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Category: Neurology Expert Witness

  • Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    Neurology Expert Was Not Allowed to Opine on Credibility of Other Witnesses

    This civil action arises from a motor vehicle accident involving Plaintiff Sarah Kollman on February 20, 2019. The other driver, Taylor Bonello, was at-fault for the collision, which Plaintiff alleged caused her physical injuries.

    At the time of the collision, Bonello was insured for liability with Progressive Insurance company for $100,000.000. Plaintiff had an underinsured motorist (UIM) policy with Defendant State Farm Mutual Automobile Insurance Company. After receiving permission from Defendant, Plaintiff settled with Bonello for the $100,000.000 policy limit. Plaintiff then demanded the full UIM limits of $100,000.000 from Defendant under her policy. Defendant refused to pay, saying that all of Plaintiff’s damages were covered by the money she received from Progressive. In response, Plaintiff brought the instant lawsuit for breach of contract and breach of implied duty of good faith and fair dealing.

    Plaintiff sought to limit the opinions and testimony of two of Defendant’s proposed expert witnesses, Dr. Haley Burke and Keith Olivera while Defendant sought to limit the testimony of Plaintiff’s proposed expert Jeremy A. Sitcoff.

    Neurology Expert Witness

    Haley A. Burke is board-certified in neurology, psychiatry and interventional pain management. Burke has first-hand experience and training working with breast cancer patients who had similar surgeries from when she studied at Anderson Cancer Center in Houston, Texas.

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

    Insurance Expert Witnesses

    Keith R. Olivera is an attorney duly licensed to practice law in Colorado who has practiced in excess of 30 years in various fields of insurance, including good faith/bad faith law. He is an expert in the fields of civil litigation and insurance industry standards.

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

    Jeremy Andrew Sitcoff has been licensed to practice law in Colorado for over twenty-seven years. For more than twenty-two years approximately 85% of my practice has been devoted to insurance coverage, claims handling practices and procedures, and insurance breach of contract and bad faith on behalf of policyholders.

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

    Discussion by the Court

    A. Haley Burke, MD

    Plaintiff argued that Burke, who is certified in neurology, psychiatry, and pain management, is not qualified to make opinions regarding the Traffic Accident Report or Plaintiff’s lumpectomies and breast reconstructive surgery, Lyme disease, sinus and eye surgery, mental health, dental health, shoulder pain, and gastrointestinal issues.

    1. Burke’s qualifications

    Burke did not render an opinion regarding the Traffic Accident Report; she merely reiterated how the State of Colorado defines an “01” severity for an injury. The Court cannot identify where in Burke’s report Plaintiff claimed that she stated an opinion on the Traffic Accident Report. In addition, Burke’s discussion of PTSD is included as part of a summary of another provider’s neurocognitive testing of Plaintiff. As none of these comments involve Burke’s own opinions or “scientific, technical, or other specialized knowledge,” they are not properly challenged under Rules 702 and 403.

    Next, the fact that Burke did not cite any articles or provide a more detailed basis for her opinion that Plaintiff’s sinus and cataract surgery, mold exposure, fall, gluten intolerance, and Lyme disease potentially contributed to her symptoms did not necessarily make these opinions unreliable.

    The Court found that Burke is qualified to opine on the possible effects of Plaintiff’s lumpectomies, breast reconstructive surgery, shoulder pain, and mental health. The Court also found that Burke is qualified to know that these “are major surgeries and would be expected to contribute to stress and pain for many people.”

    Finally, Burke is also qualified and permitted to comment on the tests and practices employed by other providers who treated Plaintiff. As long as a subject is within an expert’s area of expertise, as is the case here, he or she may conclude whether he or she agrees with another’s data and opinions. Burke’s comments are not attacks on the other providers’ credibility but rather their substantive practices.

    2. Burke’s Rebuttal Report

    In contrast to Burke’s initial report, the rebuttal report is largely an attack on the credibility of Plaintiff’s experts. She specifically called into doubt the qualifications of Plaintiff’s experts and the believability of their testimony.

    Therefore, the Court appropriately excluded portions of Burke’s rebuttal commenting on the qualifications of Plaintiff’s expert witnesses.

    Other parts of the rebuttal report, such as the section discussing the records from Parker Vision Specialists, are appropriately limited to contradicting Plaintiff’s expert’s opinions and do not put forward new arguments or theories. Therefore, these portions of the report are admissible.

    B. Keith Olivera

    Plaintiff argued that several opinions of Defendant’s insurance expert, Olivera, should be excluded because he impermissibly drew legal conclusions, cited unreliable industry standards, and included irrelevant information.

    1. Legal conclusions

    Plaintiff cited 21 opinions that it argued are legal conclusions regarding the reasonableness of Defendant’s actions and complicity with industry standards.

    The Court agreed that throughout Olivera’s report, he impermissibly conflated Colorado insurance industry standards with case law to draw conclusions about the reasonableness of Defendant’s actions.

    Defendant stipulates to striking opinions 10, 11, 15, and 19. In addition, opinion 14 is not an application of either industry or legal standards to the facts of the case. While it is Olivera’s opinion that Burke’s testimony supported Defendant’s position, opinion 14 is not a conclusion regarding whether Defendant’s evaluation of or reliance on Burke’s report was in line with industry or legal standards. Therefore, the Court found Plaintiff’s argument is not applicable to opinion 14 and will not strike it.

    Out of the remainder of the 21 opinions cited by Plaintiff in this section of their motion, opinions 4, 5, 6, 9, 12, 13, 16 are permissible testimony regarding Defendant’s conformity with industry standards, not legal standards. On the other hand, opinions 2, 8, 17, 18, 20 are impermissible conclusions regarding the reasonableness of Defendant’s conduct, which is a matter of law.
    The Court also excluded opinions 1, 3, 7, and part of 21 because they are conclusions resulting from application of case law and statutory law to the facts of the case.

    2. Support for industry standards

    Plaintiff challenged 7 of Olivera’s opinions as based on industry standards that are not codified and have not been shown to be generally accepted. The Court disagreed, finding that at the beginning of his report, Olivera adequately stated a basis for the industry standards he cited.

    In his report, Olivera “identifies what he perceives as the relevant insurance industry standards, explains those standards, and states that he relied on his experience in the insurance industry in forming his opinions as to whether State Farm met those standards.”

    He clearly tied each of his opinions to an identified industry standard and stated the basis for that standard, citing Colorado case law, statutes, and his 40 years of experience in the insurance industry. Therefore, the Court found that the seven challenged opinions are not unsupported ipse dixit statements but are instead based on clearly articulated sources.

    3. Ties to factual observations

    Plaintiff argued that Olivera’s report failed to connect the case law and standards cited in pages 6-7 of his report to the facts of this case.

    As discussed above, Olivera may not directly opine on whether Defendant’s conduct was unlawful under the case law and statutes cited. However, courts in this district have noted that case law and statutes inform insurance industry standards, and experts are permitted to testify whether a Defendant’s conduct “conformed with specific industry standards, including ones identified in Colorado statutes.”

    Therefore, Olivera cannot tie the case law and statutes in pages 6-7 of his report directly to the facts of the case. However, as Olivera used the law and statutes to provide a basis for the industry standards he applied throughout his opinion, his discussion of them is admissible.

    4. Methodology and supporting facts

    Plaintiff argued that Olivera failed to provide any methodology or supporting facts for two of his opinions. However, Plaintiff’s argument reads not as a challenge to Olivera’s methodology but rather as a rehash of her argument that Olivera did not provide a basis for the industry standards cited. The Court has already discussed that Olivera provided sufficient bases for the industry standards he applied. To the extent Plaintiff disagreed with Olivera’s conclusion that it was consistent with industry standards for Defendant to consider Burke’s IME report, she may address her disagreement through cross-examination at trial.

    5. Rebuttal Opinion

    Plaintiff objected to Olivera’s rebuttal statement that he disagreed with Sitcoff’s “discussion of the case law, statutes, and regulations that provide Colorado insurance industry standards” to the extent it is inconsistent with his own.

    Plaintiff argued that it is unclear what Olivera specifically opposes. Olivera’s general statement of disagreement is supported by the lengthy discussion of case law, statutes, and regulations included in his initial report and to which he refers to as the basis for his disagreement in the rebuttal. He did not seek to introduce new facts or information to support his disagreement. Therefore, the Court found that Plaintiff is adequately on notice for the basis upon which Olivera disagreed with any of Sitcoff’s contrasting opinions.

    C. Jeremy Sitcoff

    Defendant argued that eight of Sitcoff’s opinions are not supported by any referenced industry standard and that he impermissibly drew legal conclusions from applying the law to the facts of the case.

    The Court excluded Opinions 2, 5, 6, and 7 as impermissible legal conclusions because they commented on the reasonableness of Defendant’s investigation, which was a legal determination reserved for the jury. In contrast, the Court held that Opinions 3, 4, and 8 drew conclusions based on industry standards rather than legal standards and were therefore admissible.

      Held

      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s retained expert Haley Burke.
      • The Court granted in part and denied in part Plaintiff’s motion to limit the testimony of Defendant’s insurance industry expert Keith Olivera.
      • The Court granted in part and denied in part Defendant’s motion to exclude the opinions of Jeremy Sitcoff.

      Key Takeaway

      Physicians frequently rely on medical knowledge, physical examination, and patient history to form opinions, all of which are “routinely admitted in federal courts because this methodology is widely accepted among the relevant scientific community.” 

      Case Details:

      Case Caption: Kollmann V. State Farm Mutual Automobile Insurance Company
      Docket Number: 1:23cv2802
      Court Name: United States District Court, Colorado
      Order Date: April 23, 2026
    1. Civil Engineering Expert Was Not Allowed to Opine on Housekeeping Standards

      Civil Engineering Expert Was Not Allowed to Opine on Housekeeping Standards

      On April 29, 2024, Helen Olenik and John Olenik were passengers aboard Carnival Corporation’s ship, M/V Carnival Pride. Helen Olenik fell on an exterior tile floor after walking through sliding glass doors leading from the interior of the ship to the Serenity pool deck.

      Defendants filed a motion to strike and exclude the opinions of Plaintiff’s experts, Francisco De Caso Basalo and Nicholas D. A. Suite, and a separate motion to strike Plaintiff’s supplemental Rule 26 expert disclosure for Nicholas Suite, as well as the untimely supplemental disclosure concerning Victoria Maria-Sekunda.

      Civil Engineering Expert Witness

      Francisco Jose De Caso Y Basalo has over fifteen years of experience conducting slip resistance evaluations in maritime and other environments, has testified as an expert in numerous slip-and-fall cases, and participates in the Advancing Standards Transforming Markets (“ASTM”) F13 Committee on Pedestrian/Walkway Safety and Footwear Standards Development.

      De Caso is also the founder of The Integrated Built Infrastructure Group LLC, which specializes in pedestrian walkway safety and slip resistance evaluation. He is a Certified XL Tribometrist, has completed the Walkway Safety Certification program at the University of North Texas College of Engineering, and has earned the Walkway Auditor Certificate from the National Floor Safety Institute.

      Discover more cases with Francisco De Caso as an expert witness by ordering his comprehensive Expert Witness Profile report. 

      Neurology Expert Witness

      Nicholas David Alexander Suite received his M.D. from The Johns Hopkins University School of Medicine and completed postgraduate training in neurology (including chief residency) at The New York Hospital–Cornell University Medical Center, with an additional year of neurology residency at the University of Miami School of Medicine. He is the Owner and Director of Neurology Diagnosis & Applied Solutions (NDAS) and has served in academic teaching roles including Clinical Assistant Professor of Neurology at Nova Southeastern University’s Dr. Kiran C. Patel College of Allopathic Medicine.

      Get the full story on challenges to Nicholas D.A. Suite’s expert opinions and testimony with an in-depth Challenge Study.

      Neuropsychology Expert Witness

      Victoria-Maria S. Sekunda, PsyD is a board certified clinical neuropsychologist who conducts neuropsychological evaluations and diagnostic assessments, primarily with older adults on an outpatient basis. 

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

      Discussion by the Court

      i. Dr. Francisco De Caso

      Carnival contended that De Caso is not qualified to opine on human factors or housekeeping standards. Also, Carnival avers that the majority of De Caso’s opinions are speculative and unsupported by a reliable methodology.

      The Court noted that Carnival did not contest De Caso’s qualifications as a slip resistance expert but challenged his qualifications to opine about human factors and housekeeping standards.

      Carnival did not contest the reliability of De Caso’s slip index measurements of the subject floor but challenged his opinions as lacking any identifiable methodology. These included his opinions that the floor was more likely than not to become wet at the time of the incident, as well as his later observations—made approximately one and a half years afterward—of a grease film, which he inferred was present on the day in question. With respect to De Caso’s opinions beyond his slip index testing, Plaintiff failed to establish any reliable methodology.

      It should be noted that Plaintiff has agreed to redact all legal conclusions from the expert report and limit the testimony of De Caso to opinions related to his slip index testing. 

      ii. Dr. Nicholas Suite and Dr. Victoria-Maria Sekunda

      After the filing of the motion, on February 4, 2026, Plaintiff served Carnival a supplemental Rule 26 expert witness disclosure which included a report from Suite. Thereafter, on February 6, 2026, Plaintiff served Carnival a second supplemental disclosure which disclosed a new witness, Dr. Victoria-Maria Sekunda, and a copy of her report concerning neuropsychological evaluations conducted of Helen Olenik.

      Carnival argued that discovery closed on January 6, 2026, and the deadline for the Parties to file dispositive pre-trial motions was January 28, 2026. As such, Carnival contended that the late disclosure of those reports is neither substantially justified nor harmless, and the reports should be excluded. Carnival also sought to exclude the testimony of Suite and Sekunda.

      Carnival pointed out that even though Suite evaluated Helen Olenik and prepared a report dated September 22, 2025, the report was not served until four months later, after discovery closed and the deadline for filing dispositive motions passed. Basically, Carnival contended that this report is the first time it has been asserted that Helen Olenik’s post-incident mental decline was caused by a head injury. Likewise, Carnival pointed out that Sekunda first evaluated Helen Olenik on November 25, 2025, yet the February 6, 2026, supplemental notice was the first time Sekunda’s role as a treating doctor was disclosed.

      The Court found that Plaintiff has not satisfied his burden of showing that the failure to comply with Rule 26 was substantially justified or harmless.

      As Plaintiff acknowledged, Suite’s report was not provided until February 4, 2026, well after the close of discovery and after the deadline to exchange expert witness reports. Similarly, Sekunda was not disclosed as an expert until February 6, 2026.

      As for Suite, Plaintiff has offered no explanation for why he did not seek an extension of the Court’s deadlines.

      Held

      • The Court granted the Defendant’s motion to strike and exclude the opinions from the Plaintiff’s experts, Francisco De Caso Basalo.
      • The Court also granted the Defendant’s motion to strike the Plaintiff’s supplemental Rule 26 expert witness disclosure for Nicholas Suite and untimely supplemental disclosure of Victoria Maria-Sekunda.

      Key Takeaway

      In determining whether a failure to disclose was substantially justified or harmless, the Court considers the non-disclosing party’s explanation for the failure, the importance of the information, and any prejudice to the opposing party if the information were admitted.

      Case Details:

      Case Caption: Olenik V. Carnival Corporation
      Docket Number: 1:25cv20901
      Court Name: United States District Court, Florida Southern
      Order Date: April 03, 2026
    2. Neurology Expert’s Legal Theories Excluded

      Neurology Expert’s Legal Theories Excluded

      J. M. was diagnosed with epilepsy in sixth grade. His condition was treated with multiple medications, but he continued to have breakthrough seizures. Sam’s Law (HB 684) requires all Texas public school personnel to be trained in the recognition of seizures and providing seizure first aid.

      On August 24, 2022, J. M. had a seizure while running on the school’s track. The school called his mother Apryl Mendoza to notify her that J. M. was seizing and that emergency medical services were in route. Apryl called Gabriel Mendoza, and when he arrived at the scene, J. M. had been seizing for approximately seventeen minutes and had not received his prescribed dose of nasal midazolam. Emergency medical personnel arrived and began performing CPR on J. M. before transporting him to the hospital. He died the following day at the age of fourteen.

      In this disability discrimination case, Plaintiffs sought to recover for injuries allegedly resulting from the prolonged seizure of fourteen-year-old J.M. while he was at school, and who later died as a result. Defendant is the school district where the alleged events took place.

      Defendant filed three motions to exclude Plaintiffs’ retained experts Dr. Dave Shahani, Ms. Monica Porras, and Dr. Francis Sheboy.

      Neurology Expert Witness

      Dr. Dave Naresh Shahani is a licensed and practicing physician, board-certified by the American Board of Psychiatry and Neurology with special qualification in Child Neurology and Epilepsy. His practice is focused on the diagnosis and management of children and adolescents with neurologic conditions and intractable epilepsy.

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

      Nursing Expert Witness

      Monica Porras, MSN, RN, NCSN has been an active licensed nurse since 2006 and specializes in pediatrics with a focus in school nursing. She has served as a school nurse for the last 9 years of her career. She is a Nationally Certified School Nurse.

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

      Education Expert Witness

      Francis N. Sheboy has 33 years of professional experience in public education. As an educator, she served as a high school social studies teacher; high school assistant principal and principal; assistant superintendent for curriculum, instruction, personnel, and technology; and superintendent of schools.

      His educational background included a bachelor’s degree in social studies education, a master’s degree in social studies education, a certificate program in educational administration with a focus on supervision and evaluation, and a doctoral degree in educational leadership, management, and policy from Seton Hall University in South Orange, New Jersey.

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

      Discussion by the Court

      Dave Shahani

      Defendant argued that Shahani’s November 2025 expert report “transforms previously uncertain factual points into definitive assertions,” and introduced “legal theories of ‘intentional discrimination’ and ‘deliberate indifference’” that were not in his previous June 2024 report.

      The Court agreed with Defendant that these are legal conclusions and should be excluded as irrelevant and unhelpful to the trier of fact.

      Defendant also asserted that Shahani’s discussion of Sam’s Law, found in both the June 2024 and November 2025 reports, should be excluded because “whether school personnel complied with statutory training requirements or internal policies is a legal and factual question for the Court and jury.”

      Shahani may discuss Sam’s Law in the context of his medical expertise, and may provide his opinion as to the facts of the case within that context. This includes how the law might relate to his testimony regarding the guidelines set out by the American Epilepsy Society or J. M.’s seizure action plan. However, Shahani cannot testify that “[J. M.] was not treated per the standard of care outlines by Sam’s Law.” First, because this is an impermissible legal conclusion, and second, because Defendant is correct that Sam’s Law does not provide a standard of care, such testimony would confuse and mislead the jury.

      Monica Porras

      Defendant also moved to exclude the testimony of Monica Porras, arguing that Porras’ testimony ‘substitutes legal conclusions and advocacy for expert analysis” and would “improperly instruct the jury on the law.” Porras’ November 2, 2025 report included testimony that a “knowing refusal to administer medication” constitutes “intentional discrimination or deliberate indifference under Title II of the ADA.” She then concluded that J. M. was “denied an ADA-protected accommodation” and “died as a result.”

      The Court agreed with the Plaintiffs that experts can opine as to industry standards and discuss whether conduct is consistent with those standards.

      As a result, testimony that a “knowing refusal to administer medication” constitutes “intentional discrimination or deliberate indifference under Title II of the ADA,” that J. M. was “denied an ADA-protected accommodation,” or any similar legal conclusions relating to the ADA was excluded.

      However, the Court refused to exclude testimony simply because it mentions the ADA within the context of Porras’ discussion of industry customs or practices related to her experience as a school nurse.

      Francis Sheboy

      Defendant moved to exclude the testimony of Plaintiffs’ expert Dr. Francis Sheboy because he “purports to offer opinions regarding the school’s compliance with federal disability laws and its alleged deliberate indifference.” Experts cannot offer legal conclusions in their testimony. As a result, any testimony by Sheboy containing legal conclusions, such as above, will be excluded. 

      Defendant also argued that Sheboy should not be able to opine as to J. M.’s disability status and eligibility under the ADA because he is not a medical doctor.

      Although Sheboy may discuss J. M.’s condition within the context of his experience in education administration, the Court held that statements like J. M.’s epilepsy and accompanying seizures “clearly constituted qualifying impairments that substantially limited major life activities” and “entitled him to protections under federal disability law” are legal conclusions that must be excluded.

      Held

      The Court agreed with Defendant that portions of each challenged expert’s testimony contain impermissible legal conclusions, are irrelevant, and risk confusing the jury. However, the Court also agreed with Plaintiffs that the appropriate remedy is limitation, not wholesale exclusion of the witnesses.

      Accordingly, the Court granted Defendant’s motions insofar as Plaintiffs’ experts will not be permitted to include any legal conclusions in their testimony, as explained above. This includes any testimony that states or applies ADA legal standards, or otherwise uses legal labels such as “deliberate indifference” or “intentional discrimination.” The Court denied Defendant’s motions to the extent they sought to exclude Plaintiffs’ experts and their opinions in their entirety.

      Key Takeaway

      Qualified experts are permitted to offer opinion testimony as to industry standards or norms and whether or not they were followed in a particular case, as long as such opinions involves questions of fact rather than purely legal matters.

      This could include the discussion of statutes, such as the ADA, in relation to how they relate to industry standards or practices, but cannot include legal conclusions relating to those statutes.

      Case Details:

      Case Caption: Mendoza V. Amarillo Independent School District
      Docket Number: 2:24cv169
      Court Name: United States District Court, Texas Northern
      Order Date: March 19, 2026
    3. Corrections Expert Barred From Testifying About Witness Credibility

      Corrections Expert Barred From Testifying About Witness Credibility

      Plaintiff Deoz Miller-Harris, formerly a detainee at the Onondaga County Justice Center (“OCJC”) alleged that the Defendants Onondaga County (the “County”) sheriff’s office employees Dustin Saddock, Ryan Whitmore, Anthony Tineo, Thomas Fodaro, Vedad Hujdur, and James Quigley (the “Individual Defendants”) violated his civil rights by using excessive force against him on September 16, 2021, and that the County negligently supervised, trained, and retained the Individual Defendants.

      Subsequently, the Defendants identified two expert witnesses they intended to call at trial: (1) retired sheriff Gerry D. Billy and (2) neurologist Dr. Robert Knapp. In response, Plaintiff filed a motion in limine seeking to limit the testimony of both experts.

      Corrections Expert Witness

      Gerry D. Billy completed six full terms (24 years) as the Sheriff of Licking County, Ohio, and has been in the profession of law enforcement and corrections for over three decades.

      In addition, he has authored a number of articles in national publications on jail, law enforcement and management related topics and he was also the co-author of Ohio’s Basic Correctional Officer’s Training curriculum.

      Furthermore, Billy has served as a consultant to the U.S. Department of Justice, the National Institute of Corrections, the Bureau of Justice Statistics, the Bureau of Indian Affairs, and the U.S. Attorney General’s Office.

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

      Neurology Expert Witness

      Robert Knapp is a neurologist Board Certified by the American Board of Psychiatry and Neurology. He received his medical degree from the University of Pittsburgh School of Medicine in 1982. He has been a practicing neurologist for over 40 years.

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

      Discussion by the Court

      a. Billy

      According to Defendants, Billy “will opine all actions of the sworn staff were commensurate with standard corrections training, procedures and practices, and were properly deployed to maintain safety and security.”

      However, Plaintiff contended that Billy should not be permitted to: (1) testify to a factual narrative, which would usurp the role of the witnesses; (2) offer his opinion about the credibility of other witnesses, which would usurp the role of the jury; or (3) provide an opinion on the ultimate issue in the case, i.e., whether Defendants used excessive force.

      In turn, Defendants clarified that Billy would not offer factual narratives, assess witness credibility, or provide ultimate legal conclusions. Instead, they explained that Billy’s testimony would focus on technical corrections practices beyond the understanding of laypersons, including force techniques employed by the deputies and whether such techniques conformed to professional standards.

      After considering both sides, the Court ruled that Billy was precluded from testifying to a factual narrative because he lacked personal knowledge of the underlying facts. Additionally, he was barred from assessing witness credibility or drawing legal conclusions. Nonetheless, the Court denied Plaintiff’s motion to the extent that he sought to preclude Billy’s testimony “in its entirety.”

      b. Knapp

      Plaintiff contended that Knapp should not be permitted to refer to specific instances of his past drug use, discuss post-incident psychiatric conditions such as grandiosity, depression, and mild homicidal ideations, or conflate psychiatric diagnoses with their symptoms. Conversely, Defendants argued that Knapp’s testimony about Plaintiff’s drug use was relevant to damages and alleged injuries, and his discussion of post-incident conditions would provide important context for evaluating the etiology of Plaintiff’s seizure disorder.

      After review, the Court held that Knapp could not testify regarding specific instances of the Plaintiff’s past drug use, as such testimony would be highly prejudicial, only marginally probative, and likely to confuse or mislead the jury. Nevertheless, the Court allowed Knapp to testify about the Plaintiff’s post-incident diagnoses because such expert testimony might assist in rebutting or mitigating damages.

      Held

      • The Court granted in part and denied in part the Plaintiff’s motion in limine to limit the testimony of Gerry D. Billy.
      • The Court granted in part and denied in part, without prejudice to renew at trial if necessary, the Plaintiff’s motion in limine to limit the testimony of Robert Knapp.

      Key Takeaway:

      When an expert intends to offer an opinion relevant to the application of a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.

      Case Details:

      Case Caption: Miller-Harris V. The County Of Onondaga
      Docket Number: 9:22cv1363
      Court Name: United States District Court, New York Northern
      Order Date: October 29, 2025
    4. Neurology Expert’s Testimony on Postoperative Complications Excluded

      Neurology Expert’s Testimony on Postoperative Complications Excluded

      This medical malpractice action is brought by Gladys Torres-Correa (“Plaintiff”) against Instituto de Ojos y Piel, Inc. and Dr. Miguel Santiago García, along with several unnamed insurers. After undergoing ophthalmic surgery performed by Defendants, Plaintiff allegedly developed a series of complications. 

      Consequently, Plaintiff claimed that those complications were caused by Defendants’ negligence. To prove her claims, Plaintiff intended to introduce at trial the expert witness testimony of Dr. José A. Rodríguez Robles.

      However, Defendants requested that the Court deem Rodríguez’s proffered testimony inadmissible.

      Neurology Expert Witness

      Dr. José Antonio Rodríguez Robles is a neurologist with extensive experience in alternative medicine.

      He did his doctorate in medicine and surgery at Ponce Health Sciences University.

      Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding José Rodríguez Robles’ expert testimony.  

      Discussion by the Court

      Defendants provided four reasons to exclude the testimony of Rodríguez. First, Defendants argued that Rodríguez is unqualified to offer expert opinions regarding the medical issues in this case, given that he is not an ophthalmologist, has no formal training in the field, and has never performed the surgeries Plaintiff received in this case. Second, Defendants asserted that Rodríguez has failed to adequately describe what he believes to be the applicable standard of care in this case. Third, Defendants contended that Rodríguez’s proffered testimony regarding causation is wholly conclusory and “outcome driven.” Finally, Defendants asserted that “Rodríguez’s report and his deposition testimony are devoid of any clinical evidence, specific findings or medical literature to support” his opinion.

      In the first report, Rodríguez listed the medical records he reviewed, described Plaintiff’s then-current symptoms, provided a diagnosis of Plaintiff’s condition, and made general reference to three scientific publications. However, the first report did not define the “adequate standard of care” or the “proper precautions” that Rodríguez believed were not observed by Defendants.

      The second report also summarized information contained in the first report, and included citations to ten legal and scientific references that Rodríguez consulted in forming his opinion, three of which were also included in the first report. At no point, however, does either report ever attempt to explain how the opinion of Rodríguez was informed by or related to any of the referenced scholarship.

      Rodríguez Fails to Identify the Applicable Standard of Care

      Rodríguez failed to provide any such evidence of a national standard of care, and Plaintiff openly conceded that fact.

      The deposition testimony of Rodríguez did not cure these deficiencies. Wherever Rodríguez was asked a direct and concrete question regarding the applicable standard of care during the deposition, he failed to articulate the relevant standard in any meaningful detail. 

      The Court held that these analytical gaps implicate the reliability of the proffered expert testimony, as Rodríguez provided no reasoned or detailed basis for the conclusions adopted in his reports. Furthermore, the absence of any reliable opinion testimony regarding the applicable standard of care also compromises the relevance of the proffered testimony.

      Rodríguez Failed to Provide Support for the Conclusion that Defendants Deviated from an Applicable Standard of Care, or that any such Deviation caused Plaintiff’s Injuries

      Even if Rodríguez had articulated an applicable standard of care, the proffered testimony still failed to provide a reasoned basis for the conclusion that Defendants breached any such applicable standard of care.

      In characterizing the opinion of Rodríguez as “outcome driven, as opposed to causation driven,” Defendants argued that Rodríguez improperly relied on the mere fact that Plaintiff sustained an injury to reach the conclusion that Defendants were negligent. The Court agreed. The opinion proffered by Rodríguez is entirely conclusory, as he failed to provide any substantive explanation of the “proper procedures” or the preferred surgical “technique” that allegedly went unheeded by Defendants. Nor did he ever explain how any such unstated acts or omissions caused Plaintiff to experience postoperative complications.

      When urged during the deposition to cite any evidence supporting the conclusion that Plaintiff’s injuries were caused by Defendants’ negligence, Rodríguez explained that his opinion was simply based on the fact that Plaintiff had sustained injuries. However, by indicating that Plaintiff’s injuries could have occurred even in the absence of any negligence, Rodríguez deposition testimony appears to undermine his own conclusory opinion that Defendants must have been negligent.

      Rodríguez Failed to Explain his Methodology or Provide Adequate Data to Support his Opinions

      In this case, the Court observed a significant analytical gap between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

      In the reports, Rodríguez made general reference to eight publications relating to matters of ophthalmology, as well as two publications regarding “legal and ethical issues in medical malpractice.”

      Yet the reports never provided any analysis whatsoever to explain the relationship between the sources cited in the reports and the conclusions drawn by Rodríguez. None of the conclusions reached by Rodríguez cite directly to any scientific literature; the sources in question are simply appended to the end of the reports without any internal citations or further explanation. The reports never quote any of the cited sources, never summarize their findings, and never describe what, if any, data was drawn from the cited scholarship. To determine whether the citations provide any support for the proffered opinion of Rodríguez would require pure speculation where, for instance, Rodríguez made general reference to a nearly 1000-page textbook without any further explanation of how he relied on that scholarship.

      Held

      The Court granted the Defendants’ motion to exclude the testimony of Dr. José A. Rodríguez Robles.

      Key Takeaway:

      In performing its gatekeeping function, the Court must determine whether the proffered expert opinion is “supported by an accepted methodology that is based on substantial scientific, technical, or other specialized knowledge.” The Court will not admit expert testimony that lacks “good grounds”: the admissibility of expert witness testimony is contingent upon whether the expert establishes “a valid scientific connection” between the data on which they have relied and the “pertinent inquiry” at issue in the case.

      In this case, there is a yawning “analytic gap” between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

      Case Details:

      Case Caption: Torres-Correa V. Instituto De Ojos Y Piel, Inc
      Docket Number: 3:23cv1025
      Court Name: United States District Court for the District of Puerto Rico
      Order Date: August 27, 2025
    5. Neurology Expert’s Testimony on the Future Anticipated Effects of SCA2 Admitted

      Neurology Expert’s Testimony on the Future Anticipated Effects of SCA2 Admitted

      Michael Braun filed a lawsuit against his former employer, Norton Healthcare, Inc., claiming that he was fired from his job as a Staff Pharmacist due to disability discrimination and retaliation. He alleged that this conduct violated the Americans with Disabilities Act (ADA).

      Subsequently, on November 29, 2024, Braun disclosed Dr. Mark Bazant as his treating physician and indicated that Bazant might be called as a witness.

      According to the disclosure, Bazant was retained to provide testimony regarding “the future anticipated effects of SCA2 on Plaintiff,” the “future anticipated treatment of Plaintiff’s SCA2,” and the “reasonable accommodations he recommended,” all “based on his medical training and his ongoing treatment of Plaintiff.”

      Nevertheless, Plaintiff denied that Bazant qualifies as an expert witness, asserting instead that Bazant is a treating physician who may testify only as a lay witness. In response, Defendant filed a motion to strike Bazant as an expert witness or, alternatively, to limit his testimony “only to what he directly observed while treating [Plaintiff].”

      Neurology Expert Witness

      Dr. Mark Paul Bazant, M.D., is a board-certified neurologist with Norton Neurology Services. Bazant earned his medical degree from the University of Nebraska College of Medicine in Omaha. He completed his residency in neurology and fellowship in clinical neurophysiology – electromyography (EMG) at the Indiana University School of Medicine in Indianapolis. His areas of special medical interest are EMG and neuromuscular neurology. Bazant is a member of the American Academy of Neurology and the American Association of Neuromuscular & Electrodiagnostic Medicine.

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

      Discussion by the Court

      Despite Plaintiff’s assertion that Bazant is not an expert witness, Plaintiff intended to call him to provide expert testimony

      The Plaintiff argued that the Court should deny the Defendant’s motion as moot, stating that he had not identified Bazant as an expert witness. However, the Court found that whether or not Bazant was formally designated as an expert was irrelevant to the disclosure requirements under Rule 26(a)(2). When a witness’ testimony will be based on scientific, technical, or other specialized knowledge, then a party cannot evade the requirements of Rule 26(a)(2) simply by designating that witness as a lay witness.

      The Court held that Bazant’s proposed testimony qualified as expert testimony under Rule 26(a)(2) because it relied on medical judgments based on his specialized knowledge and training. While Bazant’s testimony about his treatment of the Plaintiff and his efforts to assist Plaintiff in obtaining a reasonable accommodation could be considered lay testimony under Rule 701, the rest of his testimony went beyond that.

      Specifically, Bazant was expected to testify about the future anticipated effects of SCA2 on the Plaintiff, the future course of treatment, and the reasonable accommodations he recommended—all based on his medical training and his ongoing treatment of the Plaintiff. The Court concluded that this portion of his testimony clearly involved expert opinions requiring proper disclosure under Rule 26(a)(2).

      Plaintiff’s disclosure of Bazant did not comply with Rule 26(a)(2)(C)

      In this case, the Court found that the Plaintiff’s disclosure of Bazant was deficient under Rule 26(a)(2)(C). The disclosure failed to include a summary of the facts and opinions that Bazant was expected to testify about. Instead, it merely listed the general topics of his anticipated testimony without providing his actual opinions or conclusions relevant to the case. Furthermore, the disclosure did not explain the factual basis on which Bazant formed his opinions. As a result, the Court concluded that the Plaintiff had not satisfied the requirements of Rule 26(a)(2)(C).

      Although Plaintiff’s noncompliance with Rule 26(a)(2)(C) was harmless, the Court permitted Plaintiff to remedy the deficiency of his disclosure

      If the Defendant had already deposed Bazant without access to all the information related to his opinions on the Plaintiff’s future treatment, impairments, and recommended accommodations, it might have resulted in unfair surprise. However, the Court could not determine from the record whether Bazant had actually been deposed. The fact that the Defendant filed a Motion to Strike based solely on the Plaintiff’s disclosure suggested that the Defendant had recognized the disclosure’s deficiencies early enough to avoid being unfairly surprised. Additionally, neither party cited any of Bazant’s opinions in support of a motion. Therefore, the Court concluded that the Defendant was not unfairly surprised by the Plaintiff’s inadequate disclosure.

      The Court also considered the importance of Bazant’s testimony. While the significance of the evidence could be argued in both directions, courts generally hold that the more important the testimony, the more it weighs in favor of the party who disclosed the witness. Since the Plaintiff sought relief for the Defendant’s alleged failure to accommodate his condition under the Americans with Disabilities Act, expert testimony on reasonable and necessary accommodations was considered important to the Plaintiff’s claim.

      Lastly, the Court evaluated the Plaintiff’s explanation for failing to adequately disclose Bazant as an expert witness. The Plaintiff argued that Bazant was not disclosed as an expert because he was a treating physician and therefore should be treated as a lay witness not subject to Rule 26(a)(2)(C). However, because the legal standards under Rule 26(a)(2)(C) had become more settled since the rule’s amendment, the Court found the Plaintiff’s explanation to be insufficient.

      Taking these factors together, the Court held that Plaintiff’s mistake was harmless. The Court, consequently, permitted Plaintiff to supplement his disclosure of Bazant to remedy the deficiencies while bearing in mind the requirements of Rule 26(a)(2)(C).

      Held

      The Court denied the Defendant’s motion to strike the testimony of Mark Bazant without prejudice.

      Key Takeaway:

      Under Rule 701, a lay witness may testify in the form of an opinion only if it is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Thus, a witness that provides opinion testimony beyond the scope of Rule 701 must be disclosed under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Treating physicians may provide lay opinion testimony under Rule 701 provided such testimony is based on their first-hand observations and treatments of their patients.

      Here, the Court held that Bazant’s intended testimony is expert testimony governed by Rule 26(a)(2) because it includes medical judgments based on his specialized knowledge and training.

      Case Details:

      Case Caption: Braun V. Norton Healthcare, Inc.
      Docket Number: 3:24cv39
      Court Name: United States District Court, Kentucky Western
      Order Date: June 17, 2025
    6. Neurology Expert’s Opinions on Medical Causation Are Not Outside the Scope of His Expertise  

      Neurology Expert’s Opinions on Medical Causation Are Not Outside the Scope of His Expertise  

      This civil rights action stems from the in-custody death of Kimberley Morrissey-Scalia while a pretrial detainee in Lerdo Pre-Trial Facility in Kern County.

      Plaintiffs filed a motion to preclude Defendants’ expert, Michael E. Gold, M.D., “from: (1) testifying to any opinions on medical causation that are outside the scope of his expertise; and (2) testifying as to his inadmissible legal conclusions – i.e., [his] legal opinions on ultimate issues of law.”

      Neurology Expert Witness

      Michael E. Gold is a physician licensed to practice medicine in the State of California and is Board certified in neurology. He obtained his medical degree from University of Illinois School of Medicine in 1981. He received his California State Medical license in July 1982 and underwent a residency in neurology at UCLA Neuropsychiatric Institute that concluded in 1985. Prior to that, he interned in internal medicine from 1981-1982 at UCLA.

      He became board-certified by the American Board of Psychiatry and Neurology in 1998. He operated as Section Head of the Department of Neurology at UCLA-Santa Monica Hospital and Medical Center from 1990 to 1996 and was an attending physician in that same department up until 2009. Gold is an Associate Clinical professor at UCLA Hospital and Neuropsychiatric Institute. He is a Qualified Medical Examiner for the State of California Worker’s Compensation Board.

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

      Discussion by the Court

      1. Opinions on Medical Causation

      Plaintiffs argued that Gold should not be permitted to opine that Scalia’s death was “due to an end-stage disease process, namely, liver cirrhosis and resultant coagulopathy” because he lacks expertise in those areas. Second, Plaintiffs filed a motion to exclude the opinion that “[h]ad Scalia been brought to Kern Medical Center after the first visit to the infirmary following the first fall, it would not have made a difference in the outcome.”

      Qualification

      Although Plaintiffs argued that Gold “is neither a neurosurgeon, nor an emergency medicine physician, nor a hepatologist, nor a hematologist, nor an expert in liver disease, cirrhosis, nor, inter alia, coagulopathy,” the Court held that the medical concepts implicated here do not exceed his expertise.

      In preparing his report, Gold reviewed relevant evidence including Lerdo Pre-trial Facility records of Scalia, the Coroner’s Report of Eugene Carpenter, Jr., and Kern Medical Center medical records and radiology studies.

      Moreover, the Court added that Gold’s experience as a neurologist is particularly relevant to inform his judgement in this case—where trauma to the head occurred which may have implicated neurological function—and his examination of the medical records and other case-related documents provide a foundation for the opinions expressed in his report. “[P]hysicians would accept [his testimony] as useful and reliable.”

      In his report, Gold considered several possible medical causes for Scalia’s death. For example, he considered brain compression and subsequent herniation. Gold also considered whether Scalia’s subdural hematoma was more consistent with cerebral atrophy due to an underlying condition.

      Gold also found that “there is evidence on CT scan and neuroradiology interpretation that part of the subdural hematoma was ‘chronic,’ indicating that head trauma preexisted prior to [Scalia’s] incarceration.”

      In his report, Gold relied on these findings and conclusions to support his opinion that “a minor, initially uncomplicated ‘bump’ on the head occurred during the progressive medical deterioration of Scalia that ultimately resulted in death due to an end-stage disease process, namely, liver cirrhosis and resultant coagulopathy.”

      Therefore, Gold’s findings and analysis provide support for his conclusion that Scalia’s death was not due to “the absence of timely intervention in the treatment of her subdural hematoma.”

      Legal Conclusions

      Defendants did not oppose Plaintiffs’ motion insofar as it sought to exclude Gold’s testimony as to legal conclusions. Instead, they requested a bilateral order requiring all experts to refrain from using legal conclusions in their testimony.

      The Court granted Plaintiffs’ motion in part, to preclude testimony by Gold as to legal conclusions. Here, medical expert testimony is appropriate to establish medical diagnoses and medical causation. Gold may thus offer opinions as to such matters, consistent with his expert report. However, neither Gold nor other medical experts shall testify at trial as to whether Defendants’ conduct was deliberately indifferent, reckless, unconstitutional, intentional, or in conscious disregard of the decedent’s rights.

      Held

      The Court granted in part and denied in part the Plaintiffs’ motion in limine to exclude certain testimony of Michael E. Gold.

      Key Takeaway:

      Gold’s opinions in this case were based on his education, training, and experience as a board-certified neurologist and his review of the relevant records. Under Daubert, the district court is tasked with “ensuring that junk science is kept out of the federal courtroom” by acting as a gatekeeper. The judge should “screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.”

      The Court held that Gold’s medical opinions met these gatekeeping tests. 

      Case Details:

      Case Caption: Perry Et Al V. County Of Kern Et Al
      Docket Number: 1:17cv1097
      Court Name: United States District Court, California Eastern
      Order Date: April 21, 2025
    7. Neurology Expert Witness’ Injury Causation Testimony Admitted

      Neurology Expert Witness’ Injury Causation Testimony Admitted

      Plaintiff, William Harrison Sims’ claims arise out of an October 24, 2019, two-vehicle collision involving Plaintiff, who was operating the 2004 BMW (“Subject BMW”). Tameca Harris-Jackson (“Harris-Jackson”) was operating the Hyundai that collided with the Subject BMW. Plaintiff alleges he sustained “severe, permanent, and life-altering injuries” due to the driver-side Takata airbag unexpectedly rupturing and shooting “metal shrapnel into his face and body.”

       Defendants procured and installed the airbag inflator during the process of “designing, manufacturing, assembling, and producing” the vehicle. Plaintiff brought this action for damages against both Defendants BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), alleging strict liability and negligence from procuring and installing the airbag.

      BMW of North America, LLC and Bayerische Motoren Werke AG (The
      “BMW Defendants”) requested the Court to preclude the injury causation
      testimony of Plaintiff’s neurological expert Paul Buechel, M.D., P.A. because he is not qualified to offer injury causation opinions.

      Neurology Expert Witness

      Paul Buechel is a board-certified neurologist with over 33 years of experience. His medical degree is from Syracuse. His residency was done at University of Kentucky.

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

      Discussion by the Court

      Defendants argued that Buechel is not a biomechanical engineer and that sufficient facts and data do not support his opinions, nor are they based on a reliable methodology. They also averred that Buechel did “no testing” without specifying what testing should have been performed. And Defendants contended that Buechel failed to rule out contact with the steering wheel or dash as the cause of Plaintiff’s neurological injuries. As such, Defendants characterized Buechel’s opinions as pure ipse dixit of an expert based on too great of an analytical gap. 

      In the introductory section of their Motion, Defendants argued that Buechel testified at deposition that Plaintiff could have sustained “a traumatic brain injury from other blunt trauma to the head.” They contended that this undercuts the reliability of his opinion that the defective inflator and the shrapnel surgically removed from Plaintiff caused his TBI. Defendants also cited Buechel’s deposition, in which he stated he did not inspect the shrapnel. And the defense avers that Plaintiff’s nasal septal deviation, which his ear, nose, and throat physician felt was secondary to striking the wheel or dash, contradicts Buechel’s causation opinion. 

      Buechel is a board-certified neurologist who conducted two independent medical evaluations of Plaintiff one year apart. He offered an assessment of Plaintiff’s injuries and limitations based on the medical records, patient history, and his independent medical evaluations. Buechel then outlined Plaintiff’s future necessary and reasonable medical needs.

      Defendants did not contest Buechel’s qualifications to render these opinions, the reliability of the principles and methodology employed by Buechel, or that his testimony about Plaintiff’s injuries and future medical needs is helpful to the jury.

      Analysis

      Defendants only contested whether Buechel’s opinion that, “[r]egarding causality, in the greatest medical probability, it is [his] opinion that each of these listed diagnoses and symptoms are indeed directly related to the injuries he sustained in the vehicle airbag explosion which occurred on 10/24/19.”

      At deposition, Buechel clarified that even assuming the ENT is correct that Plaintiff’s nasal septal deviation was caused by Plaintiff’s face making contact with the wheel or dash, this is still due to the defective inflator sending shrapnel through the airbag and preventing it from protecting the Plaintiff. Therefore, injuries sustained by contacting the wheel or dash are caused by the airbag exploding. Buechel did not concede that his injury causation opinion is unreliable because the ENT found a septal deviation could have been caused by striking the wheel or dash. To the contrary, Buechel observed that Plaintiff’s nasal bridge exam “looked well on the photographs,” and typically, one would expect a laceration or a bridge abrasion when the patient’s face strikes the wheel or dash.

      The Court finds the methodology employed by Buechel to support his injury causation opinion is the product of reliable principles and methods properly applied to the facts of the case. As Plaintiff observes in his response, Buechel reviewed the medical records and evidence collected from the scene. He considered the nature of the injuries as “an indication of the size of the shrapnel” along with the “depth of penetration.” Buechel does not need to be trained as a biomechanical engineer to render his opinions, despite Defendants’ bald assertion.

      Held

      The Court denied the Defendants’ motion to preclude the testimony of Dr. Paul Buechel.

      Key Takeaway:

      Buechel does not need to be trained as a biomechanical engineer to render his opinions, despite Defendants’ bald assertion. Buechel’s opinions rest upon his training and experience, combined with the medical evidence showing the size of lacerations caused by the shrapnel and the depth of penetration. This is more than adequate to satisfy Daubert and its progeny. 

      Case Details:

      Case Caption: Sims V. BMW Of North America LLC
      Docket Number: 6:22cv1685
      Court: United States District Court, Florida Middle
      Order Date: January 13, 2025
    8. Neurology Expert Witness Barred from Opining on Effective Communication

      Neurology Expert Witness Barred from Opining on Effective Communication

      Plaintiffs Jennifer Le Pape (“Mother”) and Frederic Le Pape (“Father”) (collectively, “Parents”), on behalf of their child, Alexandre Le Pape (“Alex”), and Alex, individually, (collectively, “Plaintiffs”) bring intentional discrimination claims under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) against Defendant Lower Merion School District (the “District”), alleging that the District failed to take appropriate steps to ensure that communications with Alex were as effective as communications with others and failed to provide Alex with the appropriate auxiliary aids and services necessary to afford Alex an equal opportunity to participate in and enjoy the benefit of various school services and programming.

      Alex is a nonspeaker. He learned to communicate using a letterboard and communication support person (“letterboard”). The District precluded Alex from using a letterboard and communication partner at school.

      The District filed objections to the qualifications of Plaintiffs’ anticipated expert witnesses—Dr. William Young, Dr. Mary Stephens, and Vanessa von Hagen—to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex.

      Young, Stephens, and Von Hagen did not submit expert reports in this case, as Plaintiffs identified these three witnesses pursuant to Federal Rule of Civil Procedure 26(a)(2)(C) as experts who have not been retained or specially employed to provide expert testimony. 

      Young has provided both in-patient and out-patient treatment for Alex’s migraines since May 2019. Stephens has been Alex’s primary care doctor since Spring 2019, and she has also interacted with Alex “through Alex’s contribution to the education of doctors concerning neurodiversity” while von Hagen served as the lead clinician on Alex’s home behavior team for six years, beginning in 2012.

      Neurology Expert Witness

      William Young is board-certified in neurology, psychiatry, and headache medicine, and he is the director of the Jefferson Headache Center of Jefferson University Hospitals. 

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

      Family Medicine Expert Witness

      Mary M. Stephens is board-certified in family medicine and is the director of Jefferson University Hospitals’ Continuing Care Program. She has “extensive experience . . . providing medical services to neurodiverse individuals in medical settings.” 

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

      Behavioral Science Expert Witness

      Vanessa von Hagen is a board-certified behavior analyst with more than 13 years of experience implementing, planning, and developing client-specific programming and interventions based on the principles of applied behavior analysis.

      Discover more cases with Vanessa von Hagen as an expert witness by ordering his comprehensive Expert Witness Profile report.

      Discussion by the Court

      William Young

      Plaintiffs intended to call Young to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex” or “at a minimum,” to testify “as to why he deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of his medical treatment.”

      The District argued that Young is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because he has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that Young’s alternative opinion as to why he determined Alex’s communication through Spelling to Communicate (S2C) to be sufficiently reliable for purposes of his medical treatment, which Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

      Aside from his interactions with Alex using the letterboard and communication partner, Young does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication (“AAC”), facilitated communication, or other facilitator-dependent communication methods used with minimally verbal or non-verbal autistic individuals like Alex. Accordingly, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Young has the necessary expertise to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

      Mary Stephens

      Plaintiffs intended to call Stephens to testify that “Alex’s communication with the letter board and communication partner is effective communication for Alex and that his communications on it are his own” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of [her] medical treatment.”

      As it argues with respect to Young, the District similarly contended that Stephens is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further argued that Stephens’ alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her medical treatment, which Plaintiffs again proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

      Since Stephens does not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, AAC, or facilitator-dependent communication techniques, the Court found that Plaintiffs have failed to establish by a preponderance of the evidence that Stephens has the necessary expertise to opine on the
      efficacy of Alex’s use of a letterboard and communication partner to communicate.

      Vanessa von Hagen

      Plaintiffs intended to call von Hagen to testify that “Alex’s communication with the letter board is effective, that he communicates his wants, needs, and thoughts with it, and that he could not do so without it” or “at a minimum,” to testify “as to why she deemed Alex’s communication with the letter board and communication partner sufficiently reliable for purposes of her clinical work with him.”

      The District argued that, like Young and Stephens, von Hagen is not qualified to offer an opinion on the efficacy of the letterboard and communication partner as a means of communication for Alex because she has no education, training, or experience in speech-language pathology or the area of “effective communication.” The District further contended that von Hagen’s alternative opinion as to why she determined Alex’s communication through S2C to be sufficiently reliable for purposes of her clinical work, which as with Young and Stephens, Plaintiffs proposed for the first time in their letter brief, is “irrelevant as to whether the District knowingly violated Alex’s rights for deciding not to provide the S2C methodology during the 2017-18 time frame.”

      The Scope of von Hagen’s Clinical Experience is Not Clear

      While von Hagen does not appear to have any education or research experience in the fields of speech-language pathology, AAC, or facilitator-dependent communication techniques, the scope of von Hagen’s “clinical experience . . . concerning communication strategies for persons with autism” is not clear from Plaintiffs’ pretrial memorandum or letter brief, von Hagen’s curriculum vitae, or von Hagen’s testimony at the due process hearing.

      The Court cannot yet ascertain whether von Hagen’s clinical experience is sufficient to qualify her to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

      Held

      The Court held that Young and Stephens will not be permitted to opine on the efficacy of the letterboard and communication partner as a communication method for Alex, which includes any testimony about their determinations that Alex’s communication with a letterboard and communication partner is sufficiently reliable for purposes of their medical treatment of Alex. It reserves ruling on the District’s objection to the qualifications of von Hagen to opine on the efficacy of Alex’s use of a letterboard and communication partner to communicate.

      Key Takeaway:

      Defendants argued that Young, Stephens and von Hagen lacked the qualifications to opine on the efficacy of the letterboard and communication partner as a means of communication for Alex. 

      While the scope of von Hagen’s experience was not clear, both Young and Stephens did not appear to have any educational background, training, or clinical, research, or other experience related to speech-language pathology, augmentative and alternative communication, or facilitator-dependent communication techniques.

      Please refer to the blog previously published about this case:

      Economics Expert Witness Allowed to Opine on Educational Loss

      Case Caption: J.L. Et Al V. Lower Merion School District
      Docket Number: 2:20cv1416
      Court: United States District Court, Pennsylvania Eastern
      Order Date: January 6, 2025
    9. Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

      Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

      By this suit, Plaintiff Anthony Guernon brought claims of negligence and negligence per se against Defendant Joel Barroso and for vicarious liability against Barroso’s Employer, Stevens Transport, Inc. (“Stevens Transport”), arising out of a motor vehicle accident which occurred on May 3, 2021, In El Paso County, Colorado. Following several extensions, the parties were required to designate rebuttal experts on or before August 26, 2024.

      On that date, Defendants submitted a document in which they designated the following expert witnesses:

      1. Jon Karraker, a certified public accountant;

      2. Dr. Bruce Morgenstern, a neurologist;

      3. Dr. Philip Stull, an orthopedic surgeon;

      4. Margot Burns, a rehabilitation specialist and life care planner; and

      5. James Desmond, an expert on the standard of care in the trucking industry.

      Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise.

      Accounting Expert Witness

      Jon Karraker is an expert witness in the field of accounting of personal injury losses in both the private and business sector.

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

      Neurology Expert Witness

      Bruce Morgenstern is a physician licensed to practice in the State of Colorado and is board certified and specializes in neurology.

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

      Orthopedic Surgery Expert Witness

      Philip Stull completed his residency in orthopedic surgery at the New York Orthopedic Hospital/Columbia-Presbyterian Medical Center in New York City and graduated in 1993. He then received specialized training in sports medicine by completing a year-long fellowship at the University of Colorado and Aspen Valley Hospital in Aspen, Colorado. He has experience treating professional, collegiate, high school, and all levels of recreational athletes. 

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

      Vocational Rehabilitation Expert Witness

      Margot Burns is a Clinical Case Manager, Clinical Supervisor, Behavioral and Vocational Specialist encompassing all phases of brain injury rehabilitation from acute neurobehavioral and coma management to post-acute and outpatient, community-based services. Burns holds a Master of Science in Rehabilitation Counseling and a Certificate in Life Care Planning.

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

      Safety Expert Witness

      James Desmond is a Certified Director of Safety Certificate, an OSHA 30 Hour General Industry Certificate, and a Driver Improvement Instructor/Trainer Certificate. Desmond is a Department of Transportation Designated Employer Representative, holds a Commercial Drivers’ License and is the President of Coastal Carrier Compliance and Consulting.

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

      Discussion by the Court

      The Court cannot properly assess these arguments, however, because they are stated at such a high level of generality that they present no argument at all. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”

      Moreover, the Court held that the difficulty in analyzing what little argument is discernable in the motion is compounded by Guernon’s failure to provide the Court with the allegedly problematic defense expert reports, his own experts’ reports for purposes of comparison, or any of the experts’ curriculum vitae.

      Guernon’s belated submission of the challenged reports in connection with his reply brief does not cure his initial failure to produce them, especially when the reply does nothing more than invite the Court to peruse the documents itself for evidence in support of his prior, inadequate arguments. As a result, the Court denied the motion to strike the designations of these four experts as improper.

      With regard to the fifth expert, Desmond, who will testify to the standard of care in the trucking industry, Guernon asserted his opinion is irrelevant because Stevens Transport has conceded vicarious liability for the actions of Barroso. Guernon pointed to nothing in the record demonstrating Stevens Transport has made such a concession, and Stevens Transport denies it has done anything other than acknowledge that if – and only if –Barroso ultimately is found liable for negligence, it will be vicariously liable for any damages caused thereby. The issues addressed by Desmond’s report therefore appear to remain in play in this lawsuit. Therefore, the Court denied the motion to strike his testimony.

      Held

      The Court denied the Plaintiff’s motion to strike or exclude the opinions untimely and improperly disclosed.

      Key Takeaway:

      Guernon objected that Karraker, Morgenstern and Stull, and Burns actually are affirmative, not rebuttal, witnesses, and therefore their designations are untimely and should be stricken. He further claimed Karraker and Morgenstern asserted opinions beyond their expertise. Essentially, Guernon has done little more than state what he seeks to prove – that the witnesses are actually affirmative experts and/or that their opinions exceed their proper area of expertise. The Court is neither required nor inclined to consider such “cursory, unsupported, or otherwise inadequately briefed arguments.”

      Case Details:

      Case Caption: Guernon Et Al V. Barroso Et Al
      Docket Number: 1:22cv2547
      Court: United States District Court for the District of Colorado
      Order Date: October 23, 2024