This suit arises from alleged damage to Plaintiff, Curt Marcantel’s primary residence in Lake Charles, Louisiana, and his ranch in Singer, Louisiana, during Hurricane Laura. At all relevant times the properties were insured under policies issued by State Farm. Plaintiff filed suit in this court on June 6, 2022, alleging that State Farm had not timely or adequately compensated him for his covered losses. Accordingly, he raised claims for breach of insurance contract and bad faith under Louisiana law.
Stevephen Lott has been providing professional public adjuster & consulting services to Insureds and Clients across the country. Prior to this, he spent 10 years working claims for several large Insurance Carriers on the other side of the aisle. He started Integrity Claims Consultants out of a strong belief that the Insured’s interests were not being represented fairly, by both the Carrier’s he was representing and the Public Adjusting firms they were being represented by.
Notably, Lott testified that he did not use any moisture meters to determine readings on which he based his opinion that certain repairs needed to be made to the interior of the home. Rather, Lott relied on Norman’s moisture meter readings.
State Farm challenged the scope of damages identified by Lott because he had relied on moisture meter readings conducted by Charles Norman. In two separate Daubert motions, State Farm had challenged Norman’s technique in using the moisture meter as well as his failure to account for the fact that both properties had sat in Louisiana’s humid weather without air conditioning for nearly a year before his inspection. The Court had denied those challenges as impacting the weight rather than the admissibility of Norman’s testimony. Accordingly, there was no basis for excluding or limiting Lott’s testimony.
Held
The Court denied State Farm’s motion to exclude or limit the testimony of Plaintiff’s expert Stevephen Lott.
Key Takeaway:
The Court refrained from excluding Lott’s opinions based on moisture meter readings conducted by Plaintiff’s expert Charles Norman because State Farm had previously challenged Norman’s technique in using the moisture meter as well as his failure to account for the fact that both properties had sat in Louisiana’s humid weather without air conditioning for nearly a year before his inspection. The Court had denied those challenges as impacting the weight rather than the admissibility of Norman’s testimony.
Plaintiff La Canada Ventures, Inc., is a health and beauty retailer offering cosmetic products. Defendant MDalgorithms is a company that offers computer software and app technology for education and advice about the treatment of acne. Both parties create and market skin and haircare products with the root mark “MD.”
Plaintiff brought this action against Defendant, advancing several claims related to trademark infringement and false advertising.
Plaintiff owns seven trademarks. Defendant creates and sells MDacne and MDhair, which are customizable skincare and haircare product kits. Plaintiff does not sell a product called MDacne but does have an acne skincare product that displays the mark “MD” on the packaging. Plaintiff avers that its customers nonetheless confuse the source of MDalgorithm’s products as coming from Plaintiff. Where a customer confuses the source of the junior user’s product as the senior user, that is known as “forward confusion.” Other types of confusion actionable under the Lanham Act include “reverse confusion,” which occurs when consumers approach the senior user, mistakenly believing they are dealing with the junior user, as well as the newly minted “initial interest confusion,” which occurs when customers are drawn to one party’s brand during their search for its competitor’s products, and the former “capitalizes on the goodwill associated with [the latter’s] mark.”
Defendant filed a motion to strike the opinion of Plaintiff’s expert, Richard Kostick. In his report, Kostick opined that (1) Plaintiff consistently followed best practice for effective digital marketing and (2) the sales and revenue generated by Plaintiff do not reflect the expected return from its digital marketing investment. Defendant challenged Kostick’s research methodologies as deficient and self-serving.
Marketing Expert Witness
Richard Kostick is the Founder and CEO of Purity Cosmetics (100% PURE) and has demonstrated expertise in leading and growing a successful cosmetics company with a strong focus on natural and organic beauty products. Under his leadership, Purity Cosmetics became a leader in prestige natural and organic beauty products. The flagship brand, 100% PURE, was committed to producing the purest and healthiest products while promoting environmental sustainability and improving the lives of both people and animals. With almost two decades of experience as the CEO of Purity Cosmetics, he gained extensive knowledge and expertise in the digital marketing strategies and tactics employed within the beauty industry. He employed this knowledge for the strategic decision-making that was instrumental in positioning Purity Cosmetics as a recognized brand in the market.
There are several reasons why an expert’s proposed testimony may be excluded, including the expert’s lack of qualification, the inapplicability of the proposed testimony, and the unreliability of the proposed testimony. Defendant primarily contended that Kostick’s report and any associated testimony should be excluded because it is unreliable.
Kostick’s opinion that Plaintiff engaged in best practices for digital marketing
Plaintiff argued that Kostick’s methodology is adequately stated and that cross-examination, not exclusion, is the appropriate way for Defendant to attack his opinions.
The Court observed that none of the other four analytical steps enumerated in Kostick’s report provide any greater insight into his actual methods, making it impossible to test his results. Kostick described the steps of his analysis in only the most general of terms. For example, he stated in only four lines of text that he conducted a “website audit” using three tools: Google Search Console, Google Optimize, and GTMetrix. He did not state what he actually did with these tools. Further, while Kostick stated that the audit provided “valuable insights” and “potential areas for improvement,” he did not elaborate as to either.
Moreover, Kostick did not record his work. Kostick’s report might be admissible if its vagueness could be cured by complete contemporaneous notes and documentation because Defendant could use that documentation effectively to cross-examine him. The Court noted that no such documentation exists.
Kostick’s report simply states that he used GTMetrix to conduct his website audit. When asked at his deposition if he took any notes during that process, Kostick replied that he could not recall and that he provided Plaintiff with any notes he did write, but Plaintiff has not produced any notes regarding GTMetrix. Similarly, Kostick’s report states that he used Ubbersuggest to conduct keyword research, but he does not recall whether he preserved any results or data from his use of that program and no such documents have been produced by Plaintiff.
The Court held that Kostick’s report ran afoul of Rule 26 which requires that an expert’s report contain “the facts or data considered by the witness in forming” their opinions. “
Kostick’s opinion that Plaintiff did not achieve the expected return from its digital marketing investment
The Defendant moved to strike an additional opinion in Kostick’s report; specifically, that “a solid investment in digital marketing should result in a return of 2-5 times during the short term and more in lifetime value of the customer.” However, the Court held that the report did not provide any additional information about this claim or its basis. When asked during his deposition about the claim, Kostick confirmed that he had not cited a source and could not identify a potential source supporting this claim despite it being supposed common knowledge.
The ten blog posts and articles that Kostick had listed as “authoritative sources” to shed light on the potential returns from the kinds of marketing investments employed by the Plaintiff added nothing to support his report’s reliability. Since he had not provided citations for any of these ten sources, Kostick failed to make clear exactly what articles he was relying on. However, even a cursory search for these ten sources made clear that they were not from reliable peer-reviewed publications. Instead, Kostick had apparently cited industry magazines and blogs run by technology companies who were likely writing with incentives irrelevant here.
Held
The Court granted Defendant’s motion to strike and exclude the report and associated testimony of Richard Kostick.
Key Takeaway:
Whether Kostick’s methodology is sound is unknowable because he does not state his methodology with sufficient specificity to satisfy even the very liberal standard under Daubert.
Defendant challenged Kostick’s failure to document and disclose his methods. Basic documentation of an expert’s analytical process is not, as Plaintiff argues, merely additional information that Defendant would like to see, but rather an essential part of an expert report that cuts to the heart of whether the method “can be or has been tested.”
Case Details:
Case Caption:
LA Canada Ventures, Inc. v. Mdalgorithms, Inc.
Docket Number:
3:22cv7197
Court:
United States District Court for the Northern District of California
Plaintiff sued Berry Petroleum Company for injuries incurred while pumping oil for transport as a crude oil truck driver for Savage Industries Inc. In both the initial disclosure and the supplemental disclosure at issue here, Plaintiff designated Edward R. Ziegler as an “oil field, oil tank and oil tank’s ‘thief hatch’ safety expert as to all relevant safety issues involved in this injury incident.”
Berry agreed that Plaintiff complied with the deadlines concerning Ziegler’s initial disclosures and report. Ziegler’s deposition was taken December 16, 2022. Per the fifth amended scheduling order, expert discovery closed January 29, 2024. On April 12, 2024, Plaintiff filed his Second Supplemental Expert Reports containing an updated expert report from Ziegler. Berry moved the Court to exclude this updated report on the grounds that it is untimely and that the delay was not substantially justified or harmless.
Petroleum Engineering Expert Witness
Edward R. Ziegler is a petroleum and natural gas engineer with a law degree. He is also a registered Professional Engineer (Texas and Wyoming), a Certified Safety Professional (C.S.P.), and has been trained several times as an OSHA 500-series instructor. Currently, Ziegler is the American Society of Safety Engineers’ appointee to the ANSI Z49.1 welding and cutting safety committee, and he has served on other industry safety committees.
Besides, his diverse, international background includes oilfield, safety, pipeline, and construction employment. Particularly, he has extensive oilfield experience in drilling, completion, production, reservoir, and construction engineering—both onshore and offshore.
Under Fed. R. Civ. P. 37(c)(1), “if a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . unless the failure was substantially justified or is harmless.”
Berry argued that “it will undoubtedly be prejudiced” if the report is not excluded and that this prejudice cannot be cured. Berry claimed that it will be prejudiced by increased costs, arguing that it will have to conduct a second Ziegler deposition, pay for its own experts to review the supplemental report, and the amount of prejudgment interest will be increased by delaying trial. The Court did not find this persuasive. Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set.
Next, Berry argued that the supplemental report will disrupt the trial because it will further delay the trial. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. Accordingly, the Court found that this factor did not weigh in favor of exclusion.
Finally, Berry argued that the untimely disclosure was willful because Plaintiff had waited so long to produce it. Berry also asserted that Plaintiff was using this supplemental report to add additional opinions or reinforce opinions already presented in the original report. They did not cite any part of the report to support this assertion. Berry also objected to Plaintiff’s explanation as to why he had filed the supplemental report. The Court did not need to consider Plaintiff’s explanation in finding that this factor did not weigh in favor of exclusion. Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Held
The Court denied Defendant Berry Petroleum Company, LLC’s motion to exclude Plaintiff’s second supplemental expert reports containing an updated expert report from Edward Ziegler.
Key Takeaway:
Berry conceded that the supplemental report does not rely on new information, and further, there is no trial date set. As there is not yet a trial date set, the inclusion of the supplemental report does not disrupt the trial setting. In conclusion, the Court found that Berry did not present evidence that suggested bad faith or willfulness by Plaintiff.
Case Details:
Case Caption:
Skinner V. Berry Petroleum Company Et Al
Docket Number:
1:19cv124
Court:
United States District Court for the District of Utah, Central Division
This is an automobile negligence case alleging that the Plaintiffs, Fred Young and Jeff Firman were permanently injured in a rear-end collision by an employee of the Defendant, Panera, LLC. The Defendant has retained and plans to call biomechanical engineer Ming Xiao, Ph.D., in its case-in-chief.
Plaintiffs requested the Court to exclude certain testimony of Defendant’s biomechanical engineering expert, Dr. Ming Xiao. Plaintiffs argued that Xiao did not cite any scientific study to support his testimony that the forces Plaintiffs experienced in the collision were analogous to those resulting from certain activities of daily living, such as running, jumping, plopping in a chair, and picking up an object. In the alternative, Plaintiffs stated, “Assuming that these specific analogies were not simply made up by Xiao, a review of the studies listed in the report’s appendix revealed a likely source for their insertion in his report.”
Accident Reconstruction Expert Witness
Dr. Ming Xiao holds a B.S. degree in Mechanical Engineering and a Ph.D. in Biomechanics. He is a registered professional engineer, an Accredited Traffic Accident Reconstructionist (ACTAR), and a Certified Playground Safety Inspector (CPSI). His primary areas of consulting expertise include injury consistency biomechanics, accident reconstruction, and playground safety.
Plaintiffs noted that one study cited by Xiao, the Allen 1994 study, was excluded by a judge in the Middle District of Florida because the results of the study were found not to have been generally accepted by the scientific community and because the study’s probative value was outweighed by its potential to mislead or confuse the jury.
The Court disagreed with Plaintiffs’ characterization of Xiao’s report. While Xiao did not provide citations for each statement in the report analogizing the mechanical loads Plaintiffs allegedly experienced to those experienced in daily activities, Xiao cited several peer-reviewed studies that supported his analogies, four of which Xiao summarized in his affidavit.
Additionally, contrary to Plaintiffs’ concern that Xiao’s conclusions are based solely on the Allen 1994 study, which Plaintiffs allege is unreliable because the study was based on a sample size of only young, healthy adults, Xiao explains in his report, “Occupant motions in response to motor vehicle accidents have been extensively studied by biomechanical engineers through staged crash tests using human volunteers, post-mortem human surrogates, and anthropomorphic test devices. To this date, published peer-reviewed literature has over 2,000 human volunteer exposures subjected to rear-end and frontal collision tests. The volunteers varied in age (up to 68 years old), gender, height, weight, and medical conditions.”
The Court observed that Defendant summarized several additional studies upon which Xiao relied that were published within the last 10 years and showed that comparisons of forces in motor vehicle collisions and those in daily activities were generally accepted in the scientific community.
Held
The Court permitted Xiao to testify regarding his comparisons of the mechanical loads Plaintiffs would have experienced to those experienced when engaging in activities such as running, jumping, plopping in a chair, and picking up an object. As Defendant noted, this testimony will relate the impact Plaintiffs experienced to “activities with which the jury has experience and can relate to.”
Key Takeaway:
When Plaintiffs argued that Xiao did not cite any scientific study to support his testimony, the Court found that the Allen 1994 study was originally published in a journal with a rigorous peer-review process and has been cited 130 times by other peer-reviewed scientific articles. Xiao also cited 98 other peer-reviewed studies. These studies are examples of biomechanical engineers and scientists using similar methodology regarding comparison of activities of daily living. Defendant summarized several additional studies upon which Xiao relies that were published within the last 10 years and show that comparisons of forces in motor vehicle collisions and those in daily activities are generally accepted in the scientific community.
This case arises out of an oil and gas royalty dispute between Flat River Farms and MRC Energy Company. Plaintiffs produced a one-page expert report prepared by George E. McGovern III, CPA, a certified public accountant (“CPA”). Based on his expert report, McGovern was tasked with determining if Plaintiffs’ royalties as determined by the Lease were underpaid. The report contains the following conclusions:
MRC received consistently lower payments for well production than industry standards.
MRC was not charged for expenses related to gas preparation.
The operator’s payment method doesn’t adhere to GAAP standards.
The operator transferred production ownership to a third-party at below-market cost. A third-party marketer then prepared the product for sale.
The gas’s monetary value to MRC and royalty payments were discounted to cover expenses and lease burdens
The Court addressed two motions relating to McGovern filed by Defendant MRC Energy Company (“MRC”). McGovern is Plaintiffs’ expert witness. The first motion is a Daubert motion to exclude the testimony of McGovern. More specifically, MRC seeks to exclude or limit at trial any opinion testimony from McGovern on the element of damages. MRC contends that McGovern’s expert testimony is not based on sufficient facts or data, his testimony is not the product of reliable principles or methods, and he has not reliably applied the principles and methods to the facts of this case. MRC submits that his testimony would only serve to confuse the trier of fact.
The second motion is a motion in limine to exclude McGovern’s expert testimony and report on the grounds that McGovern is unqualified to provide an expert opinion in this case and his testimony is not the product of reliable principles and methods.
Accounting Expert Witness
George E. McGovern III has been a Certified Public Accountant since 1972. He worked for international accounting firm Touche Ross (now Deloitte Touche) and was a full time accounting professor at Centenary College for eight years. He has qualified as an expert in oil and gas accounting, and testified as such in numerous cases across multiple jurisdictions.
McGovern could not explain the basis of his conclusion
During his deposition, McGovern was unable to explain his opinions in conjunction with actual evidence or analysis. He could not recall the prevailing industry rate for the respective time period and did not recollect the documents or information he had or that he used to establish the prevailing industry rate. He also could not explain the basis of his conclusion that MRC was paid at a price that was consistently lower than the prevailing and industry standard price for the respective time period.
MRC contended that McGovern was unqualified to provide an expert opinion in the case
To begin with, McGovern admitted that he had not prepared for the deposition. Based on the contents of the report and McGovern’s deposition testimony, MRC contended that McGovern was unqualified to provide an expert opinion in the case and that his report was not based on any reliable facts or data. MRC submitted that McGovern was unqualified to provide an opinion regarding the various methods of allocating and recouping expenses, and the various methods in which non-operating working interest owners were assessed costs, directly or indirectly, in the oil and gas production process. Besides, MRC maintained that McGovern’s trial testimony would not be the product of reliable principles and methods, and that he had not reliably applied the principles and methods to the facts of the case.
The Court agrees that portions of McGovern’s opinions are not sufficiently grounded in any actual evidence or analysis, thereby rendering them void of the necessary indicia of reliability. Without more reliable methodology and factual support for his analysis, McGovern’s opinion that the per unit monetary value of the gas received by MRC, and upon which it paid royalties to Plaintiffs, does not reflect the true price, but rather a discounted price to account for the deduction of expenses and other lease burdens is inadmissible and would not be helpful to the jury. Rule 702 requires this Court to exercise its role as a gatekeeper and exclude such unreliable expert opinion. McGovern can provide no testimony regarding money, numbers or claimed damages as it relates to the instant matter. Notwithstanding, he is qualified as a CPA to opine on generally accepted accounting principles (“GAAP”) applicable to oil and gas royalty payments. Additionally, assuming the proper foundation is laid, McGovern may be able to opine generally on allocation of production and recouping expenses.
Held
In conclusion, the Court granted in part and denied in part MRC’s motions to exclude McGovern’s expert testimony.
Key Takeaway:
MRC contended that McGovern’s testimony is not based on sufficient facts or data and he is unqualified to provide an expert opinion in this case. The Court held that McGovern can provide no testimony regarding money, numbers or claimed damages as it relates to the instant matter. Notwithstanding, he is qualified as a CPA to opine on generally accepted accounting principles (“GAAP”) applicable to oil and gas royalty payments.
This case concerns the operation of the Jefferson Parish Landfill in Waggaman, Louisiana (the “JPLF”), and the resulting odors emitted from the JPLF between July 1, 2017, and December 31, 2019 (the “relevant time period”). Plaintiffs, who are Jefferson Parish residents, filed several individual lawsuits that were consolidated into a mass action, Addison v. Louisiana Regional Landfill Co., which contains over 500 individual Plaintiffs.
The Defendants asserted several “alternative source arguments,” including that: (1) Plaintiffs’ alleged damages were sustained in whole or in part as a result of intervening or superseding causes, including noxious odors originating from sources other than the JPLF; and (2) Plaintiffs’ claims are barred or diminished to the extent their injuries were caused by their own comparative fault or the comparative fault of third parties or sources of odors for which the Defendants are not responsible.
Motion to preclude
The Defendants engaged Matthew Stutz, P.E.—represented to be an expert in “landfill design, engineering, management, and operations”—to offer opinions about modeled emissions and emission rates of landfill gas and hydrogen sulfide (“H2S”) from the JPLF and two neighboring landfills, the River Birch Landfill (the “RBLF”) and the Highway 90 construction and demolition (“C&D”) Landfill (the “Hwy 90 Landfill” or “Hwy 90”).
Stutz is also offered as a rebuttal expert to rebut the opinions of Plaintiffs’ experts, specifically regarding: (1) the generation and emissions of landfill gas and hydrogen sulfide; (2) the design, operation, and maintenance of the JPLF, including its cover, leachate, landfill gas, and odor control systems; and (3) the acceptance of nonhazardous industrial waste at the JPLF. Stutz expressed several opinions in his expert report (the “Stutz Report”) related to modeled gas generation and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill.
Plaintiffs filed their Motion in Limine seeking to preclude Stutz from offering testimony related to certain opinions expressed in the Stutz Report under the law-of-the-case doctrine and Federal Rule of Evidence Rule 702.
Environmental Engineering Expert Witness
Matthew K. Stutz is a Principal with Weaver Consultants Group, LLC. He has extensive work experience in landfill gas collection and control system design, leachate systems, and air quality permitting and compliance, and he has prepared numerous landfill gas collection and control system designs, landfill gas evaluations, emission inventories, air quality permits, emission calculations, and odor control plans.
Stutz received a Bachelor of Science in Civil/Environmental Engineering in 1997, from The University of Texas at Arlington. He currently serves on a panel of the U.S. Environmental Protection Agency (“EPA”) which provides comments on landfill air quality regulations.
After preparing landfill gas generation models and emissions estimates for the JPLF, the RBLF, and the Hwy 90 Landfill, using mathematical analysis and relevant source material, Stutz expressed several opinions in his Report.
Stutz’s testimony related to the Hwy 90 Landfill will be excluded under Rule 702
Plaintiffs sought to exclude the portion of Opinion No. 2B in which Stutz opines “the Hwy 90 Landfill was the largest and most significant source of H2S emissions of the three landfills” during the relevant time period. The Stutz Report represents “[a] main component[] used in gas generation modeling is the concentration of the specific gas being modeled,” which in this case is H2S.
After comparing the modeled H2S emission rates for the Hwy 90 Landfill, the RBLF, and the JPLF, Stutz concluded “the majority of H2S emissions during [the relevant time period] came from Hwy 90.”
The Court found that the scant and uncharacteristic H2S concentration data from February 2008, on which Stutz based the Hwy 90 Model for the relevant time period, rendered Opinion No. 2B unreliable.
In this case, Stutz relied on two data points collected on a single day nearly one decade before the relevant time period to derive the H2S concentration that informs his Hwy 90 Model. Hwy 90 records demonstrate the landfill experienced elevated H2S concentrations in 2008, which likely resulted from the burial of organic vegetative and gypsum sheetrock debris when the LDEQ designated the landfill an Emergency Debris Site post-Hurricane Katrina.
The Court also found that the probative value of Stutz’s testimony on the Hwy 90 Landfill is substantially outweighed by the risk of misleading the jury. Thus, the Court will also exclude Stutz’s testimony related to the Hwy 90 Landfill under Rule 403.
Stutz may offer testimony on the JPLF and the RBLF
Stutz’s testimony on the JPLF and RBLF will not be excluded under Rule 702
Plaintiffs also sought to exclude the portion of Opinion No. 2B in which Stutz expressed findings related to the JPLF and the RBLF under Rule 702. Plaintiffs argued Stutz improperly neglected to calculate the total H2S that may be generated from material at the landfills, which rendered his modeled H2S emissions from those facilities “nothing more than a wild guess.” Specifically, Plaintiffs claim Stutz’s modeled H2S emissions from the JPLF are not the product of reliable principles or methods because his model does not account for “the forty-six million [] pounds of spent lime buried in [Phase IVA].”
The Court has reviewed the bases of the portions of Opinion No. 2B related to the JPLF and the RBLF. Unlike the H2S concentration used in his Hwy 90 Model, a review of Opinion Nos. 1B and 2B reveals the H2S concentrations Stutz used in the H2S Generation Models for the JPLF and the RBLF (the “JPLF Model” and “RBLF Model,” respectively) are more “grounded in the methods and procedures of science” than in Stutz’s unsupported speculative or subjective belief.
With respect to the JPLF Model, Stutz represented he “uses the same average H2S concentrations as the Plaintiffs’ experts,” and Plaintiffs do not challenge this assertion. With respect to the RBLF Model, although Stutz’s H2S concentration is based on limited data, the H2S concentration is based on a study from June 2018, during the relevant time period.
Stutz’s testimony on the JPLF will not be excluded under the law-of-the-case doctrine
Plaintiffs sought to exclude the remaining contested opinions on the basis that the opinions relate to issues adjudicated in the general causation phase and should be excluded under the law-of-the-case doctrine.
The Court has reviewed the Stutz Report and finds Plaintiffs’ argument is without merit. Table 4 of the Stutz Report provides a comparison of 2019 H2S concentrations at the JPLF, which identifies an average H2S concentration at the JPLF Phase IVA of: (1) 3,633 ppm (i.e., 3,633,000 ppb) collected inside the landfill; (2) 0.43 ppm (i.e., 430 ppb) at the landfill surface; and (3) 1.126 ppm (i.e., 1,126 ppb) collected from ambient readings at approximately three feet from the landfill surface. To the extent the Plaintiffs challenge Stutz’s opinions under the law-of-the-case doctrine, Stutz input the H2S concentration of 3,633 ppm into his JPLF Model for Phase IVA, which is the same figure relied upon by Plaintiffs’ H2S emissions model.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to exclude expert testimony of Matthew Stutz. Stutz may not offer testimony related to the Hwy 90 Landfill. He may offer testimony related to the JPLF and the RBLF. Stutz may offer his rebuttal of Plaintiffs’ experts’ opinions on the JPLF and RBLF, as necessary, but may not offer rebuttal opinion related to the Hwy 90 Landfill.
Key Takeaways:
Stutz offered no explanation as to the validity or general acceptance in the scientific community of his methodology for deriving an H2S concentration based on such scant and uncharacteristic data.
To the extent Plaintiffs challenge Stutz’s omission of site-specific data, including his failure to calculate the total H2S generated at the landfills, the Court finds these concerns go to the weight of Stutz’s opinions rather than their reliability and should be left for the factfinder’s consideration.
Case Details:
Case Caption:
Addison, Et Al. V. Louisiana Regional Landfill Company, Et Al
Plaintiff Amy Lee Sullivan is suing Defendant Flora, Inc. for copyright infringement of 33 illustrations that she created for Flora as part of two advertising campaigns.
Sullivan offered the testimony of a financial evaluation expert, Dennis Kleinheinz. Sullivan wanted to present Kleinheinz’s calculations on Flora’s profits but the Court reserved the ruling on Sullivan’s motion regarding the testimony of Dennis Kleinheinz when Flora filed its objections.
Plaintiff also retained Danny Mager and Flora filed objections against his opinion that each additional use of each of Sullivan’s registered illustrations have a market value of between $3,000.00 and $6,000.00.
Marketing Expert Witness
Danny Mager is employed by Staples Marketing, LLC, which does business as AFFIRM Agency. The AFFIRM Agency is a Milwaukee County, Wisconsin full-service advertising agency originally established in 1985. Mager is a principal and the marketing director of AFFIRM. He is a 50% owner of that company as well. Mager has 30 years of creative, marketing and advertising industry experience. He is a member of various advertising and marketing industry professional and trade associations including the American Advertising Federation-Madison Chapter, the Agency Management Institute, Second Wind Agency Network and the Business Marketing Association.
Dennis Kleinheinz is a partner with the Middleton, Wisconsin CPA firm of Meicher CPAs, LLP. He received his Bachelor in Business Administration degree from the School of Business at the University of Wisconsin-Madison. Kleinheinz graduated in 1977 “with distinction”.
The Court held that Sullivan may not rely on Mager to establish that any of the individual illustrations have independent economic value. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Even if Sullivan establishes with other evidence that all of the illustrations have independent economic value, Mager’s opinion would not help to establish the economic value for a particular illustration because Mager did not base his opinion on any independent evaluation of the specific illustrations at issue. So if Sullivan wanted to rely on Mager to place a value on each illustration, Mager would have needed to amend his report to conduct an evaluation of each illustration. Without such an evaluation, the Court held that Mager’s opinion that each use of an illustration has a market value of $3,000 to $6,000 has no foundation and is therefore inadmissible.
Moreover, Flora also filed a motion to exclude expert testimony on statutory damages. The only expert testimony that Sullivan wishes to present on statutory damages is Mager’s opinion that the market value of each illustration is $3,000 to $6,000. The Court explained in its ruling on Sullivan’s motion regarding Danny Mager why that opinion is not admissible. The Court, therefore, granted this motion.
Held
The Court held that Sullivan may not rely on Mager’s opinion that each use of each illustration has a market value of $3,000 to $6,000.
Key Takeaway:
Finding that an illustration is entitled to a separate statutory damages award requires first finding that the illustration has independent economic value. Thus, Mager’s testimony, which assumed that Sullivan’s illustrations were each entitled to a separate statutory damages award (i.e., assumed the illustrations had independent economic value), cannot now (without more) be used to establish that those same illustrations have independent economic value in the first place. Mager’s testimony may be relevant to whether or not any individual illustration constitutes a “work,” but it does not conclusively show that any illustration is not nonetheless part of a “compilation.”
Mager’s testimony assumed that each of the 33 illustrations were entitled to a separate statutory damages award but he did not base his opinion on any independent evaluation of the specific illustrations at issue. Indeed, Mager did not even know how many illustrations there were, stating “I think it was 44 illustrations.”
Case Details:
Case Caption:
Sullivan, Amy V. Flora, Inc.
Docket Number:
3:15cv298
Court:
United States District Court for the Western District of Wisconsin
Plaintiff Logan Demboske (“Demboske”) alleged in this premises liability action that he slipped and fell on or about January 30, 2023, on “a transitory foreign substance.”
Demboske has retained David Collette as a walkway expert. In Collette’s expert report, he contended that Demboske slipped and fell on a liquid contaminant on a vinyl floor, coated with floor finish, and was injured on January 30, 2023. Collette opined that the walkway where Demboske slipped and fell was a dangerous condition caused by Greer’s unreasonable standard of care that created a pedestrian slip hazard.
Autry Greer & Sons, Inc., filed a motion to exclude Collette’s opinions on several grounds. First, Greer sought to have the opinions excluded as untimely. Second, Greer argued Collette’s opinions failed to meet the admissibility standards set forth in Federal Rule of Evidence 702.
WalkwaySafety Expert Witness
David Collette has a degree in Mechanical Engineering and is a qualified Walkway Auditor. He has over 18 years of experience in developing, commercializing, analyzing, and troubleshooting walkway solutions including chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Collette is a Walkway Audit Certificate Holder and has a Certificate in Assessing Walkway Safety from the University of Northern Texas.
The Court found Collette’s opinions should be excluded under Federal Rule of Civil Procedure 37(c)(1) because they are incomplete and, thus, untimely. Collette has not provided his entire case list, his case notes, or his billing statements as per the requirements of Rule 26. Despite having two (2) additional months to produce Collette’s written report, the Court found no basis for Demboske’s failure to produce Collette’s full case list, case notes, or invoices.
Federal Rule of 702
As stated above, Collette sought to offer two opinions in this case, a hazard opinion and a breach of the standard of care opinion.
Hazard Opinion
Collette was questioned about his opinion regarding the condition of the walkway at length during his deposition. Repeatedly, Collette admitted that his opinion boils down to this – “water on floor finish is a hazard.” According to Collette, his hazard opinion is not based on Greer selecting the wrong flooring or that the floor was unsafe for any reason. Indeed, the flooring in Greer’s store is a vinyl composition tile (“VCT”) floor – the same type of floor found in large, big-box stores, such as Walmart and Target. Collette’s testimony is simply that standing water makes the finished floor slippery.
The Court held that Collette’s opinion that the floor was a hazard when slippery is a matter “in the realm of common sense” making his opinion a “superfluous” one which provides “no benefit to the trier of fact.”
Also, Demboske’s counsel expressly represented to the Court that she does not seek to have that opinion admitted at trial or for Collette to testify about that opinion. For sake of completeness, the Court finds that even without counsel’s concession, the hazard opinion would be excluded as unhelpful.
Greer also argued Collette’s hazard opinion is unreliable because Collette did not test the flooring until February 5, 2024, more than one year after Demboske’s fall which is why Collette did not know whether the floor finish was the same as at the time of the accident. Because Collette lacks sufficient information about the condition of the floor at the time of the accident, his hazard opinion is also not reliable.
Opinion Regarding Greer’s Breach of the Standard of Care
The second opinion Collette sought to offer is that the hazard condition referenced in his first opinion – that is, that the finished floor was slippery when wet – was caused by Greer’s breach of the standard of care. According to Collette, Greer breached the standard of care by failing to have defined and published procedures, policies, and training programs on slip and fall hazard identification, sweeps, and cleaning. Greer argued this opinion should be excluded under Rule 702 because Collette relies on facts that are not in the record and also, the opinion goes to an ultimate legal issue, which is not within the province of an expert opinion.
The Court held that while Collette may be able to provide testimony regarding industry standards for maintaining, cleaning, and inspecting floors, he cannot opine that Greer breached the standard of care or that such breach caused the hazard condition or injuries. Such testimony is not admissible because it would usurp the District Court’s pivotal role in explaining the law to the jury.
Held
The Court granted Greer’s motion to strike and to exclude David Collette as an expert witness.
Key Takeaways:
For sake of completeness, the Court found that even without counsel’s concession, Collette’s hazard opinion would be excluded as unhelpful. As stated above, in assessing helpfulness, “expert testimony is only admissible if it concerns matters that are beyond the understanding of the average layperson and offers something more than what lawyers can argue in closing arguments.”
Collette’s breach of the standard of care opinion was excluded because it concerned the ultimate issue for the jury to decide.
Plaintiff, Hawaii Foodservice Alliance alleged that Defendant Meadow Gold Dairies Hawaii, LLC (“MGDH”) used phrasing and imagery suggesting that the Meadow Gold brand products are sourced in Hawai`i, and these activities are misleading and deceptive because the Meadow Gold products contain milk and other products that are imported from the continental United States. Defendants Hollandia Dairy, Inc. (“Hollandia”), Heritage Distributing Company dba Ninth Avenue Foods (“Heritage”), and Saputo Cheese USA Inc. fka Saputo Dairy Foods USA, LLC (“Saputo”) (collectively “Supplier Defendants”) supply products to MGDH.
Plaintiff’s designated expert, Thomas J. Maronick submitted surveys which focused on products and intellectual properties (the “Hawai‘i-Themed Images and Phrases”) for which this Court has already ruled in Defendants’ favor. Defendants filed a motion seeking to exclude Maronick’s conclusions regarding consumer perceptions of those products and Hawai‘i-Themed IP.
Marketing Expert Witness
Thomas Joseph Maronick holds a Juris Doctor degree from the University of Baltimore School of Law, with an emphasis on corporate, business and consumer law. He is a member of the Maryland Bar. He also earned a Doctor of Business Administration degree from the University of Kentucky, as well as a Master of Science in Business Administration from the University of Denver, having majored in marketing.
Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics, where he taught marketing, strategy, and research courses from 1987 to 2017. He previously held faculty positions teaching marketing at the University of Baltimore School of Business and Virginia Commonwealth University. Additionally, Maronick worked as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, Maronick has worked as a marketing consultant and expert witness. He has provided expert services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.
Maronick concluded “the main message communicated to a significant percentage of consumers . . . is that the milk and dairy products . . . come from Hawaii.”
Defendants sought to exclude Maronick’s testimony because it was irrelevant since his surveys focused on Plaintiff’s claims for which summary judgment had been granted in their favor. Plaintiff contended that the surveys did not heavily focus on the Hawai`i-Themed Images and Phrases, which were no longer part of Plaintiff’s claims.
Maronick’s survey required that the respondents review an image of the story of the Dairymen’s Association that appeared on a side panel and asking them if they noticed the at-issue phrase “Hawaii’s Dairy.” The Court did not find Maronick’s testimony relevant to the remaining claims to the extent that the surveys involved the groups reviewing products containing the Hawai`i-Themed Images and Phrases.
To the extent that Defendants contended that Maronick failed to apply generally-accepted principles and methodologies, the Court held that cross-examination can address these concerns.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the expert reports and testimony of Thomas J. Maronick.
Key Takeaway:
Federal Rule of Evidence 702 controls the admissibility of Maronick’s opinions. The rule requires that the evidence must assist the fact finder to understand the evidence or to determine a fact in issue; and the witness must be sufficiently qualified to give the opinion.
Case Details:
Case Caption:
Hawaii Foodservice Alliance, Llc V. Meadow Gold Dairies Hawaii, Llc Et Al
This matter asrises from a slip and fall incident that occurred on May 10, 2020, at the Smith’s grocery store located at 7130 North Durango Drive in Las Vegas, Nevada. Plaintiff, Sierra Golia-Huffman alleged that she slipped and fell on liquid in the floral department while holding her child. Smith’s has produced surveillance footage indicating that (1) Plaintiff walked through the area of incident twice within one minute, the first time being without any incident; (2) Plaintiff was carrying flowers she had just taken from a pot of water on her second time through the area, thereafter slipping and falling; and (3) Plaintiff got up and left the area of incident without letting any employees of Smith’s know that she suffered an incident and without showing any signs of distress.
Smith’s filed motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir, for a variety of reasons.
Forensic Engineering Expert Witness
Frank A. Perez has a doctorate in mechanical engineering and since 1995 has worked as a forensic engineer in mechanical engineering, accident reconstruction, human factors, and safety. He has previously testified in atleast 300 depositions and at least 100 trials as an expert witness.
William S. Muir, MDis Board-Certified with the American Board of Orthopedic Surgeons & fellowship trained Pain Management Expert for 30 years. He graduated from Brigham Young University with honors after he completed a graduate program at Stanford University in physical therapy. He practiced physical therapy in Las Vegas for several years prior to attending medical school at the University of Nevada School of Medicine.
Smith’s argued that Perez’s opinions on the conditions of the Smith’s floral department floor should be excluded as unhelpful to the trier of fact because Perez tested and inspected the floor two years after Golia-Huffman’s incident, and because it is “common knowledge that water causes a floor to become slippery.
The Court held that Golia-Huffman sued Smith’s for negligence, based on the floral department floor being wet. So, Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact. Also, Smith’s did not contend that anything changed in its floral department between Golia-Huffman’s incident and Perez’s examination.
Based on Speculation and Omitting Key Details
Smith’s argued that Perez’s opinions are based on speculation, not objective evidence, and because Perez omits important details from his analysis.
Smith listed a variety of Perez’s opinions that it argued “were not actually based on evidence,” as well as several issues it claimed Perez had omitted.
The Court held that the alleged problems with Perez’s report that Smith’s raises are more properly addressed during cross-examination.
Retail Standard of Care
Smith’s argued that “Perez is not qualified to discuss any type of retail standard of care that should have been exercised by [Smith’s] or its employees or agents” because he does not have any qualifications “regarding retail safety standards or standards regarding inspections of retail establishments, physical sweeping of stores, or experience with floral departments.”
The Court held that Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.
Improper Rebuttal Testimony
Smith’s argued that in his third supplemental report, Perez includes opinions that are not proper rebuttal testimony and must be excluded because Perez should have included them in his initial report. These are Perez’s opinions on “the manner in which the water may have fallen on the ground” and his “opinions as to where the water came from that [Golia-Huffman] slipped on.”
In the parties’ third joint stipulation to extend discovery, the parties stated that they did not seek to extend the expert disclosure deadline, but instead “plan[ned] to work together to allow all experts to prepare proper supplemental disclosures.” The Court held that since Perez is responding to new evidence that was not available to him at the time of his initial disclosure, his supplemental reports are not excluded for offering opinions that should have been disclosed in his initial report.
William Muir
Smith’s moved to exclude medical expert Dr. William Muir’s testimony as untimely and lacking foundation. They argued that Muir’s reports are untimely because in his second supplemental report, he reviewed documents that were over two years old, but he did not explain why he included these documents in the second supplemental report instead of in his initial report. Smith’s acknowledged that the parties said they would work together to allow their experts to properly supplement their reports, but Smith’s did not consider a two-year delay a proper supplement. Smith’s also argued that several of Muir’s opinions are flawed because they lack foundation.
The Court held that the disclosures were timely per the parties’ agreed upon extension of the deadlines and refused to exclude Muir’s testimony for lack of foundation, as this goes to impeachment and may be addressed by Smith’s on cross-examination.
Held
The Court denied Smith’s motions to exclude the testimony and opinions of Golia-Huffman’s retained forensic engineering and safety expert, Dr. Frank Perez and spine surgeon, William Muir.
Key Takeaways:
Perez’s opinions regarding the slipperiness of the floral department floor when wet are pertinent to the negligence inquiry and helpful to the trier of fact.
Perez’s extensive experience in premises liability cases, as well as his review of the evidence in this case, qualify him to testify as to his opinions on the retail standard of care Smith’s should have used.
Case Details:
Case Caption:
Golia-Huffman V. Smith’s Food & Drug Centers, Inc.
Docket Number:
2:21cv1260
Court:
United States District Court for the District of Nevada
