Expert Witness Profiler

Blog

  • Consumer Product Safety Expert Witness’ Testimony About the Availability of Pop-up Warning Technology Excluded

    Consumer Product Safety Expert Witness’ Testimony About the Availability of Pop-up Warning Technology Excluded

    On June 20, 2015 at approximately 1:00 am, Thomas Power was using the Elitebook while at a 24-hour gym with the computer balanced directly on his lap. After using the computer for approximately 20-60 minutes, the laptop exploded into flame, burning Power’s legs.  He sustained serious injuries, including burns requiring a skin graft, hydrotherapy, catheterization, and intravenous antibiotics. After the accident, Power claims that he began to experience urinary and bowel incontinence.

    Plaintiff Power, via counsel, brought this suit against Defendant, the Hewlett-Packard Company (“HP”), seeking monetary relief for injuries he suffered as a result of his HP-brand laptop catching fire while on his lap. The Defendant filed a motion to exclude the remaining testimony of Plaintiff’s only remaining proffered expert, William F. Kitzes.

    Consumer Product Safety Expert Witness

    William F. Kitzes has over 35 years of safety management experience at the U. S. Consumer Product Safety Commission, the Institute for Safety Analysis and Consumer Safety Associates, where he currently serves as Principal Safety Analyst and Product Safety Manager. He is a Board Certified Product Safety Manager and Hazard Control Manager, and holds a Certificate in Safety Management from the American Society of Safety Engineers.  He has testified in over 100 trials in 28 states, Canada and Australia.

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

    Discussion by the Court

    Kitzes prepared an expert report opining, among other things, that HP had, by late 2007, developed a battery authentication system for certain laptops to identify ‘counterfeit’ battery packs, yet the HP EliteBook that Power had been using on the day of the fire did not include such a system.

    According to the Defendant, Kitzes’”sole source” of methodology for that opinion was “a document [that] Kitzes claimed to have found on HP.com… published on September 29, 2020—over ten years after the manufacture” of the at-issue laptop computer.

    In attacking the notion that the referenced document existed at the time of the laptop’s explosion, the Defendant submitted an affidavit signed by an HP representative averring that the at-issue document had in fact been created on or about September 29, 2020, and therefore could not have been in existence when the fire occurred. The Court concluded at that time that the affidavit offered by the Defendant failed to comply with the requirements of Fed. R. Civ. P. 56(c)(4).

    At the same time, the Court held that,

    “if the sole source of Kitzes’ opinion about the existence of pop-up technology was a document whose contents, as relevant here and as indicated by uncontroverted evidence, postdates the manufacture of the at-issue computer by twelve years,” “then the Court would likely determine that the methodology underlying [Kitzes’ proffered opinion testimony] was unreliable and prevent him from testifying as to it.”

    Availability of Pop-up Warning Technology

    After being granted leave to file a supplemental brief reaffirming its Motion for Summary Judgment and supplementing its Motion in Limine seeking to exclude Kitzes’ testimony, Defendant filed such supplemental brief which included a new affidavit, this time sworn by Wesley Dale, a Computing Operations Lead at HP with personal knowledge of the availability of pop-up warning technology for HP laptop computers and of the existence of the referenced document on HP.com.

    Within the affidavit, the affiant swore upon personal knowledge and expertise that the pop-up technology and documentation did not exist prior to September 29, 2020. As such, the Dale affidavit met the personal knowledge requirement under Fed. R. Civ. P. 56(c)(4).

    The Court concluded that the Dale affidavit sufficiently proved that the document upon which Kitzes relied in stating his conclusion that the pop-up warning technology was available to HP in 2007 is unreliable, as that “HP.com” page and content did not exist until 2020, far after Power’s laptop exploded.

    Neither party disputed that the sole source of Kitzes’ belief that the pop-up authentication technology existed at the time of the at-issue computer’s manufacture was one document that Kitzes referenced. And HP has provided uncontroverted evidence, in the form of a Rule-compliant affidavit supported by multiple exhibits, demonstrating that the document relied upon by Kitzes did not exist on the HP.com webpage until September 2020. The Plaintiff failed to make a convincing argument as to why, despite the evidence provided by the Defendant, the document would have been created in late 2007, then deleted, then reposted in 2020.

    Amendment to Federal Rule of Evidence 702

    The Court would have come to the above conclusion in any event but does so especially in light of the amendment to FRE 702 that became effective on December 1, 2023. The amendment to the Rule does two things: first, it clarifies that expert testimony is not to be considered presumably admissible, but is instead subject to a preponderance of the evidence standard; and second, it emphasizes that a court must evaluate the reliability of an expert’s conclusions drawn from his or her methodology, not just the methodology itself.

    Held

    The Court granted Defendant’s motion to exclude the testimony of William F. Kitzes, J.D. as to the existence of pop-up warning technology at the time that Power’s laptop exploded.

    Key Takeaway:

    After evaluating Kitzes’ conclusion drawn from his methodology—i.e., his conclusion that the pop-up authentication technology existed at the time of the explosion because a document could have existed on a website in 2015, even though there is no evidence that it existed prior to 2020—the Court concludes that that conclusion is speculative at best, and legally and factually unreliable.

    Case Details:

    Case Caption: Power V. Hewlett-Packard Company
    Docket Number: 2:17cv154
    Court: United States District Court for the Western District of Pennsylvania
    Order Date: July 19, 2024
  • Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    Obstetrics and Gynecology Expert Witness Barred from Testifying About Plaintiff’s Expressed Desire for Cesarean Delivery

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    In the instant motion, Defendant sought to exclude certain portions of opinions rendered by Plaintiffs’ expert witness, Dr. Adam Levy, M.D., because: his opinions regarding estimated fetal weight are unreliable; his opinions regarding Jenna’s operative delivery and using forceps resulting in excessive force are unreliable; his opinions about obtaining Jenna’s informed consent are unreliable; his opinions that Justin Pilgrim, D.O., and Asha Mada, D.O., were unqualified or incompetent are unreliable; his opinions that the medical care rendered to repair Jenna’s laceration injury are unreliable; and his opinions about the cause of the Minor Plaintiff’s injuries are unreliable and his deference on causation to a neonatologist acknowledged his lack of expertise.

    Obstetrics and Gynecology Expert Witness

    Dr. Adam Levy is a board-certified obstetrician gynecologist and has been a Fellow of the American College of Obstetrics and Gynecology since 1993. During his service in the Air Force he served as an OB/GYN specialist. He currently supervises and instructs residents in a high-risk pregnancy population labor and delivery.

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

    Discussion by the Court

    Plaintiffs argued that Levy’s opinion that Defendant’s physicians failed to appreciate the risk for delivery complications because pre-delivery fetal growth was beyond the norm comports with accepted medical literature and therefore his opinion that the physicians who chose to deliver with forceps fell below the standard of care is reliable. As to Levy’s opinions regarding operative vaginal delivery, Plaintiffs argued that they are based on medical records and literature, and thus reliable.

    Plaintiffs argued that Levy’s opinion that Jenna was not given a meaningful choice as to the method of delivery is “consistent with the modern standards of the medical community, his own deposition testimony, and thus [is] reliable and should not be excluded.” As to Levy’s opinions regarding the standard of care provided by Pilgrim and Mada in proceeding with forceps delivery, Plaintiffs pointed to his education, work and training in the area of high-risk obstetrics in a teaching hospital as qualifying him to render his opinions and submit that qualifications go to weight and not admissibility.

    As to Levy’s opinion that the repair of the perineal laceration was done incorrectly, Plaintiffs submit that he is qualified to opine on the repair based on his education, training and experience. Plaintiffs submit that Levy’s opinions “regarding the traumatic birth being the cause of injuries to J.A.G. and his mother” are based on risks identified in medical literature and thus reliable.

    Levy opined that “[t]he breaches of the standard of care of [J.A.G.] has caused brain damage” and that “cesarean delivery would have prevented both the newborn birth injuries and maternal injuries in this case.”

    Levy’s opinions relate to the issue of medical standard of care

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. The Court ruled that Levy’s opinions relate to the issue of medical standard of care. If he has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff “has caused brain damage among the multitude of injuries that are currently being treated and will require further treatment far into the foreseeable future[,]” and that opinion is excluded.

    As for his opinion regarding Jenna’s statements about whether she gave informed consent; the Court held the information to be factual because it did not require the assistance of an expert as required by Rule 702. The Court also excluded his opinion about Mada’s motivations. His conclusion that Jenna’s expressed desire for cesarean delivery was also ignored, was considered speculative at best.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the expert report and testimony of Dr. Adam Levy, M.D.

    Key Takeaway:

    Defendant did not challenge Levy’s opinions as being irrelevant nor that he lacks qualification in the field of obstetrics and gynecology. However, because Levy has deferred to a neonatologist as to the cause of the minor Plaintiff’s injuries, the Court believed that he is not qualified to render opinion testimony that the physicians’ breaches of the standard of care for the minor Plaintiff is the cause of brain damage.

    Please refer to the blog previously published about this case: Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court, Hawaii
    Order Date: September 5, 2024

  • Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Human Resources Expert Witness’ Testimony About Retaliation Excluded

    Carol Stepien is a former employee of the National Oceanic and Atmospheric Administration (“NOAA”) in Seattle. She  worked at the Pacific Marine Environmental Laboratory (“PMEL”), a lab within NOAA, an agency in the Department of Commerce. She contended that NOAA had discriminated against her based on her sex and age, subjected her to a hostile work environment, and retaliated against her when she complained. NOAA countered that Stepien had engaged in various forms of misconduct, including mistreating colleagues, as detailed in an extensive, independent investigation.

    Stepien sought to exclude Erick West‘s testimony regarding mitigation, backpay, front pay, and lost retirement benefits while NOAA sought to exclude some of the opinions of Deborah Diamond, Stepien’s expert on “HR and [i]nvestigations.” 

    Economics Expert Witness

    Erick West has bachelor’s and master’s degrees in economics from the Washington State University and has been working as an economist since 2003. He is a forensic economist who serves as the President of West Economics, Inc. He has extensive experience investigating economic damages involving hundreds of different occupations and industries.

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

    Human Resources Expert Witness

    Deborah Diamond has worked as “a federal manager, management official, agency-grievance examiner, and certified mediator,” and has “extensive knowledge of federal government human-resource policies and procedures, including those regarding discipline.” She has worked as an EEO Officer and an investigator for the IRS, and as an independent fact-finder and licensed private investigator. 

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

    Discussion by the Court

    Stepien’s Motion to Exclude Erick West

    Stepien contended that although she has diligently searched for another job since leaving NOAA, she has been unable to obtain other employment. NOAA asserted an affirmative defense that Stepien failed to mitigate her damages, and disclosed Erick West as a rebuttal expert regarding Stepien’s claimed damages.

    West opined about the amount of Stepien’s past lost wages, health, and TSP benefits; her future lost wages, health, and TSP benefits; and her future lost FERS pension benefits. He calculated how her salary would have increased over time had she remained employed with NOAA, and noted the cash awards she could have received. West also opined that “with a reasonable job search effort, Stepien should have been able to secure alternative employment by at least April 1, 2023 that was commensurate with her education and extensive work experience.” He bases that conclusion on statistics from the U.S. Bureau of Labor Statistics (“BLS”) regarding the average duration of unemployment for job seekers in 2021 and 2022.

    Methodology

    Stepien argued that West cannot opine regarding whether she conducted a reasonable job search. Stepien also argued that West should not be permitted to testify regarding whether she would have found a job within two years based on BLS data because those statistics are “not even tailored to a person of her educational background and experience.”

    The Court held that the the problem here is not the reliability of BLS data in general, but the fact that West fails to set forth how he reached his assumption that it should have taken Stepien no more than two years (three to four times the average length of time) to obtain a job “that was commensurate with her education and extensive work experience.”

    West did not specify what that methodology was or how he applied it here to discern the amount of time it should have taken Stepien to secure another job. 

    Helpfulness to the Trier of Fact 

    West’s report listed six positions “that are commensurate with Stepien’s education and employment history.” The Court held that opinion to be the province of a vocational expert, which West was not.

    Even if West had the requisite experience to opine on this issue, his opinion about other “commensurate” positions is not helpful to the trier of fact because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    However, Stepien did not dispute that West’s analysis of Stepien’s alleged lost past and future wages and benefits, salary growth at NOAA, her paid health benefits, employer-paid retirement benefits, worklife expectancy, and life expectancy were within his expertise, consistent with Rule 702.

    NOAA’s Motion to Exclude Certain Testimony of Deborah Diamond

    NOAA noted that Diamond offered opinions “about the investigatory process, or what she describes as ‘investigating the investigations.’” Although NOAA contended that those opinions “are of little relevance,” it “did not challenge them.”

    NOAA objected to Diamond’s opinions about whether NOAA’s selected discipline complied with NOAA and DOC policies and “industry standards” as well as its administrative leave policy. It also sought to exclude Diamond’s opinions about whether NOAA retaliated against Stepien.

    Diamond opined on generally accepted standards of performance, included a chart regarding how NOAA “addressed Stepien’s performance/conduct issues compared to the standard practices for addressing performance/conduct issues,” opined that discipline should be “progressive,” and opined “on whether the discipline imposed was administered appropriately” to Stepien. She described generally accepted standards regarding when and how administrative leave should be used. Diamond opined, among other things, that “[f]or most human resource professionals, the decision to discipline Dr. Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable Equal Employment Opportunity (EEO) laws.”

    Helpfulness to the Trier of Fact 

    The Court held that the issue is not whether NOAA followed best practices but rather whether it followed its own policies, and whether its stated reasons for its actions were honest or the product of discrimination or retaliation. For the same reasons, Diamond’s opinions regarding adherence to industry standards and her suggestion of a lengthier progressive discipline process would not be helpful to the trier of fact. Moreover, NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    NOAA also argued that Diamond’s opinions about why the agency placed Stepien on administrative leave and requested a supplemental investigation are speculative and must therefore be excluded. Diamond opined during her deposition that NOAA might have (1) extended Stepien’s leave to create an opportunity for her to engage in further misconduct, (2) obtained a supplemental report from the investigators for improper reasons, and (3) added a broad conduct unbecoming allegation because the agency was not confident that other charges would be sustained.

    However, Diamond conceded that she had not seen any evidence to support her theory regarding the supplemental report and was speculating regarding the inclusion of the conduct unbecoming charge. The Court ruled that her “unsubstantiated speculation and subjective beliefs” do not equate to the specialized knowledge required for admissibility under Rule 702.

    Legal Conclusions

    NOAA argued that Diamond’s opinions regarding retaliation go to the ultimate issue, which is the province of the trier of fact. Diamond’s report opined: “For most human resource professionals, the decision to discipline Stepien while the harassment investigations were in progress violates strong prohibitions against retaliation found in Department of Commerce’s policies and the applicable EEO laws.”

    Stepien argued that those statements do not “offer opinions that state whether Defendant retaliated or discriminated against Stepien,” but they are opinions on that front. The Court excluded those opinions as improper legal conclusions.

    One issue remained: NOAA argued that Diamond cannot base her opinions on evidence that Stepien allegedly “misappropriated” from NOAA. Stepien sought to strike that argument and the corresponding declaration paragraphs that addressed it. The Court found that Diamond’s non-investigation-related opinions were inadmissible for other reasons and declared the issue moot for purposes of this motion but added that it may be renewed in an appropriate motion in limine.

    Held

    The Court granted in part and denied in part Stepien’s motion to exclude the testimony of Erick West, and granted NOAA’s motion to exclude certain testimony of Deborah Diamond.

    Key Takeaway:

    The Court ruled that West’s opinions regarding the “average duration of unemployment” for other workers and “what specific jobs are “commensurate with Stepien’s education and employment history” were inadmissible because NOAA’s burden to prove its mitigation defense requires not only showing that Stepien was reasonably diligent during the time in question, but also that there were substantially equivalent jobs available that Stepien could have obtained.

    Diamond stated that the agency “did not follow some of its own policies and generally accepted standards when investigating and resolving Stepien’s EEO and 955 complaints, administering discipline in a constructive, progressive, consistent and timely manner, or following the rules for placing Stepien on extended administrative leave.” The Court held that NOAA’s discipline and administrative leave policies are not complex and the trier of fact is capable of understanding them—and whether the agency complied with them—without the need for expert guidance.

    Case Details:

    Case Caption: Stepien V. Raimondo Et Al
    Docket Number: 2:21cv1410
    Court: United States District Court, Washington Western
    Order Date: September 4, 2024

  • Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    Obstetrics and Gynecology Expert Witness’ Opinions Admitted Because they Pertain to the Issue of Medical Standard of Care

    This matter arises out of a medical malpractice action filed by Plaintiffs Tyler Grenier, individually, and Jenna Grenier, individually and as next friend of J.A.G., a minor, (collectively “Plaintiffs”) against Defendant United States of America (“Defendant”) for alleged medical negligence at Tripler Army Medical Center (“Tripler”) related to the medical care by Defendant’s employees for prenatal care and labor of Plaintiff Jenna Grenier (“Jenna”), and the subsequent delivery of J.A.G.

    Severe physical injuries sustained by Jenna Grenier and J.A.G. are alleged as well as the negligent infliction of emotional distress to Plaintiff Tyler Grenier (“Tyler”) and Jenna; Plaintiffs’ loss of filial consortium; and Tyler’s loss of spousal consortium.

    Plaintiffs sought to exclude certain portions of opinions rendered by Defendant’s expert witness, Dwight J. Rouse, M.D., because “they are not based on sufficient facts or data and they are not the product of reliable principles and methods.”

    Obstetrics and Gynecology Expert Witness

    Dwight J. Rouse is board certified in Obstetrics and Gynecology, and Maternal-Fetal Medicine. He is the Professor of Obstetrics and Gynecology at the Warren Alpert Medical School of Brown University and an actively practicing maternal fetal medicine attending at Women & Infants Hospital of Rhode Island.

    Discover more cases with Dwight Rouse as an expert witness by ordering his comprehensive expert witness profile report.

    Discussion by the Court

    Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in issue, Rouse got a key fact wrong and thus any opinions relying on that wrong information should be excluded.

    According to Rouse, “Grenier’s contention that she requested a cesarean delivery instead of operative vaginal delivery is at variance with the contemporaneous medical records. A low forceps delivery is what was performed and it was not foreseeable that mother or infant (or both) would suffer trauma. There is nothing in the medical record or the deposition testimony of the doctors or nurses to indicate that the forceps delivery was anything but easy and straightforward, or was performed in a manner outside the standard of care.”

    Plaintiffs claimed that Rouse “cherry-picked one statement” and omitted relevant facts in medical records.

    The Court held that Rouse’s opinions relate to the issue of medical standard of care and not causation based on epidemiological studies. If he has relied on a non-existent fact, has misconstrued the medical records, or his analysis is otherwise shaky, then pointing out any such failures is appropriate for cross-examination and not exclusion where the expert’s qualifications and relevance of his opinions are not in issue.

    Held

    The Court denied the Plaintiffs’ motion to strike the testimony of expert witness Dr. Dwight J. Rouse.

    Key Takeaway:

    Plaintiffs argued that, although Rouse’s testimony is relevant and his qualifications are not in question, Rouse got a key fact wrong. Therefore, any opinions relying on that incorrect information should be excluded. The Court held that Rouse’s opinions pertain to the issue of medical standard of care rather than causation based on epidemiological studies. Thus, highlighting any such errors is appropriate for cross-examination rather than exclusion, given that the expert’s qualifications and the relevance of his opinions are not in dispute.

    Case Details:

    Case Caption: Grenier Et Al V. United States Of America
    Docket Number: 1:22cv396
    Court: United States District Court for the District of Hawaii
    Order Date; September 4, 2024
  • Trucking Expert Witness’ Testimony About Negligent Training Excluded

    Trucking Expert Witness’ Testimony About Negligent Training Excluded

    This action arises out of a motor vehicle accident between an automobile driven by Philnelius Snow and a tractor-trailer owned and operated by Charles Bailey Trucking (“CBT”)and driven by its employee, Travis Hickey. Plaintiff alleged two causes of action against CBT: 1) respondeat superior for the negligence of its employee, and 2) direct claims of negligence against CBT for negligent hiring, negligent training, negligent entrustment, negligent retention, negligent qualifying, and negligent supervision of Hickey (Plaintiff’s “Direct Negligence Claims”). Defendants argued that they are entitled to summary judgment on the Direct Negligence Claims and Plaintiff’s punitive damages claim.

    Defendants filed a motion to exclude Plaintiff’s expert Adam Grill‘s testimony about CBT’s responsibilities as a motor carrier and the negligent training claim. 

    While parties occasionally file Daubert motions alongside summary judgment motions, such motions typically implicate a summary judgment issue such as causation. Here, the only issue on summary judgment relates to negligent training. The Court will consider Defendants’ motion to exclude Plaintiff’s expert Adam Grill’s testimony as it relates to CBT’s responsibilities as a motor carrier and the negligent training claim only, and finds it premature to address other potential issues at this time.

    Trucking Expert Witness 

    Adam Grill has worked around large commercial vehicles and studied the intricacies of commercial vehicle transportation among the best in the industry. He received his certification as a commercial vehicle operator in 2005. He holds a Commercial Driver’s License (CDL) with endorsements for hazardous materials, tankers, double trailers, triple trailers, passenger buses, and school buses. Grill is a certified director of safety (CDS).

    He is certified for forklift operation, operation of longer combination vehicles (LCVs), crane hoist and rigging, aerial manlift, telehandler, and heavy equipment including payloaders and motor graders. Grill is a certified pilot car operator and flagger through Gulf Coast Community College in Panama City, Florida. He is currently an active truck driver, and an associate of Atlantic Pacific Resource Group.

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

    Discussion by the Court

    Grill’s expert report contended that “Charles Bailey is responsible to train and supervise their professional drivers” and “[a]ccording to industry standards, this collision was preventable on the part of Charles Bailey and Defendant Hickey.”

    Defendants argued that the expert report and proposed testimony should be excluded because Grill’s opinions are not reliable and his testimony would not assist the trier of fact because his opinions merely offer legal conclusions.

    Defendants argued that “Grill’s report merely regurgitates the Federal Motor Carrier Safety Rules (“FMCSRs”) and states that [CBT] failed to comply with the law.” According to Grill, CBT did not provide specific training to drivers on “visual search techniques” and if it had, then the collision between Snow and Hickey could have been prevented. 

    Grill asserted that CBT failed to satisfy the FMCSRs related to training. Grill’s testimony further asserted that:

    A. Because the specific concepts involved in leading up to this accident, through proper education, training and including the proper mindset of a driver, it would be completely avoidable. In other words, the reasonable expectation of a driver to keep a proper visual search, have a plan, an advance plan for how to respond to hazards, would in a practical sense and through the testimony of the driver in this case, would have — would have allowed him to prevent this type of collision from occurring.

    The Court held that Grill’s testimony that additional training would have prevented the collision is unreliable speculation and does not help the Court determine whether Plaintiff has met his burden as a matter of law. 

    Held

    The Court excluded Adam Grill’s expert report and proposed testimony for the summary judgment motion. It granted in part Defendants’ motion for partial summary judgment as to Plaintiff’s claims of negligent hiring, negligent retention, negligent qualifying, negligent supervision, negligent entrustment, and punitive damages.

    Key Takeaway:

    A negligent training claim requires a showing that (1) the employer’s training was deficient, and (2) breach of that duty proximately caused Plaintiff’s injury. The Court is capable of referring to the FMCSRs and relevant case law to determine whether CBT’s training was legally deficient. Moreover, Grill’s testimony that additional training would have prevented the collision is unreliable speculation.

    Case Details:

    Case Caption: Snow V. Charles Bailey Trucking, Inc. Et Al
    Docket Number: 1:22cv706
    Court: United States District Court for the Northern District of Georgia, Atlanta Division
    Order Date: August 07, 2024
  • Human Factors Engineering Expert Witness’ Testimony About Gun Design Excluded

    Human Factors Engineering Expert Witness’ Testimony About Gun Design Excluded

    Plaintiff Ashley Catatao, an officer with the Somerville Police Department, was injured when her Sig Sauer P320 duty pistol fired in its holster without her pulling its trigger. She sued the gun’s manufacturer, Defendant Sig Sauer, Inc., alleging it designed the P320 defectively and the defect caused her injuries. Catatao submitted a report from William Vigilante, who is an expert on ergonomics and human factors. Sig Sauer filed a motion to exclude Vigilante’s testimony pursuant to Federal Rule of Evidence 702. 

    Some pistols come equipped with safety mechanisms that ensure they do not fire unintentionally. A thumb safety is a switch on the side of the pistol. Sig Sauer offered P320s with or without a thumb safety. The Somerville PD chose the P320 without a thumb safety as its duty pistol. Sig Sauer did not sell the P320 with a trigger safety.

    Human Factors Engineering Expert Witness

    William Vigilante has doctorate and master’s degrees in “Ergonomics (Human Factors) Psychology” as well as a bachelor’s degree in “Psychology (Cognitive track).” He has worked for over twenty-five years “on human-machine interaction, control-display design, product design, hazard identification and mitigation, risk perception, situational awareness, perception-reaction time, and the design and testing of warning systems.” He previously worked as a “Human Factors Engineer” at IBM Corporation, where he led teams in designing safe and user-friendly consumer and commercial products. Vigilante has authored scientific studies, presented work at “multiple professional conferences,” and conducted peer reviews in the field of human factors research.

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

    Discussion by the Court

    Vigilante’s Tests

    Vigilante conducted tests on a model P320 and Glock 19. Vigilante placed each pistol into a Safariland Level III non-light-mounted holster, “inserted a probe in the gap” between the holster and the pistol, and attempted to actuate the pistol’s trigger.

    He did not mention the tests in his expert report. However, Catatao disclosed Vigilante’s tests shortly prior to Vigilante’s deposition in December 2023, more than two months after the Court’s October 6, 2023, disclosure deadline. The Court did not preclude them because they caused no prejudice to Sig Sauer. At the deposition, Sig Sauer asked Vigilante questions about his tests’ methodology, results, and conclusions.

    Rule 702

    Sig Sauer questioned Vigilante’s qualifications to testify as an expert on the P320’s design and on causation. Sig Sauer argued that Vigilante did not have any expertise in gun design. Plaintiff did not provide information about his professional experiences applying human factors and ergonomics research to firearms. Vigilante has experience shooting for sport and teaching others to use guns safely. But at most, those experiences indicate expertise in safe gun use, not in safe gun design. The Court held that Vigilante is not qualified to testify that Sig Sauer designed the P320 defectively.

    However, Vigilante conducted experiments to test whether a tabbed trigger could have prevented Catatao’s P320 from discharging. The Court held that his conclusion — that if a foreign object caused Catatao’s P320’s trigger to depress, “it is more likely than not that a tabbed trigger safety would have prevented this incident” — is reasonably related to his experiments, research, and expertise.

    Sig Sauer raised a number of concerns regarding the methodology of Vigilante’s tests. For example, Sig Sauer claimed Vigilante did not use Catatao’s holster model during his tests. But these are matters “affecting the weight and credibility of the testimony,” not its admissibility.

    Held

    The Court granted in part and denied in part the motion to exclude the testimony of Plaintiff’s expert William Vigilante.

    Key Takeaway:

    Vigilante was not qualified to testify that Sig Sauer designed the P320 defectively becuase his experiences indicate expertise in safe gun use, not in safe gun design.

    However, Vigilante conducted experiments to test whether a tabbed trigger could have prevented Catatao’s P320 from discharging and his conclusions were reasonably related to his experiments, research, and expertise.

    Case Details:

    Case Caption: Catatao V. Sig Sauer Inc
    Docket Number: 1:22cv10620
    Court: United States District Court for the District of Massachusetts
    Order Date: July 9, 2024
  • Maritime Safety Expert Witness’ Testimony on Metal Grating Admitted

    Maritime Safety Expert Witness’ Testimony on Metal Grating Admitted

    Plaintiff Kevin McCray worked as a longshoreman for his employer, Houston Terminal LLC, on the MV Maersk Tennessee. The MV Maersk Tennessee, a container ship, was owned and operated by Defendant Maersk Line Limited.

    On February 28, 2023, McCray worked in Bay 30 with his co-worker, Manuel Maldonado, for about 1.5 to 2 hours. McCray used the vessel’s common area walkways, which had metal gratings for access to the space below. Around 4:00 PM, while standing on the metal grating, it suddenly gave way beneath him. McCray fell into the void space below and suffered injuries.

    On March 20, 2023, McCray filed a lawsuit against Maersk Line Limited and Maersk Line-Ltd., USA. He later dismissed the claims against Maersk Line-Ltd., USA. His remaining claims against Maersk Line Limited are based on section 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. Sec. 905(b).

    Maersk Line Limited, the sole remaining defendant, sought summary judgment on June 27, 2024. McCray responded to this motion and used the sworn statement of John Depaolo, Plaintiff’s gang foreman, and the supplemental report of maritime safety expert witness Ronald Signorino. Defendant filed a Daubert motion to exclude the sworn statement and the supplemental expert report of the maritime safety expert witness.

    Maritime Safety Expert Witness

    Ronald L. Signorino is a maritime safety and regulatory affairs expert with over five decades of experience in the industry. He is currently the President of The Blueoceana Company, Inc., a role he has held since January 2001. His extensive career includes key positions such as Director of Regulatory Affairs at Maersk Container Service Company, Director of Occupational Safety & Health at Universal Maritime Service Corporation, and Manager/Understudy Director at the Office of Maritime Standards within OSHA.

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

    Discussion by the Court

    Defendant sought to exclude Ronald Signorino’s supplemental report, which relied on John Depaolo’s sworn statement. The grounds for exclusion were: (1) the report’s untimeliness, as it was submitted after the expert report deadline, (2) Signorino’s alleged lack of qualifications in engineering, and (3) the report’s claimed lack of reliability and relevance.

    Late Submission of the Report

    Defendant argued that the supplemental report should be excluded because Plaintiff submitted it after the deadline. Plaintiff was required to designate experts and produce reports by January 5, 2024, which he met by submitting Signorino’s initial report on that date. Signorino was deposed on May 9, 2024. However, Plaintiff provided the supplemental report, based on Depaolo’s statement, only on July 3, 2024. Plaintiff did not seek court approval for this additional report.

    To assess whether the delay was justified or harmless, the Court considered four factors: (1) the explanation for the delay, (2) the importance of the testimony, (3) potential prejudice to the Defendant, and (4) the availability of a continuance to remedy such prejudice.

    Plaintiff explained that he received Depaolo’s statement only on April 24, 2024, after the deadline. This delay was due to Defendant’s timing, and not Plaintiff’s fault. Signorino was unaware of Depaolo’s observation about the grating clip’s security until after the deadline. The supplemental report was crucial for establishing causation. The admission of the report could cause prejudice to the Defendant. However, the Plaintiff agreed to re-depose Signorino or allow a rebuttal witness if needed as means to cure any prejudice to the Defendant. Thus, the Court found the delay did not warrant exclusion.

    Qualifications of the Expert

    Defendant argued that Signorino was unqualified to offer engineering opinions because he lacked formal training in structural engineering.

    While Signorino did not have structural engineering qualifications, his 60 years of experience in maritime transport and safety regulations provided a sufficient basis for his opinions on grating and safety. He is qualified to testify that “The Plaintiff’s weight, when using the grating as intended, would not have caused the clamps to bend or loosen…” due to his extensive experience with similar vessels and gratings. This background allows him to determine if the grating would collapse under the Plaintiff’s weight or if a defect existed before the Plaintiff’s use.

    The Court decided that Signorino’s extensive experience in similar contexts qualified him to give relevant testimony. It was held that Defendant’s lack of qualifications argument questioned the weight of the argument and not its admissibility and the Defendant could challenge his qualifications during cross-examination.

    Reliability and Relevance of the Report

    The Defendant argued that the Plaintiff failed to prove the reliability or relevance of the evidence. Firstly, the Defendant claimed that the Plaintiff did not establish reliability because he had not shown how Signorino determined what might cause the clamps to bend or loosen.

    The Defendant described Signorino’s supplemental report as a “conclusory opinion” lacking support from Signorino’s own observations, testing, measurements, or analysis of the grate. Secondly, the Defendant contended that the Plaintiff had not demonstrated relevance because Depaolo’s observations of the grate, which formed the basis of Signorino’s report, occurred after the accident and after the grate had fallen several feet.

    However, experts may rely on witness statements and prior experience to form opinions. Signorino’s supplemental report, which incorporated Depaolo’s observations and his own experience, was deemed reliable and relevant for causation purposes. The Court concluded that the report met the standards set by Federal Rule of Evidence 702.

    The Court found no reason to exclude Depaolo’s statement or Signorino’s supplemental report. Signorino was qualified to testify on the metal grating, and his report was both reliable and relevant.

    Held

    The Court denied the Defendant’s motion to exclude Plaintiff’s maritime safety expert witness, Ronald Signorino.

    Key Takeaway:

    The Court denied the Defendant’s motion to exclude Ronald L. Signorino’s testimony and supplemental report for several reasons.

    Signorino’s extensive maritime safety experience was deemed sufficient for providing expert opinions, despite lacking formal engineering qualifications. Additionally, the Court ruled that the supplemental report was reliable and relevant as it was based on credible witness statements and Signorino’s industry experience.

    To conclude, the Court determined that there was no valid reason to exclude the expert testimony.

    Case Details:

    Case Caption: Mccray V. Maersk Line Limited Et Al
    Docket Number: 4:23cv995
    Court: United States District Court, Texas Southern
    Order Date: August 29, 2024
  • Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    The underlying case concerns the alleged release of toxic chemicals from a manufacturing facility in Canoga Park between 1968 and 1970 by Litton Systems, Inc., an entity now owned by Defendants Northrop Grumman Corporation and Northrop Grumman Systems Corporation (“Northrop Grumman”). Plaintiffs moved for class certification on their claims for negligence, private nuisance, and trespass relating to the contamination. 

    Defendants submitted an expert report by Dr. Dominique Hanssens purporting to show, among other things, that class members’ homes contained other potential sources of the relevant toxins—sources unrelated to the contamination from Litton’s manufacturing facility—such as common household cleaning products. 

    To reach this conclusion, Hanssens designed and conducted a survey sent by mail to homes in Plaintiffs’ Proposed Class Area (“PCA”). 

    Marketing Expert Witness

    Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson Graduate School of Management. He has served as the school’s faculty chair, associate dean, and marketing area chair. From 2005 to 2007 he served as executive director of the Marketing Science Institute in Cambridge, Massachusetts.

    Hanssens studied econometrics at the University of Antwerp in his native Belgium. He then obtained an M.S. and Ph.D. in marketing from Purdue University. His research focuses on strategic marketing problems, in particular marketing productivity, to which he applies his expertise in data-analytic methods such as econometrics and time-series analysis.

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

    Discussion by the Court

    Plaintiffs argued that Defendants tricked and coerced putative class members into responding to the survey—designed to undermine class certification—by including a two-dollar bill that was visible through the envelope window and giving survey respondents a $20 Walmart gift card. Additionally, according to Plaintiffs, Hanssens should have disclosed to participants that Northrop Grumman was sponsoring the survey and that the respondents could be undermining their legal position by responding.

    Since the survey itself appeared to be facially neutral and created in accordance with accepted principles, the survey did not require the Court to take the corrective actions Plaintiff seeks.

    Plaintiffs pointed to no statement that is likely to leave respondents with a false impression of the litigation or cause respondents to abandon their legal rights. And the Court found no statement in the survey to be clearly misleading or coercive. For example, the Court is not overly troubled with the statements that the recipient was sent the survey as a “resident of the greater Los Angeles area” or that “the results of this survey will not be used to try to sell you anything” and would be “kept in confidence.”

    The Court believes that although Plaintiffs can come up with a misleading interpretation of these statements, they simply do not rise to the level of deception that would convince the Court to restrict the parties’ speech rights. Nor are they the type of statements that would enable the Court to craft a narrowly-tailored restriction on speech.

    Held

    The Court denied Plaintiffs’ motion to strike the expert report of Dominque Hanssens.

    Key Takeaway:

    Rule 23(d) gives the Court the power “to impose limitations when party engages in behavior that threatens the fairness of the litigation.” For example, courts have found that limitations are necessary in the wake of ex parte communications “soliciting opt-outs” or “discouraging participation in a case.” In contrast to these cases, Hanssens’ survey here was “facially neutral, did not require the participants to waive any of their rights in this litigation, and was conducted pre-certification when Defendants may generally gather information about the putative class.”

    Case Details:

    Case Caption: Jed Behar Et Al V. Northrup Grumman Corporation Et Al
    Docket Number: 2:21cv3946
    Court: United States District Court, California Central
    Order Date: August 12, 2024
  • Certain Opinions of Environmental Expert Witness Excluded Because They Amount to Contract Interpretation

    Certain Opinions of Environmental Expert Witness Excluded Because They Amount to Contract Interpretation

    Plaintiffs Box Elder Kids, LLC filed a class action lawsuit against Defendants Anadarko Petroleum Corporation, Anadarko E & P Onshore, LLC, and other associated entities alleging a breach of Surface Owner Agreements (SOAs). These agreements obligated Anadarko, as successor to Union Pacific Land Resources Company, to pay a percentage of the value from oil, gas, and other hydrocarbons extracted from lands in Colorado, Wyoming, and Utah, which were previously owned by Union Pacific, to the Plaintiffs.

    The Plaintiffs owned the surface land where these hydrocarbons were extracted. The complaint sought recovery of these payments, referred to as the “Surface Owner Payment.” Additionally, the Plaintiffs claim unjust enrichment and allege fraud, deceit, and constructive fraud against Anadarko and its affiliates.

    Section 2 of the Shaklee SOA contains the following payment provision, which gives the surface owner a contractual right to cash payments based on the value of oil and gas produced from or allocated to the lands covered by the SOAs:

    [Anadarko] agrees, so long as it is receiving oil and/or gas production from or oil and/or gas royalties upon production from the described premises or allocated thereto under the provisions of a unitization agreement, to pay or cause to be paid to the Landowner in cash the value (which shall never be greater than the amount realized by [Anadarko] from the sale of such production) on the premises of two and one-half percent (2-1/2%) of all the oil and gas and associated liquid hydrocarbons hereafter produced, saved, and marketed therefrom or allocated thereto as aforesaid, . . .

    This breach of contract dispute centers around the meaning of ambiguous terms in Section 2 of the parties’ SOAs. The Court considered Plaintiffs’ motion to generally disqualify Defendants’ expert witness, Jamie Jost, and to prevent her from testifying as to various opinions contained her report.

    Environmental Expert Witness

    Jamie Jost is known for her dedication and passion to the Rocky Mountain Region’s environmental and economic sustainability in legal, land use and oil and gas development matters. She is the founder and managing shareholder of Jost Energy Law, P.C., a 100% female owned and operated firm specializing in natural resources and land use law.

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

    Discussion by the Court

    According to Jost, “When Anadarko’s predecessors and Plaintiffs’ predecessors entered into the SOAs, the parties stated their intent that the described premises may be used for oil and gas development. Section 2 of the SOAs obligates Anadarko to pay Plaintiffs 2.5% of the value of the oil and gas produced from, or allocated to pursuant to a unitization agreement, the surface owner’s described premises subject to the SOA. The SOAs do not require Anadarko to pay more than 2.5% of the value of the oil and gas allocated to the described premises under a unitization agreement. Oil and gas industry terms, custom, and practice support Anadarko’s payment of 2.5% of the value of the oil and gas allocated to the SOA described premises under a unitization agreement.”

    Plaintiffs asked the Court to exclude Jost’s opinions pertaining to (1) the “reasonable” interpretation of the original contracting parties’ intent; (2) oil and gas industry custom; and (3) what the “correct” interpretation of the contract is.

    Section 2 of the Surface Owner Agreement

    Jost’s opinions asserting what Section 2 of the SOAs obligates Defendants to pay, and by what methodology, pertain to the dispositive issue the trier of fact must decide in this case. The Court held that those opinions, which are effectively tantamount to contract interpretation, are inadmissible and will not be permitted.

    Plaintiffs also objected to any opinions offered by Jost that discuss whether Defendants’ interpretation of Section 2 is supported by oil and gas industry custom. In support, they argued that such evidence is inadmissible parol evidence because, “where one party to the agreement is not familiar with the industry, like the original contracting surface landowners here, evidence of industry custom is not helpful to the trier of fact for determining the parties’ intent.” 

    According to the Court, “there appears to be disputed evidence as to whether the original parties had experience dealing in oil and gas contracts.” Whether evidence of industry standards and customs is relevant cannot be determined until the jury decides this threshold fact question. Until then, Jost will be permitted to opine on whether industry standards and customs support Defendants’ interpretation of Section 2’s ambiguous terms.

    What remained in Plaintiffs’ motion challenging Jost are various arguments pertaining to whether her opinions are supported and consistent with language in the SOAs and their competing interpretation of the relevant parol evidence. The Court concluded, however, that such evidence bears on the weight of such evidence, not its admissibility.

    Held

    In sum, the Court will not altogether exclude Jamie Jost’s opinions regarding the ambiguous provisions of Section 2, but it will exclude those opinions that amount to contract interpretation.

    Key Takeaways:

    Jost’s opinions asserting what Section 2 of the SOAs obligates Defendants to pay, and by what methodology, pertain to the dispositive issue the trier of fact must decide in this case. An opinion is not objectionable just because it embraces an ultimate issue. Nevertheless, an expert witness’s testimony may not usurp the jury’s fact-finding function.

    Please refer to the blog previously published about this case:

    Environmental History Expert Witness’ Testimony About the Original Parties’ Motivations Admitted

    Case Details:

    Case Caption: Box Elder Kids, Llc Et Al V. Anadarko E & P Onshore, Llc Et Al
    Docket Number: 1:20cv2352
    Court: United States District Court for the District of Colorado
    Order Date: August 27, 2024

  • Economics Expert Witness’ Conclusions Regarding Lost Profits Damages Admitted

    Economics Expert Witness’ Conclusions Regarding Lost Profits Damages Admitted

    In this action, the Frazier Parties alleged that the Eagle Air Parties lacked probable cause to sue them for defamation and other similar claims in an underlying lawsuit that concluded in 2020 (the “Underlying Action”). The Frazier Parties claimed that the Underlying Action damaged Sentinel’s existing or prospective client relationships, resulting in lost profits of at least several million dollars.

    Defendants Eagle Air Med Corporation and Valley Med Flight, Inc. filed a motion to exclude the testimony of proposed expert witness Dr. Ronald Luke, who was retained by Plaintiffs Jeffrey Frazier and Sentinel Air Medical Alliance, LLC under Fed. R. Evid. 702.

    Economics Expert Witness

    Ronald T. Luke has developed Research & Planning Consultants as an inter-disciplinary firm providing economic, financial, and public policy studies. As President and owner, he supervises RPC’s professional staff and maintains high standards for the firm’s work products. Also, he has been accepted as an expert in economics, socioeconomic impact analysis, and policy analysis by state and federal courts, and state administrative agencies.

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

    Discussion by the Court

    To begin with, Defendants’ motion primarily addressed the reliability of Luke’s expert testimony and did not challenge the qualifications of Luke. Defendants argued that (1) “Luke’s opinions regarding Sentinel’s lost profits damages are unreliable and inadmissible under Rule 702[,]” and (2) “any opinion [Luke] might try to offer on the litigation-related damages would be unhelpful and inadmissible.”

    Also, Defendants argued that “Luke’s lost profit opinions rests on unreasonable assumptions that are unsupported by the record” and “Luke failed to properly account for other factors that might affect the amount and existence of Sentinel’s alleged lost profits.” According to Defendants, Luke did not use a discount rate that accounted for certain risk factors in his calculations that other experts use in similar analyses, and he used a ten-year time period for his calculations.

    The Court held that the fact that Luke’s opinion and analysis take into account facts that are still in dispute does not justify exclusion of his expert testimony and report.

    As for the litigation expense damages, Defendants sought to exclude Luke’s inclusion of the litigation expense damages because he did not calculate, analyze, or offer expert opinion related to these damages. There is no indication in the report that Luke himself calculated the litigation expense damages; rather, he merely included the previously calculated litigation expenses in his lost profits analysis based on the other information in the record. Defendants did not dispute that there is evidence in the record supporting the litigation expenses. Therefore, Defendants did not provide grounds for the exclusion of litigation expenses in Luke’s report at that point.

    The Court reviewed Luke’s expert report and found that he had a reasonable basis for reaching his conclusions regarding Sentinel’s lost profits damages.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Plaintiffs’ proposed expert Ronald Luke.

    Key Takeaway:

    • Exclusion is not warranted just because Luke’s opinion and analysis take into account facts that are still in dispute
    • Luke’s inclusion of the litigation expense damages was not excluded due to evidence in the record supporting the litigation expenses. 

    Please refer to the blog previously published about this case: Law And Legal Expert Witness’ Testimony as to the Existence of Probable Cause Excluded

    Case Details:

    Case Caption: Frazier Et Al V. Eagle Air Med Corporation Et Al
    Docket Number: 2:22cv300
    Court: United States District Court, Utah
    Order Date: August 27, 2024