Around 6:00 AM on April 16, 2022, a fire largely destroyed a two-story, wood frame house at 408 Oak St. in Saginaw, Michigan (the “Oak Street House”). Plaintiff Raphael Arnett owned the house, and Defendant Allstate Vehicle and Property Insurance Co. insured it.
Two days after the fire, Plaintiff filed a claim with Defendant, seeking to recover his loss from the fire. On October 14, 2022, Defendant denied Plaintiff’s insurance claim after it concluded that the fire was not an accident but was intentionally set by Plaintiff. Defendant anticipated calling Paul Mabarak—a certified residential appraiser—to offer his expert opinion that the fair market value of the Oak Street House at the time of the fire had been $52,000.
Plaintiff argued Defendant should be precluded from using this evidence at trial because (1) the fair market value is irrelevant under Rules 401 and 402, (2) the fair market value would mislead the jury under Rule 403, and (3) Mabarak’s opinion is inadmissible expert testimony under Rule 702.
Real Estate Appraisal Expert Witness
John Paul Mabara is a certified residential appraiser who works for Mayfield Appraisal Services.
The Court held that the evidence of the Oak Street House’s fair market value is relevant under Rule 401 because it increases the probability Defendant caused the fire, which would exclude his alleged loss from coverage under the express terms of his Policy.
Plaintiff argued that evidence of the Oak Street House’s fair market value would “mislead” the jury “into believing the fair market value of the property is a component of [Plaintiff’s] damages.” But, the upcoming trial is limited solely to the underlying coverage issue, as both Parties have agreed to post-trial appraisal, as mandated by Michigan law. Therefore, Mabarak’s fair market value testimony raises no Rule 403 concerns, either. At bottom, Plaintiff has not shown that the fair market value of his House is “clearly inadmissible” on Rule 403 grounds.
Plaintiff argued that Mabarak’s opinion would “not aid the trier of fact in understanding or determining any issue in the case.” Contrary to Plaintiff’s argument, even the most educated lay juror could not estimate the fair market value of Plaintiff’s house. But Mabarak—based on his specialized knowledge as a certified real estate appraiser—can, and has. As explained, the fair market value is relevant because it is nearly $200,000 less than Plaintiff’s Policy limit, which tends to show that Plaintiff may have had a financial motive to set the fire.
Held
The Court admitted the testimony of Paul Mabarak despite Plaintiff’s objections.
Key Takeaway:
In conclusion, Mabarak’s anticipated expert opinion is precisely the type that Rule 702 allows considering motive is one of several pieces of circumstantial evidence Defendant may permissibly point to in attempt to prove Plaintiff’s alleged loss is excluded from coverage under his Policy.
Case Details:
Case Caption:
Arnett V. Allstate Vehicle And Property Insurance Company
Between 1983 and 1986, MSI, a music company solely owned by Nealy, engaged a number of recording artists and created a catalog of popular sound recordings and musical compositions. MSI was administratively dissolved in 1986, and Nealy was arrested and later sentenced to a twenty (20) year prison term in late 1988. During Nealy’s first incarceration from 1988 to 2008, unbeknownst to and without authorization from Nealy, former MSI Vice President, producer, and recording artist, Tony Butler (“Butler”) began unlawfully transferring rights to use and exploit the Subject Musical Works.
Defendant Artist Publishing Group LLC’s (“APG”) entered into a publishing agreement with the author of the compositions at issue in this case, Tony butler, through his wholly owned company, 321 Music, LLC, pursuant to which APG agreed, inter alia, to license certain musical compositions authored by Butler to third parties, for which APG was paid a percentage of the royalties earned from those efforts (the “APG/321 Music Agreement”).
As part of a separate administration agreement between APG and Defendant Warner Chappell Music, Inc.’s (“WC”), WC assumed certain of APG’s duties in the APG/321 Music Agreement, including licensing the musical compositions to third parties in exchange for licensing fees and royalties. It was alleged that no monies earned from the licensing of the compositions at issue in this case were ever received by APG, other than the royalties it was entitled to receive as publisher pursuant to its publishing agreement with 321 Music, LLC. Those monies have been accounted to Plaintiffs in discovery in this case, totaling $125,738.81.
Both WC and APG filed Daubert motions to exclude the testimony of John Menneci.
Accounting Expert Witness
John Menneci joined Gelfand, Rennert & Feldman (GRF) in 2001 and works out of its White Plains, New York office. He currently co-heads the New York arm of GRF’s New York Royalty Examination Group.
John specializes in conducting royalty examinations on behalf of prominent recording artists, songwriters and merchandise licensors and has over 25 years of experience in this field. He has travelled across the globe to conduct examinations on behalf of the firm’s clients and has audited an array of different licensees in both the physical and digital space with great success. John also specializes in conducting due diligence and valuations in connection with copyright acquisitions and estate tax matters.
The Menneci Report formed the basis for two opinions: (1) Defendants received $410,920.10 in gross publishing income from copyright infringements and (2) Defendants, or parties connected to Defendants, received $54,960,000 in master recording income from copyright infringement of Plaintiffs’ works.
Menneci’s conclusion that Defendants, or parties connected to Defendants, received $54,960,000 in master recording income from copyright infringement of Plaintiffs’ works must be excluded
Starting first with the eye-popping damages figure of almost $55 million, the Court held that the Report did not specify how Menneci reached this conclusion. Indeed, when asked several different times at the Hearing to provide either the methodology or data utilized in reaching this astronomical figure, Plaintiffs’ counsel was unable to provide a response. Even when the Court broke the inquiry down further by asking Plaintiffs’ counsel to explain how Menneci calculated alleged foreign income through some sort of extrapolation, Plaintiffs’ counsel was simply unable to proffer or explain the methodology employed by his damages expert.
Also, Menneci relied on whole album sales, despite the fact that only a handful of isolated tracks remain at issue in this case. In conclusion, Menneci’s calculation includes revenue generated from individual tracks not at issue here, as well as album versions that do not include a single track at issue in this case.
Menneci’s conclusion that Defendants received $410,920.10 in gross publishing income from copyright infringements must also be excluded
The Court noted that Menneci improperly included funds received by other entities in his calculations—apparently on a theory of contributory infringement by non-party Interscope Records.
In addition to being premised on an incorrect theory of recovery, Menneci’s conclusion that Defendants received $410,920.10 in gross publishing income from copyright infringements is not based on sufficient facts and data or reliable principles or methods.
Further, since these monies are not accounted for in the financial documentation produced by Warner Chappell, Menneci conceded that he “estimated” the songwriter’s share of performance income based on his “assumption” that “music publishing income is generally split 50/50 between the [song]writer and publisher.” Similarly, Menneci improperly assumed that Warner Chappell administered 100% of the musical composition for “Weekends”—when in reality, Warner only received 33% of the publishing monies. The Court held that such assumptions fail to meet the standard imposed by Rule 702 for expert testimony.
However, the Court will bifurcate this trial as to liability and damages. During the initial liability phase, Plaintiffs may attempt to establish that Defendants should be held jointly and severally liable for the profits of other entities given the existence of a “practical partner” relationship. If the jury returns an initial verdict finding that Plaintiffs have established either a practical partnership or predicate act, the Court will hold a brief status conference with the parties as to how Plaintiffs intend to prove their joint and several damages and foreign profits damages, given that the Menneci Report is excluded in its entirety under Rule 702.
Held
The Court granted Warner’s Daubert motion to exclude the testimony of John Menneci but denied as moot APG’s Daubert motion.
Key Takeaway:
The Court decided that even a cursory review of the Menneci Report—which spans a mere five pages—indicated significant gaps in methodology and numerous missing data points. Menneci’s deposition did little to clarify his methods; on the contrary, the lack of reliable methodology was further exposed and made even more readily apparent.
Plaintiffs bring this suit under the Employee Retirement Income Security Act (ERISA).
ERISA’s central object is to “protect employees’ justified expectations of receiving the benefits their employers promise them.” This case centers on the Coastal Transition Benefit, a benefit formula that originated in the Coastal Plan and that, through a series of corporate transactions, now appears in the Plan. Plaintiffs alleged the Coastal Transition Benefit formula improperly accrued benefits over participants’ entire careers rather than over their first 30 years of service in violation of various provisions of ERISA.
As the Court knows, two of Plaintiffs’ claims—Claims I and VI—center on Plaintiffs’ contentions that the Coastal Transition Benefit formula is impermissibly backloaded and that the Plan’s actuarial factors used to reduce benefits for commencement before normal retirement date are unreasonable.
Defendants sought to exclude the testimony of Plaintiffs’ expert Michael L. Libman as unreliable under Federal Rule of Evidence 702. Plaintiffs offered Libman as an expert on benefits under ERISA’s accrual rules and “actuarial equivalent” reductions.
Pensions Expert Witness
Michael Libman has been a pension actuary for over forty years. In that time, he has testified as an expert on pension issues in many cases.
Libman’s expert reports supported Claims I and VI and his testimony is based upon a close read of statutory rules, Treasury Regulations, applicable legal precedent and authority, the Plan document, and relevant documentation provided by Defendants.
Based on his read of the Plan provisions, Libman’s report set forth actuarial calculations to assess whether the Plan complies with ERISA’s anti-backloading and actuarial equivalence provisions.
The Court held that while some of Libman’s interpretations of the Plan are perhaps open to question, there is no issue with the reliability of his testimony in general.
Held
The Court denied the Defendants’ motion to exclude the testimony of Michael Libman.
Key Takeaway:
After reviewing the parties’ filings and Libman’s testimony, the Court finds that Plaintiffs have shown, by a preponderance of the evidence, that Libman’s testimony is reliable. In so finding, the Court notes that the Daubertinquiry does not require district courts to assess whether an expert’s testimony is correct; courts need only determine whether the testimony is reliable.
Case Details:
Case Caption:
Pedersen Et Al V. Kinder Morgan, Inc. Et Al
Docket Number:
4:21cv3590
Court:
United States District Court for the Southern District of Texas, Houston Division
Plaintiff Sandra Corbin filed a civil rights action against the Defendants Bill Prummell, Jr., as sheriff of the Charlotte County, David Gensimore, and Aaron Williams as a result of Corbin sustaining a fractured leg, and a litany of related and subsequent damages due to excessive force employed by Williams.
On November 29, 2019, at around 9:45 PM, Plaintiffs, John Corbin and Sandra Corbin were stopped by Charlote County Deputies Michael Davidson and Aaron Williams. Plaintiffs were stopped upon leaving a restaurant/bar where both Mr. Corbin and Mrs. Corbin consumed a couple of beers.
During the traffic stop of Plaintiffs, Mr. Corbin was removed from the vehicle by Deputy Davidson to perform a field sobriety test (FST), while Mrs. Corbin remained in the vehicle. Mrs. Corbin attempted to go around Deputy Williams to observe what was happening with Mr. Corbin; and at that moment Deputy Williams deployed a “leg sweep” or “leg whip” with such force it took Mrs. Corbin to the ground; and fractured her leg.
Corbin filed a motion to exclude the testimony of Defendants’ proposed expert, Teri L. Stockham, a forensic toxicologist who opined that Sandra Corbin was intoxicated such that her normal faculties were impaired at the time of this incident. This opinion is based on scientific evidence of the hospital serum ethanol result of 206 mg/dL almost two hours after the incident.
Toxicology Expert Witness
Teri Stockham holds three degrees: A Bachelor of Science in chemistry, a Master of Science in forensic science and forensic toxicology, and a Doctor of Philosophy in pharmacology and toxicology. She has thirty-five years of toxicology experience, including a stint as Chief Toxicologist at Broward County Medical Examiner’s office.
The Corbins argued that Stockham was not qualified to testify on Sandra Corbin’s state of mind, behavior, etc., that her opinion was not based on reliable scientific or technical testing, and that the testimony will not assist the trier of fact.
Plaintiffs argued that Stockham, as a toxicologist, is not qualified to opine on how Sandra Corbin comported herself during the night in question since Stockham “never met with Sandra Corbin, nor discussed the events of November 29, 2019.”
The Court held that Stockham is not testifying that she personally knows Corbin behaved a certain way during the night in question. She is offering testimony regarding Corbin’s blood alcohol content (BAC) and the “signs and symptoms” she would “expect” with that BAC.
Hence, the Court held that Stockham is qualified as an expert to interpret BAC “not because of her familiarity with Sandra Corbin, but because of her familiarity with the analysis she was tasked with performing.”
Reliability
Plaintiffs argued that Stockham’s testimony was not reliable for many reasons, including because it relied not on statistical data but on Sandra Corbin’s blood alcohol level taken two hours after the event and did not consider pertinent deposition testimony or Sandra Corbin’s alcohol tolerance level.
Stockham’s opinion is based “on scientific evidence of the hospital serum ethanol result of 206 mg/dL” which she converted to BAC. The Court held her opinion is reliable because it is generally accepted that alcohol content levels give reliable estimates of a person’s intoxication, and “[a]nalysis of blood samples gives the most accurate results.”
Assistance to the trier of fact
The third requirement asks “whether that reasoning or methodology properly can be applied to the facts in issue.”
Plaintiffs argued that “an opinion or determination of intoxication” is unhelpful here as Florida’s driving under the influence statute is irrelevant and “there is no requisite or comparable BAC level under” Florida’s disorderly intoxication statute.
The Court held that Stockham’s opinions regarding Corbin’s BAC and the effects expected of a person with that level of BAC “are helpful for the factfinder because, although the general effects of alcohol consumption are commonly known, the methodology for determining an individual’s BAC and an opinion on the associated physiological manifestations of a specific BAC level are beyond the understanding and experience of the average lay citizen and goes to the ultimate finding” of whether Corbin was intoxicated.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Teri L. Stockham.
Key Takeaways:
None of Plaintiffs’ arguments to exclude Stockham’s testimony are persuasive. Stockham is qualified, her outlined opinion above is reliable, helpful, relevant, and its probative value does not outweigh the danger of unfair prejudice, confusion of the issues, or misleading of the jury.
Even if accepted as true that, for example, certain deposition testimony was omitted, misstated, or contradicted and that pertinent information such as Corbin’s age, fatigue, or food consumption was overlooked, any such shortcomings would go to the weight of the evidence, not to admissibility.
Plaintiffs’ argument misconstrued Stockham’s offered testimony and applied a higher bar for the qualification of an expert than precedent required.
In November 2020, Defendant and another deputy were attempting to serve felony arrest warrants on Jacob Settle and Sophronia Whitehead at their residence. When the deputies arrived, Settle was in the driver’s seat of a truck. Settle did not comply with the deputies’ commands to exit the truck, and he started the truck and took it out of park. Then, according to Defendant, the truck backed up before starting to move forward towards him. Defendant fired two shots into the truck, killing Settle.
In November 2022, the personal representative of Settle’s estate (Plaintiff) filed this suit against Defendant, the other deputy at the scene, and the Escambia County Sheriff.
The propriety of Defendant’s use of deadly force against Settle will likely depend on whether he reasonably believed that he was at risk of being struck by the truck when he fired the shots into the truck. That, in turn, may depend on whether the truck was moving and where Defendant was in relation to the truck’s actual or potential path of travel when he fired.
To support her position that Defendant was not at risk of being struck by the truck when he fired the shots that killed Settle, Plaintiff presented the expert testimony of a “forensic services technician,” Kelly Timms. Defendant does not challenge Timms’ qualifications, but he contends that several of her opinions should be excluded because they are beyond her expertise, irrelevant, or based on conjecture or speculation.
Forensic Expert Witness
Kelly Timms worked as a crime scene technician in Maryland for 10 years. Timms attended the University of Findlay, where she completed her Bachelor of Science degree in Biology. Timms continued to Stevenson University and completed a Master of Science degree in Forensic Science. During the last year of the Master Program, Timms began a yearlong internship and was hired as a full-time crime scene technician in the fall of 2013. Timms obtained training for shooting reconstruction, bloodstain pattern analysis, and crash investigation. She has investigated cases involving homicides, shooting incidents, pedestrian crashes, and major drug investigations working with local, state, and federal agencies. Timms has prepared expert reports on bloodstain pattern analysis and shooting reconstruction. Kelly is a Certified Senior Crime Scene Analyst through the IAI.
The first challenged opinion relates to the trajectory of one of the bullets that struck Settle. Defendant argued that this opinion is beyond the scope of Timms’ expertise because it is based on the autopsy report, and she is not a medical professional. However, the Court failed to see how medical expertise was necessary to evaluate the trajectory of a projectile or why Timms cannot rely on the information presented in the autopsy report to formulate an opinion about Defendant’s location when the shots were fired based on the trajectories of the bullets.
The third set of challenged opinions relate to the positioning of Settle’s left hand and body when he was struck by what Timms described as the second shot. Defendant contended that these opinions are beyond the scope of Timms’ expertise because she is not a medical professional and that they are speculative because Timms admitted in her deposition that she could not say with any certainty where Settle was positioned in the truck or which injuries related to which shot. However, the Court held that “absolute certainty is not required” and “the weaknesses in the underpinnings of the expert’s opinion go to its weight rather than its admissibility.”
Timms’ opinion lacks relevance
The second set of challenged opinions relate to Defendant’s location when he shot into the truck and are apparently intended to refute any claim that Defendant was directly in front of the truck when he fired. Defendant contended that this opinion is irrelevant (and, thus, unhelpful) because he never claimed that he was directly in front of the truck when he fired. However, Defendant’s location at the time he fired is a hotly contested fact, and as Plaintiff argues, Defendant’s testimony about this issue in his deposition is susceptible to multiple interpretations. Thus, Timms’ opinion that Defendant was not directly in front of the truck when he fired is relevant and admissible.
Timms’ opinions are based on speculation and conjecture
The fourth challenged opinion relates to Defendant’s location when he shot into the truck and is based on the location of a spent cartridge found at the scene. Defendant contended that this opinion is based on speculation and conjecture because the location of the cartridge is not indicative of Defendant’s location since the yard was full of debris that the cartridge could have bounced off. However, Defendant has not challenged Timms’ qualifications as a crime scene investigator, and as Plaintiff argued, she sufficiently explained how she reached that opinion based on her experience.
The fifth challenged opinion relates to an “observation” made by Timms in her report about the location of an injury on Defendant’s leg in relation to the damage to his pants. However, when asked whether she was offering an opinion on this matter or if it was just an observation, Timms stated in her deposition that this was “just an observation.” Accordingly, there is no opinion related to that observation for the Court to exclude.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Kelly Timms.
Key Takeaway:
Defendant did not challenge Timms’ qualifications, but he contended that several of her opinions should be excluded because they are beyond her expertise, irrelevant, or based on conjecture or speculation.
The Court held that the issues raised by Defendant go to the weight of Timms’ opinions, not their admissibility.
Manes is a pharmacy that has served the Van Buren, Arkansas community for nearly 40 years. AmerisourceBergen is a wholesale distributor of pharmaceutical products, including controlled substances. This dispute arises from AmerisourceBergen’s decision to restrict its sale of controlled substances to Manes. Manes sued AmerisourceBergen for breach of contract, tortious interference with Manes’ business expectancies, defamation, and compelled self-defamation.
Both parties sought to exclude some of their opponent’s experts. Manes sought to exclude the testimony of James Place and Deborah Komoroski. AmerisourceBergen sought to exclude the testimony of Jack Teitelman.
Drug Enforcement Expert Witnesses
James Place has 27 years of experience working for the United States Drug Enforcement Administration and nearly ten years of doing compliance work in the private sector.
Deborah Komorski works for Cencora, Inc., which is AmerisourceBergen’s parent company. She has eight years’ experience as a pharmacist, twenty-five years’ experience as a Drug Control Agent for the State of Connecticut, and thirteen years’ experience doing compliance and diversion control work for private companies.
Jack Teitelmean worked for the DEA as a special agent for 13 years, and he has worked in other law enforcement capacities for an additional 13 years. For the last seven years, he has worked for a private company which he describes as “a leading Veterinary Industry provider of DEA-compliance and controlled-substance anti-diversion solutions.”
Manes argued that the Court should exclude Place’s opinions because he was not a pharmacist and his expert report contained opinions about “the practice of pharmacy and how a pharmacist fulfills his/her corresponding responsibility.” Additionally, Manes argued that Place should be excluded under Arkansas law because he could not judge whether a medical professional had deviated from the accepted standard of care.
The Court held that the Arkansas statute titled “Plaintiff’s burden of proof” Manes relied on did not apply to this case because Manes is the Plaintiff here and this is not an action for negligence. Also, the statute’s definition of medical care provider does not include a drug distributor like AmerisourceBergen. Moreover, Manes has alleged injuries arising out of AmerisourceBergen’s decision to stop selling it controlled substances instead of a medical injury.
Place’s opinions do not discuss the exercise of pharmacological judgment
The Court found that Place’s testimony discussed the steps a distributor or government agency might take when investigating possible diversion. Place’s opinions did not question the drugs Manes’ pharmacists dispensed; his opinions questioned the steps the pharmacists took to investigate questionable prescriptions based on red flags (such as commonly diverted substances) before filling the prescriptions. This opinion fell within his decades of experience with investigations and compliance in the public and private sectors.
Moreover, Manes argued the following opinion is impermissible: “AmerisourceBergen was justified in questioning Plaintiff’s ability to satisfy its corresponding responsibility for the proper dispensing of controlled substances.” The Court held that Place’s opinion is made from the perspective of an outside investigator, not that of a pharmacist challenging Manes’ pharmacist’s pharmacological judgment.
Some of Manes’ objections are simply disputes over the factual basis for Place’s opinions
Manes took issue with paragraph 39 of Place’s report. That paragraph read, in part, “[p]roper controls can be accomplished by following common sense, sound professional practice, and proper dispensing procedures.”
This paragraph is a direct quote from the DEA’s Pharmacist’s Manual. Manes argued that this is an example of where Place “opines as to what pharmacies and pharmacists should or should not do.” The Court held that the paragraph is an example of what the DEA says what a pharmacist should or should not do. In other words, Manes’ argument missed the mark because it challenged the factual basis for Place’s opinions.
Deborah Komoroski
Manes next asked the Court to exclude Deborah Komorski because she is testifying on matters outside of her experience. Manes made the same argument as above about Arkansas’s standard of care for pharmacists, which the Court rejected for the same reasons stated above: the statute did not apply to this case.
Plaintiff objected to Komoroski’s opinions which discussed AmerisourceBergen’s processes when investigating whether a pharmacist carries out their corresponding responsibility. The Court held that these opinions all fall within her decades-long experience as both a pharmacist and diversion control agent.
Manes argued that not only did Komorski fail to consider all the facts but Komoroski cannot testify as to the applicable standard of care because she never practiced pharmacy in Arkansas. The Court did not find any of these arguments convincing because Komoroski’s opinions did not discuss the standard of care.
Jack Teitelman
AmerisourceBergen argued that because Teitelman failed to review a multitude of key sources of information, his testimony should be excluded because it is “so fundamentally unsupported that it can offer no assistance to the jury.” The Court held that while Teitelman’s report may have more thoroughly listed the documents he relied on, that he might base his opinion on different facts than Place does not render his opinion inadmissible.
AmerisourceBergen argued Teitelman is unaware of the steps in its investigation. However, the Court found that reviewing Teitelman’s report in its entirety reveals that he is aware of various steps AmerisourceBergen took as part of its investigation.
Teitelman’s report attempts to explain how Ruan V. United Statess, 497 U.S. 450 (2022) applies to the way that AmerisourceBergen and the DEA should evaluate a pharmacist’s corresponding responsibility. The Court held that Teitelman’s testimony about Ruan impermissibly ventured into testimony about legal matters because he applied the Ruan case out of its criminal context.
The Court did not agree with AmerisourceBergen that Teitelman’s opinions about AmerisourceBergen’s policies were unreliable because they were purely speculative. AmerisourceBergen primarily argued that because Mr. Teitelman did not have personal knowledge of how AmerisourceBergen’s policies had changed over time, his opinions on the topic should be excluded. However, Teitelman based his opinion in part on his previous work with pharmacies that had a relationship with AmerisourceBergen.
Held
The Court denied Manes’ motion to exclude the testimony of James Place and Deborah Komoroski but granted in part and denied in part AmerisourceBergen ‘s motion to exclude the testimony of Jack Teitelman.
Key Takeaways:
Place’s opinions all fall within his area of expertise and Arkansas’s statute about the standard of care does not apply in this case. Manes is free to challenge the factual basis of Place’s opinions on cross-examination, but Manes has not identified any reason Place’s testimony is inadmissible.
As per Rule 703, Teitelman can base his opinion on facts or data he has been made aware of or personally observed.
Case Details:
Case Caption:
Manes’ Pharmacy, Inc. V. Amerisourcebergen Drug Corporation
This action stems from a trip and fall incident that occurred on July 19, 2019, while Plaintiff, Carolyn Simmons was walking and tripped along a dangerous and defective sidewalk located in front of Rite Aid in Ridgeland, South Carolina. The Defendant, Rite Aid of South Carolina, Inc., Walgreens, and Sitaras and Tzioros Properties, Inc., (hereafter referred to as “Defendant”), is a national drug store chain located in Ridgeland, State of South Carolina.
Defendant Sitaras and Tzioros Properties, Inc.’s (hereafter “Defendant”) filed a motion to exclude the testimony of Plaintiff’s expert Gerald Neal.
Construction Expert Witness
Gerald Neal is licensed general contractor with eighteen years of experience in project management and facilities engineering. Moreover, he has extensive experience constructing and renovating homes, offices, apartments, restaurants, and churches.
While the case was still pending in state court, Plaintiff identified Neal as an expert witness and indicated, in response to Defendants’ interrogatories, that Neal was “compiling” documents and would forward these upon receipt.
After the case was removed to United States District Court, the Plaintiff’s expert report was due by March 26, 2024. According to Defendant’s motion, no expert report meeting Rule 26(a)(2)(B) requirements had been produced by Plaintiff under the Court’s scheduling order.
Also, Neal was deposed while the case was still pending in state court. Besides, he stated in his deposition that he lacked certain important information that was necessary to finalize his opinions. Specifically, Neal testified that he needed the date of the building’s certificate of occupancy because that would determine the specific building code that was applicable to this incident.
Subsequently, Defendant filed its motion to exclude more than two months after the deadline in the scheduling order for the production of expert reports. Defendant’s assertions that it has never been provided an expert report from Neal and that his deposition testimony was “incomplete and inconclusive” have gone unchallenged by Plaintiff since no response to the motion to exclude was filed.
Ultimately, the Court found that no good cause or substantial justification has been shown for the failure to timely produce an expert report and the failure to comply has not been shown to be harmless.
Held
To conclude, the Court granted Defendant’s motion to exclude the testimony of Gerald Neal as an expert witness at trial.
Key Takeaway:
To conclude, the Court found that no good cause or substantial justification had been shown for the failure to timely produce an expert report. Furthermore, the failure to comply has not been shown to be harmless.
In short, when considering a motion to exclude an expert witness for failure to produce a required expert report, the Court must address two applicable rules. First, Fed. R. Civ. P. 16(b)(4) provides that a scheduling order may be modified only “for good cause and with the judge’s consent.” Second, even where a timely expert report has not been produced, an expert will not be excluded so long as the failure to timely produce the report is “substantially justified or is harmless,” as per Fed. R. Civ. P. 37(c)(1).
This is a vote dilution case where Plaintiffs challenge the configuration of Mississippi’s State Supreme Court districts, which, despite population changes and the passage of four Censuses, have gone unchanged since 1987. The result of this districting scheme is an unequal playing field for Black voters, such that Mississippi’s nine-member Supreme Court has never had more than a single Black Justice at a time, despite the State’s voting-age population being approximately 36% Black.
The Plaintiffs filed a motion to partially exclude, wherein they requested that the Court exclude certain portions of the proposed testimony of David Swanson, one of the Defendants’ experts. More particularly, the Plaintiffs requested that Swanson be precluded from testifying regarding electoral map drawing and ecological inference analysis.
Demography Expert Witness
David A. Swanson is: (1) Edward A. Dickson Emeritus Professor of Sociology, University of California Riverside; (2) Research Associate, Population Research Center, Portland State University; (3) Faculty Affiliate, Center for Studies in Demography and Ecology, University of Washington; and (4) Research Fellow, Social Science Research Center, Mississippi State University. Swanson served as a member of the U. S. Census Bureau’s Scientific Advisory Committee for six years (2004-10) and chaired the committee for two (2009-2010).
His B.Sc. is from Western Washington State College (now Western Washington University), and his Ph.D. and M.A. are from the University of Hawai’i. He also holds a Graduate Diploma in Social Sciences from the University of Stockholm.
The Plaintiffs have retained William Cooper as an expert. Cooper has prepared a report that contains four proposed new redistricting plans (two illustrative plans and two “least change” plans). According to Cooper, the proposed plans would create a majority-BVAP District. Swanson, who the Defendants retained as an expert in demography, prepared two reports—the first of which expends considerable effort and time addressing the illustrative plans contained in Cooper’s report.
The Plaintiffs argued that Swanson has no experience drawing electoral maps, and no specialized knowledge with respect to electoral maps. The Court agreed with the Defendants’ position that Swanson “has never claimed to be an expert in drawing maps. He is, however, an expert in understanding maps. His demographic analysis of the various maps potentially at issue in this case is accurate.”
The Court held that Swanson’s testimony should be limited to his opinions as to the maps that Cooper has drawn and his opinions pertaining to them.
In reaching this conclusion, the Court is cognizant that the Plaintiffs have pointed to certain qualifications that Swanson lacks. Those issues appear to be ripe questions for cross-examination.
Swanson attacked Burch’s analysis regarding the State of Mississippi as a whole
The Plaintiffs’ second point of contention pertains to ecological inference analysis. The Plaintiffs have designated Dr. Traci Burch as an expert. Although her report and rebuttal report address multiple issues related to political behavior, barriers to voting, and political participation, of particular importance here is her utilization of a method referred to as King’s Ecological Inference analysis (“King’s EI”) in estimating voter turnout by race.
Swanson’s surrebuttal report addressed Burch’s analysis and pointed to what he believed were flaws in that analysis. For instance, he stated that “[i]n constructing her Ecological Inference (EI) model of existing District 1, Burch erroneously included Adams County (a county in existing District 2) and erroneously excluded Bolivar County (a county in existing District 1).” Swanson’s surrebuttal report also stated that Burch’s findings in regard to King’s EI did not change his “opinion that Black Mississippians are able to participate effectively in the political process. As I showed in my initial report, Blacks voted at higher rates than Whites in District 1.” Swanson also attacked Burch’s analysis regarding the State of Mississippi as a whole because she “express[ed] an opinion about White voters relative to non-white voters not an opinion about White voters relative to Black voters.”
The Plaintiffs contended that Swanson had no experience using the King’s EI Technique relied on by Burch and added that he is admittedly not an expert in voting behavior to which Defendants replied that Swanson has not attacked the mechanics of Burch’s King’s EI analysis but, instead, his testimony will be that Burch’s “answers are not helpful because she is asking the wrong questions.”
The Court noted that the distinction between the proposed testimony and the underlying mechanics of King’s EI is critical but refrained from altogether precluding Swanson from testifying on this topic.
Held
The Court denied the Plaintiffs’ motion to partially exclude the proposed testimony of Defendants’ expert, David Swanson.
Key Takeaway:
Although Swanson lacked the required expertise in electoral mapdrawing and voting behavior, the Court did not exclude his demographic analysis of the various maps potentially at issue in this case.
The Court did not fully preclude Swanson from identifying what he believed were flaws in Burch’s analysis.
Case Details:
Case Caption:
White Et Al V. State Board Of Election Commissioners Et Al
Docket Number:
4:22cv62
Court:
United States District Court, Mississippi Northern
Plaintiff Kevin Strickland filed this lawsuit against the Kansas City, Missouri, Board of Police Commissioners and five Kansas City police officers for alleged unconstitutional conduct that resulted in his wrongful conviction.
On June 21, 2024, Plaintiff issued its police practices expert, Russell Fischer’s supplemental report. The supplemental report is 2.5 pages long, and the revisions are made based on three third-party deposition transcripts that Fischer states were not available to him at the time of his initial report dated April 5, 2024. The relevant deposition transcripts are those of Pete Edlund (deposed on April 3); Alfred Gordon (deposed on May 13); and Bridgett Gordon (deposed on May 13). Pete Edlund was a KCPD homicide detective who investigated the 1978 triple homicide. Alfred and Bridgett Gordon were both interviewed by the KCPD during the triple homicide investigation.
Defendants moved to strike the supplemental report, arguing it contained new opinions untimely disclosed in violation of Rule 26(e).
Law Enforcement Expert Witness
Russell Fischer retired as the Chief of the Criminal Investigations Division specifically in charge of all investigative matters relating to homicide, robbery, sex crimes, domestic crimes and related functions task force operations.
The Court held that the parties’ pretrial disclosures under Rule 26(a)(3) were not yet due, so the issue was whether the Supplemental Report contained “entirely new opinions” as Defendants alleged or rather newly discovered information that merely “completed” the initial report. To begin with, Defendants failed to provide specific examples of how the Supplemental Report provided “entirely new opinions,” and the Court found none. Both reports opined on whether officers deviated from minimally acceptable police practices during the homicide investigation. The Supplemental Report merely considered Alfred and Bridgett Gordon and Pete Edlund’s version of events in opining on the same.
Defendants also took issue with the fact the Supplemental Report was disclosed after the discovery deadline passed and after Defendants’ deadline to depose Fischer. While the timing was not ideal, Plaintiff maintained two of the three deposition transcripts were not available until the day discovery closed, making it impossible to provide the Supplemental Report beforehand. Plaintiff also added that Defendants have never attempted to take Fischer’s deposition to date.
The Court denied the Defendants’ motion since finding supplementation will best serve the purposes of Rule 26.
To ensure Defendants were not disadvantaged in any way, the Court permitted Defendants to depose Fischer out of time.
Held
The Court denied the Defendants’ motion to strike as untimely and improper the supplemental report of Plaintiff’s expert witness, Russell Fischer.
Key Takeaway:
Rule 26(e)(1) provides that “a party who has made a disclosure under Rule 26(a) must supplement or correct its disclosure in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”
However, Rule 26(e) does not provide a vehicle for parties to merely “revise or change its disclosures,” “to bolster an expert’s opinion,” or “to present entirely new theories.”
Case Details:
Case Caption:
Strickland V. Kansas City, Missouri Board Of Police Commissioners Et Al
Plaintiff, a prominent telecommunications service provider, has established the well-known marks “LIGHTSPEED” and “LIGHTSPEED VOICE” in connection with its telecommunications services. When Defendant opened a business called LIGHTSPEED CONSTRUCTION GROUP, Plaintiff alleged that the mark was nearly identical to its marks in connection with the offering of confusingly similar telecommunications services.
Plaintiff added that such use creates a likelihood of confusion with Plaintiff’s customers.
In this trademark infringement case, Plaintiff sought, among other things, disgorgement of Defendant’s profits during the period of alleged infringement.
Plaintiff obtained an expert report from accountant Kevin Kwan. Defendant claimed that the report simply added two numbers together and filed a motion to exclude his testimony.
Accounting Expert Witness
Kevin Kwan has over 23 years of experience providing consulting and expert witness services in various business disputes, complex commercial litigation matters, and financial investigations. Kevin’s experience includes development of complex financial models, as well as compilation, organization, and analysis of large volumes of historical data through the development of databases.
Defendant did not contest Kwan’s qualifications or reliability, but argued that his testimony would not be helpful to the factfinder.
The Court found that Kwan’s relevant testimony is limited to calculating Defendant’s sales. He also opined that “disgorgement of Defendant’s profits appear[s] to be a reasonable measure of monetary relief in this matter.” But the appropriate form of relief in this case is a legal conclusion, and expert witnesses “may not offer legal conclusions” outside of exceptional circumstances.
Since the Court has already determined that actual damages for injuries like lost profits are inappropriate, Kwan’s support for a disgorgement remedy was—at best—an unnecessary restatement. Besides, Kwan offered that conclusion because he “did not see any particular lost profits that could be claimed” by Plaintiff.
In trademark cases, profits subject to disgorgement are calculated as the infringing sales less the incremental costs associated with those sales. Yet Kwan “did not perform an analysis of Defendant’s incremental costs associated with generating the infringing sales.” He also admitted that he has no opinion on Defendant’s costs. Kwan’s testimony is, therefore, limited to the amount of Defendant’s sales during the alleged infringement.
Kwan’s estimate of Defendant’s infringing sales is the sum of two numbers. The numbers originated from two documents that Defendant produced to show their sales in 2022 and 2023. Kwan added these numbers together to derive Defendant’s total infringing sales. The Court held that simple addition is within the bailiwick of the average lay person and can be presented in closing arguments. Therefore, Kwan’s testimony does not merit admission.
Held
The Court granted Defendant’s motion to exclude the testimony of Kevin Kwan and excluded Kwan from testifying at trial.
Key Takeaways:
The appropriate form of relief in this case is a legal conclusion, and expert witnesses “may not offer legal conclusions” outside of exceptional circumstances.
Simple addition is within the bailiwick of the average lay person and can be presented in closing arguments. Expert testimony generally will not help the trier of fact if it “offers nothing more than what lawyers for the parties can argue in closing arguments.”
Case Details:
Case Caption:
Lightspeed Clec, Inc. V. Lightspeed Construction Group Llc
