Expert Witness Profiler

Category: Vocational Rehabilitation Expert Witness

  • Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).

    This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).

    While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.

    Defendants filed a motion to exclude the expert opinion of Dr. Harvey Risch as well as those of Lisa Brock and John Cary.

    Epidemiology Expert Witness

    Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.

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

    Human Resources Expert Witness

    Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.

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

    Vocational Rehabilitation Expert Witness

    John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers. 

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

    Discussion by the Court

    Harvey Risch

    Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report. 

    In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.

    Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.

    Relevancy

    To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”

    The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.

    Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees.  Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”

    Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.

    Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”

    Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.

    Reliability

    Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”

    As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”

    In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554. 

    The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.

    Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.

    Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount. 

    Lisa Brock

    In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.” 

    Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”

    The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place. 

    The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.

    John Cary

    On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025. 

    Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.

    Held

    The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.

    Key Takeaway:

    • The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
    • Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.

    Case Details:

    Case Caption: Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al
    Docket Number: 3:23cv5077
    Court Name: United States District Court, Washington Western
    Order Date: May 13, 2025
  • Law And Legal Expert Was Not Allowed to Testify Regarding State Law Ethical Standards

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

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

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

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

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

    Law And Legal Expert Witness

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

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

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

    Vocational Rehabilitation Expert Witness

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

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

    Accounting Expert Witness

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

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

    Discussion by Court

    Motion to Exclude the Opinions of Elizabeth Martina and Harold Asher

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

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

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

    Motion to Exclude Dane Ciolino’s Testimony

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

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

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

    Analysis

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

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

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

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

    Held

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

    Key Takeaway:

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

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

    Case Details:

    Case Caption: Reeder V. Williams
    Docket Number: 2:22cv4614
    Court Name: United States District Court
    Eastern District of Louisiana
    Order Date: April 16, 2025
  • Tennessee Law & Expert Witnesses: Blazin Wings Case Highlights Damage Limits

    Tennessee Law & Expert Witnesses: Blazin Wings Case Highlights Damage Limits

    Charles Haney, an ATM business owner, suffered injuries after tripping over a mat at a Blazin Wings restaurant in Jackson, Tennessee. He was visiting the restaurant to perform routine maintenance on an ATM, one of several that Haney owned and operated throughout West Tennessee. 

    Haney initiated this tort action against Blazin Wings, seeking damages, including lost wages, and retained vocational expert Bruce Brawner and economist Bill Malcolm Brister to support his claims.

    Vocational Rehabilitation Expert Witness

    Bruce Brawner is a vocational rehabilitation counselor and also a life care planner. He formed Brawner & Associates in Madison, Mississippi. He has a master’s degree in vocational rehabilitation counseling from Mississippi State University.

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

    Finance Expert Witness

    Bill Malcolm Brister teaches finance at Millsaps College. He holds a PhD. from the University of Arkansas. He has done a good bit of consulting in the area of litigation support.

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

    Discussion by the Court

    Relying on Federal Rules of Evidence 702 and 403, Blazin Wings made three overarching arguments with respect to Brawner: first, Brawner’s testimony was unnecessary because the jury can assess Haney’s loss of earning capacity without that testimony; second, Brawner’s opinions were unreliable and untrustworthy; and third, Brawner’s testimony will confuse the jury. As to Brister, Blazin Wings likewise invoked Rules 702 and 403. It argues that ” Brister’s opinions are based solely on the unreliable and untrustworthy figures used by Brawner,” and should accordingly be excluded as cumulative, duplicative, and unreliable. Finally, Blazin Wings contended that because Haney cannot recover damages for loss of household services under Tennessee law, Brawner’s and Brister’s opinions regarding that loss are irrelevant and otherwise unreliable. 

    Bruce Brawner

    Defendant’s Objections:

    Blazin Wings first argued that Brawner’s expert testimony was not necessary for the jury to calculate Haney’s lost earning capacity. 

    They asserted that Haney could provide sufficient testimony about his injuries and their impact on his earning capacity, making Brawner’s specialized input unnecessary. The Court held that Haney would be able to testify to the obvious nature of his symptoms and its impact on his ability to work. But it does not follow that an expert witness’s testimony is unnecessary to help establish the extent of his losses. This basis is thus insufficient to exclude Brawner’s testimony.

    Blazin Wings criticized Brawner’s reliance on Department of Labor data for “ATM Servicers,” claiming it was an imprecise match for Haney’s unique business. They insisted on the necessity of Haney’s actual financial records. They argued that Brawner failed to account for Haney’s continued income from his ATMs after the incident. Blazin Wings contested Brawner’s work-life expectancy calculation, arguing that it ignored Haney’s health and medical history, including that Haney has diabetes and has had both his bladder and prostate removed.

    Blazin Wings contended that Brawner’s testimony would confuse the jury and waste time, as the jury could independently assess Haney’s damages.

    Analysis:

    The Court found Brawner’s testimony regarding lost wages relevant and reliable under Rule 702. It emphasized that challenges to Brawner’s data and assumptions affected the weight of his testimony, not its admissibility. The Court stated that cross examination was the appropriate place to challenge the experts findings.

    Bill Brister

    Defendant’s Objections:

    Blazin Wings argued that Brister’s opinions were unreliable because they were based on Brawner’s “unreliable” data. They argued that Brister’s testimony was cumulative, simply “parroting” Brawner’s calculations.

    In his report, Brister relied on the lost earnings calculations provided by Brawner and government data to calculate the present value of those losses. In the appendices to his report, Brister outlined his calculations for various scenarios and provides the sources he relied on.

    Blazin Wings has presented no authority that an expert may not rely on the calculations of another expert. Indeed, under Rule 703 of the Federal Rules of Evidence, “experts may rely on data from others, at least to the extent that the data is of the type reasonably relied on by other experts in the field.”

    Moreover, the Court held that Brister’s testimony is probative as to the issue of damages. Furthermore, reliance on another expert’s report does not necessarily render that expert’s testimony cumulative. While Brister’s report may go to the same issue, it nonetheless offers a distinct perspective on the time-value of Haney’s purported losses. 

    Loss of Household Services

    Blazin Wings argued that Tennessee law doesn’t allow recovery for the general “loss of value” of one’s own household services. The Court agreed, stating that only actual expenditures for replacement household services are recoverable.

    Basically, Brawner relied on “expectancy data” provided by the Department of Labor to inform his calculation——not testimony from Haney regarding what he had paid or would pay someone else to perform household services. Similarly, in his expert report, Brister did not identify any actual or predicted expenditures incurred by Haney on which he based his present value of lost household services figure.

    Since Brawner and Brister’s calculations were based on general data, not Haney’s actual expenses, their testimony on household service loss was excluded.

    Held

    The Court granted in part and denied in part the Defendant Blazin Wings’s motions in limine to exclude the testimony of Bruce Brawner and Malcolm Brister.

    Key Takeaways:

    • Projections of lost wages, by nature, involve a degree of speculation; even where an expert’s factual bases for their conclusions are not particularly strong. It is not proper for the Court to exclude expert testimony merely because the factual bases for an expert’s opinion are weak.
    • Also, the Court recognized that while Haney could testify to the impact of his injuries, expert testimony was necessary to quantify his economic losses.

    Case Details:

    Case Caption: Haney V. Buffalo Wild Wings, Inc.
    Docket Number: 2:23cv2686
    Court: United States District Court, Tennessee Western
    Order Date: March 4, 2025
  • Occupational Medicine Expert Witness’ Testimony As to the Causation of the Subject Incident Admitted

    Occupational Medicine Expert Witness’ Testimony As to the Causation of the Subject Incident Admitted

    This lawsuit involves an alleged slip and fall in the Petco Store. Plaintiff, Lisa Brune alleged multiple injuries caused by the slip and fall and sought damages for same.

    Plaintiff complained that Petco failed to adhere to this Court’s Order. Then Plaintiff complained that the testimonies, opinions, and/or reports of David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez did not meet the requirements under Federal Rule of Evidence 702 and Daubert.

    Plaintiff filed a motion to exclude the testimony of Defendant’s experts David C. Randolph, M.D., Ph.D., and M.P.H. and Stacie Nunez. Alternatively, Plaintiff moved to limit their testimony. Plaintiff complains that Defendant, Petco Health & Wellness, Inc. (“Petco”) failed to timely identify and provide expert reports for these witnesses. 

    Occupational Medicine Expert Witness

    David C. Randolph M.D., Ph.D, M.P.H is an active occupational medicine physician in Cincinnati, Ohio, in practice for 25 years. He is the former president of the American Academy of Disability Evaluating Physicians.

    His doctoral degree is in Epidemiology at the University Of Cincinnati College of Medicine.

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

    Vocational Rehabilitation Expert Witness

    Stacie Nunez is a licensed vocational rehabilitation counselor/ life care planner. She works at an established Louisiana rehabilitation counseling firm.

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

    Discussion by the Court

    Timeliness of Reports

    Plaintiff suggested that the Court clearly indicated that “Petco could provide a single report from an IME physician relating to Brune’s recommended neck surgery, not multiple reports from other unidentified experts.”

    This Court expressly stated that “the Court will grant an extension as to Defendant’s expert report deadline until August 30, 2024.”

    Plaintiff informed the Court that on August 30, 2024, at 7:55 p.m., Petco provided additional reports from David C. Randolph and Stacie Nunez but complained that these two experts were not previously identified, and their expert report opinions are outside the limited purpose of the expert opinions to address Plaintiff’s neck complaints.

    Petco has hired Randolph as an expert in the field of occupational medicine, and Stacie Nunez as a vocational therapist. Randolph’s opinion and analysis rests on the totality of Plaintiff’s medical condition and Nunez’s report opines on a life care plan. It appeared logical to the Court, considering Plaintiff’s numerous complaints of injuries, that these two experts could not provide relevant reports until after Petco was able to address Wolf’s recommended surgical treatment. Also, Plaintiff has ample time to depose these witnesses and prepare for trial considering these experts’ reports were provided on August 30, 20124, and the trial of this matter is November 18, 2024.

    Plaintiff also complained that Petco has provided no dates for her to depose Randolph and Nunez. However, the Court noted that Plaintiff has not filed a motion to compel the deposition of these witnesses. The Court found no basis to strike Petco’s experts based on Plaintiff’s complaints herein.

    Qualifications

    Plaintiff complained of Randolph’s qualifications in the field of occupational medicine. Specifically, Plaintiff argued that Randolph did not have the expertise to opine that Plaintiff’s fall did not cause her bilateral patellar fractures.

    Plaintiff challenged Randolph’s expertise in Epidemiology and argued that Plaintiff’s trip and fall is not associated with the distribution and determinates of diseases or disorders within groups of people.

    Randolph noted that he provided multiple, peer-reviewed medical references that apply specifically to Plaintiff’s clinical presentation. Randolph explained that he personally reviewed the totality of Plaintiff’s submitted medical records, and notes that a fractured patella is extremely painful that would preclude the ability to walk.

    Randolph’s review of Plaintiff’s medical records reflects a history of multiple joint complaints as well as multilevel degenerative changed in her neck and low back that dated back several years.

    The Court has reviewed Randolph’s curriculum vitae and notes that he has vast experiences in the medical field and finds that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.

    Plaintiff also moved to strike the opinion, testimony, and report of Stacie Nunez as to Plaintiff’s alleged knee injury. Nunez relied on the opinions of Randolph. Plaintiff argued that should the Court entertain Plaintiff’s request to strike Randolph’s report and opinions, then likewise, Nunez’s report, opinions, and testimony should be stricken. The Court found no basis to strike Nunez’s opinion, testimony, and report.

    Limitations

    Alternatively, Plaintiff moved to limit Randolph’s testimony, report and opinions to exclude any issues regarding safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, post-accident evaluations, and/or any opinion as to whether the condition at issue that caused Plaintiff’s fall presented a hazardous condition.

    The Court notes that Randolph has experience in areas of acute injury, incident, safety guidelines as well as other related areas of medicine. However, it appeared that Randolph’s report did not include a majority of these areas. As such, the Court will deny and defer ruling until after traversal at the trial of this matter.

    Held

    The Court denied Plaintiff’s motion to exclude untimely identified and/or unqualified expert witnesses, David C. Randolph and Stacie Nunez, or alternatively, to limit their testimony.

    Key Takeaway:

    Plaintiff argued, without explanation, that Randolph is not qualified to opine as to safety engineering, fall prevention, pedestrian safety, workplace safety, premises safety, human factors, ergonomics, or post-accident evaluations, and as such moved to exclude Randolph’s opinions that are allegedly based on subjective interpretations and assumptions. The Court has reviewed Randolph’s curriculum vitae and noted that he has vast experiences in the medical field and found that he is more than qualified to opine, provide testimony and issue a report as to the causation of the subject incident.

    Case Details:

    Case Caption: Brune V. Petco Animal Supplies Inc
    Docket Number: 2:22cv6082
    Court: United States District Court, Louisiana Western
    Order Date: October 10, 2024
  • Vocational Rehabilitation Expert Witness’ Opinions On Wage Rates in the Mexican Labor Market Admitted Despite Alleged Flaws

    Vocational Rehabilitation Expert Witness’ Opinions On Wage Rates in the Mexican Labor Market Admitted Despite Alleged Flaws

    After Aries Marine filed its Complaint for Exoneration from or Limitation of Liability (the “Limitation Action), seven individuals filed claims for personal injury, including Glenn Gibson, Ronald Williams, Luis H. Jimenez (aka Gilberto Gomez Rojas), Gabriel Vilano, Lee Bob Rose, Tomas Arce-Perez, and Calvin Abshire.

    The first six Claimants referenced above have retained Glenn Hebert as an expert in vocational rehabilitation and/or life care planning. They have also retained Randy Rice as an economic expert.

    It appears undisputed for purposes of this motion that Rozas is an undocumented immigrant who is not authorized to work in the United States. During depositions and discovery requests in connection with this matter, Rozas repeatedly invoked the Fifth Amendment’s protection against self-incrimination, refusing to answer questions related to his citizenship status and personal history.

    Before the Court in this limitation-of-liability action arising from the capsizing of the liftboat RAM XVIII is Petitioner Aries Marine Corporation’s motion to exclude the testimony of two of Claimants’ experts—vocational-rehabilitation specialist Glenn Hebert and economist G. Randolph Rice—under Federal Rule of Evidence 702 and Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 

    Economics Expert Witness

    G. Randolph Rice is a well renowned economist. He has a PhD. from the University of Kentucky.

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

    Vocational Rehabilitation Expert Witness

    Glenn Hebert, MRC is a licensed Rehabilitation Counselor and certified Life Care Planner. He has a master’s degree in Vocational Rehabilitation Counseling.

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

    Discussion by the Court

    Aries contended that (1) Hebert’s opinions about Claimant Luis Jimenez’s future lost wages are unreliable because Hebert is not qualified to opine on wage rates in the Mexican labor market; (2) Hebert’s opinions about the cost of Jimenez’s future surgeries are unreliable because Jimenez has testified that he is “not seeking further surgery,” and Jimenez’s doctor has not recommended surgeries of the sort discussed in Hebert’s report; and (3) Hebert’s opinions about the cost of Claimant Glen Gibson’s future lumbar fusion are unreliable because Gibson’s doctor has not recommended that Gibson undergo that procedure. As for Rice, Aries briefly contended that the Court should exclude his opinions because they are based on Hebert’s unreliable opinions.

    However, the “danger that the factfinder will place improper weight on [the experts’] opinions is not implicated here” because the Court “is capable of assessing the probative value of the evidence and the weight [each expert’s] testimony should be given.”

    Held

    Therefore, the Court denied Aries’s motion to exclude the Claimants’ expert testimony provided by Glenn Hebert and G. Randolph Rice.

    Key Takeaway:

    In conclusion, Aries has not persuaded the Court that the alleged flaws in Hebert’s and Rice’s expert opinions cannot be adequately attacked through “[v]igorous cross-examination, presentation of contrary evidence, and careful [attention to] the burden of proof.”

    Case Details:

    Case Caption:  In The Matter Of Aries Marine Corporation Et Al
    Docket Number: 2:19cv10850
    Court: United States District Court, Louisiana Eastern
    Order Date: November 20, 2024
  • Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

    Court Dismissed Objections With Regard to Untimely Designations of Expert Witnesses

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

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

    1. Jon Karraker, a certified public accountant;

    2. Dr. Bruce Morgenstern, a neurologist;

    3. Dr. Philip Stull, an orthopedic surgeon;

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

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

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

    Accounting Expert Witness

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

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

    Neurology Expert Witness

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

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

    Orthopedic Surgery Expert Witness

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

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

    Vocational Rehabilitation Expert Witness

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

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

    Safety Expert Witness

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

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

    Discussion by the Court

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

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

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

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

    Held

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

    Key Takeaway:

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

    Case Details:

    Case Caption: Guernon Et Al V. Barroso Et Al
    Docket Number: 1:22cv2547
    Court: United States District Court for the District of Colorado
    Order Date: October 23, 2024
  • Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    Vocational Rehabilitation Expert Witness’ Testimony Admitted Because he used Data from Industry-Specific Sources

    This is an action for Jones Act negligence, unseaworthiness and unpaid maintenance and cure brought by Eric Ward. On or about December 13, 2021, Ward joined the Yacht as the Electro Technical Officer as part of the Yacht’s engineering department in Miami Beach, Florida at a private residence.

    On night of December 23, 2021, the Yacht collided with the Tropical Breeze, a gasoline tanker (“Tropical Breeze”), off the coast of the Bahamas due to the Captain’s negligence. Plaintiff Ward was working on the Sky Lounge aft of the Bridge with the charter guests, assisting them in connecting to the Yacht’s onboard entertainment systems. During the collision, Plaintiff Ward was thrown off his feet and collided with a wall, causing his injuries. The Defendant Yacht and its owner, Utopia refused to pay and delayed payment for the medical expenses as part of Plaintiff Ward’s cure benefit as a seaman.

    The Defendants filed a motion to exclude the testimony of Ira Morris and Oscar Padron for failure to meet the minimum standards of expert testimony.

    Vocational Rehabilitation Expert Witness

    Ira Morris performs vocational evaluations to identify occupational options and determine earning capacity, as well as assessments to evaluate the loss of earning capacity resulting from an injury or illness. As a Life Care Planner, he develops plans to identify future needs, including medical, therapeutic, adaptive equipment, and ancillary or residential services, resulting from an injury or illness. He provides expert witness testimony on these issues, and his opinions have been accepted in state and federal courts, in civil, family law, and state workers’ compensation matters.

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

    Accounting Expert Witness

    Oscar Padron holds multiple professional designations and qualifications in the fields of accounting, financial planning, and valuation. His credentials include Certified Public Accountant, Certified Financial Planner and Certified Valuation Analyst. He has earned a B.B.A. in Accounting (1980) and an M.S. in Finance (1989), both from Florida International University. Padron is currently a partner at Turner & Associates, LLP, with extensive experience in litigation support, economic valuations, and forensic accounting.

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

    Discussion by the Court

    Ira Morris

    Ira Morris is the Plaintiffs’ vocational rehabilitation and life care plan expert, and Oscar Padron is the Plaintiffs’ expert on economics. The Defendants argued that Ira Morris used an unreliable methodology because he “relied heavily on Ward’s accounts of the facts pertaining to them without independently verifying the same when formulating his life care plan.” Moreover, he relied on his own summaries of private telephone conversations he had with treating medical professionals in formulating his opinions, though he admitted he lacks the medical knowledge to evaluate the medical findings.

    With respect to Morris, the Plaintiffs argued that his methodology was reliable because it adhered to the Standards of Practice for Life Care Planners, a peer-reviewed manual prepared by the International Academy of Life Care Planners, and the RAPEL Method, also a peer-reviewed and widely accepted method. The Plaintiffs also noted that Morris: (1) relied only on materials that were in his possession and obtained through interviews; (2) used data from industry-specific sources in assessing Ward’s loss of earning capacity; and (3) relied on health recommendations from the parties’ independent providers that were provided with “signed verifications attesting to the summaries of information and analyses they provided in support of Morris’ opinions and conclusions.”

    Plaintiffs also disputed various contentions made by the Defendants. The Plaintiffs noted that Morris relied on market data in addition to Morris’ contract; Morris did not provide causation opinions; Morris’ reports do not include paid cure expenses or expenses incurred after Ward reached their Maximum Medical Improvement; collateral sources such as Medicare are not considered when making life care plans; Ward’s tax returns were not necessary because Morris relied on labor market data.

    Oscar Padron

    As for Oscar Padron, the Defendants alleged that his methodology is likewise unreliable because it is based almost entirely on Morris’ conclusions and it was prepared in less than a day. According to the Defendants, Padron admitted in his deposition that he did not independently verify any information regarding Ward complaints because it was “beyond the scope of what he was asked to do,” and “he simply accepted and quantified the opinions of Ira Morris.”

    With respect to Padron, the Plaintiffs argued that when quantifying Morris’ conclusions, Padron used widely accepted standard practices such as using the applicable interest rates, growth rates, discount rates, inflation rates, and life expectancy data. He also relied on reputable publications, including those that were peer-reviewed. Moreover, his methodology was consistent with the standards of the Association of Forensic Economics and the American Institute of CPAs.

    Held

    The Court denied the Defendant’s Daubert motion to exclude the testimony of Ira Morris and Oscar Padron. The Court found that the experts were qualified and their methodologies were reliable. Therefore, their testimony will be helpful to the jury. The Defendants may cross-examine the experts on any perceived deficiencies.

    Key Takeaway:

    The Defendants did not dispute that the experts are qualified. They contended that Morris should be precluded from providing any medical or liability testimony. They maintained that Morris used an unreliable methodology because in addition to the reasons cited in the original motion, he relied on an incomplete record. 

    As to Padron, the Defendants maintained that his methodology was unreliable (and therefore not helpful) because he exclusively relied on Morris’ unreliable findings. 

    However, the Court found that the experts were qualified and their methodologies were reliable.

    Case Details:

    Case Caption: Ward V. M/Y Utopia Iv Et Al
    Docket Number: 1:22cv23847
    Court: United States District Court, Florida Southern
    Order Date: October 3, 2024
  • Vocational Rehabilitation Expert Witness’ Testimony about Reasonableness of Employment Termination Excluded

    Vocational Rehabilitation Expert Witness’ Testimony about Reasonableness of Employment Termination Excluded

    Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed suit against Defendant, the Defender Association of Philadelphia, alleging that the Defender Association failed to provide “M.P.” with a reasonable accommodation for her disability and terminated her employment in violation of the Americans with Disabilities Act (“ADA”). EEOC filed a motion to exclude the Defender Association’s expert, Irene Mendelsohn.

    In July 2017, Megan Perez, after holding various attorney positions with Defendant for over a decade, began a medical leave of absence from her position as Supervisor of the Juvenile Special Cases Section, which required her to work on cases involving sex crimes. The leave was necessary due to Perez being diagnosed with Post-Traumatic Stress Disorder and Major Depression Disorder and requiring intensive treatment. On September 13, 2017, Perez, on the recommendation of her therapist, Laurie Patterson, requested two reasonable accommodations: (i) to remain on medical leave until January 2018, and, (ii) upon her return, to be transferred to a position that did not require her to work on cases involving sex crimes.

    While Perez was on leave, Patterson submitted a report (the “October 2017 Medical Memorandum”) to Lincoln Financial (“Lincoln”), Defendant’s short-term disability (“STD”) and long-term disability (“LTD”) insurance carrier. Despite the stated plan for Perez to return in January 2018, Defendant terminated her based entirely on Lincoln approving her for LTD benefits.

    Vocational Rehabilitation Expert Witness

    Irene Mendelsohn provides vocational assessments and vocational counseling including interviewing, transferable skills analysis, vocational testing, and labor market and vocational research.

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

    Discussion by the Court

    The Defender Association has produced the five-page expert report of Irene Mendelsohn, a vocational counselor, and sought to offer her expert testimony at trial. Although the Defender Association originally stated that this report would opine on whether M.P. could perform the essential functions of her job, the report instead discussed the reasonableness of Defendant’s decision to terminate M.P. (“the Termination Opinion”) and M.P.’s mitigation efforts after her termination (“the Mitigation Opinion”).

    A. The Termination Opinion

    Mendelsohn opined that the Defender Association’s decision to terminate M.P. was “reasonable” because “[M.P.’s] diagnoses amounted to a disability that made her unable to work as an attorney.”

    Mendelsohn provided four reasons to undergird her opinion that the termination of M.P. was “reasonable”: (1) In late November 2017 when the termination was decided, M.P. was not able to work due to her disability; (2) M.P. or her therapist, Laurie Patterson, could have objected to the termination prior to its actual occurrence, but neither did; (3) M.P. had been approved for STD and LTD benefits, which meant that she could not work as an attorney when she was terminated; and (4) M.P. continued to receive LTD benefits until the fall of 2018 and that “while it was obviously unknown by [Defendant] at the time of termination how long [M.P.] would remain disabled from working as an attorney, the length of time now known that she was disabled from engaging in that work lends strong support to the appropriateness of the decision.”

    The Court believed that the fact that M.P. received disability benefits does not in itself establish that she could not perform the essential functions of a job with reasonable accommodation after a certain time. Moreover, relying on the LTD benefits M.P. received after her termination is improper because it depends on information unknown to the Defendant at the time of M.P.’s termination and discounts potentially new reasons for her continuation of LTD benefits.

    The Court held that Mendelsohn relied on largely irrelevant facts, did not state a methodology, and reached a conclusion that would be unhelpful to a jury.

    The Mitigation Opinion

    Mendelsohn concluded that M.P.’s mitigation efforts were below appropriate job search efforts. Mendelsohn stated that her opinion is based on “multiple factors including the very low unemployment rate (particularly for individuals with higher levels of education), and that according to data provided by both the U.S. Department of Labor, the Office of Occupational Statistics and Employment Projects, and Chron., employment opportunities for attorneys were projected to grow at a high-very high rate.” Mendelsohn opined that M.P. should have obtained full-time employment within three to six months after she stopped receiving LTD benefits in November 2018. Mendelsohn did not clarify whether the “multiple factors” that she relied on were solely the data from the mentioned sources or whether she used additional factors. Nor did Mendelsohn attach the specific rates and data that she relies upon, leaving the Court in the dark as to how she employed the data in her analysis.

    Held

    The Court granted Plaintiff’s motion to exclude the report and recommendation of Irene Mendelsohn.

    Key Takeaways:

    • Since Mendelsohn relies on largely irrelevant facts, does not state a methodology, and reaches a conclusion that would be unhelpful to a jury, her opinion on the reasonableness of the Defender Association’s termination decision will be excluded.
    • Mendelsohn did not articulate any methodology for reaching her conclusion. Instead, the Court must guess how “multiple factors” led her to conclude that M.P. should have been employed within three to six months after she stopped receiving benefits. Because the mitigation opinion is conclusory and will not assist the trier of fact, it will be excluded.

    Case Details:

    Case Caption: Equal Employment Opportunity Commission V. Defender Association Of Philadelphia
    Docket Number: 2:19cv1803
    Court: United States District Court, Pennsylvania Eastern
    Order Date: August 29, 2024
  • Physical Medicine Expert Witness Fails to Consider Alternate Causes

    Physical Medicine Expert Witness Fails to Consider Alternate Causes

    The personal injury case stemmed from a rear-end collision on August 7, 2019. The Plaintiff, Sarah Ann Stratemeyer filed negligence claims against Kyle Thomas Pliler and his employer, Northstar Construction Management Company, Inc., seeking damages for bodily injuries, loss of e arnings, and loss of ability to earn money. At the time of the accident, Sarah was a nursing student at Renaissance Health Institute. In January 2022, she failed her nursing school exit exam, which she attributed to a mild traumatic brain injury allegedly sustained as a result of the accident. The Plaintiff intended to call two expert witnesses: Dr. Craig H. Lichtblau, a physical medicine and rehabilitation doctor, to testify about future medical costs and disabilities, and Dr. Julianne Frain, a vocational rehabilitation expert, to discuss limitations on the Plaintiff’s future ability to work.

    Defendants requested that the Court prohibit Lichtblau and Frain from testifying about Plaintiff’s pre-incident intellectual and cognitive functioning and Plaintiff’s inability to pass her nursing school exit examination as a result of the 2019 accident.

    Defendants attacked the testimony on three bases: (1) neither expert is qualified to opine on these matters; (2) the experts’ testimony is ipse dixit, unreliable, and unsupported by facts or evidence; and (3) the testimony would confuse the jury. 

    Vocational Rehabilitation Expert Witness

    Dr. Julianne Frain is a Certified Rehabilitation Counselor, Certified Life Care Planner, and Diplomate with the American Board of Vocational Experts. She is typically hired in the areas of vocational rehabilitation, life care planning, or both concentrations combined. Dr. Frain has 15 years of experience handling claims within various forms of injury and family law matters. She renders opinions on vocational assessment, disability, pre-and-post incident earning capacity, re-employment, rehabilitation, and life care planning. Additionally, she provides insights on the usual and customary costs of medical care.

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

    Physical Medicine Expert Witness

    Dr. Craig H. Lichtblau specializes in physical medicine and rehabilitation, focusing on medical functional capacity and impairment levels. His areas of expertise include disability evaluations, chronic pain management and defining impairment, disability and cost for future medical care.

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

    Discussion by the Court

    Julianne Frain

    Frain, a vocational rehabilitation expert, provided testimony based on her evaluation of the Plaintiff and review of medical records. She focused on assessing the Plaintiff’s future earning capacity and loss of earning potential following the 2019 accident.

    In her analysis, Frain assumed the Plaintiff would have likely completed her nursing program if the accident had not occurred. She presented this as an assumption rather than a causation opinion. She explicitly stated that she did not have independent medical causation opinions. Instead, she relied on medical records and diagnoses from treating doctors and other medical experts involved in the case.

    During her deposition, Frain initially expressed uncertainty about whether the Plaintiff would have passed the exit exam without the accident. However, she later opined that the 2019 accident was a “contributing factor” and “likely” caused the Plaintiff to fail the examination. Frain declined to offer opinions on the Plaintiff’s pre-accident intellectual or cognitive functioning. She deferred to neuropsychological evaluations for such assessments.

    While not explicitly mentioned in the Court’s analysis, she likely included an assessment of the Plaintiff’s work capacity and potential job options in her report, as is typical for vocational rehabilitation experts.

    Craig Lichtblau

    Lichtblau, an expert in physical medicine and rehabilitation, provided testimony focused on the Plaintiff’s medical functional capacity and level of impairment following the 2019 accident. In his report, he opined that the Plaintiff had the functional capacity to work 8 hours per day on an uninterrupted basis. He recommended “sedentary light” positions and noted that the Plaintiff’s disability would increase as she aged. He also stated that she would suffer from acute, intermittent exacerbations of chronic pain and discomfort. Lichtblau attributed many of the Plaintiff’s current medical conditions to the 2019 incident. He repeatedly stated that her medical issues were “secondary” to the injuries sustained in the accident.

    During his deposition, he described the Plaintiff’s injuries and how they affected her post-accident levels of cognitive functioning. However, he did not directly address her pre-accident intellectual functioning in his report or deposition. Regarding the Plaintiff’s exit examination failure, Lichtblau declined to comment on the likelihood of her passing the exam in the future but stated that it would be “a very difficult road for her” due to her injuries. He did not provide a specific opinion on whether the 2019 accident caused the Plaintiff to fail her exit examination.

    Findings of the Court

    The Court found that both experts failed to properly disclose opinions on the Plaintiff’s pre-accident intellectual functioning and causation for failing the exit exam. This was required under Federal Rule of Civil Procedure 26(a)(2)(B)(i). The Court emphasized that expert reports must include “a complete statement of all opinions the witness will express and the basis and reasons for them.”

    For Frain, the Court noted that her report did not offer opinions on pre-accident intellectual functioning. She explicitly stated in her deposition that she would not opine on this topic. Regarding the Plaintiff’s failure to pass the exit examination, Frain’s report mentioned the accident as a contributing factor. However, she presented it as an assumption rather than a causation opinion.

    The Court also determined that the Plaintiff failed to adequately refute the Defendants’ arguments in her response. The Plaintiff’s brief focused on general qualifications and methodology rather than addressing the specific topics the Defendant sought to exclude.

    For Lichtblau, in addition to the disclosure issues, the Court conducted a Daubert analysis. It found that his testimony on these topics did not meet the reliability standard. The Court noted a lack of methodology for assessing pre-accident intellectual functioning. It also found a failure to consider alternative causes for the exam failure, such as the low overall passage rate.

    Held

    The Court barred Julianne Frain and Craig Lichtblau from offering opinions on the Plaintiff’s pre-accident intellectual functioning and the causal link between the 2019 accident and her exit exam failure.

    Key Takeaways

    1. Experts must properly disclose all opinions they intend to offer at trial in their reports, as required by Federal Rule of Civil Procedure 26(a)(2)(B)(i).

    2. Parties must adequately respond to and refute opposing arguments in motions, addressing specific points raised rather than making general arguments.

    3. Expert testimony must meet the Daubert standard for reliability, which includes having a sound methodology, considering alternative explanations, and avoiding impermissible analytical leaps.

    4. Courts may exclude expert testimony on specific topics even if the expert is generally qualified in their field, particularly when the expert lacks the necessary basis or methodology for those specific opinions.

    5. Assumptions used in an expert’s analysis should be clearly distinguished from causation opinions.

    6. Failure to consider obvious alternative explanations (such as the low overall passage rate for an exam) can render an expert’s opinion on causation unreliable.

    7. The Court’s gatekeeping role under Daubert is crucial in ensuring that only reliable and relevant expert testimony reaches the jury.  

    Case Details:

    Case Caption: Stratemeyer v. Northstar Constr. Mgmt. Co.
    Docket Number: 9:23cv80147
    Court: United States District Court for the Southern District of Florida
    Order Date: April 16, 2024
  • Vocational Rehabilitation Expert Witness’ Analysis of the Plaintiff’s Earning Potential Rejected

    Vocational Rehabilitation Expert Witness’ Analysis of the Plaintiff’s Earning Potential Rejected

    Plaintiff, Alex Mundy, a former graduate student at the University of Wisconsin—Madison, filed this lawsuit against the Board of Regents of the Universities of Wisconsin (the Board of Regents) alleging illegal retaliation in violation of the Rehabilitation Act. Mundy claimed the Board of Regents retaliated against her by refusing to award her a coursework master’s degree because she filed a previous lawsuit alleging Professor Cameron Currie deprived her of a master’s research degree in bacteriology because of her disability in violation of the Rehabilitation Act.

    In her first case, Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. Schutz did not update his 2021 report for this case. The Board of Regents moves to exclude his testimony as inadmissible under Federal Rule of Evidence 702.

    Vocational Rehabilitation Expert Witness

    Kevin Schutz has worked for Professional Rehabilitation Services for over 35
    years, where he currently works as a vocational rehabilitation counselor. He also has a master’s degree in rehabilitation psychology.

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

    Discussion by the Court

    In his report, Schutz opined that Mundy would be able to earn approximately an additional $20,000 per year if she had a master’s degree in bacteriology. Schutz explained that this estimate is based on a comparison of the average pay of life scientists in the Madison labor market to the average pay of public health and social service workers.

    He stated that these estimates were based on 2019 data from the Wisconsin Department of Workforce Development, and that, at the time Schutz interviewed Mundy to prepare his report, Mundy was earning $54,000 annually working as an associate project coordinator at a clinic research company, which put her in the middle of the pay range for public health and social service workers. Schutz also opined that Mundy could remediate her lost earning capacity by going back to school to earn the master’s degree, which would reduce her earning by $50,000 to $100,000 over the year or two year that it would take her to complete the degree.

    The Court held that there were fundamental problems with how Schutz applied the general method in his report despite there being nothing inherently unreliable about the method that Schutz used to evaluate the earning gap that Mundy suffered without a bacteriology master’s degree.

    Schutz concluded that her earning potential without the completed bacteriology degree was $50,000 to $60,000 per year, but with the degree it would have been $70,000 to $80,000 per year, resulting in annual lost earnings of $20,000.

    Schutz’s analysis was severely flawed

    The Court found several flaws wth Schutz’s analysis. To start, Schutz framed his analysis by citing “Examples of options available to Mundy with a completed Bachelor of Science degree in bacteriology would be positions found in life science and social science environments.” But Mundy was pursing a master’s degree in bacteriology. And she already had a master’s degree in pubic health. So it’s not clear that Schulz had properly identified Mundy’s qualifications and identified the proper comparator positions.

    Next it’s not clear what positions Schutz thought would be available to Mundy with her completed bacteriology degree. Schutz provided the “the average pay to life scientists in the Madison labor market,” but he did not explain what positions were included in reaching that average. “Life scientist” could refer to a wide range of jobs, from that of a routine laboratory technician with a technical degree to high-level research requiring an advanced degree. It is impossible to assess whether it is reasonable to compare Mundy’s earning potential with a master’s degree in bacteriology to the average life scientist salary without knowing if the jobs included in that average are ones that Mundy might be able to get. 

    Schutz’s analysis of Mundy’s earning potential without the bacteriology master’s degree had similar problems. Schutz begins by saying that Mundy’s employment options without the bacteriology degree “would revolve around employment in public health and social service types of environments,” presumably because she already had a master’s degree in public health. But the example salaries that Schutz provided were for a “health education specialist,” “community and social service specialists,” “administrative assistant types of positions,” and “administrative or social/human service types of positions.”

    Schutz’s 2024 deposition

    Schutz testified that he stood by his original opinion that Mundy has a $20,000 annual earning gap without the bacteriology degree, and he opined that he believes the earning gap will last for the remainder of Mundy’s career.

    Schutz’s deposition testimony is that Mundy, over the course of three years of work in her profession, has remediated any impairment in her earning potential. Perhaps Mundy endured some loss of earnings over the course of the last three years, but Schutz provided no opinion on that. Perhaps inflation played a role in the increase in Mundy’s salary, but Shutz provided no opinion on that either. In other words, Schutz’s own testimony earlier in his deposition contradicted his conclusion. 

    Held

    The Court concluded that Schutz’s conclusion that Mundy will endure a permanent impairment of her earning potential of $20,000 per year is a mere conclusion without supporting analysis. The Court excluded the testimony of Kevin Schutz.

    Key Takeaway:

    Alex Mundy supported her claim for damages with vocational expert Kevin Schutz, who provided a report in July 2021. The Court found several flaws wth Schutz’s analysis. For instance, Schulz had not properly identified Mundy’s qualifications or the proper comparator positions. Besides, Schutz’s own testimony earlier in his deposition contradicted his conclusion about Mundy’s $20,000 annual earning gap.

    Case Details:

    Case Caption: Mundy, Alex V. Board Of Regents For The University Of Wisconsin System
    Docket Number: 3:22cv561
    Court: United States District Court for the Western District of Wisconsin
    Order Date: June 26, 2024