Plaintiff filed this lawsuit to recover the $425,000 investment it made into the corporate Defendant, No-H20 USA, Inc., which was the product of fraudulent misrepresentations made by Defendant O’Brien both verbally and in writing pertaining to the Company’s performance and ownership of critical intellectual property. O’Brien was at all material times the CEO of the Company. More than two years after O’Brien’s initial verbal misrepresentations, Plaintiff’s managing member came to learn that he did not own the intellectual property and in addition, the Company was in a financial shambles due to O’Brien’s misuse of corporate funds.
This is now a securities fraud case against the individual Defendant Emmet O’Brien, for on September 5, 2023, a Clerk’s Default was entered against the Company.
Robert Barton has over 25 years of operational experience in the vehicle rental, automotive, and travel industries. He is a senior vice president and general manager at The Hertz Corporation, the world’s largest car rental company. He oversees the global operations and performance of the Dollar and Thrifty brands, as well as the franchise footprint, with a $2 billion P&L responsibility.
To begin with, Plaintiff’s remaining claims are federal and state law securities fraud claims. In order to be relevant, Barton’s testimony needs to address one of the elements of Plaintiff’s claims. Plaintiff asserted that Barton’s testimony is not relevant to the issues before the Court and, thus, will not assist the jury in understanding the evidence or facts in issue.
In his report, Barton set out his instructions as follows:
“My analysis was to focus on the legitimacy of the investment and business practices, as well as the nature of the communications and actions taken by the parties involved. My task was to evaluate the impact of the Plaintiff’s actions on No-H2O’s franchise network, scrutinize the Franchise Disclosure Document (FDD), investment deck, franchisor evaluations, growth projections, and specific email communications.”
In short, the Report concluded: “The Plaintiff’s action and claims have adversely impacted the No-H2O franchise network, inconsistent with the investment deck, and industry standard.”
O’Brien responded that Barton is qualified, Barton’s opinions are grounded in standardized and recognized practices within franchise operations analysis, and his opinions provide essential context to Plaintiff’s allegations. However, the Court noted that Plaintiff has not questioned Barton’s qualifications or his methodology. Plaintiff only questions the relevance of Barton’s opinions. The Court fails to see, and O’Brien has failed to show, how Barton’s opinions—that Plaintiff’s action and claims have adversely impacted the No-H2O franchise network and are inconsistent with the investment deck and industry standard—are relevant to whether Defendants made false or misleading statements to Plaintiff upon which Plaintiff relied when deciding whether to invest in the Company.
Held
The Court granted Plaintiff’s motion to exclude the expert testimony of Robert Barton.
Key Takeaway:
Based on Barton’s stated instructions and his conclusion, Plaintiff maintained that nothing in Barton’s Report is relevant to what Plaintiff must prove to prevail at trial and would only serve to mislead or confuse the jury. The Court agreed.
Addendum (September 15, 2025):
This article was originally based on the Court’s July 31, 2024 order in Ae Capital Group LLC v. No-H2O USA, Inc. et al., which discussed expert testimony regarding the legitimacy of certain investment and business practices and referenced Defendant Emmet O’Brien.
Subsequently, on August 23, 2024, the Court entered an order dismissing all claims against Mr. O’Brien. This update is published to reflect that Mr. O’Brien is no longer a defendant in this matter.
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.
Philip A. Goiran, J.D., is a seasoned attorney specializing in real property law, oil and gas law, and related litigation. He earned his Juris Doctor from The American University, Washington College of Law, in 1995, following a Bachelor of Arts in Political Science from the same institution in 1992.
Currently, Goiran serves as Senior Counsel at Tiemeier & Stich, P.C. in Denver, Colorado, a role he has held since May 2015. His previous experience includes partnership roles at the Law Office of Philip A. Goiran and Grant, Grant & Goiran LLP, where he focused on similar areas of law. Early in his career, he worked as an Associate at Arthur Konopka in Washington, DC, where he gained expertise in title insurance law and estate administration.
Thomas G. Andrews, Ph.D., is a distinguished historian with extensive expertise in United States history. He earned his Ph.D. in 2003 and M.A. in 1997 from the University of Wisconsin-Madison, specializing in U.S. History, after completing his B.A. summa cum laude in History and International Studies from Yale University in 1994, where he was inducted into Phi Beta Kappa.
Currently, Andrews serves as a Professor of History at the University of Colorado Boulder, a position he has held since 2016.
Philip Goiran’s testimony regarding the royalty payment history
Defendants sought to exclude Philip Goiran’s testimony regarding the royalty payment history between the parties. They aimed to exclude his opinions on the following:
· Anadarko’s failure to pay the promised 2.5% royalty on wells located on Plaintiffs’ property. Plaintiffs were burdened with the well costs while not receiving the 2.5%.
· The consistency of landowners’ compensation expectations under Surface Ownership Agreements (SOAs) until 2010, when Anadarko started reducing the 2.5% payment.
· Anadarko’s historical payment practices based on the well-spot method until 2010.
Defendants argued that Goiran should be excluded because he admitted in his deposition that he lacked personal knowledge of the parties’ payment history, making his opinions on this topic unreliable. The Court agreed, noting that Goiran could not testify about topics he was unfamiliar with, including the payment history, which he acknowledged he did not know “as a factual matter.” Goiran’s report did not reference the payment data between the parties, and he confirmed he did not review any information not listed in his report.
Although Plaintiffs did not strongly dispute Goiran’s lack of personal knowledge, they contended it was irrelevant since the payment history was undisputed. However, the Court was not aware of any authority allowing an expert to testify on matters outside their personal knowledge, even if those matters are undisputed. Therefore, the Court ruled to exclude Goiran’s testimony on the payment history
Philip Goiran’s testimony regarding general landowner expectations
Defendants also moved to exclude Goiran’s testimony regarding general landowner expectations about receiving the full 2.5% payment. They argued this testimony was irrelevant and unreliable. However, Goiran based his opinion on extensive experience representing clients with similar agreements and reviewing the SOAs in question.
Moreover, the Court found Goiran’s general testimony on landowner expectations relevant and sufficiently reliable, as it could help interpret the ambiguous terms of the SOAs. The Court allowed Goiran to testify about general landowner expectations but excluded testimony on payment history due to lack of personal knowledge.
B. Thomas Andrews
Thomas Andrews’ Expert Report
Plaintiffs hired Andrews to provide historical context regarding the land grant lands and the Surface Ownership Agreements (SOAs). His report was divided into four parts:
1. “Origins and Development of Congressional Land Grant to Transcontinental Railroads”
2. “The Denver Pacific Railway and the DP Land Grant”
3. “Land Sales and Mineral Reservations”
4. “Surface Owner Agreements: Motivations for Continuity, Departures from Tradition”
Legislative History and Lobbying Leading to the Pacific Railway Acts
In the first two parts, Andrews detailed the legislative history and lobbying that led to the passage of the Pacific Railway Acts, resulting in a congressional land grant to Union Pacific Railroad Company and other railroads for construction of the transcontinental railroad. In part 3, Andrews described how title became settled for land grants and how Plaintiffs’ surface lands were sold to their predecessors-in-interest.
However, Defendants argued that the first 15 pages of Andrews’ 17-page report were irrelevant. They also challenged the final two pages for containing “unfounded speculation” and for “improperly usurping the role of the jury. Defendants argued that parts 1-3 were irrelevant to the case’s key issue: the intent of the parties at the time they signed the SOAs. As for part 4, Defendants argued that Andrews simply “summarizes what he learned about SOAs from reviewing Plaintiffs’ favorite documents produced in discovery, many of which are themselves irrelevant to the dispute.” According to Defendants, these “were not appropriate expert opinions because they are unhelpful to the jury.”
History of Surface Owner Agreements
However, the Court disagreed with Defendants about part 4. Andrews’ testimony about the history of SOAs and the original parties’ motivations for entering them was deemed relevant. This information was related to Plaintiffs’ theory that the parties contracted to maintain good working relationships so as to avoid adverse legal and financial outcomes. Therefore, the Court held that part 4 simply purported to provide historical context as to why the SOAs were drafted in the way that they were and not usurp the role of the jury in determining what Section 2’s ambiguous terms mean.
However, the Court agreed with Defendants that much—if not the vast majority—of parts 1-3 of Andrews’s report and related testimony is not relevant and will be excluded at trial. For example, the Court refused to permit Andrews’ testimony about the events predating the parties’ contract by a century, detailed accounts of politicians physically assaulting one another; stories of corruption by executives of the railroad companies during construction of the transcontinental railroad; the government’s issuance of title patents for lands to the railroad companies; and the familial and employment histories of the predecessors-in-interest to Plaintiffs’ surface lands.
Held
In conclusion, the Court limited the opinions of Plaintiff’s real estate law expert witness, Philip Goiran and environmental history expert witness, Thomas Andrews.
Key Takeaway:
Goiran’s testimony on the parties’ payment history was excluded because he lacked personal knowledge of the data, a key factor for expert reliability. However, the Court relied on his insights into general landowner expectations, as his extensive experience and review of relevant agreements made this testimony pertinent.
Finally, the Court limited Andrews’ testimony by excluding much of his testimony about events predating the parties’ contract and the familial and employment histories of the predecessors-in-interest to Plaintiffs’ surface lands, among other things.
Case Details:
Case Caption:
Box Elder Kids, Llc Et Al V. Anadarko E & P Onshore, Llc Et Al
Plaintiff alleged that his use of the antacid medication Zantac caused him to develop prostate cancer because Zantac’s active ingredient, ranitidine, has been found to degrade N-nitrosodimethylamine (“NDMA”).
Brand Defendants’ filed a motion to exclude Plaintiff’s expert Dr. Steven Bird under Daubert.
Pharmacy Expert Witness
Steven Bird is a lead epidemiologist at the Food and Drug Administration / Center for Drug Evaluation and Research. He is responsible for the science and administration function of the team and to ensure that reviewers provide quality review and consultation to review divisions within established timeframes.
Bird opined that (1) NDMA is a potent carcinogen; and (2) Plaintiff’s exposure to NDMA from Zantac (generic name ranitidine) use was a substantial causative factor for his prostate cancer.
Bird (1) performed a “differential etiology methodology” where he purports to “rule in” ranitidine as a potential cause of Plaintiff’s prostate cancer and to “rule out” other causes, and (2) calculates Plaintiff’s lifetime exposure to NDMA from ranitidine by averaging the NDMA levels from other Plaintiffs’ expired ranitidine tablets and then converting his results to inhaled exposure risk estimates from a study of occupational NDMA exposure in rubber workers. The Brand Defendants argued that Bird’s opinions do not pass muster under Daubert based on his unreliable application of his chosen methodology to reach his specific causation opinion and his use of novel extrapolations to calculate Plaintiff’s NDMA exposure.
Bird’s application of the differential etiology methodology is unreliable because he unreliably “rules in” ranitidine use as a potential cause of Plaintiff’s cancer
Bird rejected all published, peer-reviewed ranitidine epidemiological studies assessing whether ranitidine is associated with prostate cancer—Rossing (2000), Habel (2000), Yoon (2021), Kantor (2021), Wang (2022), and You (2023)—none of which shows a statistically significant increased risk. Bird instead relied on the unpublished, non-peer-reviewed Braunstein manuscript, which examined only a cross-sectional, moment-in-time “snapshot” of cancer patients from Braunstein’s hospital. The Court held that Bird’s methodology of rejecting the published, peer-reviewed ranitidine epidemiology while embracing the unpublished Braunstein study is not reliable or based on scientific principles, and renders his opinion that ranitidine can cause prostate cancer unreliable.
Bird does not reliably “rule out” other potential causes
In terms of ruling out potential causes, Bird conceded he made no attempt to “rule out” Plaintiff’s other risk factors for prostate cancer, in particular Plaintiff’s significant family history of cancer.
The Court accordingly finds that Bird’s failure to do so renders his application of the differential etiology methodology unreliable, and warrants its exclusion.
Bird’s extrapolations from expired ranitidine pills and the Hidajat study are the type of guesswork against which Daubert is meant to shield
Bird purported to calculate (1) Plaintiff’s lifetime NDMA exposure from ranitidine use, and (2) the average and per quartile total NDMA exposure of rubber factory workers in the Hidajat study. Bird then uses these calculations to place Plaintiff within the cancer risk quartiles in the Hidajat study to estimate Plaintiff’s total prostate cancer risk from NDMA exposure.
Using this extrapolation methodology, Bird concluded Plaintiff’s NDMA exposure from ranitidine significantly increased his risk of prostate cancer.
Bird opined that Plaintiff absorbed as much NDMA through his use of ranitidine as the rubber workers in Hidajat’s “Quartile IV” had absorbed in their years of working in UK rubber factories. The Court held that the steps Bird had taken to reach this opinion are not a part of any reliable methodology, let alone a reliable application of any methodology. Indeed, the Zantac MDL Court found that “the number of assumptions and estimations necessary to render the Hidajat study helpful to” an expert’s general causation opinion about ranitidine use was “staggering.”
Held
The Court granted Brand Defendants’ motion to exclude Plaintiff’s expert Steven Bird.
Key Takeaway:
Bird’s methodology of rejecting the published, peer-reviewed ranitidine epidemiology while embracing the unpublished Braunstein study is not reliable or based on scientific principles. Moreover, Bird conceded he made no attempt to “rule out” Plaintiff’s other risk factors for prostate cancer, in particular Plaintiff’s significant family history of cancer. When Bird concluded Plaintiff’s NDMA exposure from ranitidine significantly increased his risk of prostate cancer, the Court held that the steps Bird had taken to reach this opinion are not a part of any reliable methodology, let alone a reliable application of any methodology.
Case Details:
Case Caption:
Wilson V. Boehringer Ingelheim Pharmaceuticals, Inc. Et Al
Docket Number:
22CA000284
Court:
Circuit Court of the Thirteenth Judicial Circuit of Florida, Hillsborough County
Class Representatives Peter Trauernicht and Zachary Wright (“Plaintiffs”), on behalf of themselves, the Genworth Financial Inc. Retirement and Savings Plan (the “Plan”), and all other similarly situated individuals, filed suit against Genworth Financial, Inc. (“Genworth” or “Defendant”) alleging that Genworth breached its fiduciary duties under the Employee Retirement Income Security Act.
Plaintiffs claimed that Genworth violated its fiduciary duties under ERISA by failing to appropriately monitor, and as a result, imprudently retaining the BlackRock LifePath Target Date Funds (“BlackRock TDFs”) in the Plan despite their significant underperformance. According to Plaintiffs, the retention of the BlackRock TDFs caused the Plan to incur substantial losses.
Genworth produced two expert reports in response to Plaintiffs’ experts. Genworth retained Lorie L. Latham to offer opinions regarding the Plan’s governance structure and monitoring process. Latham opined that the Plan’s governance structure and monitoring processes of the BlackRock TDFs were reasonable and consistent with widely accepted retirement plan fiduciary practices.
Genworth also retained Dr. Russell R. Wermers who explained that the BlackRock TDFs are economically reasonable investments once you account for their specific risk-balancing strategies and features, including their asset allocations and glide paths.
Finance Expert Witnesses
Russell R. Wermers is the Paul J. Cinquegrana ’63 Endowed Chair in Finance at the Smith School of Business, University of Maryland at College Park. Wermers’ research focuses on analyzing investment strategies of professional asset managers, including how to properly measure the risk-adjusted performance of such strategies. He has published in academic and professional journals on investment fund performance evaluation, equity strategies, the drivers of mutual fund and hedge fund investor flows, and the behavior of institutional investors. He has also previously testified as an expert on numerous ERISA cases involving 401(k) and other defined contribution plans.
Lorie L. Latham is the founder and president of L. Latham Consulting, LLC, an independent consultancy where she provides financial and strategic advice to financial firms and retirement plan fiduciaries, boards, and committees. Before that, Latham served in senior executive and consulting roles advising on strategies and investment selection for defined contribution plans. That work involved guiding plan fiduciaries in establishing reasonable and appropriate governance and monitoring practices for their defined contribution plans. Latham has also co-authored numerous publications, including articles on defined-contribution plan governance decision making.
Whether Wermers and Latham Have Specialized Knowledge That Will Assist the Trier of Fact under Rule 702(a)
Wermers’ Qualifications and Opinions
Plaintiffs argued that Wermers lacked the relevant qualifications to address the issues in this case because he has no experience with retirement plan investing, including the monitoring responsibilities of investment fiduciaries governed by ERISA. He has never served as a fiduciary nor advised a retirement committee.
The record does not provide, and the Court does not see, any reason why an expert must be trained in fiduciary monitoring or ERISA, as opposed to general investment theory, to testify on the relative performance and comparability of various target date funds to aid the trier of fact in the determination of whether the BlackRock TDFs violated the Plan’s Investment Policy Statement’s (IPS) criteria.
The fact that Wermers’ offers more generalized opinions on the BlackRock TDFs and their comparators rather than opinions directly tied to fiduciary monitoring goes to the weight rather than admissibility of his testimony.
Latham’s Qualifications and Opinions
Plaintiffs also argued that Latham did not have specialized expertise or knowledge that will assist the trier of fact. Plaintiffs said that her experience came from generalized personal observations and work experience while consulting with plan sponsors and discretionary fiduciaries.
The Court found that, based on that experience, Latham has the requisite qualifications to assist the trier of fact regarding plan governance and fiduciary monitoring standards. The degree of connection between her experience and her opinions goes to the weight of her testimony. At trial, Plaintiffs will have the opportunity to cross-examine Latham on the relevancy of her experience and how that experience has informed her opinions.
Whether Latham’s and Wermers’ Opinions Are Supported by Reliable Principles and Methods
Whether Wermers’ Economic Reasonableness Analysis is Based on Reliable Principles and Methods
Plaintiffs argued that Wermers’ assessment of “economic reasonableness” is not based on any method or discipline recognized within his industry, and instead, is based on his own subjective view of what represents an “attractive combination” between risk and return.
The Court disagreed. Plaintiffs’ complaint is essentially that Wermers’ concept of “economic reasonableness” is not reducible to a rigid, rules-based methodology. However, a formulaic methodology is not required for a witness to offer an expert opinion. Wermers relied on his specialized knowledge and experience to offer guiding principles on how to evaluate and compare the performance of target date funds, and he applied those principles to the BlackRock TDFs under a standard he calls “economic reasonableness.”
Wermers explained that an “economically reasonable” investment is one that “offers ex-ante an attractive combination of risk and return” based on its “qualitative and quantitative characteristics and its investment strategy.” Rather than a term of art, economic reasonableness is just another way of saying an investment is reasonable from an economic perspective.
Plaintiffs did not challenge the reliability of any of Wermer’s specific analyses or conclusions, only that his overarching concept of “economic reasonableness” lacked clear guiding rules and principles.
The Court found that Wermers’ opinions are reliable because he thoroughly articulated his specialized knowledge on the evaluation of target date funds with supporting citations to peer-reviewed articles and other industry sources, and then he applied that knowledge in evaluating the “economic reasonableness” of the BlackRock TDFs and in criticizing Marin’s analyses.
Whether Latham’s “Accepted Fiduciary Practices” Analysis is Based on Reliable Principles and Methods
Plaintiffs argued that Latham’s testimony is unreliable because her opinions on “accepted fiduciary practices” are based on her work experience with unspecified clients rather than any specified method or discipline recognized within her industry. Her failure to explain how her opinions derive from those client experiences, without other guiding industry standards, makes her testimony unreliable according to Plaintiffs.
However, the Court is satisfied that Latham has the requisite experience to provide reliable experience-based opinions on the topics she addresses at this stage.
Second, Plaintiffs claimed that Latham’s opinions are unreliable and unhelpful ipse dixit because she did not rely on any objective, consistent, or rules-based analytical approaches for what she calls “accepted fiduciary practices.”
The Court held that rules-based standards are not necessary for an expert’s opinion to be the product of reliable principles and methods, particularly when the testimony is not scientific in nature. Latham explained that “there’s not a written checklist” of accepted practices and “[p]lan governance structures vary, depending upon the size and culture of the plan sponsor, the type of plan, and other factors.”
Consequently, in her report, Latham reviewed the specific practices of the Genworth Committee from the evidentiary record, and explains whether, in her professional experience, those individual practices comport with the typical industry practices she has observed over her decades-long career. Latham is permitted to rely on her experience to testify in that capacity. The Court held that Plaintiffs’ concerns over the objectivity of Latham’s opinions and the specific experiences on which she relies can be addressed on cross-examination and with contrary evidence.
Whether Latham and Wermers Reliably Applied Their Principles and Methods to the Facts of the Case
Whether Wermers Reliably Applied His Principles and Methods to the Facts of the Case
Plaintiffs argued that Wermers failed to fully consider the IPS in his analysis and relied on other data that was cherry-picked and never relied on by the Plan’s fiduciaries. According to Plaintiffs, that made Wermers’ analysis irrelevant to whether the Plan’s fiduciaries acted prudently in retaining the BlackRock TDFs. Plaintiffs also claimed that Wermers ignored discrepancies between his data and the data presented in materials provided to the Genworth Committee.
The Court held that Wermers was primarily retained to offer an opinion on whether the BlackRock TDFs were an “economically reasonable” investment and to rebut Marin’s conclusions, particularly those based on his ex-post performance comparisons of the BlackRock TDFs to other funds and benchmarks. Therefore, Plaintiffs’ criticisms about “the lack of references to the Plan’s Investment Policy Statement does not undermine the reliability of [Wermers’] methodology” because that methodology was not predicated on evaluating the BlackRock TDFs’ performance against the IPS’s criteria.
For the same reasons, it was not problematic for Wermers to have relied on external data which was not provided to the Genworth Committee. For instance, Wermers looked at third-party analyst ratings of the BlackRock TDFs as well as the BlackRock TDFs’ prevalence in the broader retirement plan market to demonstrate that Marin’s views on the BlackRock TDFs’ performance were not widely held among the industry. The Court held that using such data was not irrelevant or unreliable “cherry-picking.”
When Plaintiffs said that Wermers ignored discrepancies between his data and the data presented to Genworth’s Committee, the Court held that it would seem appropriate for Wermers to use that data if Plaintiffs’ own expert also used it.
Whether Latham Reliably Applied Her Principles and Methods to the Facts of the Case
Plaintiffs argued that Latham failed to sufficiently consider the Plan’s IPS in forming her opinions. According to Plaintiffs, Latham stated that the Plan’s IPS was merely a non-binding, guiding document even though the Plan’s fiduciary counsel provided advice to the Genworth Committee that the IPS was a binding, Plan document.
Plaintiffs did not dispute that Latham reviewed and relied on the IPS in forming her opinions. Instead, Plaintiffs disagreement was over Latham’s understanding of the IPS’ effect.
Since, the dispute appeared to be over what constituted a violation of the IPS, not whether the IPS is a legally binding plan document or not. The Court held that just because the Plaintiffs disagreed with Latham’s understanding of the IPS’ effect did not mean she failed to reliably apply her methods to the facts of the case.
Whether The Testimony Is Admissible Under Rule 403
Plaintiffs argued that Wermers’ and Latham’s testimony should also be excluded under Rule 403 because it threatens to mislead or confuse the issues for the same reasons already discussed.
Having found Wermers’ and Latham’s testimony to be admissible under Rule 702, the Court also finds that their testimony is generally admissible under Rule 403 for the reasons discussed. Moreover, in a bench trial, the risk that an expert’s testimony will be unduly confusing or misleading is much lower and excluding evidence under Rule 403 for such reasons is generally not appropriate.
Held
The Court denied Plaintiffs’ motion to exclude opinions and testimony of Lorie L. Latham And Russell R. Wermers, Ph.D.
Key Takeaways:
Wermers’ opinions are reliable because he thoroughly articulated his specialized knowledge on the evaluation of target date funds with supporting citations to peer-reviewed articles and other industry sources. Also, Plaintiffs’ concerns over the objectivity of Latham’s opinions and the specific experiences on which she relies can be addressed on cross-examination and with contrary evidence.
Case Details:
Case Caption:
Trauernicht, Et Al. V. Genworth Financial Inc., Et Al.
This breach of contract action arises from a series of agreements relating to real property located at 2497 Adam Clayton Powell Jr. Boulevard in Manhattan (the “Property”) that was contaminated by an oil spill (the “Spill”) originating from non-party ExxonMobil’s adjacent gas station.
In February 2010, the Plaintiff, 2497 Realty Corp., executed the Contract of Sale of Membership Interests in 2497 Holding LLC, the no-party entity that owns the property, the buyer being Defendant, 2497 Partner LLC (the “Contract”).The parties thereafter amended the Contract to give Defendants sole control over remediation of the Property and settlement negotiations with ExxonMobil. The amendments also created a distribution plan (the “Waterfall”) for any proceeds received from a settlement agreement with ExxonMobil. In June 2011, ExxonMobil settled with 2497 Holding LLC for $1,500,000 (the “Settlement Agreement”).
In the instant action, commenced in 2014, the Plaintiff alleged that the Defendants breached the Contract by failing to make distributions pursuant to the Waterfall. The key issue in dispute is whether, per the Contract, the Property has been remediated to “its highest and best use under applicable zoning laws, as the Purchaser shall determine in its sole and absolute discretion.” Both parties have commissioned expert reports that document the remediation of the Property.
The Defendants filed a motion to preclude environmental experts, Andrew Lockwood and Derek Ersbak from testifying at trial. The Defendants argued that (i) the subject reports contain impermissible legal conclusions that reach the ultimate issue in the case; (ii) the Plaintiff’s experts are not qualified to opine on the “highest and best use” of the Property; and (iii) the subject reports fail to satisfy the disclosure requirements of Commercial Division Rule 13(c).
Geology Expert Witnesses
Andrew Lockwood is a graduate of SUNY Potsdam, where he studied geology. He is a licensed Professional Geologist in New York and a licensed Environmental Professional in Connecticut. Moreover, he has over thirty (30) years of experience managing environmental remediation, including the investigation and remediation of land contaminated by gasoline, radiation, and poly fluoroalkyl substances (PFAS).
Derek Ersbak is a graduate of SUNY Binghamton, where he studied biology. He is a licensed Professional Geologist in New York with twenty (20) years of experience in environmental due diligence, environmental compliance and state and federal remedial programs, including the federal Superfund cleanup law, New York’s Brownfield Cleanup Program, and regulations promulgated by New York City’s Office of Environmental Remediation.
The necessity of expert testimony in this case is beyond dispute as the subject matter—involving a technical analysis of environmental remediation efforts—is clearly beyond the ken of the typical juror. Moreover, the Court found unavailing the Defendants’ arguments that the Plaintiff’s expert geologists are not qualified to opine on the real estate development concept of “highest and best use,” and that the Contract grants the Defendants sole discretion to determine the highest and best use of the Property.
The Defendants accurately observed, however, that the Plaintiff’s Reports also includes opinions that veer into contract interpretation and other legal conclusions. Since no expert witness is permitted to testify on matters of contract interpretation or other purely legal issues, the Court held that questions put to Lockwood and Ersbak at trial should be limited to the environmental condition of the Property without requesting opinions on particular legal obligations of the parties under the Contract.
The Defendants further contended that the Plaintiff’s Reports and the testimony of Lockwood and Ersbak should be precluded because the expert disclosure provided by the Plaintiff did not comply with Commercial Division Rule 13(c) in that the Plaintiff’s Reports fail to list Ersbak and Lockwood’s recent publications and experience as expert witnesses. Moreover, the Defendants also took issue with Ersbak and Lockwood’s joint authorship of the Reply Report. The Court held that these arguments are without merit because there is no bar to jointly authored reports and preclusion of expert testimony based on noncompliance with Commercial Division Rule 13(c) is a question of judicial discretion.
Held
The Court denied Defendants’ motion to preclude the testimony and reports of the Plaintiff’s environmental experts, Andrew Lockwood and Derek Ersbak.
Key Takeaway:
The Plaintiff’s experts’ opinions are in keeping with the First Department’s reading of the contract language. They do not opine on the issue of what is or is not the theoretical highest and best use of the Property. Rather, they opine on the environmental remediation of the Property—an appropriate issue for expert testimony that is within their area of expertise—taking as their starting point the First Department’s aforementioned analysis of the Contract’s terms, the Property’s current zoning for commercial use, and the Defendants’ current use of the land for commercial purposes.
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.
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
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.
Jeffrey Frazier brought a claim for wrongful use of civil proceedings. A claim for wrongful use of civil proceedings requires a Plaintiff to show, among other things, that the Defendant acted without probable cause. Frazier’s expert, Professor Jane Bambauer‘s proposed testimony sought to opine as to the existence (or lack thereof) of probable cause for the claims in the underlying suit.
Defendants Eagle Air Med Corporation and Valley Med Flight, Inc. filed a motion to exclude the testimony of Jane Bambauer.
Law And Legal Expert Witness
Jane Bambauer is a part-time faculty member at University of Arizona Law. Bambauer teaches and studies the fundamental problems of well-intended technology policies. Bambauer’s research assesses the social costs and benefits of Big Data, and how new information technologies affect free speech, privacy, and competitive markets. She also serves as the co-deputy director of the Center for Quantum Networks, a multi-institutional engineering research center funded by the National Science Foundation, where she facilitates research on economic and regulatory policy for emerging markets in quantum technologies.
Professor Bambauer’s proposed testimony sought to apply the law to the evidence in a way that invaded both the province of the Court and the jury. While Professor Bambauer is eminently qualified, her expert report reads like a motion for summary judgment or the answer to a law school exam (though not a challenging one in Professor Bambauer’s estimation).
Professor Bambauer “cites to and discusses the analysis and holdings of case law, and then [s]he applies this legal authority to selected facts and evidence to reach legal conclusions. [Her] expert opinions are nothing more than legal analysis aimed at instructing on the law, how the facts and evidence should be applied to the law, and how the case should ultimately be decided.” The Court believed that allowing Professor Bambauer to testify in this manner would usurp the Court’s role in instructing the jury and would improperly dictate to the jury the conclusion it should reach.
Held
The Court granted Defendants’ motion to exclude the testimony of Plaintiffs’ proposed expert Jane Bambauer.
Key Takeaway:
The line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern. However, it is generally accepted that “an expert may not state legal conclusions drawn by applying the law to the facts.
This case arises out of a fee dispute between Defendant, CMR Construction & Roofing, LLC and Plaintiff, Crescent City Remodeling, LLC. CMR contracted Crescent to perform remediation work at Tangipahoa Parish School Board buildings following Hurricane Ida. Crescent later alleged that CMR breached the parties’ Joint Work Agreement by failing to compensate Crescent for its work.
On May 22, 2023, CMR impleaded Third-Party Defendant, Castle, arguing that CMR had paid Castle the full amount due to both Castle and Crescent, but that Castle had failed to pay Crescent its share.
John Theriot is a Certified Public Accountant, Certified Forensic Accountant, and Certified in Financial Forensics. He is a member of the American Institute of Certified Public Accountants, the Louisiana Society of Certified Public Accountants, and the American College of Forensic Examiners. He received his Bachelor of Science in Accounting from Nicholls State University in 1983, and he received his Masters in Accounting from Tulane University in 2004. Theriot began his career in public accounting upon graduating from Nicholls in 1983 as a staff accountant at Malcolm M. Dienes. He is now the managing partner of the firm and has over 30 years of experience in the field of public accounting.
Jason R. Schellhaas is a Partner at Malcolm M. Dienes, LLC. He primarily practices in the areas of tax compliance and tax planning for individuals, entities and estates; forensic accounting and litigation support services; business valuations; and audits, reviews, compilations and preparation of financial statements of small businesses.
To begin with, CMR argued that the experts’ testimony is not reliable, arguing that the assumptions, provided by Crescent’s counsel, informed the experts as to what conclusion they should reach and caused the experts to render legal opinions. Specifically, CMR took issue with the second assumption, which stated: “The project manager fee and sales commissions should not impact the payment due to CCR, as these amounts should be based on CMR’s 50% of the profit, rather than the entire profit which was to be allocated between CCR and CMR 50% / 50%.”
Reliability
First, both individuals are certified public accountants; the Court believes they used reliable methods and have satisfactory skills and training. Second, the Court is not persuaded that this assumption renders the opinion unreliable; the calculations in CMR’s report applied the commission to the profit of the entire job—before the 50-50 split between CMR and Crescent. This report merely assumes a different form of calculation. To the extent that the assumption affects the experts’ reliability, that issue goes to the weight of the evidence, not to its admissibility.
Relevance
CMR also moved to exclude the experts’ report on the basis that it is not relevant. In support, it cited cases in which the trial court barred testimony because it was speculative. CMR also challenged this report based on an allegation that the opinions “are the product of incomplete and inaccurate information, as well as based on incorrect assumptions and the blanket adoption of [Crescent’s] legal position.” The Court found the opinions relevant. First, the opinions are based on data in discovery and from the report it rebuts. Second, the opinions detail what the profit would be if the commission were calculated differently than it was in CMR’s expert report. This challenge goes to the weight of the evidence, not to its admissibility. The opinions expressed by Crescent’s experts satisfy the requirements of Daubert.
Finally, the Court noted that CMR’s report has not been challenged, despite its application of a different interpretation of the underlying contract. The underlying legal issue—the interpretation of the contract—is an issue upon which the Court has not yet ruled. It would be premature to exclude only one expert’s testimony related to damages merely because it assumes a possible interpretation, absent a ruling on the proper interpretation of the contract’s language.
Held
In conclusion, the Court denied CMR’s motion to exclude the opinions of John W. Theriot and Jason R. Schellhaas.
Key Takeaway:
The opinions of Theriot and Schellhaas meet the Daubert standards as they are based on data in discovery and from the report it rebuts. Moreover, the opinions detail what the profit would be if the commission were calculated differently than it was in CMR’s expert report.
Case Details:
Case Caption:
Crescent City Remodeling,Llc V. Cmr Construction & Roofing, Llc
Respondent traveled with her three minor children, J.H., A.H., and S.H., from Mexico to the United States in 2022. Petitioner sought the return of his minor children to Mexico under the Hague Convention. Respondent called Dr. Minal Giri to testify as an expert witness on July 16 and Dr. Paul Gillingham to testify as an expert witness on August 5. Petitioner reserved his objections during the hearing and now moves to exclude the opinions and testimony of Giri and Gillingham.
Pediatrics Expert Witness
Minal Giri is a licensed pediatrician with a medical degree from the University of Chicago. She has been a practicing pediatrician for over twenty years, since she completed her residency at Lutheran General Hospital in 2002. As part of her training, she studied mental health and mental trauma experienced by children. And as part of her current practice, she sees and treats children suffering from mental health conditions such as anxiety and depression on a regular basis. She completed a Global Mental Health Certificate at Harvard University in 2020 that focused on refugee trauma and recovery.
Paul Gillingham is a Professor in the History and Spanish & Portuguese Departments of Northwestern University and holds a Ph.D in the history of modern Mexico.
In her report and testimony, Giri diagnosed J.H. with post-traumatic stress disorder (“PTSD”) and generalized anxiety disorder, A.H. with PTSD and generalized anxiety disorder, and S.H. with separation anxiety disorder. She opined that if the three children were to return to Mexico, this would compound their existing trauma and exacerbate their disorders.
Qualifications
First, Petitioner argued that Giri is not qualified to provide psychological diagnoses because she is neither a psychiatrist nor a psychologist. But Giri has specific experience diagnosing and treating mental health and mental trauma for immigrant and refugee children. She has written expert reports for approximately 35 prior cases, each of which involved the mental evaluation of children or adults seeking asylum and immigration relief. The Court held that Giri is qualified to provide psychological diagnoses for the three children.
Methodology
Petitioner challenged Giri’s methodology. Primarily, Petitioner argued that Giri’s methodology was flawed because she did not ask questions during the interviews about possible causes of the children’s symptoms, beyond their father’s alleged mistreatment. Moreover, Petitioner contended that Giri’s reliance on the Istanbul Protocol implies a false assumption by Giri that the children had been traumatized.
The Court held that Giri’s methodology was sound. She interviewed J.H., A.H., and S.H. consistent with her training as a pediatrician and reached conclusions based on those interviews.
Petitioner also argued that Giri’s methodology was flawed because the DSM-5 contains eight requirements for a PTSD diagnosis and Giri’s reports for J.H. and A.H. enumerated just five of these requirements. The Court held that Petitioner’s cross-examination was the appropriate remedy to attack the missing information rather than exclusion of Giri’s entire report.
Petitioner argued that Giri’s methodology was flawed because Giri was not present when J.H. and A.H. filled out the GAD-7 and PHQ-9 questionnaires (screening tests for mental health conditions) and thus had no way to verify their answers. Giri testified that her diagnoses were based on the interviews, not the questionnaires, and that the questionnaires merely confirmed the diagnoses she had already reached based on the interviews. The Court affirmed the admissibility of the diagnoses.
Paul Gillingham
In his report and during his testimony, Gillingham offered an opinion on 1) the general level of violence in Respondent’s hometown of Zitácuaro; 2) whether, based on his understanding of Mexico and Zitácuaro, Respondent’s allegations of violence were credible; and 3) whether, based on his understanding of Mexico and Zitácuaro, Respondent would have been able to rely on the police or court system for recourse in her divorce case or for physical protection.
First, Petitioner argued that Gillingham’s report should be excluded because Gillingham failed to disclose all his sources. The Court held that this particular nondisclosure does not warrant exclusion of the entire report. Gillingham testified that he had relied on three data points in forming his opinion about violence in Zitácuaro: homicide rates, internally displaced persons, and disappearances. Gillingham’s report disclosed homicide rates but failed to disclose anything about internally displaced persons or disappearances. Overall, Gillingham’s eighteen-page report contains thorough citations with fifty-eight footnotes. Moreover, Petitioner’s counsel effectively and extensively cross-examined Gillingham on this issue. The Court found that Petitioner fully cured any prejudice stemming from the non-disclosure and thus that the non-disclosure was harmless.
Second, Petitioner argued that Gillingham’s report and testimony should be excluded as unreliable and irrelevant because Gillingham failed to rely on facts specific to this case. However, Gillingham’s mission was to take the allegations made by Respondent and to assess their general plausibility given what he knows, as an expert, about the political and criminal situation in Zitácuaro. The Court held that the nature of Gillingham’s testimony is unusual. It is less of an analysis and more a sharing of information about Zitácuaro. But there is nothing to suggest that the information provided by Gillingham is flawed. The Court found it at least minimally relevant and thus admissible.
Held
The Court denied the Petitioner’s motions to exclude the opinions and testimony of Minal Giri and Paul Gillingham.
Key Takeaway:
All expert opinions come with assumptions and conclusions. Petitioner is free to disagree with Giri’s assumptions and conclusions, but that does not render Giri’s testimony inadmissible.
There is nothing to suggest that the information provided by Gillingham is flawed. And his testimony is at least minimally relevant to provide the Court with context for Respondent’s hometown of Zitácuaro. Whether the Court will ultimately afford Gillingham’s testimony much weight in deciding this case is an open question. The testimony, however, is at least minimally relevant and thus admissible.
Case Details:
Case Caption:
Delgado Moreno V. Hernandez Escamilla
Docket Number:
1:23cv15736
Court:
United States District Court for the Northern District of Illinois, Eastern Division
Congress enacted the Telephone Consumer Protection Act (TCPA) to mitigate intrusive telemarketing practices. The TCPA “prohibits calls to numbers on the national Do-Not-Call registry [“NDNCR”].”
To help combat telemarketing calls to numbers on the NDNCR, a database that lists the telephone numbers of individuals who have requested that telemarketers not contact them, the TCPA created a “consumer-driven process that would allow objecting individuals to prevent unwanted calls to their homes.”
The TCPA prohibited telephone solicitations to a “residential telephone subscriber who has registered his or her number on the national donot-call registry.” Mantha, on behalf of the putative class, alleged a single claim: “by sending more than one call in a 12-month period to a residential telephone number listed on the [NDNCR] without express written consent, QuoteWizard violated the TCPA’s do-not-call registry provisions.”
On October 29, 2019, Mantha brought a class action lawsuit against QuoteWizard in this Court, alleging violations of the TCPA.
Plaintiff Joseph Mantha filed a motion for class certification while QuoteWizard filed a motion to exclude the testimony of Anya Verkhovskaya, Mantha’s expert witness.
Consumer Protection Expert Witness
Anya Verkhovskaya is a nationally recognized expert witness who has provided expert analysis, testimony, and litigation support services in federal and state class actions relating to the TCPA, consumer protection, human and civil rights, securities fraud, ERISA, antitrust, pharmaceuticals, and insurance, as well as in fairness actions before the U.S. Securities and Exchange Commission, among others. Verkhovskaya has been a pioneer in methods of analyzing mass consumer data, including telephone call and text message records and voice recordings numbering in the billions.
“All persons within the United States (a) whose residential telephone numbers were listed on the National Do Not Call Registry, and (b) who received more than one telemarketing text within any twelve-month period at any time from Drips, (c) to promote the sale of QuoteWizard’s goods or services, and (d) whose numbers are included on the Class List.”
Mantha’s expert, Verkhovskaya, prepared the “Class List” described in the proposed Class Definition. Using standard data analysis techniques, she prepared a list, substantially at the direction of counsel for Mantha, of a subset of persons who satisfy the proposed Class Definition, while eliminating potential legal or factual issues by narrowing the Class.
From this process, Verkhovskaya found that QuoteWizard had sent 314,828 text messages to 66,693 telephone numbers that “satisfied the [NDNCR] requirements of having received, on a residential number listed on the national do-not-call registry, more than one text message[] in a 12-month period.”
In challenging the proposed Class List and seeking to exclude Verkhovskaya’s analysis, QuoteWizard raised several criticisms.
Verkhovskaya’s Methodology Does Not Identify Mantha
QuoteWizard alleged that Verkhovskaya’s testimony should be rejected because her process failed to identify Mantha, whom she manually added to the Class List.
The Court already found that (i) Mantha listed his number on the NDNCR, (ii) his number is residential, (iii) QuoteWizard sent him eight text messages in ten days, and (iv) the texts from QuoteWizard amounted to “telephone solicitations” within the meaning of the TCPA.
Thus, Mantha met parts (a) through (c) of the proposed Class Definition. He met part (d) when Verkhovskaya added him to the proposed Class List. Nothing more is legally required.
Verkhovskaya has not represented that her methodology identifies everyone from the files obtained from QuoteWizard who could possibly fit within the proposed Class Definition. Rather, she offers her data analysis as a means of identifying a subset of all possible class members for certification as a class. The Court held that it is irrelevant for Daubert purposes that she manually added Mantha to the Class List.
Decisions of Other Courts Considering Verkhovskaya’s Reports
QuoteWizard urged this Court to exclude Verkhovskaya based on the rulings of other courts. The Court has reviewed the various cases cited by QuoteWizard where other courts have excluded Verkhovskaya’s methodology, as well as other cases cited by Mantha.
QuoteWizard relied principally upon two cases arising under different sections of the TCPA which, necessarily, entailed different analyses by Verkhovskaya. The Court held that these cases are not persuasive here. As to the other cases cited by QuoteWizard in its motion, they either involved the denial of Daubert motions to exclude Verkhovskaya’s testimony or did not involve Daubert motions at all.
Reliability of the PacificEast Data
QuoteWizard next alleged that Verkhovskaya’s testimony should be rejected because she used “unreliable” data from PacificEast in formulating her opinions.
PacificEast is a “data processing service provider.” It has been in business for over twenty years. One service it offers, labeled the “NDNCR Lookup Service,” provides information about whether a phone number appears on the NDNCR. Verkhovskaya retained PacificEast to perform this service. This is how she determined whether a phone number appears on the NDNCR. The Court held that using a widely available, long-standing, commercial service to run a database check is a perfectly normal and reasonable methodology.
Next, Verkhovskaya used the “Business Number Lookup”—another service offered commercially by PacificEast. As part of this service, PacificEast reports whether a number is a “business” or “residential” number. The Court is not now evaluating the correctness of Verkhovskaya’s opinions, only their admissibility. In this case, Verkhovskaya was not using this service to conclusively determine whether a number was “residential.” Rather, it aided her in narrowing the proposed Class List to numbers that are more likely to be residential.
Finally, to the extent QuoteWizard challenges more generally the “residential” determination Verkhovskaya did make, the Court held that her opinions withstand the exclusion motion. Numbers on the NDNCR are presumed residential. Of course, QuoteWizard itself is the source of the original list of numbers, and the fact that it was aiming its telemarketing campaign at consumers tends to suggest the original list is comprised of residential numbers. Moreover, Verkhovskaya eliminated numbers with current business associations.
Of course, even if her use of PacificEast has left some errors in her proposed Class List, such that some of the members of the proposed Class List do not meet the Class Definition, the Court held that this does not warrant exclusion of her testimony.
QuoteWizard’s “False Positives” Challenge
QuoteWizard next alleged that Verkhovskaya’s testimony should be excluded because her methodology has a high error rate, illustrated by a number of “false positives” or phone numbers presently on the proposed Class List that should not be.
Insofar as QuoteWizard contended, in connection with either pending motion, that 68% of the users on the proposed Class List lack standing to bring a TCPA claim because they did not register their numbers on the NDNCR, the Court disagrees. There is no statutory requirement that the phone number’s user—as opposed to the subscriber—register the number. Rather, the TCPA afforded a private right of action to a “person who has received” calls placed “in violation of” the statute’s regulations.
The Court added that the method Verkhovskaya selected—using a commercially available service for its intended purpose—is a reliable one. This date-focused challenge rests on speculative inferences arising from an unexplained email. Even assuming, for purposes of this Motion only, that the June 1, 2003, date reflects an error or problem in the data—the error is a weight, not admissibility, issue.
Held
The Court denied QuoteWizard’s motion to exclude the testimony of Anya Verkhovskaya and allowed Mantha’s motion for class certification.
Key Takeaway:
The focus in a Daubert challenge is not “primarily concerned with a proposed expert’s conclusions,” but with “making a ‘preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.’”
