This Federal Tort Claims Act (FTCA) case arises out of an accident that occurred on January 5, 2021 between Plaintiff Avery Stinson and a U.S. Postal Service tractor-trailer driven by Stewart Henry. When the accident occurred, Plaintiff was operating a bicycle on a sidewalk and attempting to cross an intersection. At the same time, a U.S. Postal Service tractor-trailer was traveling in the same direction parallel to the sidewalk and initiated a right turn at the same intersection.The bicycle collided with the trailer portion of the tractor-trailer, and Plaintiff sustained injuries as a result of the accident.
Dean Nance has applied his training, experience, and skills in Accident Reconstruction on 100’s of motor vehicle crashes as a member of the Texas Department of Public Safety as a Trooper. During his service with the Texas Department of Public Safety, he completed all 6 Levels of training in Accident Reconstruction. He owns an Accident Reconstruction Investigations Company, and is licensed through the Texas Department of Public Safety Private Security Bureau as a Private Investigations Company.
Nance is also a member of professional societies which specialize in Accident Reconstruction: (TAARS) Texas Association of Accident Reconstruction Specialist, The Laser Scanner Forum, The American Association of Notaries, The Khan Academy of Science and Engineering, and The Crash Forum Group.
Nance’s report failed to meet the requirements of Rule 26(a)(2)
Defendant argued that Nance’s report failed to provide “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them” as required by Rule 26.
The Court held that Nance’s report listed his qualifications as an accident reconstructionist and the evidence he reviewed and the tasks he performed in reaching his conclusions. For example, the report stated that Nance “documented the crash scene” and “made a map of the crash scene location using Google Earth Pro.” The report identified materials he consulted such as excerpts from J.J. Keller Truck Driving Training Manual and Smith System Driver Study Guide.
Plaintiff also provided Nance’s curriculum vitae, listing professional experience, specialized training and certificates, awards received, and state and federal court testimony as an accident reconstructionist.
Defendant also moved to strike Nance’s opinions in his report on the ground that the report “promoted an objectively false narrative without evidentiary support.” However, Defendant’s objection to Nance’s report as a “false narrative” amounted to a dispute regarding the facts Nance considered and the conclusions he reached. The Court held that these objections were not a basis to exclude his testimony under Rule 26(a)(2)(B).
Nance’s opinions were “conclusory, lacked evidentiary support, and were unreliable and inadmissible” under Rule 702 and Daubert
Defendant’s motion to exclude Nance’s testimony under Rule 702 and Daubert did not challenge Nance’s qualifications. Instead, Defendant argued that Nance’s “disregard of the evidence and his objectively false narrative” warranted the exclusion of his testimony.
The Court held that objections like those raised by Defendant “relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”
Held
The Court denied the Defendant’s motion to exclude Plaintiffs’ expert Dean Nance.
Key Takeaways:
The factfinder generally should “hear the expert’s testimony and decide whether the predicate facts are accurate.”
Since the case will be tried before a judge and not a jury, most of the safeguards provided for in Daubert are not as essential.
A Washington state superior court judge recently rejected the admission of video exhibits “enhanced by artificial intelligence” as evidence in a triple murder case.
To begin with, the state of Washington charged Defendant Joshua Puloka with three counts of murder stemming from a 2021 shooting. The shooting was captured on a bystander’s smartphone and the unaltered 10-second-long source video of the shooting had been entered into evidence.
The defense, however, also sought to admit an AI-enhanced version of the video which is when the Court heard testimony from defense witness Brian Racherbaeumer and State’s witness Grant Fredericks regarding proposed defense video exhibits enhanced by artificial intelligence.
Video Expert Witnesses
Brian Racherbaeumer is a self-identified videographer and filmmaker who started working with video in 1993. He was very candid and open about the fact that he is not – and has not claimed to be – a forensic video technician and has not been forensically trained.
Grant Fredericks is a contract instructor of video sciences at the FBI National Academy and is one of the most experienced video experts in North America. Moreover, Grant is a Certified Forensic Video Analyst, who has testified as an expert witness over 150 times in courts at all levels. He is recognized as a leading instructor in the science of Photographic/Video Comparison, Reverse Projection and Vehicle Speed Analysis.
Racherbaeumer contended that the source video was low resolution, had substantial motion blur, and contained fuzzy images with “blocky” edge patterns. To fix these problems, Racherbaeumer stated that he had added clarity to the source video though the use of an AI-video editing tool in the Topaz Labs AI program before processing the video using an Adobe program. Racherbaeumer stated that the Topaz Labs AI program used technology that “intelligently scaled up the video to increase resolution,” as well as added sharpness, definition, and smoother edges to objects in the video.
However, the state challenged the proffered AI-enhanced video, asserting that it failed to meet the admissibility standard set forth in Frye v. United States – a standard requiring that evidence using novel scientific theories or principles must have achieved general acceptance in the relevant scientific community. According to Fredericks, the accepted forensic analysis of the video was impossible because of the AI tools used by the defense. Fredericks provided a litany of issues with the AI-enhanced video:
the video added 16 times the number of pixels as existed in the original video, using an algorithm and enhancement method unknown and unreviewed by any forensic video expert,
AI process removed information that was in the original images and it added information that was not in the original images,
The proffered AI-enhanced video removed artifacts on individual images, and altered shapes and colors in the video. It removed the opportunity to forensically analyze which frames in the video utilized reference, predictive, and bi-directional images.
Also, Fredericks testified that the Scientific Working Group on Digital Evidence, whose members represented state, local, and federal law enforcement agencies engaged in forensic video examinations, had issued warnings regarding the use of AI-enhancement tools in the courtroom instead of approving the use of such AI-enhancement tools.
Held
The Court held that the Topaz Video AI enhancement tools, which use machine-learning algorithms, have not been peer-reviewed by the forensic video analysis community, are not reproducible by that community, and are not accepted generally in that community. Racherbaeumer himself was unable to say whether the Topaz Video AI he used, which had been commercially available for about three years, is currently utilized by the forensic video analysis community.
Moreover, the Court found that AI-enhanced video failed to satisfy Washington Rule of Evidence (ER) 702, under which evidence may only be admissible if it is reliable and will assist the trier of fact, as well as ER 403, which states that evidence is not admissible if its probative value substantially outweighs the danger of unfair prejudice.
Key Takeaway:
In conclusion, the Court held that the Defendant had the burden to show that the method was accepted in the relevant community because using AI tools to enhance video introduced in a criminal trial was a novel technique. The Court, as a result, held that the defense had failed to meet its burden after it found that the relevant scientific community was the “forensic video analysis community.”
Memorial Day, in the United States, celebrated on the last Monday of May honours those who have died in the nation’s wars. It originated during the American Civil War when citizens placed flowers on the graves of those who had been killed in battle.
Let us revisit Ray V. Wilkie (2019) on this occasion where the U.S. Court of Appeals for Veterans Claims refused to accept the Board of Veterans’ Appeals’ inadequate reasons or bases regarding its contradictory extraschedular determinations.
Facts:
In July 2014, the Board of Veterans’ Appeals (Board) referred U.S. Army veteran Eddie D. Ray’s claim for a rating of total disability on the basis of individual unemployability (TDIU) to what is today the Director, Compensation Service, for extraschedular consideration. The Board found that “[w]hile [an October 2011] Department of Veterans Affairs (VA) examiner indicated that the Veteran was able to perform sedentary employment, the record suggests that the Veteran may not be able to obtain such employment as it is inconsistent with his education and occupational background.” The Director then denied the veteran an extraschedular TDIU rating, and the matter returned to the Board.
Though in July 2014 the Board found extraschedular referral warranted and though no new evidence had been submitted since its July 2014 decision, in a February 15, 2017, decision, the Board found that the veteran’s “service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation consistent with his education and special training” and denied him an extraschedular TDIU rating. Nowhere in its decision did the Board explain what it understood from the phrase “unable to secure and follow a substantially gainful occupation,” a phrase that VA has refused to define since this Court’s inception, to mean. Nor did the Board explain why referral for extraschedular consideration was warranted in July 2014 but an extraschedular rating wasn’t warranted in February 2017.
Issue:
In the appeal that followed, the U.S. Court of Appeals for Veterans Claims sought to answer two questions. First, what is the effect, if any, of the Board’s determination to refer a case for extraschedular consideration under 38 C.F.R. § 4.16(b) when the Board later reviews the Director’s decision not to award an extraschedular TDIU rating? Second, does VA’s refusal to define key terms in § 4.16(b) make the Board’s statement of reasons or bases inadequate, and if so, should the Court interpret those terms itself?
Discussion by the Court
A. Is a Referral Decision Under 38 C.F.R. § 4.16(b) a Factual Finding?
Typically, VA compensates veterans for their service-connected disabilities through its rating schedule, which is designed to reflect the average impairment in earning capacity that a veteran with a certain type of disability would experience. But, in certain circumstances, VA can determine that a veteran is unemployable as a result of his or her service-connected disabilities even when he or she hasn’t met the requirements for a 100% rating. In those instances, 38 C.F.R. § 4.16(a) and (b) kick in.
The veteran contended that the Board’s 2014 referral decision was a binding factual finding that the Board impermissibly changed when it denied him an extraschedular rating in 2017. The Secretary argued that the Board’s 2014 referral decision “did not equate to a factual finding, but instead indicated simply that evidence of record warranted referral to the Director.”
The Court held that if the veteran is right that the decision to refer a claim for extraschedular consideration is a binding factual finding, then the Director would be little more than a rubberstamp. Put simply, it can’t be the case that when the Board refers a claim to the Director for extraschedular consideration and the Director denies an extraschedular rating, the Board then must award an extraschedular rating anyway because of its initial referral decision.
But, on the other hand, the Secretary also can’t be right that the referral decision isn’t a factual finding as it clearly involves the application of a legal standard, § 4.16(b), to the facts of a given claim.
B. Does Referral Under 38 C.F.R. § 4.16(b) Require the Board to Award an Extraschedular Rating?
The Board’s obligation to provide an adequate statement of reasons or bases to support its decision also applies when the Board reviews the Director’s decision not to grant an extraschedular TDIU rating. Thus, the Board must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage. Some factors that may affect the Board’s ability to reach a different result or the adequacy of its discussion of reasons or bases include, but are not limited to, the certainty or complexity of factfinding in the initial referral decision and to the extent to which the record has changed since the referral decision.
Thus, the Court held that the referral decision can still be relevant at the award stage in certain circumstances. For example, where the Board finds referral appropriate because “it is beyond dispute” that a veteran was unemployable because of his service-connected disabilities, more explanation might be needed for a contrary finding than where the Board’s referral finding is more equivocal. It’s also possible that no amount of explanation may overcome the Board’s initial finding.
The Court decided that since the Board’s decision didn’t explain why the factual finding it made at the referral stage came out differently at the review stage, remand was warranted. On remand, the Board must ensure that it explains its different factual determinations at the referral and review stages.
C. Interpreting “Substantially Gainful Employment”
The Court stated that expert discretion is the lifeblood of the administrative process, but unless the requirement for administrative action is made strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.
Since is the first occasion in which the Court has interpreted “unable to secure and follow a substantially gainful occupation” under § 4.16 and provided guidance on what it means to “secure and follow” said employment, the decision on appeal was set aside and the matter was remanded to the board because it is a absolute rule that a reviewing court may not affirm an administrative agency’s actions on a reasoned basis different from the rationale actually put forth by the agency.
Ideally, VA, with its expertise, would have interpreted the phrase at some point after this Court first encouraged it to do so in 1991, but it hasn’t. So, the Court provided guiding principles to frame the proper inquiry for extraschedular TDIU.
Held
The Court set aside the Board’s February 15, 2017, decision and remanded the matter to the Board for further adjudication.
Key Takeaways:
In pursuing his case on remand, the veteran is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court. The Board must consider any such evidence or argument. The Court reminded the Board that “a remand is meant to entail a critical examination of the justification for the decision.”
The U.S. Court of Appeals for Veterans Claims remanded this matter to the Board because of its inadequate reasons or bases regarding its contradictory extraschedular determinations.
Case Details:
Case Caption:
Ray V. Wilkie
Docket Number:
17-0781
Court:
United States Court of Appeals for Veterans Claims
Memorial Day, originally known as Decoration Day, is observed on May 30. It is a federal holiday in the United States for honoring and mourning the U.S. military personnel who died while serving in the United States Armed Forces.
Lets revisit significant moments of the United States military history on this occasion, such as when the Supreme Court upheld the male-only requirement for selective service registration.
Facts:
Congress is given the power under the U.S. Constitution to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces. Congress enacted the Military Selective Service Act (MSSA).
Now, section 3 of the Military Selective Service Act empowered the President, by proclamation, to require the registration of “every male citizen” and male resident aliens between the ages of 18 and 26 in order to facilitate eventual conscription under the Act. Although registration for the draft was discontinued in 1975, President Jimmy Carter determined in early 1980 that it was necessary to reactivate the registration process and recommended that funds be transferred from the Department of Defense to the Selective Service System for this purpose. He also recommended that Congress amend the Act to permit the registration and conscription of women as well as men.
Congress agreed that is was necessary to reactivate the registration process; however, it allocated only those funds necessary to register males and, although it considered the question at great length, it declined to amend the Act to permit the registration of women. Thereafter, the President ordered the registration of specified groups of young men pursuant to 3 of the Act. Ultimately ruling in a case which had been brought nearly ten years earlier in the United States District Court for the Eastern District of Pennsylvania by several men subject to registration for the draft and subsequent induction into the armed services, a three-judge Federal District Court held that the Act’s gender-based discrimination violated the due process clause of the Fifth Amendment.
On direct appeal, the United States Supreme Court reversed the same.
Discussion by the Court
The Court held that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the MSSA. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. The existence of the combat restrictions clearly indicated the basis for Congress’s decision to exempt women from registration because the purpose of registration was to prepare for a draft of combat troops. Men and women, because of the combat restrictions on women, were not similarly situated for purposes of a draft or registration for a draft.
By “considerations of equity,” the military experts acknowledged that female conscripts can perform as well as male conscripts in certain positions, and that there is therefore no reason why one group should be totally excluded from registration and a draft.
However, even military experts, who consistently testified that women have made significant contributions to the effectiveness of the military, remained opposed to the actual drafting of women.
It was suggested that in the scenario of a 650,000-draft, approximately 80,000 female inductees could be accommodated by the military. These 80,000 women could fill non-combat positions, freeing men to go to the front. In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers.
Held
The United States Supreme Court concluded that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act.
Key Takeaway:
Congress never disagreed with the judgment of the military experts that women have made significant contributions to the effectiveness of the military. On the contrary, Congress repeatedly praised the performance of female members of the Armed Forces, and even approved efforts by the Armed Services to expand their role. But Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need rather than “equity.”
Memorial Day, originally called Decoration Day, is a day of remembrance for those who have died in service of the United States of America. It is observed on the last Monday of May.
New York was the first state to officially recognize the holiday in 1873. It was recognized by all northern states by 1890. Differently, the South refused to acknowledge the day and honored their dead on separate days. This went on until after World War I when the holiday changed from honoring just those who died fighting in the Civil War to honoring Americans who died fighting in any war.
Let’s examine the crucial moments in military history on this occasion such as when the military’s “Don’t Ask, Don’t Tell” policy was challenged raising crucial questions about discrimination and military readiness.
Facts:
Margaret Witt joined the Air Force as a Second Lieutenant in 1987. She was promoted to First Lieutenant in 1989, to Captain in 1991, and to Major in 1999. In 1995, she transferred from active to reserve duty and, as a flight nurse, was assigned to the 40th Aeromedical Evacuation Squadron (AES), later to become the 446th.
During her service in the military, Witt received the meritorious Service Medal, the Air Medal, the Aerial Achievement Medal, the Air Force Commendation Medal, and numerous other awards and commendations. Her annual “Officer Performance Reviews” were routinely high.
In November 2004, Major Witt received a memorandum from her superiors informing her that the military would initiate separation proceedings against her for violating the DADT policy. She could not work, receive pay, or earn credit toward pension or promotion pending the conclusion of the separation action. Sixteen months later, in March 2006, she was notified that the Air Force was initiating a discharge action against her due to her homosexuality. She immediately requested a hearing to contest the separation, and she brought suit a month later in the Western District of Washington. She still had not received a military hearing when the district court issued its decision that July, and she did not receive a military hearing until September 2006.
Plaintiff Margaret Witt challenged the constitutionality of the statute known as “Don’t Ask, Don’t Tell” (“DADT”) found at 10 U.S.C. § 654, and its implementing regulations. Witt claimed that her discharge under DADT violated both her procedural and substantive due process rights under the due process clause of the Fifth Amendment. The district court dismissed the complaint citing failure to state a substantive due process claim.
Discussion by the Court
“Don’t Ask, Don’t Tell” (“DADT”) refers to the statutory U.S. policy of excluding openly homosexual individuals from serving in the military. It prohibits members of the armed forces from engaging in homosexual acts, stating that they are gay or bisexual, or openly marrying a person of the same sex.
The constitutionality of “Don’t Ask, Don’t Tell” (DADT) has been supported by federal courts in the past, but these rulings occurred before the Supreme Court’s decision in Lawrence v. Texas. In Lawrence, the Court invalidated a Texas anti-sodomy law, asserting that private homosexual conduct is protected as a part of the “liberty” protected by the substantive Due Process Clause of the Fourteenth Amendment.
Role of Expert Testimony
Major Witt’s approach to the fact finding mission of this Court was to present testimony of members and former members of her unit, the 446th AES, who testified persuasively that serving with Margaret Witt and other known or suspected gay and lesbian service members did not adversely affect unit morale and cohesion. To the contrary, it was Major Witt’s suspension and ultimate discharge that caused a loss of morale throughout the squadron. In addition, several other former service members testified about their military experience as closeted gays or lesbians and the positive reaction of their fellow servicemen and women once they acknowledged their sexual orientation.
Expert witnesses were called to inform the Court about the most up-to-date research concerning the interaction of disparate peoples within a military organization, the experience of other militaries which allow open service of gays and lesbians and finally, current polling data on the attitudes of servicemen and women (current and former) about the subject of open service of gays and lesbians. All of this information provided some evidence concerning the likely affect of Major Witt’s open service as a lesbian flight nurse upon unit morale and cohesion, in the 446th AES and beyond.
Held
On appeal before the Ninth Circuit Court of Appeals in May 2008, the Ninth Circuit ruled that the District Court had erred in granting the Government’s motion to dismiss Major Witt’s claim.
In so doing, the Court articulated what has come to be called the “Witt Standard,” which required heightened scrutiny and fact-specific, individualized justification for each individual’s discharge under DADT.
Key Takeaway:
Expert testimony concerning the interaction of disparate peoples within a military organization shaped a ruling which mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The facts presented by the experts bought to the Court’s attention the likely affect of Major Witt’s open service as a lesbian flight nurse upon unit morale and cohesion.
Following an automobile accident in which driver Ronald Skinner struck Plaintiff’s vehicle, Plaintiff subsequently filed suit against Defendants. To offer opinion testimony as to Plaintiff’s damages, Plaintiff’s counsel identified Dr. Manijeh Berenji, an occupational and environmental medicine physician, as an expert life care planner and emailed Defendants a life care plan for Plaintiff that Berenji prepared.
Compiled after Berenji conducted a “detailed review” of Plaintiff’s medical records and interviewed Plaintiff, Berenji’s life care plan listed medical costs that Plaintiff was likely to incur—including surgeries such as a lumbar discectomy, lumbar hardware removal, and cervical microdiscectomy, various injections, and a Functional Restoration Program—totaling $446,350.
Manijeh Berenji is board-certified in occupational and environmental medicine as well as public health in general preventive medicine. She is the chief of Occupational Health at VA Long Beach Healthcare System.
She has over 10 years of experience in occupational and environmental medicine, preventive medicine, and population health.
Plaintiff failed to properly disclose Berenji as an expert witness
Defendants argued (1) that Plaintiff’s disclosure of Berenji failed to meet Rule 26(a)(2)(B)’s requirements for witnesses specifically retained to provide expert testimony and (2) Plaintiff cannot meet his burden in showing the noncompliance was justified or harmless.
Defendants first argued that Plaintiff failed to properly disclose Berenji as an expert witness because although Plaintiff’s counsel emailed the life care plan to Defendants, Plaintiff did not comply with Rule 26(a)(4)’s requirement that an expert disclosure be written, signed, and served on the other party.
Next, Defendants argued that Berenji’s written report failed to satisfy the requirements of Rule 26(a)(2)(B) for experts specifically retained to provide expert testimony. First, they argued, Plaintiff failed to meet the requirement to list all other cases in the past four years in which the witness has testified as an expert witness—despite that Berenji later testified that she is deposed at least a few times per month. The Court noted that Berenji’s life care plan did not include any such list.
Although Defendants ultimately obtained a copy of Berenji’s CV, they obtained it through a subpoena to Medical Life Care Planners, not Plaintiff’s expert disclosure. The Court held that Plaintiff failed to provide the basis for the expert’s qualifications.
While Defendants did ultimately depose Berenji, the Court held that Plaintiff’s failure to disclose the other cases in which she has provided expert testimony prejudiced Defendants by limiting their ability to compare her testimony in other cases and cross-examine her about any similarities or inconsistencies.
Defendants first argued that Berenji was not qualified to testify as an expert witness regarding life care planning because (1) she was not certified as a life care planner and (2) she lacked experience in the field. Although Defendants acknowledged that lack of certification was not dispositive, they argued that such a lack—paired with the fact that Berenji had only been preparing life care plans for about a year and only had any training by way of the introductory module of certification coursework and by following a listserv—demonstrated that she was not qualified to speak as an expert in that area.
2. Reliability
Defendants argued that Berenji “failed to take into account” that none of Plaintiff’s treating physicians recommended surgery when she formulated her life care plan. Berenji neither spoke with nor received any information from any of Plaintiff’s treating physicians.
In sum, Defendants argued that because Berenji’s life care plan was based on generalized medical guidelines, rather than Plaintiff’s specific circumstances with his treating physicians, Berenji’s expert opinion was not based on “sufficient facts or data.”
Because she did not discuss the need for more surgeries with qualified physicians, the Court held that Berenji cannot offer the requisite reliability for her opinions because she necessarily relied on her own lack of expertise or resorted to a generic set of guidelines to support her opinions.
The Court disagreed with the suggestion that Berenji’s testimony “did not relate to any issue in the case.” Although it may be disputable and unreliable, it certainly would be relevant if allowed. That said, given that the Court agreed that Berenji’s testimony failed Rule 702’s other requirements (namely, her lack of qualification to provide spinal and other surgery recommendations and her lack of consultation with the treating physicians), the Court found that her expert testimony must be excluded.
Held
The Court granted Defendant’s motion to strike Manijeh Berenji because her testimony failed to meet the substantive standard for expert witnesses under Federal Rule of Evidence 702 and Daubert.
Key Takeaways:
The Court held that Berenji is unqualified to provide spinal and other surgery recommendations. She previously testified that she is not in a position to recommend spinal surgeries to patients and does not have training in the areas in which she recommended Plaintiff have treatment (spinal surgery, neurosurgery, orthopedics, physical therapy, pain management, optometry, or radiology).
The Court found that Berenji’s guideline recommendations are not based on any consultation with Plaintiff’s treating physician because she did not discuss the need for more surgeries with qualified physicians.
A district judge in Texas admitted the testimony of an industrial engineering and workplace ergonomics expert in order to get a better sense of the lifting activities performed by the Plaintiff on the date of her alleged injury.
Plaintiff (“Yoakum”) filed this personal injury lawsuit against Tyson after an injury she allegedly sustained while working the night shift at the Tyson Foods beef processing plant in Amarillo, Texas. Yoakum’s alleged injuries stemmed from her lifting a 97-pound box of meat off a conveyor belt to place it onto a pallet. When Yoakum lifted the box to place it onto the pallet, she alleged that she felt a pop in her back that was accompanied by pain.
On October 20, 2023, Yoakum served on Tyson the expert reports of her retained experts, which included Adam W. Pickens, P.h.D—whom she retained to opine on lifting safety and the risks associated with her lifting the 97-pound box. Pickens opined that Yoakum lifting a 97-pound box created a high risk of injury. His opinion relied on two tools that are not adopted by any industry, including the meatpacking industry: (1) the NIOSH Lifting Equation (“the Lifting Equation”) and (2) the Liberty Mutual Psychophysical Tables (“the Liberty Mutual Tables”).
Industrial Engineering Expert Witness
Adam W. Pickens is an expert in industrial engineering and workplace ergonomics. He holds a Bachelor’s degree in Biomedical Sciences and a Master’s of Public Health in Environmental and Occupational Health from Texas A&M University. He holds a Ph.D. in Industrial Engineering from Texas Tech University in Lubbock, Texas. Pickens worked as a graduate researcher and in industry for Alliant Techsystems. He was a NIOSH trainee and served as a scientific review expert for them for over 10 years. Since 2008 he has been on the faculty of Texas A&M University in the School of Public Health.
Tyson’s motion to exclude Pickens is focused on three arguments. First, Tyson argued that Pickens’ use of the Lifting Equation is inadequate and unreliable because he did not input values and “actually run” the Lifting Equation. Second, Tyson argued that neither the Lifting Equation, nor the Liberty Mutual Tables have been accepted in the meatpacking industry—or any industry—as the industry standard. Third, Tyson argued that Pickens’ opinion was unnecessary to assist the jury in understanding the evidence or answering any fact questions in the case because he failed to address key facts and circumstances of the case.
A. Pickens’ testimony is based upon sufficient facts and data
The Court observed that Pickens reviewed relevant filings on the docket, Yoakum’s employment files, Tyson’s “Safe Lifting Training” and “Lifting Do’s and Don’ts”, the depositions of Yoakum and her coworkers, and Pickens was provided with the weight of the box Yoakum was lifting when she allegedly injured her back.
He relied on two foundational works/tools: the NIOSH Lifting Equation—which has been accepted as reliable by several federal courts—and the Liberty Mutual Psychophysical Tables.
The Court noted Pickens’ substantial experience as an expert in workplace ergonomics and his experience as a NIOSH Trainee, for which he has served as a scientific review expert for over 10 years. Pickens also relied upon scientific literature and industry materials to use his expertise to form an opinion on Yoakum’s lifting task in this case.
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety.
B. Pickens’ testimony is the product of reliable principles and methods, and Pickens applied those principles and methods reliably to the facts of the case
1. NIOSH Lifting Equation
Pickens’ testimony relied in part on the NIOSH Lifting Equation. The Lifting Equation is a tool used to estimate safe lifting limits for the average adult in the workplace. Specifically, the Lifting Equation was developed by NIOSH to quantify injury risks associated with manual lifting. The Lifting Equation consists of a load constant (51 pounds) that is then multiplied by six variables that only serve to decrease the load constant. In other words, regardless of the values input into the variables, the highest output the Lifting Equation will ever produce is 51 pounds.
The Court found that the Daubert factors suggested that the Lifting Equation is sufficiently reliable to form the basis of expert testimony.
As to the first factor, the NIOSH Lifting Equation can be and has been tested. Likewise, the Lifting Equation has been subjected to peer review and publication; thus, the second factor is met. As to the fourth factor, the NIOSH Lifting Equation appears to be accepted in the field of ergonomics and workplace safety. Pickens acknowledged that the NIOSH Lifting Equation has not been explicitly adopted by any industries, including the meatpacking industry, but that it is applicable to the work force at large. The fifth factor is also satisfied as there is no evidence whatsoever that the NIOSH Lifting Equation was developed expressly for litigation. As to the sixth factor, Pickens did not unjustifiably extrapolate from an accepted premise to an unfounded conclusion. Finally, the field of ergonomics is known to reach reliable results.
In sum, the enumerated Daubert factors are largely applicable in this situation and weigh in favor of admitting Pickens’ expert testimony.
2. Liberty Mutual Psychophysical Tables
Not dissimilar from the Lifting Equation, the Liberty Mutual Tables are a tool that Pickens used that led him to his conclusion that the box Yoakum lifted in this case exceeded the safe limit under all circumstances. According to Pickens, the Liberty Mutual Tables indicated that no female can safely lift a 97-pound box during a workday without risk of injury. Like the 51-pound limit in the Lifting Equation, the Liberty Mutual Tables established that a woman should never, under any circumstances, lift more than 83.6 pounds during a workday without risk of injury.
The Liberty Mutual Tables, developed by Liberty Mutual Insurance, covered tasks such as lifting, lowering, pushing, or pulling. According to Pickens and his references, the Liberty Mutual Tables are the product of more than 40 years of research on lifting, lowering, pushing, pulling, and carrying and have been subjected to peer review and publication. Accordingly, the Court found that the Liberty Mutual Tables are reliable in and of themselves.
Likewise, Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinions. As noted, he reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds. The Court held that Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury.
C. Pickens’ opinions are relevant
The relevance inquiry requires the Court to consider whether the opinions of Pickens will assist the jury in understanding the evidence or answering fact questions.
Liability in this case is dependent upon a finding of negligence; therefore, the issue before the Court is whether Pickens’ testimony will aid the jury in determining negligence. The Court found that Pickens’ testimony is sufficiently relevant and will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury. In sum, Pickens’ testimony may inform the determination of whether Tyson was negligent.
D. Tyson’s criticisms of Pickens’ opinions are topics for cross-examination, not a basis for exclusion
Tyson took issue with numerous aspects of Pickens’ testimony. But the aspect that Tyson focused on most is that Pickens did not input values into the Lifting Equation to calculate a Lifting Index.
First, when asked why he “did not run” the Lifting Equation, Pickens testified that he did not have the information to input values into the variables and calculate a Lifting Index. Ultimately, Pickens concluded it is irrelevant that he did not input values into the equation and calculate a Lifting Index because the maximum weight the Lifting Equation called for without a risk of injury is 51 pounds. And in this instance, Yoakum allegedly lifted a 97-pound box, so there was no need for Pickens to run the equation. This is because no matter what values he put into the Lifting Equation, the highest possible output value would be 51 pounds; thus, Pickens’ conclusion would remain the same.
The Court found that the best mechanism for Tyson to attack Pickens’ testimony was through cross-examination, not exclusion.
E. The Lifting Equation and the Liberty Mutual Tables cannot establish the standard of care; however, the tools will assist the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury
The Lifting Equation and the Liberty Mutual Tables are not adopted by any industry as industry standards. As such, the Court agrees with Tyson that neither the Lifting Equation nor the Liberty Mutual Tables can take the place of the applicable standard of care.
Because neither the Lifting Equation nor the Liberty Mutual Tables have been accepted by any industry, including the meatpacking industry, Yoakum cannot rely on either tool to establish the standard of care in this case. And the Court will refuse to allow testimony from Pickens to that effect. However, given his expertise, the tools he used, and his reliable application of the facts of this case, the Court permitted Pickens to testify that Yoakum faced a risk of injury when she was asked to manually lift the 97-pound box.
The Court held that Pickens’ testimony may rely on his application of the facts of this case to both tools he chose to utilize, but his testimony cannot establish Tyson breached its standard of care based solely on Yoakum having lifted a 97-pound box.
Held
The Court found the facts and data Pickens relied upon to be sufficient and of the type reasonably relied upon by experts in the field of biomechanics, ergonomics, and workplace safety. Moreover, the Court was confident that any issues Tyson had with Pickens’ methodology and opinions could be addressed on cross-examination.
The Court denied Tyson’s motion to exclude the testimony of Adam W. Pickens.
Key Takeaways:
Pickens reliably applied the facts of this case to the Liberty Mutual Tables to form his opinion that Yoakum could not have lifted the 97-pound box at issue without facing a risk of injury. Pickens reviewed the litigation file, relevant documents, and was provided with the fact that the box Yoakum lifted when she allegedly injured her back was 97 pounds.
Pickens’ testimony satisfied the relevance inquiry under Daubert because it assisted the jury in understanding the lifting activities performed by Yoakum on the date of her alleged injury.
Considering there are no certainties in science, the Court decided that should Tyson wish to challenge any shortcomings in Pickens’ methodology or his application of the facts to either the Lifting Equation or the Liberty Mutual Tables, it may do so through cross-examination.
A district judge in Indiana held that it did not require an insurance litigation expert’s assistance to interpret contract language considering no party in this case appeared to dispute the actual language of the policy.
Plaintiff Brenda Marie Stephens is a real-estate appraiser and is the President of Plaintiff Accent Consulting Group (collectively, “Ms. Stephens”). Ms. Stephens demanded that Defendant Great American Assurance Company (“Great American”) provide legal representation for her under an insurance policy (the “Policy”) it issued related to a professional disciplinary hearing and Great American refused. After Ms. Stephens successfully defended herself in the hearing, incurring legal costs, she and Accent Consulting initiated this litigation against Great American. With leave of Court, Great American filed a counterclaim against Ms. Stephens and Accent Consulting, alleging that Ms. Stephens’ insurance application contained a misrepresentation — specifically, that she was not subject to any complaint, investigation, or disciplinary hearing even though she was.
The parties filed Cross-Motions for Summary Judgment. In Great American’s Cross-Motion for Summary Judgment, it requested that the Court strike the expert testimony of Ms. Stephens’ expert, Professor William Warfel.
Insurance Expert Witness
William Warfel is a professor of insurance and risk management at Indiana State University where he teaches classes such as Property/Liability Insurance, Health Insurance, Life Insurance, Introduction to Risk and Insurance, Commercial Liability Insurance, and Insurance Seminar.
Great American argued that Warfel was not “qualified” to offer expert opinions on real estate appraisal disciplinary actions and “merely attempted to explain the legal effect of” the Policy.
The Court observed that Ms. Stephens did not file any response to Great American’s Cross Motion for Summary Judgment, which contained the motion to strike the expert testimony. Well after the deadline, Ms. Stephens filed an unauthorized “sur-reply.” The sur-reply did not address the motion to strike expert testimony and instead argued that Great American had not demonstrated prejudice from allegedly late notice of her insurance claim.
The Court held that Warfel’s expert opinion is largely a rehashing of Ms. Stephens’ arguments. For example, Warfel opined that “the trigger of coverage issue must be evaluated within the context of the insuring agreement,” that “the underlying claim against [Ms.] Stephens became ripe once The Office of the Indiana Attorney General filed its original Formal Complaint against her,” and that “an expectation that an insured must report to the carrier all Consumer Complaints against the insured is entirely unreasonable.”
The Court did not require Warfel’s opinion since no party in this case appeared to dispute the actual language of the policy, and the interpretation of a contract is a question of law for the Court.
Held
The Court granted Great American’s motion to strike the expert opinion of Professor William Warfel as well as Great American’s cross-motion for summary judgment.
The policy was rescinded and Great American was ordered to return $1,109.00 in premiums to Accent Consulting Group, Inc.
Key Takeaway:
The Court, citing Delta Mining Corp. v. Big Rivers Elec. Corp., 18 F.3d 1398, held that “Absent any need to clarify or define terms of art, science or trade, expert opinion testimony to interpret contract language is inadmissible.” In other words, the Court may not resort to extrinsic evidence unless terms are ambiguous.
Case Details:
Case Caption:
Accent Consulting Group, Incorporated Et Al V. Great American Assurance Company
A district judge in Florida limited the testimony of a Business Valuation Expert Witness because he did not identify how exactly the CFO breached his unidentified standard of care.
This case arises out of Nextplat’s termination of its former Chief Financial Officer (“CFO”), Thomas Seifert. Nextplat contended in its Second Amended Complaint (among other things) that Seifert breached his employment contract with Nextplat and sought damages as a result. Specifically, Nextplat claimed that Seifert’s errant administration of a $45,000.00 wire in response to a phishing scam breached the section of the employment agreement that required him to act “with such duties, responsibilities and authority as are commensurate and consistent with his position, as may be, from time to time, assigned to him by the [Nextplat board of directors].”
The bulk of Nextplat’s breach of contract claim, then, hinged on whether Seifert adequately complied with that subsection of the employment agreement. To support its case, Nextplat sought to elicit testimony from Gary Moll, CPA, MSA, to opine on Seifert’s duties and responsibilities as CFO and whether Seifert’s adequately performed those duties and responsibilities. Seifert, of course, disputed that he breached the employment agreement and disputed that he acted beneath the CFO standard of care incorporated by the employment agreement.
Seifert filed a motion to strike the testimony of Gary Moll on February 3, 2023.
Business Valuation Expert Witness
Gary A. Moll is the Director of Forensic & Valuation Services at Fiske & Company, a CPA firm specializing in business valuation and litigation support services. He joined Fiske & Company in 2022 and has provided business valuation and litigation support services to manufacturers, wholesalers, retailers, medical practices, restaurants, service entities, and family limited partnerships, including valuing intangibles and intellectual property. He is a frequent speaker on topics such as business valuation, economic damages, and forensic accounting and has written articles on these topics. Additionally, he is a member of the American Institute of Certified Public Accountants (“AICPA”) Forensic & Valuation Section (“FVS”).
The Court first addressed Seifert’s argument that Moll should be excluded because he was not timely disclosed as an expert.
After both parties moved for deadline extensions, the Court extended the deadline for disclosing expert witness summaries and reports to November 11, 2022. Subsequently, the Court ordered that the parties disclose their expert reports on or before December 19, 2022. Seifert argued that, while Moll’s expert report was filed on December 19, 2022, Moll’s expert summary was not disclosed before November 11, 2022, nor was he even disclosed as an expert witness. Essentially, then, Seifert had no idea that Moll was going to be an expert witness—despite the November 11 deadline to disclose expert summaries—until on December 19 when his full expert report was disclosed. The proper remedy for this failure to disclose, argued Seifert, was to strike Moll as an expert witness.
Even if a disclosure is untimely, there must be resulting harm. The Court observed that Seifert still had (and will have) adequate time to prepare for Moll’s testimony.
The Court acknowledged Nextplat’s failure to adequately and timely disclose its expert witness. But Seifert suffered no prejudice and thus had no remedy under Rule 37(c)(1) since that failure was promptly cured.
B. Whether Moll is qualified
Seifert argued that Moll’s undisputed experience as a Certified Public Accountant (“CPA”), CFO, and financial analyst did not qualify him to render opinions in this case. Specifically, Seifert argued that Moll had not served as a CFO for a publicly traded company, and that his curriculum vitae failed to specify the amount of time for which he served in his roles. Further, Seifert took issue with the fact that Moll had never written internal accounting controls.
Moll’s testimony and expert report indicated that he had experience as a financial analyst for a company that underwent the IPO process, had served as a CFO, and had CPA experience relevant to internal control issues. Given Moll’s experience serving in positions and in factual situations relevant to this case, the Court found that Moll is at the very least “minimally qualified” to serve as an expert witness in this case.
C. Whether Moll’s methodology is reliable
In Moll’s expert report, he rendered two expert opinions still relevant to this case: (1) that the “CFO is tasked with creating systems and controls to ensure the safeguarding of company assets” and ensuring compliance with those controls; and (2) that Seifert’s administration of the errant $45,000.00 phishing scam wire fell “far short of proper conduct of a CFO.”
Seifert argued that Moll, in reaching his expert opinions, employed no accepted method or analysis; rather, he just offered his personal, unsubstantiated judgment as to what the CFO should have done. As Seifert characterized it, Moll’s report was primarily “based on his review of various articles, internet searches, and the allegations provided by Nextplat’s counsel.”
Seifert bolstered this argument with the fact that Moll largely inherited the file from two of his associates, and relied substantially on their research and investigation to draw his conclusions.
Seifert argued that Moll’s experience did not carry the burden of rendering his opinion reliable—this was in fact his first time researching the “niche area of cyber security and the CFO’s role.”
1.Moll’s opinion as to the responsibilities of a CFO
Moll concluded that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
The Court noted that Moll has experience as a CFO; as a financial analyst working closely with a CFO for a company who was undergoing the IPO process; and as a CPA and auditor. His experience in this arena is coupled with his review of relevant SEC guidelines and other scholarly articles on the topic.
While Moll did not employ a peer-reviewed methodology to conclude that CFOs are responsible for implementing and ensuring compliance with certain internal controls, Seifert did not suggest a method that should have been used instead, nor did he point the Court even to the existence of such a method for this niche, non-scientific request.
The Court held that Moll’s testimony—based on his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert. If Seifert finds his testimony to be “shaky” or wishes to attack the factual underpinnings of Moll’s opinion, he can do so before the jury.
2.Moll’s opinion as to whether Seifert fell short of the proper conduct of a CFO
Moll concluded that Seifert’s errant administration of the Phishing Wire fell “far short of proper conduct of a CFO.”
The Court acknowledged Moll’s general qualifications but held that Moll’s experience and methodology were not sufficient to produce reliable findings.
Moll admitted that assessing whether Seifert’s actions conformed with a CFO’s standard conduct was more of a “one off” than it is a “typical type project” for which he is engaged as an expert. In fact, Moll had never assessed whether a CFO has complied with his duties.
Moreover, Moll’s auditing experience did not include “an audit of internal controls,” and did not include “cybersecurity risk assessment measures.” Additionally, Moll’s audit experience involved private—not public—companies, and involved audits that he did not “run or manage.”
Moll concluded that it is the CFO’s job to “develop internal controls to prevent or to preserve the security of the assets of the company.” Moll plainly admitted that he did not know what internal controls Seifert should have put in place.
The Court held that the lack of relevant experience and expertise could not be overcome on a reliability analysis, especially when Moll concluded with certainty that Seifert’s actions fell “far short” of proper conduct. Also, a pivotal area of this case is cybersecurity—i.e., the area in which Moll believed Seifert acted below standard. Moll conceded in his deposition that this case represented his first time researching the “niche area of cyber security and the CFO’s role.”
Moll did not explain how he arrived at his conclusion that Moll breached his standard of conduct as CFO, leaving the Court to infer that, simply, Moll made a judgment call.
D. Whether Moll’s testimony will assist the trier of fact
For this analysis, the Court addressed only the portion of Moll’s proffered testimony that was deem reliable; i.e, that “the CFO is tasked with creating systems and controls to ensure the safeguarding of company assets on a company-wide basis, and additionally, has responsibility for following those controls and safeguards in place.”
Seifert’s argument as to this prong was primarily aimed at the portion of Moll’s testimony that the Court held to be unreliable (i.e., the Seifert fell short of the proper conduct of a CFO). But to the extent Seifert may argue that the reliable portion of Moll’s testimony is unhelpful, the Court disagreed. Here, it would certainly aid a jury to hear from a proffered expert that the SEC requires internal controls, the burden to implement those controls falls on the CFOs of publicly-traded companies, and those controls should include cybersecurity measures. The nature of Moll’s testimony (i.e., the duties and expectations of a CFO in publicly-traded companies in the context of cybersecurity) clearly goes beyond the “understanding and experience of the average citizen.”
Additionally, much, if not all, of Seifert’s argument in this area attacked the implications of the factual underpinnings of Moll’s testimony. But it is well established that Seifert can attack those factual underpinnings at trial.
E. Whether Moll’s Limited Testimony is Misleading Under Rule 403
As for Seifert’s argument that Moll’s testimony is likely to mislead, confuse, and persuade the jury to follow his opinions, the Court addressed only the portion of Moll’s proffered testimony about the CFO being tasked with creating systems and controls to ensure the safeguarding of company assets.
To this point, Seifert’s only argument concerned the portion of Moll’s testimony that was already deemed unreliable; i.e., that Seifert breached the proper conduct of a CFO. And specifically, at the heart of that argument was Seifert’s viewpoint that Moll would offer an impermissible legal conclusion as to Seifert’s conduct. Seifert advanced no argument that the other, reliable portion of Moll’s testimony violated 403—especially because his legal conclusion concerns did not extend to Moll’s standard-based testimony. Accordingly, this issue was effectively moot.
Held
The Court granted the Defendant’s motion to exclude Moll’s opinion and testimony as to whether Seifert’s conduct here fell “far short of proper conduct of a CFO.” The Court denied the Defendant’s motion in all other respects.
Key Takeaway:
Moll never assessed whether a CFO had performed within his standard of care; had never researched cybersecurity; had not suggested what internal controls Seifert should have put in place; had not analyzed how Seifert breached his un-identified standard of care; had not identified the methodology he used to conclude that Seifert breached that standard of care; and did not, it appears, complete the bulk of the relevant research in his report. Moll’s invalidating testimony, lack of methodology, and dearth of direct experience undermine the reliability of his opinion that Seifert acted beneath the proper standard of conduct for a CFO.
Yet, Moll’s opinion about the responsibilities of a CFO —based on his experience as CFO, financial analyst, and CPA of similarly-situated companies; his review of scholarly articles, the materials in this case, and Nextplat’s policies (or lack thereof); and his professional judgment—passed the threshold of reliable testimony under Daubert.
A district judge in Arkansas allowed an expert librarian to testify about how American Library Association (“ALA”) cataloging policies attempt to accommodate a variety of concerns and interests.
Plaintiffs and their minor children are residents of Crawford County and users of its Library System. In late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs alleged this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.
On May 26, 2023, Plaintiffs filed this lawsuit against Crawford County, claiming that the aforementioned policy violated the First Amendment to the United States Constitution.
Plaintiffs retained an expert witness named Daniel N. Joudrey, who is a professor of information organization and cataloging at the Simmons University School of Library and Information Science. Joudrey submitted an expert report that discussed the Cataloging Code of Ethics and the ALA’s Bill of Rights, and opined that Defendants’ actions were inconsistent with those standards as well as with the historical practices and understandings of libraries.
Daniel N. Joudrey is a Professor at Simmons University School of Library and Information Science, where he teaches information organization and cataloging. Prior to coming to Simmons, Joudrey was a teaching fellow and research assistant at the University of Pittsburgh for Dr. Arlene G. Taylor, a well-known cataloging authority. Joudrey was also a metadata policy intern at the Library of Congress. Before that, he worked for an international non-profit social services organization. Joudrey holds a Ph.D. and an MLIS (Master of Library and Information Science) from the University of Pittsburgh. He has been a member of the American Library Association for nearly 25 years.
He is the author of two widely used textbooks in the LIS field, The Organization of Information and Introduction to Cataloging and Classfication.
Joudrey opined that a library “wanting to operate consistently with First Amendment principles and allow its patrons to receive information without unnecessary impediment should follow the Cataloging Code of Ethics and American Library Association’s Bill of Rights.”
Defendants contended that Joudrey’s testimony did not satisfy any of the four Rule 702 requirements.
Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue
First, Defendants argued that Joudrey’s specialized knowledge will not help the Court to understand the evidence or to determine a fact in issue. The Court disagreed, and believed that expert testimony about library cataloging industry standards is more likely than not to help it understand the evidence in this case. After all, the central issues and disputes in this case concerned Defendants’ library cataloging practices, whether or to what extent those practices interfered with Plaintiffs’ First Amendment right to access information, and how (if at all) the Court should order Defendants to modify those library cataloging practices.
Joudrey’s opinions were not based on sufficient facts
Second, Defendants argued that Joudrey’s opinions were not based on sufficient facts, because he simply assumed the truth of facts given to him by Plaintiffs’ counsel instead of independently investigating the facts on his own. Setting aside the (disputed) question of whether Joudrey performed any independent factual investigation, this argument ignored the United States Supreme Court’s observation that “more than 200 years” of “settled evidence law” allows an expert to “express an opinion that is based on facts that the expert assumes, but does not know, to be true.” See Williams v. Illinois, 567 U.S. 50, 57, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).
When an expert bases his opinion on assumed facts, then “it is up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.” Indeed, the Federal Rules of Evidence expressly permitted this practice, authorizing an expert to “base an opinion on facts or data in the case that” he has either “personally observed” or “been made aware of.” So the Court disagreed with Defendants on this point as well.
Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods
Third, Defendants argued that Joudrey’s opinions are not the product of reliable principles and methods. To some extent, Defendants rehashed their argument about insufficient factual investigation to support this point as well; to that same extent, the Court disagreed as already stated above.
Additionally, Defendants characterized Joudrey’s opinion as being that “the only way to ‘operate consistently with First Amendment principles and allow its patrons to receive information’ is to follow the ALA’s policies,” and they criticized him for failing to “explain why the ALA policies are the only way to comply with the First Amendment.” The Court did not believe this to be an accurate characterization of Joudrey’s opinions. The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies.
Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
Joudrey’s opinions do not reflect a reliable application of his principles and methods to the facts of the case
Finally, Defendants argued that Joudrey’s opinions did not reflect a reliable application of his principles and methods to the facts of the case.
This particular argument rested on two premises. One is that Joudrey walked back a couple of his opinions when pressed on them during his deposition. The other is that Joudrey improperly expressed a legal conclusion when he opined that libraries wishing to comply with the First Amendment should follow ALA policies. As for the first premise, the Court did not see this as undermining Joudrey’s reliability. To the contrary, it showed a willingness to acknowledge when one misspeaks and to adjust one’s opinions to account for new information. As for the latter premise, the Court already rejected it in the preceding two paragraphs.
Held
Ultimately, if this case proceeds to a bench trial then it will be the Court’s duty to consider all the evidence, including Joudrey’s testimony, and assign it the weight the Court believes it deserves. The Court sees no need to exercise its discretion now in a manner that would preemptively tie its own hands later. For all the foregoing reasons, Defendants’ motion to exclude Joudrey’s testimony will be denied.
Key Takeaway:
The Court reviewed Joudrey’s expert report and his deposition testimony, and did not find any place where he opined that compliance with ALA policies is the “only” way to comply with the First Amendment. Rather, he opined that if a library wants to operate consistently with First Amendment principles, then it “should” adhere to ALA cataloging policies. When elaborating on this opinion in his deposition, Joudrey explained: “I thought that if they were operating consistently within these documents . . . that it would result in libraries still having the latitude to organize their materials by creating special displays” and “would result in, you know, following general principles of the profession which align with First Amendment principles, . . . and it would align with how a trained librarian would understand the field.”
In other words, Joudrey’s opinion is not that following ALA policies is the only way of complying with the First Amendment; rather, it is that following ALA policies serves a variety of salutary goals, including “aligning with First Amendment principles.”
To be clear, and as Joudrey repeatedly acknowledged in his deposition, he is not a lawyer and is not qualified to opine on what the law is nor on whether Defendants have complied with the law in this case. Such determinations are ultimately the prerogative of this Court. But the Court sees nothing improper about permitting expert opinion testimony regarding how ALA cataloging policies attempt to accommodate a variety of concerns and interests which bear upon a librarian’s profession, which include but are not limited to First Amendment principles. As Defendants conceded, Joudrey is “equipped to opine on the ‘best practices’ touted by the ALA.”
