Plaintiff Vanessa Buss brought a disability accommodation claim against her former employer Defendant PeaceHealth.
Buss offered the report of Dr. Colleen Huber, a naturopathic doctor, to support her assertion that PeaceHealth could have accommodated her by offering ivermectin as COVID-19 prophylaxis.
PeaceHealth filed a motion to exclude Huber’s testimony because she is unqualified “to render the opinions in her declaration” and because her opinions are not “relevant and reliable under Daubertand Rule 702.”
Naturopathic Medicine Expert Witness
Dr. Colleen Huber has been practicing naturopathic medicine for about 18 years. She graduated from Southwest College of Naturopathic Medicine in Tempe. Huber treated patients who showed signs and/ or symptoms of COVID-19 illness during the peak COVID years.
In April 2021, she authored a book on early COVID-19 treatments titled The Defeat of COVID: 500+ Medical Studies Show What Works and What Doesn’t.
1. Huber is not Qualified to Offer Expert Scientific Opinion
The Court held that Huber is not qualified to offer expert scientific opinion on the hospital management of COVID-19 because she lacked the knowledge, experience, training, and education to offer expert scientific opinion on the hospital management of COVID-19 during a pandemic. Huber is trained and has practiced as a naturopathic physician.
Though she may be qualified to offer expert testimony on matters within her naturopathic training and practice, she lacked allopathic medical education and training in immunology, epidemiology, and infectious diseases.
Huber also did not have relevant training in biostatistics, epidemiology, or a related field that would qualify her to conduct or interpret meta-analyses, literature reviews, or clinical studies.
Further, Huber’s license to practice naturopathic medicine was revoked for “unprofessional conduct” in October 2022 by the Arizona Naturopathic Physicians Medical Board.
The Board found that Huber was treating cancer patients with intravenous solutions (“IVs”) that contained “bicarb and other nutrients” and had failed to properly chart patient visits, including patient symptoms, clinical findings, treatment details, IV ingredients, and “the dosage or strength amounts.” The Board also found that Huber refused to properly chart patient visits even after being required to attend a medical education course in recordkeeping, failed to obtain patient consent to receive the IVs, and refused to disclose the IV ingredients to patients and to the Board.
2. Huber’s Opinion is Not Reliable
Even if Huber were qualified to provide expert scientific opinion on the hospital management of COVID-19 during a pandemic, her opinion that ivermectin is an effective alternative to COVID-19 vaccination is not reliable.
a. Clinical Experience
It should be noted that Huber failed to disclose important details about her clinical experience including the exact number of patients she treated, patient demographics, pre-treatment patient information, a protocol including the ivermectin dose used, post-treatment patient information, and whether she used a control group.
PeaceHealth’s rebuttal expert contended that Huber’s clinical report is “anecdotal evidence that should not be relied on to prove or disprove the efficacy of ivermectin in the treatment or prophylaxis of COVID-19 infection.”
Huber did not supply the missing details or documentation of her clinical experience and, for that reason, failed to rebut the characterization of her clinical report as anecdotal evidence. Anecdotal evidence is not a reliable basis for an expert scientific opinion.
b. Ivermectin Studies
Second, Huber stated that her opinion is also based on the ivermectin studies that she cited in her report, the ivermectin studies in her self-published book, and the “hundreds of published studies” that she herself has written. But the studies to which she refers are severely flawed, and the studies she authored were not published in a peer-reviewed scientific or medical journal.
In her report, Huber repeatedly cited a “meta-analysis” of ivermectin studies—presumably the same meta-analysis and studies she cites in her book—that she claimed showed that ivermectin is an effective COVID-19 treatment and prophylaxis. However, the “meta-analysis” is a website that lists more than 100 ivermectin studies.
Huber’s report also named three specific studies as the basis for her opinion that ivermectin is effective COVID-19 treatment and prophylaxis. The Court reviewed the studies and found them to be fatally flawed.
Finally, Huber stated that she has published “hundreds” of peer-reviewed studies, including studies that show that ivermectin is an effective COVID-19 treatment and prophylactic. Of the five COVID-19 articles listed on her CV, purportedly peer reviewed, all were published in an online entity titled Primary Doctor Medical Journal (“PDMJ”), an entity that Huber helped create. She registered, owns and operates the PDMJ website.
PeaceHealth contended that “Huber has designed a web of alternative sources and organizations to provide an appearance of legitimacy without peer review and without disclosing her conflicts of interest,” and that “PDMJ is essentially a blog, dressed up to mimic the look of a peer-reviewed journal.” At deposition, Huber refused to identify any other PDMJ founders or reviewers and declined to explain how its “peer review” process works.
c. Methodology
Plaintiff contended that “Huber makes the perfect expert witness for this case because she literally wrote the book on treatments for COVID” and “is one of the leading experts in the world on early treatments for COVID, including ivermectin.”
The Court noted that Huber failed to examine and rebut the peer-reviewed scientific studies that constitute the medical consensus that ivermectin is not an effective COVID-19 treatment or prophylactic. A minority opinion is not necessarily unreliable, but here Huber failed to provide a sufficient factual basis for her opinion, and she failed to rebut or distinguish the medical consensus.
In sum, Huber’s opinion that PeaceHealth could have accommodated Plaintiff with ivermectin is not reliable. Huber based her opinion on insufficient facts or data—anecdotal clinical experience and studies that either do not support her opinion or were not properly peer reviewed.
Held
Tthe Court concluded that Dr. Colleen Huber’s testimony is not admissible under Daubert and Rule 702 and excludes her testimony in its entirety.
Key Takeaway
Where not based on independent research, expert testimony must be supported by objective, verifiable evidence that it rests on scientifically valid principles, such as peer review and publication in a reputable scientific journal.
And Huber cherry-picked facts and data to support a pre-determined conclusion. Cherry-picking facts and data, as Huber has done, undermines principles of the scientific method and is a quintessential example of applying methodologies (valid or otherwise) in an unreliable fashion.
Allison Osborne, MSW, LICSW, SUDP is a forensic social worker with almost a decade of experience working with clients that are justice involved. Since January 2022, Osborne has been employed as an owner, clinical social worker, and substance use disorder professional at Forensic Social Work Services in Mount Vernon, Washington.
Merrill Ann Cohen, MC, CRC, CLCP has spent over thirty years of experience as a vocational consultant. She has spent nearly twenty of those years as a vocational consultant and life care planner with Strategic Consulting Services, Inc. In her role with Strategic Consulting Services, Inc., Cohen provided vocational rehabilitation assessments and conducted earning capacity analyses.
Defendants sought to exclude Osborne’s opinions because “(1) she impermissibly offers legal opinions; (2) her opinions are not based on reliable principles or methodology; (3) she failed to disclose the required materials in violation of Fed. R. Civ. P. 37(c)(1); and (4) her opinions are irrelevant and would be substantially more prejudicial than probative.” The Court held that each of Osborne’s three conclusions—on the First Amendment, on Social Work Ethics and Standards, and on Trauma and Mental Health—is excludable.
Analysis
To begin with, Osborne’s opinion that “the Defendants in this case ultimately infringed upon Plaintiff’s freedom of speech by denying her ability to speak freely while in the process of learning through muting information that demonstrated Plaintiff was not being discriminatory,” amounts to an impermissible legal opinion.
Moreover, as to Osborne’s opinion that Defendants “did not adhere to social work ethical standards while interacting with” Plaintiff, such opinion is irrelevant as to Plaintiff’s remaining claims. Plaintiff’s First Amendment claim turns on whether Defendants ultimately removed Plaintiff from the BASW Program based on defined professional standards or based on personal disagreements.
As for Osborne’s opinion that Plaintiff suffered from adjustment disorder with mixed anxiety and depressed mood, Plaintiff failed to properly disclose all evidence relied upon and all documents supporting these opinions. The failure to fully disclose expert opinions as required by Federal Rule of Civil Procedure 26(a) results in exclusion “unless the failure was substantially justified or is harmless.”
Osborne did not produce her handwritten notes from her interview of Plaintiff and did not produce the empirical screening tool forms she completed in evaluating Plaintiff. Osborne also did not produce the notes she took while reviewing the depositions of various witnesses.
Notwithstanding, Plaintiff sought to excuse her failure to timely produce various documents by arguing she appropriately supplemented her expert disclosure under Rule 26(e)(2) on March 11, 2026. However, the supplemental disclosure did not obviate the harm caused by the delay as the disclosure occurred after Osborne’s deposition and after the discovery cutoff, which eliminated Defendants’ ability to engage in further discovery.
Finally, Osborne’s opinions also are not based on sufficient data or facts. Osborne incorrectly asserted that Plaintiff was removed from a certain course when she was in fact allowed to continue and passed the course.
B. Cohen’s Opinions
Defendants asserted that Cohen’s opinions should be excluded because “(1) she relied upon insufficient or incomplete data, (2) her opinions are purely speculative, and (3) her opinions are not based on reliable principles or methodology.”
Analysis
Cohen conducted a “vocational assessment and/or prepared a Life Care Plan” for Plaintiff. In preparing an assessment, Cohen normally requests discovery materials, employment history, medical records, earning records, and educational records for every client, although she noted that not all clients will have all these types of materials and not all materials will be relevant in every matter. Of these, Cohen reviewed only Plaintiff’s educational records.
The Court found that information about a person’s employment, earning history, and discovery materials are relevant to performing a vocational assessment. And although in certain instances such information may not be required, Cohen failed to identify why the information she requested, but did not receive or review, was unnecessary to formulate her opinions in this case.
In addition, Cohen’s opinions are unduly speculative because Cohen assumed what Plaintiff’s career path could have been had Plaintiff graduated from the BASW program. Cohen identified that upon graduation Plaintiff would (1) apply for and be accepted into a masters of social work program, (2) attend and complete that program, (3) take and pass the social worker licensing examination, (4) complete 3,000 to 4,000 hours of supervised social work, and (5) then apply for and obtain a full-time employment earning approximately $80,000 annually. First, it is impossible to determine with any reasonable degree of certainty that Plaintiff would follow Cohen’s assumed educational and employment path. And second, Plaintiff repeatedly emphasized that her damages were based on the loss of her bachelor’s level degree, which contradicted the educational and employment future Cohen assumed.
Finally, Cohen’s report is not based on a reliable application of principles or methods. While Cohen identified tests such as RAPEL and VADRE, she did not identify how those tests were applied in this case.
Held
The Court granted Defendants’ motions to exclude Allison Osborne and Merrill Cohen.
Key Takeaway
The Court will not permit supplemental expert disclosure when what is set forth in the supplemental disclosure is the information, reasoning, and opinions that Rule 26 requires be disclosed in the critical initial disclosure. The duty to supplement did not provide the opportunity to add information that should have been initially provided under Rule 26(a).
Mark McCown was working as a locomotive engineer for Defendant Norfolk Southern Railway Company at the Bulls Gap, Tennessee Rail Yard. McCown was standing on the ballast slope next to the track when the rock he was standing on gave way and McCown fell onto his backside. He immediately experienced pain upon his fall and he ultimately developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Norfolk Southern pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury was due, at least in part, to Norfolk’s negligence. While the parties do not dispute that a causal relationship exists between McCown’s fall and his CRPS diagnosis, they do dispute whether any negligent act or omission by Defendant contributed to McCowns fall.
Plaintiff sought compensation for the costs of future medical care and retained Christopher R. Sellars, DO, CLCP “to create a life care plan that assesses his future care needs and the costs associated with that care.”
Norfolk Southern filed a motion to exclude Sellars as an expert, asserting that he is unqualified to render the opinions in his report, his methodology is unreliable, and his conclusions are not properly supported. In the alternative, Norfolk Southern requested that if Sellars is permitted to testify his testimony be limited to treatment that has been ordered by “Plaintiff’s qualified treaters or recommended by qualified specialists” such as Defendant’s own experts.
Physical Medicine and Rehabilitation Expert Witness
Christopher Robert Sellars, DO, CLCP is both a doctor who is board-certified in Physical Medicine and Rehabilitation, also known as physiatry, and a Certified Life Care Planner. Sellars has been practicing medicine since 2007 and is also a publisher and presenter in the areas of physiatry, sports medicine, and pain medicine.
Defendant did not dispute that Sellars is a qualified medical doctor in general but argued that his lack of specific experience with CRPS renders him unqualified to opine regarding Plaintiff’s injury and future medical needs. The breadth of Sellars’ medical practice and experience is rather wide, and although he does not specialize in neurology or CRPS he did have significant experience related to pain medicine and some experience with CRPS cases. Additionally, Sellars conducted a fairly exhaustive review of Plaintiff’s medical records and considered both Plaintiff’s current treatment and recommendations for future treatment in forming his opinions.
Given that CRPS is a chronic pain condition and that he relied upon the information in Plaintiff’s medical records supplied by other medical experts, the Court held that Sellars’ practice and experience is sufficiently related to the diagnosis and treatment of injuries in order to qualify him to render opinions and recommendations related to Plaintiff’s long-term care.
b. Reliability
In attacking the reliability of Sellar’s report, Defendant vehemently asserted that Sellars is not qualified to render opinions regarding Plaintiff’s long-term care due to his lack of specialized knowledge of CRPS. As such, Defendant characterized Sellars’ testimony as pure speculation. Defendant also took issue with the fact that Sellars did not consult with any medical specialists or Plaintiff’s treating physicians before preparing his initial report.
As an initial matter, the Court noted that while Defendant asserted that Sellars’ methodology is flawed, causing his opinions to be unreliable, much of Defendant’s reliability argument rehashes what Defendant perceives are Sellars’ insufficient qualifications. As the Court has already addressed Sellars’ qualifications in the previous section, it will not do so again here. The Court is satisfied that Sellars has provided an adequate factual basis for his conclusions.
Having determined that Sellars’ testimony is not unreliable as a whole, the Court turned to Defendant’s request that Sellars’ testimony be limited. In asking the Court to limit Sellars’ testimony, Defendant essentially asked the Court to limit Sellars’ admissible recommendations regarding Plaintiff’s future care needs to those that Defendant’s own experts have recommended. The the Court cannot, and will not, do so.
Held
The Court denied Defendant’s motion to exclude Plaintiff’s life care plan opinion witness Christopher Sellars, DO, CLCP.
Key Takeaway
While CRPS treatment is not a focal point of Sellars’ practice, Sellars is qualified to treat a wide range of conditions that cause longterm pain and functional impairment, including CRPS.
P&E is a Kansas-based contractor who entered into a design-build contract with WI RNG Hub North, LLC, for a renewable natural gas production facility in Gillet, Wisconsin (the “Project”) to be completed by February 27, 2023. The Project included construction of two buildings to house process equipment for producing renewable natural gas from dairy cow manure and dryer equipment for producing a fiber by-product. To complete the Project, P&E entered into subcontracts with various companies, including Crescent Power, Bayland Building, Inc. (“Bayland”), and Air Liquide Advanced Technologies U.S., LLC (“Air Liquide”). P&E retained Crescent Power as a material supplier to deliver electrical-power equipment to the Project location, including switchboards and MCCs.
The Project faced several schedule delays and was completed 175 days behind schedule. Relevant here, P&E alleged that Crescent Power failed to deliver the MCCs on time under their contract. P&E alleged that Crescent Power’s late delivery, combined with its other subcontractors’ contractual failures, significantly delayed the Project’s overall com.
P&E retained Christopher J. Smocke to review the Project, including its five-page critical path schedule, and offer opinions on the causes of the Project’s delays and resulting damages to P&E. Regarding Crescent Power, Smocke opined that it delivered the MCCs 69 days late, is 41% at fault for the first 140 days of the delay to the Project’s completion, and is responsible for $762,415 of P&E’s total damages.
Christopher J. Smocke has worked as a Senior Project Manager, Project Executive, Vice President, and President in various construction companies, for general contractors, and for construction owner’s representative firms. In these roles, he managed budgets and organized schedules for several multi-million-dollar projects. He has also conducted informal mediations where he allocated responsibility between multiple parties in construction project disputes. Further, Smocke has been retained as an expert in three arbitrations and two lawsuits, offering opinions on construction delays and resulting damages.
First, Crescent Power argued that Smocke lacked the requisite qualifications to offer his opinions. Crescent Power recognized that Smocke has over 50 years of experience in construction project management, but argued that he lacked specific experience or education in conducting forensic schedule analyses and allocating fault pursuant to Association for the Advancement of Cost Engineering (“AACE”) standards.
The Court concluded that P&E met its burden to show that Smocke is sufficiently qualified based on his significant experience in construction project management.
B. Reliability of Methodology
Crescent Power argued that Smocke’s opinions are ipse dixit because he did not conduct a forensic analysis of impacts on the Project’s critical path pursuant to one of the AACE or Society of Construction Law’s prescribed methods.
In his report, Smocke identified which delays he opined affected the overall completion of the Project based on his review of the case and his experience. For example, he discussed how Crescent Power’s late delivery of MCCs impacted the Project’s overall completion because the switchboards could not be powered up without them, holding up work in both Project buildings and all systems for renewable natural gas production. As P&E pointed out, his discussion mirrors both AACE and Society of Construction Law principles on disruption and delay to construction projects.
Crescent Power also identified what it considered as “blatant errors” in Smocke’s opinions to demonstrate that his methodology is unreliable. To begin with, Crescent Power argued that Smocke added days to the calendar to reach his opinion that 140 days of delay should be apportioned between Crescent Power, Bayland, and Air Liquide. P&E asserted that Crescent Power simply misunderstood Smocke’s testimony regarding the 140 days. Crescent Power also argued that Smocke failed to consider other delays not caused by Crescent Power in his analysis, but P&E asserted that Smocke correctly considered other delays.
The Court is concerned, however, with Smocke’s methodology for allocating fault and damages between P&E’s subcontractors. To do so, Smocke took the number of days he determined that Crescent Power missed its required delivery dates (69) and divided that number by the total of late delivery days he determined between Crescent Power, Bayland, and Air Liquide (168) to allocate a percentage of fault to Crescent Power (41%) and ultimately conclude that Crescent Power is responsible for $762,415 in damages.
C. Sufficiency of Underlying Facts & Data
Crescent Power also challenged the sufficiency of the facts and data underlying Smocke’s opinions. To begin with, Crescent Power argued that Smocke’s deposition testimony contradicted his opinion assigning 69 late delivery days to Crescent Power. This argument is similar to Crescent Power’s concern over Smocke’s assignment of 140 Project delay days between Crescent Power, Bayland, and Air Liquide. Likewise, the Court reached a similar conclusion and determined that Crescent Power’s concern goes to weight as opposed to admissibility and can be sufficiently addressed on cross-examination.
Second, Crescent Power again argued that Smocke’s opinion is unreliable because he did not conduct a formal Critical Path Methodology (“CPM”) analysis to establish that the MCCs were on the critical path to the Project. CPM is a a term of art for a method of scheduling and administering construction contracts, and its common use in resolving disputes over excusable-delay claims. The Court also rejected this argument.
Third, Crescent Power challenged Smocke’s allocation of fault and damages between P&E’s subcontractors on sufficiency grounds two ways: (1) he failed to independently evaluate P&E’s alleged damages; and (2) his allocation was purely speculative and unhelpful to the jury. The Court had already determined that P&E failed to establish that Smocke used a reliable methodology to allocate fault and damages between P&E’s subcontractors.
Held
The Court granted in part and denied in part Crescent Power’s motion to exclude the testimony of Christiopher Smocke.
Key Takeaway
P&E failed to address Smocke’s formula for allocating fault entirely, let alone explain how it is reliable under Daubert. Because P&E failed to establish this methodology is reliable, the Court did not not permit Smocke to testify to his opinions allocating fault and damages between P&E’s subcontractors based on his self-created formula.
Case Details:
Case Caption:
P&E Solutions, LLC V. Crescent Power Systems, Inc.
Defendants—Sanford, Sanford Health, and the Evangelical Lutheran Good Samaritan Society—allegedly owned or operated the Good Samaritan Kissimmee Village (Good Samaritan), a senior-living complex located near Kissimmee, Florida.
In 2017, Good Samaritan sustained then-unprecedented flood damage from Hurricane Irma that was purportedly exacerbated by a critical failure of the property’s waste-water treatment facility, resulting in contamination of the floodwater with biological toxins. Good Samaritan is accused of failing to implement any significant flood-mitigation measures in the immediate years after Irma.
Plaintiffs, unaware of this history, signed a lease agreement at Good Samaritan in 2021, intending to live out the remainder of their lives at the facility. Their plans changed in 2022 when Hurricane Ian struck the property, inundating Plaintiffs’ unit with toxic floodwater, and destroying most of their possessions. Plaintiffs alleged that Defendants’ failure to make necessary repairs after Irma and to provide adequate warnings to new tenants about the recent history of flooding at Good Samaritan allowed for the destruction of their property.
The parties retained experts to advance their respective theories of the case. Plaintiffs offered the testimony of Richard A. Halquist, an emergency-management specialist who opined that Good Samaritan faced an “extreme” risk of flooding before Hurricane Ian struck the property. Defendants offered the opinions of (1) forensic meteorologist Megan D. Walker, and (2) stormwater engineer David Hamstra. Walker analyzed a litany of official data sources relating to rainfall totals during Hurricanes Irma and Ian and opined that while Irma was a significant storm event, Ian was an exceptionally powerful and rare storm that produced unprecedented quantities of rainfall at Good Samaritan. Hamstra opined that adequate mitigation measures were not timely available to Good Samaritan. Both parties moved to exclude the opposing expert opinions under Daubert and Federal Rules of Evidence 702 and 403.
Flood Expert Witness
Richard A. Halquist is a Certified Floodplain Manager and possesses extensive experience modeling flood risk in Osceola County.
Megan D. Walker, CCM is AMS certified consulting meteorologist and educator with exceptional research and communication skills and diverse experience spanning the disciplines of atmospheric science, forensic and operational meteorology, natural hazard mitigation, and higher education.
David Hamstra, P.E., CFM specializes in the development of stormwater management master plans for public and private projects. Since 1987, he has completed and/or managed over 1,350 projects ranging in scale from designing stormwater management facilities for large-scale residential developments to developing stormwater master plans and Capital Improvement Programs for a great number of cities and counties.
Halquist, relying on his experience as an Osceola County Emergency Operations Manager and his training as a Certified Floodplain Manager, undertook a “comprehensive evaluation of hydrological, topographic, and regulatory factors.” He opined that “an extreme degree of flood risk to the Good Samaritan campus” existed at the time Hurricane Ian struck the property.
Defendants argued that Halquist’s assessment lacked a reliable methodology, that he is unqualified to offer his opinions, and that he offered impermissible legal conclusions.
a. Qualifications
Defendants argued that Halquist is not qualified because his report stated that he evaluated the “hydrological, topographic, and regulatory factors” pertaining to Good Samaritan, but he lacked any degree or specialization in those areas.
Halquist is a Certified Floodplain Manager and possesses extensive experience modeling flood risk in Osceola County. The subject matter of his report—the relative risk of flooding at Good Samaritan—is sufficiently within his expertise. Defendants insist that Halquist has no technical scientific expertise in hydrology and associated fields and thus has no basis to opine as to the likelihood of flooding at Good Samaritan, but that objection does not call into question his qualification to assess flood risk. It is plain from his report that he is not offering a specialized opinion in those fields; instead, his report is firmly grounded in the data sets that he has been shown to be familiar with and his experience in emergency management. Accordingly, the Court rejected Defendants’ argument.
b. Sufficient Facts or Data
Defendants also argued that Halquist’s analysis is not sufficiently granular in that he failed to analyze flood risk caused by a rainfall event as enormous as Hurricane Ian, instead analyzing only a generalized flood risk. But the significance of the quantity of the rainfall brought on by Ian is disputed, and Halquist was not obligated to assume Defendants’ interpretation of the evidence.
Next, Defendants sought to exclude Halquist because his report erroneously cited the NAVD88 vertical datum when the levels from the relevant gauges were actually recorded in a different vertical control datum, NGVD29. Halquist acknowledged the mistake at his deposition but insisted that his analysis of the flooding effects at different gauge heights still holds under NGVD29.
Halquist’s mistake did not require his exclusion under Daubert. It is “error to conflate admissibility with credibility,” and “errors in an expert’s application of a reliable method generally implicate credibility rather than reliability.”
c. Reliable Principles and Methods
Defendants sought to exclude the assessment scoring table in Halquist’s report because it is “untested, unpublished, and not generally accepted” in his field.
Halquist created the scoring table using six of the fourteen factors analyzed in the 2020 Osceola County HIRA for county-wide risks. For his part, Halquist admitted that he has never prepared a flood-risk scoring table in this manner before and he is not aware of any other source that has applied his chosen methodology.
Plaintiffs have not shown that Halquist’s selection of six of the fourteen factors from a holistic assessment designed to assess general risk on a county-wide basis and application of those factors to a specific risk to a specific property is a generally accepted method of appraising risk. This is an instance where an otherwise valid scientific methodology has been misappropriated and contrived to reach a particular result in the guise of an expert opinion.
The factors and scores Halquist selected amount to “personal intuition offered up as professional expertise—untestable, unverifiable, and precisely the sort of expert say-so that Daubert excludes.” Accordingly, the Court excluded the scoring table.
Because Plaintiffs admitted that certain pages of Halquist’s report contain impermissible legal conclusions as to the foreseeability of the flood, those opinions must also be excluded.
d. Unfair Prejudice
Defendants also claimed that allowing Halquist to testify that Good Samaritan faced “extreme” flood risk would be unfairly prejudicial because his opinion improperly conflates an “extreme” risk of even a minor flood with the risk of the unprecedented flooding that occurred in this case.
The Court interpreted this as an argument pursuant to Rule 403 and disagreed.
Defendants also sought to exclude Halquist’s “backwater” and “rebuttal” opinions that were offered for the first time at Halquist’s deposition. In response, Plaintiffs insisted that Halquist was not offering these opinions and was merely responding to questioning. Because Plaintiffs stated that Halquist will not be offering an opinion on these matters, they will be excluded by the Court.
B. Megan D. Walker
Megan Walker was retained to investigate rainfall patterns during Hurricanes Irma and Ian. In her report, she explained that although both storms caused “historically heavy rainfall” in the Orlando area, “Hurricane Ian was a significantly more extreme and rare rainfall event than Hurricane Irma.”
a. Helpfulness to the Trier of Fact
Plaintiffs claimed that Walker’s testimony would not be helpful to the trier of fact because: (1) her opinions are not relevant to the issue of foreseeability of flooding; (2) she ignored other factors relevant to the foreseeability of flooding; and (3) rainfall totals are a matter of public record, rendering her testimony redundant.
Defendants contended that the rainfall totals have a high degree of explanatory power over the ultimate issues in this case. Thus, expert testimony regarding the “climatological context” of rainfall data at Good Samaritan is potentially helpful to the trier of fact in evaluating Defendants’ theory of the case. Defendants are free to argue the inference that the high rainfall totals and rare rainfall recurrence rates described in Walker’s report render the at-issue flooding unforeseeable. That Plaintiffs interpret the significance of the evidence differently is not a valid basis for exclusion under Daubert.
Finally, Plaintiffs’ objection that the Court could simply judicially notice publicly recorded rainfall calculations is unpersuasive. Walker’s report stated that the publicly available rainfall data is inaccurate, and she provided a detailed methodology in which she purported to combine complementary data sets and implements a mean-field bias-correction protocol to improve accuracy. The calculation of rainfall totals and rainfall recurrence intervals using several discrete data sets for each storm is not an exercise in common sense or simple logic that jurors should be expected to perform on their own.
b. Sufficient Facts or Data
Next, Plaintiffs contended that Walker’s report is not based on sufficient facts or data.
Walker relied on data collected by NOAA, the NWS, and the NHC. Her selection of databases is grounded in academic literature and appears to be the kind of data that an expert meteorologist would reasonably rely on. In her report, Walker adequately explained the data sets she used and notified Plaintiffs of all materials that she considered in formulating her opinions.
Plaintiffs argued that Walker improperly relied on “limited rain gauge data, selective radar stations, a case-specific mean-field bias I] correction that she created for this matter, and unexplained presentation of extraordinary rarity estimates.” Plaintiffs pointed out that no rain-gauge stations were located in close proximity to Good Samaritan at the time of Hurricane Irma, and they characterized the available rain-gauge stations during Ian as only “slightly” better.
While Plaintiffs’ critiques might have a certain degree of statistical or epistemic merit, they did not provide a basis for exclusion under Daubert. Walker reviewed meteorological data from multiple sources, compared Good Samaritan’s location to the source of the data, generated a bias-correction procedure based on the data she reviewed, and formed an opinion about the extent of the rainfall that occurred at Good Samaritan. Other courts have not found fault with the sufficiency of data in similar circumstances and have often approved of meteorology experts who survey and synthesize discrete weather databases.
c. Unfair Prejudice
Plaintiffs argued the jury will be unfairly misled by Walker’s testimony because under the guise of rainfall analysis, her report implied that the at-issue flood was unforeseeable. But the Court is not in a position to determine whether the historic nature of the rainfall from Ian was necessary to cause Plaintiffs’ damages or if Plaintiffs would have been similarly damaged during a more typical storm. Accordingly, expert testimony is permissible on the subject of rainfall analysis.
C. David Hamstra
Hamstra assessed the circumstances surrounding the at-issue flood, detailed Good Samaritan’s attempts at obtaining funding to implement mitigation measures following Irma. Having done so, he opined that Good Samaritan, through no fault of its own, could not have secured mitigation that would have prevented the damage in this case.
a. Reliable Principles and Methods
Plaintiffs asserted that Hamstra’s lengthy narration of Good Samaritan’s unsuccessful efforts to procure mitigation funding is simply “a justification of Defendants’ policy choices rather than an independent expert assessment grounded in engineering methodology.”
Through his education, training, and experience, Hamstra has obtained expertise in the specialized process of mitigation grant funding. Moreover, his report details how he is aware through his role with Pegasus of the different mitigation options that were available to Good Samaritan, the mitigation plans that Good Samaritan considered, and the grant funding sources that Good Samaritan sought out. His experience provided an adequate basis for his opinions, and that experience appears to be reliably applied to the facts of this case.
Plaintiffs also sought to exclude Hamstra’s opinion that Hurricane Ian was a 200- to 500-year storm event on the grounds that his opinion is unsupported by reliable engineering principles.
Here, Hamstra properly relied on Walker’s report and supplied his own analysis, including his own study of the property’s topography, rain-gauge flood elevation readings, and historical rainfall data—all of which are within his competency to evaluate as a stormwater engineer.
b. Helpfulness to the Trier of Fact
Plaintiffs also argued that Hamstra’s report would not be helpful to the trier of fact because it merely functions as a self-interested “advocacy piece” for the work that he performed for Good Samaritan in his capacity with Pegasus before this case began.
However, the existence of bias in an expert witness’ testimony is usually a credibility issue for the jury.
c. Impermissible Legal Conclusions
Plaintiffs contended that Hamstra offers impermissible legal conclusions when he opined that “the allegations made by Plaintiffs and their legal counsel are unfounded and without merit”; that Good Samaritan “acted responsibly”; “took reasonable steps”; “appropriately pursued mitigation”; and “fulfilled its responsibilities.”
In opining about the nature of the mitigation process and the possible grant sources Good Samaritan explored, Hamstra’s report embraced the ultimate issue of Good Samaritan’s alleged negligence in this case while remaining within the bounds of permissible expert testimony. However, the Court agreed with Plaintiffs that Hamstra’s report crosses the line when he asserts that Plaintiffs’ claims are meritless and that Good Samaritan acted reasonably and responsibly under the circumstances. Although, as Defendants claim, one can use the terms “reasonable” and “responsible” in a colloquial sense, the terms as used in Hamstra’s report appear tinged with legal meaning and must be excluded. Whether Good Samaritan “acted responsibly,” “took reasonable steps,” “appropriately pursued mitigation,” or “fulfilled its responsibilities” are legal questions for the trier of fact.
Held
The Court granted in part and denied in part Defendants’ Daubert motion and Plaintiffs’ Daubert motion. The Court excluded the following expert testimony:
Halquist’s flood risk scoring chart;
Halquist’s legal conclusions as to the foreseeability of the flood;
Halquist’s “backwater” and “rebuttal” opinions;
Hamstra’s legal conclusions that Plaintiffs claims are “unfounded and without merit”; that Good Samaritan “acted responsibly”; “took reasonable steps”; “appropriately pursued mitigation”; and that it “fulfilled its responsibilities.”
In all other respects, the Court denied the motions.
Key Takeaway
Although expert reports often require rigorous scientific or statistical analysis, Daubert also allows for admitting experts whose methods are less formal, such as when an expert testifies primarily based on experience.
The proponent of the testimony in such a case must explain how that experience led to the conclusion he reached, why that experience was a sufficient basis for the opinion, and just how that experience was reliably applied to the facts of the case.
Plaintiff Toby Pack, a CSX employee, applied for leave under the Family and Medical Leave Act (FMLA) due to chronic kidney stones. Although CSX initially approved Pack’s application, it subsequently charged him with FMLA misuse and terminated him.
Pack sued, alleging that CSX fired him in retaliation for his taking FMLA leave. Pack intended to offer the expert testimony of Beth De Lima, but CSX argued that De Lima’s testimony should be excluded.
Human Resources Expert Witness
Beth B. De Lima has extensive experience in developing and implementing HR programs and policies that relate to federal and state employment legislation. She has been assisting corporate, non-profit, and governmental clients with HR policy development and implementation since 1992.
She has worked closely with clients to establish and maintain compliance with federal and state employment legislation, including the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).
De Lima’s report touches on several topics, including employees’ legal rights under the FMLA and employers’ legal obligations under the FMLA.
A. Relevance
The jury in this case will be asked to determine whether CSX terminated Pack in retaliation for Pack’s use of FMLA leave. CSX argued that De Lima’s opinion is not relevant to that question.
The Court agreed. CSX’s alleged noncompliance with industry standards did not make it any more likely that CSX retaliated against Pack. If CSX had deviated from its own standard procedures in investigating Pack, that might be probative of retaliation.
But CSX having different procedures from other companies did not show that CSX’s explanation for terminating Pack is “unworthy of credence.”
B. Reliability
In her report, De Lima said that the industry standards to which she alludes are “set forth by the Society for Human Resource Management.” But the report never cited specific documents or guidance promulgated by this organization. During her deposition, De Lima confirmed that the standards on which she relied are “written down.” However, when asked which of the sources in her bibliography support her opinions, she was unable to provide an answer. Instead, she asserted that the FMLA itself supports her opinions. When asked which part of the FMLA supports her opinions, she said “it’s not clear.”
In his supplemental briefing, Pack identified five publications from The Society for Human Resources Management which he claims supported De Lima’s opinion. But the supplement never asserted that De Lima actually relied on those publications in forming her opinion and none of the publications are included in De Lima’s bibliography.
Since neither Pack nor De Lima has identified the basis for De Lima’s testimony, they are too unreliable to be admitted under Federal Rule of Evidence 702. Even if De Lima’s opinion were relevant, the Court would exclude it under Rule 702.
Held
The Court granted Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Plaintiff’s expert Beth De Lima.
Key Takeaway
Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.
The trial court’s gatekeeping function requires more than simply taking the expert’s word for it.
Case Details:
Case Caption:
Pack V. CSX Transportation, Inc.
Docket Number:
3:24cv688
Court Name:
United States District Court, West Virginia Southern
On July 30, 2022, Plaintiff Gary Stanhope attended a Luke Bryan concert at the Xfinity Theatre in Hartford, Connecticut with friends. The group stood on the asphalt walkway in the general admission area, between Sections 500 and 600, behind the railing separating the lawn from the reserved seating. At approximately 10:00 P.M., Stanhope was assaulted and sustained serious injuries.
Russell Kolins, Stanhope’s liability expert, opined that Live Nation failed to adequately deploy security, failed to conduct a written risk assessment, and failed to implement adequate security policies and procedures.
Defendant Live Nation Worldwide, Inc. d/b/a Xfinity Theatre filed this motion to preclude the testimony of Kolins due to his alleged lack of qualification as an expert for (1) large concert venue security; (2) the alleged unreliability of Kolins’ analyses; (3) and the claimed lack of “fit” of his opinions to the facts of the case.
Security Expert Witness
Russell David Kolins is a practicing Licensed Private Detective and Security Consultant/Practitioner. He celebrated his 55th year in private practice in August 2024. He is a Board-Certified Criminal Defense Investigator and holds a specialized Bachelor of Science Degree in Security Management. Kolins served three terms as the elected Chairman of the ASIS International Hospitality, Entertainment and Tourism Council.
Kolins possesses years of experience as a security consultant, holds a certification and bachelor’s degree in Security Management, and served as leadership at the ASIS International Hospitality, Entertainment, and Tourism Security Council. He has been admitted to testify as a security expert in other courts and has spoken on premises security and crowd management.
Live Nation argued that Kolins has never managed a 22,000-person venue and thus lacked the necessary qualifications. However, the Court held that Kolins does not need to match the exact subtype of security venue.
B. Kolins’ Methodology is Reliable
Live Nation argued that Kolins’ expert testimony is not based on an identifiable methodology. It asserted that Kolins’ report and depositions reveal no identifiable methodology for his conclusions and that he did not review any history of prior incidents, did not review crime data, did not read witness depositions, or conduct a site visit.
The Court found that Kolins explained how his analysis, methodology, and sources met the standard required for him to testify.
Kolins details his methodology and application to the facts of this case. He utilized authorities such as the American National Standards Institute on Crowd Management and the International Association of Venue Managers. Kolins then details how he took the various factors from the methodology and applied them to the facts at hand. He discussed the foreseeability of crowd density and congestion, as well as alcohol sales. Kolins analyzed the deployment of security personnel and cameras. Kolins also discussed the security planning and protective measures utilized by Live Nation. Finally, he addressed the response of security personnel to crises and incidents. In each section, Kolins references the standards of the security community and analyzes how Live Nation met or did not meet those standards.
C. Kolins’ Opinions Fit the Facts of the Case
Live Nation argued that Kolins’ testimony did not fit the facts of the case. Live Nation asserted that the literature cited is dated, and the opinions are boilerplate or general.
Kolins offered testimony that is important to the issues of negligence. First, he provided an overview of the responsibility of venue managers such as Live Nation and the duties of the facility supervisors regarding security policy and procedures. Additionally, Kolins offered his expert testimony as to the crowd management plans for concert events speaking on the seating arrangement, crowd flow, density of concertgoers, and prior incidents at the concert. Finally, Kolins offered his opinions as to why the security was inadequate including how no security appears to have witnessed the assault itself, the lack of video camera surveillance, and the venue’s responsibility to identify and correct those issues. The Court found that Kolins provided testimony that fits the facts of the case. He described the responsibilities, standards, and alleged failings of Live Nation in connection with the assault on Stanhope.
Held
The court denied Live Nation’s motion to preclude the testimony of Russell Kolins.
Key Takeaway
An expert’s credentials do not need to be unassailable in order for their testimony to be admissible. Federal Rule of Evidence 702 stated that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
This case arises from a fire that occurred on April 13, 2020 at the Nashville home of Ethan and Ashley Colclasure. The Colclasures’ home, at the time, was insured by a policy (“Policy”) issued by Plaintiff Central Mutual Insurance Company (“CMIC”). Pursuant to the terms of the Policy, CMIC paid a substantial sum to the Colclasures to reimburse them for the costs incurred in repairing the damage caused by the fire. CMIC brought this action as subrogee of the Colclasures against Defendants Ferguson Enterprises, LLC, Ferguson U.S. Holdings, Inc., Ferguson-Showroom No. 907, and Ferguson Enterprises, LLC No. 20 (referred to collectively herein, in the singular, as “Ferguson” or “the Defendant”), to recover the sums it paid to its insureds.
Ferguson supplied and installed an outdoor gas grill, the Superior Equipment Solutions d/b/a Artisan Grills Model No. ARTP-36 (the “grill”), in the outdoor patio/lanai area of the house.
In April 2020, Ethan Colclasure used the grill to sear steaks. Basically, there is no dispute that Ethan Colclasure neglected to turn the grill off, causing the fire that led to catastrophic damage to the home.
The Plaintiff identified as retained experts both Jerry R. Carter, a fire scene origin and cause investigator, and Randy M. Grundy, an executive general adjuster and claims management professional and expert in evaluating catastrophic residential property damage claims. Defendants, however, filed a motion to exclude the testimony of Plaintiff’s retained experts.
Fire Investigation Expert Witness
Jerry R. Carter is an International Association of Arson Investigators Certified Fire Investigator, IAAI Evidence Collection Technician, IAAI Certified Instructor, National Fire Protection Association Certified Fire Protection Specialist, National Association of Fire Investigators Certified Fire and Explosion Investigator, and NAFI Certified Fire Investigator Instructor who performs origin and cause investigations of residential, commercial, and industrial properties.
Randy Mark Grundy is a highly experienced Executive General Adjuster and claims management professional with expertise in employee dishonesty, extra expense claims, heavy equipment, commercial property, and inland marine transportation.
Ferguson argued, first, that Carter’s testimony must be excluded because it is neither relevant nor reliable, insofar as his opinions are not based on sufficient facts or data, are not the product of reliable principles and methods, and rely entirely on “anecdotal evidence and improper extrapolation.”
Alternatively, the Defendant contended that Carter’s testimony should be excluded under Rule 37(c), based on the Plaintiff’s failure to comply with Rule 26(a)(2)(B), because the opinions in his expert report are not accompanied by the basis and reasons for each opinion or the facts and data considered in forming each opinion.
Regarding the latter argument, the Court observed that Carter’s expert report was clearly deficient, insofar as it merely pronounced Carter’s conclusions without providing any indication of how he reached them. That failure was harmless, however, because the Defendant deposed Carter at length regarding the bases for his opinions.
Carter’s opinions are that (1) “the Artisan grill and insulated jacket were not installed in accordance with manufacturer’s instructions as the assembly was positioned only 2.5 inches from the combustible wall assembly and is required to be installed 5.75 from combustible components”; (2) “had the grill and jacket assembly been properly installed, with the required 5.75″ clearance to combustible components, the fire would not have occurred”; and (3) “even with the grill operating for more than 20 hours, had it been properly installed, the fire would not have occurred.”
Here, although Carter claimed that he employed the “scientific method” every time he analyzes a fire and that the scientific method requires him to collect data, formulate hypotheses, and test those hypotheses , the record established that he did not test his governing hypothesis.
The Court held that Carter’s opinions amount to no more than unsupported speculation and, as such, are inadmissible.
B. Exclusion of Grundy’s Testimony
Ferguson asserted that the Plaintiff’s disclosure of Grundy as a retained expert did not comply with Rule 26(a) and that the failure is neither harmless nor substantially justified. The Defendant pointed out that, although Grundy was disclosed in the September 19, 2025 disclosure, that disclosure was not accompanied by an expert report, much less an expert report that included all of the items listed in Rule 26(a). In fact, the only document pertaining to Grundy that accompanied the disclosure was his CV.
The Plaintiff had not shown that it complied with Rule 26(a)(2)(B) or that its failure to do so is substantially justified or harmless. This case is now scheduled for trial in less than 90 days. As a result, Ferguson’s motion to exclude the testimony of the Plaintiff’s retained expert, Randy Grundy, was granted by the Court under Rule 37(c), based on the Plaintiff’s complete failure to comply with Rule 26 and failure to show that the failure was harmless or substantially justified.
Held
The Court granted the Defendants’ motion to exclude the testimony of Plaintiff’s retained experts, Jerry R. Carter and Randy M. Grundy.
Key Takeaway
No matter how qualified Carter may be, his subjective belief—supported by nothing more than the grill’s setback requirements and his conjecture that the manufacturer must have done some testing to support those requirements—is not sufficiently reliable to be admitted.
Case Details:
Case Caption:
Central Mutual Insurance Company V. Ferguson Enterprises, LLC
Plaintiffs are current and former AutoZone employees, all of whom held roles as Store Managers between the years 2019 and 2022 and worked under district managers who oversaw operations in Montana.
Due to AutoZone’s demographic structure, the collective currently includes Plaintiffs that work in AutoZone stores outside of Montana. Plaintiffs alleged that AutoZone willfully misclassified them as overtime-exempt, denying them overtime compensation for hours of work in excess of forty hours per week, in violation of the Fair Labor Standards Act.
Liesl Mae Fox 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.
Ramona Powell is a nationally certified Senior Professional in Human Resources. With a proven track record as an expert witness, Powell provided professional opinions and testimony in a wide range of employment-related matters.
A. Defendants’ motion to exclude expert Dr. Liesl Fox
Defendants sought to exclude Plaintiffs’ expert, Dr. Liesl Fox, from serving as an expert witness in this case. It appeared that Fox relied on data provided by Plaintiffs’ counsel to determine the average hours worked by each Plaintiff. According to Defendants, this data conflicts with the testimony of the individual Plaintiffs, rendering Fox’s opinions unreliable.
The Court was inclined to grant Defendants’ motion to exclude the testimony of expert Dr. Liesl Fox. The calculations of the remaining Plaintiffs’ average hours worked “constitute basic math that a jury can compute without the opinion of an expert.” Notwithstanding the foregoing, the Court reserves ruling on the motion at this time.
B. Defendants’ motion to exclude expert Ramona Powell
Next, Defendants requested that the Court exclude Ramona Powell pursuant to Rule 702 “because her report is unreliable, her testimony improperly invades the province of the jury by making legal conclusions, and allowing her testimony under such circumstances would confuse the jury and be unfairly prejudicial to AutoZone.” The Court reserves ruling on the motion at this time.
However, to the extent Powell offered opinions on the ultimate issue in this case—whether Defendants properly classified Plaintiffs as exempt from FLSA’s overtime requirements—such opinions will be excluded. These opinions invaded the province of the Court and/or the jury.
Held
The Court reserved ruling on both motions to exclude the testimony of Dr. Liesl Fox and Ramona Powell.
Key Takeaway
The Court must determine whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, and whether the opinion will help the trier of fact.
Plaintiff-Appellant Makina Ve Kimya Endustrisi A.S. (“MKE”) appeals from a judgment of the United States District Court for the Southern District of New York arising from MKE’s suit against Defendants-Appellees for their unauthorized use of MKE’s wordmark and logo in connection with soliciting customers to purchase MKE ammunition.
Pamela M. O’Neill has spent more than 30 years as a valuation professional and has directed more than 900 valuation assignments. Early in her career, she was called to testify before the New York Stock Exchange Arbitration Panel and was cited by the Panel as “an excellent expert witness”.
Her international valuation career has included significant assignments in North America, South America, Europe, Asia, the Middle East, Australia, and New Zealand. She has prepared expert reports for litigation purposes as well as for financial and tax reporting, dispute resolution, investigations, antitrust matters, negotiations, acquisitions, divestitures, reorganizations, solvency and bankruptcy.
To determine reasonable royalty damages, O’Neill calculated a royalty rate based on the royalty rates from six licensing agreements that she asserted were comparable to the license, and which would have resulted from a hypothetical negotiation between MKE and Defendants-Appellees for the “MKE” wordmark and logo when the infringement began. In doing so, however, O’Neill considered only the fact that the six licensing agreements concerned the same broad industry (“ammunition”) without accounting for any differences in the type of intellectual property, product, or royalty payment structure at issue. The District Court did not manifestly err in excluding the testimony on the ground that her royalty rate calculation was based on insufficient facts and data and that there was “simply too great an analytical gap between the data and the opinion proffered.”
O’Neill determined corrective advertising damages by calculating MKE’s combined spending on “Marketing, Sales, & Distribution” as a percentage of revenue for each year between 2013 and 2021, and applying the differential percentage spent in 2022 to the revenue MKE generated in 2022.
But this calculation provided O’Neill only with the total dollar amount MKE spent on all of marketing, sales, and distribution in 2022 over what it had spent historically, not how much of that spending constituted corrective advertising in response to Defendants-Appellees’ infringement. It was not error for the District Court to find that O’Neill’s conclusion lacked a sufficient factual foundation.
The Second Circuit found that the District Court properly excluded expert testimony that lacked sufficient factual foundation, as O’Neill’s reasonable royalty calculation failed to account for key differences between licensing agreements and her corrective advertising calculation was too speculative.
Held
The Second Circuit affirmed the District Court’s judgment in all respects, including the exclusion of O’Neill’s testimony.
Key Takeaway
A decision to exclude is not an abuse of discretion unless it is manifestly erroneous.
Case Details:
Case Caption:
Makina Ve Kimya Endustrisi A.S. v. A.S.A.P. Logistics LTD
Docket Number:
25-1807
Court Name:
United States Court of Appeals for the Second Circuit
