Expert Witness Profiler

Category: Law And Legal Expert Witness

  • Legal Expert’s Testimony on the Customs and Usages of the Oil and Gas Industry Admitted

    Legal Expert’s Testimony on the Customs and Usages of the Oil and Gas Industry Admitted

    Louisiana Minerals, Ltd., as lessor, and Weyerhaeuser, as lessee, are the successors in interest to a 1986 Timber Sale and Lease Contract (“Contract”).

    LML asserted that Weyerhaeuser has entered into a significant number of unauthorized third-party agreements that impinge upon or adversely affect LML’s rights under the Contract. Damages were sought for harm caused by Weyerhaeuser’s alleged breach of contract and a declaration of the parties’ rights under the Contract to preclude Weyerhaeuser’s “unauthorized” activity going forward.

    Both parties retained multiple experts to offer testimony concerning the interpretation of the parties’ agreement and calculation of damages. Weyerhaeuser Company filed a Daubert motion exclude the testimony of Patrick Ottinger while Louisiana Minerals, Ltd. filed a Daubert motion or alternative motion in limine to exclude or limit the testimony of Keith B. Hall.

    Law And Legal Expert Witnesses

    Patrick S. Ottinger has practiced mineral law for forty-nine years — including examining title for oil and gas purposes, has taught oil and gas courses at the Paul M. Hebert Law Center, Louisiana State University since 1996, and has authored numerous articles on a variety of issues involved in this field.

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

    Professor Keith B. Hall practiced law for sixteen years focusing on oil and gas litigation and transactions prior to joining the LSU Law faculty in 2012. He has served as an expert on customs and practices within the oil and gas industry on numerous occasions, including disputes that arose in Louisiana. Hall also holds multiple academic and professional appointments that focus on mineral rights and energy law, including serving as Director of the Mineral Law Institute at Louisiana State University (LSU). He is also the co-author of four books on oil and gas law.

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

    Discussion by the Court

    The Ottinger Motion

    LML’s proffered expert, Ottinger was retained to give his “opinion as to the effect and import of the [Contract] … particularly as to the provisions contained therein relative to the right to exploit mineral resources in and under the [Property] affected by the [Contract], and to conduct surface activities, or to grant other surface rights, on the [Property] described in the [Contract].”

    Weyerhaeuser sought to exclude Ottinger’s trial testimony on the basis that the opinions rendered in his expert report consisted entirely of legal opinions.

    Weyerhaeuser pointed to Ottinger’s deposition testimony stating that his proposed testimony is “fairly characterized as an opinion about how the [Contract] might be interpreted in granting or reserving rights to minerals in the land, including how the Contract would be viewed as a legal instrument within the structure of the Civil Code.”

    The Hall Motion

    Hall was retained by Weyerhaeuser to opine on “customs, usages and practices of the oil and gas industry, and particularly … relevant to agreements governing a mineral owner’s and its mineral lessee’s right to use the surface of land to conduct mineral operations and the concurrent rights of others to use the surface.”

    LML asserted that Hall did not possess the requisite knowledge, skill, experience, training or education to instruct the Court as the fact finder on custom and practices of timber leases or surface use agreements.

    LML also claimed that Hall did not review documents showing the opinions or practice of mineral lessees or their interpretations of the Contract as it pertains to surface use on the Property.

    Analysis

    Having carefully reviewed Ottinger’s expert report and deposition testimony, and particularly considering his years of experience as an oil and gas title examiner, professor of law, and mineral lawyer, the Court is satisfied that he possesses knowledge that may assist the trier of fact in understanding how the issues presented in this case conform to the customs and usages in the oil and gas industry.

    As a result, Ottinger was allowed to testify, based on custom and usages, as to how the Contract and third-party agreements of the kind in dispute work in the oil and gas industry. However, Weyerhaeuser’s point is well taken that, “it is inappropriate to allow an expert to opine on legal conclusions, even in a bench trial.” Accordingly, Ottinger was barred from testifying about the legal effect and meaning of the Contract.

    Hall’s experience as an oil and gas lawyer and an expert on customs and practices within the industry, coupled with his multiple academic and professional appointments and related authorship, are all indicia that he possesses knowledge that will assist the Court in understanding the custom and practice regarding the agreements that LML now challenges. While Hall was allowed to testify about how the Contract and third-party agreement of the kind in dispute operate in the oil and gas industry, the Court did not permit Hall to testify about the legal effect or meaning of the Contract.

    Held

    • The Court granted in part and denied in part the Defendant Weyerhaeuser Company’s Daubert motion to exclude the testimony of Patrick Ottinger.
    • The Court granted in part and denied in part LML’s Daubert motion to exclude the testimony of Keith B. Hall.

    Key Takeaway:

    It is inappropriate to allow an expert to opine on legal conclusions, even in a bench trial. Accordingly, both Ottinger and Hall were barred from testifying about the legal effect and meaning of the Contract.

    Please refer to the blog previously published about this case:

    Oil and Gas Industry Expert is Qualified Despite Her Lack of Forensic Accounting Credentials

    Case Details:

    Case Caption: Louisiana Minerals Ltd V. Weyerhaeuser Company
    Docket Number: 5:22cv145
    Court Name: United States District Court for the Western District of Louisiana, Shreveport Division
    Order Date: June 4, 2025
  • Religious Studies Expert’s Testimony on the Beliefs of Jehovah’s Witnesses Admitted

    Religious Studies Expert’s Testimony on the Beliefs of Jehovah’s Witnesses Admitted

    Plaintiff Brianna Bolden-Hardge is a member of the Jehovah’s Witnesses and believes her faith forbids her from “swearing primary allegiance to any human government” and “swearing to engage in political or military activity—including taking up of arms.”

    She applied for a position with the Office of the California State Controller (“SCO”) and received an offer. However, her religious beliefs prevented her from signing an oath that the California Constitution requires public employees to take.

    Bolden-Hardge proposed signing the oath with an addendum expressing her own views on what she affirmed, which SCO understood to be a modification, not in conformance with applicable law, and thus rescinded the offer of employment. As a result, she alleged violations of her legal protections for religious freedom and accommodation.

    Plaintiff relied on certain expert opinions by Paul Finkelman, Ph.D., and Mathew N. Schmalz, Ph.D. Defendants filed a motion to exclude certain expert opinions of Finkelman and Schmalz. At the outset, the Court denied as moot the motion as to Finkelman because the Court did not find his opinions to be particularly helpful or relevant. Schmalz’s testimony on the other hand, was critical to Plaintiff’s Title VII disparate impact claim.

    Religious Studies Expert Witness

    Mathew N. Schmalz is a Professor of Religious Studies at the College of the Holy Cross. He has published multiple research papers and essays on Jehovah’s Witnesses.

     Schmalz has served as “the academic expert commentator for programs on television/digital platforms that have reported on Jehovah’s Witnesses,” “provided expert commentary on Jehovah’s Witnesses for national media outlets,” and is currently serving as an expert consultant on pending legal cases “to provide context on Watchtower beliefs and practices and the internal dynamics shaping Jehovah’s Witness life.”

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

    Law And Legal Expert Witness

    Paul Finkelman is a specialist in American legal history, constitutional law, law and religion, civil rights and race relations, African American history, civil liberties, American Constitutional history, the American Civil War, and legal issues surrounding baseball.

    He was an expert witness in a number of cases including the lawsuit over the ownership of Barry Bonds’ 73rd home run ball (Popov v. Hayashi) and in the famous Alabama Ten Commandments Monument Case (Glassroth v. Moore).

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

    Discussion by the Court

    In this case, Schmalz was retained by the Plaintiff to “provide expert analysis and possible testimony concerning the beliefs and practices of Jehovah’s Witnesses concerning oaths.”

    Defendants did not contest that Schmalz’s testimony is helpful, as it goes to the core of the disparate impact claim. Defendants also did not substantively argue that Schmalz is unqualified. While they stated that Schmalz has not published research on Jehovah’s Witnesses since 1998, they did not explain why this gap in time precludes him from being qualified to opine on matters in this case. Instead, Defendants’ principal argument is that portions of Schmalz’s opinions are so unreliable, speculative or constitute improper legal conclusions that they must be excluded. The Court disagreed.

    The Court found that Schmalz’s opinions are “based on sufficient facts or data” to survive Defendants’ motion to exclude. 

    Held

    The Court denied Defendants’ motion to exclude portions of Dr. Mathew N. Schmalz’s testimony. 

    Key Takeaway:

    After an expert establishes admissibility to the judge’s satisfaction, challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.

    Case Details:

    Case Caption: Bolden-Hardge V. Office Of The California State Controller Et Al
    Docket Number: 2:20cv2081
    Court Name: United States District Court, California Eastern
    Order Date: August 29, 2025
  • Law And Legal Expert’s Speculative Calculations of Future Earnings Excluded

    Law And Legal Expert’s Speculative Calculations of Future Earnings Excluded

    Drew Dixon alleged that the Defendant, Antonio Marquis “L.A.” Reid sexually harassed her and refused to allow her to succeed unless she acquiesced to his demand to be alone and in close proximity to her while she was employed as an A&R executive at Arista Records from 1996 to 2002.

    Dixon claimed that Antonio Reid sexually assaulted her twice in 2001.

    Dixon departed Arista in 2002, leaving the music industry to pursue a degree at the Harvard Business School.

    Defendant filed motions to preclude the testimony of Plaintiff’s expert witnesses, Michael Selverne, Mark Plotkin, and Dr. Chitra Raghavan, pursuant to Federal Rules of Evidence 702 and 403.

    Law And Legal Expert Witness

    Michael Selverne is an attorney who, for the past 39 years, has specialized in the field of executive compensation in the music industry. Over the course of his career, he has represented artists in their contract negotiations for recording and performance agreements, record executives in their negotiations of compensation packages with their employers, and music labels in their negotiations with executives.

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

    Music Industry Expert Witness

    Mark Plotkin holds a Bachelor of Arts degree from a joint program between Case Western University and The Cleveland Institute of Music and has over two decades of diverse experience in the music industry. Plotkin is a member of the Recording Academy, co-founded Decision Desk and Wifi Music School, and is the founder and CEO of Beast Music A.I., a media platform utilized by record labels such as RCA Records and Atlantic Records. Plotkin further serves as a Professor and the Area Head of Business and Technology at New York University’s Clive Davis Institute of Record Music.

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

    Psychology Expert Witness

    Dr. Chitra Raghavan is a licensed clinical psychologist with more than twenty years of experience. Raghavan received her doctorate in clinical and community psychology at the University of Illinois at Urbana-Champaign and post-doctoral training at Yale University. Currently, she serves as a Professor of Psychology, Director of the Forensic Mental Health Counseling Program, and Coordinator of Victimology Studies in Forensic Psychology at John Jay College of Criminal Justice.

    She has previously testified as a witness for the prosecution in other cases regarding the effects of traumatic abuse and coercive control and given over 150 conference presentations and published over forty articles in various publications on subjects related to domestic violence, sex trafficking, and trauma.

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

    Discussion by the Court

    Michael Selverne

    In connection with this litigation, Selverne submitted an expert report setting forth his opinions regarding Plaintiff’s lost future compensation. In rendering his opinion, Selverne reviewed Dixon’s compensation package during her time at Arista.

    While the Plaintiff was hired in 1996 as a Senior Director for a two-year term, she was promoted to the position of Vice President when one of her “designated artist” albums sold 500,000 records. Selverne opined that the improvement in her compensation package and title in such a short time span indicated that Arista viewed Plaintiff as a “budding superstar.”

    Reviewing the compensation packages of contemporaries of Plaintiff who rose to the ranks of CEOs for major music labels, Selverne concluded that, if Dixon had “continued along the trajectory she was on when she departed Arista, it is highly likely that Dixon’s earnings would have reached seven or eight figures annually. It is equally likely that Dixon would have created a joint venture with a major record company and see her fortunes rise into the nine figures.”

    Analysis

    Selverne did not purport to calculate Plaintiff’s lost earnings based on her actual compensation at the time she left Arista. Indeed, he did not purport to calculate her lost earnings at all. He did not, for example, specify how long Plaintiff would have expected to work in the industry, with reference to verifiable statistics regarding longevity in the industry or even actuarial tables reflecting life expectancy. He did not calculate the value of lost benefits.

    Selverne’s lack of methodology in reaching his opinion on future earnings loss is reflected in his failure to quantify such damages. Selverne vaguely asserted that Plaintiff suffered damages in the range of millions to hundreds of millions of dollars.

    Selverne conjectures that Plaintiff not only would have continued to have a successful career in the music industry, but that she would have reached the pinnacle of the profession to become the CEO of a major record label or otherwise enter into a lucrative joint venture agreement. The Court held that these hypothetical promotions, bonuses, and business deals lack sufficient evidentiary foundation, and thus cannot form the basis of an expert opinion.

    Mark Plotkin

    Plaintiff retained Marc Plotkin to provide an expert opinion regarding the hypothetical earnings Plaintiff would have received from her A&R commission structure had she successfully signed Kanye West and John Legend.

    Plotkin first looked to Plaintiff’s employment agreement for the relevant formula and then researched West and Legend’s first contracts with Def Jam and Columbia Records, respectively, as well as their sales data year by year to ultimately determine how many records and singles were sold across various mediums and the price per unit.

    Analysis

    Defendant objected to Plotkin’s reliance on historical data regarding record sales as the basis for his opinion. Defendant contended that it rests on the faulty assumption that West and Legend would have released the same albums while at Arista and thus earned the same revenues. 

    The Court held that these are the types of assumptions that go to the weight of the evidence, not admissibility. The use of historical data may not provide exactitude, but allows for calculations to a reasonable certainty, which is all the law requires.

    Defendant also argued that the entirety of Plotkin’s opinion is speculative, in that it is unknown whether these artists would have signed to Arista if offered the chance or that they would have been deemed Dixon’s designated artists if they had done so. Defendant misapprehended the nature of Plotkin’s inquiry. Plotkin is not purporting to offer an opinion as to whether West or Legend would have signed to Arista, or if they had whether Dixon would have been responsible for signing them. Rather, his opinions are limited to a calculation of what commissions Plaintiff would have been entitled to under the terms of employment contract in the hypothetical world where she was responsible for signing the artists while at Arista.

    Dr. Chitra Raghavan

    Raghavan opined that she “found Dixon’s reported history to be believable” because she reported a decrease in recent symptoms rather than an increase, a pattern that would be typical of malingerers; Plaintiff’s emotional and physical responses were consistent with the experiences she relayed; she was able to clearly explain the abuse fact pattern and her narratives over multiple interviews; and three objective tests indicated that she responded genuinely about her mental health.

    She further opined that Defendant “used numerous tactics of coercive control to maintain his abusive power” over Plaintiff, including physical violence, manipulation, sexual abuse, retaliation, and microregulation. Raghavan opined that the “sexual assaults and the atmosphere of coercion and hostility” that Plaintiff suffered triggered a severe episode of complex PTSD.

    Analysis

    The Court held that Raghavan’s anticipated testimony is replete with improper opinions regarding witness credibility and bolstering. Such bolstering testimony regarding the truth of the underlying factual allegations in the case is not the proper province of an expert witness.

    The Court held that Raghavan is precluded, pursuant to Rules 702 and 403, from offering testimony at trial regarding Plaintiff’s credibility, including an opinion that Plaintiff was the subject of a sexual assault by Defendant or that Defendant exercised coercive control over Plaintiff. She is also precluded from opining on the causation of Plaintiff’s conditions. Raghavan can testify, however, as to coercive control generally, as background; her diagnoses of Plaintiff’s mental health conditions and the bases for her diagnoses; and that Plaintiff’s condition is “consistent with” that of individuals who have been sexually assaulted.

    Held

    • The Court granted the Defendant’s motion to preclude the testimony of Michael Selverne.
    • The Court denied the Defendant’s motion to preclude the testimony of Mark Plotkin.
    • The Court granted in part and denied in part the Defendant’s motion to preclude the testimony of Dr. Chitra Raghavan.

    Key Takeaway:

    Where lost future earnings are at issue, an expert’s testimony should be excluded as speculative if it is based on unrealistic assumptions regarding the Plaintiff’s future employment prospects.

    Selverne’s opinion is not only of little assistance to a jury, but also rests on inherently speculative assumptions. 

    Case Details:

    Case Caption: Dixon V. Reid
    Docket Number: 1:23cv9878
    Court Name: United States District Court, New York Southern
    Order Date: August 21, 2025
  • Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    Defendants’ expert James C. Cooper offered opinions on two issues: (1) What a reasonable market participant would have expected, prior to March 2021, was required to comply with Restore Online Shoppers’ Confidence Act (“ROSCA”); and (2) The extent to which the FTC’s allegations in this case are consistent with such reasonable expectations predating March 2021.

    The FTC filed a motion to exclude Cooper’s testimony on three grounds. First, it said that his testimony is irrelevant to whether Defendants violated the FTC Act or ROSCA and the availability of civil penalties. Second, it contended that his methodology is unreliable because he applied his case coding technique inconsistently. Third, it asserted that he offers legal conclusions that are inadmissible under Federal Rule of Evidence 702. 

    Law And Legal Expert Witness

    James Campbell Cooper is a law professor at George Mason University’s Antonin Scalia Law School (ASLS). He has a Ph.D. in economics from Emory University. At ASLS, he teaches courses on the digital economy and consumer protection law; the consumer protection law course covers, among other things, the FTC’s authority to regulate deceptive conduct and FTC disclosure requirements. 

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

    Discussion by the Court

    To generate his opening report, Cooper reviewed complaints and judicial decisions from ROSCA enforcement actions initiated before March 2021, when Amazon received a Civil Investigative Demand from the FTC. He then coded these materials to determine the prevalence of certain allegations in ROSCA enforcement actions. If an element was included in the document, it was coded as a “1” but if an element was not included then it was coded as a “0.” This method purportedly allowed him to calculate the relative frequency of certain allegations and understand the conduct a “reasonable market participant” would expect to violate ROSCA. 

    Cooper found that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard that represents an unpredictable departure from the standard prior to March 2021 in two ways.” First, he said that the allegations suggested a new standard to “balance” the options to accept or decline an offer to enroll in a subscription service. Second, he said that the FTC’s complaint sets out more stringent standards for clear and conspicuous disclosure, express informed consent, and simple cancellation than a “reasonable market participant” would have expected ROSCA to require. His report also found that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    Relevance of Cooper’s Testimony

    Defendants said that Cooper’s opinions are relevant to the FTC’s request for civil penalties. But the FTC said that Cooper’s opinions are irrelevant to this request because the understanding of a “reasonable market participant” is unrelated to any Defendant’s actual knowledge, which is the relevant question in the civil penalty inquiry. The FTC also contended that Cooper’s opinions are flawed because they were formed on the basis of non-ROSCA guidance.

    The Court held that Cooper’s opinions are relevant to the FTC’s request for civil penalties because his report may help the trier of fact determine whether Defendants should have known their actions were unlawful. The FTC argued that Cooper did not offer an opinion on this subject because the relevant implied knowledge inquiry for Amazon is whether “a sophisticated company with virtually unlimited resources and near-constant involvement of in-house and outside counsel should have known.” 

    And it said, for the individual Defendants, whether “executives in charge of the largest subscription program in the United States, essentially unlimited legal resources, and constant involvement with in-house or outside counsel” should have known. But these arguments that Cooper did not account for the actual circumstances of this case concerned the weight—not admissibility—because they attacked the factual basis of his opinions.

    In addition, Cooper’s reliance on non-ROSCA guidance for his opinions did not render them irrelevant. As the FTC’s designated representative recognized in her deposition, non-ROSCA sources provide “guidance relating to clear and conspicuous online disclosures” that are the same as “clear and conspicuous disclosure[s] in the context of ROSCA.”

    Reliability of Cooper’s Testimony

    The FTC next argued that Cooper’s opinions must be excluded because they are unreliable. It said that Cooper failed to demonstrate how his experience informs his conclusions. It also said that Cooper’s case coding methodology was applied inconsistently because he used a different method to code for “dark patterns” than he used to code for past FTC ROSCA enforcement actions.

    The FTC’s first two arguments, that Cooper lacked experience with ROSCA and he did not show how his experience informed his conclusions failed to persuade the Court.

    Even though the FTC said that Cooper did not perform any work pertaining to ROSCA while working at the FTC and that he has not written substantively on ROSCA, these arguments merely concerned to the weight of his conclusions. Cooper added that the methodology he employed is common in the field of law and economics.

    The FTC’s other argument about reliability, that Cooper applied his coding method inconsistently, also did not persuade the Court. The FTC took issue with Cooper’s methodology because he reviewed and analyzed past FTC ROSCA complaints to code them, but then coded past FTC cases for “dark patterns” based on the explicit use of that term. 

    The FTC likewise contended that Cooper did not consider consent orders from past FTC ROSCA enforcement actions to code for sub-categories of alleged deficiencies, but he did review consent orders from past FTC ROSCA enforcement actions to code for allegations of fraud.

    Defendants explained in response that the FTC has not defined “dark patterns” clearly enough to allow coding by any means other than searching for this explicit term. At his deposition, Cooper explained that he did not consider some information, such as FTC consent orders, because he was coding for the presence of certain allegations made in each case.

    Testimony on Legal Conclusions

    The FTC maintained that Cooper’s report included four impermissible legal conclusions: (1) that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard”; (2) that “the first departure from prior guidance is the novel theory of liability grounded in the subjective concept of ‘dark patterns’”; (3) that “the FTC employed much more stringent tests for ‘clear & conspicuous disclosure,’ ‘express affirmative consent,’ and ‘simple cancellation’ in this case than in its other ROSCA cases”; and (4) that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    The FTC did not identify any portion of his report that claimed to interpret ROSCA. Nor did the FTC identify any portion of his report that opines on whether Defendants had knowledge of ROSCA or that Defendants knew or should have known that their actions violated ROSCA. Instead, as Defendants acknowledged, Cooper reviewed, interpreted, and analyzed the FTC’s past ROSCA enforcement actions. He then noted where he believed the FTC departed from its prior guidance. This is not an interpretation of ROSCA. He also concluded that a “reasonable market participant” would have expected to have complied with ROSCA under certain conditions, but he never says that Defendants did not violate ROSCA or that Defendants would not have expected to have complied with ROSCA under these conditions. 

    The Court found this testimony permissible because an expert is allowed to “discuss industry conditions, standards, and practices” as well as “factual corporate norms.”

    Held

    The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert James C. Cooper.

    Key Takeaway:

    Cooper’s report does not go so far as to decide the ultimate legal questions. Instead, it stays within proper bounds by addressing industry conditions, standards, practices, and common corporate norms.

    Please refer to the blogs previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 15, 2025
  • Expert’s Legal Conclusions Advocating for Class Certification Excluded

    Expert’s Legal Conclusions Advocating for Class Certification Excluded

    This putative class action was initiated by Plaintiffs, a group of individuals who are leaseholders of oil and gas leases, against Defendant XTO Energy Inc (“XTO”) alleging that XTO breached their leases when it deducted unreasonable and excessive post-production costs from their royalty payments.

    Therefore, XTO filed a motion to exclude certain opinions of Plaintiffs’ expert John Burritt McArthur (“McArthur”) regarding class certification under Federal Rule of Evidence 702.

    Law and Legal Expert Witness

    John Burritt McArthur has been serving as an arbitrator for 22 years and working as a trial lawyer, representing Plaintiffs and Defendants in courts around the country, for 33 years. He has offices in Berkeley California and in Houston and is a past partner of Susman Godfrey LLP in Houston and Hosie McArthur LLP of San Francisco, both firms with national trial dockets.

    Also, McArthur was Editor in Chief of the Texas Law Review, a Chancellor, and a member of the Order of the Coif in law school. He is a Phi Beta Kappa, magna cum laude graduate of Brown University. Moreover, McArthur clerked for Judge Joseph Sneed on the Ninth Circuit after law school.

    In addition to his J.D., he holds an M.A. in economics, an M.P.A. from Harvard University’s Kennedy School of Government, and has graduate-level economics training from the London School of Economics and a Ph.D in public policy from the Goldman School of Public Policy at the University of California (Berkeley). 

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

    Discussion by the Court

    XTO argues that portions of McArthur’s reports should be stricken because McArthur improperly offers legal conclusions advocating for class certification under Fed. R. Civ. P. 23.

    Plaintiffs did not dispute that McArthur’s reports consisted of some legal conclusions (and indicated they did not intend to offer that testimony as an expert opinion) but maintained the reports also consisted of testimony based on industry standard in the oil and gas field.

    However, the Court held that McArthur’s reports highlighted by XTO largely offered legal opinions about whether Plaintiffs’ proposed class should be certified under the Fed. R. Civ. P. 23 factors and will not be considered in the forthcoming recommendation on the motion for class certification.

    However, to the extent McArthur’s expert reports contain opinions based on standards, customs and practices of the oil and gas industry, the Court will consider those opinions where relevant.

    Held

    The Court granted XTO’s motion to exclude certain legal opinions by Plaintiffs’ expert John Burritt McArthur.

    Key Takeaway:

    Basically, experts are allowed to testify about customs and practices in a field of business but not whether those customs or practice complied with the law or regulations.

    Therefore, where an expert offers a legal opinion, the court must “exclude opinions phrased in terms of inadequately explored legal criteria.”

    Case Details:

    Case Caption: Kriley v. Xto Energy Inc.
    Docket Number: 2:20cv416
    Court Name: United States District Court for the Western District of Pennsylvania, Pittsburgh Division
    Order Date: May 30, 2025
  • Law And Legal Expert Was Not Allowed to Testify Regarding State Law Ethical Standards

    Law And Legal Expert Was Not Allowed to Testify Regarding State Law Ethical Standards

    Plaintiff Kuantay Reeder filed a civil rights lawsuit against Jason Williams, the Orleans Parish District Attorney, in his official capacity. Reeder had spent more than 26 years in prison following a wrongful conviction for murder. He claimed the Orleans Parish District Attorney’s Office (OPDA) violated his right to due process by failing to disclose exculpatory evidence.

    To support his damages claim, Reeder identified two expert witnesses: Elizabeth Martina, a vocational rehabilitation counselor, and Harold Asher, a certified public accountant. Martina was expected to testify about Reeder’s lost earning potential. She argued that, if not wrongfully imprisoned, Reeder could have become a highly paid electrician. Harold Asher, has used this premise to opine that Reeder should be entitled to $2,286,663 consisting of past and future lost wages and benefits. Williams argued for the exclusion of both experts’ lost wage and benefit evidence. His reasoning is that this evidence entirely overlooks two crucial aspects of Reeder’s past: his unremarkable employment history before his incarceration and his significant criminal record prior to that time.

    Reeder hired Professor Dane Ciolino as an expert witness to testify on two key issues: first, whether the prosecution of Reeder violated the standard of care concerning a prosecutor’s obligation to disclose exculpatory evidence; and second, whether the policies of the Orleans Parish District Attorney’s Office (OPDA) in place during Reeder’s prosecution failed to meet the standard of care for supervising prosecutors.

    Williams sought to exclude Ciolino’s testimony. Williams contended that while Ciolino presents opinions on “standards of care,” no such relevant standard exists in this particular case. Furthermore, Williams asserted that other opinions in Ciolino’s report represent inadmissible legal conclusions.

    Law And Legal Expert Witness

    Dane S. Ciolino currently serves as the Alvin R. Christovich Distinguished Professor of Law at Loyola University New Orleans School of Law. His teaching interests include Professional Responsibility, Evidence, Advocacy, and Criminal Law. 

    Professor Ciolino graduated cum laude from Rhodes College in 1985, and magna cum laude from Tulane Law School in 1988, where he was inducted into Order of the Coif and selected as Editor in Chief of the Tulane Law Review. 

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

    Vocational Rehabilitation Expert Witness

    Elizabeth Martina is a licensed Rehabilitation Counselor in the State of Louisiana and has national certifications as a Certified Rehabilitation Counselor and as a Certified Life Care Planner. She has practiced in the field of vocational rehabilitation for over 17 years and is a board-approved supervisor for provisionally licensed Rehabilitation Counselors.

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

    Accounting Expert Witness

    Harold Asher is a managing director for Asher Meyers, a Metairie firm that provides forensic accounting services. He holds a B.S. and an M.B.A. from Tulane University, having earned the latter degree with a concentration in accounting and finance. He is also a Certified Public Accountant and has over 40 years of experience in providing expert forensic accounting services in conjunction with litigation.

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

    Discussion by Court

    Motion to Exclude the Opinions of Elizabeth Martina and Harold Asher

    The central question before the Court, therefore, is whether Martina’s opinions, and consequently Asher’s, are so irrelevant and unreliable that they must be excluded under the Court’s gatekeeping responsibility as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and its progeny.

    Alternatively, as Reeder proposes, the jury should be permitted to assess Martina’s expert opinion—specifically, that Reeder’s life would not have been spent dealing drugs or in prison but would have instead evolved to resemble his current state, albeit sooner. In support of this, Reeder emphasizes that Williams retains the opportunity to thoroughly cross-examine Martina regarding her expert conclusions. Ultimately, the Court concurred with this view.

    However, Williams further objected to the fact that Reeder’s calculations for lost wages/benefits are predicated on a 1991 injury date, despite the allegedly wrongful conviction not taking place until 1995. Consequently, the Court held that Reeder must revise Asher’s report to accurately reflect a 1995 injury onset date and also to appropriately reduce the lost wage/benefit figures to account for avoided expenses.

    Motion to Exclude Dane Ciolino’s Testimony

    Subsequently, Ciolino produced a report. In this report, he opined that the Orleans Parish District Attorney’s Office (OPDA) failed to comply with the standards of care and conduct governing prosecutors, as well as their constitutional obligations to provide Brady material, during the 1994 and 1995 prosecutions of Kuantay Reeder.

    Furthermore, he concluded that the OPDA Policy Manual in effect at the time of these prosecutions was inadequate to properly convey those obligations to its staff.

    The Plaintiff seeking to recover for a Brady violation in a civil rightslawsuit must establish three elements: 1) that the State suppressed evidence by failing to disclose it to the Defendant; 2) that the undisclosed evidence was favorable to the Defendant by helping to show the Defendant’s innocence or by impeaching an unfavorable witness; and 3) that the nondisclosure prejudiced the Defendant because it was “material,” i.e., there is a “reasonable probability” that the trial outcome would have changed if the prosecution had turned over the evidence.

    Analysis

    In his opposition, Reeder clarified, however, that he would not seek to offer Ciolino’s opinions regarding whether a Brady violation had actually occurred in his case. Consequently, Williams’s concerns about Ciolino potentially attempting to testify about an “ultimate legal conclusion” were then moot.

    The Court agreed with Williams that aside from whether a Brady violation occurred in Reeder’s criminal prosecution, there is simply nothing left for Ciolino to opine about.

    Aside from the aspects of the report that discuss the law pertaining to Brady obligations and why Ciolino believes that a Brady violation did in fact occur (which Reeder now concedes he will not attempt to elicit at trial), Ciolino’s opinions are based on state law ethical standards. Reeder’s claim is governed by federal law not state law.

    In his report, Ciolino, moreover, dedicates a specific section to opining on why the 1987 OPDA Policy Manual inadequately outlines a prosecutor’s Brady obligations, asserting that the Policy is vague and fundamentally insufficient. However, Williams contends that this particular opinion is irrelevant because Ciolino lacks knowledge regarding how the Policy Manual was actually implemented or what other measures were undertaken to train or supervise prosecutors. Indeed, the Court concurs with Williams’s assessment.

    Held

    The Court granted the motion to exclude the testimony of Dane Ciolino. As the Court has outlined, Reeder is required to revise his expert reports from both Martina and Asher in the manner previously detailed.

    Key Takeaway:

    The central issue of liability in this case hinges on whether a Brady violation took place. Consequently, the Court concurs with Williams’ argument that permitting Ciolino to testify about state law ethical standards, which are not determinative of liability here, would likely confuse the jury.

    Furthermore, the Court finds it unclear how Ciolino could offer informed opinions on the Policy Manual’s adherence to a prosecutor’s Brady obligations under federal law if he is not allowed to testify about the relevant legal standards governing this case.

    Case Details:

    Case Caption: Reeder V. Williams
    Docket Number: 2:22cv4614
    Court Name: United States District Court
    Eastern District of Louisiana
    Order Date: April 16, 2025
  • Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Plaintiff Iron Tax, Accounting & Financial Solutions, LLC (“Iron Tax”) brought this suit against Defendants Story Law Firm, PLLC and Travis W. Story (collectively, “Defendants” or “Story”) for legal malpractice. The claims here arise out of an underlying suit that resulted in a default judgment being entered against Iron Tax for failing to timely file a responsive pleading. 

    Defendants challenged the helpfulness and scope of Plaintiff’s expert Danny Crabtree‘s testimony.

    Law And Legal Expert Witness

    Danny R. Crabtree is an attorney with experience in civil litigation and legal malpractice cases.

    Crabtree began his legal career in 2004 as an associate at the Riable Law Firm and became a partner at Riable & Crabtree, Attorneys at Law in 2006. During this period, his practice included general litigation, domestic relations, debt collection, and the representation of small businesses in both transactional and litigation matters. In 2009, he established his own law office, focusing on professional negligence claims.

    He holds a Juris Doctor degree, magna cum laude, from the William H. Bowen School of Law (2003), and a B.A. in Political Science from the University of Arkansas at Little Rock (2001).

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

    Discussion by the Court

    Crabtree’s primary opinion is that Story’s failure to timely file a responsive pleading breached the standard of care for an attorney in Arkansas. However, the Court is not convinced that Crabtree’s testimony on this is necessary to the jury’s finding because it is common knowledge that failure to comply with statutorily prescribed deadlines in court cases is not in keeping with the standard of care for an attorney.

    Nevertheless, the Court permitted Crabtree to testify that an attorney acting within the standard of care would have timely filed the answer, moved for an extension, or given advance warning to a client that they do not represent them in the matter due to nonpayment.

    Furthermore, Crabtree may explain the effect of failing to answer: that a Defendant is precluded from asserting its defenses and counterclaims. The Court believes such testimony could help the jury to better understand the standard of care. Alternatively, should the parties instead wish to stipulate that failing to answer in thirty days constitutes a breach of the standard of care, they may, of course, do so.

    Additional Opinions by Crabtree

    In addition to the aforementioned opinion, Crabtree presented two additional opinions as to causation and the existence of an attorney-client relationship. Initially, in his report, Crabtree notes it is his “belief that Arkansas law does not permit an attorney-expert in a legal malpractice case to render an opinion as to causation (i.e., to testify as to the outcome of the underlying case).” Nevertheless, he states that to the extent such testimony is permitted, he believes Iron Tax “would have prevailed in the underlying case but for Attorney Story’s failure to timely file a responsive pleading” because Iron Tax had “meritorious affirmative defenses and counterclaims” against the Tripps, including a claim for violation of the noncompete.

    Similarly, in his deposition, Crabtree stated, “While I don’t believe, yet again, that a legal malpractice expert should offer testimony as to whether there is client engagement,” to the extent such testimony is allowed, he opines that Story did have an attorney-client relationship with Iron Tax that was not limited to the demand letter.

    Defendants argued that these two opinions are inadmissible as they stray from the appropriate scope of the testimony, i.e., whether Story acted within the standard of care. The Court agreed with Defendants. The Court is not persuaded by Plaintiff’s arguments that testimony as to causation in this case would help the jury understand “how different legal strategies would have altered the outcome.”

    In other words, Crabtree may testify as to the standard of care in this case
    but may not testify as to causation or the existence of an attorney-client relationship.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude and/or limit the testimony of Danny Crabtree.

    Key Takeaway:

    Crabtree’s testimony regarding causation has nothing to do with different legal strategies and is merely an assessment of whether the non-compete violation and fraudulent misrepresentation defenses/counterclaims would have succeeded. This is a determination fully within the jury’s capability. And, as to whether an attorney-client relationship existed, the jury will have to make that determination by applying the law—as supplied in the jury instructions—to the facts in this case.

    Case Details:

    Case Caption: Iron Tax, Accounting & Financial Solutions, LLC V. Story Law Firm, P.L.L.C. Et Al
    Docket Number: 5:23cv5243
    Court Name: United States District Court, Arkansas Western
    Order Date: April 08, 2025
  • Admitting Foreign Law Experts: Navigating Rule 44.1 in Court

    Admitting Foreign Law Experts: Navigating Rule 44.1 in Court

    The case centered on a dispute over property ownership in Cuba. The Plaintiff relied on the testimony of Avelino Gonzalez, an expert in Cuban law, to establish their claim. The Defendants, however, challenged the admissibility of Gonzalez’s testimony on multiple grounds.

    Law And Legal Expert Witness

    Avelino Gonzalez is an attorney with a Summa Cum Laude Bachelor of Law degree from the University of Havana, Cuba, and 35 years of experience in Cuban Law.

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

    Discussion by the Court

    Challenges to the Expert’s Testimony

    The Defendants launched a multi-pronged attack on Gonzalez’s testimony, primarily arguing that:

    Improper Use of Expert Opinion

    The Defendants claimed the Plaintiff was improperly using Gonzalez’s opinions to establish disputed facts, arguing Gonzalez lacked personal knowledge of those facts.

    Reliance on Inadmissible Hearsay

    They asserted that Gonzalez relied on inadmissible hearsay, particularly a history book and family member accounts, to form his opinions regarding the Plaintiff’s inheritance claim.

    Improper Application of Foreign Law

    The Defendants objected to Gonzalez’s ability to opine on the application of Cuban law to the specific facts of the case.

    Invasion of the Jury’s Province

    They argued that Gonzalez’s testimony would improperly invade the jury’s role in determining factual matters.

    Unreliable Facts and Rule 703 Violation

    They contested the reliability of Gonzalez’s sources, especially the history book, and argued a violation of Federal Rule of Evidence 703.

    The Court’s Observations and Rulings:

    The Court, however, rejected the Defendants’ arguments and ruled that Gonzalez’s testimony was admissible. Key points from the Court’s observations include:

    Rule 44.1 Flexibility

    The Court emphasized the flexibility granted by Federal Rule of Civil Procedure 44.1, which allows courts to consider “any relevant material or source, including testimony,” when determining foreign law.

    Broad Scope of Admissible Evidence

    The Court noted that Rule 44.1 is not constrained by traditional rules of evidence, such as Rule 703 or limitations on hearsay. Thus foreign law experts can use a wide range of documents and sources.

    Court’s Role in Determining Foreign Law

    The Court highlighted that determining foreign law is its responsibility, not the jury’s.

    Premature Objections

    The Court deemed some objections premature, stating that it would address the parameters of Gonzalez’s testimony and the weight to be afforded to his opinions after reviewing the parties’ motions for summary judgment.

    Cross-Examination as a Safeguard

    The Court acknowledged the Defendants’ right to cross-examine Gonzalez to challenge his testimony and raise objections.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of Avelino Gonzalez.

    Key Takeaway:

    This case underscores the unique treatment of expert testimony on foreign law in U.S. courts. Rule 44.1 provides significant flexibility, allowing experts to rely on a broad range of materials and sources. While challenges to such testimony are common, courts prioritize their role in determining foreign law and rely on cross-examination to ensure fairness.

    Case Details:

    Case Caption: Echevarria V. Expedia, Inc.
    Docket Number: 1:19cv22620
    Court: United States District Court, Florida Southern
    Order Date: February 28, 2025
  • Law And Legal Expert Witness Cannot Opine on the Standard of Care of Non-Lawyers

    Law And Legal Expert Witness Cannot Opine on the Standard of Care of Non-Lawyers

    Joy Banner brought this suit against Defendants Michael Wright, St. John the Baptist Parish, and Jaclyn Hotard (collectively “Defendants”) alleging violations of her First Amendment right to freedom of speech during a St. John the Baptist Parish council meeting.

    Richard Stanley, an attorney-expert, has been hired by Defendants to opine about “whether a person could reasonably believe that a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications.” Banner alleged that she was only allowed to speak for five seconds before she was interrupted by Defendant Parish President Jaclyn Hotard and then by Defendant Chairman Michael Wright. Plaintiff filed a motion to exclude Stanley’s testimony.

    Wright recited Louisiana Revised Statute § 42:1141.4(L)(1) which provided that:

    “It shall be a misdemeanor, punishable by a fine of not more than two thousand dollars or imprisonment for not more than one year, or both, for any member of the Board of Ethics, its executive secretary, other employee, or any other person, other than the person who is subject to the investigation or complaint, to make public the testimony taken at a private investigation or private hearing of the Board of Ethics or to make any public statement or give out any information concerning a private investigation or private hearing of the Board of Ethics without the written request of the public servant or other person investigated.”

    Banner alleged that the Defendants threatened her with criminal sanctions based on the content of her speech. According to Banner, the law they threatened her with had been long ruled unconstitutional – both facially and as applied.

    Law And Legal Expert Witness

    Richard C. Stanley represents clients throughout Louisiana and the surrounding region in complex commercial litigation and in the representation of lawyers and law firms in connection with issues of ethics and professional liability.

    He handles cases in both state and federal courts at the trial and appellate levels. His clients include two of Louisiana’s largest electric utilities (Entergy and Cleco), as well as numerous out-of-state clients with litigation in Louisiana. He has been recognized as Lawyer of the Year by Best Lawyers in America in multiple categories, including Bet-The-Company Litigation (2019), Real Estate Litigation (2020), Legal Malpractice Law – Defense (2014, 2016, 2018) and Antitrust (2012, 2015). 

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

    Discussion by the Court

    Plaintiff argued that Stanley’s expert testimony should be excluded from trial because (1) Stanley is offering a legal opinion which is in the province of the judge; (2) Stanley’s opinions are irrelevant; and (3) Stanley conceded that he could only opine as to what a reasonable lawyer would do, not a non-lawyer. In opposition, Defendants argued that Stanley did not intend to offer legal opinions, rather he plans to testify as to the reasonable standard of care of an attorney.

    A. Plaintiff’s Argument in Support of the Motion

    Plaintiff contended that Stanley is a partner at the law firm Stanley Reuter Alford Owen Munson & Paul, LLC, a firm that has represented Saint John the Baptist Parish.

    First, Plaintiff argued that Stanley’s testimony should be excluded because his opinion is a legal opinion, and explaining the law to the jury is the province of the judge, not an expert witness.

    Plaintiff contended that Stanley’s methodology includes legal analysis, which an expert witness is prohibited from offering at trial.

    Next, Plaintiff argued that Stanley’s testimony should be excluded because it was irrelevant. Plaintiff stated that the statute Stanley has been asked to interpret was found unconstitutional “as applied” and on its face. Plaintiff contended that Stanley’s opinions are about the reasonableness of a “person who is either advised by a lawyer or who has the equivalent information as if they were advised by a lawyer.”

    Lastly, Plaintiff contended that Stanley’s testimony should be excluded because he testified that he could only opine as to what a reasonable lawyer would do, not a reasonable non-lawyer.

    B. Defendants’ Argument in Opposition to the Motion

    Defendants contended that Stanley’s testimony is not a legal opinion, rather Stanley intended to testify regarding the standard of care of a reasonable lawyer because a reasonable lay person, even without the advice of counsel, would have no reason to conclude that Louisiana Revised Statute § 42:1141.4(L)(1) is unconstitutional in all applications.

    While Plaintiff argued that Stanley’s testimony should be excluded because the standard of care on which he bases his opinion is that of a lawyer, Defendant contended that the standard of care of an lawyer is higher than the standard of care of lay person.

    Defendants conceded that neither Wright nor Hotard are lawyers, and Stanley’s expert opinion is that their actions at the Council meeting did not fall below the reasonable standard of care under the circumstances. Defendants asserted that Plaintiff has not attempted to challenge the constitutionality of the underlying statute.

    C. Plaintiff’s Argument in Further Support of the Motion

    Plaintiff asserted that neither Hotard nor Wright are attorneys, and this Court has excluded an advice-of-counsel defense. Moreover, this case does not involve negligence or malpractice wherein “standard of care” is an element of the claim. Plaintiff averred that Defendants have not offered any authority that requires a showing of a “standard of care” in a First Amendment case.

    Analysis

    This Court reviewed Stanley’s expert report and found that it clearly invaded the province of the Court to instruct the jury on any applicable law. In his report, Stanley opined that it was reasonable for a lawyer to believe a statute, which in one District Court case was held unconstitutional ‘as applied,’ was still valid in other applications. In addressing Plaintiff’s First Amendment claim, the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.” Consequently, Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder. This Court cannot allow Stanley’s opinion as it runs afoul of the Federal Rules of Evidence.

    Further, the Court found that Stanley’s testimony was irrelevant. Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer. Even without Stanley’s opinion, the jury may hear testimony from fact witnesses and consider said testimony alongside the jury instructions regarding the applicable law and make their own determination of whether Defendants’ assumptions and actions were reasonable.

    Held

    The Court granted Plaintiff’s motion to exclude Defendants’ attorney-expert Richard Stanley under Daubert.

    Key Takeaways:

    • Stanley’s opinions touched on various legal issues in this matter to be determined by the factfinder because the jury must determine whether the restriction on Plaintiff’s speech was “reasonable in light of the purpose served by the forum.”
    • Stanley testified that he can only opine on the standard of care of lawyers, not non-lawyers. Defendants in this matter are not lawyers. Stanley admitted he cannot testify as to the standard of care of a non-lawyer.

    In conclusion, being a lawyer does not disqualify one as an expert witness. Lawyers may testify as to legal matters when those matters involve questions of fact. However, there is only one legal answer for every cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires only one spokesman of the law, who of course is the judge.

    Case Details:

    Case Caption: Banner V. Wright Et Al
    Docket Number: 2:23cv7296
    Court: United States District Court, Louisiana Eastern
    Order Date: January 15, 2025
  • Law And Legal Expert Witness Improperly Speculates about the Defendant’s Motivation

    Law And Legal Expert Witness Improperly Speculates about the Defendant’s Motivation

    This is an insurance bad faith case stemming from Westfield’s handling of a first-party property insurance claim following a fire.

    Plaintiffs JME Investments, LLC (“JME”) and Hiway Bar, LLC (“Hiway Bar”) (together, “Plaintiffs”) filed claims after a kitchen fire damaged their property on July 12, 2020. The fire burned a building owned by JME. Constructed in the 1890s, the building had been leased to Hiway Bar since 2018 for $4,000 per month. Hiway Bar operated a restaurant and bar on the ground floor and leased the three residential apartments on the second floor, particularly to tourists and hunters during the hunting season.

    Defendant Westfield Insurance Company insured the building for $625,500. However, JME later admitted that it “woefully” underinsured the property. Still, the parties agreed that Westfield has paid Plaintiffs over $900,000 on their claims arising from the fire loss.

    Plaintiffs retained Damian J. Arguello to evaluate and opine as to whether Westfield’s handling of Plaintiffs’ insurance claims was consistent with industry standards. Arguello submitted two expert reports: an initial affirmative report on March 10, 2023, followed by a supplemental report on May 15, 2024, which addressed specific issues raised in Westfield’s counterclaims.

    Subsequently, Westfield filed a motion to exclude the opinions and testimony of Damian J. Arguello.

    Law And Legal Expert Witness

    Damian J. Arguello is an insurance coverage attorney, expert witness, and former adjunct law professor whose legal practice focuses on representing and counseling commercial policyholders, business and trial attorneys, and insurance agents and brokers regarding insurance issues.

    In his consulting and expert witness practice, Arguello also draws from his pre-law school experience as a claims adjuster for several insurance companies and as a claims manager and errors & omissions risk manager for a major insurance brokerage to consult and deliver testimony on insurance company claims handling and insurance agent/broker professional liability.

    Arguello’s insurance industry experience also includes reengineering an insurance company’s claims best practices in conjunction with consultants with McKinsey & Company.

    Want to know more about the challenges Damian J. Arguello has faced? Get the full details with our Challenge Study report.   

    Discussion by the Court

    Defendant’s Arguments

    Arguello submitted an initial report in connection with the Plaintiff’s common law bad faith claim. Westfield contended that this report was littered with factual inaccuracies and improper legal conclusions considering various opinions in the report were highly unreliable, prejudicial, and unhelpful to the jury. Moreover, Westfield challenged Arguello’s supplemental report in which, according to Westfield, Arguello improperly speculated about Westfield’s motivation for asserting its counterclaims, including that Westfield filed the counterclaims to “distract the factfinder’s attention from Westfield’s deficient claim handling,” and that Westfield sought to “perpetuate this litigation by raising its counterclaims extremely late in the litigation.”

    As required by the Court’s Uniform Practice Standards, Westfield recited the ten opinions in Arguello’s affirmative report that it considered improper due in part to the “litany of factual errors” predicating these opinions. After analyzing the ten opinions, the Court declined to exclude them at that time. The Court had already outlined the numerous factual disputes in this matter. Westfield was free to challenge any perceived factual errors through cross-examination of the expert. The Court emphasized that its role as a gatekeeper under Daubert “is not intended to serve as a replacement for the adversary system.”

    Helpfulness to the Trier of Fact

    Westfield challenged Arguello’s claims-handling opinion, in which he stated, “in my opinion, Westfield’s handling of JME’s and Hiway’s claims failed to meet applicable standards of care for a reasonable insurer under the facts and circumstances of this loss.” The Court permitted Arguello to testify, consistent with his expertise in the insurance industry, about the relevant insurance industry standards concerning an insurer’s duty to investigate claims, including whether Westfield’s conduct was consistent with that of a reasonable insurer. However, Arguello may not go any further by testifying that Westfield’s handling of Plaintiffs’ claim was unreasonable. 

    The Court emphasized that expert testimony must assist the jury, as required by Federal Rule of Evidence 702(a). To ensure testimony remains helpful, “an expert may not state legal conclusions drawn by applying the law to the facts, but an expert may refer to the law in expressing his or her opinion.” The Court acknowledged that “the line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern.” In this instance, the Court found that Arguello’s challenged opinion goes right up to that line but does not cross the thin line.

    Legal Conclusions

    Westfield challenged seven opinions from Arguello’s supplemental report, because they apparently constituted improper legal conclusions. For example, Arguello stated, “[i]n my opinion, the available evidence doesn’t support Westfield’s counterclaims.” In another instance, he opined, “in my opinion, Plaintiffs provided ample cooperation with Westfield’s investigation”.

    It was noted that Plaintiffs did not address any of these seven opinions with specificity in their response. Instead, Plaintiffs asserted high-level arguments that Arguello’s opinions were “properly grounded in the standard of care for insurance claims handlers and were relevant to the determination of materiality.” Plaintiffs added that this post-litigation conduct was relevant to Westfield’s on-going duty of good faith and fair dealing. 

    While the Court acknowledged that an insurer’s “duty of good faith and fair dealing continues unabated during the life of the insurer-insured relationship, including through a lawsuit or arbitration between an insured and the insurer,” Arguello’s opinions, especially his opinion that the evidence does not support Westfield’s counterclaims, were improper because this type of testimony will invade the province of the jurors, who will be tasked with evaluating whether the evidence supports Westfield’s counterclaims. 

    Reliability

    The Court questioned Arguello’s ability to speculate as to Westfield’s rationale and motivation for filing its counterclaims, concluding that such testimony would be inherently unreliable. Further, the Court was well-informed of the timing of Westfield’s counterclaims when it determined that good cause existed to permit Westfield leave to amend its answer to bring the counterclaims. He appeared to question the Court’s ruling, which was another reason his counterclaims opinions were impermissible

    Held

    The Court granted in part and denied in part Westfield’s motion to exclude opinions and testimony of Damian J. Arguello.

    Key Takeaways:

    Westfield challenged Arguello’s expert opinions, arguing they contained factual inaccuracies, improper legal conclusions, and speculative reasoning. The Court ruled as follows:

    i) Testimony on Industry Standards – Arguello could testify about the relevant insurance industry standards concerning an insurer’s duty to investigate claims but could not state that Westfield’s claim handling was unreasonable.

    ii) Opinions on Counterclaims – The Court rejected Arguello’s opinion that “the available evidence doesn’t support Westfield’s counterclaims,” determining that such testimony would improperly invade the jury’s role in evaluating the evidence.

    iii) Speculation on Westfield’s Motives – The Court found Arguello’s testimony questioning Westfield’s rationale and motivation for filing counterclaims inherently unreliable.

    Case Details:

    Case Caption: JME Investments, Llc Et Al V. Westfield Insurance Company
    Docket Number: 1:22cv1012
    Court: United States District Court for the District of Colorado
    Order Date: January 30, 2025