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Category: Law And Legal Expert Witness

  • Law And Legal Expert Allowed to Opine on Firm Management

    Law And Legal Expert Allowed to Opine on Firm Management

    This case features a collapsed Ponzi scheme, more than 200 investor-victims, and a federal equity Receiver. The Receiver sued Baker Donelson law firm and two of its former employees— individuals now with federal criminal convictions—for aiding and abetting, civil conspiracy, and other claims under Mississippi law. She seeks to hold them accountable for “the unsustainable liabilities inflicted by the Ponzi scheme” that harmed Madison Timber Properties’ “ability to repay [its] investors.”

    The Receiver hired Marta-Ann Schnabel to provide expert opinion on law practice management. Baker Donelson moved to exclude Schnabel’s opinion.

    Law And Legal Expert Witness

    Marta-Ann Schnabel is the managing director of O’Bryon & Schnabel, PLC, a firm established 25 years ago at the turn of the millennium.

    Over the last ten years, she has focused on defending professional (primarily legal) malpractice matters and assisting lawyers and judges with legal ethics issues. She is a 1978 graduate of Memorial University of Newfoundland, Canada, with a B.A. Honours in History. She received her Juris Doctorate from Loyola University College of Law in 1981, where she served as a member of Law Review and of the National Moot Court Team.

    Schnabel served as President of the Louisiana State Bar Association and of the New Orleans Bar Association. She has been a member of the LSBA’s Rules of Professional Conduct Committee for 20 years, and she was a member of the LSBA’s Ethics Advisory Service Committee for 15 years.

    Want to know more about the challenges Marta-Ann Schnabel has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    The Receiver hired Schnabel to offer expert opinion on law firm management. Schnabel provided the following opinions:
    (1) Baker Donelson’s managerial and supervisory controls did not match the standards set by Baker Donelson’s Employee Handbook/Code of Business Conduct, By-laws, or good practice. The firm took no steps to enforce its own rules to supervise or limit the work of Jon Seawright and Brent Alexander.

    (2) Rule of Professional Conduct 1.8 prohibits lawyers from entering into business transactions with clients, but Baker Donelson did not inquire about potential conflicts of interest based on the open and obvious way Seawright and Alexander conducted their timber business at the Baker Donelson Jackson office. Baker Donelson had a duty pursuant to Rules of Professional Conduct 5.1 and 5.3 to know about and supervise Alexander’s business activities, and there should have been concern that the relationship between Seawright and Alexander brushed up against Rule 5.4(b). Baker Donelson’s managerial and supervisory controls did not match the standards intended by the Rules of Professional Conduct.

    (3) Baker Donelson should have known that Alexander and Seawright were operating this investment enterprise out of the Baker Donelson Jackson office. Baker Donelson did not take any adverse action, which demonstrates a lack of management and supervisory controls and falls below the standard of care required by Baker Donelson’s internal policies, the Rules of Professional Conduct, and the standard of care for law firms.

    Analysis

    Qualification

    The firm argued that Schnabel is not an expert on Baker Donelson policy, that argument misapprehends her proffered area of expertise. She is offered as an expert in firm management. As part of developing her opinions, she reviewed Baker Donelson’s internal policies, to develop an opinion on firm management practices at Baker Donelson with respect to its internal procedures. Upon review, the Court is satisfied that Schnabel is qualified to offer expert opinion on law firm management.

    Relevance

    Baker Donelson challenged Schnabel’s proffered opinions of grounds of relevance and reliability. The Court first dispenses with the issue of relevance. Schnabel’s opinions are relevant to matters in this case.

    Issues before the jury include whether Baker Donelson impliedly or otherwise authorized Seawright’s and Alexander’s timber business and whether, after the fact, Baker Donelson ratified that business by failing to take any adverse action. Whether, for instance, Baker Donelson followed its own internal procedures, including supervisory and disciplinary procedures, with respect to Alexander and Seawright could tend to show failure to supervise, authorization, and/or ratification of their actions. The Court found that these opinions satisfy the relevance requirement imposed by Daubert.

    Reliability

    As for reliability, Schnabel testified that the majority of her knowledge comes from a variety of professional experiences. She may draw on those experiences to inform the standard of care about which she intends to testify.

    Baker Donelson also attacked Schnabel’s opinion as lacking a basis with respect to the firm’s failure to take action against Seawright and/or Alexander. There appears to be a basis for this opinion in, for example, admissions and interrogatory responses given by Seawright and Alexander. Likewise, Baker Donelson raised other attacks on Schnabel’s proffered opinions, but none rise to the level of defeating the presence of relevance or reliability. Testimony offered by Schnabel must still comport with the rules of evidence and may not veer outside the proper scope of expert testimony, but the Court is satisfied that her proffered opinions comply with the rules and guidelines set forth by the Supreme Court in Daubert such that exclusion is not required.

    Held

    The Court denied Baker Donelson’s motion to exclude the testimony of Marta-Ann Schnabel.

    Key Takeaway

    No one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. A witness’ experience, studies and education, combined with a review of the relevant materials can provide a reliable basis for expert testimony.

    Please refer to the blog previously published about this case:

    Law And Legal Expert Was Not Allowed to Opine on Notaries

    Case Details:

    Case Caption: Mills V. Baker
    Docket Number: 3:18cv866
    Court Name: United States District Court for the Southern District of Mississippi, Northern Division
    Order Date: February 06, 2026
  • Law And Legal Expert Was Not Allowed to Opine on Notaries

    Law And Legal Expert Was Not Allowed to Opine on Notaries

    This case features a collapsed Ponzi scheme, more than 200 investor-victims, and a federal equity Receiver. The Receiver sued Baker Donelson law firm and two of its former employees— individuals now with federal criminal convictions—for aiding and abetting, civil conspiracy, and other claims under Mississippi law. She seeks to hold them accountable for “the unsustainable liabilities inflicted by the Ponzi scheme” that harmed Madison Timber Properties’ “ability to repay [its] investors.”

    Baker Donelson hired Robert L. Gibbs to provide expert opinion on notaries in the State of Mississippi. The Receiver filed a motion to exclude Gibbs’s opinion.

    Law And Legal Expert Witness

    Robert Gibbs is a licensed Mississippi attorney with over 40 years of experience, including time serving as a state Circuit Judge.

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

    Discussion by the Court

    To begin with, the Court is not convinced that Gibbs is qualified to offer expert testimony in the proffered field. The Court is not convinced there even is such a field of specialized expertise “on the use of notarial officers (‘notaries’) in the State of Mississippi.”

    And, assuming there is, Gibbs’ experience, though impressive, does not demonstrate how he would have any special insight into the notarial process that was unavailable to anyone with a general legal background, or even any person who has had occasion to have documents notarized.

    Finally, Gibbs answers certain questions largely by quoting a Mississippi Supreme Court case and the Mississippi Administrative Code. Also, Gibbs opined that the notaries breached their professional obligations and deviated from the standard of care for notarial practice in Mississippi. However, these are mere summaries of the law. To sum up, the purpose of expert testimony is not to render legal conclusions.

    Held

    The Court granted Receiver’s motion to exclude the testimony of Robert Gibbs.

    Key Takeaway

    Since there is no indication that Gibbs’ opinion would provide any special insight that would not already be known to a lay person who has had occasion to interact with a notary, the Court held that his opinions venture outside the proper scope of expert testimony, are unhelpful to the jury, and must be excluded. 

    Case Details:

    Case Caption: Mills V. Baker
    Docket Number: 3:18cv866
    Court Name: United States District Court for the Southern District of Mississippi, Northern Division
    Order Date: February 04, 2026
  • History Expert’s Testimony on Discriminatory Motivations Admitted

    History Expert’s Testimony on Discriminatory Motivations Admitted

    For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote. When the United States started to readmit the rebellious slave states after the Civil War, Congress feared that the former Confederate powers would invent new crimes with which they could disenfranchise Black Americans. To help ensure the right to vote across the Commonwealth, Congress passed the Virginia Readmission Act of 1870. That Act prevents Virginia from changing its constitution to deprive any citizen of the right to vote, “except as a punishment for such crimes as are now felonies at common law.”

    Several times, Virginia has rewritten its constitution contrary to the statute. Each new version has disenfranchised people for offenses other than felonies at common law, and Virginia now automatically disqualifies all felons from the ballot box.

    The Plaintiffs, Tati Abu King and Toni Heath Johnson, have lost their right to vote under this provision. They brought the instant class action to enjoin election officials from enforcing Virginia’s felon disenfranchisement provision.

    The Plaintiffs proffered two expert witnesses, Prof. Carissa Hessick and Prof. Edward Ayers. The Defendants moved to exclude both.

    Law And Legal Expert Witness

    Carissa Byrne Hessick received her undergraduate degree from Columbia University in 1999 and her law degree from Yale Law School in 2002. She has been researching and teaching criminal law since 2005. Currently, she is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law.

    Prior to joining the faculty at the University of North Carolina, she served as a Professor of Law at the University of Utah’s S.J. Quinney College of Law, a Professor of Law at Arizona State University’s Sandra Day O’Connor College of Law, and a Climenko Fellow and Lecturer on Law at Harvard Law School. From January through May of 2024, she served as the Fulbright Distinguished Chair in Arts, Humanities, and Social Sciences at the Australian National University.

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

    History Expert Witness

    Edward L. Ayers is a professor at the University of Richmond. He is the Tucker-Boatwright Professor of the Humanities and President Emeritus at the University of Richmond, as well as the executive director of New American History and former co-editor of American Panorama, two digital projects based at the University. Ayers is also a co-host of BackStory: the American History Podcast, a nationally syndicated podcast, made possible through Virginia Humanities.

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

    Discussion by the Court

    Hessick

    Hessick analyzed the history of Reconstruction and concluded that the law of the Reconstruction Era distinguished between common law felonies and statutory ones.

    From this premise, Hessick offered a definition of “felonies at common law” and compiled a list of such felonies at the time of Reconstruction. Hessick then used comparative techniques to categorize Virginia’s modern felonies as common law felonies or not common law felonies, according to whether today’s crimes descend from Reconstruction Era common law felonies.

    First, the Defendants argued that the Court must exclude Hessick’s evidence because she offered an inadmissible legal conclusion by defining the phrase “felonies at common law” in the Virginia Readmission Act. Second, the Defendants argued that Hessick used an unreliable methodology in her report because she could not classify some modern felonies, and her first-of-its-kind analysis made peer review difficult.

    Hessick offered a reliable analysis generated largely by traditional, primary-source historical research. Moreover, Hessick’s conclusions did not affect the result in this case: The Court has reached its own conclusion about the law. Again, the Rule 702 inquiry here “is much less critical . . . because there is little danger of prejudicing” the Court sitting as both trier of fact and law—and the Court, which has now heard “the expert’s testimony or opinion,” has determined it has no effect on the Court’s legal analysis.

    Ayers

    As with Hessick, the Defendants contended that Ayers presented an inappropriate legal conclusion on the meaning of the disenfranchisement provision in Virginia’s Constitution.

    The Defendants further labeled Ayers’s evidence irrelevant because it focuses on “racial discrimination in the south,” and “[P]laintiffs are not bringing a racial-discrimination claim” or claims involving other states’ regimes. The Defendants also questioned Ayers’s methodology.

    The Court’s analysis of Hessick’s relevance applied with equal force here. To the extent the Court has relied on Ayers’s offerings, they have merely provided a largely undisputed context of Congress’ concerns about the expected legal shenanigans of the readmitted states: Ayers comments on the legal and political regime in place during the Reconstruction Era, colored by unsurprising discriminatory motivations.

    The Court acknowledged that Ayers considered racial history in and beyond the Commonwealth’s borders. But again, “because there is little danger of prejudicing the judge,” the Court can determine what weight this portion of Ayers’ evidence deserves in resolving any factual disputes.

    Finally, the Court rejected the Defendants’ allegations that Ayers departed from his “normal methodology” in preparing for this case. Ayers consulted with and cited to a variety of historical sources. Ayers further detailed his reliable methodology, at length, during a deposition.

    Held

    The Court denied the the Defendants’ motions to exclude the testimony of Professor Carissa Byrne Hessick and Dr. Edward L. Ayers.

    Key Takeaway

    An expert may meet Rule 702’s relevancy requirement even if he or she offers a legal conclusion. In this case, Ayers considered racial history in and beyond the Commonwealth’s borders. The complex legal concepts involving voting rights and constitutional law make it a typical case for allowing expert testimony that arguably states a legal conclusion in order to assist the jury.

    Case Details:

    Case Caption: King V. O’Bannon
    Docket Number: 3:23cv408
    Court Name: United States District Court, Virginia Eastern
    Order Date: January 22, 2026
  • Law And Legal Expert’s Industry Standards Opinions Admitted

    Law And Legal Expert’s Industry Standards Opinions Admitted

    Plaintiff, Greenwich Insurance Company, is a Delaware-based insurance carrier that issued two excess coverage insurance policies to Mirador Master Association, Inc. (“Mirador Master”), a Miami Beach-based condominium association. The first excess policy was in effect between July 17, 2020, and January 4, 2021, and the second covered the period from February 2, 2021, to July 17, 2021.

    In November 2020, four months after the first excess policy took effect, a construction company sued Mirador Master in Florida state court, later amending its complaint to add Mirador Master’s sub-associations, Mirador 1000 Condominium Association, Inc. and Mirador 1200 Condominium Association, Inc. (“Mirador 1000 and 1200”) as Defendants.

    In July 2021, Mirador 1000 and 1200 filed crossclaims and a third-party complaint against Mirador Master and its officers and directors—including Bernardo Sandoval and Humberto Fernandez (collectively, the “D&Os”)—alleging that the D&Os mismanaged and misappropriated funds and breached fiduciary duties owed to Mirador 1000 and 1200.

    Mirador 1000 and 1200 also moved for appointment of a receiver for Mirador Master; and the state court granted the motion, appointing the Receiver in February 2023.

    When Plaintiff continued to deny coverage for Mirador Master, the D&Os, and Mirador 1000 and 1200, the Receiver, the D&Os, and Mirador 1000 and 1200 executed a Coblentz agreement (the “Assignment Agreement” or “Agreement”) alongside several related settlement agreements. In the Assignment Agreement, the parties to the state-court action agreed not to seek recovery from each other and to assign their rights to assert claims against Plaintiff. 

    Plaintiff sought declarations that it has no duty to defend or indemnify Mirador Master, the Receiver, Fernandez, Sandoval, Frohlich, and Herman.

    The Court concluded that the Assignment Agreement is unenforceable against Plaintiff because the underlying insurance policy was not exhausted until after the Assignment Agreement was executed. 

    The Experts and Motions

    The Receiver, Mirador 1000 and 1200, and Plaintiff retained experts who prepared reports addressing the enforceability of the Assignment Agreement, including its reasonableness; the scope of any coverage owed by Plaintiff; and whether Plaintiff received timely notice of the state-court litigation.

    Mirador 1000 and 1200’s proposed expert is R. Hugh Lumpkin, an attorney specializing in insurance who opined that Plaintiff received timely notice. Plaintiff’s proposed expert is Barry L. Davis, an attorney focusing on insurance law who rebuts Kammer’s conclusion that the Agreement is reasonable and Lumpkin’s opinion that Plaintiff received timely notice.

    The Receiver challenged the admissibility of Davis’ testimony, while Plaintiff challenged the admissibility of Lumpkin’s testimony.

    The Receiver argued that Davis offered impermissible legal conclusions regarding insurance-policy interpretation and relied on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Plaintiff asserted that Lumpkin offered improper legal conclusions concerning timely notice under the excess policies and the reasonableness of the Assignment Agreement, and Lumpkin’s reliance on industry standards was irrelevant and unhelpful to the factfinder.

    Law And Legal Expert Witnesses

    Barry L. Davis has served as lead trial counsel to both Plaintiffs and Defendants in hundreds of complex construction and commercial disputes, insurance coverage and bad faith cases, and high-profile personal injury and wrongful death matters.

    Davis has been a Florida Bar Board Certified Civil Trial lawyer since 1989, was elected by his peers as a Super Lawyer and holds a Martindale-Hubbell AV Preeminent rating. As an adjunct professor of law for several years, Davis taught classes in settlement negotiation and was trial team coach.

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

    R. Hugh Lumpkin has acted as the lead counsel in hundreds of insurance disputes, having taken an uncounted number of depositions of insurer corporate representatives, adjusters, managers and executives, underwriters, actuaries and marketing people, as well as those hired by insurers to act as experts on claim handling standards and practices and underwriting over the course of the last 35 years in his insurance practice.

    He attended the University of Miami School of Law, graduating in 1980 and becoming a member of the Florida Bar that same year.

    Discover more cases with R. Hugh Lumpkin as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    The Receiver’s Motion

    The Receiver argued that Davis should be precluded from testifying because he offered legal conclusions regarding insurance coverage under the excess policies that are disguised as expert opinions.

    Since Davis attempted to define the scope of coverage under the excess policies, the Court granted receiver’s motion to the extent that Plaintiff may seek to have Davis “state legal conclusions drawn by applying the law to the facts.” Certainly, Davis’ “legal analysis of the facts” is inadmissible.

    The Court did not address the Receiver’s argument that Davis relies on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Because expert testimony on reasonableness is directed only to the enforceability of the Agreement — and enforceability has already been resolved — the Court did not reach the Daubert challenge to that testimony.

    Plaintiff’s Motion

    Plaintiff challenged Lumpkin’s proposed testimony on two grounds. First, Plaintiff objected to Lumpkin’s opinions on what is required by the notice provisions of the excess policies and whether Plaintiff breached the policies by denying coverage, contending these opinions amount to impermissible legal conclusions based on interpretations of the insurance contracts. Second, Plaintiff objected to Lumpkin’s opinions on “industry standards” as unhelpful.

    As Plaintiff noted, Lumpkin’s proposed testimony included legal analysis of the facts. As a result, the Court granted Plaintiff’s motion to the extent the Receiver sought to have Lumpkin opine on insurance-policy interpretation or the legal consequences of the parties’ conduct.

    However, Plaintiff’s arguments regarding Lumpkin’s “industry standards” opinions failed to persuade the Court. Expert testimony as to standard practices in an industry is admissible when it is relevant and the expert has demonstrated a basis for the opinion.

    In this case, Lumpkin offered “industry standards” opinions that are relevant. For example, Lumpkin asserted that the industry standard for when an excess insurer should receive notice is “as soon as practicable after it is believed by the policyholder that the claim involved may exceed the limits of the primary insurance policy.” Such testimony could assist the trier of fact in deciding a genuine dispute of material fact: whether Plaintiff received timely notice of a claim as required by the excess policies.

    While Plaintiff insisted Lumpkin’s testimony is not relevant, Plaintiff neither provided authority stating that industry standards are irrelevant to breach-of-contract actions, nor explained why industry standards could not be relevant to the claims and defenses asserted in this case.

    Held

    • The Court granted in denied in part the Defendant/Counter-Plaintiff, the court-appointed Receiver for Defendant, Mirador Master Association, Inc.’s Daubert motion to exclude the testimony of Barry L. Davis.
    • The Court granted in denied in part the Plaintiff, Greenwich Insurance Company’s Daubert motion to exclude the testimony of R. Hugh Lumpkin.

    Key Takeaway

    While an expert may provide an opinion on an ultimate issue of fact, testimony regarding the legal implications of conduct is impermissible. To protect the Court’s exclusive prerogative to charge the jury regarding the applicable law, the Court must remain vigilant against the admission of legal conclusions.

    Case Details:

    Case Caption: Greenwich Insurance Company V. Fernandez
    Docket Number: 1:24cv23909
    Court Name: United States District Court, Florida Southern
    Order Date: January 17, 2026
  • Law And Legal Expert’s Testimony on OPDA’s Practices Admitted

    Law And Legal Expert’s Testimony on OPDA’s Practices Admitted

    This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. In particular, Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.

    Laurie Levenson is a law professor who was retained by Plaintiff to testify about her evaluation of OPDA’s Brady policies, practices, and customs.

    However, Defendant Jason Williams, in his official capacity as Orleans Parish District Attorney, contended that Levenson provided an untimely supplemental report on December 17, 2025, and Levenson’s testimony should be limited to her original report.

    Law And Legal Expert Witness

    Laurie L. Levenson joined the Loyola faculty in 1989 and served as Loyola’s Associate Dean for Academic Affairs from 1996 to 1999. In addition, she has been a visiting professor at UCLA School of Law and USC Law School, and a D&L Straus distinguished visiting professor at Pepperdine School of Law. Moreover, in 2019, she co-founded (with Judge Sandra Klein) Girl Scout Troop 1085, a troop for girls experiencing homelessness. At Loyola, Professor Levenson is the Founding Director of the Loyola Project for the Innocent, the Loyola Center for Ethical Advocacy, and the Fidler Institute on Criminal Justice, and Senior Faculty for Loyola’s Journalist Law School.

    While in law school, Laurie Levenson was chief articles editor of the UCLA Law Review. After graduation, she served as law clerk to the Honorable James Hunter III of the United States Court of Appeals for the Third Circuit. In 1981, she joined the United States Attorney’s Office for the Central District of California in Los Angeles, where she practiced as a trial and appellate lawyer and served as Assistant Chief of the Criminal Division.

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

    Discussion by the Court

    Rule 26(e)(2) permits supplementation of an expert report, but “any additions or changes to [the] information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Under Rule 26(a)(3), “when the Scheduling Order is silent, supplemental reports are generally due 30-days pretrial.” The scheduling order in this case did not provide a deadline for supplemental reports.

    Review of the updated expert report of Levenson confirms that this report is a true supplement. Levenson reviewed recent deposition testimony and discusses how that testimony impacts her prior opinions.

    Specifically, Levenson cited testimony supporting the opinion in her original report that OPDA’s practices and customs lead to Brady violations because OPDA: (1) failed to disclose grand jury transcripts with impeaching and exculpatory information; (2) did not have a written Brady policy; (3) had insufficient training on Brady compliance for prosecutors; (4) created a prosecutorial culture that discounted the importance of complying with Brady; and (5) failed to acknowledge its problems with Brady violations.

    Analysis

    All of these opinions were found in Levenson’s original expert report, and the supplemental report merely cites deposition testimony that supports these opinions. Nevertheless, even though the report is a true supplement, it is still untimely because it was disclosed 26 days before trial, four days after the deadline set in Rule 26.

    Nevertheless, the Court found that the late disclosure is harmless. Since Levenson will be permitted to remain in the courtroom to observe the trial testimony and offer an opinion based on the testimony as it evolves before the jury, the Court found that the four day delay in the supplemental disclosure, which merely supplements her opinion based on recent deposition testimony, is harmless.

    Held

    The Court denied Williams’ motion to strike the supplemental expert report of Laurie Levenson.

    Key Takeaway

    In the supplemental report, Levenson merely reviewed recent deposition testimony and discusses portions of the testimony that relate to the opinions set forth in her original report. This is similar to the role an expert plays at trial.

    Please refer to the blog previously published about this case:

    Vocational Evaluation Expert Allowed to Opine on Lost Earning Capacity

    Legal Expert Was Barred From Opining on Good Time Credits

    Police Practices Expert’s Testimony on Eyewitness Identifications Admitted

    Statistics Expert’s Scientific Analysis Excluded

    Case Details:

    Case Caption: Flanks V. City of New Orleans
    Docket Number: 2:23cv6897
    Court Name: United States District Court, Louisiana Eastern
    Order Date: January 09, 2026
  • Law And Legal Expert Was Barred From Opining on the Trust Agreement

    Law And Legal Expert Was Barred From Opining on the Trust Agreement

    The Plaintiff, Christopher Ayash, is a named beneficiary of the Patricia Louise Ayash Living Trust (“Trust”), created by his late mother (“Grantor”) in 2002. The Trust also named two of the Grantor’s other sons as beneficiaries. The Defendants, David Barnette and Karl Hamm, serve as Trustees.

    The Trustees are directed to divide and hold the Trust property for the benefit of the Grantor’s sons, including the Plaintiff, and their descendants. Because the Plaintiff was not fifty-five at the time of the Grantor’s death, the Trustees placed his share in a Non-GST-Exempt Trust. This case is at least the third lawsuit between the parties.

    The central question in this lawsuit is simple: Does the First Amendment and Restatement of the Patricia Louise Ayash Living Trust 2002 (u/a/d May 16, 2007) (the “Trust”) require the Defendants, as trustees, to distribute trust shares to a beneficiary when he turns fifty-five?

    Christopher Ayash filed a motion to strike the expert opinions of Christopher J. Winton, a lawyer, because “those opinions are legal conclusions that attempt to usurp the Court’s role in construing the trust.”

    Law And Legal Expert Witness

    Christopher J. Winton has built a highly regarded career in estate planning, business planning, taxation, real estate, and civil litigation.

    Winton began his education at the University of Virginia, where he graduated with high distinction in 1982 and was inducted into Phi Beta Kappa. He then continued at the University of Virginia School of Law, completing his J.D. in 1985.

    Winton is licensed in both the West Virginia State Bar and the Virginia State Bar. His active involvement includes membership in the Real Property, Probate and Trust Law Section of the American Bar Association, the National Academy of Elder Law Attorneys, and the Charleston Estate Planning Council. He has also long served on the West Virginia State Bar Probate Committee and became its Chair in 2019, contributing to legislative initiatives in estate and trust law.

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

    Discussion by the Court

    The Plaintiff argued that the opinions are inappropriate because Winton
    interpreted the meaning and purpose of the Trust Agreement and applied that interpretation to the facts of this case.

    Although the Defendants argued that Winton merely applied his specialized knowledge of trust administration, based on his experience as a trust and estate attorney, Winton began both his initial opinion and rebuttal opinion by interpreting the Patricia Louise Ayash Living Trust (“Trust”).

    He concluded that “the Non-GST Exempt Trust for the benefit of Christopher Mark Ayash did not terminate when the beneficiary attained the age of 55 but continued under the terms and provisions of the Trust Agreement.”

    Applying the West Virginia case law and the West Virginia Uniform Trust Code (UTC), to the facts, he concluded that the Defendants exercised their discretion in good faith, and further concluded in his rebuttal opinion that the Defendants did not breach any of their duties. Winton also concluded that the Defendants were entitled to reasonable commissions and fees for
    their services as Trustees.

    The Court found that Winton’s opinions should be excluded as inadmissible legal conclusions.

    Held

    The Court granted the Plaintiff’s motion to strike the testimony of Defendants’ expert Christopher Winton.

    Key Takeaway

    Winton went far beyond providing specialized knowledge in trust administration by interpreting the Trust and applying that interpretation, as well as West Virginia case law and the UTC, to the facts in this case.

    Case Details:

    Case Caption: Ayash V. Barnette
    Docket Number: 2:24cv720
    Court Name: United States District Court for the Southern District of West Virginia, Charleston Division
    Order Date: January 13, 2026
  • Legal Expert Was Barred From Opining on Good Time Credits

    Legal Expert Was Barred From Opining on Good Time Credits

    This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.

    Plaintiff retained Robert Lancaster, a lawyer, as an expert in Louisiana parole and pardon law.

    Lancaster’s opinions concern when Plaintiff would have been released from prison on his sentence for armed robbery if he had not also been convicted of first-degree murder. Defendants contended that Lancaster’s testimony should be excluded because his expert report does not show that his opinions are reliably based on his experience or on the evidence in this case.

    Law And Legal Expert Witness

    Robert Edward Lancaster spent eleven years teaching the Parole and Reentry Clinic at the Louisiana State University Law Center and representing over 100 individuals seeking early release on parole or a reduction of sentence through clemency before the Louisiana Board of Pardons and the Committee on Parole.

    Lancaster has been a professor at LSU Law since 2009, and prior to that he taught at Yale Law School, American University School of Law, and Indiana University School of Law. Before going into academia, Lancaster worked as a public defender for seven years.

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

    Discussion by the Court

    Defendants argued that the proposed testimony of Lancaster was unreliable because he provided no explanation for his conclusion that the Department of Corrections would have applied a 50% diminution rate to Plaintiff’s sentence for armed robbery. Defendants pointed out that Lancaster cited no laws, regulations, or authoritative sources regarding parole and calculation of good time credits.

    The Court found Lancaster’s proposed testimony to be unhelpful, as the substance of his opinion can easily be addressed by a jury instruction. This Court reviewed Lancaster’s expert report and found that it clearly invades the province of the Court to instruct the jury on any applicable law. 

    The report did not provide any explanation on how Lancaster reached this conclusion. It appeared that Lancaster may have reached this conclusion based on his experience teaching the Parole and Reentry Clinic at LSU Law for the past 11 years. The report did not cite any laws or regulations upon which Lancaster relied. 

    The Court will provide the jury with a jury instruction on the law regarding good time credits. Lancaster did not provide any additional opinions beyond that law. He stated only that Plaintiff “could have been eligible for ‘good time’ release after serving seven years and six months.” He did not opine as to any factors that the Department of Corrections may have considered in determining Plaintiff’s eligibility for release. Therefore, his opinion provided only a legal conclusion that Plaintiff could have been eligible for good time release after serving half of his sentence for armed robbery.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of Robert Lancaster.

    Key Takeaway:

    Lancaster’s expert report clearly invaded the province of the Court to instruct the jury on any applicable law. An expert may never render conclusions of law that would constitute an invasion of the province of the Court to determine the applicable law and to instruct the jury as to that law.

    Please refer to the blog previously published about this case:

    Vocational Evaluation Expert Allowed to Opine on Lost Earning Capacity

    Case Details:

    Case Caption: Flanks V. City Of New Orleans
    Docket Number: 2:23cv6897
    Court Name: United States District Court, Louisiana Eastern
    Order Date: December 01, 2025
  • Legal Expert’s Testimony on Life Insurance Investor Practices Excluded

    Legal Expert’s Testimony on Life Insurance Investor Practices Excluded

    Stranger originated life insurance (“STOLI”) policies, specifically, “involve speculators collaborating with an individual to obtain a life insurance policy in the name of that individual and then selling some or all of the death benefit payable upon the death of the insured to stranger investors.”

    On March 3, 2023, Plaintiff Ameritas Life Insurance Corp. (“Ameritas” or “Plaintiff”) filed its complaint, requesting that the Court declare that the $3 million policy at issue on the life of Marvin Flaks (the “Policy”) constitutes a STOLI policy and, thus, is void for lack of an insurable interest.

    Defendant Wilmington Savings Fund Society, FSB’s (“Wilmington Savings” or “Defendant”) filed a Daubert motion to exclude the testimony of Plaintiff and Counter-Defendant Ameritas Life Insurance Corp.’s expert Michael L. Vild under Federal Rule of Evidence 702.

    Law And Legal Expert Witness

    Michael L. Vild obtained his Juris Doctor from Notre Dame Law School in 1991 and his Bachelor of Music from Ohio State University in 1988.

    Since January 2019, Vild has been a partner at the law firm of Cross & Simons, LLC (“Cross & Simmons”). His practice at the firm “primarily involves corporate and commercial litigation in state and federal courts in Delaware.”

    Aside from his bar memberships, Vild served as “board member of captive insurance companies in the SCOR family of companies; . . . as member of the Board of Directors of Scottish Re (U.S.) and related life reinsurance entities and as Delaware resident director of several small captive insurance companies.”

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

    Discussion by the Court

    Wilmington Savings requested that the Court exclude Vild’s opinions and testimony with respect to four issues: (1) the choice of law inquiry; (2) the insurable interest issue; (3) the reasonableness of Ameritas’ investigation conduct; and (4) life insurance investor practices.

    A. The Court Excludes-in-Part and Does Not Exclude-in-Part Vild’s Opinions and Testimony Concerning the Choice-of-Law Analysis

    Wilmington Savings contended that the Court should exclude Vild’s opinions and testimony concerning the choice-of-law analysis because, according to Wilmington Savings, Vild is not qualified to opine on this issue and, separately, because his opinions and testimony are not helpful.

    First, while Vild cannot testify on the ultimate answer to the choice-of-law analysis, Vild is qualified to opine and testify, as the former Deputy Insurance Commissioner of the Delaware Department of Insurance, on whether Delaware has an interest in its insurance law being applied to the insurance policy at issue in this action. Likewise, as the former Deputy Insurance Commissioner of the Delaware Department of Insurance, Vild is qualified to opine and testify on how the need to regulate STOLI arose and STOLI principles generally.

    Second, Vild’s opinions and testimony on these topics would be helpful because this action and Delaware’s interest in its law being applied to the insurance policy in this action involves complex issues of insurance, including as they relate to STOLI, that can be simplified or clarified by an expert with relevant experience in insurance, such as Vild.

    Thus, the Court excluded-in-part and did not exclude-in-part Vild’s opinions and testimony concerning the choice-of-law analysis.

    B. The Court Excludes Vild’s Opinions and Testimony Concerning STOLI and Insurable Interests

    Wilmington Savings contended that the Court should exclude Vild’s opinions and testimony concerning STOLI and insurable interests because, according to Wilmington Savings, Vild is not qualified to opine on these issues and, separately, because his opinions and testimony are not helpful.

    First, Vild, as an expert witness, cannot testify on the legal conclusion as to whether the insurance policy in this action constitutes STOLI.

    Second, Vild’s opinions and testimony on these topics would be helpful because this action involves complex issues of insurance, including as they relate to STOLI, that can be simplified or clarified by an expert with relevant experience in insurance, such as Vild.

    The Court acknowledged that much of Vild’s experience did not concern insurance or even STOLI specifically and that Vild has many years of experience and expertise in other subjects from his time at various institutions (for example, his nine years of in-house counsel experience from two different casinos). However, that a person has expertise deriving from many years of experience in a particular subject does not foreclose that person from also being qualified in another subject and, thus, able to provide helpful testimony on that subject.

    Thus, the Court excluded-in-part and did not exclude-in-part Vild’s opinions and testimony concerning STOLI and insurable interests.

    C. The Court Excludes the Opinion and Testimony of Vild Concerning the Reasonableness of Ameritas’ Conduct

    Wilmington Savings contended that “Vild is not qualified to opine on whether Ameritas acted reasonably.”Wilmington Savings provided several grounds in support of this contention, including, but not limited to, that “Vild has admitted he is ‘not a claims administration expert.’

    Ameritas merely contended that “Vild offered opinions grounded in decades of regulatory and advisory experience evaluating insurer conduct under comparable conditions” and that courts “regularly admit such testimony from experts with regulatory or legal backgrounds.” However, even if courts regularly admit such testimony, the Court is unable to discern the purportedly “comparable conditions” that have purportedly informed Vild’s experience since Ameritas fails to cite anything in the record to evince as much.

    The Court determined that Vild was able to opine and testify on whether Delaware has an interest in its law being applied to the insurance policy at issue in this action, how the need to regulate STOLI arose, and STOLI principles generally. As the former Deputy Insurance Commissioner of the Delaware Department of Insurance, Vild has direct and substantial experience on these insurance issues from the enforcement and regulatory perspective, thereby qualifying him and rendering his testimony helpful.

    Here, however, Ameritas has failed to demonstrate that Vild has any relevant experience on the process by which insurers complete their investigations, including with respect to STOLI and insurable interests. For example, Vild never worked at an insurer and, in his private practice experience, he never litigated or provided any counsel on STOLI issues.

    D. The Court Excludes the Opinion and Testimony of Vild Concerning Life Insurance Investor Practices

    In his rebuttal report, Vild opined on several investor practices, including whether (1) it is “the industry practice for investors to rely upon the underwriting and diligence performed by insurance companies,” (2) it is reasonable for investors to rely on letters from legal counsel concerning whether an insurance policy is “valid under the insurable interest laws of various states,” and (3) “investors reasonably expect that an insurer will disclose a suspicion that a policy is potential STOLI.”

    Wilmington Savings contended that “Vild is not qualified to opine on [these] life insurance investor practices.” Wilmington Savings provided several grounds in support of this contention, including, but not limited to, that Vild “has no experience working for an investor or participating in a transaction to buy or sell life insurance in the secondary or tertiary markets.” In response, Ameritas failed to cite anything in the record evincing the purported qualifications of Vild to opine on life insurance investor practices. Instead, Ameritas resorts to, for example, generically contending that what “STOLI investors …. customarily do is wrong.”

    However, generic contentions about industry custom and attempted explanations of legal precedent are irrelevant to the question of Vild’s qualifications to opine on life insurance investor practices. For these reasons, the Court found that Ameritas failed to show that Vild has any experience as an insurance investor, working for or regulating an insurance investor, participating in a transaction to buy or sell life insurance in the secondary or tertiary markets, or otherwise is qualified to opine on life insurance investor practices. Thus, the Court excluded Vild’s opinion and testimony concerning life insurance investor practices.

    Held

    The Court granted-in-part and denied-in-part the Defendant’s Daubert motion to exclude the testimony of Plaintiff and Counter-Defendant Ameritas Life Insurance Corp.’s expert Michael L. Vild.

    Key Takeaway:

    It is not necessary that the expert have expertise in the precise subject matter at issue, and an expert should not be excluded simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the Court considers most appropriate.

    Case Details:

    Case Caption: Ameritas Life Insurance Corp. V. Wilmington Savings Fund Society FSB
    Docket Number: 1:23cv236
    Court Name: United States District Court for the District of Delaware
    Order Date: November 07, 2025
  • Expert Testimony on the Functions of a County Attorney Admitted

    Expert Testimony on the Functions of a County Attorney Admitted

    Defendant Howard Keith Hall is the former County Attorney of Pike County, Kentucky. Hall is a current Pike County Circuit Court Judge. The United States charged Hall with two counts of mail fraud and one count of theft of government funds. The charges stem from an alleged scheme in which Hall hired Attorney A1 as an Assistant County Attorney and paid this attorney approximately $440,587 in state salary and benefits despite the attorney performing little to no work for the Pike County Attorney’s Office (“PCAO”).

    While Attorney A served as an Assistant County Attorney, Hall participated in the private practice of law at Attorney A’s law firm and received various payments described as “Distributions” totaling $505,900. The United States alleged that Hall committed mail fraud by signing and mailing false payroll certifications indicating that Attorney A fulfilled his duties as a part time assistant county attorney despite doing no work.

    The United States filed this motion to exclude in response to Hall’s disclosure noticing Harold Mac Johns, the former County Attorney of Todd County. Hall’s disclosure anticipated that Johns will testify and offer opinions on several topics, including the various responsibilities of a county attorney’s office; the full-time and part-time system used in Kentucky for county attorney offices; the statutory duties of an assistant county attorney; the ability of county attorneys and assistant county attorneys to participate in the private practice of law; the private relationship between Hall and Attorney A; the particular allegations of the Indictment; and other topics or issues that may arise from the government’s case-in-chief.

    United States filed a Daubert motion to exclude the testimony of Harold Mac Johns.

    Law and Legal Expert Witness

    Harold Mac Johns served as the Todd County Attorney for 28 years from January 1990 until September 2018. He served on the Prosecutors Advisory Council for seven years from 1997 until 2004.

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    Discussion by the Court

    The United States raised four arguments in support of its motion to exclude the testimony of Johns. First, the government charged that the Court should exclude Johns’ testimony as untimely. Second, that the Court should exclude Johns’ testimony for making inadequate disclosures. Third, that Johns’ testimony does not meet any provision of Rule 702. Fourth, that Johns’ testimony invaded the province of the Court and jury. Indirectly, the government also argued that Johns did not meet the definition of a lay opinion witness under Fed. R. Evid. 701.

    The United States argued that the Court should exclude the noticed expert testimony because it is (1) untimely and because (2) the notice failed to state what Johns’ opinion will be on several of the subjects.

    Late Notice

    Hall’s initial appearance and arraignment took place on May 16, 2025, before Magistrate Judge Matthew A. Stinnett. Per the Court’s order, Hall should have provided the government with notice of expert testimony on or before May 26, 2025. This Court continued Hall’s trial to November 10, 2025, after holding a telephonic scheduling question with counsel for Hall and the United States. Hall produced the disclosure noticing Johns on October 14, 2025, roughly one month before the start of the jury trial on November 07, 2025.

    Basically, Hall submitted this disclosure several weeks before the start of trial, giving the United States ample notice of an anticipated witness. Hall did not submit this witness in an effort to throw sand into the gears of the judicial process, but to provide context and testimony about the inner workings of a county attorney’s office, an issue that cuts to the heart of the case. The Court does not find that Hall acted in bad faith, and the reasons for the delay appear to be related to the case’s complexity and the accompanying number of motions filings, hearings, and orders. Nor is the Court convinced that the late notice of this witness prejudices the government.

    The government has had time to raise its motion to exclude with this Court. None of Johns’ proposed testimony raises novel issues or arguments that the government is unfamiliar with as it pertains to Hall’s defense. This is particularly true where any prejudice to the government can be cured with a less severe course of action.

    Inadequate Disclosures

    The Court turned next to the government’s second procedural argument: that Johns’ testimony should be excluded for inadequate disclosures.

    Hall’s disclosure included Johns’ qualifications as the Todd County Attorney, a member of the Prosecutors Advisory Council, and as a private practitioner. The disclosure listed several topics, but the government argued that “the disclosure failed to address what Johns’ opinion would be on several of the subjects noticed.” Several of the topics did not include an opinion statement. Thus, the Court faces a situation where Hall has included opinion statements as to some topics but has not provided opinion statements for others.

    The Court is not convinced that the deficiencies require the exclusion of Johns’ entire testimony. The government has not claimed in its motion that the lack of detail affects their ability to counter the evidence. Excluding the witness is not the only remedy available to the Court since the government is not burdened by an “undue surprise” that prevents their “adequate opportunity to prepare” to prepare for trial.

    The Court may appropriately set boundaries on Johns’ admissible testimony and issue other orders that are “just under the circumstances.”

    Rule 702

    Hall submitted that Johns can provide testimony about how an elected county attorney runs their office and the functions of the county attorneys in general.

    The government argued that “the number of years someone has served as a county attorney does not translate to facts or data that this Court can evaluate for reliability under Rule 702 or Daubert.”

    However, the Court was convinced that Johns’ 28 years as a county prosecutor and seven years as part of the Prosecutors Advisory Council support the reliability determination that he is qualified to opine on the ways in which a Kentucky county attorney runs their office.

    Moreover, Johns’ testimony would assist the jury in understanding the inner workings of a county attorney’s office, the procedures by which county attorneys hire staff, and the ways in which the individual attorney’s offices work with the Prosecutors Advisory Council and other offices within the Commonwealth’s state government.

    Legal Conclusions

    Johns can testify as to the statutory duties of an assistant county attorney but under no circumstances could Johns offer an opinion as to whether Hall’s actions were legal or sanctioned under the laws of the Commonwealth of Kentucky.

    Johns similarly cannot testify as to whether there are or are not legal requirements for assistant county attorneys to work a minimum number of hours. He cannot testify to Hall’s willfulness to commit any act or that Hall did or did not have the requisite intent to defraud.

    Plainly, the Court held that much of Johns’ proposed testimony violated the prohibition against a witness testifying about legal requirements or interpretations of statute. By way of example, Johns can testify to the day-to-day operations of a county attorney’s office. Johns can testify that it is common to hire assistant county attorneys and describe how that process works. But Johns cannot testify that Hall’s acts were legal or sanctioned by Johns’ own interpretation of Kentucky’s statutes. This is not an exhaustive analysis of what Johns may or may not say on the witness stand. But this much is clear — any testimony suggesting that Hall’s actions were legal or appropriate under the laws of the Commonwealth or that the interpretation of the statutes requires a certain outcome is inadmissible.

    The bulk of Johns’ testimony as to the functions of a county attorney’s office will fall under Rule 702 because Johns never served in the Pike County Attorney’s office. Moreover, it is not clear from the record before the Court that Johns was ever personally involved in any of the facts at issue in this case.

    Held

    The Court granted in part and denied in part the United States’ motion to exclude the testimony of Harold Mac Johns.

    Key Takeaway:

    Johns’ extensive experience as a county prosecutor and his personal knowledge as to the responsibilities, duties, and discretion of a county attorney meet both the reliability and relevance elements required by Rule 702.

    Case Details:

    Case Caption: USA V. Hall
    Docket Number: 3:25cr5
    Court Name: United States District Court, Kentucky Eastern
    Order Date: November 06, 2025
  • Expert Testimony on Legal Ethics Excluded

    Expert Testimony on Legal Ethics Excluded

    Robert I. Toussie alleged that he and his brother Michael entered into an agreement (the “Participation Agreement”) with Coastal Development, LLC (“Coastal”), an entity run by Richard Fields in 2000 to finance the development of casinos in Florida. However, Coastal/Fields promptly, and repeatedly, breached the terms of the Participation Agreement by not paying the Toussies their share of distributions from the casinos. In the early 2000s, the Toussies hired Williams & Connelly, LLP, Joseph G. Petrosinelli, David A. Forkner, Jonathan E. Pahl (“W&C Defendants”) to sue Coastal and Fields and recoup their participation interest.

    In the early 2000s, the Toussies sued Coastal/Fields twice to recoup the missed payments, and, represented by W&C, successfully recovered more than $37 million—over ten times the Toussies’ initial investment.

    In 2015, Coastal/Fields again stopped making payments owed to the Toussies, and W&C again sued Coastal/Fields on their behalf (the “2015 Coastal/Fields Litigation”), this time winning the Toussies a roughly $7.5 million arbitral award (the “Award”).

    The Toussies confronted a choice of either accepting the proposed settlement or converting the $7.5 million arbitral award to a judgment and pursuing its enforcement. Defendants advised the Toussies on how to proceed with this choice, and the Toussies chose to pursue conversion and enforcement of the arbitral award rather than settle the Coastal Litigation.

    Defendants’ advice and counsel in that regard is of what Plaintiff now complains as legal malpractice.

    To prove his malpractice claim, Plaintiff proffered Professor Ronald J. Colombo as an expert “in the field of legal ethics and the practice of law.” However, Defendants filed motions to exclude Colombo from testifying at trial.

    Law And Legal Expert Witness

    Ronald J. Colombo developed his expertise through his legal education at New York University Law School, his practical experience as an associate at Sullivan & Cromwell and then as in-house counsel at Morgan Stanley & Co. Inc., and through his scholarly work as a law professor at the Maurice A. Deane School of Law at Hofstra University (“Hofstra Law”). 

    Colombo has taught several courses at Hofstra Law, served as a faculty advisor to student organizations and academic programs for students desiring to concentrate in business law, and published at least fifteen law review articles, two books, and contributed to at least two other books.

    He has as a member of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York in the past. His most recent law review article is Duties Regarding Duties.

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

    Discussion by the Court

    W&C Defendants, Colombo argued, fell short of the rules of the New York Rules of Professional Conduct in three ways: (1) Defendants did not conduct themselves with the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession in undertaking their representation of Plaintiff (2) failing to properly advise Plaintiff on the consequences of pursuing a strategy of judgment enforcement against Fields and Coastal rather than accepting a settlement offer and (3) terminating W&C’s representation without proper notice.

    Defendants argued that Colombo is not qualified because he has never held himself out as an expert in the practice of law or taught a legal ethics class, did not have a specialized education in legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own report. Defendants then argued that Colombo’s opinions are unreliable because they are unmoored from the underlying record, employ speculation, and misinterpret legal ethics opinions. Defendants lastly argued that Colombo’s opinions on W&C Defendants “engagement and withdrawal” are irrelevant because Plaintiff never alleged such harms in any of his complaints nor that such harms caused any damages. 

    I. Colombo Is Not A Legal Ethics Expert

    Defendants argued that Colombo (1) lacks relevant experience, (2) lacks relevant education or training, (3) has too limited ethics-related experience, and (4) lacks relevant knowledge of the ethical rules themselves, and therefore is not qualified to testify as an expert in legal ethics. The Court agreed.

    Colombo did not meet the requirements to be qualified as a legal ethics expert. His education, training, and practical experience all failed to distinguish him from other lawyers who only possess a general knowledge of legal ethics. First, Colombo is not a legal ethics expert by means of education or training. One professional responsibility course, one training for law firm associates, one training for FINRA arbitrators, and a three-year members on a local bar ethics committee constitute Colombo’s education and training in legal ethics. This is insufficient to qualify one as an expert. Plaintiff failed to show that Colombo has developed, much less maintained, an expertise in legal ethics. Colombo also cannot develop expertise through reading the case materials and treatises on legal ethics and professional responsibility.

    Second, Colombo’s professional experience is insufficient. As an associate or in house counsel he did not represent a single client in any case, much less a malpractice action, and never advised a client or peer on issues of legal ethics and professional responsibility. As a professor, Colombo has never taught a course in legal ethics, and neither of his published books or book chapters addresses legal ethics.

    His recent law article, Duties Regarding Duties, does not qualify him either. In fact, it furthers the argument that Colombo is only familiar with the world of corporate and securities law because the article instructs its readers on how to best advise members of institutional corporate boards not attorneys facing ethical legal questions or malpractice actions.

    II. Colombo’s Opinions Are Irrelevant and Unreliable

    A. Colombo’s Opinions Regarding Defendants Engagement and Withdrawal are Irrelevant

    Defendants argued that Colombo’s opinions regarding their engagement and withdrawal as the Toussies’ counsel are irrelevant as “neither the second amended complaint nor any of the Toussie’s prior two complaints even mentioned purportedly improper circumstances of W&C’s engagement or withdrawal, much less challenged them as malpractice.” 

    Plaintiff brought this action complaining of receiving harmful legal advice. Neither W&C Defendants’ retention or withdrawal caused them to provide Plaintiff with the complained of advice. Plaintiff has not shown that the conditions surrounding his retention of W&C Defendants caused them to not more vehemently advise him against pursuing judgment enforcement. Plaintiff, instead, alleged that W&C Defendants did not properly calculate “the value or collectability of the Judgment.” W&C Defendants’ withdrawal could not have caused the alleged harm, because the alleged harm was already committed and completed by the time W&C Defendants withdrew their representation of Plaintiff. Colombo therefore failed to show how the substance of W&C Defendants’ advice was caused by the conditions surrounding their retention and withdrawal.

    B. Colombo’s Opinion Regarding Defendants’ Legal Advice Is Unreliable

    The Court agreed with W&C Defendants and found Colombo’s report to be unreliable for three reasons. 

    First, Colombo did not provide a reliable methodology. Colombo focuses on the standard of the “ordinary and reasonable skill of a member of the legal profession,” but this is only the standard for determining if an attorney’s conduct was negligent. Indeed, the violation of an ethical rule alone does not constitute a breach of fiduciary duty, much less malpractice. 

    Second, Colombo made several speculative leaps throughout his report. The Court also found Colombo’s musings that Plaintiff was an “atypical” client for W&C Defendants to be speculative.

    Third, Colombo’s report conflicts with Plaintiff’s own admission. In his report, Colombo asserted that W&C Defendants failed to emphatically advise Plaintiff to settle rather than pursue judgment enforcement. In his report, however, Colombo quoted an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me is, and always had been, settle.”

    In sum, the Court found that Colombo is not qualified as an expert on legal ethics and the practice of law, and that his specific opinions in this case are irrelevant, unreliable, and therefore inadmissible. 

    Held

    The Court granted the Defendants’ motions to exclude the testimony of Plaintiff’s proffered legal ethics expert, Ronald J. Colombo.

    Key Takeaway:

    Colombo’s factual errors in combination with his unreliable standard of care and use of speculation together warrant his proferred expert testimony to be stricken and deemed inadmissible in its entirety. Colombo’s report risks misleading a jury to believe that the violation of an ethical rule alone can constitute malpractice or a breach of fiduciary duty.

    Case Details:

    Case Caption: Toussie V. Williams & Connolly, LLP Et Al
    Docket Number: 1:20cv5921
    Court Name: United States District Court, New York Eastern
    Order Date: September 30, 2025