Expert Witness Profiler

Blog

  • Neurology Expert Witness’ Testimony Excluded Because He Does Not Offer a Proper Medical Conclusion

    Neurology Expert Witness’ Testimony Excluded Because He Does Not Offer a Proper Medical Conclusion

    This is a personal injury action stemming from an accident between two tractor trailers. On November 10, 2020, while operating a truck on behalf of his employer, Robert Hibbert was rear-ended by another tractor trailer. 

    Witnesses noted that he “did not stop and was slumped over the wheel”; the EMS report indicated that Plaintiff, Hibbert did not remember what happened.

    Hibbert suffered a stroke on or about May 22, 2013 and alleged that the symptoms he exhibited after the accident are similar to those he exhibited around the time of his 2013 stroke. Plaintiff sought to have his treating physician, Dr. John E. Robinton, to testify that Plaintiff “hit his head and lost consciousness” as a result of the accident, that this impact caused a concussion, and that the concussion triggered a stroke. 

    In the “Impression” section of his report, Robinton made the following comment, which formed the basis for this motion: “Given the fact that the recent MRI revealed no evidence of an acute injury, I am hopeful that the present complaints and findings are related to a concussion.” Robinton also noted in a letter dated March 30, 2021 that, after reviewing Plaintiff’s neuropsychological assessment, “it did not appear that the report is absolute in [its] conclusion regarding etiology.” From this, Plaintiff argued, Dr. Robinton can testify regarding a possible concussion because “the issue of the concussion has not been ruled out.” 

    Defendant sought to preclude Robinton’s testimony that the November 10, 2020 accident caused any injury to Plaintiff.

    Neurology Expert Witness

    John E. Robinton is a neurologist in Montclair, New Jersey and is affiliated with multiple hospitals in the area, including Mountainside Medical Center at Hackensack Meridian Health and Saint Michael’s Medical Center. Firstly, he received his medical degree from Weill Cornell Medicine and has been in practice for more than 20 years. Moreover, Dr. John E. Robinton has expertise in treating Parkinson’s disease, neck pain and spine problems, non-Alzheimer’s dementia, among other conditions.

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

    Discussion by the Court

    The Court found that there is no evidence in the record indicating that Plaintiff sustained head trauma or any other kind of injury in the accident, and Robinton’s remark only expresses “hope[] that the present complaints and findings are related to a concussion.”

    Plaintiffs sought to have Robinton testify that another injury, e.g., a concussion caused by the accident, triggered Plaintiff’s condition merely because “[t]here is no etiology showing the cause of the Plaintiff’s stroke from this accident.” The Court held that the mere absence of evidence concerning etiology does not open the door to rank speculation as to what else may or may not have been the cause of the post-accident symptoms—and certainly this rank speculation does not clear the Daubert bar when it is expressed in the form of “hope.” 

    Plaintiff pointed to Stigliano v. Connaught Labs., Inc., which held that “treating doctors may testify about their diagnosis and treatment of [a patient’s] disorder, including their determination of that disorder’s cause.” 

    All Robinton offered was “hope that the present complaints and findings are related to a concussion”—far from a medical conclusion or diagnosis. The Court held that Stigliano, its progeny, and any cases interpreting New Jersey’s rules of evidence are entirely inapplicable to the question of whether Robinton’s testimony can be admitted. Moreover, even under Stigliano, Robinton’s testimony could not be admitted. His remarks regarding a possible concussion are not a “diagnosis,” but merely conjecture.

    Held

    The Court granted Defendants Flavors C. and Ricardo Ralat’s motion to preclude John Robinton’s testimony.

    Key Takeaway:

    To be admissible, an expert must base the conclusions of her testimony on “‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation.’” Any testimony by Robinton that the accident caused an injury which triggered Plaintiff’s symptoms would constitute precisely the kind of “subjective belief or unsupported speculation” contemplated by Daubert to be in violation of Rule 702. 

    Case Details:

    Case Caption: Hibbert V. Flavors C. Inc. Et Al
    Docket Number: 2:21cv13119
    Court: United States District Court for the District of New Jersey
    Order Date: July 18, 2024
  • Statistics Expert Witness’ Potential Backpay Calculation Excluded

    Statistics Expert Witness’ Potential Backpay Calculation Excluded

    Named Plaintiffs Mary Alice Clark, Christopher Coulter, Aaron Perez, Kevin Nelson and Phillip Roscher (collectively, “Plaintiffs”), individually and on behalf of all others similarly situated, brought this putative collective action against Defendant Capital Vision Services, LLC d/b/a MyEyeDr (“MyEyeDr” or the “Company”), claiming that MyEyeDr misclassified all General Managers (“GMs”) and General Managers-in-Training (“GMITs”) as exempt from the overtime pay requirements imposed by the federal Fair Labor Standards Act (“FLSA”), as well as Massachusetts and Pennsylvania law.

    MyEyeDr filed a motion to exclude Plaintiffs’ proffered expert witness, Dr. Liesl M. Fox under Fed. R. Evid. 702 and 403.

    Statistics Expert Witness

    Liesl M. Fox, Ph.D. is a Senior Consultant and Partner at Quantitative Research Associates, a firm that provides statistical and computing consulting services. She has been a statistical consultant for over twenty-five years, including conducting analyses in the fields of litigation and medical research, and has testified as an expert witness.

    Furthermore, she has consulted on and testified in numerous matters involving wage-and-hour disputes, including claims under the Fair Labor Standards Act of 1938 (“FLSA”). These matters have involved allegations of unpaid overtime, off-the-clock work, employment misclassification, minimum wage violations, time-shaving, record-keeping violations, and other wage-and-hour issues.

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

    Discussion by the Court

    Reliability

    Initially, MyEyeDr challenged Fox’s opinions on several grounds. As to the calculation of potential backpay, she assumed that all of the GMs’ training last eight weeks when there was testimony from MyEyeDr’s Chief Revenue Cycle Officer that such period could be shortened, and two class members for which she had made such calculation, testified that neither undertook such training and others testified to a shorter training period.

    Consequently, the Court held that the fact that Fox’s calculation for backpay were premised on such unsupported assumptions undermined the reliability of those calculations. Similarly, in her opinion regarding whether Plaintiffs supervised the equivalent of two full-time employees (for the purposes of determining if the executive exemption applied), the Court found that she did not account for inventory hours spent by these employees “which artificially deflated the labor hours GMs supervised.”

    Moreover, according to the Court, the key is that there is no explanation of a reliable methodology in which she included some work hours in her analysis and excluded others.

    Helpfulness to the Trier of Fact

    Next, the Court questioned whether Fox’s opinions will be helpful to the trier of fact.

    If MyEyeDr is found to have violated the FLSA, it would owe backpay for uncompensated overtime hours worked by GMs at a rate of one and a half times their hourly rate. Upon determining the number of overtime hours each GM worked, the jury would be tasked with calculating each individual’s hourly rate by dividing the weekly salary by the number of hours worked that week. To calculate the backpay, the jury would (1) multiply the hourly rate by one and a half and (2) multiply that by the GM’s overtime hours that given week. Such calculations constituted basic math that a jury can compute without the opinion of an expert.

    However, Plaintiffs noted that the payroll data in this case “contains more than 95,400 rows of data” spanning five years with “81 different earnings code[s] some of which are included in the damage calculations and others that are not properly included in the regular rate,” and “it contains unpaid and paid time off hours that need to be excluded from hours work estimates, and . . . bonuses that need to be spread over the time periods during which they are earned.” They argued that, given the enormity of the data, a jury is unlikely to have the ability to do these calculations. 

    Nevertheless, the Court held that such data can be presented in summary fashion to the jury. Plaintiffs may explain the meaning of such numbers through lay witnesses and argue the reasonable inferences that can be drawn from same to the jury. The Court decided that this proffered “opinion” did not require specialized knowledge or would be helpful to the jury as required under Fed. R. Civ. P. 702.

    Risk of Undue Prejudice and Confusion to the Jury

    Furthermore, the Court held that there is a risk that the jury will attach undue significance to this opinion offered by Fox based on the deficiencies addressed above, such that any probative value of same is outweighed by the risk of undue prejudice and confusion to the jury under Rule 403.

    Held

    In conclusion, the Court granted the Defendants’ motion to exclude Plaintiffs’ proffered expert witness, Liesl M. Fox.

    Key Takeaways:

    To begin with, MyEyeDr did not challenge Fox’s credentials as a highly qualified statistical consultant, or the general relevance of her proffered opinions, but challenged their reliability on several grounds and posited that her proposed testimony would be unhelpful to the jury.

    • First of all, Fox’s testimony would not assist the jury because Fox’s calculations are basic math that a jury can compute without the opinion of an expert.
    • Secondly, Fox’s calculation for backpay were premised on unsupported assumptions. For instance, Fox assumed that all of the GMs’ training lasted eight weeks when there was testimony from MyEyeDr’s Chief Revenue Cycle Officer that such period could be shortened.

    Case Details:

    Case Caption: Clark Et Al V. Capital Vision Services, Llc
    Docket Number: 1:22cv10236
    Court: United States District Court for the District of Massachusetts
    Order Date: July 18, 2024
  • From Setback to Comeback:  An Expert’s Playbook for Post-Trial Success

    From Setback to Comeback:  An Expert’s Playbook for Post-Trial Success

    The jury has spoken.  The gavel falls.  Your side loses.  

    Now what?  

    Expert witnesses, it’s time to master the art of the professional bounce-back. 

    Trial testimony is intense and demanding for expert witnesses. If you can’t handle that reality, another line of work will suit you better. When a verdict doesn’t favor the side that hired you, it’s natural to feel disappointed or frustrated. However, maintain your perspective and professionalism in the face of negative outcomes. Poised professionalism is a requirement and a source of reassurance and confidence. Consider these strategies to bounce back from a trial loss and thrive in your role. 

    Bouncing Back 

    A first reaction may be disappointment or self-doubt when news of an adverse verdict hits. Acknowledge these feelings, but don’t dwell on them. Remember–your role as an expert witness is not to win or lose the case but to provide professional, impartial expertise. This perspective is key in reframing reactions to bad outcomes.

    Trials are zero-sum games. In litigation, there is no second place, silver medals, or participation trophies for just showing up. Yes, it’s nice and fun to be on the winning team. However, as an expert, you are *not* a “team member.” Rather, you’re an objective analyst, a crucial part of the legal process, helping judges and juries understand industry standards as they apply to a case’s fact pattern.

    Experienced experts often emphasize that a trial outcome doesn’t define an expert’s worth. The key is to present facts and professional opinions clearly and honestly, recognizing that the verdict itself is beyond the expert’s control.

    Understand Your Limited Role 

    You’re one role-player in a larger drama with an ensemble cast. A trial’s outcome hinges on many factors outside your control, e.g., the case’s overall strength, the attorney’s performance, the credibility of other witnesses, the judge’s rulings and legal interpretations, and jury tendencies in certain venues.

    Seasoned trial attorneys often point out that, while expert witnesses are essential in many cases, they’re just one piece of the puzzle. The verdict typically depends on a combination of factors that no single expert can control.

    Focus on “Controllables”

    While you can’t control a trial’s outcome, many aspects of your performance you can. Focus on these “controllables” before, during, and after trials:

    1. Preparation: Know the case details and stay in your lane of expertise. Do your homework in the weeks (or months) before the trial!

    2. Clarity: Present your testimony clearly and concisely so lay jurors can understand.

    3. Professionalism: Keep your composure and professionalism, even under challenging cross-examination.

    4. Responsiveness: Be attentive and concise during direct examination. Keep eye contact with jurors.

    Focus on these factors, then feel confident you’ve fulfilled your role, regardless of the trial’s outcome.

    Seek Constructive Feedback 

    Post-trial, especially one that ends unfavorably, seek feedback from the attorneys you worked with. This can yield insights on your performance and areas for potential improvement. Experts like Daniel Pink recommend not asking, “Can you give me constructive criticism?” Rather, he suggests asking, “Do you have any advice for me on how to improve my [fill in the blank] written work product, deposition testimony or trial testimony?”

    In my experience, few experts make it a practice to ask attorneys for honest feedback after each trial. While it can be challenging to hear, this approach often helps improve their effectiveness.

    Wait a few weeks after the trial, letting retaining counsel process the outcome. When seeking feedback, focus on specific performance aspects, such as the clarity of your explanations, on-the-stand demeanor, or the effectiveness of visual aids. A targeted approach yields more actionable insights than broad questions about why the case was lost.

    Emotionally Detach from Outcomes 

    One of expert witnesses’ most challenging yet crucial skills is emotionally distancing themselves from a trial’s outcome. This doesn’t mean being indifferent. It means maintaining a professional buffer zone that lets you see the litigation process objectively.

    Expert witnesses must remind themselves that their job is to present facts and professional opinions, not to advocate for a particular outcome. This mindset helps them stay focused and objective, regardless of a trial’s result. 

    Move On 

    After a trial loss, acknowledge the setback and move on to your next case. Ruminating and second-guessing outcomes can erode your confidence and future trial performance.

    Remember, even the most experienced and respected expert witnesses have been on the losing side of cases. When expert witnesses gather, no one swaps tales about when they were on the losing side. The ability to learn from each experience and apply those lessons, however, sets successful experts apart. View every trial, regardless of outcome, as an opportunity to refine your skills. You might even learn more from cases lost than those which represented victories.

    See The Big Picture 

    As you navigate an expert witness career, keep a balanced perspective on wins and losses. It’s not about batting averages! Build a professional reputation—not on individual case outcomes—but on

    consistently demonstrating expertise, integrity, and professionalism.

    Don’t take credit for wins or shoulder blame for losses. Instead, consistently deliver high-quality written work products, sound analysis, and coherent testimony. Your role is to help the jury and judge understand complex issues, not to determine the case’s outcome. It’s seductive but dangerous to view yourself as part of the trial team and appear as an advocate, not an objective evaluator of the case facts. You advocate for your opinions, not for the plaintiff or defendant. That distinction is important.

    Closing

    Rebounding from a loss as an expert witness requires emotional resilience, professional detachment, and a commitment to continuous improvement. By focusing on what you can control, seeking feedback, and maintaining perspective on your role in the legal process, you navigate the challenges of unfavorable outcomes, preserve your mental health, and

    thrive in your role.

    Your value as an expert witness lies not in the win-loss record of your cases but in your ability to provide clear, objective, and professional expertise to assist the triers of fact. Keep this focus and confidently approach each case, knowing you’re fulfilling a crucial role in the judicial system.

    The jury or judge may deliver an unwelcome message. The gavel falls. The judge retires to her chambers. The jurors drive home. You sprint through Airport Terminal D to catch your connecting flight home. Your commitment to excellence, however, never wavers. Keep your chin up, your mind sharp, and your subject matter knowledge current. In the long run, it’s not case outcomes or “wins” that define you but the consistent quality of your contributions to the pursuit of truth.

  • Intellectual Property Expert Witness’ Testimony Excluded Because it Would Not Assist the Jury on the Issue of Functionality

    Intellectual Property Expert Witness’ Testimony Excluded Because it Would Not Assist the Jury on the Issue of Functionality

    Plaintiff, Southwestern Manufacturing, LLC alleged that it owned the “MULTI WEDGE” trademark in connection with a stylized wedge tool primarily used in the industrial and automotive industries (the “MULTI WEDGE Product”). Plaintiff alleged that it used the mark in commerce since May 2003 and received federal registration of the mark (the “MULTI WEDGE Mark”) on January 17, 2017.

    Defendant Wilmar LLC (“Wilmar”) requested the right to sell a “private label” version of the MULTI WEDGE Product. In response, Plaintiff supplied Wilmar with information about and samples of the MULTI WEDGE Product. Plaintiff filed a trademark infringement suit after it learned that Defendants Wilmar and Advance Auto Parts (“Advance”) used the MULTI WEDGE Mark and MULTI WEDGE Dress by selling their own versions of the MULTI WEDGE Product.

    Defendants sought to preclude Plaintiff’s expert witness, Edwin A. Sisson, from testifying or presenting evidence at trial. 

    Intellectual Property Expert Witness

    Edwin A. Sisson is an intellectual property attorney and focuses his practice on trademarks, trade dress, patents, copyrights, and trade secrets. Prior to becoming an attorney, Sisson received an undergraduate degree in Chemical Engineering from the University of Nebraska in Chemical Engineering and worked in various roles for The Goodyear Tire and Rubber Company, Shell Chemical Company, and M&G Chemicals.

    Gain a comprehensive understanding of Edwin Sisson’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    Plaintiff offered Sisson as a rebuttal expert on the issue of whether the MULTI WEDGE Dress “is a legally non-functional tool design.”

    Defendants argued that Sisson’s opinion and testimony should be excluded because he (1) lacked the requisite qualifications; (2) offered impermissible legal conclusions; and (3) provided testimony that is highly prejudicial. 

    Here, the Sisson Report impermissibly offered legal conclusions regarding the functionality of the MULTI WEDGE Dress. In concluding that “[t]he Duckbill Design is not legally functional,” Sisson improperly opined on the law. For example, the Sisson Report provided that “a design cannot be registered if it is functional.” Sisson also critiqued Defendants’ expert opinion as being “not consistent with the law.”

    The Court held that the materials relied upon by Sisson were also telling. The Sisson Report primarily relied on legal decisions, the Ninth Circuit’s model jury instructions, various textbooks and materials published by the U.S. Patent and Trademark Office, and third-party websites.

    In the Court’s view, the bulk of the Sisson Report “instructed the jury on the law, or how to apply the law to the facts of the case.” The Court held that the Sisson Report read like a legal brief. Section E illustrated this point by setting forth the four Disc Golf factors courts used to determine functionality and using each factor as a sub-header.

    Held

    The Court denied Defendants’ Daubert motion to preclude Plaintiff’s expert witness, Edwin A. Sisson.

    Key Takeaways:

    Rule 702 requires that expert testimony “help the trier of fact to understand the evidence or to determine a fact in issue.” Consistent with Rule 704(a), the Ninth Circuit has repeatedly affirmed that an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.

    Case Details:

    Case Caption: Southwestern Mfg. Llc V. Wilmar Llc Et Al
    Docket Number: 2:22cv8541
    Court: United States District Court, California Central
    Order Date: July 16, 2024
  • Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Plaintiff, Wheel Pros, LLC and Defendants, Rhino Tire USA, LLC are engaged in the business of selling wheels and tires for vehicles and each owns trademarks in its respective brand. Wheel Pros owns various trademarks related to its “Black Rhino” brand and Rhino Tire own trademarks for their “Rhino” brand.

    Plaintiff brought this action against Defendants for trademark infringement alleging the the public is likely to be confused by the similarities between the marks. In support of its case, Plaintiff proffered the expert report of Dr. Robert A. Peterson. Peterson conducted a forward likelihood of confusion survey designed to determine the likelihood of confusion between Plaintiff’s “Black Rhino” trademarks and Defendant’s “Rhino” trademarks within a target universe of survey respondents.

    In rebuttal to Peterson’s report, Defendants proffered the expert report of Dr. Henry D. Ostberg. Ostberg offered opinions as to what he termed “significant problems and fatal defects” with Peterson’s survey.

    Plaintiff filed a motion to exclude Ostberg’s rebuttal expert report and preclude him from testifying at trial pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow. Pharm., Inc., 509 U.S. 579 (1993).

    Market Research Expert Witness

    Henry D. Ostberg has over 40 years of experience in conducting marketing research and has conducted or overseen over 2,000 consumer surveys for various clients over that time. He earned an M.B.A. degree and a Ph.D. degree in marketing from Ohio State University and earned an L.L.B. law degree from New York Law School. Moreover, Ostberg has served as a marketing research expert in connection with trademark and intellectual property litigation in over 200 cases, has been a frequent speaker “on the subject of marketing, the use of surveys and related topics before a variety of professional organizations,” and was on the faculty of both New York University and Ohio State University.

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

    Discussion by the Court

    Dr. Ostberg’s Qualifications to Testify

    First, Plaintiff argued that Ostberg was not qualified because he testified and stated in his report that he was not familiar with Peterson’s methodology.

    At his deposition, Ostberg admitted his lack of familiarity with Peterson’s “modified sequential evaluation” approach. However, Ostberg made these statements based on his experience in the field of conducting surveys in similar circumstances rather than due to any purported lack of experience or qualification.

    Upon consideration of Ostberg’s qualifications, the Court held that he is sufficiently qualified to criticize Peterson’s methodology in his rebuttal report and at trial.

    Reliability of Opinions

    1. Improper Research Design

    To begin with, Plaintiff argued that Ostberg’s opinions were unreliable because his conclusions were not based on his status as an expert or any research into that area, he was not familiar with the method employed by Peterson, and he mischaracterized the way in which Peterson’s survey was conducted.

    The Court found that Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website in marketing its products, conversations with Defendants’ attorney, and his experience as a consumer to conclude that the methodology employed by Peterson was inappropriate.

    In other words, Ostberg’s methodology in criticizing Peterson’s research design was sufficiently reliable to permit his testimony at trial.

    2. Wrong Respondents Interviewed

    Ostberg next opined that Peterson’s survey was flawed because it failed to base its data on respondents who were likely to be future purchasers of Defendants’ products.

    The Court found Ostberg’s methodology in raising such “technical deficiencies” with Peterson’s survey pursuant to the prevailing literature and practice to be sufficiently reliable to survive Plaintiff’s Daubert motion.

    3. Research Design Changed Midway

    Ostberg criticized Peterson’s use of a pilot study that resulted in a change to the survey. In particular, Ostberg stated that Peterson’s report failed to include a “credible explanation” for modifying his survey after the pilot study. The Court found Ostberg’s methodology in reaching this opinion sufficiently reliable. In other words, Plaintiff’s arguments challenging this opinion largely go towards whether Ostberg reached the right conclusion in applying his method and are therefore inappropriate to justify excluding Ostberg at this stage.

    4. Inappropriate Statistical Calculations

    Ostberg also opined regarding the statistical calculations in Peterson’s survey. Specifically, Ostberg noted that Peterson’s survey “did not have a probability sample,” yet the statistical calculations used are “applicable only to surveys based on true probability samples of respondents, according to many statistical texts.”

    The Court noted Ostberg’s experience conducting consumer surveys in trademark litigation and, once again, found Ostberg’s method sufficiently reliable to permit his testimony.

    5. Internal Data Casts Doubt on the Validity of the Findings

    Now, Ostberg opined that the data collected in Peterson’s control group survey casts doubt on the validity of the survey itself because a 51.7% likelihood of confusion between Plaintiff’s trademark and the non-infringing control mark was abnormally high. Ostberg’s conclusion in this opinion did not cite to specific authority, but rather impliedly relied on his own education and experience with conducting similar surveys for over four decades. As with Ostberg’s other opinions, the Court found this opinion sufficiently reliable to preclude exclusion of the opinion at this stage.

    Helpfulness to Trier of Fact

    Finally, Plaintiff argued that Ostberg’s opinions will not be helpful to the jury.

    The Court held that since Ostberg is being proffered to criticize Peterson’s forward likelihood of confusion survey, a technical matter in which Ostberg has sufficient experience and that is beyond the understanding of the average lay person, Ostberg’s opinions will be of assistance to the jury at trial.

    Held

    To conclude, the Court denied Plaintiff’s Daubert motion to strike testimony and opinions of Henry D. Ostberg, Ph.D.

    Key Takeaways:

    • Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website for marketing their products, conversations with Defendants’ attorney, and his experience as a consumer to reach his conclusions.
    • Moreover, Ostberg’s analysis is grounded in his experience conducting consumer surveys in trademark litigation, as well as scholarly literature regarding the type of statistical analysis necessary in the survey conducted by Peterson.
    • Because Peterson’s forward likelihood of confusion survey is a technical matter that is beyond the understanding of the average lay person, Ostberg’s opinions were considered helpful to the trier of fact.

    Case Details:

    Case Caption: Wheel Pros, Llc V. Rhino Tire Usa, Llc Et Al
    Docket Number: 6:22cv2171
    Court: United States District Court, Florida Middle
    Order Date: July 18, 2024
  • Product Safety Expert Witness’ Testimony Admitted Despite Alleged Lack of Familiarity with Tree Stands

    Product Safety Expert Witness’ Testimony Admitted Despite Alleged Lack of Familiarity with Tree Stands

    Plaintiff, James Rowedder alleged a Field & Stream Stealth Climber Tree stand HEH01293 (“tree stand”) manufactured by Defendant Primal Vantage Company, Inc. (“Primal”) and sold by Defendant Dick’s Sporting Goods, Inc. d/b/a Field & Stream failed while Rowedder was using it and that he sustained injuries as a result. Plaintiff brought claims for (1) Negligence—Product Defect; (2) Breach of Warranty; and (3) Strict Liability.

    Plaintiff’s proffered expert Rick Brenner was retained to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.

    Defendants filed a motion to exclude opinions offered by Plaintiff’s proffered expert Rick Brenner.

    Product Safety Expert Witness

    Robert (Rick) Brenner is a recognized expert in consumer product safety, regulatory compliance, and quality management programs. He is president of Product Safety Advisors, a consulting firm that advises clients in the development and implementation of product safety and regulatory compliance programs including best practices in product design, risk assessment and failure mode analysis, performance and compliance testing protocols, supply chain risk, production oversight, quality management strategies, and related employee training programs.

    His experience includes being president and CEO of Prime Resources Corporation for 12 years, an “importer, manufacturer, and distributor of consumer products sourced from multiple overseas factories” where Brenner had “direct oversight responsibility for Prime’s overseas sourcing business including the development of our standard operating procedures for product safety, risk assessment, compliance management, selection and vetting of vendors, factory oversight, correction actions, factory auditing . . . and product safety testing.” 

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

    Discussion by the Court

    Brenner Did Not Lack the Requisite Qualifications

    Defendants argued Brenner was not qualified to offer such opinions because, despite his extensive experience with product safety and quality management practices, Brenner was not an engineer, not familiar with tree stands, and, inter alia, had not physically examined the evidence in this case.

    The Court denied Defendants’ motion on this point and found Brenner qualified to offer opinions on the standard of care and best practices for consumer products manufacturers or importers considering his extensive experience as a “manufacturer, importer, and product safety professional” in his report.

    Brenner’s Opinions are Based on his Relevant Knowledge and Experience

    Last, Defendants argued Brenner’s opinions must be excluded because they are speculative, unreliable, and legal in nature. Namely, Defendants argued that Brenner’s testimony that Primal “did not conduct specific risk assessments under CPSC [Consumer Product Safety Commission] and ISO [International Organization for Standardization 10377:2013 Consumer Product Safety Guidelines for Suppliers] standards” should be excluded because he admitted “that those are not mandatory standards for manufacturers of consumer products.”

    The Court found that Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case.

    Brenner did not purport to be a design or engineering expert and could not opine on whether the products or component parts of those products at issue here were defective. Nor could Brenner opine that any alleged failure on Primal’s part to meet the standards of care Brenner articulates rendered the products at issue defective. However, the Court held that Brenner will be able to testify, generally, as to what he believes constitute best practices for a manufacturer or importer of products such as Primal and how Primal did not live up to those standards considering the evidence adduced in this case and cited in his report.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Rick Brenner. 

    Key Takeaway:

    • The Court, citing Brenner’s extensive experience with product safety and quality management practices, decided he is more than qualified to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.
    • Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case. The Court concluded that Brenner’s opinions are based on his relevant knowledge and experience.

    Case Details:

    Case Caption: Rowedder V. Primal Vantage Company Inc Et Al
    Docket Number: 2:22cv2371
    Court: United States District Court, South Carolina
    Order Date: July 15, 2024
  • Testimony of Finance Expert Witness Limited Because It Is Based on the Assumption That Economic Damages Are Inclusive of Lost Wages

    Testimony of Finance Expert Witness Limited Because It Is Based on the Assumption That Economic Damages Are Inclusive of Lost Wages

    Plaintiff, Paul Sullivan was employed as a GSI Analyst II in the City’s Public Works Department. His employment was terminated as part of a reduction in force (“RIF”).

    During a restructuring of the Public Works Department, which led to the RIF, the City eliminated both of its GIS Analyst II positions, one of which was Sullivan’s. It also created a GIS Analyst III position, which was filled by another employee on August 12, 2019, several months before the RIF. On October 2, 2019, Sullivan asked his direct supervisor to consider him for the GIS Analyst III position. He was informed that there was no open GIS Analyst III position at that time. Sullivan sued the City, alleging that he was terminated in retaliation for engaging in alleged protected activity in violation of the Family Medical Leave Act and the Fair Claims Act.

    Sullivan designated Andrew Dakers as an expert witness to testify regarding his economic damages and lost earnings.

    The City filed a motion to exclude portions of Dakers’ opinions because they were based on the incorrect assumptions that Sullivan asserted a failure-to-promote claim, that Sullivan would have been promoted to the GIS Analyst III position, and that Sullivan would have received the highest listed salary for the GIS Analyst III position.

    Finance Expert Witness

    Andrew Dakers is a financial professional with more than twenty years of experience in financial analysis, budgeting, forecasting, project and company assessment, and leading cross-functional teams.

    Dakers has a Bachelor of Science in Economics from Carnegie Mellon University and a Master of Business Administration from Yale. Although not currently a practicing or licensed accountant, Dakers successfully passed the Certified Public Accountant examination. Having spent his career in the world of finance, Dakers’ has now begun a new practice providing expert testimony related to employment damages.

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

    Discussion by the Court

    Dakers was asked to calculate the financial impact of Sullivan’s alleged wrongful termination under three scenarios. First, Dakers was to assume that Sullivan was promoted to the GIS Analyst III position and was paid at the maximum salary of the published salary range for the position, with annual raises based on the anticipated inflation rate. Second, he was to make the same assumption, but without annual raises. And, third, he was to assume that Sullivan would receive the same salary and fringe benefits that he would have received without termination.

    Dakers’ calculations based on the wages for a GIS Analyst III are not based on sufficient facts or data

    First, the City argued that Dakers’ calculations were not based on sufficient facts or data because Sullivan did not plead a claim for failure to promote. In his deposition, Dakers testified that he assumed that Sullivan asserted a failure-to-promote claim. He further testified that that would make a difference in his calculations because he could not base his calculations on a similarly-situated position if Sullivan did not assert failure to promote.

    The Court rejected Dakers’ calculations based on the wages for a GIS
    Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations if he had known Sullivan did not allege a failure-to-promote claim.

    Dakers’ report provided no basis for asserting that Sullivan was likely to receive a promotion for a position that was not open at the time of his termination

    Second, the City argued that Dakers’ calculations were not based on sufficient facts or data because, at the time that Sullivan sought the GIS Analyst III position, there were no openings. Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into.” But the evidentiary record established that, at the time of Sullivan’s termination, there was no open GIS Analyst III position. And Dakers admitted that, without the likelihood of this promotion at the time, there was no basis for the assumption that Plaintiff’s damages would include lost wages for the position.

    Dakers’ use of the maximum salary for the GSI Analyst III position is based on evidence in the record

    Third, the City argued that Dakers’ calculations were not based on sufficient facts or data because Dakers had no basis to choose the highest salary in the range for the GIS Analyst III position. When he was terminated, Sullivan’s salary was $57,700. The listed salary range for the GIS Analyst III position was between $50,201 and $72,720. Dakers testified that he chose the highest amount in that range for his calculations because Sullivan was later rehired in a different department at a salary exceeding the maximum for the GSI Analyst III position.

    The Court held that Dakers’ use of the maximum salary for the GSI Analyst III position was based on evidence in the record and objections to those calculations go to the weight, not the admissibility, of his damages calculations.

    Held

    The Court granted in part and denied in part Defendant City of Dallas’ motion to exclude portions of Andrew Dakers’ expert report.

    Key Takeaway:

    • Since Sullivan did not plead a claim for failure to promote, the Court rejected Dakers’ calculations based on the wages for a GIS Analyst III because Dakers testified that he would not have used the wages for a GIS Analyst III as part of his damages calculations had he known that Sullivan did not allege a failure-to-promote claim.
    • Dakers testified that the damages calculation based on the GIS Analyst III position would only be applicable if this was a position that Plaintiff “was most likely to move into” but at the time of Sullivan’s termination, there was no open GIS Analyst III position.

    Case Details:

    Case Caption: Sullivan V. City Of Dallas, Texas
    Docket Number: 3:21cv915
    Court: United States District Court, Texas Northern
    Order Date: July 15, 2024
  • Orthopaedic Surgery Expert Witness’ Testimony about the Severity of the Collision Admitted

    Orthopaedic Surgery Expert Witness’ Testimony about the Severity of the Collision Admitted

    A district judge in Nebraska admitted the testimony of an orthopedic spine surgeon despite lacking the required education, training and experience in physics, engineering, accident reconstruction or biomechanics.

    Plaintiffs, Lisa Rentz Johnson and George Johnson, have brought a personal injury lawsuit involving an accident between two tractor-trailers in a parking lot. Lisa alleged she sustained physical injuries and disability because of the collision, including injuries to her head, neck, back, left arm, and left knee. George sought damages for alleged loss of consortium.

    The Defendants retained Dr. Chris Cornett, an orthopedic spine surgeon with Nebraska Medicine, as an expert witness to perform an independent medical evaluation (“IME”) of Lisa.

    The Plaintiffs filed a motion to exclude certain testimony and opinions found in Cornett’s report.

    The Plaintiffs argued Cornett’s opinions related to the severity of the collision must be stricken and excluded from trial because he failed to provide the methodology by which he formed his non-medical opinions.

    Orthopaedic Surgery Expert Witness

    Dr. Chris A. Cornett, an orthopedic spine surgeon with Nebraska Medicine, has more than a decade of experience as a trauma doctor. He attended medical school at University of Nebraska Medical Center and also has a master’s degree in physical therapy from the UNMC Medicine School of Allied Health Professions. He is a member of the American Academy of Orthopaedic Surgeons (AAOS).

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

    Discussion by the Court

    The Plaintiffs objected to Cornett’s description of the damage to the two vehicles based on the photographs he reviewed; Cornett’s noting, “The mechanism in this case and the photographs of the vehicles seem mild, and certainly not high energy in my opinion”; and his conclusion that he did “not see any reason, given this mechanism and the prior history, that one could medically state that this injury permanently aggravated or worsened those preexisting conditions.”

    The Plaintiffs argued that since Cornett has no education, training and experience in anything other than orthopedics, all of his opinions on speed, impact and energy should be excluded.”

    Cornett testified during his deposition that he did not see it was “reasonable medically that [Lisa] suffered a significant spine injury or a permanent worsening of a prior condition that ultimately required surgery.”

    When Cornett was asked what qualifications he has “to assess the energy forces related to the impact of the case”, he responded, “I would say no qualifications, again, as a physicist or a biomechanical expert but just qualifications as taking Level 1 trauma call for over a decade.”

    Cornett testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.

    The Court was satisfied that Cornett is sufficiently qualified and reliable to opine on the specific issues relevant to this case.

    Held

    The Court denied Plaintiffs’ motion to exclude certain testimony and opinions found in Chris Cornett’s report.

    Key Takeaway:

    Cornett lacked education in physics, engineering, accident reconstruction or biomechanics but testified that through his experience as a trauma doctor, it is common to have some description of an accident, either through first responders directly or in subsequent reports.

    Case Details:

    Case Caption: Johnson Et Al V. C.R. England, Inc. Et Al
    Docket Number: 8:21cv363
    Court: United States District Court, Nebraska
    Order Date: July 15, 2024
  • Insurance Expert Witness’ Testimony Admitted Despite Not Being Tied to Covered Loss

    Insurance Expert Witness’ Testimony Admitted Despite Not Being Tied to Covered Loss

    A district judge in Texas admitted the insurance expert’s testimony about the cost to repair or replace the damaged areas.

    This is a commercial property insurance coverage dispute arising from hail and wind damage to Plaintiff’s property located at Midland, Texas. Landmark insured the Property under a commercial policy. Landmark received notice that the Property had sustained storm damage with the date of loss claimed as June 19, 2020.

    On March 28, 2022, Landmark sent Plaintiff a letter explaining that investigation revealed that the roof was exposed to multiple hail events on April 16, 2017; on May 16, 2017; and/or on April 23, 2019, but did not support that a hail event occurred at the Property on or about June 19, 2020. Plaintiff subsequently filed suit against Landmark for alleged property damages with a date of loss of June 19, 2020.

    Plaintiff designated Kevin Funsch, “a licensed public adjuster and owner of US Insurance Adjusters, LLC.” On March 22, 2024, Landmark filed a motion requesting that the Court exclude Plaintiff’s expert witness, Funsch’s testimony and strike his expert report.

    Insurance Expert Witness

    Kevin Funsch is a public adjuster and the owner of an insurance adjusting firm with a solid background in claims handling and estimating. He is experienced in adjusting property losses and performing appraisals.

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

    Discussion by the Court

    Landmark sought for Funsch’s report to be struck and his testimony excluded because: (1) Plaintiff’s expert designation and Funsch’s report did not comport with Federal Rule of Civil Procedure 26(a)(2); (2) Funsch’s report and opinions were unreliable; and (3) Funsch’s report and opinions were irrelevant.

    Funch’s Compliance with Rule 26 and Rule 702

    Defendant asserted that Funsch’s expert report is deficient for multiple reasons: (1) it “did not contain a complete statement of the basis and reasons for Funsch’s opinions as to the damages sustained to the property and the cost of repairs”; (2) Funsch did not “explain in his report how his experience as an insurance adjuster led him to reach his conclusions”; (3) the report “did not include any explanation as to the basis or reliability of the estimate”; (4) it “failed to demonstrate that Funsch’s opinions on the damages and necessary repairs are based on sufficient facts or data”; and (5) “that Funsch reliably applied those principles and methods in forming his estimate as required by Rule 702”.

    After thoroughly scrutinizing Funsch’s report, the Court found it satisfied both Rule 26 and Rule 702. It added that Landmark’s reliance on its cited Rule 702’s advisory committee note was inapplicable to Funsch’s expert report in this case, as he stated that he relied on multiple other documents and conversations with Neil Hall in forming his opinions, rather than relying solely on experience as the advisory committee note contemplated.

    The Court addressed Landmark’s arguments that Funsch failed to demonstrate his opinions on the damages and necessary repairs are based on sufficient facts or data, the product of reliable principles and methods; and that he reliably applied those principles and methods in forming his estimate as required. The Court noted that Plaintiff designated Funsch as his damages expert. Funsch is offered as an expert to provide opinion testimony only on the cost to repair or replace the damaged areas identified in the Hall Report.

    Reliability of Kevin Funsch’s Opinions

    Next, Landmark asserted Funsch’s “opinions regarding the costs of repairs are unreliable because he relied on unexplained assumptions about the Property that have no factual basis.” Landmark’s argument is premised on Funsch’s deposition testimony. In his deposition, Funsch stated most of the quantities and measurements in his estimate were copied over from the Berkley estimate. Then, because Hall’s report “only called for replacing some sections of the roof and the Berkeley estimate called for replacing all of them, Hall told Funsch to just use ‘about half’ of some of the Berkeley quantities.” Funsch admitted he “wasn’t able to verify every single one of the quantities.” Funsch concluded ‘these quantities, the number of items seems reasonable’ which Landmark asserted were “assumptions” by Funsch instead of “actual quantities” actually rendered the entirety of Funsch’s opinions unreliable.

    The Court, citing Rule 703, found Funsch’s testimony and report reliable.

    Relevancy of Kevin Funsch’s Opinions

    Landmark argued Funsch’s opinions were irrelevant because: (1) his repair estimate was based on prices as of April 2023, when the Policy required valuation based on the date of loss; (2) his repair estimate was a replacement cost estimate, not an actual cash value estimate; and (3) his opinions were not tied to “covered causes of loss.”

    His repair estimate was based on prices as of April 2023, when the Policy required valuation based on the date of loss

    Defendant first asserted Funsch’s opinions were irrelevant and/or not helpful to the jury because his report contained prices from April 2023 instead of 2019, and the Policy’s valuation provision mandated the cost of repairs be in 2019 (the alleged date of loss).

    The Court found that the date of Funsch’s damage estimate did not render it
    completely irrelevant and unhelpful; rather the exact weight to be given to Funsch’s testimony and expert report was for the fact finder to determine.

    His repair estimate was a replacement cost estimate, not an actual cash value estimate

    Landmark argued Funsch’s opinions were irrelevant and/or not helpful to the jury because his report contained only a replacement cost estimate, and “[i]n order to receive Replacement Cost coverage, the Policy stated that Plaintiff must first ‘actually’ repair or replace the property.” However, “it was undisputed that Plaintiff did not make the necessary repairs and the very minor repairs Plaintiff did make were not made until over two and a half years later.”

    The Court noted that whether Plaintiff could recover replacement cost value or actual cash value damages was a point of contention currently being litigated. Thus, without an order barring Plaintiff from recovering replacement cost damages, the Court found Funsch’s opinion as to replacement cost damages was relevant.

    Funsch’s opinions are irrelevant and/or not helpful because his opinions are not tied to a covered loss

    Landmark argued Funsch’s opinions are irrelevant and/or not helpful because his opinions are not tied to a covered loss. The Court emphasized that Plaintiff designated Funsch as his damages expert. Funsch is offered as an expert to provide opinion testimony only on the cost to repair or replace the damaged areas identified in the Hall Report.

    Held

    The Court denied Landmark’s motion to strike and exclude the testimony of Kevin Funsch.

    Key Takeaways:

    • It is not unusual in insurance coverage cases to have separate causation and damages experts, and to have the damages expert rely on causation opinions from the separate expert.
    • Simply because Funsch relied on Hall’s opinion and his own analysis of photographs, does not render Funsch’s reliability below Rule 702’s threshold, as this is exactly the kind of facts and data experts in Funsch’s field reasonably rely on in forming their opinions.

    Case Details:

    Case Caption: William Douglas C/O The Havens Group, Inc. V. Landmark American Insurance Company
    Docket Number: 7:22cv167
    Court: United States District Court, Texas Western
    Order Date: May 28, 2024
  • Business Valuation Expert Witness’ Testimony Regarding the Value or Lack Thereof of Plaintiff’s Trade Secrets Excluded

    Business Valuation Expert Witness’ Testimony Regarding the Value or Lack Thereof of Plaintiff’s Trade Secrets Excluded

    Alan Solomon with the University of Tennessee (“UT”) developed the 11-1F4 antibody, and the “ownership of the Antibody materials and associated materials are held by Plaintiff.” The Antibody is effective in treating amyloidosis.

    In 2009, Solomon applied for and received two different orphan drug designations for two indications of the 11-1F4 Antibody. Defendant Caelum Biosciences, Inc. was founded to advance the clinical development research from Solomon. Plaintiff University of Tennessee Research Foundation alleged that Defendant’s “sole focus and mission was to commercialize the Antibody technology, which it has renamed to CAEL-101.”

    Plaintiff entered into several different agreements relating to the Antibody. In 2013, Plaintiff entered an Inter-Institutional Agreement (“IIA”) with former party, The Trustees of Columbia University in the City of New York (“Columbia” or “Columbia University”), allowing it to work on clinical trials with respect to the Antibody.

    According to Plaintiff, in 2017, Defendant “began publishing press releases containing false statements regarding the ownership of the 11-1F4 technology, [made] false disclosures on its website, and . . . [made] false disclosures with the U.S. Food and Drug Administration claiming that it had licensed the 11-14F4 technology from Columbia University and that [Defendant] was now the owner of the 11-14F4 Orphan Drug Designations.”

    Defendant retained Neil J. Beaton, a certified public accountant, as its damages expert. University of Tennessee Research Foundation (“UTRF”) requested that the Court exclude several opinions of Neal J. Beaton pursuant to Federal Rule of Evidence 702.

    Business Valuation Expert Witness

    Neil Beaton is a Managing Director with Alvarez & Marsal Valuation Services in Seattle. He specializes in the valuation of public and privately held businesses and intangible assets for purposes of litigation support (lost profits claims, marriage dissolutions and others), acquisitions, sales, buy-sell agreements, ESOPs, incentive stock options and estate planning and taxation. He also performs economic analysis for personal injury claims, wrongful termination and wrongful death actions.

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

    Discussion by the Court

    Specifically, UTRF requests that the Court preclude Beaton from testifying that: (1) the release between UTRF and Columbia University “shows that UTRF itself did not regard the UTRF Assets … as having any value”; (2) “the evidence shows that UTRF itself placed little or no value on the UTRF Assets”; (3) “the alleged trade secrets UTRF has identified in this case are generally known in the industry and/or are readily ascertainable,” making damages unavailable; and/or (4) opining that UTRF only is entitled to damages of $371,600 if it prevails against Caelum in this lawsuit.

    Beaton’s Opinions Regarding Plaintiff’s Purported Trade Secrets

    Specifically, Plaintiff pointed to paragraphs 36, 44, and 45 of Beaton’s expert report. These paragraphs provided as follows:

    36. This broad release of “all claims and liability” shows that UTRF itself did not regard the UTRF Assets as of June 12, 2017 as having any value.

    44. Since UTRF essentially abandoned the UTRF Assets and Solomon transferred the Investigational New Drug (“IND”) for nothing in return, the evidence shows that UTRF itself placed little or no value on the UTRF Assets.

    45. As I understand is detailed in other reports being served by Caelum, the alleged trade secrets UTRF has identified in this case are generally known in the industry and/or are readily ascertainable from publications, presentations, ATCC deposits, patents, and/or other proper means such that no real economic value would be obtained from their disclosure. Thus, it is my understanding that UTRF cannot recover damages for its trade secret misappropriation claim.

    Beaton’s first two opinions would not assist the trier of fact

    The Court found that the first and second opinions were not within Beaton’s specialized knowledge such that they would assist the trier of fact. Beaton acknowledged that his first opinion is based on the Court’s order dismissing Columbia from this case. And his second opinion is based on his interpretation of the facts of the case, including Solomon transferring the IND without compensation. 

    Beaton’s third opinion is not helpful to the jury

    For his third opinion, Beaton stated that his understanding is that Plaintiff cannot recover damages because other experts have opined that Plaintiff’s purported trade secrets are generally known in the industry and/or are readily ascertainable. Plaintiff argued that this testimony is not helpful but additionally, it asserted that the “rules do not permit an expert to rely on opinions developed by another expert for purpose of litigation without independent verification of the underlying expert’s work.” Experts are permitted to rely on another expert’s opinion “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”

    Even so, the Court found Beaton’s testimony on this issue was not helpful to the jury. Beaton is essentially stating that if there are no trade secrets, Plaintiff’s damages are zero. But the jury need not hear from an economist to reach that conclusion. The Court therefore found Plaintiff’s arguments well taken on this ground.

    The Reliability of Beaton’s Opinions

    Plaintiff challenged Beaton’s alternative opinion that should Plaintiff prevail on its claims, it is entitled to only $371,600. It argued that “Beaton’s conclusion is based on incorrect facts and lumps together [Plaintiff’s] breach of contract and trade secret misappropriation claims,” rendering his opinion unreliable.

    Plaintiff stated that in its Amended Complaint, it alleged that Defendant breached the Confidentiality Agreement executed on March 14, 2017, but in assessing damages on the breach of contract claim, Beaton used a date of January 1, 2017—more than two months before the contract existed. Plaintiff stated that his reliance on January 1, 2017, to calculate damages is unreliable.

    Defendant responded that Beaton evaluated the UTRF Assets using the date of January 1, 2017, because this is when the 2017 Caelum/Columbia Agreement was executed. Beaton explained that choosing a different date would not affect his damages calculation. Plaintiff argued that although it has separate claims for breach of contract and trade secret misappropriation, “Beaton did not provide separate damages opinions for these claims.”

    The Court could not conclude that Beaton’s opinions were unreliable or unhelpful simply because he performed an aggregate damages calculation. Plaintiff cited no authority for the proposition that an aggregated damages calculation is inherently unreliable, and to the extent the jury finds Defendant liable on the trade secret misappropriation claim and the breach of contract claim, Beaton’s opinions are helpful. The Court found cross examination and jury instructions are more appropriate than exclusion on these grounds.

    Held

    To conclude, the Court granted in part and denied in part the Plaintiff’s Daubert motion to exclude the testimony of Neil J. Beaton.

    Key Takeaways:

    • Experts are permitted to rely on another expert’s opinion “if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.”
    • The Court found that Beaton’s opinions regarding the value or lack thereof of Plaintiff’s trade secrets are not helpful to the jury.
    • At the same time, the Court found Beaton’s damages calculation reliable and helpful.
    • Moreover, Beaton essentially stated that if there are no trade secrets, Plaintiff’s damages are zero. The Court held that this type of conjecture claiming ‘if there was no violation, there are no damages’ does not require expert testimony; it is a rhetorical argument to make to the jury.”

    Case Details:

    Case Caption: University Of Tennessee Research Foundation V. Caelum Biosciences, Inc.
    Docket Number: 3:19cv508
    Court: United States District Court for the Eastern District of Tennessee
    Order Date: July 11, 2024