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  • Civil Rights Expert Witness’ Opinions About Defendant’s Conduct Limited

    Civil Rights Expert Witness’ Opinions About Defendant’s Conduct Limited

    Plaintiff, Erika Pogorzelska filed this action in August 2019. She alleged in her remaining claims that VanderCook, a school she attended, violated Title IX of the Education Amendments of 1972 (“Title IX”) and the Illinois Civil Rights Remedies Restoration Act by its deliberate indifference to her allegations that she was sexually assaulted and battered by a classmate, former Defendant Eric Ballenger, and subsequently harassed.

    Defendant retained Saundra Schuster to testify as an expert on industry standards for Title IX compliance, investigations, and responses.

    Plaintiff sought an order barring Schuster from offering the following five opinions that are contained in her Amended Confidential Expert Report: (a) Schuster “cannot see any basis in the record to conclude that [Defendant’s] actions were clearly unreasonable or exposed [Plaintiff] to an ongoing hostile environment on the basis of sex.” (b) “Rather than being discriminated against, it appears from the record that [Plaintiff] was exceptionally well-accommodated and cared for by [Defendant] in ways that met or exceeded industry standards for supportive measures.” (c) Defendant “responded promptly and equitably to allegations of sexual assault made by” Plaintiff. (d) Defendant “responded promptly and diligently to [Plaintiff’s] complaints of violations of the No Contact Directive.” (e) Defendant’s “decision on the evidence was reasonable.”

    Plaintiff maintained that Schuster’s opinions about Defendant’s conduct should be barred because they consisted of legal conclusions equivalent to testimony that Defendant acted in compliance with Title IX and they impermissibly tell the jury how to decide the issues.

    Civil Rights Expert Witness

    Saunie Schuster is a recognized expert in preventive and civil rights law for education, notably in the fields of harassment, discrimination and sexual misconduct and violence, ADA and disability issues and the First Amendment, Schuster has extensive experience and expertise in, and routinely advises clients on, the First Amendment and campus access issues; risk management and liability; behavior intervention and threat assessment; student discipline and campus conduct; intellectual property and employment issues. 

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

    Discussion by the Court

    It should be noted that Plaintiff previously moved to exclude Schuster’s opinions in their entirety under Federal Rule of Evidence 702 and Daubert
    v. Merrell Dow Pharmaceuticals, Inc    ., 509 U.S. 579 (1993)    .

    Although Plaintiff previously objected to most of the opinions she now seeks to exclude, she challenged Schuster’s testimony only generally as consisting of improper legal conclusions and did not raise that ground in relation to the specific statements now at issue.

    The Court excluded Schuster’s testimony with respect to a certain section of her amended report but declined to preclude her from testifying entirely.

    The parties remained free to raise appropriate objections to specific aspects of expert testimony and proceeded to address in turn the five statements identified by Plaintiff.

    The Court held that Schuster’s opinions that there is no basis to conclude that Defendant acted unreasonably or exposed Plaintiff to a hostile environment are obvious conclusions of law inappropriate for expert testimony. It also permitted Schuster to testify that Plaintiff was “exceptionally well-accommodated and cared for,” as long as that opinion is tied to industry standards. But the first portion of the statement (“rather than being discriminated against”) is a legal conclusion that Plaintiff was not discriminated against and is therefore inadmissible.

    The Court held that Plaintiff’s motions in limine are denied as to testimony that Defendant responded “promptly” and “diligently.” It, however, added that Schuster, may not testify that Defendant responded “equitably.”

    When Schuster expressed two points: one, that Defendant’s decision was “reasonable,” and two, that it comported with industry standards, the Court permitted Schuster to testify as to the latter point, but not the former.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion in limine to bar the testimony of Defendant’s expert, Saundra Schuster.

    Key Takeaway:

    The Court allowed Schuster to provide testimony as to whether Defendant’s responses and investigation comported with industry standards and practice on Title IX responses and investigations but not as to whether Defendant violated Title IX or whether Plaintiff has proven the elements of a Title IX claim, including whether Defendant acted unreasonably.

    Case Details:

    Case Caption: Pogorzelska V. Vandercook College Of Music
    Docket Number: 1:19cv5683
    Court: United States District Court, Illinois Northern
    Order Date: June 26, 2024
  • Testimony of Plant Genetics Expert Witness Based on his own Academic Research Admitted

    Testimony of Plant Genetics Expert Witness Based on his own Academic Research Admitted

    A district judge in Arizona decided against excluding the testimony of a plant geneticist considering his specialized technical expertise in wheat genetics and breeding.

    Plaintiff, Calyxt Inc. is an agricultural company specializing in gene-editing technology for crops like wheat and soybeans. In October 2019, Calyxt planted a genetically engineered high fiber wheat (“HFW”) product in two different fields in Yuma, Arizona (“Field One” and “Field Two,” respectively). Calyxt claims that in 2019, pesticides sprayed aerially on nearby fields drifted onto Calyxt’s two respective fields and destroyed parts of the HFW crops in each field.

    Plaintiff alleged two incidents of pesticide drift (collectively, “the Yuma Incident”), one incident affecting Field One and the other affecting Field Two. Field One and Field Two are miles apart. The aerial application near Field One occurred six days prior to the aerial application near Field Two. Moreover, the incidents involve two separate sets of Defendants. The Field One incident involved Amigo Farms, Inc. (“Amigo”), Morris AG Air Southwest (“Morris”), and Jeffrey Nigh, all of whom are no longer parties to this suit. The remaining Defendants—D’Arrigo, Tri-Rotor, Consaul, and Luke—are all allegedly involved with the pesticide drift onto Field Two.

    Field Two Defendants’ filed motions to exclude two of Plaintiff’s expert witnesses, Michael J. Giroux and William W. Wilson.

    Plant Genetics Expert Witness

    Dr. Michael J. Giroux is a plant geneticist and breeder and has a Ph.D. in plant molecular and cellular biology. Currently, he is a professor and department head of the Plant Sciences and Plant Pathology Department at Montana State University. 

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

    Agriculture Expert Witness

    Dr. William W. Wilson, Ph.D. is a Professor at North Dakota State University in Agribusiness and Applied Economics with periodic sabbaticals at Stanford University. Moreover, he received his PhD in Agricultural Economics from the University of Manitoba in 1980.

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

    Discussion by the Court

    Field Two Defendants’ Motion to Exclude Dr. Michael J. Giroux

    Giroux has specialized technical expertise in wheat genetics and breeding

    To begin with, Calyxt retained Giroux to opine on the reasonableness of Calyxt’s actions in developing its HFW product, both before and after it suffered damage from the alleged 2019 drift, and on the agronomic importance of Calyxt’s HFW project.

    Field Two Defendants challenged four parts of Giroux’s opinion: (1) that Calyxt’s HFW product is “valuable” and “innovative;” (2) that the Yuma Incident killed Calyxt’s most desirable wheat lines; (3) that Calyxt’s HFW development plan post-Yuma Incident was reasonable; and (4) that Calyxt followed industry standards in developing its HFW product. Field Two Defendants did not challenge the reliability of Giroux’s methods or his application of such methods. Rather, they contended that Giroux is not qualified to opine on the value of Calyxt’s HFW and that Giroux’s remaining opinions are based on insufficient facts and data.

    There is no dispute that Giroux has specialized technical expertise in wheat genetics and breeding. However, Field Two Defendants asserted that because Giroux is not an economist, he cannot testify about the “value” of Calyxt’s HFW.

    The Court held that Giroux’s opinion on Calyxt’s product is based on his own knowledge, experience, and research in plant genetics and breeding and not, as Field Two Defendants contend, some unfounded understanding of the economy. Giroux noted that starch-based foods with increased resistant starch are associated with a variety of health benefits.

    Giroux reviewed case pleadings and discovery materials

    Also, Giroux reviewed case pleadings and discovery materials submitted by each party, including written discovery responses, deposition testimony, exhibits, and documents produced in the case. Moreover, these materials detailed, among other things, Calyxt’s HFW genetic selection and breeding process (including the specific gene-edits Calyxt used); Calyxt’s planting strategy (such as what seed lines were planted, how much was planted, and where the lines were planted); the testing and analysis of Calyxt’s HFW; and the phased design of Calyxt’s commercialization plan. Giroux also relied on his own as well as outside academic research and studies to support his findings. 

    To conclude, the Court found that Giroux’s opinion was based on sufficient facts and data.

    Field Two Defendants argued that Giroux’s opinion on the value of Calyxt’s product was based on a speculative assumption that consumers want to eat higher dietary foods. The Court held that Giroux’s report sufficiently supported such an assumption with research and data.

    Moreover, Field Two Defendants argued that Giroux did not examine breeding techniques that Calyxt’s competitors use; and that Giroux did not review certain documents related to Calyxt’s development plan post-Yuma Incident. Still, Field Two Defendants failed to persuade the Court that these points demonstrated that Giroux’s opinions were baseless.

    Field Two Defendants’ Motion to Exclude Dr. William W. Wilson

    Field Two Defendants did not challenge Wilson’s qualifications or credentials. Nor did they challenge his general methodology for calculating damages—using an empirical model to derive the estimated damages using standard net present value analysis.

    Rather, Field Two Defendants challenged five assumptions that Wilson made in computing the estimated damages: (1) that the Yuma Incident was the sole cause of the one-year delay in Calyxt’s commercialization of its HFW; (2) that HFW will comprise 45% of the domestic wheat market by 2028; (3) that 2022 is the appropriate start date for the logistics market adoption curve model; (4) that Calyxt’s HFW product would capture one-third of the HFW market share; and (5) the royalty fee for Calyxt’s HFW product.

    To begin with, Field Two Defendants’ asserted that Wilson failed to consider other potential setbacks that could have caused the one-year delay in commercialization and this failure was fatal to the reliability of Wilson’s opinion. Whether other potential setbacks could have caused the one-year delay is an issue related to causation. The Court held that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages.

    As to the remaining four assumptions that Field Two Defendants challenged, the Court held that any criticisms go to the weight of Wilson’s opinion, not the admissibility. To conclude, although other assumptions could have been made, this does not render Wilson’s opinion so fundamentally flawed that it could be of no assistance to the jury on the issue of damages. 

    Held

    To sum it up, the Court denied the Field Two Defendants’ motions to exclude Michael Giroux and William Wilson.

    Key Takeaways:

    • First, as a plant geneticist, the Court held that Giroux was qualified to opine about the import of developing higher-fiber wheat crops. Contrary to Field Two Defendants’ assertion, Giroux need not be a trained economist to be sufficiently qualified to understand and opine about the wheat industry and to conclude that higher-fiber foods are valuable products.
    • Second, the Court also found that Wilson was not retained to opine on causation; his opinion was limited to providing an approximate estimation of damages because it is perfectly permissible for an expert to assume liability (of which causation is an element) and simply focus on the issue of damages.

    Case Details:

    Case Caption: Calyxt Incorporated V. Morris Ag Air & Sons Incorporated Et Al
    Docket Number: 2:20cv1221
    Court: United States District Court, Arizona
    Order Date: May 23, 2024
  • Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    Testimony of Industrial Hygiene Expert Witness Admitted Despite her Alleged Lack of Firsthand Knowledge

    A district judge in California admitted the testimony of an industrial hygienist despite the legitimacy of her method being attacked.

    Plaintiffs, former employees of Defendant, Bay Area Rapid Transit District (“BART”) brought First Amendment, Title VII, and FEHA claims against BART after losing their jobs due to their refusal to comply with BART’s COVID-19 vaccine mandate. 

    BART disclosed, inter alia, the expert report of Nancy McClellan, an industrial hygienist. The McClellan report concluded, based on the above, that “BART worksites were moderate to high in their COVID-19 transmission risk, warranting a vaccine mandate [and the expectation of] 100% compliance,” and that “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct according to the classic hierarchy of controls.”

    Plaintiffs filed a Daubert motion seeking to exclude, or in the alternative limit, the testimony of McClellan.

    Industrial Hygiene Expert Witness

    Nancy McClellan holds a B.S. in Medical Technology from Michigan State University and a Master of Public Health with a focus on Industrial Hygiene from the University of Michigan. She has worked as an industrial hygienist for some 25 years and is certified by the American Board of Industrial Hygiene. She has served as the Chair of the American Industrial Hygiene Association, among other professional organizations, and currently serves on its Executive Board of Directors. McClellan has worked as an industrial hygiene consultant or testifying expert in several industries, including car manufacturing, pharmaceuticals, ordinance storage and testing, agriculture, and others. Expert McClellan has also worked on COVID-19. She provided guidance on controls for COVID-19 transmission in airports and other facilities, as well as the efficacy of air filtration systems on airplanes. 

    Discover more cases with Nancy McClellan as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    The Court held that the McClellan report was relevant to issues central to BART’s burden under both Title VII and FEHA. To meet its burden under Title VII, BART must show that accommodating unvaccinated employees would have imposed an undue hardship on BART.

    The McClellan report ultimately concluded that engineering controls, such as vaccination, constituted the best feasible controls during the pandemic and that, in light of her worksite risk assessment, “BART’s interpretation of the feasibility of the less effective administrative and PPE controls as secondary to vaccination was correct.”

    The Court also held the contents of both the McClellan report and the sources cited therein suggest that the methods underpinning McClellan’s analysis — namely the hierarchy of controls and worksite risk assessment — are common to the field of industrial hygiene. In other words, McClellan’s testimony was based on sufficient facts and data.

    McClellan is not an Expert in a Cognizable Field

    When Plaintiffs argued that McClellan is not an expert in a cognizable field: she is, instead, an “all-purpose expert” “market[ed] . . . in many divergent areas loosely categorized as industrial health,” the Court held that Plaintiffs’ characterization of McClellan’s experience omitted key details. McClellan had significant prior experience with COVID-19 and in any event, Plaintiffs’ assertion that industrial hygienists are so finely specialized as to require a “transit industrial hygienist” as opposed to an “ordinance testing industrial hygienist” was unsupported.

    The Legitimacy of McClellan’s Method was Questioned

    Plaintiffs attacked the legitimacy of McClellan’s method: ” McClellan claims that . . . the hierarchy of controls, is the same regardless of whether pickles are being made, bombs are being blown up, automotive parts [are] being made or pharmaceuticals [are] being manufactured. . . . This proves too much.”

    The Court held that the hierarchy of controls is “an ingrained part of OSHA’s regulatory framework” for air contaminants in the workplace, and has been codified in Title 29’s Occupational Safety and Health Standards. Henceforth, McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” is supported.

    McClellan Lacked Firsthand Knowledge

    Plaintiffs advanced a number of arguments attacking McClellan’s “lack of firsthand knowledge.” The Court held that an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Moreover, Plaintiffs’ suggestion that McClellan should have contacted each Individual Plaintiff prior to preparing her report cuts against the norms of expert practice.

    Held

    The Court denied Plaintiffs’ motion to exclude Defendant’s expert Nancy McClellan.

    Key Takeaway:

    When Plaintiffs contended that McClellan lacked expertise in COVID-19, vaccines, or transit agencies, the Court held that there is no requirement that an expert be a specialist in a given field.

    Also, the Court deemed McClellan’s assertion that the hierarchy of controls is “the fundamental principle for how [industrial hygienists] go about any biological chemical or physical exposure [and] how to address it” fully supported. According to the Court, Plaintiffs have identified various grounds for “vigorous cross-examination,” not exclusion.

    Case Details:

    Case Caption: Chavez Et Al V. San Francisco Bay Area Rapid Transit District
    Docket Number: 3:22cv6119
    Court: United States District Court, California Northern
    Order Date: June 21, 2024
  • Court refuses to exclude expert testimony on the application of local zoning regulations

    Court refuses to exclude expert testimony on the application of local zoning regulations

    In 2014, Plaintiffs asked Defendant to rezone a parcel of land from Agricultural (“AG-2”) to Community Facilities Planned Development (“CFPD”). They needed the rezoning to build a 72-bed residential substance abuse treatment center and detoxification facility. Plaintiffs were initially successful. Defendant’s staff and hearing examiner recommended rezoning because the facility was compatible with the surrounding area’s mixed-use character. But the success was short-lived.

    The Lee County Board of Commissioners unanimously voted against the rezoning at a public hearing on August 5, 2015.

    Plaintiffs disputed why their application failed. According to them, the Board rejected the rezoning because of community opposition to the facility. 

    Plaintiffs pursued multiple avenues to get the zoning approval. On August 1, 2019, they filed this Americans with Disabilities Act (“ADA”) suit seeking monetary damages, declaratory relief, and injunction relief. Plaintiffs have alleged that Defendant (1) intentionally discriminated against them and their proposed patients when it denied the rezoning application, and (2) did not provide a reasonable accommodation.

    Defendant, Lee County, pursuant to Federal Rule of Evidence 702 (“Rule 702”), sought to exclude the improper expert opinions of Plaintiffs’ designated expert witnesses, Veronica Martin (“Martin”) and Mary Magno Mouracade, M.D. (“Mouracade”).

    Project Management Expert Witness

    Veronica Martin is a Senior Planner/Project Manager with 17 years’ experience at TDM Consulting, a civil engineering and planning firm. She has testified as an expert on planning matters more than 40 times.

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

    Internal Medicine Expert Witness

    Mary Magno Mouracade is a medical doctor and is board certified in internal medicine, nephrology, and integrated medicine, and is board-eligible for certification in addiction medicine.

    She is the Chief Medical Officer for Kimberly Regenesis in Ft. Myers, Florida.

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

    Discussion by the Court

    First, Defendant maintained that neither Martin nor Mouracade had any specialized knowledge to help the Court understand the evidence or determine a fact. Second, Defendant claimed that Martin will usurp the Court’s role by stating legal conclusions on reasonable accommodations and the application of local zoning regulations. Third, both expert opinions are based on flawed methods and are not based on facts or data.

    The Eleventh Circuit has recognized that the barriers to opinion testimony are more relaxed in a bench trial where the judge is serving as factfinder and the Court is not concerned about “dumping a barrage of questionable scientific evidence on a jury.” The Court held that Defendant’s concerns about Plaintiffs’ experts are more appropriately discussed at trial when all the facts can be considered.

    If any shortcomings about an expert’s qualifications arise, or part of any expert’s testimony seems unhelpful or unreliable, Defendant may present its arguments through “vigorous cross examination and the presentation of contrary evidence.”

    Held

    The Court denied Defendant’s motion in limine to exclude the testimony of Plaintiff’s designated expert witnesses, Veronica Martin and Mary Magno Mouracade.

    Key Takeaway:

    The Court, sitting as trier of fact, is in the best position to distinguish between persuasive and insufficient expert evidence at trial.

    In Gibbs V. Gibbs, 210 F.3d 491 (5th Cir. 2000), it was held that most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury.

    Case Details:

    Case Caption: Kimberly Regenesis, Llc, Et Al V. Lee County, A Florida Political Subdivision
    Docket Number: 2:19cv538
    Court: United States District Court, Florida Middle
    Order Date: June 24, 2024
  • Retirement Plan Expert Witness’ Recordkeeping Fees Calculation Rejected

    Retirement Plan Expert Witness’ Recordkeeping Fees Calculation Rejected

    A district judge in Pennsylvania refused to admit the Retirement Plan Expert’s opinions on “excessive” recordkeeping fees being charged.

    Plaintiff, John McCauley accused PNC Financial Services Group and a Committee appointed to oversee the administration of PNC’s 401(k) Plan of breaching their fiduciary duties under ERISA by allowing the Plan to pay “excessive” fees to the Plan’s recordkeeper, Alight.

    McCauley sought to introduce Ty Minnich as an expert witness who would provide opinions on the following topics: (1) whether Alight charged excessive recordkeeping and administrative fees; (2) what the reasonable market rate for the Plan’s services would be; and (3) the amount of Plaintiffs’ damages. 

    PNC sought to exclude Minnich’s expert testimony, arguing that it was not reliable because his opinion was based solely on his experience “without [using] any reproduceable or traceable process.” 

    Retirement Plan Expert Witness

    Ty Minnich has 30 years of experience as a financial services professional, during which he specialized in 401(k) and 403(b) retirement plans and the applicable fiduciary duties. For the past 15 years, he has been responsible for overseeing and conducting requests for proposals (“RFPs”) and pricing processes in the industry.

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

    Discussion by the Court

    Minnich’s Opinion on the Reasonable Market Rate

    Minnich asserted that he based his expert opinion on his industry experience and three pertinent factors: participant count, the services provided, and any ancillary revenue.  He maintained that the first factor was the most important, explaining that “[w]hen the number of participants increase, the necessary recordkeeping fees would exponentially decline.” 

    He further noted that in his industry experience, recordkeepers often create a pricing curve based on participant count and per person fees to determine the reasonable market rate. Minnich, however, did not create a pricing curve in this case.

    He opined that the Plan received no services out of the ordinary that would have contributed to an increased price. Minnich also explained that an affiliate of the Plan’s recordkeeper received over $2.2 million in direct compensation in 2020. 

     He noted that this additional revenue stream meant that the recordkeeper “would likely have provided [] services to the Plan for substantially less throughout the Class Period had the Plan fiduciaries negotiated to achieve the reasonable market rate.”

    Minnich, however, did not explain whether the recordkeeper received additional revenue in years other than 2020, and by how much exactly this compensation would have decreased the per person fees paid. 

    The Court held that Minnich’s opinions were based on his subjective belief and experience and, therefore, he has not demonstrated that it is more likely than not that his testimony is the product of reliable principles and methods. For instance, Minnich did not create a pricing curve—despite indicating this is the industry norm—nor could he point to any other reliable methodology or scientific procedure he used to calculate his reasonable fees. 

    Minnich’s Opinion that PNC could have negotiated lower recordkeeping fees

    Minnich’s Report also pointed to four other retirement plans that he believed were comparable to the Plan and demonstrated that PNC “could have negotiated far lower recordkeeping fees.” 

    The Court found, however, that these four comparator plans did not salvage the reliability of Minnich’s opinion.

    Minnich’s Opinion as to the Amount of Damages

    Minnich further opined that, based on his reasonable fee calculations, the amount of damages in this case was $25,122,422. But because Minnich’s reasonable fee calculation was based on an unreliable methodology, the Court found that his opinion as to the amount of damages was also unreliable and should be excluded.

    In addition to the motion to exclude Minnich’s testimony, PNC also filed a motion for summary judgment on McCauley’s claims. The Court also granted PNC’s motion for summary judgment.

    Held

    The Court denied the motion for summary judgment and motion to exclude the testimony of Ty Minnich, entering the final judgment in favor of PNC Financial Services Group, Inc.

    Key Takeaway:

    Minnich not only failed to identify a reliable methodology or process he used to calculate the reasonable market fee, he also chose his comparator plans with fees that supported his calculation. The Court found that Minnich’s comparator plans did not support the reliability of his methodology.

    Case Details:

    Case Caption: John Mccauley V. PNC Financial Services Group, Inc. Et Al
    Docket Number: 2:20cv1493
    Court: United States District Court for the Western District of Pennsylvania
    Order Date: June 21, 2024
  • Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Appliances Expert Witness’ Testimony Fails to Establish the Manufacturing Defect Claim

    Roger and Reuki Schutt (the “Schutts”) are the owners of a house located at Canton, Massachusetts. On April 24, 2019, the house sustained water damage resulting in the payment of insurance benefits by Safety to the Schutts. The water damage was determined to have originated from a leak in a water filter system manufactured and sold by EcoWater under the tradename Northstar.

    On October 23, 2019, the filter system was examined at a joint inspection by experts for both EcoWater and Safety. The sump was observed to have a “throughwall crack extending the entire length of the housing,” as well as “additional cracks.” EcoWater did not use annealing in the production process for its clear sumps. Post-mold annealing is the process of cooling a mold-injected polymer after manufacture.

    On April 4, 2022, Plaintiff Safety Insurance Company (“Safety”) filed suit in Massachusetts Superior Court against Defendant EcoWater Systems, LLC (“EcoWater”), asserting its right of subrogation arising from water damage to the property of Roger and Reuki Schutt. 

     Safety disclosed two experts in support of its case: (1) “appliance failure inspector” expert Thomas Zarek and (2) materials science expert Timothy Kenney. 

    Zarek opined that the product failed prematurely at the loss location and caused the water damage while Kenney concluded that it was common practice to post-mold anneal these thick wall parts to reduce these residual stresses and improve the performance of the part.

    EcoWater filed motions in limine to exclude the opinions and testimony of Thomas Zarek and Timothy Kenney under Rule 702.

    Appliances Expert Witness

    Thomas Zarek has been employed as an appliance failure inspector since 1997. Regarding his areas of expertise, Zarek holds himself out as a warnings expert, a certified fire and explosion investigator, a certified vehicle fire investigator, and a licensed oil heating inspector and installer. Also, he has taken “a number of courses on appliance failure analysis and on HVAC systems installation,” covering a variety of appliances and materials, including polymers and metals.

    Discover more cases with Thomas Zarek as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Materials Science Expert Witness

    Timothy Kenney’s qualifications and experience include a degree in geology, undergraduate engineering courses in materials science, graduate courses in metallurgy, ceramics, and selection of steels, and various publications. Besides, he serves as the Laboratory Director of New Hampshire Materials Laboratory.

    NHML provides consulting and technical services in chemical, materials, mechanical design, and industrial processing.

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

    Discussion by the Court

    Thomas Zarek

    To begin with, Safety’s complaint claimed negligence and breach of warranty based solely on defective manufacture of the filter system. Therefore, the Court held that Zarek’s opinions as they relate to other theories of negligence, such as failure to reasonably warn or defective design, are irrelevant since any expert testimony must therefore be limited to establishing the manufacturing defect claim.

    Zarek testified that his conclusions regarding the filter system’s allegedly premature failure are based, at least in part, on his review of EcoWater’s Test ID 4499, which tested canisters similar to the subject sump through a cycle test and hydrostatic test. Yet, the Court found that Zarek himself admitted that he has never performed a cycle test himself for any kind of product and that he does not know what cycle testing is intended to evaluate. As for the hydrostatic testing, Zarek likewise testified that he has never conducted a hydrostatic test on a polymer product or on the styrene acrylonitrile (“SAN”) material used in the subject product, and that the purpose of a hydrostatic test is not to test to failure.

    The Court held that Zarek’s lack of relevant experience and knowledge pertaining to the claims alleged makes clear that he is not qualified to offer expert testimony here.

    Second, the Court held that Zarek’s opinions reflected little to no expert analysis or review done by Zarek. Several of his proffered opinions merely repeated Kenney’s conclusions, without adding anything more. He stated that he personally did no analysis of the data from the testing performed by Kenney.

    Timothy Kenney

    In opining that post-mold annealing is a “general industry practice,” Kenney exclusively relied on the ASM International Volume 2 of the Engineered Materials Handbook. The Court held that Kenney himself undermined the relevance of this guidance where he testified that there is a difference between thick-section and heavy wall parts, that the subject sump is a thick-section part, and that the ASM handbook only recommends post-mold annealing for heavy-wall parts and not thick-section parts.

    Also, he conceded that he did not conduct any testing to evaluate the effects of post-mold annealing on the product and whether such annealing would have alleviated residual stress, nor has he seen any studies or test reports to that effect.

    Moreover, EcoWater also filed a motion for summary judgment seeking to dismiss the case entirely. The Court held that where Safety has no expert support for its claims—which, again, arise exclusively from allegations of negligent manufacture—Safety’s claims cannot survive summary judgment.

    Held

    To sum it up, the Court granted EcoWater’s motions in limine to exclude Plaintiff’s experts, Thomas Zarek and Timothy Kenney as well as his motion for summary judgment.

    Key Takeaway:

    In conclusion, the Court held that many of Zarek’s opinions reflected little to no expert analysis or review done by Zarek. While Zarek’s opinions were irrelevant to Safety’s claims regarding negligent manufacture of the filter system, Kenney had no basis to opine as to whether post-mold annealing would have prevented the subject product from failing here, after fourteen years of use.

    Case Details:

    Case Caption: Safety Insurance Company Et Al V. Ecowater Systems, Llc
    Docket Number: 1:22cv10887
    Court: United States District Court, Massachusetts
    Order Date: May 17, 2024
  • Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    Medical Expert Witnesses’ Testimony about Plaintiff’s Damages and Personal Injuries Limited

    This lawsuit arises from a minor automobile accident that occurred at approximately 1:30 p.m. on October 9, 2020, in Española, New Mexico. Plaintiff Charles Hartung (“Plaintiff”) was a passenger in a four-door GMC pickup operated by his friend Ralph Andrew, Sr. Plaintiff.

    Gommert, a salesman employed by McLane, entered the road from an adjacent gas station and did not see the pickup as it approached. The front end of Gommert’s company car collided with the rear wheel on the passenger side of the pickup.

    Plaintiff disclosed Brian M. Shelley, M.D., and Mark K. Crawford, M.D. (collectively, the “Retained Experts”), as unified, retained experts. They testified that “the treatment [Plaintiff] received was reasonable, necessary, and appropriate; and that [Plaintiff’s] current conditions related to the motor vehicle collision are closed head injury and cognitive difficulties (by report), right shoulder pain and motion deficits, low back pain with right lower extremity radiation (aggravated), SI joint injury, headaches, anxiety (aggravated) and depression (aggravated).”

    In response, Defendants argued that the Court should exclude testimony from these experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), because some facts supporting their opinions are undermined by medical records which the experts did not review before rendering their opinions.

    Family Medicine Expert Witness

    Brian M. Shelley MD is board-certified in family medicine and serves as an Attending Physician at the University of New Mexico Pain Consultation and Treatment Center. Additionally, at UNM, Dr. Shelley is Professor of Family and Community Medicine and trains medical residents in chronic pain management. Moreover, Dr. Shelley has published several peer-reviewed articles about innovative approaches to chronic pain education and co-created the Advanced Diplomate credential for the American Academy of Pain Management. Also, Dr. Shelley is the Director of Albuquerque Independent Medical Services LLC and is currently certified by the American Board of Independent Medical Examiners.

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

    Orthopedic Surgery Expert Witness

    Mark K. Crawford MD is a retired Fellowship Trained Orthopedic Spine Surgeon. He previously worked at UNM, Optum Health, and New Mexico Orthopaedics in Albuquerque, NM. Moreover, he is certified by the American Board of Independent Medical Examiners and has also served on many IME panels.

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

    Discussion by the Court

    To begin with, among the expert testimony Defendants sought to exclude is testimony related to closed head injuries and cognitive difficulties. In his response brief, Plaintiff represented that his experts are not offering any opinions related to a head injury or cognitive difficulties. Thus, Defendants’ motion to exclude expert testimony related to head injury or cognitive difficulties is granted.

    Experts were not furnished with all Plaintiff’s pre-accident medical records and imaging studies

    Below is a summary of the inaccuracies Defendants contend exist in the expert reports, along with Plaintiff’s responses:

    • First, Defendants noted that Plaintiff told the experts he takes ibuprofen for pain and that his wife would not let him take opioid medications, and Plaintiff said he was nervous about them as well. Yet, during his deposition, Plaintiff testified under oath that he was a chronic user of hydrocodone. Plaintiff responded that he was prescribed opioid pain medications in the past. At the time of the IME, however, Plaintiff was no longer taking opioids. Accordingly, when asked about opioids at the IME, Plaintiff’s statements were accurate.
    • Second, Defendants argued that over a year after the subject accident, Maximo Santiago M.D. reviewed and referenced a pre-accident MRI and observed that the pre-accident and post-accident findings appear similar. The experts did not have Dr. Santiago’s report. Plaintiff responded that the experts reviewed an MRI taken approximately two months after the accident, which provided a comparison to MRIs taken prior to the accident.
    • Third, Defendants noted that Plaintiff reported to the experts that he had not experienced any sexual dysfunction before the accident. Yet Plaintiff received treatment for erectile disfunction and low testosterone in November 2017. Plaintiff responded that their experts are not opining on sexual dysfunction.
    • Finally, Defendants argued that Plaintiff told the experts that he had not suffered from lower extremity pain, numbness, or weakness before the accident. However, Plaintiff’s neurologist and pain management doctor, Dr. Kandel, whose records are absent from the experts’ chronology, documented chronic pain in Plaintiff’s legs, weakness, numbness, and difficulty sleeping in May 2019.

    The primary focus of the admissibility question is on the data the expert had

    Situations might arise in which an expert’s failure to consider certain information makes the expert’s opinion unreliable.

    However, the primary focus of the admissibility question is on the data the expert had, not the data he did not have. Moreover, even if Defendants mounted a legally sufficient attack on the reliability of the data under Federal Rule of Evidence 702(b), the Court found that Plaintiff has shown the experts had sufficiently reliable data when forming their opinions.

    Held

    In conclusion, the Court granted in part Defendants’ motion to exclude the testimony of Brian M. Shelley And Mark K. Crawford. The Court denied the remainder of the Defendants’ motion.

    Key Takeaway:

    In short, the circumstances of this case did not present a situation where the underlying data on which experts found their opinions was so unreliable that the experts’ opinions should be excluded. Moreover, the Court held that assertions that experts failed to consider all available data or founded their opinions on unreliable data are common fodder for cross-examination.

    Case Details:

    Case Caption: Hartung V. Gommert Et Al
    Docket Number: 1:23cv569
    Court: United States District Court, New Mexico
    Order Date: June 18, 2024
  • Psychology Expert Witness’ Testimony about Facilitated Communication Lacks Sufficient Evidentiary Grounding

    Psychology Expert Witness’ Testimony about Facilitated Communication Lacks Sufficient Evidentiary Grounding

    A district judge in Virginia refused to admit the testimony of a psychology expert even though he provided the Court with multiple experimental means to test the validity of the communications in question.

    Plaintiff, Kevin Plantan filed a lawsuit arising from his belief that he was wrongfully accused of sexually molesting his minor daughter S.P., an autistic child, and that the allegations made by the child were not really S.P’s words, but rather, that they came about via a method of communication that is not reliable.

    Plaintiff claimed Wendy Atkinson, an occupational therapist, was hired by defendant Kelly Smith, his ex-wife and mother of S.P., to “begin using a form of facilitated communication with S.P.” He asserts that during the course of S.P.’s interactions with, inter alia, Defendant Wendy Atkinson, S.P. disclosed that the Plaintiff had sexually abused her when she was six and nine years old.

    Plaintiff designated Dr. James Todd (“Dr. Todd”) who opined that Ms. Atkinson “has recklessly disregarded the clear and overwhelming conclusions of the scientific community that facilitated communication is ineffective and dangerous.”

    The Defendants filed a motion to exclude Todd’s opinions, arguing that “they are inadmissible for numerous reasons,” including that “the opinions offered are not only an improper attack on the credibility of Atkinson” but also  “venture into territory that is off limits to experts.”

    Psychology Expert Witness

    James Todd is a “professor of Psychology at Eastern Michigan University” and teaches courses on “experimental methodology and basic behavioral principles, including  stimulus control and prompting.” Todd earned a Ph.D. in Developmental and Child Psychology and a Master’s Degree in Human Development. His training and experience include “severe, multiple handicaps, including autism.” He has “formally studied facilitated communication and variants of it since about 1991,” including “attending several trainings and didactic workshops and information sessions about facilitated communication given by top authorities in the field.” Todd has “authored or co-authored several articles and chapters” on facilitated communication.

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

    Discussion by the Court

    Defendants first argued that Todd is not qualified because “he does not practice in the same or similar” field of occupational therapy, namely habilitation and rehabilitation, as does Atkinson. 

    Plantan countered that Todd need not be an expert in occupational therapy “to testify that the technique that the Defendants employed . . . is ‘facilitated communication’ and that such method is an illegitimate means by which communication may be assessed for its substantive value.”

    Even though Todd presented ample qualification to testify, as a general matter, about what facilitated communication is and how to design an experiment to screen for extraneous variables to determine the validity of the results, Defendants contended that his testimony did not satisfy other aspects of Rule 702, including that which prevents an expert from rendering a legal opinion.

    Todd’s Specialized Knowledge Could Assist the Trier of Fact But is Not Presented in a Manner the Jury Can Hear

    Despite Todd’s extensive experience in facilitated communication and in measuring the efficacy of various behavioral interventions—especially focused on individuals with autism spectrum disorder, the Court held that Todd’s report consisted of statements that constituted legal conclusions and, rather than helping the trier of fact understand the evidence, risked supplanting the province of the jury.

    Todd stated that “Atkinson has recklessly disregarded the clear and overwhelming conclusions of the scientific community.” The Court held that it is unclear whether Todd intended to introduce recklessness as “a legal standard or . . . a legal conclusion” but in either case, this testimony is inadmissible.

    Todd’s Opinion Is Not Based on Sufficient Facts or Data

    First, Todd did not review the Cornerstone Therapy records regarding Ms. Atkinson’s occupational therapy services with S.P.

    Second, Defendants stated that Todd was unaware that S.P. had testified twice in Plantan’s criminal proceedings and did so on at least one occasion with typing assistance provided by an individual wearing headphones who could not hear the questions being asked. Certainly Todd should have considered such events as grounding before he concluded that any typing did not represent S.P.’s own words.

    Third, Plaintiff’s counsel acknowledged at oral argument that Todd did not review the depositions of any of the multiple other individuals who assisted S.P. with typing.

    Because he read only one day of Atkinson’s two days of deposition testimony and an unspecified “letter,” Todd made assumptions “about the position of S.P.’s fingers on the keyboard, about who put pressure on the keys, about hand positions generally, and about who typed the words at issue,” without sufficient evidentiary grounding.

    The Court held that in the absence of actual observation of the typing that he characterizes as facilitated communication, Todd forms his assumptions from his conclusion that facilitated communication is occurring. In other words, Todd’s speculation—derived from his conclusory, albeit expert, observations about the apparent fallacy underlying facilitated communication—are inadmissible with respect to S.P.’s treatment here.

    Todd’s Opinion Is Not the Product of Reliable Principles and Methods

    Todd rightly observed that the lack of any testing to verify the true author of the communications raises concern. Todd’s report suggested that if he had tested the validity of S.P.’s communications, that test would reveal that S.P. was not the true author. Although Todd articulated principles and methods—such as single-blind and double-blind tests—that may constitute reliable methods by which to discern whether Atkinson engaged in facilitated communication, he failed to actually conduct such tests, “leaving those matters open to speculation.” 

    Todd’s Opinions Do Not Reflect a Reliable Application of the Principles and Methods to the Facts of This Case

    Defendants argued that Todd’s “opinions lack ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’, and that “he fails to explain what facts he considered in forming his opinions.”

    Plantan responded by asserting that Todd reliably applied his principles of review as they relate to identifying specific measures used by Atkinson with S.P. and scrutinized those measures according to academic studies.

    The Court found that Todd’s opinion did not reflect a reliable application of those principles and methods to the facts of this case. 

    Analysis Under Federal Rule of Civil Procedure 26 Would Be Duplicative

    Defendants asserted that “Todd’s report is deficient under Rule 26” because “Todd provides only a general description of facilitated communication” and “fails to provide any specific information from which the Court could determine what facts or data he considered in arriving at his opinion.”

    The Court “has determined that Rule 702, rather than Rule 37(c), is the proper vehicle to address the deficiencies of Todd.” 

    Having already found in favor of the Defendants under Rule 702 and Daubert, the Court declined to undertake a Rule 26 analysis. 

    Held

    The Court granted the Defendant’s motion to exclude the opinions of James Todd.

    Key Takeaway:

    Even though Plantan conceded that the reliability of Todd’s testimony could have been reinforced by procedures not undertaken in this case, such as video observation of S.P.’s typing, in-person observation of S.P.’s typing, or experimental tests of the reliability of S.P.’s typing, the Court found that Todd’s testimony was not the product of reliable principles and methods, but rather of ipse dixit based on his experience and insufficient case-specific facts and data. Todd identified multiple experimental means to test the validity of the communications, but he deployed none of them to verify the authorship of S.P.’s typed communications. 

    Case Details:

    Case Caption: Plantan V. Smith Et Al
    Docket Number: 3:22cv407
    Court: United States District Court, Virginia Eastern
    Order Date: June 18, 2024
  • Correctional Healthcare Expert Witness’ Testimony on the Risks of MOUD in Correctional Settings Excluded

    Correctional Healthcare Expert Witness’ Testimony on the Risks of MOUD in Correctional Settings Excluded

    A district judge in West Virginia barred the Correctional Healthcare Expert from opining that there was no evidence of medical malpractice, deliberate indifference, discrimination, or negligence.

    Joseph Taylor has struggled with opioid addiction for nearly half his life. He is diagnosed with Opioid Use Disorder (“OUD”) and is treating this chronic brain disease with Medications for Opioid Use Disorder (“MOUD”).

    Wexford and the West Virginia Division of Corrections and Rehabilitation (“WVDCR”) denied Taylor access to MOUD while he was detained from January through March at Central Regional Jail. Plaintiff alleged that Defendants had a policy of forced withdrawal from MOUD, which was discriminatory and evinced deliberate indifference to his clear and acute need for MOUD while detained at CRJ.

    Wexford provided an expert report from Dr. Grady Bazzel who testified that the Defendants met the standard of care in their treatment of Taylor. Taylor filed a motion to exclude the testimony of Bazzel as an expert in addiction medicine.

    Correctional Healthcare Expert Witness

    Dr. Grady Judson Bazzel is currently the Patient Safety Officer and Medical Director of Care Management for Wellpath, a company that provides correctional healthcare throughout the United States. He has worked in corrections since 2005 and is licensed to practice medicine in multiple states. In his current role, he investigates patient deaths and other care errors and helps improve quality of care across Wellpath-managed sites. He has familiarity with the Bureau of Prisons (BOP) Clinical Guidelines for the Diagnosis, Evaluation, and Treatment of Opioid Use Disorder (OUD), although he did not review them specifically while compiling his report. 

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

    Discussion by the Court

    Bazzel explained that there are risks to the use of MOUD in correctional settings that are not present in the outside world, including the risk that other inmates will target a patient to obtain the medication.

    Bazzel stated that “proper patient selection is the key to a successful Medication Assisted Treatment (MAT) program.” He stated that the “psychological triggers for relapse are less present and the access to substances of abuse is greatly diminished,” during incarceration, reducing the need for treatment. Bazzel suggested that gaps in Taylor’s treatment record, both before and after his period of incarceration, showed a “pattern of spotty follow-up for this medication that he claims to need so badly.”

    He offered the opinion that Taylor was not a good candidate for MAT while incarcerated because of his lack of compliance with Clinical Opiate Withdrawal Scale (COWS) assessments, his urine drug screen results, and his gaps in treatment before and after his incarceration.  He further opined that “the medical staff at CRJ were under no obligation to continue [buprenorphine] until such time that it became clear that it was needed. This need never presented itself,” as demonstrated by “the fact that his first drug screen post-incarceration was negative for illicit drugs.”

    Bazzel lacks experience and specialized training related to OUD, MOUD, and opioid withdrawal

    Taylor conteded that Bazzel lacked the necessary qualifications as per Rule 702. He noted that Bazzel has “never conducted an OUD screening or a Rapid Opioid Dependence Screen and is not sure if he has ever reviewed such a test.”

    Plaintiff added that Bazzel’s opinions were contradicted in key areas by the Federal Bureau of Prisons (“BOP”) Guidelines, a resource that he stated he was familiar with and considered authoritative.

    Absent full exclusion, the Plaintiff argued that several specific opinions offered by Bazzel are improper. He argued that Bazzel should not be permitted to offer opinions on the legal issues of medical malpractice, deliberate indifference, discrimination, and negligence. In addition, he contended that Bazzel’s opinion on the reduction in psychological triggers in jails and prisons should be excluded because it lacks any scientific support, and he is not a psychiatrist or psychologist with any qualification to offer such testimony.

    Since Bazzel’s report did not contain citations or references to medical or scientific sources, the Court looked to his deposition to gain an understanding of how he formed his conclusions.

    When asked what relevant medical literature he relied on in formulating his opinions, he replied, “None.” He stated that he did not review any scientific literature or journal articles related to COWS scores. As to his opinion that some patients who would be appropriate candidates for treatment with MOUD in the community are not good candidates in a correctional setting, he stated that he did not know if any literature or reports existed to support that viewpoint. He did not review any medical or scientific literature to formulate his opinion that there are fewer triggers for opioid cravings or relapse in jail, stating, “I’m sure I could find some. But it’s just commonsensical.”

    Bazzel’s testimony related to incidents of alleged diversion and urine screen results should be excluded 

    The Plaintiff next argued that Bazzel’s testimony and conclusions related to incidents of alleged diversion and urine screen results, all occurring after the Plaintiff’s January — March 2023 detention, should be excluded because medical staff could not have considered future events when determining Taylor’s medical treatment at the time. He further argued that Bazzel’s opinions regarding security concerns in a correctional setting related to MOUD are “pure conjecture.” Bazzel admitted in his deposition that he ‘has no experience in correctional security,’” and cited no scientific or medical sources. Finally, he argued that Bazzel’s testimony opining about Taylor’s credibility should be excluded.

    The Court held that Bazzel’s opinion that the Defendants met the standard of care in their treatment of Taylor was formed based on the analysis of Taylor’s treatment as discussed above, none of which was based on facts, data, or reliable principles or methods. 

    Held

    The Court granted the Plaintiff’s motion to exclude certain opinions of Grady Bazzel.

    Key Takeaway:

    Bazzel’s report lacked citations or references to medical or scientific sources. When asked what relevant medical literature he relied on in formulating his opinions, he replied, “None.”

    The Court held that Bazzel’s opinion that the Defendants met the standard of care in their treatment of Taylor was formed based on the analysis of Taylor’s treatment, none of which was based on facts, data, or reliable principles or methods. 

    Case Details:

    Case Caption: Taylor V. Wexford Health Sources, Incorporated, Et Al
    Docket Number: 2:23cv475
    Court: United States District Court, West Virginia Southern
    Order Date: June 17, 2024
  • Security Expert Witness’ Opinions Admitted because of its Strong Factual Basis

    Security Expert Witness’ Opinions Admitted because of its Strong Factual Basis

    A district judge in New Jersey admitted the testimony of the security expert despite the opposing party contending that it was based on his own personal, subjective beliefs.

    The present case arises out of Plaintiff, Ebony Thames’ fall from the roof of Bally’s Wild West Casino in Atlantic City, New Jersey. On April 6, 2019, Plaintiff, a patron at Defendants’ property, was served alcohol by Bally’s employees. Later that evening, Plaintiff was in a hotel room at the property when a security officer responded to a noise complaint. Upon arrival, the security officer encountered Plaintiff, who ran off down the hallway towards the fire tower. Plaintiff exited an unalarmed door onto the roof of the building then diverted her path from the walkway along the fire escape route where she fell from the third-floor roof of the adjoining building while attempting to climb down the facade. In order to reach the Bally’s ledge where Plaintiff started to climb down the building, Plaintiff needed to traverse barriers that included HVAC piping, two five foot walls, and one nine-foot wall.

    After Plaintiff fell several stories to the boardwalk below, she filed this lawsuit on account of severe and permanent injuries sustained as a result.

    Defendants filed a motion to bar the opinion and findings of Plaintiff’s security expert witness, Russell Kolins under Federal Rules of Evidence 702 and 703.

    Security Expert Witness

    Russell Kolins leads the Kolins Security Group, a division of Russell Kolins Associates. He holds a Bachelor of Science Degree in Security Management and specialized in the defense industry during the first two decades of his practice, undergoing extensive training and education in the fields of Risk Management, Risk Assessments, Premises Liability, Security Inspections, and Civil Liability.

    Russell Kolins’ expertise is well-earned. He is a certified trainer in the two nationally accepted responsible alcohol management programs. Russell has been a consultant to some of the largest Nightclub entertainment venues as well as country clubs, resorts and hotel and motel businesses. His skills extend to Facility Physical Security Design and he is a CPTED Practitioner.

    Get in-depth insights into Russell Collin’s expert witness experience by requesting his Expert Witness Profile today

    Discussion by the Court

    Defendants argued that Russell Kolins’ conclusions constituted net opinion based on his subjective opinions regarding the facts of the case. Also, they added that Kolins’ opinions improperly extrapolated from the facts of a prior matter involving the same Defendant, Bally’s, and that his opinions consisted of legal conclusions. In his report, Kolins asserted that Bally’s was obligated to protect people on their property and failed to place a reasonable barrier to detect, delay and ultimately respond to people who were in this unsafe area.

    Moreover, Defendants argued that Kolins applied an unreasonably high standard created using his own personal, subjective beliefs to reach his conclusions and created a unreasonable duty of care.

    According to the Court, Kolins’ response to a question posing a hypothetical scenario was distinct from his opinion that Defendants had an obligation to protect Plaintiff under the specific circumstances of this case. As Kolins set forth in his Report, the materials he relied on in forming this opinion included information that “Defendant had a history of people being up on and falling off the roof” and “people being on the roof was so prevalent that security was responsible for patrolling this area for customers.” Together, the Court held that this information reasonably explained the factual basis underlying Kolins’ opinion.

    The Defendant had previously filed a motion to preclude Plaintiff’s expert report of Russell Kolins arguing that it was nearly two (2) months late in violation of this Court’s Orders and all applicable rules in New Jersey. The Court denied the Defendants’ motion to preclude the untimely expert report submitted by Kolins.

    Held

    The Court denied the Defendants’ motion to exclude to the opinion of security expert witness, Russell Kolins.

    Defendants also filed a motion for summary judgment combined with this motion to bar Kolins’ testimony. Defendants argued that Plaintiff failed to retain an expert in order establish the alleged negligence responsible for the Plaintiffs’ injuries. Court ruled that the expert testimony of Kolins may be admitted to establish general principles for negligence and Defendants’ motion for summary judgment on that issue.

    Key Takeaway:

    According to Defendants, Kolins drew his conclusions applying an unreasonably high standard created using his own personal, subjective beliefs but the Court found out that Kolins’ conclusions were actually supported by reliable information regarding the Defendants’ security practices and previous incidents.

    Case Details:

      Case Caption: Thames v. Bally’s Park Place, LLC
     Docket Number: 1:21cv1876
     Court: United States District Court, New Jersey
     Order Date: June 17, 2024