringing alternatives. Twelve or more years of technological advancements may have altered the lagoon technology landscape significantly, and it is a crucial consideration for any expert opinion regarding whether non-infringing alternatives existed at the time of infringement. The Court held that the expert testimony is unreliable and inadmissible.

    Defendants argued that Lidstone has no factual basis for his opinion that the ‘514 Patent fulfilled a “long-felt need”

    Plaintiffs contended that Lidstone’s factual basis for this opinion permissibly rests on (1) his opinion that the ‘514 Patent is a foundational patent, and (2) the increase in demands for lagoons after the ‘514 Patent was issued.

    Lidstone’s rebuttal expert report consisted of only two, conclusory sentences that the ‘514 Patent “fulfilled a long felt need to develop and treat large bodies of water such as lakes and ponds.”

    He later testified he based his long-felt-need conclusion on the nature of the patent, the history that predated the patent, and what happened after the patent came into play.

    Specifically, Lidstone indicated how, based on his understanding of the relevant pool-related technology, “prior to this patent, there were no large lagoons that had been developed, and subsequent to the patent, lagoons were built,” but he admittedly could not identify any statements or other evidence prior to 2006 indicating a long-felt need.

    The Court is unpersuaded that merely pointing to some level of eventual demand for a patented product renders reliable expert testimony regarding long-felt but unresolved need. If this were the case, all patented products that happen to generate sales over the life of the patent would essentially enjoy a presumption of satisfying a long-felt need. While a rapid increase in demand for the patented product may be suggestive of long-felt need, Lidstone did not analyze the rate of increase of demand for lagoons. He only analyzed and described Crystal Lagoons’ current success in the lagoon industry.

    Defendants argued that Lidstone lacked sufficient facts and data supporting his opinion that the ‘514 Patent has been commercially successful

    Defendants admitted Lidstone takes about a page of his report discussing various indicators of Plaintiffs’ commercial success, but they insisted Lidstone never analyzed data to reach his opinion that the commercial success resulted from the ‘514 Patent.

    The Court held that Lidstone’s opinions on this subject are reliable and relevant as they adequately demonstrate and describe how the ‘514 Patent is advantageous to Crystal Lagoons’ commercial success. Lidstone described various indicators of Crystal Lagoons’ ongoing commercial success in his rebuttal report, and he linked the success to the ‘514 Patent by relying on his previous opinion that the technology of the ‘514 Patent provides the foundation for Crystal Lagoons’ technology to create large bodies of water for swimming and recreational use.

    As discussed above, the Court held that his opinion on this subject is also reliable and admissible. Moreover, a correct understanding of Crystal Lagoons’ business model, which Lidstone understood, also supported his commercial success opinion. Crystal Lagoons generates revenue by issuing a collective license of all its intellectual property—which necessarily includes the’514 Patent—to lagoon builders for the design, construction, and operation of its lagoon technology. Notably, Crystal Lagoons did not design, build, and operate artificial water lagoons, nor did it license its Patents and other intellectual property on a patent-by-patent basis; instead, it licenses all of its technology only when it has ongoing involvement in a project such as providing (and getting paid for) its ongoing systems fees services.

    Defendants argued that Lidstone failed to link any “industry praise” to the actual inventions of the ‘514 Patent

    Lidstone’s explained how “based on the invention of the technology of the ‘514 Patent,” Fischmann (the inventor of the ‘514 Patent), has been honored many times with prestigious international awards, including Entrepreneur of the Year, Innovator of the Year, Businessman of the Year, the Innovation Stevie Award, the Real Innovator Award, the Green Apple Award, and two Guinness World Record Awards related to lagoons built and operated using Crystal Lagoons’ technology.

    He also explained how hundreds of lagoon projects around the world currently use Crystal Lagoons’ technology.

    As explained above, these awards presented to Fischmann for his lagoon-related inventions necessarily relate, at least in part, to the ‘514 Patent because this Patent is included in each sale of Crystal Lagoons’ collective license, and the technology likely forms a part of each resulting lagoon. Lidstone’s analysis and opinions on this subject are reliable and admissible.

    Defendants argued that Lidstone failed to provide any factual basis to support his conclusion that Defendants “copied” the ‘514 Patent

    Plaintiffs did not direct the Court to any reliable support for Lidstone’s opinions regarding copying of ‘514 Patent technology; they only argued that Lidstone’s opinions regarding Defendants’ infringement were sufficient to support his copying opinion. But precedent forecloses this argument. A review of Lidstone’s expert reports and deposition testimony reveals he similarly conflated the terms “copying” and “infringement.” Tellingly, the only explicit support for his copying opinion is his analysis of another lagoon’s infringement of the ‘514 Patent in a related case.

    And when pressed about the basis for his copying opinion, Lidstone testified how “[he] look[ed] at similarities in designs and so forth,” but he admitted, “[w]hat Pacific Aquascape did to get there, I don’t know.” A reliable copying opinion would have focused on what Defendants “did to get there,” i.e., their efforts to replicate a specific product, not on the mere similarities between the accused device and the patent claims. The Court therefore concluded that Lidstone’s opinions and testimony on this subject are unreliable and inadmissible.

    Richard F. Bero’s Expert Testimony Regarding Infringement Damages is Unreliable and Inadmissible

    Defendants dedicated a few sentences of their Motion to argue Bero’s opinions regarding commercial success, breach of contract damages, and unjust enrichment damages are unreliable. But the Court found that this testimony was sufficiently supported and reliable to be admissible.

    Patent infringement damages are customarily computed by calculating lost profits or a reasonable royalty, and Defendants challenged the admissibility of Bero’s testimony with respect to each calculation.

    The Federal Circuit is clear that “apportionment is an important component of damages law generally, and . . . it is necessary in both reasonable royalty and lost profits analysis.”

    Under the entire market value rule—which has been described as a “narrow exception” to the apportionment requirement and potentially applies regardless of whether the patentee relies on a reasonable royalty or lost profits calculation—the patentee may rely on the entire market value of the accused product if the patentee demonstrates that “the feature patented constitutes the basis for customer demand.”

    Here, Plaintiffs do not sell products. Instead, as explained above, Crystal Lagoons primarily generates revenue by issuing a collective license of all its intellectual property to lagoon developers, which includes the ‘514 Patent, for the design, construction, and operation of its lagoon technology.

    The Court held that Bero “never conducted any market studies or consumer surveys to ascertain whether the demand for [the collective license] is driven by the [‘514 Patent]” in dispute. Ultimately missing from Bero’s opinions are any sufficiently reliable facts or data suggesting the ‘514 Patent is what motivates consumers to purchase the Crystal Lagoons’ portfolio of property.

    Movant’s Ignorance of the Law is Insufficient to Demonstrate Excusable Neglect 

    Plaintiffs made an oral motion seeking to allow Bero additional time to submit a supplemental expert opinion, which would address some of the deficiencies with his expert report. Federal courts are clear that a movant’s ignorance of the law is insufficient to demonstrate excusable neglect; accordingly, Plaintiffs have not satisfied their burden under Rules 6(b)(1)(B) and 16(b)(4) to modify the already expired expert discovery deadline.

    Held

    The Court granted in part both motions to exclude Plaintiffs’ experts Christopher D. Lidstone and Richard F. Bero.

    Key Takeaways:

    • Even though Lidstone may lack experience with designing water structures primarily used for recreation, Lidstone’s experience with designing other water structures qualifies him to opine on key issues relevant to the structure-related claims of the ‘514 Patent.
    • Evidence of long-felt need is closely related to the failure of others, though they are distinct considerations. This evidence is particularly probative of obviousness when it demonstrates both that a demand existed for the patented invention, and that others tried but failed to satisfy that demand.
    • When the patented invention is a component of a commercially successful machine or process, the patentee need only “come forward with evidence sufficient to constitute a prima facie case of the requisite nexus,” and show “a legally sufficient relationship between that which is patented and that which is sold.” In this case, the ‘514 Patent necessarily forms a part of each sale of the collective license, and likely plays a part in the development of each resulting lagoon.
    • Plaintiffs and Bero rely solely on the “foundational” and “core” nature of the ‘514 Patent, the fact that the ‘514 Patent is included in every purchase of Crystal Lagoons’ collective licenses, and the lack of viable lagoons in the marketplace to make an impermissible inference that the Patent drives consumer demand for all of Crystal Lagoons’ intellectual property. None of these are adequate bases to justify Bero’s reliance on the entire market value rule. 

    Case Details:

    Case Caption: Crystal Lagoons Us Corp Et Al V. Desert Color Manager Et Al
    Docket Number: 2:20cv851
    Court: United States District Court, Utah
    Order Date: February 4, 2025
  • Testimony of Geology Expert Witnesses about the Environmental Remediation of the Property Admitted

    Testimony of Geology Expert Witnesses about the Environmental Remediation of the Property Admitted

    This breach of contract action arises from a series of agreements relating to real property located at 2497 Adam Clayton Powell Jr. Boulevard in Manhattan (the “Property”) that was contaminated by an oil spill (the “Spill”) originating from non-party ExxonMobil’s adjacent gas station.

    In February 2010, the Plaintiff, 2497 Realty Corp., executed the Contract of Sale of Membership Interests in 2497 Holding LLC, the no-party entity that owns the property, the buyer being Defendant, 2497 Partner LLC (the “Contract”).The parties thereafter amended the Contract to give Defendants sole control over remediation of the Property and settlement negotiations with ExxonMobil. The amendments also created a distribution plan (the “Waterfall”) for any proceeds received from a settlement agreement with ExxonMobil. In June 2011, ExxonMobil settled with 2497 Holding LLC for $1,500,000 (the “Settlement Agreement”).

    In the instant action, commenced in 2014, the Plaintiff alleged that the Defendants breached the Contract by failing to make distributions pursuant to the Waterfall. The key issue in dispute is whether, per the Contract, the Property has been remediated to “its highest and best use under applicable zoning laws, as the Purchaser shall determine in its sole and absolute discretion.” Both parties have commissioned expert reports that document the remediation of the Property.

    The Defendants filed a motion to preclude environmental experts, Andrew Lockwood and Derek Ersbak from testifying at trial. The Defendants argued that (i) the subject reports contain impermissible legal conclusions that reach the ultimate issue in the case; (ii) the Plaintiff’s experts are not qualified to opine on the “highest and best use” of the Property; and (iii) the subject reports fail to satisfy the disclosure requirements of Commercial Division Rule 13(c). 

    Geology Expert Witnesses

    Andrew Lockwood is a graduate of SUNY Potsdam, where he studied geology. He is a licensed Professional Geologist in New York and a licensed Environmental Professional in Connecticut. Moreover, he has over thirty (30) years of experience managing environmental remediation, including the investigation and remediation of land contaminated by gasoline, radiation, and poly fluoroalkyl substances (PFAS).

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

    Derek Ersbak is a graduate of SUNY Binghamton, where he studied biology. He is a licensed Professional Geologist in New York with twenty (20) years of experience in environmental due diligence, environmental compliance and state and federal remedial programs, including the federal Superfund cleanup law, New York’s Brownfield Cleanup Program, and regulations promulgated by New York City’s Office of Environmental Remediation.

    Want to know more about the challenges Derek Ersbak has faced? Get the full details with our Challenge Study report 

    Discussion by the Court

    The necessity of expert testimony in this case is beyond dispute as the subject matter—involving a technical analysis of environmental remediation efforts—is clearly beyond the ken of the typical juror. Moreover, the Court found unavailing the Defendants’ arguments that the Plaintiff’s expert geologists are not qualified to opine on the real estate development concept of “highest and best use,” and that the Contract grants the Defendants sole discretion to determine the highest and best use of the Property.

    The Defendants accurately observed, however, that the Plaintiff’s Reports also includes opinions that veer into contract interpretation and other legal conclusions. Since no expert witness is permitted to testify on matters of contract interpretation or other purely legal issues, the Court held that questions put to Lockwood and Ersbak at trial should be limited to the environmental condition of the Property without requesting opinions on particular legal obligations of the parties under the Contract.

    The Defendants further contended that the Plaintiff’s Reports and the testimony of Lockwood and Ersbak should be precluded because the expert disclosure provided by the Plaintiff did not comply with Commercial Division Rule 13(c) in that the Plaintiff’s Reports fail to list Ersbak and Lockwood’s recent publications and experience as expert witnesses. Moreover, the Defendants also took issue with Ersbak and Lockwood’s joint authorship of the Reply Report. The Court held that these arguments are without merit because there is no bar to jointly authored reports and preclusion of expert testimony based on noncompliance with Commercial Division Rule 13(c) is a question of judicial discretion.

    Held

    The Court denied Defendants’ motion to preclude the testimony and reports of the Plaintiff’s environmental experts, Andrew Lockwood and Derek Ersbak.

    Key Takeaway:

    The Plaintiff’s experts’ opinions are in keeping with the First Department’s reading of the contract language. They do not opine on the issue of what is or is not the theoretical highest and best use of the Property. Rather, they opine on the environmental remediation of the Property—an appropriate issue for expert testimony that is within their area of expertise—taking as their starting point the First Department’s aforementioned analysis of the Contract’s terms, the Property’s current zoning for commercial use, and the Defendants’ current use of the land for commercial purposes.

    Case Details:

    Case Caption: 2497 Realty Corp. V. Fuertes
    Docket Number: 151947/2014
    Court: Supreme Court of New York, New York County
    Order Date: August 21, 2024