Expert Witness Profiler

Blog

  • Judge Declares Law Banning Transition Care Unconstitutional

    Judge Declares Law Banning Transition Care Unconstitutional

    More often than not, public school employees call students by the pronouns matching the gender on their birth certificate, no matter the child’s preference and it is a misdemeanor to use restrooms in public buildings that do not correspondent to the person’s gender at birth. If lawmakers advance bills that mandate the same, how do we expect discrimination against transgender individuals to diminish?

    Four transgender adults and seven parents of transgender minors challenged the constitutionality of a Florida statute that prohibited transgender minors from receiving widely accepted gender-affirming medical care and impose restrictions on how such care can be provided. The Plaintiffs had urged the Court to specifically block one part of the law that bars doctors and nurses from prescribing or administering transition-related medication to children, and another part that exposes medical providers to criminal liability and professional discipline for doing so.

    The kinds of care at issue are puberty blockers and cross-sex hormones. For many years, the State of Florida allowed use of these medications to
    treat gender dysphoria. Yet, while other states restricted the use of state funds to pay for transgender care, Florida was the first to restrict care for transgender adults who were not relying on Medicaid. “But then the political winds changed,” wrote Judge Robert L. Hinkle of Federal District Court in Tallahassee.

    Last June, Judge Hinkle temporarily blocked enforcement of parts of the law for the children of the three families who filed the lawsuit. He ruled specifically that three transgender children can be prescribed puberty blockers despite the new state law, which also added new hurdles for adults seeking similar care.

    Psychiatry Expert Witness

    Dr. Stephen B. Levine is an expert in gender dysphoria and gender identity. He is a Distinguished Life Fellow of the American Psychiatric Association and a professor with many years of experience in the fields of gender and sexuality.

    Levine chaired a committee that crafted a pioneering set of standards of care for individuals suffering from gender dysphoria, and he has been a senior editor for three editions of the Handbook of Clinical Sexuality for Mental Health Professionals. He also founded a gender identity clinic in 1974, which he continues to lead as co-director.

    Levine did a psychiatric internship and residency at University Hospitals of Cleveland, working in that hospital’s Sexual Dysfunction Clinic. In 1993 the clinic separated from University Hospitals to become The Center for Marital and Sexual Health (now called DELR).

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

    Discussion by the Court

    The challenged statute prohibited gender-affirming care for minors—for patients under age 18—subject to a grandfather provision allowing minors who were already receiving this care to continue do so. It restricted the manner in which gender-affirming care could be provided to adults and to grandfathered minors. Such laws deprive parents of their fundamental right to make medical decisions for their children and underestimate the impact denial of transition care has on the physical and mental health of the children.

    Judge Hinkle said that “gender identity is real” and that a “widely accepted standard of care” includes puberty blockers and hormone treatments that Florida unlawfully banned. He added, “The State of Florida can regulate as needed but cannot flatly deny transgender individuals safe and effective medical treatment.” Not just the Defendants, but also defense expert Dr. Stephen B. Levine with his extensive experience treating a significant number of transgender patients admitted it.

    Stephen B. Levine

    At a committee hearing, a minor from another state gave comments indicating she received gender-affirming care and a mastectomy, without meeting the prerequisites to such care under the Endocrine Society and WPATH guidelines.

    Hinkle noted that Levine’s testimony providing a legitimate, nondiscriminatory basis for restricting the availability of gender-affirming care for minors met the Daubert standard.

    Levine has repeatedly testified about the many risks associated with “affirming” transgender identity in children in various cases. According to Levine, both the long-term and short-term implications of life as a transgender individual are crucial when it comes to social transitioning. He has cited multiple studies from different nations that have documented the increased vulnerability of the adult transgender population to substance abuse, mood and anxiety disorders, suicidal ideation, and other health problems.

    Levine casts doubt on the claim that puberty blockers are completely reversible. He adds that there are social risks associated with delayed puberty. Levine writes, “individuals in whom puberty is delayed multiple years are likely to suffer at least subtle negative psychosocial and self-confidence effects.”

    However, at one point in this case, Levine testified that treatment with GnRH agonists and cross-sex hormones is sometimes appropriate. He would demand appropriate safeguards, as discussed below, but he would not ban the treatments. Levine suggested prerequisites to gender-affirming care.

    Held

    Hinkle found Levine’s arguments in favor of restricting the availability of gender-affirming care persuasive but sided with advocacy groups and three families who had said that the law deprived them of parents’ rights to make medical decisions for their transgender children.

    He declared key parts of a Florida law banning gender transition care for minors and imposing hurdles on adults seeking such care unconstitutional.

    Key Takeaway:

    Puberty blockers and other forms of gender transition care for children give transgender adolescents and their families time to weigh important medical decisions. Studies report that teens who had access to puberty blockers and hormone therapy require fewer gender-affirming surgeries as adults. Plaintiffs, in this case, challenged the constitutionality of a statute that denied transgender individuals safe and effective medical treatment.

    The legislation codified policies adopted last year by the Florida Board of Medicine and Board of Osteopathic Medicine — whose members are appointed by the governor — that banned hormone treatments for people under 18 unless they were already receiving such care.

    While laws prohibiting access to gender transition care might end up causing irreparable harm, it is equally important weigh in social risks associated with delayed puberty.

    Levine is of the opinion that ushering gender-dysphoric children toward social transition to the opposite sex is an experimental therapy that exposes these vulnerable children to more mental health risks.

    Case Details:

    Case Caption: Jane Doe V. Joseph A. Lapado
    Docket Number: 4:23cv114
    Court: United States District Court for the Northern District of Florida, Tallahassee Division
    Order Date: June 11, 2024

  • Testimony of Audio Engineering Expert Witness Admitted Despite Being Based on Assumptions

    Testimony of Audio Engineering Expert Witness Admitted Despite Being Based on Assumptions

    This case arises out of the shooting of Plaintiff Jake L. Sheeler (“Plaintiff”) on September 25, 2020 by officers of the Pocatello Police Department.

    Plaintiff Jake Sheeler was on the run from the police at the time that he was shot. He stole a Taurus Judge (a .45 caliber handgun) from a resident of Pocatello, Kirk Hendricks. Plaintiff then threatened Mr. Hendricks, his wife Mary Hendricks, and their neighbor Mr. Richard Hernandez with the Taurus Judge before he fled.

    Officers Eldridge and McArthur finally located Plaintiff and gave him commands to surrender. Plaintiff ignored the commands that he was given and shouted “I gotta gun!” and “back up!” at Eldridge and McArthur. Officers McArthur and Eldridge reacted to this threat to themselves and to others in the area by shooting Plaintiff.

    When Sheeler initiated this lawsuit against Defendants, Defendants moved for summary judgment on all of Sheeler’s claims. Sheeler opposed Defendants’ summary judgment motion and filed a motion to exclude their expert Durant Begault’s testimony.

    Audio Engineering Expert Witness

    Durant R. Begault is an expert in “audio-video media authentication, voice identification, enhancement of audio-video media, audibility of speech and warning signals, recorded gunshot analysis, and forensic musicology.” 

    He is a research scientist specializing in psychoacoustics, human factors, multimodal systems, and communications engineering. In 2002, Durand Begault bagged the Audio Engineering Society Fellowship Award for his many contributions.

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

    Discussion by the Court

    Defendant retained Begault mainly to enhance and interpret the footage from Officer McArthur’s bodycam.

    Begault’s audio enhancement was not reliable

    Sheeler raised four challenges to Begault. First, Sheeler argued Begault’s audio enhancement was not reliable. In support, he noted Begault “did not disclose metadata nor hash values of the recordings” or “the software, equipment, or import settings, features or expert setting used to create and export the video.”

    Sheeler contended that, without this information, Begault’s results cannot be replicated, verified, or shown to be reliable.  In support, Sheeler cited the deposition testimony of his rebuttal expert, who reported he cannot duplicate Begault’s results without the missing information.

    The Court held that Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.

    Although Begault offered at his deposition on January 3, 2024, to provide Sheeler with the information, Sheeler responded that offer came after the expert disclosure deadlines.

    The Court held that Defendants timely disclosed the report at least by October 2, the deadline for Defendants’ expert disclosures. Sheeler’s rebuttal deadline was not until October 16. Based on this timeline, Sheeler could have requested the information his rebuttal expert needed for purposes of attempting to duplicate Begault’s work before the rebuttal deadline. 

    Begault did not perform any measurements

    Second, Sheeler challenged Begault’s opinion that Sheeler, not an officer, can be heard saying “back up” on the bodycam footage. Sheeler claims this opinion “depends solely upon distances of the various officers at the time of the shooting” and “Begault did not perform any measurements [but rather] relied on estimates provided by Defendants’ counsel.”

    According to Rule 702, an expert may rely on assumptions when formulating his opinions.That Begault did not himself perform the measurements and relied on counsel to provide him that information is not a basis to exclude his opinions. The Court held that Begault assumed the accuracy of the measurements counsel provided him.  The Court refused to exclude Begault’s testimony simply because he relied on assumptions Defendants’ counsel provided.

    Begault’s opinions regarding what the footage reveals

    Sheeler’s third and fourth challenges relate to Begault’s opinions about what can be heard on the enhanced audio of the bodycam footage. Sheeler claimed Begault admitted that “he has no greater ability than the jury to listen to the enhanced audio,” admitted that “he made no attempt to decipher any commands given to Sheeler,” and yet offered an opinion that “Sheeler did not comply with commands.” 

    The Court could not exclude Begault’s opinions regarding what the footage reveals without a more detailed analysis of the specific opinions Sheeler sought to exclude.

    The Court granted in part and denied in part the Defendants’ motion for summary judgment.

    Held

    The Court denied without prejudice Plaintiff’s motion to exclude or limit the testimony of Durand R. Begault.

    Key Takeaways:

    • First, Sheeler cited no legal authority in support of his assertion that an expert’s work is inherently unreliable if it cannot be verified through duplication.
    • Second, the Court refused to exclude Begault’s opinions just because he did not himself perform the measurements and relied on counsel to provide him that information. An expert may rely on assumptions when formulating his opinions.

    Case Details:

    Case Caption: Sheeler V. Eldridge, Et Al
    Docket Number: 4:22cv313
    Court: United States District Court for the District of Idaho
    Order Date: June 12, 2024

  • Court Refuses to Exclude Meteorology Expert Witness’ Conclusion about Wind Damage

    Court Refuses to Exclude Meteorology Expert Witness’ Conclusion about Wind Damage

    A district judge in Nevada admitted the testimony of an expert meteorologist despite lack of certain tests or calculations.

    In 2003, the Mindens purchased a new high-end custom home in Henderson, Nevada, where they have resided since then. They maintained an active insurance policy over the property through Allstate. A sudden storm hit the property on or around September 1, 2019, which Allstate determined to be the “time of loss.” The property sustained substantial damage to the roof, exposing the underlying roof membrane or felt.

    This dispute stems from Plaintiffs’ deprivation of certain insurance coverage benefits guaranteed to them by Allstate, as Allstate has acted in bad faith and refused to honor the terms of Plaintiffs’ insurance policy. The Mindens’ home suffered hundreds of thousands of dollars in damage, for which Allstate paid the Mindens a mere $2,887.56. After over a year and a half of litigation, Allstate admitted that in its view, it owed the Mindens an additional $29,506.79, about ten times what it initially paid and likely over twenty times less what it actually owes.

    Plaintiffs argued that Allstate’s wind and roof damage expert, Timothy Marshall should be excluded from testifying under Daubert because he reached his conclusion that no wind damage occurred to the Mindens’ roof based on an inspection, review of submitted photographs, and weather information, but he did not test the roof tiles in a wind machine and did not perform wind pressure calculations. 

    Meteorology Expert Witness

    Timothy P. Marshall, P.E., M.S., is a Forensic Engineer and a Meteorologist for Haag Engineering Co. in Dallas, Texas. He has been with Haag since 1983, and has inspected tens of thousands of homes and building for damage from hail, wind, and other issues.

    Marshall is a member of the American Association of Wind Engineering, American Meteorology Society, American Society of Civil Engineers, International Conference of Building Officials, National Weather Association, and the Southern Building Code Congress International. He earned a Master of Science in Atmospheric Science from Texas Tech University in 1980, and a Master of Science in Civil Engineering from Texas Tech University in 1983. 

    Marshall is a widely published author, writing and contributing to more than 100 articles, technical papers, and damage surveys.

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

    Discussion by the Court

    Plaintiff’s Arguement

    The Plaintiffs demanded exclusion of Marshall’s testimony due to the inaccuracy of his conclusion about wind damage.

    Plaintiff argued that Marshall chose not to do a wind machine test or wind pressure calculations. Marshall explained that he chose not to conduct the wind machine tests or make wind pressure calculations because it was unnecessary to do so as he had already concluded that there was no wind damage. The Court held that his reasoning was based on his inspection of the roof, review of photographs and weather research, and application of his knowledge and experience about wind damage to roofs.

    Lastly, the Plaintiffs argued that the exclusion of one wind data point showed that Marshall is biased. The Court held that they failed to provide any authority to explain why the exclusion of one data point made Marshall’s methodology unreliable or showed that he is biased.

    Held

    The Court denied Plaintiffs’ motions in limine to exclude Allstate’s expert Timothy Marshall.

    Key Takeaway:

    The key takeaway is that under Daubert, courts scrutinize the reliability of an expert’s methodology and principles. They do this rather than dissecting the accuracy of their specific conclusions.

    Criticisms about an expert’s judgment, potential biases, or failure to consider particular information or testing are for the jury to weigh through cross-examination. These are not grounds for excluding the expert’s testimony altogether.

    In the previous article, we discussed the wind speed opinions of the Plaintiff’s forensic engineering expert witness.

    Case Details:

    Case Caption: Minden v. Allstate Prop. & Cas. Ins. Co.
    Docket Number: 2:21cv151
    Court: United States District Court, Nevada
    Order Date: June 11, 2024
  • Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    Firearms & Ballistics Expert Witness’ Defect and Causation Opinions Excluded

    A district judge in Alabama excluded the testimony of the firearms & ballistics expert because he did not offer any evidence to show any of the alleged dangerous conditions in order to support the product liability claims.

    Plaintiff James Andrew Scott, II filed a complaint against Remington Arms Company, LLC (“Remington”) alleging that defects in the trigger mechanism for a Remington Model 770 bolt-action rifle caused it to fire unexpectedly, resulting in the death of his daughter, Alyssa Brooke Scott.

    On November 13, 2017, 15-year-old Alyssa and her godmother Christal Davis went deer hunting together. After Alyssa and Davis decided to end the hunt, Davis closed the rifle’s bolt and tied a nylon rope through the trigger guard to lower the rifle to Alyssa. Davis testified that she tied the rope behind the trigger and made sure there was no slack in the knot. Alyssa told Davis that she turned on the rifle’s manual safety switch before she handed over the gun, but Davis does not remember personally checking the position of the safety before she began to lower the rifle from the deer stand. 

    Davis lowered the rifle with the muzzle pointing down and the rope fastened through the trigger guard. About halfway down, the gun fired and the bullet struck and killed Alyssa. 

    Before the Court is Remington’s combined motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris and motion for summary judgment.

    Firearms & Ballistics Expert Witness

    Jerry Morris has been a gunsmith for 51 years and has worked on hundreds of makes and models of firearms, serviced over 10,000 firearms,” and taught classes on gunsmithing. His expert report represented that he “had extensive knowledge and experience with the Remington 770 rifle, and the trigger system in particular.” 

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Jerry Morris’ expert testimony. 

    Discussion by the Court

    Rule 26

    Remington argued that Morris’ affidavit is a violation of Rule 26 since it was untimely under the existing scheduling order and consisted of new reasoning and opinions.

    The Court held that Scott “was not allowed to use [the Morris affidavit] to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

    But Scott did not argue that the failure to timely disclose this evidence was substantially justified or harmless, despite being given the opportunity to do so. Instead, Scott stuck to his argument that the evidence was an expansion or elaboration of Morris’ previous testimony, which the Court rejected.

    The Court held that the affidavit did not qualify as a supplementation under Rule 26(e) because it went well beyond correcting or completing inaccuracies or omissions in the original expert report.

    Rule 702

    Remington challenged all of Morris’ opinions. First, Remington contended that he was not qualified to offer his defect opinion and that this opinion was not based on any reliable method-based testing, literature, observations, or experience. Second, Remington argued that Morris’ causation opinion was not supported by any testing, the evidence in this case, or his personal experience.

    1. Qualification

    Morris based his opinion on the manufacturing process of the Model 770’s trigger and sear. He claimed that Remington uses “inferior powdered metal in the components of the trigger system” and that the rough sear contact was unpredictable and inconsistent.

    The Court held that Morris may know a lot about guns, but there is no evidence that he ever investigated or studied the materials in the Model 770 trigger mechanism. He has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle. In fact, he admitted that he has only repaired two 770 rifles and cleaned about a dozen in his long history as a gunsmith. And as to this particular gun, he did not measure the sear engagement or contact points between the trigger and sear since he did not have the proper tools. In other words, Morris was not qualified to offer an opinion on the metallurgical properties or design process of the trigger or sear in the Remington Model 770 rifle.

    2. Reliability

    The Court held that even if Morris had the qualifications to offer his opinions, they would fail the reliability prong of the Daubert inquiry.

    To begin with, Morris did not provide any measurements or objective observations of rough contact points or surfaces between the sear and trigger in the rifle at issue here. In fact, he admitted that he did not have the tools to measure them. Likewise, when Morris offered the opinion that the low and inconsistent trigger pull forces he documented resulted from a chipped trigger or rough contact points between the trigger and sear, his testimony merely assumed the presence of a chipped trigger or rough contact points without any evidence supporting that assumption.

    The Court found that Morris did not perform any testing or offer any evidence to show that any of the alleged dangerous conditions—“powdered metal” trigger components, rough sear contact points, a chipped trigger, or inconsistent trigger pull weights—caused the rifle to fire without activating the trigger.

    3. Assisting the Trier of Fact

    The Court found that Morris’ theory that the gun could have bumped the tree as it was lowered to the ground lacked evidence; instead, the uncontroverted evidence from the single surviving eyewitness is that the gun did not bump the tree.

    The Court concluded that multiple portions of Morris’ opinions were not based on facts in evidence, and thus would not assist the trier of fact.

    With the exclusion of Morris’ expert opinions, Remington contended that Scott did not offer sufficient evidence to support his product liability claims. The Court agreed and entered final judgment in favor of Remington and against Scott.

    Held

    The Court granted Defendant’s motion to exclude the opinions of Plaintiff’s proffered liability expert, Jerry Morris.

    Key Takeaway:

    Morris based his defect and causation opinions on the materials and process Remington used to manufacture the trigger and sear. The Court excluded his opinions because he did not produce any literature, reports, or other documentation to support his contention that the Model 770’s components are inferior to other fire controls using different processes or materials. Importantly, he did not provide any testing, explanation, or other support for his theory that using hardened forged steel would create a more consistent contact point between the sear and the trigger. Instead, there is simply no explanation in the record for the methodology he used in reaching his conclusions. Morris has not designed any fire controls or fire control components and has not reviewed any manufacturing or design records related to the Model 770 rifle.

    Case Details:

    Case Caption: Scott V. Remington Arms Company., LLC
    Docket Number: 2:19cv1891
    Court: United States District Court, Alabama Northern
    Order Date: June 13, 2024

  • Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    Law Enforcement Expert Witness’ Report Criticizing the Actions of SPD Deemed Conclusory

    A district judge in Washington refused to admit the Law Enforcement Expert Witness’ testimony with regard to the claims of outrage, negligence and assault filed against the Seattle Police Department.

    On May 30, 2020, organizers planned two demonstrations in downtown Seattle to protest the May 25, 2020 killing of George Floyd in Minneapolis: (1) “The March for George Floyd,” scheduled from 12:00 p.m. to 6:00 p.m. on Fifth Avenue, and (2) “The Defiant Walk of Resistance Against Injustice,” scheduled to begin at 3:00 p.m. and to go from Westlake Park to the federal courthouse at Seventh Avenue and Stewart Street. Sergeant Sean Moore served as the leader of Platoon 1’s West Bikes #3 at The Defiant Walk of Resistance Against Injustice. 

    After learning about the demonstrations through his parents or his church, Avery decided to attend the events along with his young son J.A., other family members, and church members.

    Plaintiffs Are Injured During the May 30, 2020 Demonstrations

    An escalation between officers and demonstrators ensued after the arrest of one of the demonstrators. Several demonstrators, including two female demonstrators (one wearing a black sweatshirt and one wearing a white t-shirt and bike helmet), moved toward the police line. At one point, Officer Moore ran up to the line from behind and repeatedly yelled “Move back!” with a blast ball in his left hand and OC spray in his right hand. The female demonstrator wearing the bike helmet then shouted “You move back!” while pushing over the line, grabbing an officer’s baton, and pushing back against him.

    At the beginning of this disturbance, Avery moved quickly to his left towards the disturbance, holding J.A. to his right side and approaching until he was immediately behind the female demonstrator. Then, without verbal warning, Officer Moore deployed OC spray in the direction of this demonstrator.

    When Officer Moore deployed the OC spray at the female demonstrator in the bike helmet, Avery had his left arm around her waist as she turned away from the spray, exposing his left side to Officer Moore’s deployment. Avery had his right arm around J.A., who stood behind his father and the female demonstrator. As Avery and J.A. retreated from the altercation, Avery placed his left hand on or near J.A.’s face and kept his arms around him as they walked away. Moments later, J.A. began reacting to the OC spray’s painful effects and received assistance from other demonstrators.

    Motion to exclude

    Avery initiated this action in April 2022, raising claims for violations of the Washington Law Against Discrimination, outrage, negligence, assault, and constitutional violations under 42 U.S.C. § 1983.

    The City moved to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks, because his report consisted of opinions which were “improper legal conclusions and lacked any expert analysis that might be helpful to a jury.”

    Law Enforcement Expert Witness

    Russ Hicks is a retired, 30-year law enforcement officer and former police academy supervisor and trainer. He was a commissioned police officer from 1991-2016. He was also an instructor at the Washington State Criminal Justice Training Commission (WSCJTC) from 2007-2021.

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

    Discussion by the Court

    Many of Hicks’ Opinions Consisted of Legal Conclusions

    The Court agreed with the City when it contended that many of Hicks’ opinions consisted of legal conclusions. For instance, Hicks repeatedly characterized the actions of Seattle Police Department “SPD” as “negligent,” concluded that Officer Moore’s use of force was “excessive,” and stated that Plaintiffs “were seized” by Officer Moore’s use of force. The Court held that almost all of Hicks’ opinions are supported by nothing more than conclusory statements. 

    Hicks’ Opinions Were Mostly Unsupported

    Hicks speculated that it is more likely than not that if Officer Moore had provided a warning about the pepper spray, she would have let go of the baton and Sgt. Moore wouldn’t have deployed this MK-9 pepper spray. The Court held that Hicks provided no support whatsoever for this opinion, rendering it unreliable. He did not explain how his experience led to the conclusion reached.

    As for Hicks’ opinion that SPD’s failure to “provide or call for aid for Avery and his 7-year-old son” was contrary  to law, training, and policy, the Court held that it did not offer any specialized knowledge and in fact contradicted the video evidence. He asserted that the alleged failure to aid was contrary to training, explaining only that officers “are provided with instruction on providing first aid to subjects injured by law enforcement” at WSCJTC training. The Court held that he did not explain how such training bears on the facts at issue beyond the suggestion that officers knew how to administer first aid.

    The Court found Hicks’ opinion that “Officer Moore deviated from SPD policy regarding providing warnings in advance of deploying pepper spray despite having enough time to give a warning” similarly unsupported because untrained layman would be qualified to determine that issue.

    Finally, Hicks opined that Officer Moore should have used the MK-4 pepper spray instead of the MK-9 because “it is possible that the smaller dispersal area [of the MK-4] would have satisfied the immediate safety goal.” The Court, once again, held that Hicks failed to “back up his opinion with specific facts.”

    Held

    The Court granted the City’s motion to exclude the testimony of Plaintiffs’ law enforcement expert, Russ Hicks.

    Key Takeaway:

    The Court held that almost all of Hicks’ opinions were supported by nothing more than conclusory statements. Conclusory assertions like those contained in Hicks’ report would not assist the trier of fact to understand the evidence.

    Nothing in either Daubert or Rule 702 requires the district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.

    Case Details:

    Case Caption: Avery V. City Of Seattle Et Al
    Docket Number: 2:22cv560
    Court: United States District Court, Washington Western
    Order Date: June 12, 2024
  • Testimony of Orthopedic Surgery Expert Witness Excluded due to Lack Of Evidence About His Methods

    Testimony of Orthopedic Surgery Expert Witness Excluded due to Lack Of Evidence About His Methods

    A district judge in New Mexico struck the testimony of Defendant’s orthopedic surgery expert witness Paul Saiz due to lack of a record discussing the reasoning or methodology underlying his testimony.

    Plaintiff’s injuries and damages in this case resulted from an automobile accident on July 11, 2021, in Grant County, New Mexico. At that time, Plaintiff was driving a 2021 Volvo tractor-trailer. He was at a stop in the westbound lanes of Interstate 10, near mile marker 36, due to a traffic incident near mile marker 35. Defendant Singh, operating a 2022 Freightliner tractor-trailer owned by Defendants Sunshine was traveling westbound on Interstate 10 near mile marker 36.

    While performing his duties for Defendant Sunshine, Defendant Singh collided with the rear of Plaintiff’s trailer. He was driving at a high speed, without paying attention, and failed to hit the brakes. Due to the immense speed, Defendant Singh continued on his path of destruction after the collision with Plaintiff and struck other vehicles as well.

    Since Plaintiff placed his “physical injuries in controversy,” Defendants requested a Rule 35 examination. This unopposed motion was quickly granted. Defendants hired Paul Saiz, an orthopedic surgery expert witness to conduct the Rule 35 examination. Following the issuance of the Rule 35 report, Plaintiff filed a motion and objected to some of Saiz’s opinions under Federal Rule of Evidence 702 and Daubert.

    Specifically, Plaintiff objected to Saiz’s opinions in the areas of biomechanics, radiology, the Plaintiff’s prognosis, medical costs, and critiques of treating physicians. Plaintiff’s counsel acknowledged Saiz’s expertise in one field but argued that his expertise did not extend to other areas.

    Orthopedic Surgery Expert Witness

    Paul Saiz is the only board-certified orthopedic surgeon and board-certified spine surgeon in the state of New Mexico. His education can be traced back to the Baylor College of Medicine in Houston, Texas, where he earned his Doctor of Medicine. He then completed his Orthopedic Residency in Phoenix, Arizona. Saiz also completed a Spine Fellowship in Reconstructive Surgery at Sonoran Spine Center in Phoenix and a Musculoskeletal Oncology fellowship at Rush/Presbyterian in Chicago, Illinois. In the instant case, Paul Saiz conducted an Independent Medical Examination on Plaintiff, pursuant to the Defendant’s motion under Rule 35.

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

    Discussion By The Court

    A. Expert Opinion Of Paul Saiz

    Paul Saiz, in his report pursuant to Rule 35, stated there was no evidence of an acute cervical spine injury. Further, he opined that Plaintiff did not aggravate any pre-existing injury. He indicated that no further treatment was needed for the thoracic or lumbar spine. Therefore, any future care due to cervical surgery would not be related to the motor vehicle accident.

    B. Defendant’s Arguments

    Defendants’ counsel disagreed, arguing that Plaintiff’s view was far too narrow regarding medical costs, billing, and documentation efficacy. Defendants’ counsel claimed that Saiz’s CV alone demonstrated his expertise. However, this argument lost the Court’s favor. Despite suggesting that Saiz’s expertise could be explored through deposition, no deposition was ever scheduled. Considering Plaintiff’s Daubert challenges to Saiz’s expert opinion in his Rule 35 report and the absence of deposition testimony, the Court, in its gatekeeping role, had to schedule a pretrial evidentiary hearing regarding the admissibility of Saiz’s Rule 35 evaluation of Plaintiff.

    C. Evidentiary Hearing

    Considering Plaintiff’s objection to the expert’s opinions, Defendants needed to prove admissibility. The Court acknowledged Saiz’s qualifications in orthopedic surgery but remained uncertain about his expertise in biomechanics or radiology.

    Additionally, the Court had no information about Saiz’s knowledge, skills, or experience in medical billing. It was unclear if he had direct involvement in medical billing or if his support staff handled it. Therefore, the Court could only speculate about Saiz’s potential testimony and credentials.

    No evidence was presented regarding Saiz’s methods, testing, peer review, error rate, or independent research. This lack of information prevented the Court from determining if his reasoning or methodology was scientifically valid or applicable to the case facts, as required by Daubert. The Court found that Defendants had the opportunity to sufficiently develop the record on these issues but failed to do so.

    Held

    Consequently, the Court granted Plaintiff’s motion to strike the opinions and testimony of Defendant’s medical expert Paul Saiz.

    Key Takeaway:

    The Court acknowledged Saiz’s qualifications in orthopedic surgery but was uncertain of his expertise in biomechanics, radiology, and medical billing. The Court needed more information on Saiz’s methods and research to determine the validity of his opinions. Defendants presented only arguments without any supporting evidence to validate Saiz’s opinions.

    Case Details:

     Case Caption:  Garcia V. Singh Et Al
     Docket Number:  2:23cv545
     Court:  United States District Court, New Mexico, Las Cruces
     Order Date:  June 11, 2024
  • Law Enforcement Expert Witness’ Testimony on the Police Officers’ Conduct Admitted

    Law Enforcement Expert Witness’ Testimony on the Police Officers’ Conduct Admitted

    A district judge in Louisiana admitted a law enforcement expert’s testimony summarizing police procedures.

    Cortez alleged that on November 21, 2019, his wife had called 911 and requested that police be dispatched so she could leave their residence without incident because Cortez was in an agitated mood. Cortez averred that an altercation had ensued after Deputies Reese and Custard arrived on the scene.

    Plaintiff brought this lawsuit to pursue claims of excessive force in violation of the Fourteenth Amendment; a cover up by Jefferson Parish Sheriff’s Office employees; and ongoing physical and psychological injuries.

    Defendants Deputy Custard, Deputy Reese, and Sheriff Lopinto asserted that the claims alleged were frivolous, groundless, and unreasonable.

    Defendants offered the testimony of Kerry Najolia to summarize police procedures and to analyze whether the Deputies met those standards. Plaintiff filed a motion to exclude eight of Najolia’s opinions contending they were inadmissible as per Daubert and Rule 702.

    Law Enforcement Expert Witness

    Kerry Najolia has been qualified as, and has testified as, an expert on police practice, procedure, training, police officer survival/defensive tactics, police use of force, and police canines in numerous Louisiana state and federal courts. He has worked in various divisions in law enforcement, which includes patrol, investigations, Training and SWAT.

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

    Discussion by the Court

    The eight opinions in question found that the deputies’ actions were “authorized,” “consistent with their training” and “consistent with departmental policy, procedures, and protocols” at various stages of their interaction with Plaintiff. In support of his motion, Plaintiff argued that: (1) Najolia would need to repeat inadmissible hearsay at trial to explain these opinions (2) Najolia’s testimony is irrelevant, and (3) Najolia’s methodology is unreliable.

    Najolia Will Not Need to Repeat Inadmissible Hearsay at Trial

    Plaintiff argued that Najolia’s opinions about the Deputies’ use of force must be excluded because Najolia will necessarily need to repeat hearsay testimony at trial to express these opinions. He added that Najolia largely relies on an Offense Report written by Deputy Reese, who has not been deposed, for his understanding of the foundational facts of the case.

    Plaintiff did not dispute that Najolia may express opinions in his expert report that are based, in part, on facts contained in an inadmissible report such as the Offense Report. Rather, he contended that Najolia will need to describe Deputy Reese’s hearsay statements at trial. Since, Defendants’ witness list noted that Deputy Reese will testify at trial, the Court held that Najolia may properly refer to her testimony after Deputy Reese testifies.

    Najolia’s Opinions Do Not Constitute Improper Legal Conclusions

    Plaintiff contended that Najoila will improperly invade the duty of the factfinder by offering conclusions on legal issues.

    The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue. The opinions described various actions of the deputies as “consistent with their training” “appropriate” and “in accordance with the deputies training.” This language showed that Najolia intended to opine on whether the Deputies “comported with applicable policies and procedures.” The Court held that such testimony was permissible but Najolia will not be allowed to opine on the ultimate issues of whether the officer’s actions were generally “reasonable” under the applicable legal standard.

    Plaintiff’s Concerns About Najolia’s Assumption of Facts were Properly Addressed on Cross-Examination, Not By Exclusion of His Testimony

    Plaintiff argued that Najolia’s opinions should be excluded because his methodology was unreliable. Najolia, Plaintiff contended, improperly relied on the Defendants’ version of the facts while ignoring other record evidence. The Court held that this this argument was unavailing since Plaintiff’s concerns that Najolia’s opinions were based on incorrect and one-sided facts could be addressed at trial on cross-examination. These questions relate to the “bases” of Najolia’s opinions, and thus go to the “weight to be assigned that opinion rather than its admissibility.”

    Held

    The Court denied Plaintiff’s motion to exclude and held that Najolia may testify as to whether the Defendant Deputies acted in accordance with applicable policing standards, protocols, and trainings.

    Key Takeaway:

    Under Federal Rule of Evidence 704, an expert’s “opinion is not objectionable just because it embraces an ultimate issue.” Louisiana District Court has previously permitted Najolia to opine on whether police officers’ conduct was in accordance with specific policing standards. The eight opinions Plaintiff sought to exclude were tied to the police policies and procedures at issue and hence were permissible. Despite Plaintiff’s concerns that Najolia’s opinions are based on incorrect and one-sided facts, the Court held that Najolia’s testimony will be properly offered to summarize police procedures and
    to analyze whether the Deputies met those standards.

    Case Details:

    Case Caption: Cortez V. Custard Et Al
    Docket Number: 2:20cv3110
    Court Name: United States District Court, Louisiana Eastern
    Order Date: June 10, 2024
  • Testimony by Accident Reconstruction Expert Witness Regarding Missouri Statute Violation Limited

    Testimony by Accident Reconstruction Expert Witness Regarding Missouri Statute Violation Limited

    A district judge in Missouri partly excluded the testimony of an expert accident reconstructionist retained to opine on the safety of the crossing.

    The case began with a train-vehicle collision near Mineral Point, Missouri, on August 19, 2019. Anthony Courtois drove a 2007 Freightliner dump truck westward toward North Oak Road’s railroad crossing. As he approached, an Amtrak train travelled southbound on Union Pacific-owned tracks. Courtois claimed he didn’t see the train due to excessive vegetation along the tracks until it was too late, leading to the collision.

    The Plaintiff sued Union Pacific and Amtrak, alleging negligence. He claimed they did not maintain the crossing or warn of danger. They had also failed to issue slow orders, sound the train’s horn in a timely and safe manner, or adjust speed safely.

    During discovery, the Plaintiff disclosed James Loumiet as an expert witness. The Defendants jointly sought to limit or exclude Loumiet’s testimony under Daubert grounds. They argued his opinions on the crossing’s danger should be excluded under Federal and Missouri law. They also claimed Loumiet’s opinions were flawed for considering irrelevant factors, applying the wrong standard of care, and lacking an adequate foundation.

    Accident Reconstruction Expert Witness

    James Loumiet holds a degree in mechanical engineering. He possesses over 37 years of professional experience, including 34 years specializing in accident reconstruction. He conducted a personal inspection of the North Oak Road crossing, taking precise measurements and photographs. Additionally, he reviewed various documents, such as crash reports, photographs, and a video of the collision recorded from the locomotive.

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

    Discussion by the Court

    A. Expert Report of James Loumiet

    James Loumiet prepared an expert report in which he highlighted several critical observations about the North Oak Road crossing. He noted the presence of sight-restricting trees and vegetation in all four quadrants of the crossing. Further, he analyzed the road’s grade leading to the crossing, identifying a humped profile and a steep uphill grade on the east approach, the direction from which the Plaintiff approached. He also examined the topography of the crossing, noting the road was curved west of the crossing and the tracks were curved through and around the crossing on both sides. Furthermore, Loumiet observed that the grade crossing traffic control consisted of stop signs and private crossing signs.

    In his expert report, Loumiet concluded the North Oak Road crossing was extrahazardous at the time of the collision. Additionally, the Plaintiff disclosed Loumiet so as to testify about the crossing’s extrahazardous nature as a causative factor in the collision.

    B. Defendant’s Argument

    In their motion, the Defendants did not contest Loumiet’s qualifications. Instead, they argued that relevant case law prohibited experts from testifying about the dangerousness of a railroad crossing, thus his opinions should be excluded. Furthermore, the Defendants contended that Loumiet’s opinions were inadmissible as they would usurp the jury’s role as the factfinder. Additionally, the Defendants claimed that Loumiet mischaracterized the duties of a Missouri driver, made improper legal conclusions, and relied on factors irrelevant to the collision, as well as materials not adopted under Missouri law.

    An expert could not testify that a crossing was unusually dangerous or extrahazardous

    Defendants argued that Courts consistently recognized an expert could not testify that a crossing was unusually dangerous or extrahazardous. They asserted that Loumiet tried to increase the railroad’s legal duties while diminishing those of the driver. Additionally, Defendants claimed that Loumiet’s reliance on a sight distance table from the American Association of State Highway and Transportation Officials (AASHTO) was inappropriate because Missouri law had not adopted this standard for railroad crossings, and it applied to new, not existing, crossings.

    Lastly, Defendants argued that they should bar Loumiet from testifying that Union Pacific violated Missouri Revised Statutes Section 389.665(2), which concerned the clearing of vegetation at public crossings.

    Loumiet was being offered to testify as to the safety of the crossing

    The Court disagreed with Defendants’ characterization of the incident as a mere “car accident.” It involved a collision between a dump truck and a passenger train at a rural railroad crossing. The Court noted average jurors lack experience in dump truck driving, train operation, or railroad crossing maintenance. Federal Rule of Evidence 702 allows qualified experts to offer opinion testimony to aid jury comprehension or fact determination.

    Moreover, the Court held that Loumiet was not being offered to testify about whether the Plaintiff met his legal duties as a driver on the day of the collision. Instead, he was supposed to testify about the crossing’s safety. The Court decided not to exclude Loumiet’s testimony based on Defendants’ argument that the expert allegedly minimized or ignored Plaintiff’s duty of care.

    The Court found that Section 389.665(2) did not apply to this case as the North Oak Road crossing was not a public crossing within the meaning of the statute. Consequently, the Court granted Defendants’ Daubert motion to the extent that Loumiet would be prohibited from testifying that Union Pacific violated Missouri Revised Statutes Section 389.665(2). In all other respects, the Court denied Defendants’ motion to exclude or limit the testimony of James Loumiet.

    Held

    The Court partially granted the Defendant’s Motion to Exclude the expert testimony of James Loumiet.

    Key Takeaway:

    The Court found that the expertise of Loumiet would assist the jury in understanding complex issues surrounding railroad crossings, such as maintenance and safety standards. Additionally, the Court clarified that Loumiet’s testimony was focused on the safety of the crossing rather than opining on the Plaintiff’s legal duties as a driver. However, the Court partially granted the Defendants’ motion regarding Loumiet’s testimony on a specific statute violation, noting that it did not apply to the case.

    Case Details:

     Case Caption: Courtois v. Union Pacific R.R. Co.
     Docket Number: 4:22cv133
     Court: United States District Court, Missouri Eastern
     Order Date: May 30, 2024

  • Insurance Expert Witness’ Report on Bad Faith Deemed Inadmissible

    Insurance Expert Witness’ Report on Bad Faith Deemed Inadmissible

    A district judge in Texas refused to admit the insurance expert witness’ bad faith report because it failed to explain how exactly the Defendant violated the generally accepted adjusting standards.

    On February 17, 2021, a Texas winter storm damaged a commercial building owned by Barron. Century insured that building under a surplus lines renewal policy. Barron filed a claim with Century for damages to the metal roof of the insured building. Immediately after the storm, Barron began emergency repairs to the metal roof of the building. Barron also repaired damage to the interior of the building and the domestic plumbing.

    On March 5, 2021, a field adjuster inspected the building on Century’s behalf. On June 16, 2021, Century sent a letter to Barron that adopted its field adjuster’s net replacement cost of less than $4,000 and claimed that damage to the metal roof, domestic plumbing lines, and the interior of the building was excluded from coverage. Century identified “freeze damages to the domestic plumbing lines” as the cause of damage to the building’s interior. Further, Century stated that the indentations in the roof resulted from activities excluded from coverage under the policy exclusions. 

    Motions to exclude

    Barron designated Phil Spotts as an expert to testify regarding damages and bad faith. Spotts inspected the damaged building on October 6, 2021. Spotts prepared his final estimate on December 6, 2021, relying on both his inspection and “additional information that was provided by the insured.” His estimate of the replacement cost value of the roof totaled $370,020.81. Spotts also rendered an opinion on whether Century’s claim investigation and adjustment were conducted in bad faith. Additionally, Barron designated Joshua Reeves as an expert to testify regarding causation. Reeves conducted two on-site inspections of the damaged building on November 10, 2022 and November 23, 2022. Reeves opined that the damages to the metal panels that comprised the roof of Barron’s building were damages by environmental forces from the February 2021 winter storm. Century sought to exclude Spotts and Reeves’ expert reports. 

    Insurance Expert Witness

    Philip N. Spotts is the founding member of The Mission Risk Consulting Group, LLC, having opened Mission Adjusting and Risk Management, LLC in 1993.  He has over 40 years’ experience in handling or managing a wide variety of property and casualty claims, including commercial and residential property, national catastrophe, auto liability, general liability, and governmental liability.

    He has several industry designations granted by the Insurance Institute of America, including Chartered Property and Casualty Underwriter, Associate in Risk Management, and Associate in Claims.  

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Philip Spotts’ expert testimony. 

    Engineering Expert Witness

    Joshua G. Reeves is a licensed Professional Engineer employed by Neches Engineers, an engineering firm located in Beaumont, Texas. He is a Licensed Professional Engineer in Texas and a Certified Texas Department of Insurance Windstorm Inspector. He has designed thirteen metal roofs for private commercial and industrial clients.

    Want to know more about the challenges Joshua Reeves’ has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Phil Spotts

    Regarding bad faith, Spotts concluded that the Century claim investigation and adjustment “fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation” based on his experience. Spotts also concluded that the Century estimate used as a basis for the claim payment was “underpriced” and “under scoped.”

    Century challenged (1) Spotts’ qualifications as both a damage and bad faith expert and (2) the reliability of his report.

    At the hearing, the parties agreed that expert reports on damages were unnecessary in light of the appointed umpire’s forthcoming appraisal of the damage to Barron’s property, which was binding on both parties pursuant to the appraisal provisions of the policy. Accordingly, Century’s instant Motion to Exclude was denied as moot with respect to Spotts’ expert report on damages. Additionally, to the extent Barron sought to offer Spotts as an expert on causation, Century’s instant Motion to Exclude was granted because Barron had not formally designated Spotts as an expert on causation. The Court considered Spotts’ qualifications, the relevance of his report, and the reliability of his methodology regarding only his bad faith report. 

    Spotts is Qualified to Serve as an Expert

    Spotts stated that he had been licensed “on an All-Lines basis to supervise and adjust claims” involving “tens of thousands of residential and commercial structures due to a diverse number of causes” and that he “possessed over 40,000 hours of claims-related experience.”

    The Court found that Spotts had demonstrated sufficient qualifications to serve as a bad faith expert.

    Spotts’ Expert Report is Relevant to the Issues Presented in this Case

    Century contended in conclusory fashion that Spotts’ damage report was not relevant but failed to specifically explain how the report lacked relevance to the issues presented in this case.

    The Court found that Spotts’ opinions on bad faith were relevant to Barron’s breach of contract, statutory bad faith, and Prompt Payment of Claims Act claims. The parties’ dispute over whether Century properly adjusted Barron’s claim in good faith was central to the resolution of all three claims.

    Spotts’ Expert Report Failed to Demonstrate Reliance on Reliable Methodology

    Century contended that Spotts’ report on bad faith was not reliable because it “was not supported by any evidence” and failed to cite to “any Texas law, statute, policy provision, or any other standard that would apply to this claim.”

    When Spotts claimed that the Century claim investigation and adjustment fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation, he identified two sources for the standards on which he relied in his report. First, he cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham but the Court found that Spotts’ conclusory statement on Century’s claim investigation and adjustment amounted to him stating “it is so.” In other words, Spotts did not explain how Century’s behavior failed to meet the vague standards of insurance adjusting he cited.

    The second source on which Spotts based his conclusions was the “National Association of Insurance Commissioners Unfair Claims Settlement Practices Act” (“NAIC Act”), attached to his report as an addendum. The Court held that while the NAIC Act provided standards for proper adjustment and investigation of claims, Spotts failed to explain which specific sections of the NAIC Act he relied on in reaching his conclusions. Moreover, Spotts did not reference any specific sections of the NAIC Act at all in his expert report. Spotts’ general reference to the entire NAIC Act without reference to any specific provisions was insufficient to demonstrate a reliable methodology because he did not describe what specific standards were violated.

    Joshua G. Reeves

    In developing his report, Reeves relied on the inspections he conducted as well as various documents such as the International Building Code and International Existing Building Code.

    It should be noted that Century challenged only the reliability of Reeves’ report. The Court held that Reeves was qualified to serve as an expert in this case and that Reeves’ expert report was relevant to Barron’s claims since Barron must show that the February 2021 winter storm caused the alleged damage to the metal roof of the building.

    Reeves’ Expert Report is Based on Reliable Engineering Methodology

    In his report, Reeves identified four potential causes for the damage to the metal roof of Barron’s building: “foundation settlement, faulty construction materials, poor methods of construction, excessive live loads such as wind, show, ice, or seismic.” Reeves determined that the first three causes were not applicable based on the Neches Engineering analysis of (1) the presence of foundation settlement, (2) the structural integrity of the original roof panels, and (3) whether the building’s construction complied with the 1988 Uniform Building Code, which was the governing design criteria when Barron’s building was constructed. After describing his analysis and conclusions on the first three potential causes of the damage, Reeves concluded that the damages “are directly linked to excessive loads: either mechanical or environmental loads.”

    Reeves’ conclusion was based on a flawed process of elimination

    Century contended that Reeves’ conclusion “was based on a flawed process of elimination.” It added that Reeves’ opinions on these potential causes amounted to “it is so” opinions, which made them unreliable. The Court disagreed because Reeves relied on both his own inspection of Barron’s building, relevant building codes, weather data, reports from other adjusters that examined the property, and documents containing information regarding the specific roof panels used. Reeves then analyzed each potential cause and reached a specific conclusion on each one, excluding three and concluding that the fourth was the cause of damage to Barron’s property. 

    The Court disagreed with Century that Reeves’ opinions regarding whether mechanical loads caused the damage to Barron’s property were based on insufficient information because Reeves inspected the damaged roof panels during his two on-site inspections of the damaged property and analyzed whether the damage was consistent with footsteps.

    Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence

    The Court held that Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence, not its admissibility such as when Century made no attempt to explain why the meteorological data or environmental load calculations Reeves used in his report were incorrect.

    Held

    The Court granted Defendant Century Surety Company’s motion to exclude Plaintiff’s witnesses Spotts and Reeves with respect to Phil Spotts’ expert report on bad faith; denied it as moot with respect to Spotts’ expert report on damages; and denied it with respect to Joshua Reeves’ expert report on causation.

    To the extent Plaintiff Larry Barron sought to offer Spotts as an expert on causation, the Court granted Century’s instant motion to exclude Plaintiff’s Witnesses Spotts and Reeves.

    Key Takeaways:

    • Phil Spotts identified two sources for the standards on which he relies in his report. He cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham and the National Association of Insurance Commissioners Unfair Claims Settlement Practices Act. The Court held that there is “too great an analytical gap between the data and the opinion proffered” to render these standards a sufficiently reliable methodology for determining whether Century’s claim investigation and adjustment were conducted in bad faith.
    • Determining whether an expert report is reliable is the product of a three-part analysis: (1) whether “the testimony is based on sufficient facts or data”; (2) whether “the testimony is the product of reliable principles and methods”; and (3) whether “the expert has reliably applied the principles and methods to the facts of the case.” Joshua Reeves’ testimony was the product of engineering analysis based on Reeves’ personal observations and inspections.

    Case Details:

    Case Caption: Barron V. Century Surety Company
    Docket Number: 1:22cv144
    Court: United States District Court, Texas Eastern
    Order Date:  April 23, 2024

  • Financial Expert Witness’ Opinion on the Reasonableness of the Recordkeeping Fees Rejected

    Financial Expert Witness’ Opinion on the Reasonableness of the Recordkeeping Fees Rejected

    A district judge in Kentucky found the analysis presented by the financial expert witness limited.

    This class action arises under the Employee Retirement Income Security Act of 1974 (“ERISA”). On behalf of the Humana Retirement Savings Plan (the “Plan”) and its participants, Plaintiffs brought claims for (1) “Breach of Fiduciary Duty of Prudence” and (2) “Failure to Adequately Monitor Other Fiduciaries.” Defendants were fiduciaries of the Plan which existed to help its participants save for retirement. They hired Charles Schwab as the recordkeeper for the Plan during the class period. 

    Defendants conducted two requests for proposals (“RFP”)—via Institutional Investment Consulting (“IIC”), which it hired to conduct the processes—in 2014 and 2019, and an additional RFP outside the class period after 2019. After considering more than 125 vendors, Schwab was selected out of 15 candidates in the 2014 RFP, and again out of more than 10 candidates in the 2019 RFP.  Although it was not the only factor considered in Schwab’s selection, Schwab offered the lowest recordkeeping cost among finalists in both the 2014 and 2019 RFP. Plaintiffs alleged that Defendants used an “imprudent process” to administer the Plan which led to excessive recordkeeping fees, despite engaging in RFPs for the Plan and performing annual benchmarking using reports from third-party consultants. 

    Throughout the class period, the Plan grew from roughly $3.5 billion with 49,150 participants in 2015 to roughly $6.5 billion with 58,735 participants in 2022.

    Defendant retained Pete Swisher to evaluate the process followed by Humana to oversee and monitor the recordkeeping services and fees associated with the Plan. Swisher opined on the reasonableness of the recordkeeping fees incurred by the Plan during the Class Period.

    Plaintiff retained Veronica Bray to analyse the decisions and actions Defendants took during the class period.

    Financial Expert Witnesses

    Pete Swisher is currently the founder and president of Waypoint Fiduciary, LLC and co-founder and managing partner of Group Plan Systems, LLC. He has published papers, articles, and a textbook and is involved in the leadership of professional trade organizations in the field. He holds a B.A. in Linguistics from the University of Virginia and is a certified financial planner.

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

    Veronica Bray has over two decades of experience in the retirement plan industry. She currently serves as the founder and Chief Executive Officer of Retirement Plan Advisor Search, which assists retirement plan fiduciaries and plan sponsors with finding service providers for their retirement plans. She holds a B.S. in Business Administration from the University of North Carolina in Greensboro, as well as Financial Industry Regulatory Authority Series 6 and 63 licenses and a North Carolina Life Insurance license, among other “industry related designations.”

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

    Discussion by the Court

    Pete Swisher

    Plaintiffs advanced two broad grounds to exclude Swisher’s expert opinion as unsupported ipse dixit. First, they argued Swisher provided no basis for concluding that Defendants’ use of RFPs and benchmarking through Roland Criss amounted to a prudent process, and his conclusion deviated from case law. 

    Second, they argued Swisher had no basis for concluding the Plan’s recordkeeping fees were reasonable. Plaintiffs contended that Swisher applied circular reasoning since Swisher is essentially saying, “The fiduciary process was prudent because fees were reasonable, and the fees were reasonable because the fiduciaries followed a prudent process.”

     I. Swisher’s Opinion on the Committee’s Process

    Plaintiffs pointed out that Swisher admitted in deposition testimony that he was not aware of whether the Committee attempted to reduce its fees between 2015 and 2019. However, the Plaintiffs themselves acknowledged that Swisher was explicit that this information was irrelevant to his conclusions, explaining that “typical industry practice is that fees are not negotiated until the term of the contract nears expiration.”

    Plaintiffs also argued that the Roland Criss benchmarking reports were unreliable because they included “smaller plans with smaller participant sizes,” and Swisher admitted in his deposition testimony that “he had no way of knowing how many plans in the Benchmarking report were smaller or larger.” The Court held that Swisher explained his basis for crediting the Roland Criss reports as reliable benchmarks in his report when he had drawn from his experience to gather that benchmarking peer groups typically included plans that were both smaller and larger, in terms of assets and participants, than the plan being benchmarked. Even if Swisher did not know exactly how many comparators were larger than the Plan in the reports, he provided sufficient basis for crediting them based on his industry knowledge, and Courts have allowed experience-based testimony about industry practice.

    The Court had held that Swisher’s expert report had outlined his extensive professional experience and the industry resources he had drawn upon to form his opinion, but the Plaintiffs had challenged none of it.

    II. Swisher’s Opinion on Whether Fees Were Reasonable

    Plaintiffs asserted that the fees were not reasonable because NEPC surveys were not a “meaningful benchmark” for comparison. The Court did not find that Swisher’s consideration of NEPC surveys rendered his testimony unreliable, as this was just one piece of the foundation for his opinions.

    Finally, the Court disagreed with Plaintiffs’ argument that Swisher’s opinion rests on circular logic. The Court held that it was the nature of the inquiry-a prudent process involving competitive bidding (the RFPs), coupled with the Roland Criss reports and an independent comparison to NEPC surveys which Swisher used to show median recordkeeping fees, could form a basis for concluding that the fees were reasonable. The 2014 and 2019 RFPs not only could constitute part of a prudent process, but they also provided data that Swisher could consider to determine whether Schwab’s recordkeeping fees were reasonable. The same is true for the annual Roland Criss reports, which provided data to support Swisher’s opinion that the recordkeeping fees paid by the Plan were reasonable. 

    The Court held that it was logical for Swisher to rely on this same data to determine that the fee was reasonable, given that he believed the process that produced the RFPs and the Roland Criss reports was a prudent process, and that he also looked to outside data such as NEPC reports.

    Veronica Bray

    Bray concluded that “Defendants failed to effectively negotiate reasonable recordkeeping fees, understand total compensation being paid to the Plan’s recordkeeper, and employ other strategies to reduce fees being charged to Plan participants,”  which resulted in unreasonably high fees that “cost Plan participants millions of dollars from their retirement accounts.” 

    Defendants argued that Bray’s opinion should be excluded because she (1) provided no basis for “how she arrived at the $12 to $20 PPPY range” that Plaintiffs say the Plan could have paid in recordkeeping fees, (2) offered “no evidence to show the [six plans selected] are actually comparable to the Humana Plan,” and (3) “ignored more than half of the Class Period” by limiting her analysis to between 2020 and 2022.

    I. Bray’s opinion on whether Defendants’ actions were consistent with the standard of care practiced by a prudent fiduciary 

    Bray’s opinion focused largely on the reasonableness of the recordkeeping fees paid by the Plan as compared to six other plans she chose for evaluation in her report. Bray concluded that a reasonable fee would have been in the range of $12 to $20 PPPY—the fee range achieved by these six plans. The Court held that she chose these plans merely “to kind of give an example of the buying power that these smaller plans had,” and could not give an example of a comparable plan that achieved similarly low recordkeeping fees at her deposition. 

    Bray herself admitted that she compared only the fees from the six plans she selected to the Humana Plan—she did not analyze other aspects of those plans, or the recordkeeping services provided to them at all. 

    The Court held that while Bray is generally qualified by knowledge and experience in this field, with over two decades of professional involvement within the industry in various roles, her opinion applies no reliable methodology to the pertinent questions in this litigation: whether Defendants’ process was prudent and whether recordkeeping fees were ultimately “excessive relative to the services rendered.”

    Held

    The Court denied Plaintiffs’ motion to exclude Pete Swisher but granted  Defendants’ motion to exclude Veronica Bray under Daubert and Rule 702.

    Key Takeaways:

    • The Court found that Swisher’s opinion, stating that Defendants’ reliance on RFPs and benchmarking reports resulted in a prudent process, was based on his experience and knowledge of industry practices. This is an acceptable basis for Swisher’s expert opinion, particularly because that experience explicitly relates to conclusions outlined in his expert report.
    • The Court held that Bray’s method—essentially, reasoning by inference that, because the six smaller plans were able to achieve a fee in the $12-$20 range, it followed that Humana should have also been able to negotiate for fees in that range—was not a reliable basis for concluding the fees were unreasonably high.

    Case Details:

    Case Caption: Moore Et Al V. Humana Inc. Et Al
    Docket Number: 3:21cv232
    Court: United States District Court, Kentucky Western
    Order Date: May 22, 2024