Expert Witness Profiler

Category: Psychology Expert Witness

  • Psychology Expert’s Testimony About PICS Limited

    Psychology Expert’s Testimony About PICS Limited

    Plaintiff Mark Craighead (“Plaintiff” or “Craighead”) brought this wrongful conviction action against Defendants for, among other things, malicious prosecution and coerced confession related to his conviction for the 1997 Murder of Chole Pruett.

    Plaintiff sought damages for mental and emotional injuries allegedly caused by his arrest, interrogation, conviction, and incarceration.

    The Plaintiff disclosed Errol Liverpool, his treating counselor, who treated him for nearly nineteen months and diagnosed him with Post-Traumatic Stress Disorder (PTSD) and adjustment disorder. Defendants retained Dr. Sami Farhat to compile a forensic rebuttal report in which he concluded that he could not substantiate a clear loss of functional impairment or significant psychological injury resulting from Craighead’s wrongful incarceration.

    Dr. Steven Farmilant, Plaintiff’s rebuttal expert, administered a series of diagnostic tests, diagnosed Plaintiff with Complex Post-Traumatic Stress Disorder (CPTSD) and major depressive disorder, and subsequently compiled a surrebuttal expert report in which he concluded that Plaintiff’s diagnoses were attributable to his wrongful incarceration.

    Defendants filed motions to strike the testimony of experts Errol Liverpool and Steven Farmilant while Plaintiff filed a motion to strike the opinions of Defendants’ retained expert, Dr. Sami Farhat.

    Mental Health Expert Witness

    Dr. Errol E. Liverpool has been a licensed professional counselor for many years. He got his Ph.D. in counselor education from an accredited university in 2001.

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

    Psychology Expert Witnesses

    Dr. Steven R. Farmilant received his MA in counseling psychology in 1992 and his doctor of psychology in 1995, and has been a licensed clinical psychologist since 1997. He taught courses at the Adler School of Professional Psychology for 15 years, including courses in trauma and victimology.

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

    Sami Farhat, Ph.D., is a clinical and forensic psychologist based in the Metro Detroit region of Michigan. Farhat obtained his Ph.D. from the University of Detroit Mercy.

    He completed a postdoctoral fellowship in Forensic Psychology at the Arkansas State Hospital through the University of Arkansas for Medical Sciences (UAMS), where he was subsequently appointed as Assistant Professor of Psychiatry conducting court ordered evaluations and serving as an expert witness. He participated in training and education, including supervising doctoral interns and presenting at the state wide training for community evaluators. During his time with UAMS, he also maintained a part time private practice where he conducted criminal and disability evaluations.

    Gain a comprehensive understanding of Sami Farhat’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    A. Errol E. Liverpool

    Defendants argued that Liverpool is not qualified to diagnose PTSD or offer opinions concerning its cause because he is a licensed professional counselor rather than a psychologist, psychiatrist, or forensic clinician; has not published on PTSD or trauma; lacked forensic training; and testified that he was appearing as a treating clinician rather than an expert witness.

    Defendants further challenged the reliability of Liverpool’s PTSD diagnosis because he made it during the first treatment session, did not conduct a structured diagnostic interview or symptom-validity testing, did not review collateral records, and was unfamiliar with certain provisions of the DSM-5-TR.

    The Court found that Liverpool may testify as to Craighead’s PTSD diagnosis and treatment. His opinions regarding his time as Plaintiff’s treating clinician define the scope of his testimony; they do not disqualify him from offering opinions formed during treatment altogether.

    Defendants’ attacks on Liverpool’s PTSD diagnosis go to weight, not Liverpool’s overall qualification to testify as an expert on Craighead’s treatment and PTSD diagnosis, and Defendants are free to challenge its veracity during cross-examination at trial. A treating provider may rely on interviews, reported history, observed symptoms, and the course of treatment in offering opinions.

    The Court further held that it will not prohibit Plaintiff from eliciting Liverpool’s causation opinion attributing Craighead’s PTSD diagnosis to his wrongful incarceration.

    Accordingly, Liverpool may testify that, in his clinical opinion formed during the course of treatment, Plaintiff’s arrest and incarceration caused or contributed to the PTSD and related symptoms he treated. His testimony must remain confined to opinions formed during treatment and based on the clinical history, observations, training, and experience he relied upon in treating Plaintiff; he may not offer causation opinions developed at counsel’s request or from sources extraneous to that treatment.

    B. Sami Farhat

    Plaintiff argued that Farhat relied on incomplete data, offered only a “null” opinion, focused on functional impairment Plaintiff does not claim, and prepared an untimely surrebuttal.

    The Court found that Farhat may offer opinions as to his timely rebuttal report, subject to certain limitations, and that he may not testify as to any opinions offered in his notes critiquing Farmilant’s report.

    With respect to Farhat’s rebuttal report, his interview and record review provide a reasonable basis for an evaluation-specific opinion. Rule 702 does not require an expert to review every available record or contact every collateral witness before offering an opinion. The omitted treatment records and family interviews are proper subjects for cross-examination.

    The Court held that Farhat may describe his examination, the materials he considered, his clinical observations, and his conclusion that the information available to him did not substantiate clinically significant functional impairment or a diagnosable psychological condition. He may not offer the broader opinion that Plaintiff experienced no functional impairment throughout the relevant period or equate the absence of clinically significant impairment during his evaluation with the absence of emotional injury or compensable damages. 

    Plaintiff also sought to exclude a surrebuttal critique prepared by Farhat after reviewing Farmilant’s report. Plaintiff argued that the critique was untimely, exceeded the scope of permissible rebuttal, and introduced new opinions after the expert-disclosure deadlines had passed.

    The Court will not excuse an unauthorized and untimely expert disclosure based on a materially inaccurate account of the discovery record. Accordingly, Farhat may explain and defend the opinions contained in his timely report only. He may not offer any additional opinions first expressed in his notes critiquing Farmilant’s rebuttal.

    C. Steven Farmilant

    Defendants challenged Farmilant’s qualifications, SIMS and PAI analysis, CPTSD diagnosis, and causation opinion.

    The Court found that Farmilant is qualified. He has been a licensed clinical psychologist since 1997, taught trauma and victimology, and provides clinical and forensic trauma services. The absence of board certification, memberships, or publications on the precise subjects affects weight, not qualification.

    The testing disputes also go to weight. Farmilant explained how he integrated recognized instruments with records, interviews, observed behavior, and other indicators, including why the SIMS did not establish malingering and why the PAI coefficient did not support schizophrenia. Defendants may challenge the SIMS-score discrepancy, the supporting literature, the PAI interpretation, and the absence of CAPS-5 or PCL-5 testing; but Rule 702 does not require perfect methodology for expert testimony to be admissible.

    Farmilant may testify to CPTSD. Its absence from the DSM-5 is not dispositive because it appears in the ICD-11 and Farmilant explained the criteria applied.  Plaintiff does not intend to elicit PICS testimony. If it arises, Farmilant may describe Post Incarceration Syndrome (PICS) as a literature-based concept or PTSD subtype, but not as an official DSM-5 or ICD-11 diagnosis. Farmilant’s causation opinion is also admissible. He considered treatment and correctional records, collateral information concerning pre- and post-incarceration functioning, testing, and alternative stressors. Differential etiology requires consideration, not elimination, of every conceivable contributing cause. 

    The weight assigned to particular alternatives is for cross-examination.

    Held

    • The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Errol Liverpool. Liverpool may testify regarding PTSD diagnosis and treatment, longitudinal observations, Plaintiff’s disclosures and symptoms, causation, and treatment-related trauma concepts. He may not testify concerning adjustment disorder, Farhat’s forensic methodology, or false-confession science.
    • The Court granted in part and denied in part the Plaintiff’s motion to bar Dr. Sami Farhat. Farhat may testify to his timely report subject to the stated limitations but may not offer opinions first expressed in the rebuttal critique.
    • The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Steven Farmilant. Farmilant may testify regarding his diagnoses, validity testing and malingering analysis, and causation. Any PICS testimony is limited as stated above.

    Key Takeaway

     An expert’s factual foundation must be sufficient for the particular opinion offered, and the Court may prevent an expert from extending a limited dataset beyond what it can reliably support. 

    Please refer to the blog previously published about this case:

    Psychology Expert Allowed to Opine on False Confessions

    Case Details:

    Case Caption:Craighead V. Simon
    Docket Number:2:23cv12243
    Court Name:United States District Court, Michigan Eastern
    Order Date:July 21, 2026
  • Psychology Expert Allowed to Opine on False Confessions

    Psychology Expert Allowed to Opine on False Confessions

    Plaintiff Mark T. Craighead brought this action in connection to a 2002 wrongful conviction of manslaughter and possession of a firearm during the commission of a felony for the 1997 homicide of his friend Chole Pruett.

    Craighead was exonerated twenty-one years later, then he filed this federal civil rights action for malicious prosecution and violations of his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments against Defendants City of Detroit, Investigators Barbara Simon and James Fisher, Lieutenant Bob Jackson, and Polygraph Operator Andrew Sims.

    The parties offered the opinions of their respective experts on issues concerning general police practices; investigative decisions and techniques; polygraph examinations and false confessions.

    The parties filed cross-motions to exclude each other’s experts concerning investigation of the underlying crime, including the decision to pursue Craighead as a suspect, the conditions of his detention and/or arrest, the administration of a polygraph examination, and the circumstances surrounding his false confession.

    Law Enforcement Expert Witness

    Todd L. Mutchler has 38 years of law enforcement experience. He has vast knowledge and deep understanding of law enforcement operations; two years working in dispatch and 36 years as a sworn law enforcement officer with four different police departments.

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

    Polygraph Expert Witnesses

    Bradford J. Beyer, Ph.D. is a retired Special Agent of the Federal Bureau of Investigation (FBI) where he was employed for 27 years. He was certified by the FBI as a Polygraph Examiner for 18 years and as a Crisis Negotiator for 8 years.

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

    James B. McCloughan is experienced examiner with a demonstrated history of working in the law enforcement industry and over 25 years of experience in polygraph.

    Gain a comprehensive understanding of James McCloughan’s qualifications and casework history with his Expert Witness Profile report.

    Sleep Medicine Expert Witness

    Michel A. Cramer Bornemann was the former co-Director of the Minnesota Regional Sleep Disorders Center at Hennepin County Medical Center in Minneapolis, Minnesota. He was an Assistant Professor holding joint appointments in the Departments of Neurology and Medicine at the University of Minnesota Medical School. He was also a faculty instructor in the Department of Biomedical Engineering at the University of Minnesota Graduate School, Twin Cities.

    Bornemann has several ongoing research projects in the field of Sleep Disorders and has received funding from a wide variety of sources, including the National Institutes of Health, the Academic Health Center at the University of Minnesota, as well as from medical technology and pharmaceutical industries.

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

    Psychology Expert Witness

    Dr. Melissa Beth Russano is a professor of criminal justice and a research psychologist whose principal areas of research are investigative interviewing, interrogations, and confessions in law enforcement, military, and human intelligence settings.

    She has conducted research in those areas since 2002, published numerous peer-reviewed articles and chapters, developed a widely used laboratory paradigm for studying true and false confessions, trained local, state, and federal law enforcement officers, and received federal funding from the U.S. Department of Justice and U.S. Department of Defense for interrogation research.

    Gain a comprehensive understanding of Melissa Russano’s qualifications and casework history with her Expert Witness Profile report.

    Discussion by the Court

    Todd Mutchler

    Plaintiff retained Todd Mutchler to “provide his professional opinions regarding the investigation, arrest, and prosecution of Craighead” by “assessing whether there were deviations from generally accepted police practices in [DPD Investigators’] the investigation” into the June 27, 1997, shooting that resulted in the death of Chole Pruett.”

    Defendants sought to strike Mutchler’s opinions and exclude his testimony at trial because (1) he is unqualified and his opinions are unreliable; (2) he utilizes an incorrect standard to form his opinion; (3) he has not disclosed the standards and authorities upon which he relies; and (4) portions of his opinion are irrelevant and unfairly prejudicial.

    Analysis

    First, despite over 38 years of police experience, Mutchler is apparently unqualified to serve as Plaintiff’s police practices expert. Defendants seemed to misunderstand the function of Mutchler’s testimony, which is to “educate the jury as to standard police procedures in conducting investigations.”

    Under the same false premise, Defendants maintained that Mutchler failed to apply “specialized knowledge” to the fact of this case.

    Here, the Court is satisfied that Plaintiff has shown that Mutchler is qualified to address not just one, but several issues in this case within the scope of the expertise for which Plaintiff has offered him.

    Second, Defendants asserted that Mutchler applied a negligence, rather than intentional, affirmative conduct standard to Defendants’ conduct. Considering Plaintiff has already clarified the scope of his expert’s testimony, the Court is satisfied that Mutchler’s opinions will not exceed this scope.

    Third, Mutchler allegedly failed to satisfy the requirements outlined in Rule 26 because he did not disclose the standards and authorities upon which he relied.

    Plaintiff contended that the basis for Mutchler’s opinion is clear, and the Court agreed. In fact, looking to Mutchler’s expert report itself, he expressly stated that his “approach involves assessing the actions of law enforcement officers against widely accepted police practices, policies, and legal standards.”

    Finally, Defendants asserted that Mutchler provided opinions on the conduct of Non-Defendant officers, which is irrelevant and unfairly prejudicial. At this stage of the litigation, before the parties have fully briefed the motions in limine and the Court has ruled on those motions, the Court found Plaintiff’s concerns premature.

    The Court, however, granted Defendants’ request to strike any of Mutchler’s opinions regarding application of a negligence standard to the Complaint.

    Bradford Beyer

    Defendants retained Dr. Bradford Beyer to author two reports in this case. At a high level, he was to conduct a review “in light of the polygraph technique, law enforcement interview and interrogation methods, and the phenomenon of false confessions.”

    The Court found that given Beyer has “considerable experience in the field of criminology and because he will be testifying concerning a discrete area of police practices about which he has specialized knowledge,” his testimony is admissible.

    By the same token, the Court is also satisfied that Beyer’s background is sufficient to qualify him as an expert on investigative techniques and decisions, false confessions, and the associated risk factors.

    As for Plaintiff’s argument that Beyer offered opinions bearing on Plaintiff’s credibility, the Court agreed with Plaintiff and found such opinions improper.

    The Court’s preclusion also extends to any of Beyer’s opinions on ultimate issues in this case to the extent that those opinions include determinations of Defendants’ liability in this case, or lack thereof.

    Finally, Plaintiff argued that Beyer employed an improper methodology and he offered opinions that lacked foundation. The Court found otherwise. Plaintiff is correct that “police practices experts may opine on proper police procedure, but they must employ an appropriate methodology.”

    However, the Court did not find that Beyer relied upon improper methodology. As an example, Plaintiff pointed to Beyer’s opinion that “Investigator Fisher and Lt. Jackson’s investigative decision to start with Craighead bore obvious fruit as he went on to confess to the murder of Pruett and was then subsequently charged and convicted for his crime.” At most, the Court found that this implicates potential impermissible credibility determinations, which the Court has already precluded.

    Michel Bornemann

    Bornemann is a medical doctor who specializes in sleep medicine. Defendants retained him “to review case files in an attempt to provide an unbiased objective expert medical opinion as to whether sleep deprivation (and subsequent cognitive impairment) was a primary influence accounting for Mark Craighead’s false confession and subsequent wrongful conviction in 2002 pertaining to the 1997 murder of his friend, Chole Pruett.”

    Analysis

    According to Plaintiff, Bornemann relied on an incorrect sleep timeline in assessing whether Plaintiff experienced sleep deprivation that contributed to his false confession, therefore, the Court should bar his opinions.

    Bornemann considered Plaintiff’s Complaint and his witness statements; transcripts of the 2001 Walker hearing, jury trial, and evidentiary hearing, and October 1, 2025 hearing; and 2013 photographs of DPD’s 9th floor cells in preparing his report.

    As a result, the Court will not bar Bornemann’s opinions on this ground.

    Next, Plaintiff accused Bornemann of “making factual determinations regarding whether the Defendants engaged in conduct that prevented Craighead from sleeping while in custody.”

    Upon an independent review of the report in its entirety, the Court found that Bornemann’s opinions improperly entered the territory of questions reserved for the jury.

    To that end, Bornemann was precluded from offering any testimony regarding whether (1) Defendants were responsible for Craighead’s sleep deprivation or (2) there is “compelling evidence to support that insufficient sleep was a significant influence that eventually lead to Mark Craighead’s false confession.”

    James McCloughan

    Plaintiff retained McCloughan as a polygraph expert “to offer opinions on the propriety of polygraphing a subject who was as sleep-deprived as Plaintiff, and the impacts that Plaintiff’s sleep deprivation could have on his polygraph results.”

    A review of McCloughan’s expert report reveals that the entirety of his opinions concerns Sims’ alleged acts and overall conduct. The Court has determined that Sims was entitled to qualified immunity which means he is no longer a Defendant in this action.

    Accordingly, McCloughan’s opinions and any related testimony are not directed at any of the remaining issues in the case.

    Melissa Russano

    Craighead retained Russano as a false confessions expert to opine on the psychology behind interrogations, confessions, and the risk factors associated with false confessions.

    Russano’s expert report generally offers three categories of opinions. First, she explains the phenomenon of false confessions and the relevant social science research. First, she explained the phenomenon of false confessions and the relevant social science research. Second, she identified known risk factors for false confessions and discusses their potential application here. These risk factors include: “(a) prolonged custody, isolation, and interrogation; (b) physical abuse/threats of physical harm/physical discomfort/deprivation of basic necessities; (c) sleep deprivation; (d) multiple interrogators; (e) guilt-presumptive approach; (f) presentation of false/unreliable evidence; and (g) threats and promises.” Lastly, Russano explained a framework for assessing the reliability of confession evidence by considering dependent and independent corroboration.

    Analysis

    A. Qualifications

    Defendants argued that Russano is not qualified to offer case-specific opinions because she is a research psychologist rather than a clinician, has not personally evaluated Plaintiff, has not conducted a custodial interrogation, and is not a sleep-medicine specialist.

    The Court disagrees. The relevant inquiry is not whether an expert possesses every form of experience that might bear on a subject, but whether her “qualifications provide a foundation for [her] to answer a specific question.”

    Russano’s education, research, publications, laboratory work, law-enforcement training, and more than two decades of specialized study directly concerning the psychology of interrogations and confessions. That foundation qualifies her to explain false-confession research, recognized interrogation-related risk factors, and the significance of those factors within her discipline.

    Defendants’ objections also misstate the nature of the proposed opinions. Russano does not purport to diagnose Plaintiff, assess his clinical condition, or offer a medical diagnosis concerning sleep deprivation. She proposes to explain how conditions such as fatigue and sleep deprivation are treated in the false-confession literature and how those conditions may affect a person undergoing interrogation. Nor was she required to personally interview Plaintiff or conduct the interrogation herself.

    B. Reliability

    Defendants contended that Russano’s opinions are unreliable because the prevalence of false confessions is unknown, her assessment of Plaintiff’s confession has not been empirically validated and has no known error rate, and no fixed standard governs how the identified risk factors are weighed.

    Plaintiff has demonstrated that Russano’s opinions draw from peerreviewed case studies, observational and laboratory research, meta-analyses, and accepted principles of cognitive and social psychology concerning conditions associated with an increased risk of false confession.

    Her corroboration analysis likewise distinguishes details independently verified or unknown to investigators from details that may have originated with investigators. These methods are transparent, grounded in the literature identified in her report, and capable of being tested against the record through cross-examination and contrary evidence.

    In sum, Russano applies recognized research to the disputed circumstances of an actual confession without claiming that the identified factors themselves establish its falsity. Plaintiff has therefore shown that Russano’s testimony rests on sufficiently reliable principles and methods.

    C. Helpfulness and Speculation

    Defendants separately argued that Russano’s opinions are too speculative to assist the jury.

    Russano did not intend to testify that the alleged interrogation conditions caused Plaintiff to confess falsely or that the confession was in fact false. Rather, her testimony will explain the phenomenon of false confessions, identify conditions that research associates with an increased risk of false confession, and explain which factors would be implicated under the facts found by the jury.

    Moreover, the conditional nature of Russano’s application did not make it speculative. An expert may rely on assumed facts that have support in the record; and disputes or weaknesses in those assumptions ordinarily affect weight, not admissibility.

    Here, Plaintiff’s account of prolonged isolation, food and sleep deprivation, a late-night polygraph, threats concerning his job and family, and a promise of release implicates the risk factors identified in Russano’s report. Her testimony therefore fits the disputed evidence and may assist the jury, while Defendants remain free to challenge its factual premises through cross-examination and contrary evidence.

    D. The Role of the Jury

    Defendants also contended that Russano intends to tell the jury which evidence to credit and how to weigh Plaintiff’s confession.

    Russano’s conditional application of the research to each account does not tell the jury which version to believe. It leaves the predicate factual and credibility determinations where they belong, with the jury, and supplies specialized knowledge concerning the significance of the facts the jury may find.

    That said, the Court clarified the permissible scope of Russano’s testimony at trial. She may explain the phenomenon of false confessions, recognized risk factors, the psychological mechanisms associated with those factors, the factors potentially implicated under the parties’ competing factual accounts, and the concepts of dependent and independent corroboration. But she may not offer a conclusive opinion that Plaintiff’s confession was false or unreliable, state that the jury should not rely on the confession, or otherwise tell the jury what conclusion to reach on that ultimate factual question. This limitation does not warrant excluding her testimony altogether.

    E. Rule 26 Disclosures

    Defendants finally argued that Russano’s disclosures are deficient because she did not retain notes from her review of the record and because her report did not include opinions concerning the report of Defendants’ sleep expert, Michel Bornemann.

    Bornemann’s report did not exist when Russano prepared her report. After reviewing it, she made notes that were produced to Defendants in response to their subpoena before her deposition. Defense counsel then questioned her about those notes and elicited her opinions concerning Bornemann’s report.

    Accordingly, Russano’s produced notes and deposition testimony made the opinions known to Defendants during discovery and in writing. Questions asked during an expert deposition may also bear on the permissible scope of the expert’s trial testimony.

    Even assuming a technical supplementation requirement remained, the timing of Bornemann’s report substantially justified the absence of the opinions from Russano’s initial report, and Defendants’ receipt of the notes and examination of Russano rendered any omission harmless under Rule 37(c)(1). The Court will not exclude Russano’s testimony on this basis.

    Nor did Russano’s failure to retain separate notes from every portion of her review, standing alone, establish that her report omitted the facts, data, bases, or reasons supporting her disclosed opinions.

    Held

    • The Court granted in part and denied in part Defendants’ motion to strike expert Todd Mutchler.
    • The Court granted in part and denied in part Plaintiff’s motion to bar the testimony of Defendants’ expert Dr. Bradford Beyer.
    • The Court granted in part and denied in part Plaintiff’s motion to bar opinions of Defendants’ retained expert Dr. Michel Bornemann.
    • The Court denied as moot Defendant’s motion to strike the testimony of James McCloughan.
    • The Court denied the Defendants’ motion to strike the testimony of expert Melissa Russano.

    Key Takeaway

    It is not an expert’s role to apply the law to the facts—that task is reserved for a jury. Rather, an expert’s testimony is relevant when it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”

    An expert’s qualifications—let alone that of an expert with nearly four decades of experience—is not “in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.”

    Case Details:

    Case Caption: Craighead V. Simon
    Docket Number: 2:23cv12243
    Court Name: United States District Court, Michigan Eastern
    Order Date: July 19, 2026
  • Cybersecurity Expert Not Allowed to Opine on ADA Compliance Requirements

    Cybersecurity Expert Not Allowed to Opine on ADA Compliance Requirements

    In May 2025, Plaintiff Richard Paul Merrell filed the operative putative class action complaint against Defendant Ralph Lauren Corporation. Plaintiff is visually impaired and legally blind, and he uses screen-reading software to read website content using his computer.

    Screen-reading software (or a “screen reader”) allows blind and visually impaired users to access websites using a combination of a keyboard and “software that vocalizes the visual information found on a computer screen.”

    Plaintiff alleged that Defendant’s website, including but not limited to https://www.ralphlauren.com/, “is not fully or equally accessible to blind and visually impaired consumers.”

    According to Plaintiff, “Defendant’s failure to properly code its website” to be accessible means that he and other class members “have been and are still being denied equal and full access to Defendant’s retail stores and the numerous goods, services, and benefits offered to the public through Defendant’s website in conjunction with Defendant’s brick-and-mortar retail store locations.”

    Defendant filed motions to exclude the testimony of Plaintiff’s experts, Dr. Jon A. Krosnick and Dr. William C. Easttom, II. Plaintiff filed a motion to exclude the testimony of Defendant’s expert, Aaron Cannon.

    Psychology Expert Witness

    Jon Alexander Krosnick is a Stanford professor and a research psychologist at the U.S. Census Bureau with a degree in psychology from Harvard University and an M.A. and Ph.D. in social psychology from the University of Michigan.

    He has taught classes and trainings on research methods, received awards for research and psychology, authored or co-authored hundreds of articles and presentations, and otherwise conducted extensive research on survey research methods.

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

    Cybersecurity Expert Witness

    Dr. William Charles Easttom, II has Ph.Ds in technology and computer science, a Doctor of Science in cyber security, and multiple related master’s degrees. He has authored 44 computer science books and dozens of research papers and is an inventor of 27 computer science patents. He is as an adjunct lecturer at Georgetown University and Vanderbilt University. 

    Easttom has published three books specifically on JavaScript (a coding language for web development), holds a Certified Professional in Accessibility Core Competency certification, and has taken two accessibility courses.

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

    Web Accessibility Expert Witness

    Aaron Cannon has “been working in the field of web and mobile app accessibility for over seventeen years and [has] been developing software for twenty-nine years.” He is a “Certified Professional in Web Accessibility” and holds multiple accessibility-related certificates.

    Cannon is totally blind and has been using screen readers since 1988, including JAWS for Windows, NVDA, TalkBack, VoiceOver, and the Orca screen reader. He also co-founded and served as chief accessibility officer for a company that provided accessibility auditing of websites and mobile apps. 

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

    Discussion by the Court

    A. Dr. Jon A. Krosnick

    Based on his review of the complaint, literature and documentation about methodologies employed in past surveys of blind people, past surveys of visually impaired people, studies of accessibility challenges faced by blind people when using computers, and other information, Krosnick conducted a survey and concluded that “the number of legally blind people living in California who used a screen reader and were prevented from doing business with a physical store due to problems related to accessibility with the Ralph Lauren webpage is 3,243.”

    Defendant argued that Krosnick’s testimony should be excluded in full because (1) his opinions are unreliable and not based on sufficient facts or data; (2) his survey results are inadmissible hearsay; and (3) his survey is irrelevant and will not help the trier of fact.

    Analysis

    First, Defendant argued that Krosnick’s survey did not use a random probability sample and instead “recruited non-representative survey respondents from Facebook groups for visually impaired people.” But Krosnick made clear that he combined a primarily randomized probability sample with some respondents from Facebook groups oriented toward visually impaired people, and that this kind of “blended” probability sample “is a widely accepted practice in contemporary survey science.”

    Defendant also contended that Krosnick’s survey had a low response rate, leading questions, self-interest bias, recall bias, and a lack of verification of unreliable answers.

    The Court also is not persuaded that the survey involved leading questions or self-interest bias just because it asked participants if they wanted to “help improve the experiences of blind people using the Internet,” and then listed potential problems the respondents may have experienced.

    Even if the survey’s wording did implicate some level of bias, this would not be so substantial as to render the survey unreliable.

    B. Dr. William C. Easttom, II

    Despite his extensive background, Defendant argued that “Easttom is not qualified to opine on website accessibility,” since general education in computer science is not interchangeable with competence in website accessibility. Even if Easttom has a relatively limited amount of experience with website accessibility, he plainly is an expert on website design and computer science, and the Court is not persuaded that his extensive background is insufficient to qualify him as an expert.

    Defendant also argued that Easttom’s testimony should be excluded in full because (1) his report relied on the wrong website; (2) his methodology is unreliable; and (3) he impermissibly offers legal conclusions.

    Analysis

    First, Defendant argued that Easttom failed to test a screen reader version of its website, “despite being prompted to enable accessibility features.”

    The fact that Easttom didn’t test an alternative, enhanced version of the website may undercut the weight of his methodology or Plaintiff’s claims against Defendant, but it did not render Easttom’s opinions completely irrelevant or unreliable.

    Methodology

    Second, Defendant raised various attacks on Easttom’s methodology, including that Easttom (1) did not use two tools he used in another case and (2) makes a “huge inferential leap” that Defendant denied access to its goods and services from the fact that the store locator wasn’t rendered as a clickable website attribute.

    First, any questions about the tools used go to weight, rather than admissibility. Second, the Court disagreed that Easttom’s conclusions are that large of an inferential leap, or that they are irrelevant to answering the question of whether Defendant’s website violated the ADA. And to the extent another expert said that visually impaired customers could locate Defendant’s brick-and-mortar stores through its website, that is a battle of the experts to be resolved by the trier of fact.

    Legal Conclusions

    Third, Defendant argued that Easttom improperly offered legal conclusions. In particular, Defendant took issue with Easttom’s statements suggesting that Ralph Lauren’s website is not ADA compliant.

    The Court agreed with Defendant: Easttom’s opinion and testimony that Defendant’s website did not meet ADA compliance requirements, is an improper legal conclusion, and the Court granted the motion as to these opinions.

    However, one of the purported “legal” conclusions is actually a conclusion about whether Defendant’s website complies with the Web Content Accessibility Guidelines (“WCAG”), which are “a set of international standards designed to make web content more accessible.” This is not a legal conclusion just because Easttom made reference to tools that are used for scanning ADA compliance.

    Fourth, Defendant argued that Easttom “conflates Ralph Lauren’s alleged non-compliance with WCAG 2.1 AA guidelines, and alleged non-compliance with the ADA,” and “there is no authority at all for the proposition that websites must comply with the WCAG guidelines.”

    Reliability

    Finally, Defendant argued that Easttom improperly used the Internet Wayback Machine to determine if historical versions of Defendant’s website were inaccessible because the Wayback Machine does not necessarily include full JavaScript functionality and may “not allow a user to evaluate [a website’s] full functionality.” These critiques—and critiques about the sample of Wayback Machine pages that were chosen—go to weight and do not fundamentally undermine the reliability of the opinion. This is especially true where, as here, Defendant has offered no reason to believe that these individual webpages had missing JavaScript functionality.

    C. Aaron Cannon

    Plaintiff first argued that portions of Cannon’s declaration should be excluded as untimely. Plaintiff sought exclusion under Federal Rules of Civil Procedure 26 and 37. 

    Rule 26

    Defendant argued that Cannon disclosed that he had new opinions in his deposition, yet Plaintiff “did not question him about those additional opinions.”

    The Court found that Defendant has not shown harmlessness. Defendant’s argument appears to be that Plaintiff’s counsel should have pushed harder at the deposition, ignoring the fact that Cannon evasively and vaguely mentioned he had some unspecified other opinions, but would not explain what they were. This is especially true where Defendant had already asserted that it would not disclose its rebuttal opinions to Easttom’s report, which it did not perceive to be related to class certification. As a result, the Court rejected Defendant’s suggestion that Plaintiff had the same “free rein” to get additional discovery on these untimely opinions as in Defendant’s cited cases.

    Defendant’s other arguments regarding a lack of prejudice or surprise are unpersuasive. Defendant summarily stated that Plaintiff only cites a “single distinguishable case” supporting his claims of prejudice, and “Plaintiff has also not identified any additional expenses caused by Defendant’s alleged failure to disclose, because there is none.” This flips the burdens: it is Defendant’s burden to demonstrate harmlessness or substantial justification, and it has not done so. Accordingly, the Court will strike the identified portions of Cannon’s declaration, though those portions would have been irrelevant to the remainder of the Court’s order here.

    Rule 702

    Plaintiff next argued that Cannon’s testimony should be excluded in full because (1) his opinions are not based on sufficient facts or data; (2) he did not apply a reliable, testable method to the case; (3) his class certification opinions are unhelpful; (4) his opinions offer impermissible legal conclusions; and (5) he is not qualified to offer “socioeconomic and population-level opinions or reliability engineering opinions.”

    In particular, Plaintiff first argued that Cannon’s opinion should be excluded because he did not “gather any site-specific facts about Ralph Lauren’s website” and instead “offered generalized assumptions based on experience, which Rule 702(b) does not permit.”

    The Court found that Cannon’s opinions about what individualized technical problems may impede a user with a screen reader from accessing a website are adequately based upon his extensive personal knowledge and experience. To the extent Plaintiff believes Cannon’s testing was flawed or didn’t consider enough data or site-specific information, those critiques go to weight, not admissibility.

    The same is true for Plaintiff’s arguments that Cannon did not deploy a reliable methodology.

    Cannon is applying his extensive experience with accessibility-related software and screen readers to make high-level observations about, for example, the differences in hardware, operating systems, and screen reader software, in order to explain why this Court would have to engage in individualized inquiries about each class members’ experience.

    The Court also disagreed that Cannon’s opinions “substitute legal judgment for technical analysis.” The fact that Cannon is identifying individualized issues in a user’s experience with accessibility features—a central part of the predominance inquiry—did not mean that he is impermissibly making legal conclusions.

    Held

    • The Court denied the motion to exclude the testimony of expert Dr. Jon A. Krosnick.
    • The Court granted in part and denied in part the motion to exclude the testimony of William C. Easttom.
    • The Court granted in part and denied in part the motion to exclude the testimony of Aaron Cannon.

    Key Takeaway

    When evaluating specialized or technical expert opinion testimony, the relevant reliability concerns may focus upon personal knowledge or experience.

    Case Details:

    Case Caption: Merrell V. Ralph Lauren Corporation
    Docket Number: 4:23cv6669
    Court Name: United States District Court, California Northern
    Order Date: July 09, 2026
  • Economics Expert Was Not Allowed to Opine on Punitive Damages

    Economics Expert Was Not Allowed to Opine on Punitive Damages

    Plaintiff Kimberly McKinney filed a wrongful termination action against Land O’Lakes, citing its failure to accommodate her disability and work limitations stemming from injuries she sustained due to an unsafe condition at work.

    Defendant sought to preclude the testimony of Plaintiff’s retained experts Dr. Joseph Penbera and Dr. Julie Armstrong.

    Economics Expert Witness

    Joseph J. Penbera earned a B.A. from Rutgers in 1969, a masters in public administration from The Baruch School (CUNY) in 1970 and a Ph.D. from American University in 1973.

    He is forensic economist whose work has been accepted in local, state, and
    Federal jurisdictions as well as in various international venues.

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

    Psychology Expert Witness

    Julie Armstrong earned a bachelor of science in nursing from the Consortium of Cal. State Colleges and Universities in 1988, a Masters in nursing/clinical nurse specialist from U.C.L.A. in 1990 with a specialty in psychiatric/mental health nursing, and a Doctor of Psychology degree from Pepperdine University in 1996.

    She has conducted more than a thousand clinical interviews or evaluations for psychological injury or impairment for the Workers’ Compensation Appeals Board in California. As of 2025, she has testified in Court or Administrative hearings approximately 60 times.

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

    Discussion by the Court

    I. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY PENBERA

    Defendant sought to preclude Plaintiff’s expert, Dr. Joseph Penbera, from: (1) testifying to lost wages that allegedly accrued after January 1, 2024 through trial, (2) offering opinions based on unreliable methodology and testifying as to legal conclusions; and (3) testifying as to punitive damages.

    A. Opinions on lost income and benefits since May 28, 2023

    1. Admissibility of Penbera’s expert testimony

    Penbera calculated Plaintiff’s lost income and benefits based on Plaintiff’s past wages. Defendant raised several objections regarding the method Penbera utilized in calculating lost wages, but such objections go to the weight of Penbera’s opinion, not its admissibility. Penbera’s report indicates that, among other information, he reviewed Plaintiff’s earnings statements from “12/23/2018 to 1/13/2024” and from “6/15/2023 to 5/15/2025.” Those include Plaintiff’s earnings statements showing her 2023 income and deductions through May 2023, when she was put on leave or terminated, and showing her 2024 income and deductions through mid-December 2024.

    To the extent the Defendant argued that Penbera relied on incomplete pay data from the relevant years or failed to adequately consider Plaintiff’s earnings in earlier years, “it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”

    The Court made it clear that Penbera is not precluded as a general matter from offering expert opinions on Plaintiff’s lost income and benefits.

    2. Lost income and benefits damages based on events occurring between Plaintiff’s 2022 injury and her starting a new position in March 2024

    Defendant asserted that Penbera’s opinions rest “entirely” on 2024 and 2025 factual allegations that are not part of plaintiff’s claims in this action. But that is incorrect. For example, Penbera’s report reflects that, among other data, he considered Plaintiff’s past wages from January through May 2023 in calculating Plaintiff’s lost income for the period from her alleged constructive termination in May 2023 through her starting a new position in March 2024.

    Penbera’s report also included calculations of Plaintiff’s future lost income and benefits after December 2024. But the parties agreed that Plaintiff obtained a new job position with Defendant in March 2024. And while Plaintiff was allegedly terminated from that new position in December 2024, that termination is not part of Plaintiff’s claims in this action. 

    To the extent Plaintiff’s future lost income and benefits are based on Plaintiff’s alleged wrongful termination in December 2024, which is not a claim at issue in this case, testimony as to such damages would not be relevant to Plaintiff’s claims at trial. The Court held that Penbera will be precluded from testifying as to lost income and benefits damages that are due to Plaintiff’s December 2024 termination. However, to the extent certain such future losses are attributable to actions that are the subject of Plaintiff’s claims—for example, Plaintiff’s loss of future benefits due to her lost income in the period from May 2023 to March 2024—then Penbera’s testimony as to such specific future losses would be admissible to that extent.

    B. Punitive Damages

    Defendant argued that Penbera should be precluded from testifying about punitive damages because he was not designated to testify about punitive damages.

    Plaintiff appeared to concede that Penbera cannot provide expert testimony as to punitive damages. Plaintiff did not disclose Penbera as an expert on any punitive damages issue, and Penbera’s expert report did not include an opinion regarding punitive damages. 

    Penbera was therefore precluded from testifying as an expert as to punitive damages and may not offer any opinion as to Defendant’s financial documents or financial condition. Plaintiff did not dispute the exclusion of expert opinion or expert testimony on this issue.

    II. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY ARMSTRONG

    Defendant sought (1) to preclude Plaintiff’s expert Julie Armstrong from testifying as to Plaintiff’s emotional distress and non-economic damages because, Defendant claims, Armstrong’s testimony is based on events in 2024 that are outside the scope of the litigation, (2) to preclude Armstrong’s testimony because it is not based on any medical or employment records, and (3) to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages.

    Analysis

    First, Defendant argued that Armstrong’s opinions should be precluded because they are based on Plaintiff’s factual allegations concerning events outside the scope of Plaintiff’s claims, including Plaintiff’s assertion that in December 2024 Defendant wrongfully terminated her from her new position, and that in September 2024 Defendant posted graphic photos of Plaintiff’s injury.

    While Defendant argued that Armstrong relied insufficiently on the relevant period in reaching her expert opinions, that is incorrect. Armstrong’s report refers at length to Plaintiff’s account of her circumstances from her injury in November 2022 to her re-hiring by Defendant in March 2024.

    Second, Defendant also objects that Armstrong’s opinion relies solely on her experience and her interview and testing of Plaintiff and not on medical or employment records. This argument likewise goes to the weight of Armstrong’s testimony, not to its admissibility.

    Armstrong explained that her opinion is based largely on her clinical interview of Plaintiff, during which Armstrong administrated the Structured Inventory of Malingered Symptoms (SIMS) and Millon Clinical Multiaxial Inventory-IV (MCMI-IV) tests.

    Third, Defendant sought to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages. Armstrong was not Plaintiff’s treating provider and did not review Plaintiff’s contemporaneous medical records, and she did not observe Plaintiff’s emotional state or symptoms during the period from 2022 to March 2024.

    But the Court held that Armstrong may testify to her observations of Plaintiff’s emotional distress symptoms and disorder when she evaluated plaintiff in July 2025, and the extent to which plaintiff’s account of her alleged adverse workplace experiences from her 2022 injury to her rehiring in March 2024, if true, could substantially contribute to such ongoing emotional distress symptoms.

    Held

    The Court granted in part and denied in part Defendant’s motions in limine to preclude the testimony of Dr. Joseph Penbera and Dr. Julie Armstrong.

    Key Takeaway

    Under Daubert, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.

    Case Details:

    Case Caption: McKinney V. Land O’Lakes, Inc.
    Docket Number: 1:23cv1304
    Court Name: United States District Court, California Eastern
    Order Date: June 21, 2026
  • Psychology Expert’s Testimony on Trauma Victims Limited

    Psychology Expert’s Testimony on Trauma Victims Limited

    Plaintiff Colleen Nix alleged that Kevin Keiner, a New Mexico State Police Officer, sexually assaulted her while she was intoxicated and asleep.

    Nix sought to introduce the testimony of both Elizabeth Thomson and Andrea Taylor. New Mexico Department of Public Safety and New Mexico State Police requested the Court to bar Thomson and Taylor from testifying.

    Law Enforcement Expert Witness

    Elizabeth Thomson is a retired law enforcement professional with more than two decades of experience. From 1999 to 2017, Thomson served as an officer with the Albuquerque Police Department (“APD”), retiring at the rank of sergeant. She held a variety of investigative and supervisory roles at APD.

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

    Psychology Expert Witness

    Andrea Brooke Taylor is a licensed clinician and retired law enforcement captain with over 20 years of experience in trauma-focused mental-health counseling. She has a Masters Degree in Clinical Mental Health Counseling and a Masters Degree in Forensic Psychology. She specializes in Post Traumatic Stress Disorder (“PTSD”), Complex Post-Traumatic Stress Disorder (“CPTSD”), trauma assessment, and the psychological impact of sexual violence.

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

    Discussion by the Court

    Elizabeth Thomson

    Thomson is qualified based on her twenty years of law enforcement experience and extensive training. For instance, she may testify regarding patterns in sexual assault cases due to her training, field experience, and six years of specialized service on a crisis intervention team. She may testify regarding police procedures based on her service as a homicide sergeant, where she developed and updated departmental policies and standard operating procedures.

    Defendants sought to limit Thomson’s testimony. First, they challenged her opinions regarding Nix’s and Keiner’s credibility as usurping the jury’s role. Specifically, they sought to preclude Thomson from testifying that Nix was truthful while Keiner was not, or from characterizing the parties’ statements as “consistent” or “inconsistent.”

    Nix contended that Thomson did not make credibility determinations but instead applied her investigative expertise to identify “consistencies and inconsistencies” in the parties’ statements. The Court is not persuaded. Even when framed in these terms, such testimony effectively invites the jury to conclude that accounts deemed “consistent” are credible, while those labeled “inconsistent” are not.

    Next, Defendants sought to preclude Thomson from testifying that the evidence is consistent with a nonconsensual sexual encounter. The Court declined to limit such testimony. Expert testimony offering “general and conditional opinions” about whether behavior aligns with patterns observed in sexual abuse cases is permissible.

    Finally, Defendants moved to preclude Thomson from testifying that Keiner was acting under “color of law” because such testimony would usurp the role of the jury. In this case, the Court found that Thomson’s proposed testimony—that Keiner was acting under “color of law” when he encountered Nix—did not usurp the jury’s fact-finding role. Jurors are unlikely to understand how police officers are trained to recognize whether they are acting under “color of law.”

    Andrea Taylor

    A. Taylor’s methodology is reliable under 702

    First, Keiner argued that Taylor’s methodology is unreliable under Rule 702. Taylor’s opinions are the product of a reliable methodology. She employed a multi-method approach to screen Nix for PTSD and CPTSD by administering seven diagnostic questionnaires and conducting two clinical interviews.

    The Court found Keiner’s arguments to the contrary unpersuasive. First, he argued that Taylor’s opinions are unreliable because she failed to use a Clinician-Administered PTSD Scale (“CAPS-5”) to diagnose Nix with PTSD “despite acknowledging CAPS-5 as the gold standard.” As discussed above, Taylor’s methodology is reliable because it is grounded in her professional experience. 

    Next, Keiner challenged Taylor’s conclusion that Nix has Complex PTSD because “Complex PTSD is not a distinct diagnosis under the DSM-5.” Taylor sufficiently explained each step of her analysis and the basis for her conclusions. The Court’s inquiry ends there.

    Keiner also argued that Taylor’s opinions are unreliable because she failed to perform any differential etiology or rule out alternative causes of Plaintiff’s PTSD symptoms. The Court disagreed. Differential etiology is simply one method of assessing causation in the medical context. Keiner’s assertion that Rule 702 “requires an expert to engage in a reasoned differential etiology” is unsupported.  Regardless, Taylor accounts for alternative causes of Nix’s symptoms and distinguishes between Nix’s baseline functioning and her post-incident decline. Taylor acknowledged Nix’s pre-existing anxiety and extensive trauma history, including childhood abuse and prior violence.

    B. Taylor’s methodology is based on sufficient facts and data under 702

    Keiner next argued that Taylor’s opinions are not based on sufficient facts or data under Rule 702.

    Taylor relied on sufficient facts and data here. She concluded, “to a reasonable degree of psychological certainty,” that the alleged sexual assault caused Nix’s PTSD and CPTSD symptoms. Taylor based that opinion on Nix’s “test results, symptom presentation, personal narrative, and trauma chronology,” and testified that her methodology was “standard” and grounded in her professional experience. The Court is satisfied that Taylor did not selectively “cherry pick” favorable facts but relied on the type of information reasonably considered by mental-health professionals conducting trauma assessments.

    Keiner claimed that Taylor improperly relied on Nix’s self-report without “independently verifying” the information through medical or therapy records, the Sexual Assault Nurse Examiner (“SANE”) exam, or other “objective” evidence. But the Court does not “require every expert to undertake an independent evaluation of the entire record to determine what he or she did or did not need to consider.” Taylor testified that it is “standard” to rely on self-reported symptoms to form diagnostic opinions—that is all the Court requires under 702.

    C. Portions of Taylor’s testimony are unhelpful under 702

    Finally, Keiner argued that portions of Taylor’s proposed testimony are not “helpful” under Rule 702. Specifically, Keiner challenged Taylor’s assertions that Nix was truthful in reporting the alleged assault; trauma victims “have no gain” in being untruthful; and gaps in Nix’s deposition testimony can be explained by dissociation or freezing.

    Taylor may not vouch for Nix’s truthfulness at trial. Taylor may not testify, for example, that Nix was truthful in reporting the incident or that inconsistencies in Nix’s account resulted from a trauma response. Those determinations remain within the exclusive province of the jury.  The Court also barred Taylor from opining that trauma victims “have no gain” in being untruthful—such testimony crosses the line into improper bolstering by suggesting that the jury should accept Nix’s account.

    This limitation did not preclude Taylor from testifying about the experiences and behaviors of trauma victims generally.

    Held

    • The Court granted in part and denied in part Defendants’ motion to exclude Elizabeth Thomson.
    • The Court granted in part and denied in part Defendants’ motion to exclude Andrea Taylor.

    Key Takeaway

    Expert testimony offering “general and conditional opinions” regarding patterns commonly observed in sexual-abuse victims is admissible. Taylor may testify, for example, that sexual-assault victims may experience memory lapses, dissociation, and freezing responses. Such testimony assists jury members in evaluating Nix’s testimony without telling them what to believe—an important distinction under 702.

    Case Details:

    Case Caption: Nix V. New Mexico Department Of Public Safety
    Docket Number: 1:24cv691
    Court Name: United States District Court, New Mexico
    Order Date: May 27, 2026
  • Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Law And Legal Expert Not Allowed to Opine on Implicit Bias

    Plaintiff Amanda Howland brought employment discrimination claims against her former business and romantic partner Christian Kjaer and the company they operated, Ellevet Sciences Inc.

    Defendants Ellevet Sciences Inc. and Kjaer filed motions in limine seeking to exclude the testimony of Amanda Levine, Esq., PI and Charles H. Heller, Ph.D.

    Law And Legal Expert Witness

    Amanda Levine, Esq., PI is a graduate of Middlebury College and of Boston College Law School. She is licensed to practice law by the Commonwealth of Massachusetts and is licensed as a Professional Investigator by the State of Maine.

    Levine regularly conducts neutral and comprehensive workplace investigations involving allegations of harassment, discrimination and serious employment misconduct. She also serves as an outside and neutral investigator for higher education institutions in Title IX matters.

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

    Psychology Expert Witness

    Charles Harris Heller, Ph.D is a licensed psychologist who specializes in the effects of intimate partner violence. He earned his Ph.D. from the University of Wisconsin-Madison in 1979. His work experience includes: working as a clinical and forensic psychologist with inmates of various correctional facilities; working as a staff forensic psychologist at Rutgers, The State University of New Jersey, Department of Biomedical and Health Services; and performing forensic and clinical duties at East Jersey State Prison (EJSP) in Rahway, New Jersey.

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

    Discussion by the Court

    A. Testimony of Amanda Levine, Esq., PI

    Plaintiff designated Amanda Levine, an attorney and a professional investigator, to testify regarding the workplace conduct that Plaintiff experienced while working at Defendant ElleVet. Defendants contended that Levine should not be permitted to testify regarding: (1) implicit bias, (2) that women are more likely to experience harassment at work, (3) that Plaintiff was the victim of implicit bias, (4) that certain of Defendant Kjaer’s actions were discriminatory, and (5) the assessment of Defendant Kjaer’s credibility.

    There is evidently no dispute that Levine, as an attorney and professional investigator with experience in investigating complaints of employment discrimination, had the requisite experience to testify regarding the need to conduct discrimination investigations, as well as the adequacy and substance of such investigations.

    Analysis

    It should be noted that the Defendants’ concerns regarding Levine’s qualifications and specialized knowledge to testify more extensively about unconscious bias and how it might affect the Plaintiff’s claims are valid. In particular, Levine evidently lacked specialized training, experience, or research in sociology, psychology, or neuroscience that would permit her either to establish the existence of novel or contested unconscious stereotypes or biases—that is, biases not yet well established in the legal context or still scientifically disputed—or to opine on the cognitive processes that might explain such biases.

    Furthermore, even if Levine had the requisite qualifications and expertise to offer additional testimony on unconscious or implicit bias, the Court questioned whether such testimony would be helpful to the jury and whether its probative value would be substantially outweighed by the risk of juror confusion or improper reliance.

    Similarly, Levine’s proffered opinion that women are more likely to experience harassment at work, which was apparently informed by statistical evidence from studies she had read, presented similar and additional concerns. As noted above, Levine evidently had not conducted any of those studies, nor did she have specialized training or research experience in any of the relevant fields of research.

    Likewise, Levine’s opinions that the Plaintiff was the victim of implicit bias and that some of Defendant Kjaer’s acts and words were discriminatory presented the same concern. For similar reasons, Levine’s testimony regarding Defendant Kjaer’s credibility, or the factors she considered when assessing credibility, had to be excluded because it would not have been particularly helpful to the jury and would have risked misleading the jury and interfering with the Court’s instructions regarding credibility.

    B. Testimony of Charles Heller, Ph.D

    Defendants asserted that Heller’s proposed testimony involving the words “domestic violence,” “intimate partner violence,” and “domestic violence assessment,” should be excluded under Federal Rules of Evidence 402 and 403 as irrelevant and unfairly prejudicial because in the mind of a layperson, the term “violence” implies physical abuse, which was not present here.

    Plaintiff contended, however, that Heller should be permitted to use the term “violence” because, as an expert in the field, Heller considered the emotional abuse alleged here to be a form of domestic violence.

    Heller’s view is supported by others, including the American Psychiatric Association, which defines domestic violence or intimate partner violence as not only physical force, sexual acts without consent, and stalking, but also “psychological aggression,” meaning “verbal and non-verbal behaviors intended to harm emotionally or exert control.”

    While Heller’s possible reference to domestic violence and related terms generates concerns of unfair prejudice under Rule 403, at this stage, the Court cannot determine that, in all instances, the prejudice to Defendant Kjaer from the use of such terms substantially outweighs the probative value. Because the Court cannot assess all potential uses of the term outside the context of the trial, the Court defers ruling on the issue and will decide the issue at trial.

    Defendants also argued that Heller should not be permitted to opine as to the way Plaintiff felt as a result of Defendants’ conduct and whether her beliefs were reasonable, including whether Plaintiff reasonably believed that she was in imminent danger. When diagnosing a condition, a treatment provider often accepts the client’s representations as accurate in the absence of any objective evidence to the contrary. As to Heller’s assessment of Plaintiff’s condition, therefore, the Court discerns no basis for exclusion.

    Held

    • The Court granted in part the motion to exclude the testimony of Amanda Levine.
    • The Court granted in part, denied in part, and deferred in part the motion to exclude the testimony of Charles Heller.

    Key Takeaway

    The witness’ familiarity with certain statistics or studies from having read them in connection with discrimination investigations is not enough.

    Even if Levine had sufficient experience to opine based on the cases she has personally investigated, the opinion would have little, if any, relevance to the individualized assessment the jury must undertake. Such an opinion resembles a propensity argument that courts generally prohibit (i.e., because women are more likely to experience discrimination at work, Plaintiff is more likely to have experienced discrimination in this case).

    Case Details:

    Case Caption: Howland V. Ellevet Sciences Inc.
    Docket Number: 2:24cv442
    Court Name: United States District Court, Maine
    Order Date: May 22, 2026
  • Psychology Expert’s Testimony on Grooming Limited

    Psychology Expert’s Testimony on Grooming Limited

    This case arose from allegations of sexual abuse of a minor that purportedly occurred in 2006 but was not disclosed by the alleged victim until 2020. As the matter proceeded toward trial, both parties intended to introduce testimonial evidence at trial from experts in topics related to psychology. Although the Government did not challenge the qualifications of the Defendant’s proposed expert, Dr. Mary Lyndia Crotteau Huffman, it asked the Court to limit the scope of her testimony. In response, the Defendant agreed that Huffman would not offer opinions regarding the truthfulness or credibility of any witness.

    The remaining expert testimony from Huffman that Defendant sought to exclude follows: characterizations of the victim’s delayed disclosure and the weight the jurors should assign to it in assessing credibility; characterizations of Defendant’s conduct relating to grooming; factually-applied opinions on memory and associated terminology; any testimony on false belief; and opinions on investigator bias.

    Psychology Expert Witness

    Mary Lyndia Crotteau Huffman obtained a PhD in human developmental and family studies and has served as a private consultant on children’s memory, eyewitness testimony, suggestibility, and interview techniques since 1997.

    Huffman’s resume showed that she has authored numerous papers discussing the credibility of child victims, with titles like “Factors affecting the occurrence of lying in children”; “Categories of lies throughout childhood”; and “How reliable are children’s memories?”

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

    Discussion by the Court

    1. Delayed Disclosure

    The Government asked the Court to limit Huffman’s testimony of delayed disclosure to general concepts and to prevent her from offering opinion on witness credibility.

    Huffman provided scientific support for the general idea that disclosures among children are highly variable. However, reliability of Huffman’s testimony addressing those specific factors and their relationship with delayed disclosure is not supported. In fact, Huffman’s opinion on the variability of delayed disclosure counters Defendant’s argument for admissibility of expert testimony as to the consideration of specific factors to determine credibility.

    Thus, while Huffman may discuss general concepts behind delayed disclosure, she will not be permitted to characterize facts here (long disclosure delay, postincident vacation with Defendant and counseling without disclosure) without providing a reliable basis for that opinion that adds to what the jury can already appropriately assess.

    Huffman may identify general “situational and relational factors” which may influence disclosure; however, she shall not inform the jury what they should consider in determining credibility of the report. Accordingly, the Court denied the Government’s motion to exclude this testimony but imposed limits on Huffman’s testimony consistent with this ruling.

    2. Grooming

    The Government asked the Court to prohibit Huffman from testifying that the Defendant’s conduct was not grooming and whether such conduct contributed to delayed disclosure.

    Huffman provided scientific support for her assertion that, “although grooming is a well-documented factor that can inhibit disclosure, research does not support the claim that it occurs in the majority of cases or that it alone explains disclosure timing.”

    The Government accurately noted that the studies cited by Huffman supported the Government’s expert’s opinion that grooming has a relationship to delayed disclosure.

    However, Huffman’s opinion, considering confounding variables in research, is also true. Accordingly, the Court permitted general discussions of grooming and rebuttal to the Government’s expert’s opinions.

    Defendant also intended to have Huffman indicate that she is surprised by the characterization of Defendant’s conduct – rubbing the stomach of the victim with others in the room or sleeping in the same room as the victim – as grooming, and that grooming would more likely occur in other circumstances like preparing the children for bed, a responsibility of the Defendant’s wife.

    The Government argued that such statements are not scientifically supported and that Huffman should be prohibited from testifying that the under-the-clothes touching was not grooming or whether it contributed to lack of immediate disclosure. If the methodology for such an opinion were sufficiently supported through studies or experience, the testimony may be admissible. Defendant did not indicate how Huffman’s experience or cited research studies informed her methodology characterizing Defendant’s conduct to be outside the definition of grooming. Nor did she support the opinion that other non-grooming conduct negates the Government’s evidence and theory of grooming. Accordingly, the Court granted the Government’s motion to exclude this testimony and imposed limits on Huffman’s testimony consistent with this ruling.

    3. Memory and Suggestibility

    The Government asked the Court to limit Huffman’s testimony about memory, particularly implantations of false memories and suggestibility during interviews, with consideration of the different goals of interviewers. Further, the Government sought to prevent Huffman from using terms such as “investigative bias,” “tainted,” “distorted,” or “memory error.”

    Defendant intended to elicit testimony from Huffman explaining how memories are formed and how suggestibility can influence their formation. The Government is most concerned with her statement that “when conversations, therapy sessions, bias interviews, or repeated interviews cause non-experienced events to sound familiar and plausible, children and even adults may confuse the true source of the information with their actual experience. Because of these memory errors, someone cannot distinguish between the truth and a false belief.”

    The Government argued that the scientific basis for Huffman’s testimony on false memories is too remote in nature to provide reliable methodology for application to the facts of this case. However, the Government has not addressed Huffman’s apparent expertise based on her published material on false memory and suggestibility evident on her resume.

    The Court permitted general discussions on false memory, interviewer goals, and suggestibility. The Court, however, refused to permit application to the facts of this case. Further, without additional support, Huffman will not be permitted to testify that “disclosures made during pastoral counseling sessions may be the result of a biased interviewer who is looking for abuse to explain typical behaviors of alleged victims.”

    Moreover, Huffman will not be permitted to use of phrases “investigative bias,” “tainted,” or “distorted.” However, the Court did not find “memory error” in a generalized context to be argumentative. Thus, Huffman was allowed to opine on false memories and use the term “memory error.”

    4. Investigator Bias

    The Government filed a motion to exclude Huffman’s expert testimony that “text messages Victim 1 sent after she had disclosed the sexual abuse ‘improperly tainted Victim 1 with his preconceived notions of Bowles’ guilt.’”

    Defendant argued for admissibility of Huffman’s opinion as to the soundness of the U.S. Army investigator’s conduct when she sought the collection of evidence through advising the victim to communicate with the Defendant through text.

    While an expert’s experience can validate the methodology used in forming an expert’s opinion, this opinion is not backed by her experience and Defendant does not provide alternative support for her opinion.

    Held

    The Court granted in part and denied in part the United States’ motion in limine to limit the testimony of Mary Lyndia Crotteau Huffman.

    Key Takeaways:

    • An expert’s testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.
    • Opinions based on knowledge or experience of the expert may be admissible if reliable.

    Case Details:

    Case Caption: United States of America V. Bowles
    Docket Number: 3:24cr100
    Court Name: United States District Court, West Virginia Southern
    Order Date: April 01, 2026
  • Psychology Expert’s CPTSD Opinions Admitted

    Psychology Expert’s CPTSD Opinions Admitted

    Danesh Noshirvan, an online entertainer and journalist, filed a civil action against Jennifer Couture alleging conspiracy and agency liability, as well as claims for defamation, tortious interference, misappropriation of likeness, and intentional infliction of emotional distress.

    Noshirvan alleged that Couture, Dr. Ralph Garramone, M.D. and OMG Realty, LLC , along with the other named Co-Defendants, conspired with a non-party, Joseph Camp (“Camp”) to tortiously interfere with Plaintiff’s business relationship with his former attorney, defame Plaintiff and intentionally inflict emotional distress upon Plaintiff.

    Garramone Plastic Surgery, Jennifer Couture, Ralph Garramone, and OMG Realty, LLC challenged the testimony of Robert M. Gordon, Ph.D., ABPP.

    Gordon diagnosed Noshirvan with Complex Post-Traumatic Stress Disorder “due to the cyberbullying and damage to his reputation by Joey Camp.” He further opined that Noshirvan would “need many years of intensive psychotherapy to help deal with his CPTSD.”

    Psychology Expert Witness 

    Robert M. Gordon, Ph.D., ABPP has practiced forensic psychology for nearly five decades (since 1976) in both civil and criminal arenas. He is board-certified in Clinical Psychology and in Psychoanalysis, and earned his
    doctorate from Temple University.

    He has authored over 100 publications in areas directly relevant to this case. For example, he co-published research on using the MMPI-2 to detect individuals “faking PTSD” after traumatic events.

    Gordon has taught forensic psychology at the Ph.D. level and given international workshops on psychological assessment and trauma.

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

    Discussion by the Court

    A. Reliability of Methodology

    (1) Post-Traumatic Stress Disorder

    Defendants argued that Gordon’s use of the Clinician Administered PTSD Assessment Questionnaire for DSM-5 (“CAPS-5”) is unreliable.

    Specifically, Defendants pointed out that the DSM-5 requires “exposure to actual or threatened death, serious injury, or sexual violence” and the “presence of one or more of certain symptoms associated with the traumatic events, beginning after the traumatic events occurred.”

    Yet Gordon, according to Defendants, bases his diagnosis on the assertion of “cyberbullying and destruction of reputation.” Since Gordon, according to Defendants, failed to strictly adhere to the diagnostic criteria in the DSM-5, the Defendants contended that Gordon’s testimony must be unreliable.

    First, Defendants argued that Gordon lacked any evidence of exposure to actual or threatened death, serious injury, or sexual violence, because he conducted no independent investigation on Noshirvan’s allegations in the Second Amended Complaint and interview. Any quarrel with not independently verifying any of the allegations that Noshirvan presented to Gordon can be appropriately dealt with on cross-examination.

    Defendants next argued that Gordon failed to follow DSM-5 diagnostic criteria because he did not observe at least one month’s worth of PTSD symptoms before diagnosing a patient with PTSD and relied almost exclusively on Plaintiff’s self-reporting. While Defendants contended that the rationale for using these specific tests was not definitively explained, such concern can be considered through cross-examination and is not a reason to exclude Gordon’s testimony.

    Further, Defendants also pointed the Court to the Georgetown Guidelines for Forensic Assessment of PTSD. However, it too is not enough to show the methodology is unreliable since those guidelines were published before the DSM-5 and did not outline any specific examinations that must be given. Accordingly, the Defendants have not shown that Gordon’s methodology was unreliable as it relates to his diagnosis of PTSD.

    (2) Complex Post-Traumatic Stress Disorder

    Defendants also argued that Gordon’s failure to adhere to the diagnostic criteria of Complex Post-Traumatic Stress Disorder (“CPTSD”) in the ICD-11 as well as his diagnosis being made solely for the purpose of litigation rendered his methodology unreliable.

    Gordon relied on more than mere allegations presented by Plaintiff. Gordon utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis. To the extent Defendants disagreed with the diagnosis, they were free to challenge Gordon on cross-examination.

    Defendants next argued that Gordon failed to explain the results of the International Trauma Questionnaire (ITQ) or how he reached the diagnosis of CPTSD.

    However, Defendants failed to show how that the ITQ itself is unreliable, and though how Gordon exactly utilized the ITQ is unknown, it is clear that he still relied upon the underlying PTSD diagnosis in reaching his conclusion.

    Finally, Defendants argued that Gordon’s CPTSD diagnosis was made solely for purposes of this litigation. Defendants contended that while it is not dispositive, it further weighs against the reliability of Gordon’s testimony since Noshirvan only met with Gordon for about an hour via Zoom and was not re-examined in the future. While it is true Gordon only met with Noshirvan for about an hour, this argument went to the credibility of Gordon, not the reliability of his methodology.

    B. Helpfulness

    It is undisputed that Gordon utilized the CAPS-5, ITQ, Brief Psychiatric Rating Scale, Beck Depression Inventory-II, Beck Anxiety Inventory, and Miller Forensic Assessment of Symptoms Test. Although Defendants took issue with the conclusions reached by Gordon as well as the methods utilized, the conclusions went to a crucial issue in this case—whether Noshirvan suffered emotional distress.

    Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person. Defendants were able to cross-examine Gordon regarding why he utilized the specific tests in lieu of other examinations they contended are better suited for such diagnosis. These quarrels, however, are not sufficient to exclude the evidence.

    Ultimately, the Court found that Gordon satisfied all three prongs of Daubert, and the Court found that no undue prejudice from the anticipated testimony.

    Held

    • The Court denied as moot Defendant Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP.
    • Jennifer Couture, Ralph Garramone, and OMG Realty, LLC’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
    • Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
    • Patrick Trainor, Central Park of Southwest Florida, LLC, and Anti-Doxing League, Inc.’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.

    Key Takeaway

    Gordon satisfied all three prongs of Daubert because he utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis.

    Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person.

    Case Details:

    Case Caption: Noshirvan V. Couture
    Docket Number: 2:23cv1218
    Court Name: United States District Court, Florida Middle
    Order Date: March 13, 2026

  • Psychology Expert Allowed to Opine on EMDR Therapy

    Psychology Expert Allowed to Opine on EMDR Therapy

    Oriental Trading Company, Inc. (“OTC”) is a retailer of novelties and gifts. Plaintiff Keith Kirksey is an African American male who began his employment with OTC on or about June 1, 2017.

    According to Kirksey, during his employment, he experienced a series of racially targeted incidents including the placing of a noose in his workspace and the placing of a clown head with, what he perceived as, a noose around its neck where Kirksey would see it. He reported these incidents to OTC who indicated it would investigate. Kirksey was dissatisfied with OTC’s investigation, and its outcome, and thereafter felt unfairly targeted by OTC in retaliation for his reporting.

    Kirksey filed a complaint against OTC stemming from his employment alleging claims of race discrimination, retaliation, and harassment/hostile work environment as well as negligent infliction of emotional distress.

    In an effort to establish his claims, Kirksey engaged Jerry Authier, Ph.D. as an expert. Authier is clinical psychologist licensed in Nebraska who was retained to conduct a psychological evaluation of Kirksey. In an effort to rebuke Kirksey’s claims, OTC designated Timothy D. Loudon as an expert in the field of human resources and workplace investigations.

    OTC filed a motion in limine to exclude the testimony of Plaintiff’s expert witness Authier and Kirksey filed a motion to exclude the testimony of Loudon.

    Psychology Expert Witness

    Jerry L. Authier, Ph.D. is a clinical psychologist licensed in Nebraska. He has been practicing psychology in Omaha since 1973.

    He obtained his bachelor’s degree in psychology and doctorate in clinical psychology. Throughout his 50-year career, Authier was the director of behavioral science at the University of Nebraska and Clarkson Family Medicine and saw patients in private practice. Authier has authored various articles and books and presented at a range of conferences, primarily during his years as an educator.

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

    Human Resources Expert Witness

    Timothy D. Loudon has a juris doctor degree, is licensed to practice law in multiple states, and has practiced labor and employment law in various capacities since 1981.

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

    Discussion by the Court

    Authier

    OTC did not move to preclude Authier from testifying altogether but sought
    to limit his testimony to that of a treating provider. OTC primarily argued that Authier’s opinions should be excluded because the foundation of Authier’s opinions rest solely on information Kirksey (and perhaps his counsel) conveyed to him.

    Authier opined that Kirksey suffers from post-traumatic stress disorder, persistent depressive disorder with paranoid ideation, and generalized anxiety disorder. He further concluded that Kirksey’s negative psychological and psychiatric symptoms are attributable to Kirksey’s time working at OTC. In reaching these conclusions, Authier used a diagnostic interview, Minnesota Multiphasic Personality Inventory, 2nd Edition (“MMPI-2”) and the Sachs Sentence Completion Test. Authier further opined that Kirksey would need weekly psychotherapy sessions for an indeterminate amount of time but “at least a year if not longer and possibly the rest of his life.”

    During his deposition, taken almost a year after his diagnostic interview, Authier testified that Kirksey did not participate in weekly therapy sessions with him. Authier stated that at the time he wrote his opinion he believed weekly therapy sessions would be the best way for Kirksey to recover from his symptoms.

    Authier further testified that he is not an expert in EMDR therapy but stated it might be of help to Kirksey, when done with a specialized provider, to work through some of the symptoms of trauma. Similarly, Authier testified that he is not licensed to prescribe medication but that “the research shows that [psychotherapy along with medication] is the best way to help people that are struggling with psychiatric and psychological symptoms.

    Analysis

    First, OTC argued that Authier’s opinions are irrelevant because the June 18, 2020, incident (of which Authier’s opinion relies) is outside the applicable statute of limitations for Plaintiff’s claims in this lawsuit.

    However, the Court found that Authier’s opinions regarding Kirksey’s conditions and the source of those conditions is wholly relevant to the ultimate issues in this case and his testimony would be useful to the finder in fact when deciding those issues.

    OTC sought to exclude Authier’s opinions as to EMDR therapy and psychotropic medications based on his qualifications. While Authier testified that he is not an expert in EMDR nor a medical doctor, his limited opinions on these two topics fall within his purview of a clinical psychologist.

    Authier did consider whether Kirksey’s symptoms could be attributable to other causes – such as childhood trauma. He determined based on his testing and clinical experience that this was unlikely. Moreover, when presented with records from a prior provider, Authier did not change his opinion.

    The Defendant did not identify any plausible alternative cause of Kirksey’s conditions, thus strengthening the Court’s conclusion that the methodology employed by Authier is reliable. In addition to the diagnostic interview, Authier had approximately 16 sessions with Kirksey which confirmed Authier’s impressions and diagnosis of Kirksey.

    Authier’s clinical impressions, based on his standardized diagnostic tools and his diagnostic evaluation, is that Kirksey is experiencing symptoms and those symptoms are tied to his time at OTC.

    Moreover, OTC sought to exclude Authier’s opinion relating to his original recommendation that Kirksey participate in weekly psychotherapy sessions, arguing it is speculative and unsupported by the facts. The Court found that this information may provide context to the testimony at trial.

    Loudon

    Loudon opined about OTC’s handling of each of Kirksey’s complaints. To sustain a claim against OTC for a racially hostile work environment, Kirksey must show (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based upon race, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the racially discriminatory harassment and failed to take prompt and effective remedial measures to end the harassment.

    At the time of trial, the “promptness” and “effectiveness” of an employer’s response is a question of fact for the jury to resolve and a matter for the Court to instruct.

    Allowing Loudon to testify as an expert to the “adequacy” and “reasonableness” of OTC’s investigation would invade the province of the jury.

    Held

    • The Court denied Defendant Oriental Trading Company’s motion in limine to exclude the testimony of Plaintiff’s expert witness Jerry Authier.
    • The Court granted Plaintiff Keith Kirksey’s motion to exclude the testimony of Timothy Loudon.

    Key Takeaway

    With respect to differential diagnosis, opinion testimony is unreliable “only when an opponent points to a plausible alternative cause of the injury and the doctor offers no explanation for concluding that it was not the sole cause.”

    OTC’s attacks regarding the completeness of Authier’s methodology go to the weight and not the admissibility of his testimony.

    Case Details:

    Case Caption: Kirksey V. Oriental Trading Company Inc.
    Docket Number: 8:24cv268
    Court Name: United States District Court, Nebraska
    Order Date: March 09, 2026
  • Psychology Expert Was Allowed to Opine on Voluntary Adult Sex-Work Subculture

    Psychology Expert Was Allowed to Opine on Voluntary Adult Sex-Work Subculture

    Defendants Brandon Washington and Maria Georgianna Palm are charged with various crimes arising out of their scheme to recruit, entice, harbor, transport, provide, obtain, and maintain vulnerable women, and to perform commercial sex acts for their financial benefit via threats of force, fraud, and coercion.

    The United States of America filed a motion in limine to exclude the testimony of Defendant Brandon Washington’s expert, Dr. Justin J. Lehmiller.

    The Government asked the Court to exclude the testimony of Lehmiller as an expert for several reasons: First, he is not qualified to educate the jury on the topic of sex trafficking, or commercial sex work. Second, he failed to comply with Rule 16(b)(1)(C)(iii) by failing to identify the opinions he will offer. Third, his proposed testimony will attempt to define the law, or it is irrelevant and not likely to assist the jury in deciding the facts in this case. And fourth, it violated Rule 403 because his proposed testimony is substantially outweighed by the danger it would confuse and mislead the jury.

    Psychology Expert Witness

    Dr. Justin J. Lehmiller is a social psychologist, author, and senior research fellow at the Kinsey Institute at Indiana University. Lehmiller received his Ph.D. in Social Psychology from Purdue University. He has authored books such as Tell Me What You Want: The Science of Sexual Desire and How It Can Help You Improve Your Sex Life and The Psychology of Human Sexuality (third edition published in 2023). The Psychology of Human Sexuality is a textbook that is used in college classrooms around the world. He has also published extensively in peer-reviewed journals on sexual behavior, marginalized and stigmatized relationships, casual sex, and consensual non-monogamy.

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

    Discussion by the Court

    While Lehmiller’s disclosure suffered from some deficiencies, primarily the lack of specific opinions, the Court did not find them so limiting as to warrant exclusion. The fact remains that he did identify the subject-matter topics he proposed to testify about. In essence, he provided notice of his expert opinions in summary fashion via general categorizations.

    Next, the Government suggested that Lehmiller’s testimony will impermissibly attempt to define the law and usurp the role of the Court by defining coercion or sex trafficking concepts. The Court will not tolerate this practice from any expert or the Government’s expert. Lehmiller will be permitted to provide testimony about the voluntary adult sex-worker subculture. He will not be permitted to define legal terms or attempt to tell the jury what the law is. Nor will he be allowed to opine on what he believes constitutes illegal coercion, or define what situations constitute “voluntary” sex work from “exploitation” or “trafficking” or attempt to redefine statutory terms.

    It appeared to the Court that Lehmiller’s expert disclosure was timely, and the Government has been provided with adequate notice and is not claiming surprise. Moreover, there are no allegations that the defense seeks to introduce undisclosed areas of his testimony.

    Moreover, the Government is free to attack Lehmiller’s qualifications or the lack thereof. It will be up to the jury to determine how much weight should be accorded to his opinions, but the remedy of outright exclusion is not warranted.

    Finally, the Court did not find that Rule 403 would be violated by allowing this testimony. Providing testimony to provide background, contextual testimony to assist the jury in understanding subject matter outside common experience is relevant and not prejudicial to justify exclusion.

    Held

    The Court denied the Government’s motion to exclude the testimony of Dr. Justin Lehmiller.

    Key Takeaway

    While Lehmiller’s background may be deficient in having exhaustive knowledge of the sex trafficking industry, that is not the standard for Rule 702 admissibility. The Court finds that while not overwhelming, when considering the totality of his education, research and training, Lehmiller’s proposed testimony meets the thresholds of relevance and reliability.

    Please refer to the blog previously published about this case:

    Law Enforcement Expert Allowed to Opine on the Dynamics of Consensual Adult Sex Work

    Case Details:

    Case Caption: United States V. Washington
    Docket Number: 2:23cr58
    Court Name: United States District Court, Washington Western
    Order Date: February 02, 2026