Expert Witness Profiler

Blog

  • Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

    Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

    This case involves an insurance claim regarding a damaged roof on the Minden residence. Plaintiffs, Michael and Theresa Minden (“Plaintiffs”), purchased a newly-constructed home in 2003 in Nevada. Allstate’s policy of insurance insured the property.

    In September 2019, a wind event occurred resulting in damage to the roof of Plaintiffs’ home but Plaintiffs waited until November 2019 to report this damage to Allstate.

    Plaintiffs alleged that several roof tiles were cracked, exposing the underlying roof felt and that since the time of loss, water penetrated their roof tiles and further damaged the underlying felt and the inside of the Property. This case focused on the cause and manner of the damage to Plaintiffs’ roof, and Allstate’s homeowners’ insurance policy language, which stipulated that it covered these damages only if caused by a singular “occurrence,” and not through regular wear and tear. Allstate, after a thorough evaluation of Plaintiffs’ claim, made the determination that Plaintiffs’ roof damage was the result of faulty installation and subsequently years of wear and tear, and compensated Plaintiffs for the eight (8) roof tiles deemed damaged by a singular wind event. Plaintiffs disagreed with this assessment, and the present suit followed.

    Plaintiff’s expert, Marcor G. Platt, examined Plaintiff’s roof on August 13, 2021 and August 24, 2021. The Defendant alleged that the roof Platt inspected, however, was not the same roof that was on the house in September 2019 when the claim was made. Plaintiffs had almost entirely replaced their roof in October of 2020, almost an entire year before Platt’s site investigations.

    Defendant Allstate Property and Casualty Insurance Company moved to strike the Plaintiffs’ expert witness, Marcor G. Platt. Allstate also filed a duplicate motion in limine to exclude Platt from testifying at trial.

    Forensic Engineering Expert Witness

    Marcor G. Platt has over twelve years engineering and project management experience in the fields of residential, commercial, and industrial building structural design and retrofit, electrical transmission line structural design, and forensic engineering and expert witnessing.

    His forensic engineering experience includes investigating roof failures, wall failures, foundation damage, corrosion, ancillary structure damage, and other miscellaneous damage resulting from hail, wind, snow, tornado, hurricane, lightning, volcano, tropical storm, vehicle impact, or other natural or man-made forces. His expert witness experience includes testifying at depositions and trials regarding project management, structural failures, structural adequacy, structural damage, property compliance with building codes, and other subjects.

    Efficiently evaluate if investing further resources into vetting Marcor G. Platt is merited based on the findings in our Preliminary Screening Report. 

    Discussion by the Court

    Federal Rule of Evidence 702 governed the admissibility of Platt’s opinions. To be admissible, expert testimony must be both relevant and reliable.

    Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. It is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline

    Opinions Based on Relevant Facts and Data

    Allstate also argued that a roofing company had moved the tiles Platt took for testing from their original locations during the roof replacement in 2020. It added that any displaced tiles Platt observed in 2021 were unrelated to the wind event in 2019 because the roof was replaced in 2020. Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, so his “opinions were nothing more than a comparison of the evidence provided by others.”

    Relying on Others’ Reports

    Platt interviewed the Mindens, the contractor who replaced the roof, and a neighbor who experienced wind damage to her roof. The Court found that Platt reviewed documentation, photographs, and reports prepared by others. Platt also conducted two site visits to the Minden residence, conducted weather research, removed tile samples and sent them to a lab for testing, and performed calculations regarding maximum probable wind speed and how that may have impacted the tiles on the roof.

    Moreover, Allstate had not suggested that experts in Platt’s field would not have relied on interviews, photographs, or other secondhand sources that Platt relied on.

    Allstate’s expert likewise did not view the roof before its replacement and similarly relied on photographs of the old roof and information provided by the Mindens. After all, experts in the field would rely on the same or similar materials as Platt did, and Allstate has not shown otherwise.

    Replacement Roof

    When the roof was replaced, the roofer used the original tiles as if they were not damaged. Platt opined that the tiles he sent for testing were the original roof tiles, not replacements. Consequently, the jury could find that the testing performed on those tiles would be consistent with testing done on the original roof tiles.

    The Court could determine whether the tested tiles were original tiles, whether they were in a different location after the roof replacement, and how the tiles were stored or transported to the testing site through cross-examination.

    Displaced Tiles in 2021

    Platt observed displaced and cracked roof tiles during his site visits in 2021. Platt did not feel that the 2019 event displaced the tiles he observed. Rather, he noted that, like the original tiles, the current roof tiles “were susceptible to displacement under the windspeeds which occur at the property.”

    The Court held that this information was relevant to the question of whether wind gusts at the proper speed could displace roof tiles. Moreover, Allstate had not explained why that conclusion was not reliable.

    Unreliable

    Allstate argued that errors in Platt’s report made his opinions unreliable. Specifically, Platt misstated the date of a rainstorm that caused water intrusion into the Mindens’ home after the September 2019 wind event. Allstate also contended that Platt’s testimony about the weather data regarding wind speeds was unsupported.

    The Mindens argued that Platt had explained the source of his wind speed opinion.

    Date of Rainstorm

    In his initial report, Platt stated that Minden told him that there were “torrential rains” in September 2019 that caused water infiltration to the house. At his deposition, Platt acknowledged that was an error and the rainstorms with water intrusion were in November and December 2019. The Court noted that Allstate did not explain what significance the date of the rainstorm had to Platt’s opinions, which were not about water intrusion from a rainstorm.

    Wind Speed

    In his initial report, Platt stated that he reviewed historical weather data from 2013 to 2021 for Clark County and the City of Henderson. Platt stated that according to the National Oceanic and Atmospheric Administration’s (NOAA) Storm Event Database, “four events with wind gusts between 50 and 62 knots were reported within 4 miles of the property from July 2018 to July 2021” and that “[n]no gusts over 62 knots were recorded within four miles of the property from July 2003 to July 2021.” He also stated that, according to NOAA’s Storm Prediction Center, 62 mile per hour gusts were reported at the Henderson Executive Airport, and on September 1, 2019, “winds with gusts exceeding 75 mph crossed the southeastern Las Vegas valley and Henderson.”

    Although Allstate contended that there was no support for Platt’s statement regarding the 75 mph wind gusts, Platt cited the source for this data point. Allstate’s expert noted the same information as Platt, which was that on September 1, 2019, wind gusts “exceeded 75 mph across the southeast side of the Las Vegas valley including the city of Henderson.”

    Supplemental Report

    Allstate sought to exclude Platt’s supplemental report because it referred to wind events on dates unrelated to the September 2019 storm that allegedly damaged the Mindens’ roof. Allstate contended the supplemental report consisted of dates and wind speeds that were not close to the date of the loss or to the alleged threshold rating of the roof tiles. It also argued that Platt had no support for his opinion of a maximum probable windspeed of 70 mph.

    The Court held that the supplemental report referenced additional weather research Platt obtained from NOAA Local Climatological stations, as well as Platt’s explanation for why Allstate’s expert’s reliance on another source, the Weather Underground website, was unreliable.

    The Court saw no reason to exclude his opinion on this basis, as he was cataloguing additional data and responding to data provided in another expert’s report.

    As for Platt’s opinion on the maximum probable windspeed in the supplemental report, Platt explained the basis for his wind speed opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report.

    Held

    The Court denied the motions to exclude the testimony of Marcor G. Platt because the arguments Allstate raised were matters for cross- examination and were not bases to strike Platt’s testimony.

    Key Takeaways:

    1. Relying on Others’ Reports: When Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, the Court held that experts can rely on hearsay in forming their opinions so long as the underlying facts or data are of a type experts reasonably rely upon in the particular field in forming opinions or inferences upon the subject.
    2. Reliability: Platt explained the basis for his opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report. The Court held that Platt relied upon relevant facts and data to form his conclusions.
    3. Supplemental Report: Cataloguing additional data and responding to data provided in another expert’s report is no basis to exclude an expert’s testimony.

    Case Details:

    Case Caption: Minden Et Al V. Allstate Property And Casualty Insurance Company
    Docket Number: 2:21cv151
    Court: United States District Court, Nevada
    Order Date: April 04, 2024

  • Biomechanical Engineering Expert Witness fails to provide a “scientific connection” to the issue at bar

    Biomechanical Engineering Expert Witness fails to provide a “scientific connection” to the issue at bar

    On February 7, 2020, Mauricio Gonzalez-Lopez, who was then a 37-year-old employee of V-coin, Inc. (“V-com”), was at V-corn’s warehouse unloading a tractor-trailer owned by Perfect Trading, Inc. (“Perfect Trading”) and operated by its driver, Ding Yi (“Yi”). Defendants Perfect Trading and Yi (“Defendants”) maintained that Yi remained in his truck throughout the entire unloading of the trailer and only when a V-com employee returned the driver’s paperwork and alerted him that his truck was unloaded did he begin to pull the truck forward so that a V-corn employee could shut the trailer doors. When the tractor-trailer began moving away from the docking area, Plaintiff was walking out of the truck with a box.

    The Plaintiff alleged that due to the truck’s sudden movement forward, he lost his balance, stumbled, and fell out of the truck causing injury to his right foot. In contrast, although there was video surveillance of the incident, Defendants offered Kirk Lawrence Thibault’s expert opinion to support their theory that Plaintiff jumped, rather than fell out of the truck.

    Plaintiff Mauricio Gonzalez-Lopez filed a Daubert motion to  exclude the testimony of Kirk Lawrence Thibault, PhD, D-IBFES,  a biomechanical engineer, pursuant to Rule 702.

    Biomechanical Engineering Expert Witness

    Kirk Lawrence Thibault has a Bachelor’s of Science from the University of Pennsylvania as well as a Master’s Degree in Doctorate in Bioengineering from the University of Pennsylvania.

    He is the President of Thibault Scientific, LLC which specializes in the following areas of injury analysis: Transportion (motor vehicles, pedestrians, bicycles), Recreation and athletic trauma, Product liability, Premises liability, Pediatric injury biomechanics and Impact and crash testing and analysis.

    Intrigued by the Gonzalez-Lopez V. Perfect Trading, Inc. Et Al objections to Kirk Lawrence Thibault’s testimony? Explore other disputes over his expert opinions through our in-depth Challenge Study.   

    Discussion by the Court

    Thibault’s expert report explained that a “sudden change in velocity of one’s planted foot relative to one’s center of mass may momentarily disturb one’s dynamic stability such that one may lose one’s balance and fall forward. … If one could not step to reestablish a stable base of support, one might fall forward, resulting in a reflexive, protective response that manifests as extending one’s arms forward.” As Thibault described, the video did not demonstrate a loss of balance, but rather, showed “that [Plaintiff’s] body remained stable and upright throughout the entire event. He took active, deliberate steps with his left and right leg to position his body at the edge of the trailer. He squatted and then pushed off with both feet to hop off the trailer and jump to the ground.”

    In addition, Thibault noted there was no evidence of injuries, such as to Plaintiff’s upper extremities or to his face, torso, and lower extremities, suggesting that Plaintiff had lost his balance and fallen forward out of the trailer to the ground. In sum, Thibault concluded: “the trailer began to move forward slowly and, in response, Mr. Gonzalez-Lopez stepped to the rear edge of the trailer and jumped to the ground, where the heel of his right foot contacted the ground and sustained a fracture of the calcaneus.”

    Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump

    In this case, Defendants explained that Thibault’s opinion was based on the review of 14 specific references, in addition to his education, training, and experience. Those 14 references appeared to be the video surveillance footage, pleadings, discovery materials, medical records, witness statements, and an inspection of the docking area. As Plaintiff correctly pointed out, Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were. 

    Thibault’s opinion did not satisfy the precondition of providing a “scientific connection” to the issue at bar

    Thibault’s opinion was based on his observation of the video footage and review of discovery from this case rather than from any scientific methodology. Thus, it did not satisfy the precondition of providing a “scientific connection” to the issue at bar. In any event, the video footage of the incident itself was the best evidence of what occurred. Moreover, the Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible.

    The Court held that Thibault’s conclusion pertained to a subject matter that was familiar to a layperson: that a “sudden change in velocity of one’s planted foot” could cause a person to lose balance and fall forward. After seeing the surveillance video, based on its own experience and knowledge, the jury could assess for itself whether Plaintiff had lost his balance and involuntarily fallen or purposely and voluntarily jumped off the truck.

    Thibault did not address if Plaintiff “jumped to the ground” as the result of a deliberate decision

    Defendants sought to establish that Plaintiff’s injuries were consistent with and proximately caused by a jump rather than a loss of balance because Defendants assumed that “jumping” reflected a deliberate choice not to stay in the truck until it came to a stop. However, Thibault did not (nor could he) opine that because Plaintiff did not lose his balance and instead jumped, Plaintiff must have had the opportunity to proactively choose his course of action despite the truck’s sudden movement.

    Thibault did not address whether Plaintiff “jumped to the ground” as the result of a deliberate decision or felt compelled to do so by the unexpected forward motion of the truck in the opposite direction that he was walking. Therefore, even assuming Plaintiff jumped, Thibault’s testimony did not assist a jury in determining whether Plaintiff’s injuries were proximately caused by his own decision to exit the truck or because the sudden movement of the truck necessitated him to jump off.

    Held

    The Court granted Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Kirk Lawrence Thibault because Thibault’s testimony did not rely on scientific methodology or assist the trier of fact.

    Key Takeaways:

    1. Helpful to the Trier of Fact: The Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible since it did not satisfy the precondition of providing a “scientific connection” to the issue at bar.
    2. Reliability: Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were.

    Case Details:

    Case Caption: Gonzalez-Lopez V. Perfect Trading, Inc. Et Al
    Docket Number: 2:21cv12906
    Court: United States District Court, New Jersey
    Order Date: April 02, 2024
  • Podiatry Expert Witness’ Opinions as to the Defendant’s Conduct Admitted

    Podiatry Expert Witness’ Opinions as to the Defendant’s Conduct Admitted

    Plaintiff Eric L. Hamilton, an inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this lawsuit pursuant to 42 U.S.C. §1983 against Defendants Dr. Mohammed Siddiqui, Dr. Stephen Ritz, Mary Jo Zimmer, and Wexford Health Sources, Inc. (“Wexford Defendants”), claiming his constitutional rights were violated while he was incarcerated at Menard Correctional Center. Specifically, Hamilton alleged that the Defendants were deliberately indifferent to his medical needs and retaliated against him. 

    The Wexford Defendants retained Robert M. Joseph as an expert witness. Joseph presented two opinions in his expert report: (1) there was no delay in the diagnosis of a bone infection in Mr. Hamilton’s second right toe by Dr. Siddiqui, and (2) there was no significant deviation in the standard of care delivered by Dr. Siddiqui in the treatment of Mr. Hamilton’s second toe bone infection that harmed Mr. Hamilton. Plaintiff did not challenge Joseph’s qualifications to serve as an expert. Rather, he sought to limit his opinions as to Dr. Siddiqui because they were irrelevant as to any other Defendant, exclude his second opinion as irrelevant to Plaintiff’s deliberate indifference claim, and exclude his first opinion as irrelevant, unreliable and more prejudicial than probative.

    Podiatry Expert Witness

    Robert M. Joseph is a double board certified in Foot as well as Reconstructive Rearfoot /Ankle Surgery by the American Board of Foot and Ankle Surgeons since 2012 and has been in clinical practice since 2006. He is an Associate Professor and former Department Chairman of the Department of Podiatric Medicine and Radiology at the Scholl College of Podiatric Medicine at the Rosalind Franklin University of Medicine and Health Sciences in North Chicago, Illinois. 

    He has contributed toward establishing the standards of podiatric medical education and certification for the profession through his activity with the Council of Podiatric Medical Education, the American Board of Foot and Ankle Surgeons, and the Council of Journal Management for the Journal of Foot and Ankle Surgery.

    Discussion by the Court

    First, Hamilton sought to limit Joseph’s opinions as to the conduct of Dr. Siddiqui because Joseph admitted that he had not addressed the conduct of any other Defendant. It appeared, however, that the Plaintiff was actually requesting the Court to limit testimony by Joseph that merely provided context for his opinions regarding Dr. Siddiqui’s conduct. Joseph did not opine on the conduct of any other Defendants in his report or deposition testimony. The Court found no basis to preemptively limit or narrow Joseph’s testimony in this regard.

    The Court should exclude Joseph’s second opinion regarding post-operative care

    Hamilton contended that Joseph’s second opinion related solely to post-operative care and should be excluded as to Plaintiff’s claims against Dr. Siddiqui. Plaintiff asserted a deliberate indifference claim for alleged inadequate treatment of his right foot from April 2018 until June 15, 2018. Joseph’s second opinion was that Dr. Siddiqui did not deviate from the standard of care in treating Hamilton’s right second toe bone infection. Specifically, Joseph opined that “Dr. Siddiqui promptly identified the possibility of gangrene and infection of Mr. Hamilton’s second toe.” While it appeared that Joseph’s second opinion, as articulated in his report, may have addressed post-operative care, which was irrelevant to Plaintiff’s claim, it was unclear. Thus, the Court refused to exclude the opinion at this juncture but stated that it would require an offer of proof at trial prior to Joseph’s testimony.

    The Court should exclude Joseph’s first opinion regarding Dr. Siddiqui’s treatment for bone infection

    Hamilton also argued that Joseph’s first opinion was irrelevant, unreliable, and should be excluded as being more prejudicial than probative. The Court disagreed since Joseph’s first opinion about Dr. Siddiqui’s diagnosis and referral out to a hospital for a bone infection laid out historical and factual rationale as to Dr. Siddiqui’s evaluation and treatment of Hamilton. It concluded that “Dr. Siddiqui’s off-site transfer of Mr. Hamilton to SIH Memorial Hospital of Carbondale on 6/15/18 was appropriate and expeditious hence there was no delay in the diagnosis or treatment of Mr. Hamilton’s second toe infection on 6/15/18.” It also found that Joseph’s opinion was relevant to Hamilton’s claims, and his opinion and testimony would assist the jury with its analysis of those claims.

    Hamilton was free to address the weight and credibility the Court should afford to Dr. Joseph’s opinions via cross-examination, contrary evidence and experts, limiting instructions, and argument to the jury. There was no basis for this Court to specifically exclude Dr. Joseph’s opinions as to the other Defendants.

    The Court rejected Hamilton’s conclusory statement that the Court should exclude Dr. Joseph’s testimony under Rule 403 based on its ability to confuse and mislead the jury concerning an issue immaterial to the actual claims in this case. The Court held that the statement lacked the support of any specific reference.

    Held

    The Court denied Plaintiff’s Motion to Exclude the Expert Testimony of Robert M. Joseph under Rules 403 and 702.

    Key Takeaways:

    1. Scope of Expert Testimony: The Court addressed the scope of expert testimony, noting that the expert’s opinions should be relevant to assess the claims made against the Defendant in question.
    2. Exclusion of Opinions: The Court may exclude certain expert opinions if they are irrelevant, unreliable, or more prejudicial than probative. However, such exclusion is not automatic and depends on the specific circumstances of the case.

    Case Details:

    Case Caption: Hamilton V. Siddiqui Et Al
    Docket Number: 3:19cv1347
    Court: United States District Court, Illinois Southern
    Order Date: March 31, 2024
  • Testimony of Life Care Planning Expert Witness Admitted Despite Claims of Rule 26 Deficiencies

    Testimony of Life Care Planning Expert Witness Admitted Despite Claims of Rule 26 Deficiencies

    The first-party lawsuit originated from a collision involving multiple vehicles on May 2, 2017. Plaintiffs Steve Watkins (“Mr. Watkins”) and Lisa Watkins (“Ms. Watkins”) were traveling in a vehicle in Harris County, Texas, when they were struck from behind and pushed into the vehicle in front of them. They were in the process of taking Ms. Watkins for a medical procedure. The Watkins asserted that another driver, Lucas Love, was at fault for the accident, and that he was “underinsured.” Mr. Watkins suffered a broken thumb. Mr. Watkins sought underinsured motorist (“UIM”) coverage benefits from Hartford Accident and Indemnity Company (“Hartford”) for his alleged injuries, and Ms. Watkins asserted a bystander claim.

    The Watkins had designated Dr. Shelly N. Savant, MD, CLCP, to provide expert testimony and a life care plan for Steve Watkins. Savant also purported to opine regarding Mr. Watkins’s prognosis, diagnostic and therapeutic necessities, and the alleged causal connection between his injuries and the accident. She had provided a life care plan, which included a plan for future medical treatment, an opinion on causation, opinions regarding the diagnosis and treatment history of Steve Watkins, and an estimate of the costs of purported future medical treatment.

    Hartford filed a motion to exclude the testimony of Shelly Savant, claiming Savant was not qualified to testify as an expert on causation because her opinions were not based upon a reliable foundation and were nothing more than speculation.

    Hartford also contended that Savant’s disclosure failed to comply with Federal Rule of Civil Procedure Rule 26 because the Watkins had not provided the facts or data considered by Savant in arriving at her opinions in this case. According to Hartford, without reliable factual data, Savant’s testimony contained analytical gaps and was speculation.

    Life Care Planning Expert Witness

    Shelly N. Savant is a board-certified neurologist and psychiatrist practicing in the private sector since 2005. As a neurologist and psychiatrist, she has the specialized skills and knowledge to diagnose and provide medical treatment for a diverse range of problems, including neurological and psychiatric emergencies as well as long-term care of chronic illnesses.

    She is also a certified life care planner and, as part of her private practice, she performs medical evaluations (interviews and/or examinations) for the purpose of providing additional medical opinions relating to diagnoses, prognosis, diagnostic and therapeutic necessities, and causation in the fields of neurology and psychiatry as well as develop life care plans for evaluees at the request of the referral sources.

    Discussion by the Court

    Moreover, Hartford argued that Savant’s testimony and purported life care plan were at odds with Mr. Watkins’ advice from medical providers and at odds with his own behavior. For instance, Dr. Varon, Mr. Watkins’s surgeon, did not include any recommendations for long-term medications, nor did he provide a referral for pain management in any of his records. Yet, Savant found a need for Mr. Watkins to undergo physical therapy, occupational therapy, blood tests, MRIs, x-rays, long-term pain medication, orthopedic surgery, primary care, pain psychology evaluations, and steroid injections for the rest of his life despite the fact that Mr. Watkins had not sought any of the treatments that Savant stated would be necessary since the accident on May 2, 2017.

    Mr. Watkins noted that Savant’s deposition had not yet taken place at the time of Hartford’s motion to strike, and that any flaws in Savant’s initial disclosure did not prejudice Hartford because Hartford was still able to hire an expert and provide a rebuttal report. Mr. Watkins maintained that Savant was qualified and had reliably applied the life planning principles and methodology to this case. She was both a board-certified neurologist and psychiatrist and a Certified Life Care Planner, had substantial post-graduate medical training in life care planning, and was a member of the International Association of Rehabilitation Professionals.

    The Court found that excluding Savant’s testimony was not the proper remedy for the Rule 26 deficiencies alleged by Hartford because it had adequate notice of the facts relied upon by Savant and was able to designate a counter-expert. 

    Assuming that Watkins could demonstrate that Savant applied her expertise to case specific-facts, the Court declared it best to resolve Hartford’s objections through cross-examination at trial.

    Held

    The Court denied Hartford’s motion to exclude testimony of Plaintiff’s expert Shelly Savant.

    Key Takeaway:

    The Court does not consider a Rule 26 deficiency if the opposing party had adequate notice of the facts the expert in question relied upon, especially to the extent of being able to designate a counter-expert.

    Case Details:

    Case Caption: Watkins Et Al V. Hartford Accident And Indemnity Company
    Docket: 4:21cv1946
    Court: United States District Court, Texas Southern
    Order Date: March 29, 2024
  • Testimony of Music Engineering Expert Witness held to be based on Adequate Testing of Accused Products

    Testimony of Music Engineering Expert Witness held to be based on Adequate Testing of Accused Products

    This case was a patent dispute about electronic drum kits. The patents at issue involved technology that allowed electronic drums and cymbals to mimic the material and sensation of the drums and cymbals on an acoustic drum kit. The Plaintiff, inMusic Brands, Inc. (“inMusic”), sued the Defendant, Roland Corporation (“Roland”), alleging infringement of three of its drum and cymbal patents: the ‘827 Patent for an Electronic Percussion Instrument with Enhanced Playing Area; the ‘758 Patent for an Electronic Hi-Hat Cymbal Controller; and the ‘724 Patent for a Removable Electronic Drumhead for an Acoustic Drum. inMusic claimed that Roland’s PD-140DS V-Pad infringed the ‘827 Patent; that its VH-13-MG Hi-Hat infringed the ‘758 Patent; and that its KD-A22 Kick Drum Converter infringed the ‘724 Patent.

    inMusic also filed a motion to exclude the non-infringement opinion of Roland’s expert witness, Dr. Paul D. Lehrman. 

    Plaintiff argued that Roland’s lawyers had prepared Lehrman’s Non-infringement Expert Report. Lehrman had merely “proofread” and signed what the lawyers had ghost-written for him. A lawyer-prepared expert report was improper under Daubert and warranted exclusion. As a result, Lehrman’s non-infringement opinion evidence was unreliable, unhelpful to the trier of fact, and improperly disclosed.

    Music Engineering Expert Witness

    Paul D. Lehrman has been a Member of the Music faculty at Tufts University since 2000. He has been teaching music technology at the college level since 1987. He was responsible for designing and building iMac-based music/multimedia lab with 12 student stations in Tufts University. He has authored six books and over 600 articles on music and audio technology.

    Discussion by the Court

    The Plaintiff’s primary argument required the Court to identify the line between legitimate attorney assistance in drafting an expert report and improper attorney preparation of an expert report. The starting point was Rule 26(a)(2)(B), which required a written expert report “prepared and signed by the witness.”

    The Court, after reviewing the expert report and Lehrman’s deposition testimony, held that, in forming his opinions, he had participated in the process far more than just reading and signing the expert report. Moreover, Lehrman testified (as also reflected in the report) that he personally conducted testing in his lab regarding certain of the accused products, was involved in designing those tests, and examined and/or disassembled certain of the products in issue. While it would have been preferable if Lehrman had had more direct involvement in the final drafting process, this was not the case of an expert simply rubber-stamping a report ghostwritten by counsel as suggested by Plaintiff. Consequently, the Court noted Lehrman’s involvement in the process complied with the dictates of Rule 26(a)(2)(B). Moreover, Plaintiff did not make a sufficient showing to warrant exclusion.

    Held

    The Court denied inMusic’s motion to exclude the non-infringement opinion of Roland’s expert witness, Dr. Paul Lehrman because Roland met the dictates of both Rule 26 and Rule 702.

    Key Takeaway:

    The Court deemed Paul Lehrman’s testimony admissible because his participation in the preparation of his expert report was adequate. He personally conducted testing in his lab regarding certain of the accused products. Lehrman designed those tests and examined and/or disassembled certain of the products in issue.

    Case Details:

    Case Caption: Inmusic Brands, Inc. V. Roland Corporation
    Docket Number: 1:17cv10
    Court: United States District Court for the District of Rhode Island
    Order Date: March 29, 2024
  • Testimony of Firearms Expert Witness Emphasizing on Manufacturing Mistake Excluded

    Testimony of Firearms Expert Witness Emphasizing on Manufacturing Mistake Excluded

    This product liability lawsuit involves Plaintiff’s use of a single-shot Thompson/Center Encore Pro Hunter rifle with a barrel chambered in .460 S&W caliber. Plaintiff had purchased and installed this new barrel in 2017, and he proceeded to use the rifle without incident for the next four years, firing it on at least thirty separate occasions without incident. However, on October 9, 2021, while Plaintiff was attempting to fire a second shot from a shooting bench, the barrel on the rifle was damaged causing the rear forearm screw to be ejected from the rifle and fracture the forearm.

    Plaintiff subsequently filed a lawsuit against Thompson/Center alleging that the barrel was defectively designed and/or manufactured and that Thompson/Center otherwise failed to warn. During discovery, Plaintiff identified Ryan Spence as a witness. Spence is a gunsmith who visually examined the rifle for approximately two hours and then sent Plaintiff’s counsel an email stating that the incident was caused by Thompson/Center improperly drilling the hole for the rear forearm screw all the way through the barrel.

    Defendant filed a motion to exclude Spence from testifying as his opinions did not pass muster under Rule 702.

    Firearms Expert Witness

    Ryan Spence is a graduate of the Pennsylvania Gunsmith School who worked his way up to become the head gunsmith of the Remington premier warranty center for the east coast. He has performed warranty service for Weatherby, Henry, Marlin, and other firearm manufacturers. He now owns and operates Spence Gunsmithing.

    Discussion by the Court

    To begin with, Defendant argued that Spence was not a metallurgist and had no experience designing barrels.

    The Court decided that Spence’s report did not provide the key handholds of Rule 702.

    Reliability

    Spence did not examine a comparable exemplar barrel

    In his first conclusion, Spence wrote that “the cause of this weapons failure was due to the rear forearm screw hole being drilled all the way through the barrel.” Spence did not describe the methods he employed to arrive at this opinion. He had taken notes during his investigation, but he had not preserved them. However, it was clear from his testimony what Spence did not do: he did not examine a comparable exemplar barrel; did not perform any modeling or casting; did not perform any magnetized testing; and did not take any x-ray or other images of the barrel. Spence’s report also contained no measurements or other analysis. It did not explain in any way what his inspection method had entailed.

    Spence did not offer any comparison to establish what that industry standard was

    In his second conclusion, Spence opined that the screw hole “was a very obvious manufacturing mistake as it was industry standard to drill no more than 2/3 the thickness of the barrel when drilling and tapping barrels.” However, Spence did not offer any comparison to establish what that industry standard was. He did not explain why the claimed manufacturing mistake was obvious, and he did not explain how or why such a mistake would have evaded Defendant’s product testing. Spence never investigated or considered Defendant’s testing during the manufacturing process to determine whether it was flawed. Furthermore, Spence did not investigate and did not know Defendant’s manufacturing process for the subject barrel.

    Spence did not explain his methodology for his conclusion that his identified defect was the “only cause of failure ”

    In his third conclusion, Spence wrote that Defendants had drilled “at the very rear of the barrel where chamber pressures would be the highest. In our opinion, this was the only cause of failure for this rifle.” However, Spence did not explain his methodology for his conclusion that his identified defect was the “only cause of failure.” In fact, he recognized that there were many other likely causes for barrel failure. He testified that the barrel failure might have been due to a user loosening the forearm screw; an obstruction in the barrel; using an aftermarket screw made of a different material; using over-pressurized ammunition; or making post-production alterations to the barrel that changed its specifications.

    Held

    The Court granted Defendant’s motion to preclude the testimony of Plaintiff’s expert Ryan Spence.

    Key Takeaway:

    Spence’ inspection lasted about two hours. He concluded that Defendants were responsible for the barrel’s misfire and Plaintiff’s ensuing injuries. Spence did not examine a comparable exemplar barrel; did not perform any modeling or casting; did not perform any magnetized testing; and did not take any x-ray or other images of the barrel. Spence never investigated or considered Defendant’s testing during the manufacturing process to determine whether it was flawed. He did not explain his methodology for his conclusion that his identified defect was the “only cause of failure.”

    Case Details:

    Case Caption: James V. Thompson/Center Arms
    Docket Number: 3:22cv1781
    Court: United States District Court, Ohio Northern
    Order Date: March 28, 2024
  • Fire Investigation Expert Witness Deemed Unqualified to Opine on Candle Design

    Fire Investigation Expert Witness Deemed Unqualified to Opine on Candle Design

    On October 15, 2015, the Plaintiff ignited a brand new Bath & Body Works 3-wick candle and left it burning on her kitchen counter while she put her son to bed. Within 30 minutes, she asserted that the entire liquid wax pool inside the candle jar caught fire, resulting in a phenomenon known as a “flashover.” While attempting to extinguish the candle, she sustained burns from hot wax. She testified that less than 30 minutes elapsed from the moment she lit the candle until it was extinguished.

    The product in question, a 3-wick scented candle titled “Eucalyptus Spearmint Stress Relief,” consists of approximately 90% soy wax and 10% fragrance oil. Alene Candles produced this specific candle for BBW in January 2015 at Alene’s Ohio factory, which opened in 2012. The incident candle belonged to a batch of around 5,000 candles mixed and manufactured at the same time.

    The central dispute in this case revolved around whether the Plaintiff’s own misuse (leaving the candle burning unattended for nearly 12 hours) or some sort of manufacturing defect involving how the candle wax and oil were mixed caused the incident. Plaintiff’s expert John J. Golder expressed the opinion that the candle was insufficiently mixed at Alene’s Ohio facility, resulting in “hot pockets” of unmixed fragrance oil, i.e., excess oil in certain locations of the candle, which then enabled the candle to suddenly flashover within just 30 minutes of use.

    The Plaintiff also hired David Xu to varnish her “hot pocket” theory with a scientifically sounding explanation. The Defendant, Bath & Body Works, LLC filed motions to exclude the reports and testimonies of Golder and Xu for not meeting the Rule 702 and Daubert standards.

    Fire Investigation Expert Witness

    John J. Golder is a former law enforcement officer of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Golder is a well-regarded expert concerning fire investigations and forensics, with over 30 years of experience in the field and a master’s degree in forensic science from the University of New Haven.

    Back in 1991, he taught an undergraduate course in Fire Science Chemistry at the University of New Haven. The course included an examination of the chemical requirements for combustion, the chemistry of fuels and explosive mixtures, the various methods of stopping combustion and an analysis of the properties affecting fire behavior.

    Material Science Expert Witness

    David Xu has served as the principal engineer in Berkeley Engineering And Research, Inc. He used to specialize in chemical, materials and mechanical engineering.

    Xu received his bachelor’s, master’s and doctoral degrees at UC Berkeley.

    Discussion by the Court

    Qualifications

    Golder intended to testify that the “evidence showed the flashovers were caused by the failure to obtain a proper homogenous mix of wax and fragrant oil” and “it was especially dangerous to have a non-homogenous mix of base wax and fragrant oil because 3-wick candles had a greater Heat Release Rate.” The Court found both opinions were within Golder’s realm of expertise and supported by sufficient data as required by Rule 702.

    It found Golder was qualified to opine on the cause of the flashover in this matter, including that a non-homogenous mix of fragrant oil and wax in a candle could lead to flashovers such as the one experienced by Plaintiff.

    It also found that Golder’s opinions were based on (1) his extensive experience investigating fires, (2) his own testing of three Bath & Body Works (“BBW”) candles, and (3) deposition testimony and other experts’ scientific tests in the case, which he was permitted to rely on under Rule 703. The Court held that Golder’s opinions met the reliability test set forth by the Supreme Court in Daubert.

    Golder demonstrated a reasonably sound basis for forming his opinions and  any significant questions concerning the correctness of Golder’s opinions were the province of the jury. 

    When Golder testified that BBW only performed subjective visual inspection to confirm that there was a homogenous mix throughout the candle, the Court held that Golder lacked the necessary qualifications to opine on candle manufacturing and design. As Golder insisted on a constant percentage of fragrance oil mixed homogenously throughout, the Court excluded his testimony regarding the the proper procedure for mixing candles, or about the improperly mixed candle at issue.

    Reliance on Deposition Testimony

    The Court allowed Golder to rely on the depositions of Thomas Donnelly, Stephen Smith, John English, and Andy Fernandez, but did not permit him to simply parrot their testimony on the stand as the jury was capable of reviewing and weighing that testimony themselves. For example, Golder highlighted Stephen Smith’s testimony comparing the candle mixture to a cake batter in which you could get spots of flour and sugar, if you do not mix everything correctly. The Court held that not only did it summarize testimony the jury could hear and consider themselves, but it also fell outside the scope of Golder’s expertise while discussing proper candle manufacturing and design.

    To sum it up, the Court allowed Golder to testify that the failure to obtain a proper homogenous mix of wax and fragrant oil caused the flashovers and a non-homogenous mix of base wax and fragrant oil was especially dangerous. Golder could rely on the testing of David Xu as long he offered opinions only within the scope of his expertise and avoided parroting the testimony of other witnesses.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the expert opinions of John Golder and David Xu.

    Key Takeaways:

    1. Qualification: The Court observed that Golder was qualified to opine on the cause of the flashover in this matter considering his extensive experience  investigating fires. However, Golder lacked the qualifications to opine on candle manufacturing and design. The Court rejected Golder’s insistence on a homogenous mix throughout the candle.
    2. Reliability: Golder demonstrated a reasonably sound basis for forming his opinions considering his extensive experience investigating fires, his own testing of three Bath & Body Works (“BBW”) candles, and reliance on deposition testimony and other experts’ scientific tests in the case.
    3. Parroting Deposition Testimony: The Court did not permit Golder to simply parrot deposition testimony on the stand as the jury was capable of reviewing and weighing that testimony themselves. 

    Case Details:

    Case Caption: Lakes V. Bath & Body Works, LLC
    Docket Number: 2:16cv2989
    Court: United States District Court, California Eastern
    Order Date: March 26, 2024
  • Insurance Expert Witness Barred from Testifying as to which Party is at Fault

    Insurance Expert Witness Barred from Testifying as to which Party is at Fault

    This case involves an accumulator universal life insurance policy purchased by Dr. Herbert Wiegand in 2000 when he was 82 years old. The insured was his second wife, Jean Wiegand (nee Walters), who was 80 years old at the time. The policy had a face value (death benefit) of $1.4 million and a maturity date of June 12, 2020. The original owner of the policy was an LLC Dr. Wiegand set up for the benefit of his children from his prior marriage. Dr. Wiegand paid an initial premium which guaranteed coverage for five years. The policy carried a cash value, which fluctuated as a function of interest the policy earned, less the ongoing cost to maintain the insurance policy.

    Breach of Contract Claim

    Dr. Wiegand died in 2002, approximately two years after purchasing the policy. After Dr. Wiegand’s death, the Policy’s ownership transferred to his revocable trust which he set up for the benefit of all of his children. Plaintiffs are two of Dr. Wiegand’s adult children who serve as trustees of the trust.

    Dr. Wiegand’s initial premium payment kept the policy in force for 16 years after purchase until 2016 with no subsequent premiums being paid. Ms. Weigand, however, lived past her 100th birthday until November of 2020, surviving the policy’s maturity date by more than four months. Plaintiffs had no knowledge of Ms. Wiegand’s health condition or status from which they could have assessed whether to maintain or surrender the Policy. 

    They raised a breach of contract claim based on New York Life’s alleged failure to send them annual statements at their attorney’s address instead of the original address listed on the policy—the residence of Dr. Wiegand and Ms. Wiegand, the insured. Plaintiffs claimed their damages were equal to the cash value of the policy as it existed in 2012—four years prior to the policy lapse. They asserted that they would have exercised their option to surrender the policy for a cash disbursement had New York Life sent them annual statements at their attorney’s address.

    Plaintiffs moved to exclude Defendant’s expert, Charles W. Bowden from testifying under Rule 702 and Daubert standards because his report allegedly lacked relevant expert opinions bearing on the ultimate factual issue in this case.

    Insurance Expert Witness

    Charles W. Bowden has more than 40 years of experience as an independent life, health and disability insurance agent/ broker. He holds two insurance industry recognized certifications, Chartered Life Underwriter (CLU) and his Chartered Financial Consultant (ChFC). His specialties and experience include business continuity planning, using all forms of business life and disability insurance. He has extensive experience in Whole Life, Universal Life and Variable Life in the Business Markets selling COLI, Business Continuity Planning. Group Term Life Insurance and Group Disability and all types of group Health care coverage.

    In addition to his practice in estate and business continuity planning, Charlie is a Qualified Continuing Education Instructor, and assists other licensed insurance professionals to keep current with the ever-changing structure of the insurance and investment marketplace using financial and estate planning strategies. Charlie uses his extensive experience to provide expert testimony in legal matters brought to courts around the country and he is a frequent radio guest. Charlie is a member of the South Jersey Chapter of The Society for Financial Service Professionals, as well as a past member of their Board of Directors.

    Discussion by the Court

    Bowden offered opinions on the following three topics:

    1. Why was the life insurance policy able to continue from 2000, the effective date of the policy without continuing premium payments?
    2. Why was the policy initially held in the Family LLC and subsequently moved to the revocable trust?
    3. What are the administrative issues that allowed the policy to lapse prior to the death of the insured?

    Plaintiffs argued that Bowden’s conclusions were merely recaps of factual points discussed in his report, his opinions were lay opinions, and it set out an opinion that was irrelevant in a breach of contract case. Further, Plaintiffs argued that Bowden’s opinions were in reality legal argument, which was not appropriate. Defendants argued that Bowden’s opinions were proper as industry standards could provide assistance to the fact finders.

    Industry practices or standards may be relevant in insurance cases, and the Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

    The Court allowed Bowden to explain industry standards regarding policy updates and the like but barred him from giving his legal opinion as to which party was at fault.

    Held

    The Court granted in part and denied in part Plaintiff’s motion to exclude the testimony of Defendant’s expert, Charles W. Bowden.

    Key Takeaway:

    1. Legal Conclusion: Considering an expert “may not intrude on the Court’s role to instruct the jury as to the law and testify to a legal conclusion,” the Court did not allow Bowden to give his legal opinion as to which party was “at fault.”
    2. Relevance of Industry practices or standards in insurance cases: The Eighth Circuit has upheld the admission of opinion testimony addressing whether an insurance company handled a claim properly under industry standards.

    Case Details:

    Case Caption: Wiegand Et Al V. New York Life Insurance & Annuity Corporation Et Al
    Docket Number: 4:22cv188
    Court: United States District Court, Missouri Eastern
    Order Date: March 26, 2024
  • Economics Expert Witness’ Analysis of Job Opportunities Available to Plaintiff Excluded

    Economics Expert Witness’ Analysis of Job Opportunities Available to Plaintiff Excluded

    Daniel J. Csaszar is a physician who worked at an urgent care facility run by Defendant Monarch Medical, LLC beginning in 2015, working one shift per week. In 2019, he moved to two shifts per week. Defendants terminated Csaszar on March 9, 2022, and Csaszar began new employment as a physician on October 17, 2022 at Lehigh Valley Health Network, LVPG Palmerton Family Medicine practice (after completing extensive credentialing for LVHN after he applied for this position on June 30, 2022).

    In virtually any type of employment case, an employee has a duty to mitigate their damages. This is a question usually left to the good judgment of the trier of fact.

    Defendants submitted the report of Chad Staller in furtherance of their theory that Csaszar failed to mitigate his damages by timely seeking another job. The report listed eight jobs that  Csaszar “made contact regarding” between March 15, 2022 and October 17, 2022, to conclude Dr. Csaszar made “0.27 efforts per week.”

    Csaszar insisted on the unreliability of Staller’s report, arguing that he made many more “job search efforts” and began subsequent employment very quickly relative to the credentialing and onboarding that is required for a physician to begin new employment.

    Economics Expert Witness

    Chad L. Staller is president of the Center for Forensic Economic Studies. He has extensive experience working with both plaintiff and defense counsel in a wide variety of civil matters, quantifying loss sustained by many types of plaintiffs, including union members, state and federal employees, business owners and injured children.

    He regularly analyzes claims brought in employment-discrimination matters, quantifying back-pay damages, front-pay damages and lost benefits, and also frequently consults on commercial matters, analyzing lost-profit and business-interruption claims. In addition to Staller’s litigation practice, Staller consults with clients in non-litigation matters related to labor-union negotiations, business valuations, and cost-benefit assessments. He serves on the faculty of Temple University’s Beasley School of Law LL.M. in Trial Advocacy program and lectures regularly at Villanova University School of Law and Drexel University’s Thomas R. Kline School of Law. 

    He received his Master of Business Administration, with honors, from the Fox School of Business and Management at Temple University.

    Discussion by the Court

    Plaintiffs argued that Staller’s report was unreliable and did not pass muster under Daubert because it included a compilation of jobs from an unidentified and unreliable source “JobStats”, included identification of job postings for physician jobs for which Dr. Csaszar was not certified or qualified to work, and included job postings for positions in geographical locations where Dr. Csaszar was not licensed to practice medicine to compare Dr. Csaszar’s (false) number of job search efforts to the alleged and inaccurate employment opportunities available to him.

    Additionally, Defendant’s report did not include any reference to Dr. Csaszar’s deposition and supplemental discovery wherein Dr. Csaszar supplied testimony and documentary evidence that indicated he applied for far many more than the “8 job search efforts” as Defendants’ expert concluded. Defendant did not produce a supplemental expert report to consider these numerous additional job searches that were a part of the record, making the report completely unreliable.

    The Report Did Not Assist the Trier of Fact

    The relevant facts in issue were whether substantially equivalent work was available, and whether Dr. Csaszar exercised reasonable diligence in obtaining other employment. Defendants did not dispute that Dr. Csaszar began working at Lehigh Valley on October 17, 2022 (at a job which he applied to on June 30, 2022), so the expert’s task was to help the jury determine whether Dr. Csaszar’s job search was reasonably diligent.

    The Court held that Staller’s report failed to meet the Rule 702 standards considering the report merely proffered the number of jobs that Dr. Csaszar applied to, and stated that “additional employment opportunities…existed and continue to exist.” In other words, the report would not aid the trier of fact in determining a fact in issue.

    The Court held that telling the jury that additional job opportunities existed would simply not provide them with the information they needed to conclude that Dr. Csaszar did or did not appropriately mitigate his damages. 

    Moreover, per Dr. Csaszar’s deposition testimony, Plaintiff agreed that “additional employment opportunities . . . existed” beyond the eight jobs listed in Staller’s report, since he alleged that he applied to many more jobs than just those eight. Accordingly, this conclusion did not bear on a fact in issue. Nor did relaying the number of job search efforts made help the jury determine whether that number of efforts was reasonable. Indeed, calculating eight job applications over 30 weeks to equal 0.27 job applications per week is an equation easily doable by the jury that did not require expert testimony. Staller may seek to forestall these critiques by claiming that his expert analysis resulted in aggregating 1,102 job opportunities that were available to Dr. Csaszar, but this merely leads to the second flaw: the lack of a reliable methodology underlying that analysis.

    The Report Lacked a Reliable Methodology

    Application of Job Listings

    Staller provided no methodology for assessing Dr. Csaszar’s employment background in order to determine which jobs were appropriate for him. Dr. Csaszar testified that he was “board certified in family medicine and primary care sports medicine,” and that he “would not apply for an internal medicine job or an emergency medicine position” or other specialty positions.

    Nevertheless, Staller’s report included one listing for an emergency medicine position, 42 listings for internal medicine physicians, as well as 21 listings in a catch-all category of “all other” physician positions. Staller had not provided any rationale or methodology for determining which listings were an appropriate fit for Dr. Csaszar, and many of the entries for family medicine were overly broad.

    The Court noted that Staller did not identify any specific documents that he reviewed to determine which jobs would be appropriate for Dr. Csaszar; the only items he reports having reviewed in the relevant section were the employment listings, but nothing that would shed light on Dr. Csaszar’s background.

    Geographic Analysis Specific to Dr. Csaszar’s Personal Licensure Status

    Aside from the substance of the job listings, the parties disputed whether Csaszar could legitimately have applied to job opportunities outside of Pennsylvania which concerned an issue that Staller should have considered at the outset. Csaszar argued that his license was only valid in Pennsylvania, which meant that he would not be able to work in any other state, including those like New Jersey or Delaware that are within commuting distance of Pennsylvania.

    Defendants pointed out that Dr. Csaszar had applied to locations in North Carolina, Florida, and Hawaii, arguing that Dr. Csaszar had opened the door to considering a broader geographic range of employment. The Court held that had Staller performed a geographic analysis specific to Dr. Csaszar’s personal licensure status, he would have developed a grounded, fact-based methodology for determining appropriate places of employment for Dr. Csaszar because it is possible that some states have licensing reciprocity agreements with Pennsylvania, or low barriers to entry for licensing of experienced providers.

    Staller did not employ any methodology for considering Dr. Csaszar’s employment record, or the locations that would be appropriate for him to apply to. Staller sought to sidestep these holes in his methodology by refraining from drawing the conclusion that Dr. Csaszar had 1,102 jobs to apply to, instead retreating to the vaguer assertion that “employment opportunities existed and continued to exist.”

    Defendants’ Alternative Request to Supplement the Report is Denied

    Defendants sought, in the alternative, to supplement their report to include the information raised in Dr. Csaszar’s deposition and document production pertaining to additional job applications that post-dated the initial report. The Court held that this supplement would be both untimely and futile.

    The Court permits supplementation under Federal Rule of Civil Procedure 26(e)(1)(A) when an expert receives newly produced information after submitting his or her expert report.

    Defendants submitted Staller’s expert report at the deadline to exchange expert reports, on December 22, 2023 while Dr. Csaszar’s deposition — at which he first revealed new information — took place on January 8, 2024.

    The Court held that even as they learned of this new information and received a production of documents pertaining to it, Defendants did not file a supplemental expert report, nor a motion for leave to do so, even up to the deadline for dispositive motions over a month later, on February 16, 2024.

    Moreover, even if Staller had supplemented his report in a timely fashion, that supplementation would not cure the deficiencies described above. The supplemented report would include a higher number of job search efforts and efforts per week for Dr. Csaszar. However, without any discussion of what a reasonably diligent job search should entail, the report still would not assist the jury in evaluating whether Dr. Csaszar exercised reasonable diligence in his job search. Additionally, the supplementation would have no impact on the unhelpful conclusion that “additional employment opportunities for Dr. Csaszar existed and continue to exist.”

    Held

    The Court granted Plaintiff’s motion to strike the expert report of Chad Staller.

    Key Takeaways:

    • Lack of a Reliable Methodology: As per Dr. Csaszar’s deposition testimony, Plaintiff agreed that “additional employment opportunities . . . existed” beyond the eight jobs listed in Staller’s report, since he alleged that he applied to many more jobs than just those eight. Accordingly, this conclusion did not bear on a fact in issue. Nor did relaying the number of job search efforts made help the jury determine whether that number of efforts was reasonable. Indeed, calculating eight job applications over 30 weeks to equal 0.27 job applications per week is an equation easily doable by the jury that did not require expert testimony. Staller did not employ any methodology for considering Dr. Csaszar’s employment record, or the locations that would be appropriate for him to apply to. Staller sought to sidestep these holes in his methodology by refraining from drawing the conclusion that Dr. Csaszar had 1,102 jobs to apply to, instead retreating to the vaguer assertion that “employment opportunities existed and continued to exist.”
    • Assistance to the trier of fact: The relevant facts in issue were whether substantially equivalent work was available, and whether Dr. Csaszar exercised reasonable diligence in obtaining other employment. The Court held that telling the jury that additional job opportunities existed would simply not provide them with the information they needed to conclude that Dr. Csaszar did or did not appropriately mitigate his damages. 
    • Supplementation Under Rule 26: The Court held that even as the Defendants learned of this new information pertaining to additional job applications that post-dated the initial report and received a production of documents pertaining to it, Defendants did not file a supplemental expert report, nor a motion for leave to do so, even up to the deadline for dispositive motions over a month later, on February 16, 2024.

    Case Details:

    Case Caption: Csaszar V. Monarch Medical, Llc Et Al
    Docket Number: 2:23cv1286
    Court: United States District Court, Pennsylvania Eastern
    Order Date: March 26, 2024
  • Insurance Expert Witness’ Testimony on Legal Parameters for Bad Faith Excluded

    Insurance Expert Witness’ Testimony on Legal Parameters for Bad Faith Excluded

    This case arises out of a dispute over three separate, consecutive, nonrenewable Short Term Medical (“STM”) insurance plans underwritten by Defendant American Financial Security Life Insurance Company (“AFSLIC” or “American”). The type of STM insurance (also referred to as “short term limited duration insurance” or “STLDI”) at issue here is relatively new, first being authorized by changes to federal regulations in 2018 that expanded access to STM plans.

    The insurance contracts at issue consist of a Group Short Term Medical Insurance Policy and three Certificates of Insurance issued thereunder to Susan Hanlon as insured and Nile Hanlon as an eligible covered dependent.

    Plaintiffs asserted AFSLIC acted in bad faith because its third-party administrator: (a) closed several medical providers’ claims related to the treatment of Hanlon’s diverticulitis due to the providers’ failure to respond to multiple written requests for medical records; and (b) denied other providers’ claims based upon the Certificates’ preexisting condition exclusion. To support their position, Plaintiffs retained Susie Sullivan as a purported “bad faith” insurance claims handling expert.

    Defendant filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Susie Sullivan citing the Rule 702 standards.

    Insurance Expert Witness

    Susie Sullivan worked for the Oklahoma Department of Insurance from 1965 to 1995. From 1982 until 1995, she served as Assistant Insurance Commissioner in charge of Claims and Consumer Protection. Her duties consisted of reviewing disputed claims and evaluating claims handling practices of insurance companies licensed to transact business in the State of Oklahoma, scheduling market conduct examinations on insurance companies when she saw a pattern and practice of wrongful claims handling and conducting claims hearings to resolve coverage and liability issues through alternative dispute resolution and negotiated compliance problems.

    Discussion by the Court

    First, the Defendant challenged Sullivan’s qualifications. It contended that her qualifications did not encompass short-term medical insurance, short-term medical insurance claims handling, or industry standards relating to the same.

    Defendant also argued that her “proffered opinion testimony was inadmissible because it was replete with thinly veiled legal conclusions and improper attempts to usurp the role of the Court.”

    Qualifications

    The Court held that this matter undoubtedly involved insurance claims submitted under a short-term medical insurance plan. Despite Sullivan lacking deep expertise on short-term medical insurance, it was not clear why such expertise was necessary here.

    Defendant did not purport that investigation and claims handling for short-term insurance differed materially from investigation and claims handling in other insurance contexts. Nor did it allege that distinctive industry standards applied for investigating and handling claims under a short-term insurance plan.

    Legal Conclusions

    It is clear that while an expert may opine on the ultimate issue of fact, she may not give testimony stating ultimate legal conclusions based on those facts.

    With these principles in mind, the Court excluded: (1) expert testimony on the legal parameters for bad faith under Oklahoma law, and (2) expert testimony artfully characterizing Defendant’s conduct with terms of legal significance. More specifically, Sullivan was not permitted “to opine regarding the duties an insurer owes to an insured, what conduct is reasonable by an insurer, whether Defendant’s actions were taken in good faith or in bad faith, whether Defendant’s investigation of Plaintiffs’ insurance claims was adequately thorough, whether Defendant’s conduct was reasonable, what courts have held regarding the duty of good faith and fair dealing, or what she otherwise believes the law to be.”

    The Court barred Sullivan from discussing the  Oklahoma Unfair Claims Settlement Practices Act (OUCSPA) or whether Defendant violated it. 

    The Court held that the OUCSPA did not establish standards of care or standards of conduct for measuring whether an insurer violated its duty of good faith and fair dealing. Nor did it function as an appropriate guide for a jury to determine bad faith.

    The Court, however, permitted Sullivan to testify as to “the custom and practice of the industry in investigating and handling of claims” and “the considerations involved in evaluating an insured’s claim, based on industry custom and practice and/or her own experience.”

    Held

    The Court granted in part and denied in part the Defendant’s Motion to Exclude the Testimony of the Plaintiffs’ Proposed Expert Susie Sullivan.

    The Court administratively terminated this action on March 18, 2024 without prejudice to the rights of the parties.

    Key Takeaways:

    1. Qualifications: Despite Insurance Expert Witness Sullivan’s lack of deep expertise on short-term medical insurance, Defendant did not purport that investigation and claims handling for short-term insurance differed materially from investigation and claims handling in other insurance contexts.
    2. Legal Conclusions: It is clear that while an expert may opine on the ultimate issue of fact, they may not give testimony stating ultimate legal conclusions based on those facts.

    Case Details:

    Case Caption: Hanlon Et Al V. American Financial Security Life Insurance Company Et Al
    Docket Number: 5:22cv798
    Court: United States District Court, Oklahoma Western
    Order Date: February 15, 2024