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Category: Law & Legal Expert Witness

  • Legal Expert Was Barred From Testifying About the Use of Artificial Intelligence

    Legal Expert Was Barred From Testifying About the Use of Artificial Intelligence

    Defendant, Goran Gogic, was charged in a multi-count indictment with crimes related to international narcotics trafficking, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”).

    Subsequently, the parties filed several motions in limine concerning evidence of electronic communications that were purportedly seized and decrypted by European law enforcement.

    As explained in the parties’ briefs, the communications in question were seized and decrypted by law enforcement authorities in Europe as part of a joint investigation that involved French, Belgian, and Dutch officials. Furthermore, the Government obtained electronic records of certain such communications from a French official through a Mutual Legal Assistance Treaty (“MLAT”) between the United States and France.

    In order to obtain these records, a Department of Justice (“DOJ”) officer sent a written MLAT request for content associated with specific Sky user accounts, each denominated by a five-character “Sky PIN,” believed to belong to Defendant. The MLAT request specifically identified, among others, Sky PINs 28A508 and 5UIP0T as belonging to Defendant. Thereafter, French officials complied with the MLAT request and transmitted electronically a large set of spreadsheets and media files (the “Sky Evidence”).

    Finally, the Defendant notified the Government of his intention to call three expert witnesses: Yehudi Moszkowicz, Andreas Milch, and Lee Koch. The Government moved to preclude any testimony and argument regarding the legality or propriety of the European law enforcement operation through which the Sky Evidence was obtained, and to preclude Defendant’s proposed experts from testifying.

    Law and Legal Expert Witnesses

    Yehudi Moszkowicz is a Dutch criminal defense attorney with a degree in “audio- engineering” who has experience representing clients in Europe in cases that involve encrypted phone evidence.

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

    Lee Koch is an American lawyer and former “Signals Intelligence & Network Reconstruction Analyst” for the U.S. Air Force.

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

    Andreas Milch is a German criminal defense lawyer and certified IT forensics specialist.

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

    Discussion by the Court

    Yehudi Moszkowicz

    Moszkowicz’s two proffered reports concerned the structure and internal communications of the European governments that participated in the joint investigation, with emphasis on the purported involvement of the United States.

    His analysis is based on his review of government documents and media reports that describe, inter alia, the role of Europol and the use of Dutch software to analyze communications captured from the Sky network.

    The Court held that Moszkowicz’s report did not reflect any specialized knowledge and merely summarized documents that—if they had been admissible—could have been understood by a lay person. Additionally, while such information might have borne on issues raised in Defendant’s prior suppression motion, it was of minimal relevance to any issue at trial. The diplomatic details of the underlying investigation simply did not bear on the reliability of the resulting intelligence. Insofar as the defense intended to elicit Moszkowicz’s opinion about the reliability of the Sky Evidence at issue in the case, such testimony would have been speculative because, inter alia, he had not even personally reviewed the discovery.

    Lee Koch

    Koch’s expected testimony consisted of a single page “report” indicating that he had reviewed Sky Evidence and “agreed on all points” with the report of Milch and stated that the Sky Evidence “should be suppressed” because it was “incomplete, open to manipulation, unverifiable to an original dataset . . . contained multiple errors, contained multiple omissions, was collected and processed by unknown and unverified tools, and lacked timestamps or GPS data.”

    Consequently, the Court held that the primary opinion set forth in the letter was a legal conclusion—namely, that the Sky Evidence “should be suppressed”—which would not constitute relevant or permissible testimony at trial.

    Andreas Milch

    Milch reviewed the Sky Evidence and drafted two lengthy reports evaluating the reliability of the data and highlighting various “anomalies” in the Chat Spreadsheets.

    Those reports addressed a wide range of topics related to the Sky Evidence, including, inter alia, the functionality and format of the encryption used on the Sky network, the European “hack” operation, and various features of the Chat Spreadsheets and Media Folders. Milch’s conclusion was that the “integrity” of the Sky Evidence could not be verified due to the format in which it had been transmitted. The Court held that the integrity of the Sky Evidence is relevant to issues at trial, as it bears on the reliability of the Government’s evidence of the conspiracy.

    The Court found that some (but not all) of Milch’s analysis was based on sufficient facts and sound methods—namely the close review of the Chat Spreadsheets and associated Media Folders. His speculation about the tools and methods of European law enforcement, by contrast, did not rest on a sufficient foundation. Finally, the Court held that Milch’s explication and analysis of certain topics would be helpful to the jury, who are likely to be unfamiliar with topics such as encryption, metadata and digital forensic standards that bear on the reliability of the Sky Evidence. 

    The Court permitted Milch to testify as an expert about the functionality and format of Microsoft Excel as well as the format and content of the Chat Spreadsheets, including metadata, in addition to general digital forensic standards and methods.

    However, Milch was barred from testifying about the method by which European law enforcement captured, stored, analyzed, or decrypted communications from the Sky network and the use if artificial intelligence.

    Held

    The Court granted the Government’s motion in limine to preclude expert testimony as to Yehudi Moszkowicz and Lee Koch but denied it as to Andreas Milch.

    Key Takeaway:

    Milch is qualified to opine on the format and reliability of the Sky Evidence based on his certification as an IT forensics specialist and experience litigating multiple cases involving similar evidence. Federal Rule 702 does not require that an expert attend a specific type or number of trainings for a specific length of time, and the Second Circuit has advised that ‘the words qualified as an expert by knowledge, skill, experience, training, or education’ must be read in light of the liberalizing purpose of Rule 702.

    Case Details:

    Case Caption: United States V. Gogic
    Docket Number: 1:22cr493
    Court Name: United States District Court, New York Eastern
    Order Date: October 31, 2025
  • Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Law & Legal Expert Helps Jury Understand Medicaid’s Complex Regulatory Framework

    Plaintiff State of Washington alleged that Novo Nordisk Inc. (“NNI”) caused physicians to prescribe its drug, NovoSeven®, to Washington hemophilia patients by: (1) promoting it “off-label” for prophylaxis and “high dose” use; (2) paying kickbacks to physicians; and (3) paying bribes to patients, all of which rendered claims to Medicare and Washington Medicaid false.

    The State of Washington has been investigating this case for almost fifteen years, hoping to find evidence of unlawful conduct that allowed its Medicaid program to recoup money it paid for a medically necessary, life-saving drug.

    The Plaintiffs Jamie Siegel and the State of Washington filed a motion to exclude the testimony of Defendant Novo Nordisk’s expert witness, Daniel E. Troy.

    Law & Legal Expert Witness

    Daniel E. Troy has been an attorney for 40 years, with 23 years of experience in health care regulation, including three years as Chief Legal Counsel to the FDA and many more in the private sector health industry.

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

    Discussion by the Court

    To begin with, Washington argued that Troy’s opinions were improper legal conclusions about the ultimate issue of law: whether NNI’s marketing practices are protected by the First Amendment or U.S. Food and Drug Administration (“FDA”) regulations. It argued that “can be” is not an opinion at all; it is speculation. Moreover, Washington contended that Troy’s testimony would confuse and mislead the jury about the legality of NNI’s practices, prejudicing it.

    NNI responded that there is well-established precedent that a properly qualified expert with expertise in the regulatory framework or landscape of a highly technical and regulated industry or program, such as Medicaid, can help a jury understand the evidence or determine a fact in issue. It argued that far from unduly prejudicing Washington or confusing the jury, Troy’s testimony will assist the jury in understanding the FDA’s enormously complex regulatory structure, in order to evaluate whether NNI’s conduct was improper.

    Analysis

    The Court agreed with NNI that the bulk of Troy’s testimony will assist the jury and is admissible. This case presents a complexity of issues that requires the jury to understand the regulatory scheme of the government’s oversight of pharmaceuticals through the review of extensive legal briefing spanning the years that this litigation has been pending. However, Troy will not be allowed to testify on how the application of the First Amendment has informed the development of case law in America as it applies to the pharmaceutical industry in its testing and promotion of its drugs.

    The Court held that Troy will be permitted to testify about the marketing role that the dissemination of peer-reviewed studies has in the medical industry for the purpose of acquainting practicing physicians with new pharmaceuticals or new treatment applications of established pharmaceuticals, including off-label uses.

    Basically, Troy’s testimony should discuss industry and regulatory standards when assessing a specific study or article, including the use of the FDA’s nonbinding Good Reprint Practice guidance, and related recommendations.

    Moreover, Troy devoted a significant part of his report to discussing the Konkle Study in the context of the Good Reprint Practice review. This was apparently chosen because Washington cited it as an example of a marketing violation of the AKS.

    As a defense expert, the Court reviewed Troy’s report and his expected trial testimony as rebuttal testimony. Troy will be permitted to go through the Good Reprint Practice guidance and review the record by identifying what NNI did factually to meet the Guidance standards. He will not be permitted to testify that NNI’s activities in connection with the Konkle Report rendered NNI in compliance with the AKS “safe harbor” as this would be testimony an ultimate issue of law.

    Held

    The Court granted in part and denied in part the State of Washington’s Daubert motion to exclude Daniel E. Troy’s testimony.

    Key Takeaway:

    In the Court’s view, Troy’s testimony is not unlike that of an expert physician specialist explaining to a jury the standard of care for a particular procedure by describing the procedure’s steps and then explaining, through reference to the medical records, what steps the allegedly negligent physician took. The expert would not be permitted to testify that, in his opinion, the reviewed physician was or was not negligent.

    Similarly, Troy will be permitted to rebut any evidence produced in Washington’s case in chief regarding its claim that the jury should make a negative inference from the fact NNI rejected the FDA’s request that NNI conduct a Phase III Study. He describes these studies as expensive and explains how other alternatives can be used to demonstrate that NovoSeven is safe and effective, what he calls “real world evidence.”

    Troy will also be permitted to rebut any evidence Washington introduces about free drug samples. He can describe how the FDA regulates this activity, and under what conditions free samples can meet the AKS’s safe harbor requirements, and what the record demonstrates about NNI’s distribution of free samples. He, however, may not testify that NNI complied with the regulations relating to free samples.

    Washington conceded that, as a general rule, an expert’s opinion is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. However, it argued persuasively that an expert cannot offer a legal conclusion or opine on an ultimate issue of law.

    Case Details:

    Case Caption: United States ex rel. Siegel V. Novo Nordisk Inc.
    Docket Number: 3:23cv5459
    Court Name: United States District Court, Washington Western
    Order Date: July 14, 2025
  • Why Expert Legal Interpretations Were Excluded in Section 504 Case

    Why Expert Legal Interpretations Were Excluded in Section 504 Case

    O.B., diagnosed with ADHD at age seven, sustained a severe self-inflicted gunshot wound, resulting in permanent blindness. Following the incident, his parents alleged that Colbert Elementary School in the Mead School District (MSD) failed to provide him with necessary accommodations under the Rehabilitation Act and the Americans with Disabilities Act. Central to the dispute was whether the shooting was accidental or a suicide attempt.

    The heart of the legal dispute centered on the admissibility of expert testimony from Amy Klosterman. This sparked a sharp conflict between the Defendant’s objections and the Plaintiff’s counterarguments.

    Law & Legal Expert Witness

    Amy Klosterman conducts neutral investigations of school and workplace issues. Klosterman has over 15 years of experience conducting investigations to help serve your school or company. She is an Association of Workplace Investigators Certificate Holder (AWI-CH). She has been trained as a Title IX investigator under the 2024 Title IX regulations (K12 and higher education), and as a Title IX investigator and decision maker under the 2020 Title IX regulations (K12 and higher education).

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

    Discussion by the Court

    Defendant’s Objection

    First and foremost, the Defendant, MSD, moved to exclude Klosterman’s testimony, asserting that her report was replete with improper legal conclusions. In essence, they argued that she was overstepping her role as an expert witness by interpreting and applying legal standards, specifically those of Section 504 of the Rehabilitation Act, which is the Court’s responsibility. Furthermore, MSD was concerned that Klosterman’s interpretations would unduly influence the jury, potentially leading them to defer to her legal opinions rather than forming their own judgments. They wanted to protect the integrity of the legal process, ensuring the jury was guided by the court’s legal instructions.

    Essentially, the defense argued that the expert was giving legal conclusions that should be left to the court.

    Plaintiff’s Opposition

    Conversely, the Plaintiffs countered that Klosterman’s testimony was not about providing legal conclusions but about offering a factual analysis of whether MSD’s actions complied with established procedures and regulations under Section 504. Specifically, they argued that her expertise lay in the procedural aspects of disability law and that she was merely assessing whether the district followed those procedures.

    Moreover, they tried to distinguish between giving a legal opinion on “deliberate indifference” versus giving an opinion on the factual process of the school district, and if that process was followed. Additionally, the Plaintiffs also argued that Klosterman’s testimony was essential to help the jury navigate the complex regulatory framework of Section 504, claiming that the regulations were highly technical and required expert clarification. Finally, they also requested that if the court found portions of the testimony inadmissible, it should narrow the scope instead of fully excluding it.

    Analysis

    Ultimately, the Court sided with the Defendant, excluding Klosterman’s testimony.

    Improper Legal Conclusions:

    Firstly, the Court found that Klosterman’s report contained numerous legal conclusions, including interpretations of Section 504 regulations and opinions on MSD’s compliance. Indeed, her report directly stated how the Office for Civil Rights (OCR) would rule on the case, and gave legal opinions on the school districts legal requirements under section 504. Therefore, the Court highlighted that the expert was essentially instructing the jury on applicable law, which is the role of the Court.

    Rejection of “Complex Framework” Argument:

    Secondly, Plaintiffs argued that Klosterman’s testimony was necessary to explain the complex regulatory framework of Section 504. However, the Court rejected this, stating that the regulations were not so complex as to warrant expert legal interpretation, and that many of the experts statements were direct copies of the regualtions. Furthermore, the Court also noted that legal expert testimony is more acceptable in bench trials, where a judge, rather than a jury, is the fact-finder.

    Moreover, the Court noted that while expert testimony on technical matters is sometimes allowed, this case did not meet the criteria.

    Held

    The Court granted the Defendant’s motion to exclude the testimony of Amy Klosterman.

    Key Takeaway:

    In conclusion, this case serves as a reminder of the limitations of expert testimony. Experts can provide valuable insights into factual matters, but they cannot usurp the court’s role in interpreting and applying the law. Thus, in cases involving disability law, understanding the nuances of expert testimony is crucial for both Plaintiffs and Defendants.

    Case Details:

    Case Caption: Boe Et Al V. Mead School District
    Docket Number: 2:23cv319
    Court: United States District Court, Washington Eastern
    Order Date: March 6, 2025
  • Law & Legal Expert Witness’ Testimony Excluded Because it Does Not Require Complex Analysis of Certain Documents

    Law & Legal Expert Witness’ Testimony Excluded Because it Does Not Require Complex Analysis of Certain Documents

    Elevation placed two orders for, and Icon delivered two shipments of, iHealth COVID-19 Antigen Rapid Test Kits (“Test Kits”) to Elevation pursuant to those orders. Elevation paid Gypset for the first shipment but refused to pay Icon for the second. In March, Elevation’s counsel sent a letter purporting to reject both the first and second shipment—the first because the Test Kits were delivered 45 days after payment and bore “extremely short expiration dates” and the second because the Test Kits were delivered “without order or authorization” and also bore “extremely short expiration dates.”

    Icon filed this instant collection action against Elevation Health. Elevation Health responded by asserting counterclaims against Icon and third-party claims against Gypset, which arranged for the first shipment.

    Basically, Elevation intended to proffer expert testimony from purported FDA regulatory expert Evan Parker Phelps, an attorney. Phelps’ expert report indicates that he intends to rely primarily on two documents (1) a December 22, 2021 U.S. Food and Drug Administration Letter of Authorization to iHealth Labs, Inc. (“iHealth”) authorizing the COVID-19 Antigen Rapid Tests (the “December 21, 2021 iHealth Authorization Letter”) and (2) an Authorized Distributor Agreement between iHealth and Icon for COVID-19 Antigen Home Test, effective February 1, 2022 (the “February 1, 2022 Distributor Agreement”). 

    Icon argued that Phelps’ testimony should be excluded because he is not qualified to offer the opinions in his expert report, his opinions are not based on reliable methodology, and his opinions are impermissible legal conclusions. 

    Law & Legal Expert Witness

    Evan P. Phelps is a seasoned FDA legal practitioner specializing in medical device regulation with additional experience with issues related to U.S. Food and Drug Administration (FDA) regulation of pharmaceutical products, Human Cell and Tissue Products (“HCT/P”), and electronic products, among others.

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

    Discussion by the Court

    Based on these documents and Phelps’ experience as a lawyer specializing in FDA regulations, he offers the following opinions: (i) neither Icon nor Gypset was an authorized distributor that could lawfully distribute the Test Kits to Elevation Health prior to February 1, 2022; (ii) neither Icon nor Gypset lawfully could have been in possession of Test Kits prior to February 1, 2022; (iii) communications from Icon and Gypset indicating possession and authority to distribute Test Kits to Elevation Health prior to February 1, 2022 are not consistent with the lawful distribution of Test Kits; and (iv) Elevation Health should not have distributed the Test Kits, which were potentially counterfeit, without confirming their authenticity. 

    According to Icon, Phelps’ experience as a lawyer specializing in FDA regulations is not sufficiently related to his opinions regarding whether Icon was an authorized distributor of iHealth test kits prior to February 2022 as his opinions are not based on FDA regulations and the documents on which he relied did not support his conclusions. Elevation disagreed and pointed to an FDA regulation that requires iHealth to identify authorized distributors to the FDA as reliable support for his opinion that Icon and Gypset could not lawfully have distributed or possessed iHealth test kits before February 2022.

    Legal Conclusions

    Icon also argued that Phelps’ testimony should be excluded because each of his opinions offer improper legal conclusions as to whether Icon and Gypset acted “lawfully” or were “legally prohibited from further distributing the tests.”  Seemingly conceding that Phelps’ opinions are legal conclusions, Elevation argued that they are permissible because they are not the “ultimate legal conclusions” in the case since there is no cause of action for violating FDA regulations. 

    But Elevation pointed to no case law that states that an expert may offer legal conclusions as long as they are not the ultimate legal conclusions of the case. 

    The Court held that Phelps’ proposed opinions are legal conclusions on their face and improperly invaded the province of the jury to apply the law to the facts. Phelps stated that: (i) neither Icon nor Gypset could “lawfully distribute” or “lawfully” posssess iHealth test kits by a certain date; (ii) that Icon and Gypset’s statements “indicating the possession and authority to distribute” prior to that date were thus false; (iii) that the test kits that were distributed were “potentially counterfeit” and as such, Icon and Gypset were “legally prohibited from further distributing the tests without first confirming their authenticity. 

    Testimony only qualifies as an “expert opinion” if it “concerns matters that the average juror is not capable of understanding on his or her own.” Here Phelps’ determination that Gypset and Icon were not legally authorized to possess iHealth test kits is largely based on the dates of two documents—one authorizing iHealth test kits themselves and the other apparently permitting Icon to distribute those kits. The Court held that Elevation’s argument does not require complex analysis of these documents beyond the ken of the average juror. 

    Held

    The Court granted Icon’s motion to exclude the testimony of Evan Phelps.

    Key Takeaway:

    To begin with, one of the fundamental requirements of Rule 702 is that the proposed testimony assists the trier of fact to understand the evidence or to determine a fact in issue. Testimony only qualifies as an expert opinion if it concerns matters that the average juror is not capable of understanding on his or her own. Moreover, a district court may commit manifest error by admitting expert testimony where the subject matter of the expert’s testimony is not beyond the ken of the average juror.

    Case Details:

    Case Caption: Icon International, Inc. V. Elevation Health LLC
    Docket Number: 1:22cv4304
    Court: United States District Court, New York Southern
    Order Date: January 03, 2025
  • Law & Legal Expert Witness’ Testimony Excluded Despite Her Experience Assessing the “Cognitive Abilities” of Adults

    Law & Legal Expert Witness’ Testimony Excluded Despite Her Experience Assessing the “Cognitive Abilities” of Adults

    This case is an interpleader action to determine the rightful beneficiary of a $114,000 life insurance policy. The dispute centers around whether Gary Lee Alexander (“Gary”) had the capacity to execute a change in beneficiary designation on September 3, 2020, and whether Defendant Marcia Gayle (Gayle) unduly influenced Gary to make that change.

    In response, Gayle filed a Motion to Strike and a supporting Memorandum, seeking to exclude the testimony of Dr. Jamie K. Ducharme and Guardian Ad Litem Ann H. Larkin, Esq. (“Ms. Larkin” or the “GAL”). Gayle argued that the GAL’s testimony should be struck, claiming it was inadmissible hearsay and lacked foundation. Gayle also contended that Alexander could not demonstrate the GAL was qualified as an expert under Rule 702. Additionally, Gayle argued that Dr. Ducharme’s testimony should be excluded because it lacked sufficient factual support.

    Law & Legal Expert Witness

    Ann H. Larkin is a Shareholder at Midgett Preti Olansen. She focuses her practice on estate planning, estate and trust administration, special needs planning and guardianship and conservatorship matters. Also, Larkin is certified by the Virginia Supreme Court as a guardian ad litem for incapacitated adults.

    Larkin graduated cum laude from the State University of New York at Binghamton with a B.A. in English Literature and Rhetoric. She received her Juris Doctor from William and Mary Law School. After law school Larkin was a law clerk to the Honorable Robert W. Wooldridge, Jr. of the 19th Judicial Circuit of Virginia. Moreover, she practiced in the litigation group at a Washington, D.C. law firm, served as an assistant Commonwealth’s Attorney in Fairfax County, Virginia, and worked as a staff attorney for a Commissioner of Accounts in Norfolk, Virginia.

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

    Neuropsychology Expert Witness

    Jamie Kollar Ducharme is a licensed clinical psychologist who is board certified in clinical neuropsychology.

    She specializes in head injury/concussion assessment, capacity evaluations, workman’s compensation, consultation. and medical records review. Moreover, she is a member of the American Academy of Clinical Neuropsychology as well as the American Psychological Association.

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

    Discussion by the Court

    1. Ann Larkin, Esq.

    Defendant Melissa Alexander, Gary’s widow, contended that Larkin is qualified to testify as an expert because she is experienced as a GAL in assessing the “cognitive abilities” of adults to determine whether they need a guardian or conservator.

    However, Gayle argued that Larkin’s testimony is more appropriately characterized as lay witness testimony under Federal Rule of Evidence 701.

    Basically, a GAL is a lawyer tasked with investigating facts and applying the law to those facts. That the GAL frequently assesses the competency of others alone does not satisfy the Court that she has any “specialized knowledge” that would help the trier of fact.

    Moreover, there is no recognized area of expertise associated with interviewing third parties, doctors, and others to determine whether someone needs a guardian or conservator. Any testimony that the GAL would provide is therefore not the “product of reliable principles and methods,” and would not reflect “a reliable application of the principles and methods to the facts of [this] case.”

    2. Dr. Jamie Ducharme

    To begin with, Ducharme conducted a neuropsychological evaluation of Gary for the state court guardianship proceeding in November 2020 (the “2020 Evaluation”). 

    However, Gayle argued that Ducharme’s testimony is not based on sufficient facts and is not reliable within the meaning of Federal Rule of Evidence 702.

    While many of Gayle’s objections may be proper subjects for cross-examination, they are insufficient to persuade the Court to exclude Ducharme. The Court found that Ducharme is a qualified expert proposing to testify to scientific knowledge that will assist the trier of fact in understanding or determining a fact in issue. In addition, her opinion is based upon sufficient facts and data and is a product of reliable principles and methods. That Ducharme did not consider all of the same materials that Gayle’s rebuttal witness considers is not a proper basis for exclusion. Furthermore, the Court did not find that the probative value of such testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the bench at trial.

    Held

    • The Court granted Defendant Marcia Gayle’s motion to exclude the testimony of Ann Larkin.
    • The Court denied Defendant Marcia Gayle’s motion to exclude the testimony of Jamie Ducharme.

    Key Takeaways:

    A GAL is a lawyer tasked with investigating facts and applying the law to those facts. That the GAL frequently assesses the competency of others alone does not satisfy the Court’s requirement of any “specialized knowledge” that would help the trier of fact. Basically, there is no recognized area of expertise associated with interviewing third parties, doctors, and others to determine whether someone needs a guardian or conservator.

    Therefore, Larkin is not an expert within the meaning of Federal Rule of Evidence 702 and her testimony is not admissible as expert testimony.

    Case Details:

    Case Caption: Minnesota Life Insurance Company vs. Melissa D Alexander, et al
    Docket Number:  2:22cv207
    Court: United States District Court for the Eastern District of Virginia, Norfolk Division
    Order Date: November 4, 2024
  • Law & Legal Expert Witness’ Testimony on Insurance Claims Handling Practices Admitted

    Law & Legal Expert Witness’ Testimony on Insurance Claims Handling Practices Admitted

    Plaintiff Debra O’Neal filed a lawsuit against Defendant State Farm Fire and Casualty Company (“State Farm”) under the Washington Insurance Fair Conduct Act (“IFCA”) for its handling and denial of her claim for coverage of personal property allegedly stolen from a storage facility.

    In response, State Farm moved to exclude O’Neal’s insurance expert witness, Robert J. Worth. They argued that he lacked the necessary qualifications and that some of his opinions were inadmissible legal conclusions.

    Insurance Expert Witness

    Law & Legal Expert Witness

    Robert Jeffrey Worth specializes in first party auto, homeowner and commercial litigation cases. He deals with claims involving disputed coverage matters; mold loss, failure to reasonably investigate and evaluate, efficient proximate cause and statute of limitations issues and commercial litigation of commercial general liability policy interpretation of regular employee verses day laborer regarding wrongful denial. Moreover, he obtained a Juris Doctor Degree from the University of West Los Angeles School of Law, Los Angeles.

    Above all, he has an extensive (nearly 15 years) claims background at Farmers Insurance includes the position of (national) Claims Training Administrator responsible for overseeing the company wide training of all liability claims representatives, claims supervisors and managers nationwide.

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

    Discussion by the Court

    Worth’s Testimony on Insurance Claims Handling Practices

    State Farm contended that Robert J. Worth was only qualified to testify in California insurance cases, not Washington cases. However, State Farm overlooked Worth’s extensive experience in the insurance industry across the country. The Court noted that Worth’s familiarity, or lack thereof, with Washington law could serve as a basis for cross-examination but did not justify exclusion. According to Daubert, vigorous cross-examination and the presentation of contrary evidence are the traditional and appropriate means of attacking shaky but admissible evidence.

    Similarly, the substance of Worth’s opinion and whether he considered all the evidence is an appropriate topic for State Farm’s cross-examination and defense, but is not a reason to exclude Worth.

    Worth’s Limitations on Legal Conclusions

    The Court finds that at various points in Worth’s expert report, Worth crosses the line between opining on State Farm’s compliance with industry standards and offering legal conclusions. For example, Worth’s opinions that State Farm “breached the implied covenant of good faith and fair dealing” and that State Farm violated various laws are impermissible legal conclusions.

    Similarly, the Court agrees with State Farm that certain aspects of Worth’s report on whether a “theft” occurred are improper legal conclusions such as opining on how “theft” should be interpreted in the policy and stating that certain evidence “supports the probability that the theft exists and was true.” These opinions intrude on the realm of the Court and are prohibited. However, as part of Worth’s opinion on insurance industry standards and claims handling practices, the Court allowed Worth to explore what State Farm should have considered “theft” when adjusting the claim, or what investigation State Farm should have conducted consistent with applicable industry norms.

    In summary, while the Court will not exclude Worth on this basis, he (and any other expert offered by either party) will not be permitted to offer legal conclusions at trial.

    Held

    The Court denied the Defendant’s motion to exclude the Plaintiff’s insurance expert witness, Robert J. Worth.

    Key Takeaways:

    Although the Court acknowledged that Worth’s familiarity with Washington law could be challenged during cross-examination, this did not warrant exclusion. Additionally, while the Court restricted Worth from presenting legal conclusions, it affirmed his ability to discuss industry standards and claims-handling practices relevant to the case as a result of which Worth was allowed to explore what State Farm should have considered “theft” when adjusting the claim, or what investigation State Farm should have conducted consistent with applicable industry norms.

    Case Details:

    Case caption: O’Neal V. State Farm Fire And Casualty Company
    Docket Number: 2:23cv232
    Court: United States District Court for the Western District of Washington
    Dated: October 4, 2024