A district judge in Florida refused to exclude the testimony of a pharmaceutical expert witness despite allegations of fundamental flaws in the assumptions on which her calculations are based.
Defendant Aveva Drug Delivery Systems, Inc. of an Abbreviated New Drug Application (“ANDA”) No. 217221 to the U.S. Food and Drug Administration (“FDA”) sought approval to manufacture and sell a Lidocaine Topical System, 1.8% product (“Defendants’ ANDA Product”), a generic version of Scilex Pharmaceuticals Inc.’s ZTLIDO® (lidocaine topical system) 1.8% (“ZTlido®”), prior to the expiration of U.S. Patent Nos. 9,283,174 (the “’174 patent”), 9,925,264 (the “’264 patent”), and 9,931,403 (the “’403 patent”) (collectively “the Asserted Patents”).
Plaintiffs alleged that the Defendants’ ANDA Product will be marketed as a generic competing product to ZTlido®, a product developed by Plaintiffs for the relief of pain associated with post-herpetic neuralgia (PHN) in adults.
This patent infringement arises from Aveva’s notification to Scilex Pharmaceuticals Inc. by Notice Letter dated May 10, 2022, that it had filed an Abbreviated New Drug Application (“ANDA”) No. 217221.
Defendant Aveva proffered expert witness Dr. Maureen Donovan who stated that that the claims of the Asserted Patents were extremely broad, and therefore that they were not enabled because it would require undue experimentation to practice the claims.
Plaintiffs filed a motion to strike Donovan’s opinions and analysis regarding the breadth of the asserted claims from consideration at the bench trial in this case. Plaintiffs also accused her of improper supplementation and bolstering under Rule 26 in a separate motion.
Pharmaceutical Expert Witness
Maureen Donovan is a Professor of Pharmaceutical Sciences and Experimental Therapeutics at the University of Iowa College of Pharmacy. Donovan holds a Ph.D. in Pharmaceutics from the University of Minnesota College of Pharmacy and has over forty years of experience conducting research and consulting with companies in the field of pharmaceutical sciences.
Plaintiffs argued that Donovan’s exemplary calculations, analysis of the breadth of the claimed concentration ranges, and her opinions relying thereon did not meet the requirements of Rule 702. Plaintiffs added there were fundamental flaws in the assumptions on which her calculations are based.
As to experience and qualifications, Plaintiffs did not contend that Donovan was not sufficiently qualified to offer her proffered opinions in this case.
The Court determined that the proper remedy for any potential weaknesses identified is vigorous cross-examination and confrontation. In other words, Plaintiffs were not precluded from challenging the reliability of Donovan’s opinions at the bench trial. In conclusion, the Court may disregard any expert testimony at trial, if it “turns out not to meet the standard of reliability established by Rule 702.”
Rule 26
In a separate motion, Plaintiffs alleged that Donovan altered her written opinion to better align her opinion with another expert’s findings.
Donovan, having discovered an error in her calculations, was required to correct her findings. Defendants argued that the corrections favored Plaintiffs’ position.
The Court held that the revisions were both substantially justified and harmless. The Defendants filed Donovan’s amended report well before the 30-day deadline contemplated for pretrial disclosures under Rule 26(a)(3). The Court, therefore, denied Plaintiffs’ arguments on the grounds that any violation, should one exist, was substantially justified under the circumstances. Moreover, Defendants have both offered Plaintiffs the opportunity to re-depose Donovan and will not oppose supplemental reports from Plaintiffs’ expert.
The Court added that the decision not to exclude Donovan’s corrected report in no way prevented Plaintiffs from vigorously cross-examining her on her alleged mistakes.
Held
The Court denied both motions to exclude the testimony of Defendants’ expert Maureen Donovan.
Key Takeaway:
The Court determined that the proper remedy for any potential weaknesses identified is vigorous cross-examination and confrontation. In other words, Plaintiffs were not precluded from challenging the reliability of Donovan’s opinions at the bench trial and the decision not to exclude Donovan’s corrected report in no way prevented Plaintiffs from vigorously cross-examining her on her alleged mistakes.
Case Details:
Case Caption:
Scilex Pharmaceuticals, Inc. Et Al V. Aveva Drug Delivery Systems, Inc., Et Al
The Trade Group’s (“TTG”) is a full-service event marketing and creative design firm well known for its award-winning designs and client-centered service mentality. BTC Media, LLC (“BTCM”), a Bitcoin and blockchain media company approached TTG about managing, planning, and producing Bitcoin 2021, the world’s largest bitcoin conference held in Miami, Florida.
After a successful Bitcoin 2021, BTCM enlisted TTG’s services again in connection with Bitcoin 2022, but on a much larger scale. This case centers around a dispute between TTG and BTC over the financial ramifications of their business interactions, particularly surrounding the Bitcoin 2022 event. At the heart are disagreements over alleged overcharges and lost profits in planning and hosting Bitcoin 2022 in Miami.
Gary Durham has been assisting clients with economic damages calculations, valuation, forensic accounting, financial forecasting, and financial issues in bankruptcy since 1993. Durham’s considerable experience preparing expert witness testimony includes damage calculations and other valuation-related financial analysis.
Dr. Kelly Martinez Semrad, currently serves as a faculty member at the University of Central Florida (UCF) in the Rosen College of Hospitality Management. She is the former associate director for the University of Florida’s Eric Friedheim Tourism Institute. She has also helped provide policy for tax reform and economic structural adaptations as well legislation for social and environmental justice in the tourism and hospitality industry.
David Baileyis an early bitcoin adopter, entrepreneur, and a prominent figure in the Bitcoin community. He is also the CEO of BTC Media, which includes Bitcoin Magazine and the Bitcoin conference, as well as UTXO.
Didier Lewis is the Finance Director of BTC Media, LLC (“BTC”). As Finance Director, he also has oversight of BTC’s finances, including its accounts receivable, accounts payable, and invoices payable to BTC’s vendors.
TTG sought to exclude Durham’s testimony on the grounds that it was unreliable and irrelevant.
According to TTG, Durham’s opinions were based on incomplete information given Durham’s role was to verify the costs TTG claims it incurred and to assess the reasonableness of those costs. Although Durham had multiple opportunities to review TTG’s documents, TTG argued that he failed to accurately compile the costs, thereby rendering his opinions unreliable.
The Court found that while Durham’s methodology, like most, could have possessed flaws, it was sufficiently reliable for the purposes of expert testimony. Durham reviewed numerous documents and provided a detailed analysis of the costs and markups. His methodology involved a thorough examination of TTG’s invoices and other financial records, and he explained the basis for his conclusions. Any perceived deficiencies in his methodology went to the weight of his testimony, not its admissibility.
The Court held that highlighting the potential disconnect between TTG’s Google Sheet entries and the underlying accounting documents was vital because it could suggest TTG’s billing practices may have been designed to obscure true charges. This made Durham’s testimony all the more reliable and relevant.
B. Kelly Semrad
TTG sought to exclude the testimony of Semrad on the grounds that it was unreliable and irrelevant. TTG argued that Semrad’s opinions were based on insufficient facts and data, and that she lacked the necessary expertise to opine on the reasonableness of TTG’s markups. Despite Semrad admitting that she did not have access to certain critical information, the Court held that her testimony was particularly relevant because it set a benchmark for evaluating TTG’s markups for Bitcoin 2022.
By comparing TTG’s charges with industry standards, Semrad provided a clear framework for the jury to assess whether TTG’s pricing was reasonable. Her testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms.
The Court found that her analysis was based on sufficient data and reliable principles, aligning with the requirements of Rule 702.
C.David Bailey and Didier Lewis
TTG sought to exclude the expert testimony of BTC’s CEO, David Bailey, and CFO, Didier Lewis, on the grounds that Bailey and Lewis were untimely disclosed.
Appealing to Federal Rule of Civil Procedure 37(c)(1), TTG argued that BTC’s failure to timely disclose these expert witnesses was neither substantially justified nor harmless, warranting exclusion of their testimony.
Further, TTG opined that BTC made multiple representations to the Court that they did not seek to designate experts for their counterclaims, the absence of a request to extend the Initial Designation deadline was prejudicial to TTG given their late disclosure.
However, BTC has consistently maintained that Bailey and Lewis will offer lay opinions under Federal Rule of Evidence 701, which allows business owners or officers to testify about the value or projected profits of their business based on personal knowledge. Both Bailey and Lewis have extensive firsthand knowledge of BTC’s financial operations and can provide valuable insights into the company’s lost profits.
TTG did not dispute Bailey and Lewis’ knowledge of the company’s finances but contended that their testimony constituted expert opinion requiring timely disclosure under Rule 26(a)(2). However, BTC supplemented their disclosures to include Bailey and Lewis as expert witnesses under Rule 702, likely anticipating potential objections from TTG.
The Court held that any prejudice to TTG was minimal, given their extensive personal knowledge and the supplemental disclosures.
Held
The Court denied that The Trade Group’s three motions to exclude the testimony of BTC CEO David Bailey and CFO Didier Lewis as well as Dr. Kelly Semrad and Gary Durham.
Key Takeaways:
The Court found Durham’s methodology sufficiently reliable because he reviewed numerous documents and provided a detailed analysis of the costs and markups.
Semrad’s testimony offered the jury a critical reference point for determining if TTG’s practices deviated from industry norms. The Court held that her testimony met the requirements of Rule 702.
The Court held that both Bailey and Lewis’ extensive firsthand knowledge of BTC’s financial operations will assist the jury in understanding the financial impact of the alleged damages and are therefore admissible.
In March 2023, Manhattan District Attorney Alvin Bragg, a Democrat, indicted Donald Trump on 34 charges tied to the hush money payments, accusing him of “falsifying New York business records to conceal damaging information and unlawful activity from American voters before and after the 2016 election.”
It all started when the Wall Street Journal reported on certain payments Michael Cohen, former Trump attorney and a key witness in Trump’s hush money trial made to adult film star Stormy Daniels before the 2016 presidential election.
Daniels and Karen McDougal, a Playboy model, came forward with unflattering stories about alleged affairs with Trump during the 2016 election. Cohen admitted that he obtained a line of credit on his home to make a payment of $130,000 to Daniels for a nondisclosure agreement about her encounters with Trump while National Enquirer’s parent company, American Media Inc., paid McDougal $150,000 for the rights to her story. Trump denied both affairs. He initially denied any knowledge of the payments, but he later admitted in a carefully worded tweet that he made them to Cohen. Cohen and AMI have both admitted they broke laws by making these payments.
Defendant introduced Bradley Smith to opine on the interpretation and application of federal campaign finance laws during the proceedings.
Elections Expert Witness
Bradley Alan Smith teaches Election Law at the Capital University Law School in Columbus, Ohio. He previously served as commissioner, vice chairman, and chairman of the Federal Election Commission (FEC) between 2000 and 2005. He has held prior visiting appointments at Princeton University and West Virginia University.
Smith’s writings on campaign finance and other election issues have appeared in the Yale Law Journal, the University of Pennsylvania Law Review, the Georgetown Law Journal, the Harvard Journal of Legislation, the Cornell Journal of Law & Public Policy, and other academic journals.
Prosecutors showed checks and ledgers demonstrating payments from Trump’s company to his former attorney, including a handwritten note outlining a payment plan for Cohen. David Pecker, the former publisher of the National Enquirer, admitted to working with Cohen in order to hide unflattering information. The witness list for this hush money casealso included former White House counsellor Hope Hicks. The government wanted Hicks to testify because she’d had conversations with both Trump and Michael Cohen, Trump’s former attorney, about Karen McDougal and Stormy Daniels.
When Cohen testified about his involvement in the hush money case, the judge explicitly told jurors that Trump could not be convicted based solely on Cohen’s testimony. Trump did not testify. The judge instructed the jury that Trump’s decision must not be used as a factor in their deliberations.
The judge overseeing the case, Juan Merchan, expanded a gag order on Trump after the former president attacked Merchan’s daughter on social media. He fined the Defendant a total of $10,000 for various violations.
Bradley A. Smith
Defendant disclosed Bradley Smith to opine on whether the Stormy Daniels (“Daniels”) payoff violated campaign finance law. Prosecution insisted that his proposed testimony be treated as expert testimony and not lay testimony. The Court agreed considering Smith did not possess personal knowledge regarding the underlying facts of the instant matter.
Defendant sought to elicit from Smith, among other things, that at the time Cohen paid Daniels, there had never been a case in which anyone had been convicted of a federal campaign finance law violation for the making of “hush money payments;” the facts surrounding the trial of former U.S. Senator and presidential candidate, John Edwards, his subsequent acquittal, and that the case was heavily criticized.
The Court permitted Smith to testify generally as to the following: general background as to what the Federal Campaign Commission (“FEC”) is, background as to who makes up the FEC, what the FEC’s function is, what laws, if any, the FEC is responsible for enforcing, and general definitions and terms that relate directly to this case, such as for example “campaign contribution” but barred him from opining on the interpretation and application of federal campaign finance laws and whether the alleged conduct in this case did or did not constitute a violation of the Federal Election Campaign Act (“FECA”).
Held
On March 18, 2024, the Court granted in part and denied in part the motion to exclude the testimony of Bradley Smith.
Two months later, a Manhattan jury found Donald Trump guilty of all 34 charges of falsifying business records, making Trump the first former president in American history to be convicted of a felony.
The 34 charges against the former president are Class E felonies, the lowest level in New York law. Trump, however, has said he will appeal.
Key Takeaway:
Federal investigators went after Cohen instead of Trump. The Manhattan DA took years to finally present the case to a grand jury. Now it could end up being the only one of the four criminal cases against Trump to go to trial before the November election but the guilty verdict, while a major political moment, does not prevent Trump from continuing his presidential campaign nor from serving should he win the White House.
The Court permitted Smith to provide background on what the Federal Campaign Commission (“FEC”) is but barred him from offering opinion testimony on the interpretation and application of federal campaign finance laws.
Case Details:
Case Caption:
People of the State of New York V. Donald J. Trump
A district judge in Oklahoma noted the expert witness’ extensive background in event safety at live events but barred him from testifying because he never inspected the area where Plaintiff fell and ignored relevant statutes and codes.
Plaintiff Boulac sought damages for injuries she allegedly sustained at the Bank of Oklahoma Center (“BOK Center”) in Tulsa, Oklahoma. Boulac was covering the NCAA Basketball Tournament as a member of the CBS Sports crew. She tripped on a cheerleader mat in a walkway.
On February 26, 2024, Defendant SMG identified Steven A. Adelman as an expert to provide an opinion on whether SMG breached or satisfied its duty of care owed to Boulac under Oklahoma law.
Adelman concluded that SMG met its duty of care by ensuring the mat was wholly outside the marked walkway designated for production workers and Boulac failed to meet her duty to maintain reasonable situational awareness. In other words, Boulac’s breach of her own duty of care was a proximate cause of her unfortunate injuries.
Plaintiff Boulac contended that Adelman should be permitted to testify because he lacked the knowledge, skill, experience, or education to qualify as an expert; Adelman’s opinions did not help the jury to understand the evidence or determine the facts in issue; and Adelman’s testimony was not supported by sufficient facts or data, or the product of reliable methods.
Safety Expert Witness
Steven A. Adelman has practiced as an attorney with Adelman Law Group, PLLC, “focusing on risk and safety at live events throughout North America” since 2010. He is the vice president of an international trade association Event Safety Alliance, since 2012. He is the principal author of “Crowd Management,” “Event Security,” “Event Safety Alliance Reopening Guide,” and editor of the forthcoming “Event Safety Guide,” second edition. Adelman was also an adjunct faculty member at Arizona State University, teaching “Risk management in Venues,” and an online “Sports Facilities Management” course.
Defendant SMG retained Adelman to offer testimony about “event safety standard of care.” Plaintiff Boulac contended Defendant SMG “was attempting to pass a litigation-experienced lawyer as an expert witness in a premises liability case.”
Qualifications
Adelman describes himself as “an authority regarding safety at live events, particularly crowd management and event security.” Adelman focuses on risk and safety at live events throughout North America. Plaintiff Boulac argued that Adelman’s “education and work history demonstrated that he lacked the necessary experience to opine on event safety standards of care or Human Factors Engineering principles and definitions.” Adelman testified to never taking any classes on live event operations or crowd management, either during school or since graduation from law school. He admitted to not having any licenses or certifications in these, or the event safety fields.
The Court, however, concluded that Adelman was qualified in the area of event safety because of his extensive background in event safety at live events, including many publications and his position as the vice-president of an international trade association.
Reliability and Relevance
The Court held that Defendant SMG failed to meaningfully satisfy its burden at each step of the Daubert analysis and instead focused solely on the supposed difference between “back of house” and “front of house” standards of care.
To begin with, Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care— were all legal conclusions.
Next, the Court concluded that Adelman’s testimony would not help the jury understand the evidence or to determine a fact in issue. As Adelman acknowledged (and as Plaintiff Boulac pointed out), “there is no standard of care that requires venue operators to store thick mats any particular distance away from brightly marked paths of travel in a back of house production area such as BOK Center during an NCAA tournament.”
The Court also agreed with Plaintiff Boulac that testimony on situational awareness did not require specialized knowledge and would be commonly known and easily understood by the jury.
The Court held that Adelman’s opinions were based upon the various court documents filed in this case (complaint, motion for summary judgment, discovery responses), BOK Center contracts, incident reports and depositions. Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In conclusion, Adelman’s testimony was not supported by sufficient facts or data, or reliable principles and methods.
Held
The Court granted the Plaintiff Boulac’s motion to exclude the testimony of Defendant’s purported expert, Steven A. Adelman.
Key Takeaways:
Whether Defendant SMG reasonably knew or should have known of the alleged dangerous condition, and whether it acted reasonably in mitigating and protecting against the danger, are factors in determining whether an owner is liable to an invitee under Oklahoma law. This led to the Court rejecting all of Adelman’s three opinions—Defendant SMG met its duty of care, Plaintiff Boulac failed to meet her duty, and Plaintiff Boulac breached her duty of care.
Adelman contended that Boulac failed to meet her duty to maintain reasonable situational awareness. The Court held that testimony on situational awareness did not require specialized knowledge.
The Court found that Adelman never inspected the area where Boulac fell and ignored relevant statutes and codes. In this regard, Adelman’s testimony was based on subjective belief or unsupported speculation
On March 13, 2020, sixteen Montana youth (collectively Plaintiffs or Youth Plaintiffs), then between two and 18 years old, filed a complaint against the State of Montana challenging the constitutionality of the State’s fossil fuel-based state energy system, which they alleged caused and contributed to climate change in violation of their constitutional rights guaranteed under Article II, Section 3; Article II, Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1; Article IX, Section 3 of the Montana Constitution; and the Public Trust Doctrine.
Specifically, the complaint challenged the constitutionality of certain fossil fuel-based provisions which prohibited the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews; and the aggregate acts the State took to implement and perpetuate a fossil fuel-based energy system.
Youth Plaintiffs asked the Court to acknowledge the [Montana Environmental Policy Act] Limitation’s contribution to the depletion and degradation of Montana’s environment and natural resources.
Ecology Expert Witnesses
Dr. Steven Running is a University Regents Professor Emeritus of Global Ecology in the College of Forestry and Conservation at the University of Montana. Running currently co-chairs the standing Committee for Earth Science and Application from Space of the National Academy of Science. In 2007, Running shared the honor of the Nobel Peace Prize as a chapter Lead Author for the 4th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC).
Dr. Dan Fagre holds a Ph.D. from the University of California, Davis. He joined the National Park Service as a research scientist in 1989 and, in 1991, he became the Climate Change Research Coordinator at Glacier National Park as part of the nationwide United States Global Change Research Program. His position was transferred to the United States Geological Survey (USGS), where he served until his retirement in 2020, after which he has continued as Scientist Emeritus. He also served as a Research Ecologist at the Northern Rocky Mountain Science Center.
Dr. Jack Stanford received his Ph.D. in Freshwater Ecology at the University of Utah.He is Professor Emeritus at the Flathead Lake Biological Station (FLBS) of the University of Montana. He was the Director and Bierman Professor of Ecology at the University of Montana (1980-2016). His primary area of research is aquatic ecosystem processes, including influences of human activities.
Dr. Cathy Whitlock is Regents Professor Emerita of Earth Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State University (MSU). Whitlock was lead author of the 2017 Montana Climate Assessment, and in 2020 co-authored a state-level Montana Climate Solutions Plan and a 2021 special report of the Montana Climate Assessment entitled Climate Change and Human Health in Montana. Whitlock was also co-lead author of the 2021 Greater Yellowstone Climate Assessment.
Dr. Lori Byron obtained a Doctor of Medicine degree in 1984. She has been a board-certified pediatrician since 1988. Byron earned a M.S. in Energy Policy and Climate from Johns Hopkins in 2020. From 1988-2015, Byron worked with the Indian Health Service in Crow Agency, Montana, providing primary care, emergency care, and public health services to Crow Indian children. Byron now works as a pediatric hospitalist at SCL Health in Billings, Montana. Byron has decades of experience caring for children who have suffered Adverse Childhood Events (ACEs). Over the past decade, Lori Byron and her husband, Rob Byron, have made presentations on climate change and health locally, nationally, and internationally.
Dr. Lise Van Susteren is a board certified general and forensics clinical psychiatrist, in practice for thirty years. She is a Clinical Associate Professor of Psychiatry and Behavioral Sciences at George Washington University in Washington, D.C. In 2009, Van Susteren co-convened one of the first conferences on the psychological effects of climate change. In 2013, Van Susteren worked with Dr. James Hansen and other experts on a paper, Assessing “Dangerous Climate Change”: Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature. She received the Distinguished Fellow award of the American Psychiatric Association, its highest membership honor in May 2018. Van Susteren has helped develop youth climate anxiety assessment tools, conducted research and reviewed data in assessing the mental health of young people faced with climate change.
Michael Durglo, Jr., is a member of the Confederated Salish and Kootenai Tribes (CSKT). He has a Bachelor of Science degree in Environmental Science from Salish Kootenai College. Durglo has worked in different capacities for the CSKT for over three decades. In his current role as Head of the Tribal Preservation Department and Chairman of the Climate Change Advisory (CCAC), Durglo has worked extensively with tribal elders and youth on climate related issues.
Anne Hedges received a B.S. in environmental policy analysis and planning from the University of California at Davis in 1988 and a Master of Environmental Law, magna cum laude, from Vermont Law School in 1993. She is Co-Director and Director of Policy and Legislative Affairs at the Montana Environmental Information Center (MEIC). She directs MEIC’s program work, including its legislative, regulatory, policy, and legal activities.
Peter Erickson received a bachelor’s degree in Geology in 1998 at Carleton College, Minnesota, as well as coursework in intermediate microeconomics and macroeconomics at the University of Washington. Erickson has worked as an environmental and climate policy and technical analyst in greenhouse gas emission accounting, most recently with the Stockholm Environment Institute, an international research institution providing, in part, technical analysis to government and NGOs on the details of climate policy and emissions accounting.
Terry Anderson has published widely in the popular press and professional journals, including The Wall Street Journal, Christian Science Monitor, Fly Fisherman, Journal of Law and Economics, and Economic Inquiry. During his career at Montana State University, Anderson received several outstanding teaching awards and is now professor emeritus of economics. He received his B.S. from the University of Montana and earned a Ph.D. in economics from the University of Washington.
Mark Jacobson obtained a M.S. in Environmental Engineering, from Stanford University. Dr. Jacobson also obtained both a M.S. and later a Ph.D. in Atmospheric Sciences from UCLA. In 1994, Jacobson became an Assistant Professor in the Department of Civil & Environmental Engineering at Stanford. Since 2007, he has been a full professor in that Department. Jacobson was a co-founder and is Director of Stanford’s Atmosphere/Energy Program, as well as a Senior Fellow at Stanford’s Precourt Institute for Energy, and Stanford’s Woods Institute for the Environment.
Steven Running provided testimony in the general areas of the climate system, including the energy balance and imbalance, the physics of GHG emissions that are driving climate change, the global carbon cycle, the global hydrologic cycle, how they control this energy imbalance, and then how human caused fossil fuel development is harming Montana’s ecosystems and hydrology while Cathy Whitlock explained how human-caused fossil fuel development and the resulting release of CO2 into the atmosphere are harming Montana’s ecosystems, water supplies, communities, and the Plaintiffs themselves. Whitlock’s testimony included projections for Montana’s future based on continuing or increasing the present rate of GHG emissions.
CLIMATE CHANGE HARMS CHILDREN AND SPECIFICALLY THE YOUTH PLAINTIFFS
Lori Byron provided testimony that climate change and the air pollution associated with it are negatively affecting children in Montana, including Youth Plaintiffs, with a strong likelihood that those impacts Will worsen in the absence of aggressive actions to mitigate climate change. Lise Van Susteren provided testimony on the physiological harms caused by climate change to Montana’s youth, including the Youth Plaintiffs, the psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries. Michael Durglo brought to the table his extensive experience working with tribal elders and youth on climate related issues. The Court found their testimony informative and credible.
CLIMATE CHANGE IS ALREADY ADVERSELY AFFECTING MONTANA’S NATURAL ENVIRONMENT
Dan Fagre helped develop a national climate change research program within the National Park Service, coordinating with other scientists at national parks from Florida to Alaska. He built a research program centered on Glacier Park as a representative mountain ecosystem, engaging faculty and scientists from Montana universities and across the U.S.
Jack Stanford has published over 220 scientific papers and books on aquatic ecosystem processes, including influences of human activities.
Both Stanford and Fagre were of the opinion that anthropogenic climate change was impacting, degrading, and depleting Montana’s environment and natural resources.
The Court observed that of the approximately 146 glaciers present in Glacier National Park in 1850, only twenty-six glaciers larger than twenty-five acres remained in 2015. 82% of Glacier Park’s glaciers were gone and there had been a 70% loss of area of all glaciers. Moreover, Montana’s water resources were critically important to Youth Plaintiffs and all Montana citizens and to many people beyond the State’s borders. Anthropogenic climate change was disrupting the natural range of variation in the flow paths of Montana’s river systems.
DEFENDANTS’ ACTIONS CONTRIBUTE TO CLIMATE CHANGE AND HARM PLAINTIFFS
Anne Hedges shed light on pollution-related policy issues in Montana, emphasizing on impacts to air, water, landscapes, and climate from fossil fuels.
Peter Erickson testified about Montana’s fossil fuel consumption, extraction, and infrastructure, focusing on three categories: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users. For each of these categories, Erickson quantified the amount of coal, oil, and gas and translated that in units of carbon dioxide (CO2) emissions released from the fuels once they are combusted. Erickson added up all the coal, oil, and gas to determine the emissions associated with the extraction, consumption, and transportation of those fuels. In his opinion, emissions from Montana’s fossil fuel consumption, extraction, and infrastructure were globally significant quantities.
Defendants offered the testimony of Terry Anderson as an expert economist. Purporting to be based on data from the Energy Information Agency (EIA), Anderson provided extremely limited testimony in response to three questions: (1) the total greenhouse gas emissions for the world; (2) the 2020 greenhouse gas consumption emissions for the state of Montana; and (3) the 2022 greenhouse gas consumption emissions for the state of Montana.
The Court held that Anderson’s testimony was not well-supported and contained errors.
Defendants permitted three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users.
Data indicated that in 2019, total annual fossil fuels consumed in Montana led to about 32 million tons of CO2 being released into the Atmosphere.
THE MEPA LIMITATION PREVENTS FULL REVIEW OF THE TECHNOLOGICALLY AND ECONOMICALLY AVAILABLE ALTERNATIVES TO FOSSIL FUEL ENERGY IN MONTANA
In this case, Mark Jacobson summarized his research related to Montana and the feasibility of transitioning Montana swiftly from fossil fuels to clean and renewable energy in all sectors by mid-century, where all energy sectors include electricity, transportation, heating/cooling, and industry.
Data indicated that it was technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030 and 100% by no later than 2050, but as early as 2035.
Held
The Court ruled that the MEPA Limitation deprived Plaintiffs of their constitutionally guaranteed rights. It upheld Plaintiff’s fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.
Key Takeaways:
Informative and credible testimony presented by experts helped the Court see that Montana has already warmed significantly more than the global average. The science is clear that there are catastrophic harms to the natural environment of Montana and Plaintiffs and future generations of the State due to anthropogenic climate change.
In terms of per capita emissions, Montana’s consumption of fossil fuels is disproportionately large and only five states have greater per capita emissions. Montana is a major emitter of [greenhouse gas] emissions in the world in absolute terms, in per person terms, and historically. The current barriers to implementing renewable energy systems are not technical or economic, but social and political. Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system.
Case Details:
Case Caption:
Held V. State
Docket Number:
CDV-2020-307
Court:
First Judicial District Court of Montana, Lewis and Clark County
A district judge in Massachusetts admitted the findings of an expert economist meant to advance a theory of disparate impact.
Plaintiffs Marc Savage (“Savage”) and Randolph Blake (“Blake”) (collectively referred to as “Plaintiffs”), a retired and current employee, respectively, of the Fire Department for the Defendant City of Springfield (“City” or “Springfield”), pursued claims of race discrimination against the City.
Plaintiffs, who are Black, cited the Defendant’s failure to enforce the City’s residency ordinance which has denied promotional opportunities to Black and Hispanic firefighters. According to the Plaintiffs, Defendants maintained a racially hostile work environment and retaliated against them for engaging in protected activity.
Plaintiffs indicated that they intended to call Dr. Christopher Erath as an expert during trial in connection with their claim that the City’s failure to enforce the City’s Residency Ordinance had a disparate impact on minority firefighters by depriving them of promotional opportunities within the department. Defendants asserted that Erath’s testimony should be excluded on Daubertgrounds because disparities in promotion were not sufficiently significant to draw an inference of causation necessary to make out a prima facie case of disparate impact.
Economics Expert Witness
Christopher Erath received A.B. degrees in Economics and Mathematics from Bowdoin College and a Master’s and Ph.D. in Economics from the University of Wisconsin. Erath’s primary area of interest is labor economics. He has served as an expert witness in numerous matters involving damages in employment discrimination and wage and hour claims and has also prepared extensive studies of statistical liability in employment proceedings and opined on class certification issues.
Michael Campion is an Industrial and Organizational Psychologist and specializes in human resource management and organizational behavior. Dr. Campion operates a small consulting firm that has conducted over 1200 projects on a wide range of human resource topics for nearly 170 clients in both private and public sector settings. He has been a Professor of Management at Purdue University since 1986. Previously he worked full time for 8 years at IBM and Weyerhaeuser Cos.
Erath indicated that he was asked to address two questions, as follows: (1) Are there racial differences in the rate at which employees satisfied the City of Springfield’s residency requirement?; and (2) Are there racial differences in the composition of the department’s officer ranks?
According to Erath, his understanding was that any firefighter hired or promoted on or after March 17, 1995, was required to live in the City.
In conducting his analysis, Erath utilized the spreadsheet provided by Plaintiffs’ counsel to calculate the percentage of firefighters who satisfied the residency ordinance by race (black, Hispanic, and white), both globally and by rank (firefighter, lieutenant, captain, and above). He then performed Fisher’s Exact tests to determine the likelihood that the different compliance rates by race could have occurred by chance. Finally, he calculated the percentage of firefighters of each race (black, Hispanic, and white) who achieved each rank (firefighter, lieutenant, captain, and above).
Erath concluded that there was a high and statistically significant correlation between residency compliance and race among uniformed employees of the Springfield Fire Department and that if Springfield consistently enforced the 1995 residency requirement, the enforcement action would have disproportionately disqualified whites.
B. Defendants’ Rebuttal Expert
Defendants submitted an affidavit from Michael Campion, Ph. D., in rebuttal to the opinions of Erath. To begin with, Campion found fault with Erath’s analysis because it relied on data going back to 1984, rather than limited to the time periods established by the Court, for Plaintiff’s claims and for including the entire pool of Springfield fire fighters, rather than just those qualified for promotion.
The Springfield Fire Department considered candidates who met the minimum experience requirements, took and passed the civil service exam, and had results coming within the 2n+1 formula for promotions.
Campion then undertook his own analysis using what he maintains is a proper candidate pool for purposes of determining disparate impact in promotion consisting of candidates on the promotional lists from 2015 to the present.
Campion claimed to find no statistical evidence of adverse impact for the jobs in either minority group during the period of the case.
C. Motion to Exclude the Testimony of Christopher Erath
Defendants contended that despite Erath’s use of the Fisher’s Exact test, the underlying data included stale data that goes back over thirty years and did not comport with Massachusetts Civil Service law governing eligibility for promotion because it included the entire pool of firefighters employed by SPD, without considering the Civil Service requirements.
Defendant argued that if it involves the relevant statistical pool, consisting only of minorities and non-minorities qualified to undertake the ranked positions of Lieutenant, Captain, District, Chief, and Deputy Chief within the Springfield Fire Department during the pertinent time-period, the Court cannot draw an inference of causation based on the disparities in promotion.
Plaintiffs argued that Defendants’ failure to disclose Campion as an expert under Rule 26 before the Court’s January 18, 2022 deadline compromised their ability to engage in requisite discovery, including deposing Campion.
The Court held that Defendants were free to try to expose what they viewed as the shortcomings of Erath’s opinions on cross-examination, including by posing questions based on Campion’s analysis. However, the Court did not permit Defendants to call Campion as an expert witness based on their excused and unexcusable failure to comply with the deadline.
Held
The Court denied Defendant’s motion to exclude opinion testimony and declaration evidence of Christopher Erath.
Key Takeaway:
The factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. In other words, cross-examination was the appropriate tool for probing the underpinning of Erath’s testimony and not outright preclusion of his expert opinions.
Spokeo owns and operates the website spokeo.com. It collects consumer and public data from various public sources and private vendors, associates that data with particular names, and publishes it online.
Using proprietary algorithms and systems, Spokeo “attempts to collect and aggregate and merge all that data into persons, person objects, which are then designated with a unique [personal identifier or ‘PID’] for that person object.” That aggregated data, associated with a particular PID, can then be searched for by users of the website. It is also used to populate “teaser profiles,” which can be viewed by the public without a subscription to the website. The teaser profiles advertise additional personal information about the subject of the profile, including about their family, court records, sex offender registration status, marital status, and more.
The Plaintiffs, Aviva Kellman, Jason Fry, Nicholas Newell, Susan Gledhill Stephens, and William Williams V, found a teaser profile associated with their personal information.
The Plaintiffs said that they did not consent to Spokeo’s use of their information on its website. They asserted that Spokeo’s publication of their personal information violated their statutory rights of publicity and common law rights regarding misappropriation of name and likeness. They sought class certification against Spokeo for four classes of people in California and Ohio.
Spokeo filed motions to exclude the declaration and testimony of Plaintiffs’ experts, Michael Naaman and Steven Weisbrot. In response, the Plaintiffs also filed a motion to exclude Spokeo’s expert, David Alfaro.
Economics Expert Witness
Michael Naaman, Ph.D., is a senior consultant specializing in antitrust, econometrics, and machine learning. He has provided economic and econometric analysis in issues relating to patent infringement and intellectual property, false advertising, and antitrust disputes.
Naaman has a decade of experience in the economic consulting industry. He received his Ph.D. in economics from Rice University, and he received a M.S. in statistics and B.S. in economics, math, and physics from Tulane University.
Steven Weisbrot, Esq. has been responsible for the design and implementation of hundreds of court-approved notice and administration programs. He is President and Chief Executive Officer of Angeion Group, a leading provider of comprehensive settlement management services. Weisbrot is a licensed attorney in Pennsylvania and New Jersey.
David Alfaro is a Senior Managing Director and co-leads the Data & Analytics West Coast practice and is based in San Francisco. Over his 30-year career, Alfaro has led more than 200 engagements as an expert witness and expert consultant, nearly all of which have been in the investigations and disputes space.
Moreover, he is an expert in the areas of collecting enterprise-wide information with extensive experience in complex, data-intensive analyses in response to government or internal investigations and litigation. In this capacity, Alfaro has provided formal and informal testimony to federal and state courts, the Federal Trade Commission (“FTC”), the Consumer Financial Protection Bureau (“CFPB”), the Federal Bureau of Investigation (“FBI”), the Securities and Exchange Commission (“SEC”), the Department of Justice (“DOJ”), the U.S. Attorney’s Office, the Financial Industry Regulatory Authority (“FINRA”) and other federal agencies.
Spokeo’s Motion to Exclude Declarations and Testimony of Michael Naaman and Spokeo’s Motion to Strike Naaman’s New Reply Declaration
Spokeo filed a motion to exclude Naaman’s declaration and testimony, arguing that his class size calculations are unreliable and that his method to calculate damages is fundamentally flawed.
Spokeo argued that Naaman failed to exclude Spokeo users, dead people, people who assigned their rights, duplicated profiles, profiles with inaccurate home addresses, and profiles that refer to people who are not real from his class size calculations. The Court considered the argument superfluous as Spokeo did not challenge numerosity. Even if Naaman should have excluded each of these, the classes clearly would still meet the numerosity requirements given the data upon which he relied and the evidence of Spokeo’s business model, which is apparently designed to have a teaser profile for every American adult.
Also, Spokeo sought to exclude Naaman’s declaration and testimony about damages calculations, asserting that Naaman did not provide a method for calculating damages and instead simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes.
The Court held that, pursuant to Rule 702, it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages, and this would help the trier of fact.
Spokeo’s Motion to Exclude Declarations and Testimony of Steven Weisbrot
Class Notification:
Spokeo also moved to exclude the declaration and testimony from Weisbrot about class notification, asserting that it was irrelevant and that its methodology was unreliable.
Weisbrot’s proposed notification method involved sending emails to potential class members using the email addresses posted on Spokeo’s teaser profiles, by publication in the media, and by website. Though his proposed method provided notice to the nationwide classes, he explained how he would and could use the same method on a narrower target audience if smaller classes were certified, such as statewide classes.
Spokeo contended that Weisbrot’s notice plan will provide notice to all potential class members in the Purchase classes, and that this is overbroad because it is not directed only to members of the Viewed Prior to Purchase classes, for which notice is mandatory under Rule 23(b)(3). But the Federal Rules permitted notice to 23(b)(2) classes like the Purchase classes, and Spokeo offered no reason why notice should not be provided to them.
The Court rejected Spokeo’s argument that Weisbrot not offering a way to target solely Viewed Prior to Purchase members was merely another way to argue that the Plaintiffs were unable to identify their own class members from common evidence. Moreover, the Court found Spokeo’s argument about Plaintiffs self-identifying bizarre because claimants do not have to know pre-filing which class they are in.
Notice Methodology
Finally, Spokeo asserted that Weisbrot should not rely on the email addresses that Spokeo has in its possession and includes for teaser profiles because they might not be real or correspond to a real person. Despite Spokeo’s asserting that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court found it highly likely that many of the email addresses were correct for many of the teaser profiles.
Plaintiffs’ Motion to Exclude Declaration and Testimony of David Alfaro
Plaintiff argued that Alfaro misrepresented evidence about Spokeo data vendors, was unqualified to opine on class size or Naaman’s methodology, was not an expert on class notice and could not opine on Weisbrot’s methodology, and provided improper legal conclusions.
The Court held that it did not rely on Alfaro’s declarations to assess Naaman’s declaration or the validity of Weisbrot’s methodology. In other words, the Court denied Plaintiff’s motion to exclude Alfaro’s testimony as moot because that was the driving basis for which the Plaintiffs challenged Alfaro’s declaration.
Held
The Court granted Plaintiffs’ motion for class certification for the California and Ohio classes, with certain amendments to the class definitions. The motion for the nationwide classes was withdrawn.
To sum it up, the Court denied Spokeo’s motion to exclude the testimony of Michael Naaman and Steven Weisbrot. The Plaintiffs’ motion to exclude David Alfaro’s declaration and testimony was denied as moot.
Key Takeaway:
Naaman simply multiplied the number of class members by the minimum statutory penalty sought by the Plaintiffs for the Viewed Prior to Purchase classes. The Court held it was a logical way to calculate damages in a case where the Plaintiffs seek the statutory minimum for damages.
Despite Spokeo’s assertion that its email address data was inherently unreliable, and given the evidence about its use of data gathering and associating via personal identifier labels to connect names with addresses and other information, the Court held that it was highly likely that many of the email addresses are correct for many of the teaser profiles. Hence, Weisbrot could rely on the email addresses that Spokeo had in its possession and remove junk, fake, or inaccurate emails, to the extent possible.
A district judge in Texas allowed a truck safety expert to testify about safety regulation compliance after stating that his testimony did not consist of methodological flaws.
Plaintiff Antoine Manson alleged that on March 20, 2021, at about 3:00 a.m., he was traveling on Loop 1604 in Bexar County, Texas when he was struck by Defendant Mariel A. Arias-Padilla (“Defendant Driver”), who was driving a commercial motor vehicle within the course and scope of her employment with Defendants B&S Trucking of Jackson, LLC (“Defendant Company”) and JJ&C Express Corp.
The force of the impact allegedly caused Plaintiff to lose control and subsequently crashed into the median concrete barrier. Plaintiff alleged that he suffered major injuries as a result.
Plaintiff sought to exclude the testimony of Rodney Ellis, Defendants’ expert witness. The Defendants designated Ellis as a commercial vehicle safety and safety regulation compliance expert. The Defendants stated that Ellis may testify regarding “commercial vehicle safety, hiring, training, supervision, risk management, loss prevention, regulatory compliance, operations, driver qualifications, driver safety procedures, hours of service regulations, and driving techniques.”
Safety Expert Witness
Rodney Dean Ellis II has been involved in the trucking industry as a licensed commercial truck driver and safety consultant since 1991, performed “dozens of audits of commercial motor carriers/shippers,” and received professional training by several transportation associations.
Plaintiff did not appear to challenge Ellis’ qualifications to testify. Rather, Plaintiff disputed Ellis’ conclusion that while Defendant Driver “was in off duty status, the global positioning data in the driver log records indicated that she had a co-driver who drove the tractor-trailer while she was off-duty.”
Plaintiff asserted that in reaching this conclusion, Ellis ignored key evidence including i) the driver logs do not indicate a co-driver; ii) Defendant Driver provided conflicting deposition testimony regarding the presence of a co-driver; and iii) the police report does not indicate the presence of such a co-driver.
Defendants countered that Ellis relied on several parties’ depositions (including Defendant Driver), driver logs, global positioning data contained within the driver logs, and an “Interview with [Driver Defendant] Mariel Arias-Padilla.”
Based on this information, Ellis testified he concluded there was evidence of a second driver because there was no unidentified driver movement of the vehicle in the logs, supporting that another driver with identifying credentials was logged into the system; that the logs contained no error messages consistent with Defendant Driver logged out but no other driver logged in; and that the data shows another driver logged into the database, though it does not specify which driver.
Moreover, the Court held that the Plaintiff did not identify any methodological flaws with Ellis’ work. Rather, Plaintiff pointed to extrinsic evidence—such as conflicting testimony from Defendant Driver or the police report—to undercut Ellis’ interpretation of the driver logs.
In conclusion, the Court found Ellis’ opinion reliable, because the driver logs were crucial in determining whether Defendant Driver was fatigued at the time of the accident.
Held
The Court denied the Plaintiff’s motion to exclude Defense Expert Rodney Ellis.
Key Takeaway:
The Court, citingHolcombe v. United States, 516 F. Supp. 3d 660, 675 (W.D. Tex. 2021), held that an opposing party’s “doubts about the bases” of an expert opinion did not render an expert opinion “unsupported,” and such questions affected “the weight to be assigned to that opinion rather than admissibility.”
A district judge in Colorado limited the opinion of a vocational expert because the injuries were obscure and a loss of future earnings capacity could not be deduced from the same.
This case arises from a car accident that occurred on July 7, 2020, between Plaintiff and a person who was operating a commercial semi-truck while in the course and scope of his employment with Defendant. The semi-truck collided with Plaintiff’s vehicle causing Plaintiff to suffer various claimed physical and cognitive injuries. Plaintiff has sued Defendant under theories of respondeat superior and agency liability. Defendant admitted the semi-truck driver was operating the vehicle within the course and scope of his employment at the time of the accident and has admitted liability. The parties, however, disputed the nature and extent of Plaintiff’s alleged injuries, damages, and losses.
In his Rule 26(a)(2)(B) disclosures, Plaintiff Timothy Korbe disclosed Daniel B. Best, a certified vocational rehabilitation counselor, to offer opinions regarding his calculations of Plaintiff’s past and future wage losses. Defendant Doug Andrus Distributing LLC filed a motion to preclude these opinions under Federal Rule of Evidence 702.
Vocational Rehabilitation Expert Witness
Daniel B. Best is a Certified Rehabilitation Counselor (CRC) with a Master of Arts in vocational rehabilitation counseling and vocational evaluation that he obtained in 1989. For numerous years of his career he has engaged in providing services which include labor market analysis, job analysis, counseling, earning capacity, vocational exploration, and job development and placement. These services sometimes require Best to analyze a worker’s earnings at different points in time.
Throughout his career, since 1989, Best has testified as an independent vocational expert in over 10,000 Social Security disability hearings and has been qualified as an expert in vocational rehabilitation counseling and vocational evaluation in over 250 workers compensation cases, approximately 20 to 25 divorce proceedings, and over 50 personal injury and other cases throughout the state courts of Colorado, administrative courts, and this United States District Court.
The Defendant argued that Best was not qualified to opine on Plaintiff’s past wage loss, his methodology was unreliable, and his opinions would not assist the fact finder.
Best’s Past Wage Loss Opinion
Considering his education, training, and experience, the Court found Best qualified to opine on Plaintiff’s past wage loss. But the Court noted the Defendant’s concern over his methodology for calculating that loss.
Best calculated Plaintiff’s past wage loss using simple math, considering a one year period when Plaintiff was placed on medical leave from work purportedly due to his accident-related injuries. He took the amount Plaintiff made the prior year—$85,463—and opined that “during the year off work . . . I believe [Plaintiff] lost $85,463 minus any wage replacement provided to him.”
The Court held that grounding in reliable facts and tie to Best’s expertise is what saved the opinion.
Plaintiff’s social security statement showed he made $85,463 in 2019. The accident in this case occurred on July 6, 2020. Plaintiff’s employer placed him on medical leave in August 2020 due to the severe headaches and “sensory overload” he experienced when he tried to return to work. Plaintiff eventually returned from leave and worked 40 hours a week beginning July 6, 2021. These are reliable and verifiable facts upon which Best based his past wage loss opinion. And while his methodology for calculating those damages is uncomplicated, Rule 702 neither expressly nor impliedly requires an expert’s mathematical calculations to be complex. To sum it up, the Court refused to strike Best’s opinions regarding Plaintiff’s past wage loss.
Best’s Lost Earning Capacity Opinion
Best Lacked Qualifications to Testify about Plaintiff’s Lost Earning Capacity
The Court held that Best’s qualifications to render an opinion on Plaintiff’s lost earning capacity were suspect. Black’s Law Dictionary defines “lost earning capacity” as “a person’s diminished earning power resulting from an injury.” While Best has experience calculating wage losses, there is little in his background to suggest his experience determining a person’s earning capacity, determining the extent of a reduction in that capacity, and then placing a monetary value on that diminution.
Best testified that calculating economic losses falls within his expertise from only “a basic standpoint.”
Best’s calculation of these damages is not based on sufficient facts or reliable principles or methods
Best’s opinion here is not based on any medical professional opining that it is probable Plaintiff will be unable to work in the future due to his accident-related injuries. It is instead based on the Plaintiff’s view that he “likely” will have to stop working before retirement age.
Plaintiff’s injuries are of the obscure variety. His injuries involve diagnoses of traumatic brain injury, sequelae, mild neurocognitive disorder, post-concussion syndrome, and he suffers from cervicogenic headache, posttraumatic headache of an unspecified chronicity pattern, visual disturbance, and other issues.
Because Best’s lost earning capacity calculation was not based on any factual predicates from a medical expert regarding the extent of his injuries and their probable effect on his ability to work at all in the future, the Court held that Best’s opinion in this regard failed to satisfy Rule 702.
Held
The Court granted in part and denied in part the motion to strike Daniel Best’s opinions. Plaintiff met his burden to show that Best’s past wage loss opinions satisfied the requirements of Fed. R. Evid. 702, but he did not meet his burden to show that Best’s lost earning capacity opinions did the same.
Key Takeaways:
There is no implicit requirement in Fed. R. Evid. 702 for the proffered expert to make complicated mathematical calculations.
Where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, they must be proved by the testimony of medical experts.
This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient “to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use” unless the doctor or patient asks the pharmacist about these drugs’ efficacy first. A pharmacist who violates the statute by alerting a doctor or patient that the FDA has not approved either drug to treat a particular disease may be professionally disciplined, including potentially losing her license. But a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction. Plaintiff, a pharmacist, contended that the statute violated the First Amendment.
Dennis K. McAllister is a pharmacist Defendants have retained to offer expert testimony. After reviewing McAllister’s expert report, Plaintiff filed a motion to exclude his opinions that offered legal opinion and legal analysis.
It is his opinion that the societal interests at stake include protecting the prescriberpatient relationship, guarding the public from possible harassment, ensuring appropriate professional competence from pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.
The prescriber-patient relationship requires individual assessment and personalized care after examination by a doctor or medical professional. This relationship involves a level of time, trust, and sharing of information that is critical for society and the health of individual patients. According to McAllister, the statute protects this relationship by limiting the way pharmacists may interact with patients or doctors.
Pharmacy Expert Witness
Dennis K. McAllister is the founder of McAllisteRx Consulting LLC. He has been Director of Pharmacy in three hospitals. He is consultant and expert with years of experience in the areas of pharmacy standard of care, negligence, pharmacy laws and regulations, pharmacy automation and development of innovative practice models.
McAllister served on the Arizona State Board of Pharmacy for 23 years, and as its president four times. Moreover, he served on the Executive Committee of the National Association of Boards of Pharmacy (NABP) for 6 years, and as its president in 2005-2006.
In response, Defendants extolled McAllister’s expert qualifications as a pharmacist and noted that it is permissible for an expert to opine on industry standards and practices.
But Defendants did not dispute that Eighth Circuit law prohibits a pharmacist from interpreting statutes or offering legal opinions and analysis. Nor could they, because it is firmly established that an expert may not testify as to legal issues or express legal opinions.
Held
The Court granted Plaintiff’s motion to exclude McAllister ‘s opinions. The Court barred McAllister from testifying that : (1) the statute protects the prescriber-patient relationship by “limiting the way pharmacists may interact with patients or doctors;” (2) “the statute identifies an area where” the goal of public trust in pharmacists “may be furthered;” or (3) “the law furthers the important societal interests and interests of the profession of ensuring accurate, reliable, consistent, and authoritative information is conveyed, protecting the prescriber-patient relationship, ensuring appropriate professional competence for pharmacists, and promoting public trust in the pharmacy profession and the practice of medicine.”
Key Takeaway:
Expert testimony on legal matters is not admissible because matters of law are for the trial judge. In other words, a district court may exclude the testimony of an expert if it finds that such testimony constitutes an impermissible instruction on the law.
