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Biomechanics Expert Witness Allowed to Testify Despite not Visiting the Accident Scene

On August 28, 2019, Plaintiff Annie Perrone (“Plaintiff”) commenced this diversity action against Catamount Ski Resort, LLC (“Catamount Ski Resort”) and Catamount Development Corporation (“Catamount Development”; together with Catamount Ski Resort, “Catamount” or “Defendants”) alleging negligence and gross negligence in connection with injuries Plaintiff suffered while skiing at Catamount Ski Area.

Plaintiff and Defendants each sought to preclude or limit the testimony of the opposing party’s experts as per Rule 702.

Plaintiff sought to preclude Defendants’ biomechanical engineering expert, Irving Scher, Ph.D., “from testifying at trial regarding the causation of Plaintiff’s injuries.” Defendants sought to: (1) limit the testimony of Plaintiff’s testifying doctor, Thomas S. Eagan, M.D., and (2) preclude or limit the testimony of Plaintiff’s snow sports expert, Stanley Gale.

Biomechanics Expert Witness

Irving Scher is a Principal and Biomechanical Engineer at Guidance Engineering and Applied Research. He specializes in biomechanical engineering and accident reconstruction. Scher evaluates product safety and performance for recreational sports equipment, injury prevention products, and mechanical systems. Moreover, he investigates human injuries in accidents and product failures by using biomechanical engineering techniques that apply the principles of engineering to the human body.

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

Orthopedic Surgery Expert Witness

Thomas S. Eagan is Board Certified in Orthopaedic Surgery; as such, he is a Diplomate of the American Board of Orthopaedic Surgery. He has been president of the Fulton County Medical Society. Eagan received his medical degree from Albany Medical College, and continued his orthopaedic training at Dartmouth Medical College in New Hampshire. Also, he keeps in touch with advances in the field of orthopaedic surgery through his active participation in many respected medical societies, such as the American Medical Association, the American Academy of Orthopaedic Surgeons, and the New York State Medical Society.

Get in-depth insights into Thomas Eagan’s expert witness experience by requesting his Expert Witness Profile today.

Ski Safety Expert Witness

Stanley Gale has 51 years of on-snow ski safety training and experience. He is a veteran ski patroller of almost 40 years. He has been a ski and snow safety expert witness for over 14 years. Gale routinely travels to ski resorts, tubing hills, sledding hills and snowmobile locations. As a result, he is well versed in the latest custom and practices for safety and mitigation of risk. Moreover, he is aware of the practical applications and day to day experiences of skiers and sledders.

Gain a comprehensive understanding of Stanley Gale’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

A. Plaintiff’s Motion in Limine

1. Irving Scher, Ph.D.

Plaintiff contended that Scher is “not a medical doctor” and did not have “the educational background or training” to provide an opinion as to the medical causation of Plaintiff’s pelvic fracture sustained in the ski accident.

Defendants asserted that Scher will not testify as to Plaintiff’s medical injuries, and that he relied on the review of a board-certified radiologist to identify and confirm the injuries Plaintiff sustained to her pelvis.

The Court found Scher qualified to testify regarding general causation, including the efficacy of whether commercially available padding on an object a Plaintiff collided with while downhill skiing could have prevented or reduced the severity of a Plaintiff’s injury.

Plaintiff further contended that because Scher never went to the accident site, he should not be able to testify that “a non-beginner skier should be able to stop or change direction to avoid open, obvious, visible, and marked snow making (or other obstacles) that are 135 feet away.”

The fact that Scher did not personally visit the site of the accident did not, by itself, make his testimony unreliable.

B. Defendants’ Motion in Limine

1. Thomas S. Eagan, M.D.

Eagan’s Opinion is Based on the Review of Plaintiff’s Medical Records

Defendants contended that Plaintiff was treated by “a number of orthopedists following her injury,” however, Plaintiff is only calling Eagan, a “regular courtroom witness,” whose office is over 150 miles from Plaintiff’s residence, to testify. Defendants relied on several cases for the proposition that “a non-treating physician, hired only to testify as an expert witness, may not state the history of an accident as related to him by the Plaintiff or testify as to Plaintiff’s medical complaints . . . nor can the expert summarize and read statements and findings contained in the reports and records of Plaintiff’s treating physicians, where reports and records were not in evidence and treating physicians did not testify at trial.”

In response, Plaintiff argued that Eagan’s opinion is not relying on hearsay, because he “conducted a physical examination of Plaintiff” and his opinion is based on the review of Plaintiff’s medical records.”

The Court found that Eagan may testify based on his examination of Plaintiff and the medical records he relied on in forming his opinion which are admitted into evidence, as long as he lays the proper foundation.

Eagan is qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury

Defendants next argued that there was “no evidentiary foundation” in the medical records for Eagan’s opinions that: (1) Plaintiff “suffered a torn labrum of the right hip”; (2) Plaintiff will “more likely than not develop arthritis of the right hip and require a hip replacement during her lifetime”; and (3) Plaintiff “is not able to perform heavy labor or place excessive loads on her injured pelvis.” The Court held that Defendants’ arguments “were more appropriate for cross examination” of Eagan at trial.

Defendants also asserted that Eagan was not qualified to testify based on his diagnostic tests “whether or not there is symptom magnification” by Plaintiff because this falls under the purview of a psychologist. The Court found that Eagan was qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury, as long as he lays a proper foundation.

Defendants argued that Eagan’s opinion that Plaintiff “will require cesarean section for delivery of any children” should be precluded because “there is no evidentiary basis.” The Court disagreed and held that Defendants’ challenge is an appropriate subject for cross-examination.

Defendants added that Eagan’s opinion regarding whether Plaintiff will require a cesarian section for delivery of any children is cumulative of Plaintiff’s OB/GYN witness. The Court did not have sufficient information regarding the OB/GYN witness’ testimony to determine whether Eagan’s testimony would be cumulative.

2. Stanley Gale

To begin with, Defendants first argued that Gale is not qualified to give expert testimony because he did not “have the levels of knowledge, experience, or skill in the area of accident reconstruction or ski area operations” necessary to provide an expert opinion. Defendants asserted that his opinions were “speculative and conclusory.” The Court found that Gale is qualified to testify as to the customs and practices of the ski industry, including safety standards and practices.

Defendants next argued that Gale should be precluded from testifying that the snow gun was not marked, and his expert disclosure that the snow gun was not marked should be stricken. They contended that photographs obtained from Plaintiff showed that an orange lollipop marked the snow gun with which Plaintiff collided.

Defendants asserted that because Gale previously gave testimony that properly placed Catamount lollipops [marking snow guns] met the State Code, Gale should be precluded from testifying that the snow gun was unmarked. The Court disagreed and refused to exclude Gale’s testimony regarding that aspect.

Despite Defendant’s objections, the Court held that Gale had the requisite expertise to opine on practices related to padding a snow gun located on a ski trail. However, Gale must testify based on his personal knowledge, and he must explain how his personal experience leads to his conclusions.

Moreover, Defendants contended that Gale should be precluded from testifying that a ski trail “is not limited to the groomed surface” because he previously testified “on multiple occasions that there is a difference between grooming beginner and expert trails.” The Court held that Gale’s previous testimony was insufficient to preclude him from testifying whether a ski trail is limited to the groomed surface.

Held

To sum it up, the Court denied Plaintiff’s motion in limine to preclude Irving Scher’s testimony. The Court reserved decision on Defendants’ motion in limine as to a certain aspect of Thomas Eagan’s testimony until trial but denied the Defendants’ motion in limine to preclude or limit Stanley Gale’s testimony.

Key Takeaways:

The Court insisted on a proper foundation for each of the expert’s opinions. That is to say, Courts routinely examine the factual bases of expert opinions before arriving at a decision.

The Court, citing Meyer v. Bd. of Trustees of the New York City Fire Dep’t, Art. 1-B Pension Fund by Safir, 90 N.Y.2d 139, 146, 681 N.E.2d 382, 659 N.Y.S.2d 215 (1997), held that a non-examining physician is competent to testify as a medical expert in a civil trial as to the cause of a particular medical condition based upon, for example, inspection of the patient’s medical records or the expert’s interpretation of diagnostic tools such as X rays and MRI films.

Above all, if the witness is relying solely or primarily on experience, they must explain how their personal experience leads to their conclusions.

Case Details:

Case Caption:	Perrone V. Catamount Ski Resort, Llc Et Al
Docket Number:	1:20cv563
Court Name:	United States District Court, New York Northern
Date:	May 09, 2024

May 17, 2024

Defendant’s Objections against the Accounting Expert Witness’ Damages Calculations Overruled

A district judge in North Carolina refused to exclude the accounting expert witness’ calculations of the Defendants’ revenues and profits earned in connection with their sales.

Plaintiff and Defendants sell heat transfer systems to industrial customers. In 2016, Plaintiff sued Defendants for trade secret misappropriation, breach of contract, unfair competition, and patent claims. That litigation terminated with a 2018 settlement agreement. According to that agreement, Defendants assigned to Plaintiff patents related to the design of a first-generation Fluid Tracing System (“FTS”) product and pledged specifically to “remove all reference to the [FTS] on its web pages and advertisements and cease all use of any materials referencing the [FTS].” Defendants also agreed not to sell products into the Sulphur field for an exclusionary period of three years, with exceptions granted for four contracts allegedly in place at the time the settlement agreement was executed (i.e., the “excepted contracts”).

Following the settlement, Defendants developed a new heat transfer product, FTS Generation 2 (“Gen. 2”). As required under the settlement agreement, Defendants amended their marketing materials to remove references to the first-generation FTS. Nonetheless, some of Defendants’ post-settlement marketing materials continued to depict FTS Gen. 1. Following the development of FTS Gen. 2, Defendants disseminated a chart indicating that the second-generation product performs better than FTS Gen. 1. Purporting to avail themselves of the excepted contracts provision of the 2018 settlement agreement, Defendants also sold their Gen. 2 product into the Sulphur field.

Plaintiff again sued Defendants in 2021, raising claims of false advertising and false designation of origin under the Lanham Act; racketeering under RICO; common law fraud, civil conspiracy, and breach of contract; and unfair and deceptive trade practices under North Carolina Law.

Expert Testimony

Plaintiff retained Glenn Newman as an expert to calculate the revenues and profits earned by Defendants in connection with their sales into the Sulphur field and sales of FTS Gen. 2 products after the effective date of the settlement agreement. Defendants offered Carson Hannah, an employee of QMax Industries, LLC, to opine on tests he designed and performed in 2019 (before Plaintiff instituted this litigation) showing that Defendants’ Gen. 2 product performs better than the Gen. 1 product for which Plaintiff holds the patent. Each party moves to exclude the other’s expert under Federal Rule of Evidence 702.

Accounting Expert Witness

Glenn Newman, a forensic accountant, has provided a variety of financial consulting and accounting services to attorneys, insurance companies, governmental agencies and public and private corporations since 1980. Newman has served as a Neutral and Special Master and has held numerous leadership positions with the American Institute of CPAs.

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

Discussion by the Court

Defendants moved to exclude Newman’s testimony as unreliable because he failed to establish a causal link between his damages calculations and Defendants’ alleged wrongdoing. Plaintiff contended that Hannah’s report has not “been subjected to peer review and publication,” and is not falsifiable because Hannah failed to record the amount of heat-transfer compound used.

Defendants’ Motion to Exclude Newman

They argued that a damages expert must establish causation by tracing ill-gotten gains to wrongdoing alleged in the complaint. Defendants contended that for an expert report to be admissible to prove disgorgement of profits under the Lanham Act, the expert must do more than assume a correlation between the alleged wrongdoing and the profits; the expert must instead examine causation between the alleged wrongdoing and the estimate of damages.

The Court held that the Plaintiffs retained Newman to opine on merely damages; not causation.

Defendants argued that an expert’s opinion as to damages must be causally related to the alleged harm. Assuming (as the Defendants might) that the jury accepts Plaintiff’s contention that the parties are direct competitors in a two-supplier market, the Court held that Newman’s disgorgement analysis is “causally related to the alleged harm.”

Defendants added that the astronomical amount of profits Newman contended the Defendants owe intensified the unreliability of Newman’s opinion. The Court held that the Defendants’ objection concerned the weight accorded to Newman’s testimony, not its admissibility.

Defendants argued that Newman’s report was unreliable because it did not apportion damages amounts to each of Plaintiff’s claims. According to the Defendant, an expert’s “failure to apportion the disgorgement of profits as to each claim renders his opinion unreliable because there is no way for the factfinder to differentiate which profits are attributable to which claims.”

The Court recognized the merit of Defendants’ claim that Newman’s disgorgement analysis had the potential to mislead a jury, citing the Plaintiff’s lack of entitlement to a disgorgement remedy on all their claims. The Court will address this issue if it materializes at trial. However, the Court denied Defendants’ motion to exclude.

Plaintiff’s Motion to Exclude Hannah

Defendants offered Hannah, a QMax employee, to opine regarding a test that he performed to compare the performance of the Gen. 1 and Gen. 2 FTS products.

Hannah only had to provide a disclosure stating “the subject matter on which [he] is expected to present evidence” and “a summary of the facts and opinions to which [he] is expected to testify” because he is a Rule 26(a)(2)(C) witness.

Plaintiff moved to exclude Hannah on the basis that his conclusions “were not based on sufficient facts or data and were not the product of reliable principles and methods.”

In 2019, before Plaintiff brought this suit, Hannah conducted a test apparently showing that Defendants’ Gen. 2 FTS product performed between 5% and 15% better (in terms of heat transfer) than the Gen. 1 FTS product. Hannah’s Rule 26(a)(2)(C) report did not contain any data from this test. When he conducted this test, Hannah failed to record the total amount of heat-transfer compound used to connect the FTS products to their respective process pipes, which could affect the performance of the FTS products. Hannah admitted that, based on his 26(a)(2)(C) report alone, it would be impossible to evaluate or recreate his analysis.

Since Hannah’s report did not contain the data on which he based his conclusion, Plaintiff contended that “Hannah’s opinions are based on no facts or data—nevermind sufficient ones—and must therefore be excluded.”

The Court held that the spreadsheets produced by Defendants in response to Plaintiff’s discovery requests, which apparently contain the data underlying the 2019 tests belied the Plaintiff’s contention that no such data existed.

Also, the Court held that “vigorous cross-examination” and “presentation of contrary evidence” at trial instead of the Court’s gatekeeping function should address the the reliability of Hannah’s conclusions.

Held

The Court denied the parties’ motions to exclude. The Court held that the parties’ critiques were not without merit, but they ultimately concerned the weight, not the admissibility, of the relevant testimony.

Key Takeaways:

As per Daubert, that district court reliability assessments should focus “solely on principles and methodology, not on the conclusions that they generate” when Defendants added that the astronomical amount of profits Newman contended the Defendants owe intensified the unreliability of Newman’s opinion.

Peer review and publication—while one indicator of reliability—is hardly a requirement for admissibility under Daubert‘s gloss on Rule 702.

Case Details:

Case Caption:	Controls Southeast, Inc. V. Qmax Industries, Inc. Et Al
Docket Number:	3:21cv302
Court Name:	United States District Court, North Carolina Western
Order Date:	May 14, 2024

May 16, 2024

Court Refuses to Bar Expert Witnesses from Opining on Firearms Regulation

A district judge in Vermont refused to exclude the testimony assessing the impact of gun laws presented by the State’s expert witnesses.

Plaintiffs, corporate entities affiliated with gun ownership and several Vermont residents, filed this action against Defendants, high-level Vermont state officials. Plaintiffs allege that 13 V.S.A. § 4021, which prohibits possession and sale of “large capacity ammunition feeding device[s],” and 13 V.S.A. § 4019a, which prohibits transfer of a firearm without a background check or expiration of a waiting period, are unconstitutional under the Second Amendment. On December 20, 2023, the Plaintiffs filed a motion for a preliminary injunction against the enforcement of the Vermont laws. A hearing on that motion is set for May 23, 2024. In anticipation of that hearing, Plaintiffs filed a motion to bar the State’s expert witnesses from testifying.

Economics Expert Witness

Lucy Allen is a Senior Managing Director of NERA Economic Consulting (“NERA”), a member of NERA’s Securities and Finance Practice and Chair of NERA’s Product Liability and Mass Torts Practice. She has analyzed issues related to mergers, ERISA claims, market microstructure, and alleged market manipulation and insider trading, including on complex financial instruments such as credit derivatives, futures, and swaps. She holds a bachelor’s degree from Stanford and three graduate degrees from Yale (M.B.A., M.A., and M.Phil.)

Get in-depth insights into Lucy Allen’s expert witness experience by requesting her Expert Witness Profile today.

Language & Linguistics Expert Witness

Dennis Baron is a Professor Emeritus and Research Professor at the University of Illinois, serving in both the English and Linguistics Departments. He holds a Ph.D. from the University of Michigan and did his dissertation on “historical aspects of the English language.” In addition to his scholarly publications, he writes frequently on language and technology issues in the news, and his essays have appeared in the New York Times, the Washington Post, the Chicago Tribune, and many other papers.

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

Criminal Law Expert Witness

John Donohue is a law professor at Stanford Law School. He holds a law degree from Harvard and a Ph.D. in economics from Yale. He teaches a course on empirical law and economics issues involving crime and criminal justice and has “published extensively” on the impact of gun regulation (or the lack thereof) on crime.

Don’t stop at Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al – review the grounds for prior Daubert challenges and judicial criticism of John Donohue in our Challenge Study.

History Expert Witness

Randolph Roth is a professor of history and sociology at The Ohio State University. He has a B.A. in history from Stanford and Ph.D. in history from Yale. He teaches and researches with a primary focus on “criminology and the history of crime.”

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

Political Science Expert Witness

Robert Spitzer is a professor of political science at the State University of New York at Cortland. He is currently teaching at William and Mary Law School. He has a Ph.D. in government from Cornell and has written extensively on American politics and gun policy. Professor Spitzer’s “expertise includes the history of gun laws, gun policy in American politics, and related historical, legal, political, and criminological issues.”

Gain a comprehensive understanding of Robert Spitzer’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

Lucy Allen

The State sought to introduce Allen’s testimony on “the number of rounds of ammunition fired by individuals using a gun in real-life self-defense” and “the outcomes when large-capacity magazines are used in public mass shootings, including the associated number of casualties.”

Allen analyzed more than 736 incidents in the NRA Armed Citizen database and 200 news stories from a random sample of 4,800 detailing incidents of self-defense and found that “it is extremely rare for a person . . . to fire more than 10 rounds [when using a firearm in self-defense].” Her research revealed only two incidents “where more than 10 rounds were used.”

Allen also analyzed roughly 200 mass shootings from four different sources between 1982 and 2022 and found that “(1) large-capacity magazines are often used in mass shootings; (2) both injuries and fatalities were higher in mass shootings that involved large-capacity magazines than in other mass shootings; (3) it is common for offenders to fire more than 10 rounds when using a large-capacity magazine in mass shootings; and (4) the majority of guns used in mass shootings were obtained legally.”

The Court held that her expert testimony made a “fact that is of consequence to the determination of the action” – namely, how LCMs are used – “more or less probable than it would be without” her testimony. Moreover, the underlying sources of Allen’s analysis – NRA data and news reports – are the kind that an expert would “reasonably rely” upon in forming an opinion on the subject.

Dennis Baron

Baron would testify that “during the Founding Era and the Reconstruction Era, ‘arms’ was used as a general term for weapons . . . but did not include ammunition [or] ammunition containers.” This is based on analysis of broader phrases such as “arms and accoutrements” which, in Baron’s opinion, were used to specify items (accoutrements) other than firearms themselves. Baron would also testify that he has found “no lexical evidence that either repeater firearms or repeater air guns were used as military weapons in England or America in the Founding Era, or that they were used as weapons of personal self-defense at that time.”

Baron’s analysis of the historical understanding of the term “arms” is relevant to determining whether the government’s regulation covers conduct protected by the Second Amendment. Resolution of that issue requires evaluating whether the restricted items – LCMs, in this case – qualify as “arms” under the Second Amendment. The Court held that Baron’s research is relevant to determining whether the regulation covers protected conduct requires textual analysis.

Plaintiffs stated that there is no way to use a firearm without ammunition, rendering magazines integral to “arms” within the meaning of the Second Amendment, but the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court. Baron’s understanding of the historical context of these terms is relevant to this determination.

John Donohue

Donohue would testify that “restrictions on the size of large-capacity magazines . . . can be expected to reduce deaths and injury from gun violence.” He would also testify that “substantial empirical evidence illustrates that waiting periods prior to the purchase of weapons . . . will reduce suicides – particularly among young adults – and would be expected to reduce the risk of . . . enraged individuals buying firearms on the way to commit mass violence.” Finally, Donohue reported that restrictions on LCMs generally have “little or no effect on the ability of individuals to possess weapons for self-defense,” but “should have” a mitigating effect upon mass violence.

Donohue stated that “the problem of public mass shootings in the United States is a serious and worsening national problem.” He added that governments “began responding to this growing menace with . . . restrictions on the type of weaponry that facilitated mass shootings.”

Donohue’s declaration goes directly to the question of whether mass shootings are a social problem addressed by previous generations, or whether they are a novel challenge requiring legislative innovation.

This is a substantial consideration undergirding the historical analysis pursuant to Bruen and is therefore relevant to the case. The Court held that Donohue’s causal claims are not solely applicable to interest balancing frameworks. Empirical research on gun regulation and violence rates is relevant to the question of whether societal problems are new, and whether they correspondingly mandate new solutions.

Plaintiffs correctly asserted that “reasoning by analogy” from a contemporary firearm regulation to historical regulation is a “commonplace task” for a lawyer or judge. But reasoning by analogy requires an analog. That is what Donohue’s testimony purports to provide.

Randolph Roth

Randolph Roth would testify that increased American homicide rates correlate with “political instability, a loss of trust in government and political leaders, a loss of fellow feeling among citizens, and a lack of faith in the justice of the social hierarchy.” He would also testify that “the availability of guns,” especially “rapid-fire semiautomatic weapons and extended magazines in the late twentieth century, have pushed the homicide rate in the United States well beyond what it would otherwise have been.” Roth also wished to address colonial firearm restrictions and the gradual development of firearm regulations.

The Court held that Roth’s declaration demonstrated expertise in the history of violent crime and the relationship between “extended magazines” and the American homicide rate.

Plaintiffs asserted that Roth’s testimony focused primarily on the rise in violence stemming from “breechloading” guns, and that his declaration failed to evince a “dramatic technological change” or “unprecedented societal concern.” The Court disagreed because Roth’s declaration traced homicide and mass killing rates as compared to advancing gun technology, and concluded that the advent of submachine guns led to increased threats to “public safety” and governmental regulation.

Robert Spitzer

Spitzer’s declaration stated that “[t]he current controversy surrounding legislative efforts to restrict large capacity magazines (LCMs) would seem to be a purely contemporary matter, responding to the modern phenomenon of mass shootings.” He would testify to the prevalence of assault weapon and LCM restrictions around the country. He would also state that “restrictions on LCMs are historically grounded.”

With regard to waiting periods, Spitzer would testify that three features of the contemporary gun purchasing landscape explain the rise of gun purchase waiting periods. First, the rise of “mass production techniques” and “[r]paid, convenient, gun sales processes” are relatively new. Second, “no organized system of gun background checking could feasibly exist until the modern era.” And finally, “homicide rates in the colonies and early Federal era were generally low, and when homicides occurred, guns were seldom used because of the time involved in loading them, their unreliability, and (especially for pistols) their inaccuracy.” Additionally, Spitzer would testify that there are “similar, analogous historical gun laws” notwithstanding the lack of statutory waiting periods, such as “laws regulating weapons and intoxication, and weapons licensing laws.”

The Court held that Spitzer’s proposed testimony was relevant considering analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case.

Rule 403 Objection

Plaintiffs stated that the Court should exclude the State’s expert testimony as “more prejudicial than probative” under Federal Rule of Evidence 403. Plaintiffs have not supported this contention with any detail, so that request is denied. Additionally, because the Court concludes that the State’s experts are admissible, it need not hold a Daubert hearing.

Held

The Court denied the Plaintiffs’ motion to exclude the State’s expert witnesses Lucy Allen, Dennis Baron, John Donohue, Randolph Roth, Robert Spitzer.

Key Takeaways:

The Court refrained from excluding Allen’s testimony on hearsay grounds because if expert testimony drawing statistical conclusions based upon database records were to be excluded as hearsay, nearly all expert testimony would be excluded.

Baron’s analysis of the historical understanding of the term “arms” is relevant considering the fact that having some magazine may be crucial to keeping and using a firearm says nothing about whether governments may impose outer limits on those magazines, which is the question before the Court.

Analysis of the history of political response to gun-related problems is central to the Court’s mandate in this case. Spitzer’s testimony deals with the history of American gun regulation, which is a verifiable issue of fact material to this litigation.

The risk of prejudice from overly broad testimony is substantially reduced because the Court is the finder of fact at this stage of litigation.

Case Details:

Case Caption:	Vermont Federation Of Sportsmen’s Clubs Et Al V. Birmingham Et Al
Docket Number:	2:23cv710
Court Name:	United States District Court, Vermont
Date:	May 14, 2024

May 15, 2024

Insurance Expert Witness’ Opinions about California Claims Handling Practices Rejected

Plaintiff Oxnard Manor LP dba Oxnard Manor Health Center (“Plaintiff”) is a skilled nursing facility. As relevant herein, Defendant Hallmark Specialty Insurance Company (“Defendant”) issued a liability insurance policy to Plaintiff effective from June 1, 2017, to June 1, 2018. Defendant then issued a second liability insurance policy effective June 1, 2018, to June 1, 2019. The policies included coverage for professional liability.

This insurance coverage action arises from the apparent decision to wrongfully increase business profits at the expense of vulnerable patients’ care and rights through systematic understaffing and underfunding of residential medical care facilities, including the Plaintiff herein, Oxnard Manor LP, doing business as Oxnard Manor Health Center (“Plaintiff” or “Oxnard Manor”).

The parties each filed motions to exclude expert testimony pertaining to insurance claims handling practices, an issue critical to the Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing.

Plaintiff moved to exclude the expert testimony of Burl Daniel, whom Defendant designated to rebut opinions offered by Plaintiff’s designated expert, Barry Zalma. Defendant, in turn, moved to exclude the expert testimony of Barry Zalma, whom Plaintiff designated to opine on insurance industry claims-handling custom and practice.

Insurance Expert Witnesses

Burl Daniel, CPCU, CIC, CRM entered the Insurance Industry in 1973 and was an Insurance Agency Principal for twenty four years. Attorneys representing policyholders, carriers and/or third parties engage him as a Property and Casualty Insurance Expert Witness.

He holds a BBA-Insurance from the University of Texas and professional designations of CPCU (Chartered Property Casualty Underwriter), CIC (Certified Insurance Counselor), and CRM (Certified Risk Manager), and licenses as a Property-Casualty Agent and Risk Manager. He has served as a corporate Insurance & Risk Manager, Adjunct Professor of Insurance with two Texas universities.

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

Barry Zalma has extensive experience in the insurance industry, first as a claims adjuster, then—for several decades thereafter—as an insurance coverage lawyer licensed to practice in California.

For more than 53 years as a claims person and insurance coverage attorney, Barry Zalma has represented insurers, advised insurers on claims handling, interpreted coverages and testified as an insurance coverage, insurance bad faith, insurance claims handling and insurance fraud expert on behalf of insurers and policy holders’ suing insurers.

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

Discussion by the Court

Plaintiff’s Motion to Exclude the Expert Testimony of Burl Daniel

Plaintiff made three arguments as to why Daniel’s testimony should be excluded: first, that his testimony was not based on sufficient facts or data; second, that his testimony was unreliable because it lacked a supporting methodology; and third, that he offered impermissible, non-rebuttal opinions outside the scope of Zalma’s testimony.

Burl Daniel’s Factual Bases

Plaintiff first contended that Daniel’s report should be excluded because Daniel purportedly largely relied on the deposition testimony of Defendant’s 30(b)(6) witness in formulating his opinions. Although far from clear from his rebuttal report, Daniel has attested under oath to considering over 21,000 pages of documents, and it is not the Court’s role to engage in credibility determinations.

In any event, as Plaintiff explained with respect to its own witness, Zalma, an expert’s purported failure to “address (or review)” material “that purportedly undermine[s] some of his opinions or assumptions does not make his testimony excludable” but instead provides “grounds for cross-examination.” The Court declined to exclude Daniel’s opinions on this basis.

Burl Daniel’s Methodology

Plaintiff also argued that Daniel lacked any “discernable methodology” for his opinions. In particular, Plaintiff noted that Daniel did not refer to “California insurance claims handling or investigation standards” and that he otherwise “lacked sufficient knowledge or experience” to support his conclusions.

As an initial matter, Daniel’s report does not make clear what bases he has to opine on California claims handling practices. Standing alone, Daniel’s curriculum vitae indicates that his experience as an insurance agent occurred within the state of Texas; although he has also worked as an insurance expert witness for approximately twenty years, the curriculum vitae does not make clear how this experience equips him to opine on California insurance custom and practice.

Notwithstanding, Daniel provided scant explanation or analysis to explain the basis of his opinions and did not indicate any methodology he used to arrive at his conclusions. Daniel concluded that Defendant’s investigation and analysis was reasonable under the circumstances of the claim as per insurance industry and California practice standards. Yet, Daniel did not provide any analysis to substantiate this conclusion.

In short, Daniel did not provide any explanation or analysis that could enable the Court to ensure that his expert opinion “both rests on a reliable foundation and is relevant to the task at hand.”

Legal Conclusions

Daniel’s opinions about Defendant’s claim handling process must be excluded for the additional reason that they encroach the role of the jury by reaching the ultimate issue in this case: whether Defendant acted in bad faith. Daniel’s opinions pertained to Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing.

It would be proper for Daniel to offer testimony that could support his conclusion that “Hallmark met its duty of good faith and fair dealing.” It was, however, plainly improper for him to offer only that legal conclusion.

The Scope of Daniel’s Testimony

Plaintiff also argued that Daniel should be precluded from opining on certain warranties Plaintiff purportedly made in its insurance application on the grounds that this opinion fell outside the scope of Zalma’s report and was irrelevant.

The Court concluded that Daniel’s opinion “that the answers and information Robin provided on the application were warranties” and that “any inaccuracies or misrepresentations could serve as grounds to void coverage from inception,” is too generalized and speculative to be helpful to a jury.

Daniel did not set forth any facts that could support a conclusion that Defendant considered this issue in handling Plaintiff’s claim. Defendant contends in opposition that “[a] routine step in claims-handling, which necessarily includes analyzing the insurance policy, is reviewing the application.” While this may be so, Daniel simply concluded that Defendant’s investigation of Plaintiff’s claim was reasonable without analyzing the claims-handling process.

Defendant’s Motion to Exclude the Expert Testimony of Barry Zalma

Defendant advanced three arguments as to why Zalma’s testimony was not reliable: first, that his opinions lacked sufficient factual bases; second, that they lacked a reliable methodology; and third, that they were inadmissible legal opinions.

Zalma’s Factual Bases

Defendant challenged Zalma’s testimony on the grounds that he reviewed only twenty-two documents rather than “all documents produced in this action.” Defendant contended that “Zalma did not have all relevant documents and, therefore, all relevant facts.” The Court held that Zalma’s report indicates that he reviewed various documents, including certain of Defendant’s claim notes, internal best practices documents, the policies at issue in this action, and certain correspondence between the parties. Henceforth, it constituted grounds for cross-examining Zalma at trial, not excluding his testimony.

Defendant also contended that Zalma’s opinions are unreliable because, in preparing them, he viewed documents that Plaintiff purportedly did not provide to Defendant. In any event, as with the documents Zalma did not consider, to the extent this material undermines the credibility of Zalma’s opinions, Defendant may cross-examine him at trial on this matter.

Finally, Defendant raised various substantive criticisms of Zalma’s opinions. The Court held that Defendant’s arguments about Defendant’s choice of defense counsel, Plaintiff’s request for admission responses, Defendant’s investigation, and whether Zalma considered whether any exclusions might bar coverage “go to the weight of the testimony and its credibility, not its admissibility.”

Zalma’s Methodology

Defendant next contended that Zalma’s opinions lacked a reliable methodology because they incorporated standards set forth in California Fair Claims Settlement Practices Regulations and California Insurance Code. Defendant asserted that “Zalma’s opinions are almost entirely based on non-existent legal standards and legal standards that are expressly inapplicable to the case at bar.”

Zalma appeared to have Identified the Relevant Standards for Claims Handling

The Court noted that Zalma has extensive experience in the insurance industry, first as a claims adjuster, then—for several decades thereafter—as an insurance coverage lawyer licensed to practice in California. This experience forms “a sufficient foundation of reliability for his testimony.”

As for Zalma’s invocation of various California statutory provisions, the Court cannot conclude, as Defendant urges, that these provisions are entirely “inapplicable.”

First, Zalma opined—and Defendant did not dispute—that Defendant incorporated certain of the California Fair Claims Settlement Practices Regulations into its own Best Practices for Healthcare Claims. Second, relying on his industry experience, Zalma opined that it is the custom and practice of insurers doing business in California to treat these regulations as minimum standards for interactions with insureds. Zalma appeared to have identified the relevant standards for claims handling and applied those standards to the facts before him.

Defendant Mischaracterized One of Zalma’s Opinions

As for the two opinions Defendant contended were based on “non-existent/inaccurate legal principles,” Defendant mischaracterized one of Zalma’s opinions, which in fact stated that it is industry custom and practice to “[m]eet, and preferably exceed, the minimum standards,”not, as Defendant represents, “that an adjuster has the obligation to exceed standards.” To the extent Defendant disagrees with this aspirational statement, it may cross-examine Zalma about it at trial.

As for Zalma’s opinion regarding providing coverage “to the satisfaction of the insured,” in light of Plaintiff’s concession that Zalma “confirmed it was a misstatement,” the Court questions why the parties have engaged in motion practice regarding this issue. Because the parties and Zalma all agree that this specific opinion is erroneous, the Court concluded that it is unhelpful and irrelevant.

Defendant’s contention that Zalma’s “analysis and resulting opinions are based on an egregiously incomplete and incorrect factual foundation,” essentially repackages its prior argument that Zalma’s opinion must be excluded because he did not review certain purportedly relevant documents and did review certain other, purportedly irrelevant, documents. For the reasons already stated above, however, Rule 702 does not impose such a rigid requirement under these circumstances.

Held

The Court granted the Plaintiff’s motion to exclude the testimony of Burl Daniel in full. However, Defendant’s motion against Barry Zalma was granted only to the extent that it sought to exclude testimony that it is the custom and practice in the insurance industry to adjust claims “to the satisfaction of the insured.”

Key Takeaways:

Daniel did not provide any analysis to substantiate this conclusion. His report failed to identify any purportedly reasonable actions Defendant took to investigate and analyze. As per Rule 702, his statement was merely conclusory absent an explanation of what steps Defendant took and when.

Daniel simply concluded that Defendant’s investigation of Plaintiff’s claim was reasonable without analyzing the claims-handling process. Testimony that Defendant could theoretically have concluded the policy was void from inception and denied coverage to Plaintiff on that basis risks confusing the jury where there is no indication that Defendant ever considered doing so.

Zalma relied on his extensive industry experience and invoked various California statutory provisions. According to the Court, Zalma appeared to have identified the relevant standards for claims handling and applied those standards to the facts before him.

Case Details:

Case Caption:	Oxnard Manor Et Al V. Hallmark Specialty Insurance Company Et Al
Docket Number:	2:23cv1322
Court Name:	United States District Court, California Central
Order Date:	April 2, 2024

May 14, 2024

Safety Expert Witness’ Analysis of the Alleged Discrimination deemed Inadmissible

A district judge in California barred a safety expert witness from testifying about lack of intentional discrimination despite being qualified to offer an opinion on the subject matter.

Plaintiff Melvin Patterson is deaf. He brought this action under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act against Defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and Park Management Corp. (collectively, Defendants).

Plaintiff alleged Defendants discriminated against him by refusing to provide an American Sign Language (ASL) interpreter for planned visits to Defendants’ amusement park, Six Flags Discovery Kingdom in Vallejo, California.

In anticipation of the trial, Plaintiff moved in limine to exclude the testimony of Defendants’ retained expert, Robert F. Minnick, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Plaintiff contended that Minnick is not qualified, his anticipated testimony is unreliable and unhelpful, his testimony contains pure conclusions of law, and he improperly offered opinions as to other witnesses’ state of mind.

Safety Expert Witness

Robert F. Minnick is a safety, compliance, and engineering technical executive with broad-based experience in designing, implementing, and sustaining improvements for resort hotels, theme parks, and entertainment facilities worldwide.

Specifically, he is an expert in ADA compliance and provides consulting services to theme parks to improve the customer experience for persons with disabilities and barrier removal. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions. He previously worked as a technical director of safety and accessibility at Walt Disney Parks & Resorts in Florida, among other positions.

Don’t let the Patterson V. Six Flags Theme Parks Inc. be your only lens into Robert Minnick – order his Profile for a 360-degree view of his professional record.

Discussion by the Court

Minnick describes the following opinions in his report, which the Court has numbered for ease of reference:

“After examining the documents listed [in my report], I do not find any evidence of discrimination by the Defendant. I saw evidence of one Six Flags Guest Relations employee getting confused about their service offerings for persons with disabilities, but no intentional discrimination.”
“Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . Since requests are so rare, it’s not surprising to this expert that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.
“Melvin Patterson appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”
“Park operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.”
“Same day service for a rare request is not a reasonable accommodation.”

Minnick’s testimony goes to the ultimate issues of law

As a preliminary matter, Defendants have shown that Minnick is at least minimally ‘qualified as an expert’ under Rule 702 based on his experience and knowledge regarding ADA compliance and accessibility in theme parks and other businesses from 2002 until today, despite his lack of ‘granular’ experience.

To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the Defendant” and that same-day interpretive services are not reasonable—are “inappropriate subjects for expert testimony.”

Minnick offered legal conclusions—that there was no discrimination and offering same-day ASL interpretive service is not reasonable. The Court held that his testimony inappropriately goes to the ultimate issues of law and is therefore inadmissible.

Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to determine a fact in issue.” As described in his report, opinions (1) and (5) are based on Minnick’s review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings.

He does not explain how he used his expertise to evaluate that evidence. For that reason, it is unclear what helpful testimony Minnick could provide that is outside “the common knowledge of the average layman.”

Minnick’s opinions are properly for the trier of fact

Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of mind are properly for the trier of fact.

The Court held that Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson in the Six Flags Operations Office would be confused about the range of service offerings for the deaf or hard of hearing.”

Nor may Minnick testify at trial that Plaintiff “appears to be angling for a fight with Six Flags Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his season pass expenditure.”

Minnick provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored. In conclusion, Opinion (2) also lacked any analytical foundation.

Minnick did not explain the basis of his opinion or what method he used to reach it

What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen days’] lead-time to understand and process the service request, contact a sign language contractor, schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” Minnick did not explain the basis of this opinion or what method he used to reach it. He did not describe any research. Nor did he know how many days it took for an average or typical amusement park, let alone these particular Defendants, to obtain an in-person sign language interpreter or even an interpreter via the use of Video Remote Interpreting services. Nor did he testify about the industry standards for the amount of time needed to honor requests for ASL interpreters.

Instead, he explained that Disney, his former employer, “asks for two-week notice” because that particular theme park attracts a lot of international guests, and it would take time to find appropriate foreign language sign language interpreters—for example, a British sign language interpreter or a Chinese sign language interpreter.

He also testified vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to establish their policy . . . based on availability of services around the park.” Although he states different theme parks have different policies “based on their experience,” he does not appear to know what Defendants’ experience is and why Defendants’ policies are reasonable, if they are, in light of those experiences.

Held

The Court granted Plaintiff’s motion in limine to exclude Robert F. Minnick’s expert testimony.

Key Takeaways:

An expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law. Expert testimony that consists of legal conclusions is unhelpful and inadmissible. Robert Minnick’s testimony-that there was no discrimination and offering same-day ASL interpretive service is not reasonable-inappropriately goes to the ultimate issues of law and is therefore inadmissible.

Minnick’s opinions about there being no discrimination would not help the trier of fact to understand the evidence or to determine a fact in issue. His opinions are based on his review of discovery production and evidence in this case, including depositions, responses to interrogatories, and pleadings. He does not explain how he used his expertise to evaluate that evidence.

Minnick’s opinion that requests for ASL interpreters are very rare at Six Flags Discovery Kingdom lacked analytical foundation. He provided no analysis on how rare the requests for ASL interpreters are—for example, on average, how many requests do Defendants receive per week, month, or even year? Nor did he explain or know how much time it would take to find an ASL interpreter in the area, such that same day requests or requests made less than seven days in advance cannot be reasonably honored.

Case Details:

Case Caption:	Patterson V. Six Flags Theme Parks Inc., Et Al
Docket Number:	2:21cv2398
Court Name:	United States District Court, California Eastern
Order Date:	May 09, 2024

May 13, 2024

Nursing Expert Witness Fails to Establish Breach of Duty of Care

A district judge in Kansas barred an expert physician and nurse from testifying about the Defendants’ deviation from the requisite standard of care.

Facts:

On April 9, 2021, Smoky Hill admitted Arlen Dority, age 82, after a fall at his home on April 6, 2021 and a decline in his ability to care for himself. Dority resided in the COVID-19 isolation unit. On April 10, 2021, Smoky Hill completed a 48 Hour Care Plan Conference Summary and conducted a fall risk assessment for Dority, and concluded that Dority was at high risk for falls. Shortly thereafter, Dority began physical therapy and occupational therapy to improve his balance and decrease the risk for falls. Between April 9 and April 17, 2021, Dority did not have a documented fall at Smoky Hill.

On April 18, 2021, licensed nurse Andrea Stika noted that Dority was found lying on the floor against the wall, mostly on his left side. He was complaining of right hip and knee pain from his fall, and had scraped his elbow & behind his right ear. When touching the right hip, [Dority] yelled out in pain. He stated that he could not move it. Neuros were done, and no obvious injury was noted, besides the scrape behind right ear.

Smoky Hill notified Salina Emergency Medical Services (“EMS”), which arrived at Smoky Hill six minutes after the nurse found Dority, at 1:31 A.M. EMS transferred Dority to Salina Regional Medical Center, where radiographs indicated a fractured right hip. At the hospital, Dority relayed to staff, and personnel recorded, that the fall occurred while Dority was walking down the hallway at full speed. Surgeons conducted an open reduction internal fixation of the fracture.

At 4:07 P.M. on April 19, 2021, one day after his fall, Dority died. His death certificate listed hip fracture due to a fall as the primary cause of death, with congestive heart failure as a contributing cause.

Wrongful Death and Negligence

On July 9, 2022, Keyna Leonard, Dority’s surviving daughter and the administrator of his estate, sued Defendants for wrongful death and negligence.

Plaintiff claimed that Defendants negligently failed to do one or more of the following: (1) include in Dority’s Interim Care Plan fall-related interventions of a bed in the lowest position and a fall mat; (2) create a Comprehensive Care Plan, containing fall-related interventions of a bed in the lowest position and a fall mat; (3) ensure Dority’s bed was in the lowest position and a fall mat in place on the morning of April 18, 2021; (4) adequately supervise and monitor Dority on April 18, 2021; (5) ensure Dority’s safe transfer from one position to the other on April 18, 2021; and (6) ensure Defendants employed sufficient competent staff.

Defendants argued that Plaintiff has not demonstrated a genuine issue of material fact as to whether they breached any alleged duty of care and, if so, whether that breach caused Dority’s injury.

The Plaintiff retained two experts: Dr. John Kirby and Nurse Eleanore Tache. Tache opined on (1) Defendants’ deviations from the standard of care and (2) how those deviations caused Dority’s fall. John Kirby testified about all aspects of negligence and causation.

Internal Medicine Expert Witness

John Kirby is the Associate Professor of Medicine in the Department of Medicine, Cooper Medical School of Rowan University. John Kirby holds an M.D. from the University of Pennsylvania School of Medicine. Prior to that, he completed his undergraduate studies at Yale University, where he obtained a Bachelor of Science in Biology, graduating magna cum laude with distinction in biology. He previously served as a Consultant to the United States Department of Justice.

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

Nursing Expert Witness

Eleanore Tache has been a registered nurse since 1979. She currently holds a certification as a Director of Nursing in Long Term Care from the National Association of Directors of Nursing Administration Long Term Care. Additionally, she holds an active Nursing Home Administrator licensure since 2007. She is a graduate of Molly College with a Bachelor’s Degree in Nursing.

Get in-depth insights into Eleanore Tache ‘s expert witness experience by requesting her Expert Witness Profile today.

Discussion by the Court

Eleanore Tache

To begin with, Tache’s expert report stated that she examined whether any deviations from the standard of care “were a probable cause of harm to [Dority].” She broadly concluded that “multiple deviations” occurred, and that they were a “probable cause” of harm to Dority. She criticized Defendants’ documentation practices, but she did not implicate them in Dority’s fall on April 18, 2021. Tache found fault with Defendants’ assessments because a registered nurse did not conduct them, but she likewise expressed no opinion that this shortcoming contributed to his fall.

She opined that Defendants’ care plan was not sufficiently comprehensive or implemented early enough. But Dority took no falls before the one in question, and the record contains no evidence that any such deviation from the standard of care caused Dority’s fall. She stated that Defendants had inadequate staffing on the night in question, but did not suggest how additional staff would likely have prevented the fall. Ultimately, her opinion on causation is that Defendants “failed to prevent an avoidable fall.”

The Court held that her opinion did not create a genuine issue of material fact as to whether any alleged breach of Defendants’ duty of care caused Dority’s injury.

John Kirby

John Kirby opined that (1) given Dority’s medical history, he was at a risk of falling while in Smoky Hill’s care; (2) Smoky Hill’s fall prevention interventions were “inadequate to prevent” Dority’s fall on April 18, 2021; and (3) the trauma of the fall caused a hip fracture, which together with congestive heart failure, caused his death.

Kirby’s expert report established a causal link between Dority’s fall and his death. However, it did not create a genuine issue of material fact regarding whether any alleged deviations in the standard of care were the proximate cause of Dority’s fall. Like Tache, Kirby advanced the conclusory opinion that “[f]all prevention interventions were inadequate to prevent Dority’s 4/18/21 fall.”

Once again, Kirby’s opinion did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment.

Held

Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Court held that expert testimony from Tache and Kirby on the issue of causation would cause confusion and delay. In short, their opinions are based on the incorrect legal premise that failure to prevent an accident is sufficient to find liability, and are tethered to specific evidence about the circumstances of the fall.

Key Takeaways:

Opinions of Eleanore Tache and John Kirby did not create a genuine issue of material fact as to whether Defendants breached a duty of care which resulted in Dority’s fall. Moreover, breach of the standard of care cannot be inferred merely from lack of success or an adverse result in treatment. If the Court were to equate breach with an adverse result, the test would become no different than strict liability; indeed, medical facilities are not responsible each time a resident or patient is injured. Consequently, with or without expert testimony on causation, mere failure to prevent a bad outcome is not sufficient to create a genuine issue of material fact as to liability.

Case Details:

Case Details:	Leonard V. Hmg Park Manor Of Salina, Llc Et Al
Docket Number:	2:22cv2267
Court Name:	United States District Court, Kansas
Order Date:	December 06, 2023

May 10, 2024

Premature Motion to Strike Reports of Housing Expert Witnesses Denied Without Prejudice to Renewal

A district judge in New York refrained from excluding testimony about Defendants’ discriminatory policies offered by housing expert witnesses, for the time being.

Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. (the “Organizational Plaintiffs”); Phyllis Bartoszewski; Deanna Town; and Joyce Wilcox, as administrator and representative of the estate of Lois Harter (the “Individual Plaintiffs”), brought this action, asserting claims of discrimination on the basis of disability under the Fair Housing Act of 1968 (“FHA”), New York Human Rights Law, and Ohio Civil Rights Law.

According to Plaintiffs, Defendants have denied Individual Plaintiffs and other people with disabilities reserved or designated parking spaces near the rental units owned and operated by Clover entities (“Clover properties” or “Clover senior properties”). Defendants’ representatives routinely tell residents and applicants that the company does not provide designated parking spots at their multi-family, senior living complexes for anyone, including people with disabilities. Alternatively, and contemporaneously, Defendants have told residents who have requested a designated parking space as a reasonable accommodation because of their disabilities that they must pay a fee up to $350.00 for a designated space.

Defendants filed a motion seeking to exclude from trial and deem inadmissible the opinions of Plaintiffs’ retained experts Erin Kemple and Christina Brooks.

Housing Expert Witnesses

Erin Kemple has been handling housing justice matters for nearly 30 years. She is a consultant and fair housing expert working with fair housing agencies around the country as well as working with the National Fair Housing Alliance to establish a new fair housing council in Memphis, Tennessee.

In 1989, she and a group of legal services advocates and community activists founded the Housing Discrimination Project in Holyoke, Massachusetts eventually becoming the organization’s first Legal Director and then the Executive Director. While there, Kemple assisted the founders of the Connecticut Fair Housing Center, advising them on intake and investigation procedures. In addition to her work in Massachusetts and Connecticut, Kemple is consulting with fair housing groups across the country to assist them with fair housing enforcement and community development work.

In 2022, Erin began her consulting work. She has given numerous trainings on the fair housing laws to lawyers, consumers, and housing providers as well as working with state and local officials to ensure that all communities welcome all people.

Get in-depth insights into Erin Kemple’s expert witness experience by requesting her Expert Witness Profile today.

Christina Brooks has over 16 years of experience in property management. She has taken fair housing training each year for the last 12 years and am well-versed in best practices under the Fair Housing Act, and particularly regarding decisions and issues related to reasonable accommodations.

Gain a comprehensive understanding of Christina Brooks’ qualifications and casework history with her Expert Witness Profile report.

Discussion by the Court

Both Erin Kemple and Christina Brooks submitted reports dated January 31, 2023, and supplemental reports dated June 16, 2023.

Erin Kemple’s report addressed the actions the organizations took in response to Defendants’ discriminatory policies and how those actions fit into the standard fair housing organization processes and practices to address such discrimination.

Christina Brooks’ report discussed typical and accepted reasonable accommodations policies and procedures at multi-family apartment buildings and how Defendants’ procedures relate to those standards.

In support of their motion, Defendants relied on Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and caselaw precluding experts from testifying to legal conclusions. Defendants claimed that the reports “were comprised of nothing but conclusory statements that were not based on any relevant data or facts” and “did nothing to aide a trier of fact to understand any evidence or determine a fact in issue.”

Motion to Strike was Premature

The Court held that the motion to strike was, at that time, premature. Both parties filed motions for summary judgment against each other. The Court does not have to resolve the admissibility of the expert opinions before resolving the motions for summary judgment. Moreover, expert discovery was not completed at the time these issues were briefed. And until the Court rules on those motions, it is not clear which, if any, theories of liability will survive summary judgment.

The Court also noted that the parties have not adequately briefed the relevance and admissibility of some of the proposed expert testimony. With respect to the admissibility of Kemple’s testimony regarding the calculation of organizational damages, neither party has provided any caselaw regarding the type of damages that are compensable. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is a legal issue for the Court to decide, not an issue for expert testimony, and the parties did not cite to any caselaw. The parties’ dispute regarding Brooks’ testimony concerning industry standards and reasonable accommodations is best considered after the Court has resolved the parties’ legal arguments regarding reasonable accommodation under the FHA.

Held

The Court therefore denied the motion to strike the reports of Erin Kemple and Christina Brooks at this time, without prejudice to renewal. To the extent Defendants sought to renew this motion following the Court’s ruling on the pending motions for summary judgment, the parties should meet and confer before Defendants file their motion, in order to narrow the issues.

Key Takeaway:

The parties must adequately brief the relevance and admissibility of the proposed expert testimony. Neither party provided any caselaw regarding the type of damages that are compensable for the Court to rule on the admissibility of Kemple’s testimony regarding the calculation of organizational damages. Kemple asserted that the Organizational Plaintiffs have claims for damages based on the diversion of resources and frustration of missions, but that is not an issue for expert testimony, and the parties did not cite to any caselaw.

Case Details:

Case Caption:	CNY Fair Housing, Inc. Et Al V. Clover Group Inc. Et Al
Docket Number:	5:21cv361
Court Name:	United States District Court, New York Northern
Order Date:	May 8, 2024

May 9, 2024

Court Partly Admits Nursing Expert Witness’ Assertion that the Nursing Care was Substandard

A district judge in Washington ruled that the testimony advanced by an expert on nursing practice was relevant to the Plaintiff’s argument that Chelan County Regional Justice Center’s medical care of inmates is substandard.

Facts of the Case:

Defendant Chelan County Regional Justice Center (“CCRJC”) accepted Blair Nelson into its jail on November 21, 2020. At jail, Blair was suffering from severe alcohol withdrawal. Defendant Licensed Practical Nurse Kami Aldrich attended to her and had to hold her hand so she could get pills into her mouth because she was shaking so much. She was “found” dead in her cell several hours later.

Plaintiff brought this lawsuit on behalf of Nelson’s estate, contending that Blair’s death was preventable and would not have occurred had she received the constitutional minimum of medical care. She left behind four siblings.

Defendants brought a Motion for Summary Judgment and requested the Court to strike the testimony given by three of the Plaintiffs’ expert witnesses: Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot, prior to considering the Motion for Summary Judgment.

Emergency Medicine Expert Witness

Richard Cummins is a Washington State licensed medical doctor who is board certified in both internal medicine and emergency medicine. Cummins has been a member of the University of Washington Department of Internal Medicine and Emergency Medicine since 1981, when he became an attending physician. He was promoted to full professorship in 1985 where he remained for 28 years until retiring from clinical work in July 2020 to Professor Emeritus. During his tenure at the University of Washington Medical Center, he practiced and taught other physicians in the field of emergency medicine, as well as supervised nurses, medical students, and residents in training. Over the course of his career, Cummins has authored more than 150 articles and book chapters on emergency care, including cardiac care.

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

Nursing Expert Witness

Lori Roscoe is a Certified Correctional Health Professional and a Certified Correctional Health Professional — Registered Nurse. Roscoe holds a bachelor’s degree in education, a bachelor’s degree in nursing, a master’s degree in public administration with a healthcare concentration, a master’s degree in nursing, a Doctorate Degree in Healthcare Administration, and a Doctor of Nursing Practice degree. She began work in correctional healthcare in 1995 and today is the principal of Correctional HealthCare Consultants LLC and The Correctional Nurse LLC. Roscoe holds an active registered nurse license in the states of Florida, California, Washington, and Georgia, and is licensed as a nurse practitioner in Florida, California, Virginia, Georgia, and Kentucky. Over the course of her nearly 30-year career, Roscoe has worked in a variety of correctional center settings relating to healthcare.

Get in-depth insights into Lori Roscoe’s expert witness experience by requesting her Expert Witness Profile today.

Criminology Expert Witness

Catherine Fontenot is the Director of the Reception and Diagnostic Unit for VitalCore Health Strategies and was retained for her expertise in correctional practice. Fontenot has had a lengthy career in the field of corrections. She obtained her Bachelor of Science in criminal justice in 1992 and has worked in a variety of correctional settings since that time. Fontenot obtained her master’s degree in criminology from Grambling State University in 2006, and became an adjunct professor at various institutions, teaching courses covering Criminal Law, Criminalistics, Emergency Management, Criminology, Juvenile Justice, Corrections Process, Drugs and Substance Abuse, and the Death Penalty. In her current role, Fontenot was hired to streamline the inmate intake process and to implement an evidence-based health and safety classification.

Gain a comprehensive understanding of Catherine Fontenot’s qualifications and casework history with her Expert Witness Profile report.

Discussion by the Court

Defendants took umbrage with all three witnesses’ reference to the September 7, 2021, death of Joseph A. Verville. Verville was booked into CCRJC on September 5, 2021, with noted signs of opioid withdrawal. LPN Aldrich first assessed him for withdrawal and gave detox medications at dinner the following evening, September 6. Surveillance footage showed Verville vomiting at least six times after taking the withdrawal medication, but he was not assessed again by medical staff until he was found dead at 8:50 a.m. on September 7.

After his death, LPN Aldrich was notified of potential discipline on September 27, 2021, and was given a verbal warning on November 23, 2021, after the death of Nelson. Defendants objected to the expert testimony inclusion of Verville’s death as impermissible character evidence. Plaintiff asserted that each of the expert witnesses can discuss the death of Verville because it established a notice of a pattern of conduct by CCRJC, Director Christopher Sharp, and LPN Aldrich.

Dr. Richard Cummins

Cummins is qualified to give an expert opinion on medical care

Cummins reviewed the entire case file, including medical reports, video footage, discovery related documents, and deposition transcripts. In doing so, he determined that CCRJC has a substandard training program and procedures in place which led to; failure to medically assess Nelson when she was booked into jail, failure to follow the internal alcohol withdrawal policy, and failure to provide a proper level of assessment, monitoring, and care. Cummins determined that had CCRJC rectified any of the failures in care, Nelson would not have died.

Defendants asserted that Cummins was not qualified to give expert testimony on the operations of medical procedures inside a corrections facility because his experience was with emergency departments in hospitals. Defendants also objected to Cummins statements on the basis that he is offering impermissible character evidence in his discussion of LPN Aldrich’s conformity with past negligence, which is inadmissible character evidence. Finally, Defendants argued that Cummins should not be able to opine on causation relating to the practice of jail staff and the death of Nelson.

Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, the Court found that Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department.

While Cummins is not necessarily familiar with medical practices in a correctional facility, he is familiar with the standard practice regarding medical care for individuals receiving treatment for alcohol withdrawal. As an expert witness, Cummins is permitted to testify on causation. Based on his own medical background and review of the record, the Court held that Cummins’s opinion on the ultimate issue, that Nelson’s death was caused by failure in treatment for alcohol withdrawal syndrome, is permissible.

Cummins’ testimony does not amount to impermissible character evidence

Defendants asserted that Cummins’ testimony amounts to impermissible character evidence, based on his comparison of the facts at hand with the death of Verville.

Defendants asserted that Cummins’ report drew a comparison between Nurse Aldrich’s treatment of Nelson and the treatment of Verville, improperly concluding that Nurse Aldrich had a propensity to behave in a medically negligent manner.

Plaintiff asserted that a comparison is not offered in violation of Federal Rule of Evidence 404(b), but instead is offered to show a pattern of administering lower than the established standard of care to inmates, or lack of knowledge or mistake that a particular mode of operation would result in the death of an inmate under the care of CCRJC.

While this evidence could be construed as character evidence suggesting that jail medical staff may have engaged in substandard care, the Court agrees that evidence of Verville’s death, and the circumstances surrounding it, are indicative of lack of mistake or absence of notice. Regardless, under Federal Rule of Evidence 703, a Court is vested with the discretion to allow otherwise inadmissible facts or data if the “probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”

Though not completely analogous, the inclusion of the similar circumstances surrounding Verville’s death may be indicative of absence of mistake or lack of accident via noncompliance with the internal protocol, which would result in the death of an unmonitored detoxing inmate.

Because Cummins is an expert being offered to opine on the standard of medical care provided by CCRJC and the potential cause of Nelson’s death, the Court declined to strike his expert testimony as it did not amount to impermissible character evidence.

Dr. Lori Roscoe, PhD

Roscoe determined that Nelson received substandard nursing care. As part of her finding, she determined that LPN Aldrich’s administration of 100 milligrams of Librium without consulting a provider was illegal but opines no further on this statement except to state that it deviates from the scope of practice of a licensed practical nurse. She also included Verville’s death in determining that CCRJC has a substandard practice of care based on its failure to take corrective action after Verville’s death.

Defendants asserted that Roscoe’s testimony that LPN Aldrich “illegally” administered Librium without contacting a medical provider should be disregarded pursuant to Rule 401 and 403. Further, Defendants alleged that her discussion of Verville amounted to character evidence and was therefore inadmissible.

As an expert on nursing practice, Roscoe was permitted to opine on whether the standard of care was administered from a nursing perspective. Much like Cummins, the Court found that her discussion on the treatment received by Verville was relevant to Plaintiff’s argument that CCRJC’s medical care of inmates is substandard.

As to her statement that LPN Aldrich’s administration of Librium was illegal, Plaintiff offered additional support that any nurse would understand that they are not permitted to administer the narcotic without first contacting a provider.

While potentially dangerous, against the stated internal policy, and seemingly in a general lexicon of knowledge that it should not be done, Plaintiff offered no additional information that administering Librium without first contacting a doctor was “illegal.” As such, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Roscoe’s testimony, because Plaintiff has provided no additional information to support this statement. However, the rest of her report was deemed admissible.

Catherine Fontenot

Fontenot ultimately determined that CCRJC was not proactive in rectifying standards of care that led to the death of Verville, and these gaps in care led to the death of Nelson.

Defendants’ objected to the inclusion of Fontenot’s testimony because it alleged her testimony was based on medical information, impermissible under Federal Rule of Evidence 702 based on her background. They also alleged that the language used, and the conclusions drawn ran afoul of the character evidence requirement under Federal Rule of Evidence 401 and 402.

Plaintiff contended that Fontenot’s testimony is not being offered for a medical purpose, but instead is offered to demonstrate best corrections practices against the opinion of Defendants’ expert witness.

The Court determined that no part of Fontenot’s opinion ran afoul of Rule 702. She did not make a medical diagnosis of withdrawal beyond the scope of what would have been asked of officials without a medical background working in the jail and recognized the difference between medical and non-medical staff.

Further, while the language used by Fontenot is passionate at times, it is not excludable under Federal Rule of Evidence 403.

Held

With the exception of Roscoe’s reference to the administration of Librium being “illegal,” the Court denied the Defendants’ motion to strike Dr. Richard Cummins, Dr. Lori Roscoe (PhD), and Catherine Fontenot. The Court also denied the Defendants’ motion for summary judgment.

Key Takeaways:

Despite the fact that Nelson’s death took place in a corrections facility rather than a hospital, Richard Cummins had extensive knowledge of treating patients in various stages of medical stability, including alcohol withdrawal, given his career in the emergency department. He is qualified to discuss how and when medication should be administered, and allowed to give his opinion about the initial medical intake and ongoing monitoring of inmates who are under the care of jail medical staff.

Plaintiff offered no additional information that administering Librium without first contacting a doctor is “illegal,” despite it being potentially dangerous and against the stated internal policy. As a result, the Court disregarded the notion that LPN Aldrich’s conduct was “illegal” based on Lori Roscoe’s testimony.

As demonstrated both by Defendants’ own expert witness and additional filings, many times jail officials without a formal medical background must nevertheless be able to render rudimentary care, including identifying withdrawal symptoms, and continued monitoring of inmates. The facts of this case demonstrate that in a jail system, staff must work together to keep everyone safe, inmates and each other alike, and as such non-medical staff is asked to do initial medical intake of inmates after hours and provide ongoing monitoring to recognize withdrawal and alert medical staff. In this spirit, no part of Catherine Fontenot’s opinion ran afoul of Rule 702.

Case Details:

Case Caption:	Nelson V. Chelan County Et Al
Docket Number:	2:22cv308
Court Name:	United States District Court, Washington Eastern
Order Date:	April 19, 2024

May 8, 2024

Mechanical Engineering Expert Witness’ Opinions on Vessel Design and Operations Rejected

This matter concerns a maritime personal injury. On May 19, 2023, Bunting filed this case against Odyssea, alleging claims for Jones Act negligence, unseaworthiness, and negligence under general maritime law and state law, and seeking damages for injuries to his back, legs, knees, and feet.

Facts

In March 2018, Odyssea hired Bunting to work as a vessel captain. Bunting worked on vessels for 30 years and was a licensed captain for 20 of those years. In May 2021, Odyssea assigned Bunting to the M/V Odyssea Titan (“Odyssea Titan”), a 225-foot offshore supply vessel that is inspected and properly documented by the United States Coast Guard.

On April 20, 2022, the Odyssea Titan departed from Fourchon, Louisiana, to conduct cargo operations at drilling platforms in the Gulf of Mexico. During the voyage, Bunting and the first mate, Robert Weiss, alternated 12-hour watches, with Bunting being on duty from noon to midnight. Around 9:00 a.m., on May 25, 2022, Bunting was off duty and sleeping when he was awakened upon being bounced up and down in his bunk as the vessel was conducting cargo operations. Bunting went to the bridge to investigate why the vessel was “slamming” so heavily. He discovered that Weiss, at the direction of the platform’s crane operator, had positioned the vessel so that its stern was facing directly into the waves.

Bunting retained G. Fred Liebkemann, IV as his liability expert. Liebkemann, a licensed mechanical engineer, holds a bachelor’s of science degree in mechanical engineering from the University of Miami (1986), and completed one-and-a-half years of post-graduate study in mechanical engineering at Louisiana State University.

Odyssea filed a motion to exclude or limit Liebkemann’s proposed testimony from trial because his opinions did not relate to his area of expertise – mechanical engineering – but rather addressed vessel design and operations, topics about which he is unqualified to render expert opinions.

Mechanical Engineering Expert Witness

G. Fred Liebkemann, IV, a licensed mechanical engineer, holds a bachelor’s of science degree in mechanical engineering from the University of Miami (1986), and completed one-anda-half years of post-graduate study in mechanical engineering at Louisiana State University. He also has a certificate of achievement in automobile accident reconstruction.

He has designed several pieces of equipment, including cranes and other material handling equipment, oilfield equipment and structures, and certain kinds of vessels and marine components.

See G. Fred Liebkemann’s broader expert witness experience beyond Bunting V. Odyssea Marine, Inc. with our in-depth Expert Witness Profile.

Discussion by the Court

In his April 8, 2024 report, Liebkemann discussed the facts of the incident that he gleaned from Bunting’s deposition, specifically, that Bunting was thrown into the air while he slept because the vessel was slamming when floating high in the water with its stern facing the waves. Then, citing a study from 1970, Liebkemann explained the concept of vessel slamming, stating that it occurs when a vessel is lightly loaded and positioned with its stern facing rough waves.

Liebkemann ends his report by stating six opinions:

On account of its design, the Odyssea Titan experiences slamming when lightly loaded while station keeping in moderate following seas.
The role of the vessel when attending the customer’s platform involves station keeping per the customer’s requirements. These requirements often place constraints on both the position and the heading of the vessel.
The ability of the vessel’s master to correct the slamming issue by adding seawater ballast aft of the vessel’s center of gravity is curtailed by the reservation of all suitably sized and located tanks for cargo. Unwritten rules enforced by the owner’s office staff effectively prevent the use of cargo tanks for seawater ballast.
The conflict between the role of the vessel and the capabilities of the vessel is not addressed [in] the portions of the SMS document shared to date. The Operations Manual for the Odyssea Titan has not been provided to date.
Standing instructions to avoid headings that induce severe slamming of the stern while station keeping would have prevented the incident.
Captain Bunting was off duty and asleep in his bunk when he was injured. No action of his contributed to his injury.

Liebkemann is not a naval architect or marine engineer

Odyssea also contended that Liebkemann is unqualified to render the opinions set forth in his report because he is not a naval architect or marine engineer and the Court has never accepted him as an expert in either of those fields. With respect to Liebkemann’s specific opinions, Odyssea argued that Liebkemann parroted Bunting’s testimony; Liebkemann’s commentary on bottom slamming and his opinion regarding the vessel’s design fell within the expertise of a naval architect, not a mechanical engineer; and Liebkemann improperly relied on an outdated and inapposite study to support his statements. Also, Odyssea urged the Court to exclude Liebkemann’s calculations on draft and weight because they are incomplete and, thus, misleading and confusing. As to Liebkemann’s remining five opinions, Odyseea argued that they relate to vessel operations, a topic on which Liebkemann is unqualified to render opinions as he has no experience in that area.

Bunting indicated that, at a client’s request, Liebkemann once took over a project for a certified marine architect. As to Liebkemann’s remaining five opinions, Bunting argued that Liebkemann’s experience as a crane operator qualified him to opine on vessel operations.

The Court held that Liebkemann cannot offer any of his proposed opinions regarding the cause or effect of vessel slamming or any potential remedy. The Court considered his opinions as untethered from his actual area of expertise, mechanical engineering. He has no education or experience in overall vessel design, nor did he perform any calculations demonstrating the forces at work on the Odyssea Titan at the time of the incident.

Although he may have some experience in crane operations, this case is about the operation and handling of a vessel, not a crane.

Liebkemann’s last opinion is a legal conclusion

Liebkemann’s last opinion – viz., that Bunting did not contribute to his injury – is a legal conclusion and did not fall within the province of an expert. As a whole, the Court concluded that Liebkemann will bring no more to the jury than will be available through Bunting’s testimony and lawyer argument.

Held

The Court granted Odyssea’s motion to exclude or limit Liebkemann’s proposed testimony from trial because his opinions failed to satisfy the requirements of Rule 702.

Key Takeaway:

Rule 702 also requires that an expert be properly qualified. Generally, if there is some reasonable indication of qualifications, the district court may admit the expert’s testimony, and then the expert’s qualifications become an issue for the trier of fact. A witness qualified as an expert is not strictly confined to his area or practice but may testify regarding related applications; a lack of specialization goes to the weight, not the admissibility of the opinion. While nobody challenged Liebkemann’s qualifications as a mechanical engineer, his report and deposition demonstrate that he is not qualified to render his proposed expert opinions because those opinions concern principles of naval architecture, marine engineering, and vessel operations or, more precisely, ship handling or vessel maneuvering.

The Court excluded Liebkemann’s testimony from trial due to his lack of qualifications in the fields of naval architecture, marine engineering, and vessel operations, and because it is not more likely than not that his specialized knowledge will assist the trier of fact.

Case Details:

Case Caption:	Bunting V. Odyssea Marine, Inc.
Docket Number:	2:23cv1712
Court Name:	United States District Court, Louisiana Eastern
Order Date:	May 6, 2024

May 7, 2024

Epidemiology Expert Witness’ General Causation Opinion Rejected

This is a multidistrict litigation (“MDL”) in which over 5,000 individual Plaintiffs allege that they developed Parkinson’s disease because of their exposure to an herbicide, paraquat dichloride (“paraquat”). Paraquat is a restricted-use quaternary ammonium herbicide that is used to control weeds in farming operations and other settings around the United States. Defendants, Syngenta Crop Protection, LLC and Syngenta AG (collectively “Syngenta”), currently manufacture and distribute paraquat for use in the United States, whereas Defendant, Chevron U.S.A., Inc. (“Chevron”), manufactured and distributed paraquat until 1986.

Facts of the Case

Dr. Martin Wells serves as Plaintiffs’ sole expert witness on the critical issue of general causation, offering an opinion that occupational exposure to paraquat can cause Parkinson’s disease. Defendants filed a motion to exclude Wells’ proffered testimony which raised complex issues related to the study of epidemiology and the scientific methodologies of systematic review and meta-analysis. Defendants’ motion is brought in four of the six member cases that were selected for case-specific discovery in the Court’s April 13, 2022 order. These four cases have gone through fact and expert discovery and now serve as this MDL’s first set of trial selection cases.

Plaintiffs retained Martin Wells to “analyze the epidemiological evidence relating the association and causation of the occupational exposure of paraquat to the onset of Parkinson’s disease.” To accomplish this task, Wells conducted a meta-analysis of seven epidemiological studies that measured a potential association between paraquat and Parkinson’s disease. Wells determined, based on this meta-analysis, that there was a “near tripling of PD occurrence in [study] participants occupationally exposed to paraquat.”

After establishing a positive association between occupational exposure to paraquat and Parkinson’s disease, Wells conducted a weight of the evidence review to determine whether the association was attributable to a causal relationship. He found that it was and drew the following conclusions: (i) the available epidemiological evidence supports a causal relationship between paraquat and Parkinson’s disease; and (ii) the trial selection Plaintiffs fit the exposure and diagnostic criteria of the seven studies in his meta-analysis, meaning that they were at “near tripl[e]” the risk of developing Parkinson’s disease.

Epidemiology Expert Witness

Dr. Martin Wells boasts of an impressive career as an academic, researcher, and prolific publisher in the fields of biostatistics and epidemiology. He received his Ph.D. in Mathematics from the University of California in 1987 and became an Assistant Professor at Cornell University that same year. Furthermore, Wells currently serves as a Professor of Clinical Epidemiology and Health Services Research at Weill Medical School and as the Chair of the Department of Statistics and Data Science at Cornell. Moreover, he has published 250 scholarly articles on statistics, human health, and other topics and has received research grants from numerous governmental and non-governmental institutions, including the U.S. Department of Agriculture, the U.S. Army, and the National Institutes of Health.

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

Discussion by the Court

Legal Standard

In his own words, Wells offers an opinion that “the available epidemiological evidence supports a causal relationship between occupational paraquat exposure and PD.”

The admissibility of expert testimony under the Federal Rules of Evidence is governed by the well-known and oft-cited standards of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Under Rule 702, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

Amended Rule 702

This amended version of Rule 702 took effect on December 1, 2023, after the Parties submitted their briefing. The Advisory Committee on the Rules of Evidence explained that the amendment does not “impose[] any new, specific procedures.”

Rather, the amendment emphasized that the proponent bears the burden of demonstrating compliance with Rule 702 by a preponderance of the evidence, and that “each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

The Advisory Committee cautions that “expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in [Rule 702].”

In providing this instruction, the Advisory Committee noted that some courts had “incorrect[ly]” held that an expert’s basis of opinion and application of her methodology were questions of weight, not admissibility. The Advisory Committee thus appears to have found that courts had erroneously admitted unreliable expert testimony based on the assumption that the jury would properly judge reliability by assigning appropriate weight to an expert’s opinion.

Bradford Hill Analysis

To judge causation, researchers ordinarily consider how the following nine “Bradford Hill” factors (named after the British epidemiologist and statistician, Sir Austin Bradford Hill) apply to an observed association:

(1) temporal relationship (the exposure must occur before the disease develops);

(2) strength of association (the higher the RR or OR, the greater the likelihood that the relationship is causal);

(3) dose-response relationship (whether a higher dose increases the incidence or severity of the disease);

(4) replication of findings (whether research findings have been replicated in different populations with consistent results);

(5) biological plausibility (whether the association is consistent with current biological knowledge about the disease);

(6) consideration of alternative explanations (whether the research has properly accounted for bias and confounding variables);

(7) cessation of exposure (whether the cessation of exposure reduces the risk of disease);

(8) specificity of association (an association is specific and more likely to be causal if the exposure is associated with only a single or a small number of diseases); and

(9) consistency with other knowledge (whether a causal inference is consistent with relevant general knowledge or data).

After establishing a positive association, Wells conducted a Bradford Hill analysis to determine whether occupational exposure to paraquat was causally related to Parkinson’s disease. Wells discussed six of the nine Bradford Hill factors (strength of association, consistency, temporality, dose-response, experimental evidence regarding the cessation of exposure, and specificity) in his first report, and assumed that the other three factors (biological plausibility, coherence, and analogy) were satisfied based on the report of Plaintiffs’ toxicology expert. He appears to have found that the six factors he evaluated were all satisfied, and on that basis, concluded that “drawing general causal inferences related to occupational paraquat exposure and PD is merited.”

Legal Analysis

A. Qualifications

Defendants first attacked Wells on the basis that he was not qualified to offer an opinion about the causal relationship between occupational paraquat exposure and Parkinson’s disease. This argument purported to show that although Wells possessed impressive credentials as a statistician, his qualifications were limited to just that type of work—calculating a summary risk estimate from a pre-selected universe of epidemiological studies.

The Court held that Wells is not just a statistician; he is a professor of epidemiology with an impressive record of scholarly publications on epidemiological issues. As such, he is well-equipped to judge the relative quality of the epidemiological studies at issue.

Simply put, as a biostatistician and epidemiologist, Wells is well qualified to offer a general causation opinion based on a Bradford Hill analysis and to evaluate the relative quality of epidemiological studies relevant to the causation question at issue.

B. Reliability

1. The Scope of Dr. Wells’ General Causation Opinion

An epidemiological causation assessment ordinarily proceeds in two steps: (i) a determination of whether a disease is associated with exposure to a particular agent; and (ii) if a positive association is found, a Bradford Hill analysis to determine whether the association is the result of a cause-and-effect relationship. At a high level, Wells followed these steps as well. First, he surveyed the epidemiological literature and established a positive association by conducting a meta-analysis of seven case-control studies that examined a possible association between paraquat exposure and Parkinson’s disease. Second, he conducted a Bradford Hill/weight of the evidence analysis to determine whether the totality of the evidence supported a causal relationship between occupational paraquat exposure and Parkinson’s disease. Wells then offered the opinion that the elevated odds ratio from his meta-analysis applied to the four trial selection Plaintiffs, Mr. Richter, Mr. Burgener, Mr. Fuller, and Mr. Coward.

Wells offered an expert opinion that “occupational” paraquat exposure was causally related to Parkinson’s disease. Any exposure that did not qualify as “occupational” is therefore not within the scope of his opinion. The Court observed that Wells redefined “occupational” exposure no less than three times, creating more questions than answers about the types of paraquat exposures that, according to him, can cause Parkinson’s disease.

2. Wells’ Meta-Analysis

Wells’ violations of the rules of meta-analysis are evident from the very beginning of his process. One of the initial steps in a meta-analysis involves the search for relevant studies that are then further analyzed for potential inclusion in the analysis. Wells’ first report is entirely devoid of a search narrative that would allow other researchers to validate his process.

The next methodological red flag in Wells’ meta-analysis is that until he submitted his rebuttal report, he failed to clearly articulate the inclusion/exclusion criteria that purportedly governed a study’s eligibility for his analysis. Indeed, Wells testified at his first deposition that he reviewed the relevant studies “holistically” to determine “whether or not [they were] reliable enough for inclusion.” This “holistic” approach was neither reduced to writing, nor did it offer any discernible objective criteria that would allow others to replicate Wells’ eligibility determinations.

Moreover, Wells relied on an evolving set of quality criteria to determine which studies ultimately warranted inclusion in his meta-analysis. This alone undermines the methodological soundness of his qualitative evaluation of the literature.

Another methodological issue in Wells’ meta-analysis concerned his apparent failure to follow even his own articulated reliability standards. Wells appeared to have violated this guideline for the most important study in his meta-analysis, Liou (1997).

The Court took no position on the relative merit of the various epidemiological studies at issue in Wells’ analysis. Indeed, the Court did not find Wells’ meta-analysis unreliable because it excluded van der Mark (2014), Shrestha (2020), or any other relevant study for that matter. Rather, Wells’ meta-analysis did not pass muster under Rule 702 because its methodology was unclear, inconsistently applied, not replicable, and at times transparently reverse-engineered.

3. Dr. Wells’ Weight of the Evidence / Bradford Hill Analysis

a. General Observations

After he generated his odds ratio of 2.8, Wells conducted a “weight of the evidence” review utilizing the Bradford Hill framework to determine whether the association was attributable to a cause-and-effect relationship between occupational paraquat exposure and Parkinson’s disease. This analysis involved the “combination of two methods”—weight of the evidence review and application of the Bradford Hill factors. Although this approach is generally reliable, there is “very little” circuit-level authority guiding its application in toxic tort cases.

In short, experts in toxic tort actions commonly employ this methodology to answer complex epidemiological causation questions. Because of its widespread adoption in the scientific community and in other litigations, the general reliability of this approach is not in dispute. However, the method gives researchers significant flexibility to decide how to analyze the evidence and weight each Bradford Hill factor in relation to the others. An expert could “theoretically assign the most weight to only a few factors, or draw conclusions about one factor based on a particular combination of evidence.” So, while the methodology offers the benefit of flexibility, it is vulnerable to results-driven analysis, which, of course, raises significant reliability concerns.

b. The Reliability of Dr. Wells’ Bradford Hill Analysis

Wells’ weight of the evidence/Bradford Hill analysis is a textbook example of the type of standardless presentation of evidence that courts have cautioned against. The most obvious methodological defect is the absence of any discernible weighting methodology. Neither Wells’ first report nor his rebuttal report offer any explanation of the relative weight or importance assigned to each of the six Bradford Hill factors he analyzed.

c. Isolation from the Scientific Community

This Court has focused, as it must, on the methodological soundness of Wells’ analyses in support of his conclusions, not the conclusions themselves. However, the line between methodology and conclusion is “not always an easy [one] to draw.”

Daubert expressly addressed the importance of independent validation of an expert’s opinion when it observed that “[w]idespread acceptance can be an important factor in ruling particular evidence admissible.” The Advisory Committee on the Federal Rules of Evidence therefore cautions that “when an expert purports to apply principles and methods in accordance with professional standards, and yet reaches a conclusion that other experts in the field would not reach, the trial court may fairly suspect that the principles and methods have not been faithfully applied.”

In conclusion, Wells’ causation theory has not been adopted or independently validated in any peer-reviewed scientific analysis outside of this litigation.

4. Dr. Wells’ Plaintiff-specific Opinions

Wells’ third and final proffered opinion concerned the individual Plaintiffs in the four trial selection cases, Mr. Burgener, Mr. Coward, Mr. Fuller, and Mr. Richter. According to Wells, “these individuals fit the inclusion criteria in the referenced seven studies in my meta-analysis.” As a result, “[t]he elevated odds ratio of 2.8[] and the [Bradford] Hill criteria apply to these individuals.”

This opinion will be excluded because it is not severable from Wells’ meta-analysis and his weight of the evidence/Bradford Hill analysis. Plaintiffs conceded this point at the Daubert hearing by noting that Wells’ meta-analysis is “critical for specific causation.” Moreover, without testimony concerning (i) a positive association between occupational paraquat exposure and Parkinson’s disease, and (ii) a causal relationship between occupational paraquat exposure and Parkinson’s disease, there is no testimony for Wells to give as it pertains to the four trial selection Plaintiffs.

Held

To sum it up, the Court concluded that Martin Wells’ proffered opinions were not admissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

Key Takeaways:

Moreover, in addition to the Bradford Hill factors of strength of association, consistency, and temporality (which he also considered in Monroe), Wells discusses experimental evidence related to the cessation of exposure, evidence of a dose-response relationship, and specificity. Nonetheless, the Court is not persuaded that his discussion of these considerations pushes his testimony beyond the limits of his qualifications as a biostatistician and epidemiologist. Furthermore, Wells’ Bradford Hill analysis is appropriately limited to the epidemiological studies he reviewed. He does not purport to venture into the realm of toxicology or other disciplines that are beyond his area of expertise.

Wells’ reliance on an unwritten, “holistic” methodology presents an ideal example of “because I said so” expertise that is impermissible under Rule 702. Wells insisted that he “ha[s] the credentials to do this” and that he “had a process that [he] followed.” But these assurances, without more, do not show that Wells faithfully applied the necessary steps of his chosen methodology as Daubert requires.

Against the backdrop of Wells’ departure from the most basic methodological requirements of a weight of the evidence review, it is not surprising that his analysis reveals extensive selection bias. Wells appears to have fallen prey to the temptations of selection bias in his discussion of several Bradford Hill factors, most notably those concerning a dose-response relationship and strength of association.

Case Details:

Case Caption:	Richter v. Syngenta AG (In re Paraquat Prods. Liab. Litig.)
Docket Number:	3:21md3004
Court Name:	United States District Court, Illinois Southern
Order Date:	April 17, 2024

May 6, 2024