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  • Pediatrics Expert Witness Testimony Limited Despite Thorough Medical Literature Review

    Pediatrics Expert Witness Testimony Limited Despite Thorough Medical Literature Review

    Gerber Products Company sells several infant formula products. This case concerns Gerber Good Start Gentle (sometimes referred to below as “GSG”). Unlike most other infant formulas, which are made with “intact” cow’s milk protein, GSG uses cow’s milk protein that has been partially broken down (the technical term is “100% Whey-Protein Partially Hydrolyzed”).

    Good Start Gentle was the first formula that the U.S. Food and Drug Administration permitted to make a “qualified health claim” — that is, a limited health claim. Specifically, in response to a petition from Gerber, the FDA advised that it would exercise its enforcement discretion not to challenge certain specified, modest claims about GSG. The claims related to atopic dermatitis, otherwise known as eczema. Atopic dermatitis is the most common allergic disease in infants.

    The relief the FDA accorded Gerber was indeed very limited in scope. Gerber responded to the FDA’s permitting this qualified health claim by launching new advertising for GSG: it implemented packaging that stated, among other things, that GSG was the first and “only” formula “to reduce” an infant’s “risk of developing allergies.”

    Plaintiffs asserted that Gerber falsely advertised that GSG (a) could reduce the risk of developing allergies and (b) had earned the FDA’s endorsement.

    The Plaintiffs moved to exclude the testimony of Gerber’s proposed expert witness, Jose M. Saavedra.

    Pediatrics Expert Witness

    Jose M. Saavedra is Associate Professor of Pediatrics, at the Johns Hopkins University School of Medicine. He is a pediatrician, gastroenterologist, investigator, educator, and medical and scientific business executive. Saavedra carried out seminal and groundbreaking work in the area of probiotics in pediatrics, and has an extensive record of publications in nutrition, and in the area of intestinal microbiota, immunity, and preventive nutritional strategies. In the latter part of his career, he also worked as Medical Director for Nestlé Nutrition in North America, and until recently as Global Chief Medical Officer for Nestlé Nutrition, in Vevey, Switzerland. Saavedra is Chairman of the Board of the Nestlé Nutrition Institute. During that time, he expanded scientific innovation, and enhanced Nestlé’s educational and research activities focused on infant and childhood health.

    He spearheaded a number of collaborative initiatives, many on education and dissemination of nutrition knowledge, focused on Early Childhood Nutrition Education, with pediatric and nutrition societies and organizations globally, including NASPGHAN, ESPGHAN, the American Academy of Pediatrics, the National Academies of Science in Washington DC., and UNESCO. He recently published a book entirely dedicated to the impact of early life nutrition on life-long health consequences, focusing on nutrition in the first 1,000 days.

    Discussion by the Court

    According to his report, Saavedra was expected to opine that “Gerber had, and has, a scientifically sound basis” to represent that “feeding [GSG] instead of intact cow milk protein formula (CMF) to infants with a family history of allergy in the first month of life can reduce the risk that said infants will develop allergies, particularly and specifically atopic dermatitis.” He was also expected to opine that “there was a significant and substantial body of scientific evidence to support the representations in the Challenged Advertisements.” These opinions, of course, were more forceful than the claims the FDA permitted Gerber to make on the same subject.

    The Plaintiffs articulated multiple bases for excluding Saavedra’s opinion: alleging bias, stating that his opinions relied on inadequate data from studies that had been criticized for their methodology and data reporting, and asserting that his testimony would be both prejudicial and confusing.

    Alleged Bias

    The Plaintiffs argued that Saavedra should be disqualified because he has worked for Nestlé, Gerber’s parent company, for two decades, during which he endeavored to prove that “100% Whey-Protein Partially Hydrolyzed” formula reduces allergy risk.

    The Court held that an expert witness’s employment with a party, however, “does not automatically disqualify him from rendering expert testimony in a case” involving that party. Gerber may seek to impeach Saavedra with his relationship with Gerber, but it did not warrant excluding his opinion.

    Adequacy of Data, Methodology and Studies

    The Plaintiffs argued that Saavedra did not conduct any of the research himself, and hence his expert opinions warranted exclusion.

    Saavedra’s report is at base a literature review. He considered “twenty peer-reviewed publications of prospective, controlled clinical trials in 12 distinct healthy infant cohorts” — studies that assessed “the reduction in the incidence of allergy” when GSG or another partially hydrolyzed formula is used instead of traditional cow’s milk protein formula.

    Saavedra called four of these studies “high quality,” in light of the “size of the study population, the rigor of randomization, rigor of feeding intervention, adequacy of definition of outcomes, diagnostic criteria and clinical diagnosis, follow up, and data integrity.” Three of these “high quality” studies expressly compared outcomes between infants fed GSG (or the equivalent) versus cow’s milk protein formulas without confounding variables. Those three studies all reported that the subjects receiving GSG or its equivalent saw statistically significant reductions in atopic dermatitis or other allergic diseases for at least a short time. Other studies that Saavedra reviewed showed no reduction in allergies from feeding GSG analogs instead of cow’s milk formula, or at least no statistically significant reduction.

    Review of Medical Literature

    A review of medical literature is a reliable methodology for Daubert purposes. It is axiomatic that experts can rely on hearsay. 

    The Plaintiffs’ motion compelled the Court to determine whether Saavedra had “extrapolated his conclusions from the medical literature in a scientifically reliable fashion.”

    Saavedra included findings published after Gerber disseminated the challenged advertisements in his literature review. For example, Saavedra justified his opinions in part because, since the challenged ads appeared, a study had reported that allergy-risk-reduction benefits from GSG could persist into adolescence. Moreover, he relied on a 2018 “meta-analysis” of data published through 2017 that “reported a 39% incidence reduction in all allergies with exclusive feeding of” GSG or the equivalent.

    These studies were too recent to be relevant. Here, the operative question was whether Gerber’s challenged ads were misleading when made, not whether they would be misleading if made today.

    The challenged ads all impliedly represented that Gerber believed them, and by extension, that Gerber “knew facts which justified” that belief.

    Where only part of an expert’s testimony meets the Rule 702 standard of admissibility, the Court should limit the expert’s testimony, rather than “throw the good out with the bad.”

    Beyond the temporal issue, the Plaintiffs leveled numerous criticisms of the studies on which Saavedra relied most heavily. The Plaintiffs argued that Saavedra’s studies were not “high quality” because multiple groups contended they had significant methodological and reporting issues.

    The Court held that these criticisms did not demonstrate that Saavedra’s proffered opinions extrapolated from “studies that were simply inadequate to support the conclusions reached.” 

    Dual Testimony

    Plaintiffs argued that the Court should not permit Saavedra to testify both as an expert and as a fact witness. The Court may exclude such dual testimony if the danger of unfair prejudice substantially outweighs its probative value.

    The Plaintiffs argued that Saavedra’s dual testimony was objectionable because Saavedra, in his deposition conceded  that he would not differentiate between fact and expert testimony at trial. Even assuming such a concession could change the Rule 403 calculus, Saavedra did not make it. When  Saavedra said he would not “differentiate” between his two capacities, he was discussing his right to compensation, not how he would testify. In any event, the Court is free to revisit this question as trial approaches.

    Held

    Plaintiffs’ motion to exclude the expert testimony of Jose Saavedra was denied in substantial part. The Court ordered Gerber to submit a revised expert report from Saavedra that limited his methodology to publications available at the time Plaintiff made particular claims in GSG advertising. 

    Key Takeaways:

    1. Bias Considerations: Employment history or affiliations with a party involved in the case do not automatically disqualify an expert from providing testimony. The opposing party may attempt to impeach the expert’s credibility based on such relationships, but it doesn’t necessarily warrant exclusion of their opinion.
    2. Adequacy of Data and Methodology: Experts may rely on literature reviews to form their opinions. The Court may scrutinize the quality of studies cited by the expert, but if the expert adequately demonstrates the reliability of their methodology and the relevance of the data, their testimony may be admissible.
    3. Review of Medical Literature: The Court may consider a review of medical literature a reliable methodology for expert testimony, provided it meets certain standards of reliability and relevance.
    4. Dual Testimony: Courts may scrutinize the admissibility of dual testimony, where an expert acts both as an expert and a fact witness. The Court should weigh the potential for unfair prejudice against the probative value of such testimony. Additionally, experts should be clear about their roles and capacities in providing testimony to avoid confusion or potential objections.

    Case Details:

    Case Caption: Hasemann Et Al V. Gerber Products Co.
    Docket Number: 1:15cv2995
    Court: United States District Court, New York Eastern
    Order Date: March 25, 2024

  • Testimony of Automotive Engineering Expert Witness Limited for Lacking Evidence beyond his Subjective Opinion

    Testimony of Automotive Engineering Expert Witness Limited for Lacking Evidence beyond his Subjective Opinion

    This case arises out of Plaintiff Mark Riley’s claim that General Motors breached a contract and express warranty to repair his 2017 GMC Acadia vehicle (“Subject Vehicle”) in a reasonable time. The 3-year/36,000-mile limited warranty that accompanied the Subject Vehicle (“Limited Warranty”) provided for repair of covered defects occurring during the warranty period, subject to certain terms, conditions and limitations, including that the owner or lessee take the vehicle to a GM authorized dealer during the warranty period and allow reasonable time for a repair. Plaintiff contended that shortly after he purchased the Subject Vehicle, he experienced a condition where, to turn off the vehicle’s accessory mode, he was required to take certain additional steps such as wiggling the shifter and moving the shifter in and out of park (the “STP condition”).

    The STP condition occurred in a small minority of proposed class vehicles, and even then, manifested at different rates across vehicle models, which used shifter assemblies integrated into the different vehicles in different ways.

    Plaintiff disclosed the Report and Expert Opinion of Darren Manzari on February 3, 2023 (the “Manzari Rpt.”). Manzari is Plaintiff’s sole expert in this case. Among other things, Manzari opined on whether certain shifter assemblies included in Class Vehicles were “defective.”

    GM argued that this Court should exclude the testimony and opinions of Plaintiff’s expert, Darren Manzari, due to (1) Manzari’s lack of relevant “knowledge, skills, or experience” as to economics, damages, and safety and (2) the opinions’ failure to meet Rule 702 standards on account of insufficient factual underpinnings and inappropriate speculation or conclusions.

    Automotive Engineering Expert Witness

    Darren Manzari has worked in the automotive industry for 35 years. He graduated from Farmingdale University in 1986 with AAS Degree in Automotive Engineering. In 1998, he began a training and consulting business, ATC.

    Through ATC, he provided automotive technical training and consulting to Colleges, OEM Dealerships and aftermarket automotive facilities, in New York, Massachusetts, Maryland, North Carolina, South Carolina, Georgia and Florida.

    Discussion by the Court

    Manzari’s diverse career and training spans different facets of the automotive industry over thirty-five years. Manzari applied this experience in his expert report, tailoring his opinions and conclusions based on a variety of relevant documents, including numerous GM statements, reports, and service bulletins to dealers, as well as documents produced by GM itself, including Plaintiffs’ vehicle service records. The Court agreed with prior evaluations of Manzari’s credentials and methodology of applying “his knowledge and experience to a review of an extensive list of relevant documents” as “sufficient to satisfy the Court’s gatekeeping function.”

    Manzari’s opinions that GM took too long to diagnose and identify a repair for the Shifter Defect, and failed to cure the Shifter Defect

    GM asserted that these opinions lacked scientific analysis, and instead “simply summarized GM testimony, improperly couched as his opinion,” so such opinions should be inadmissible as unreliable.

    The Court found that these opinions were a result of Manzari’s interpretation of record evidence based on his relevant and qualified experience and knowledge.

    Manzari’s opinions that Class Vehicles suffer from a Shifter Defect that GM did not repair during the Warranty Period

    GM argued that such opinions lacked independent analysis, were unreliable, and Manzari opined on areas that were within the province of the judge (legal conclusions) and the jury (factual questions).

    However, Manzari examined various documents pertaining to Plaintiff’s vehicle—including (1) GM’s warranty history for Plaintiff’s vehicle; (2) Plaintiff’s vehicle purchase records; and (3) the dealership service records for the vehicle owned by Plaintiff—as well as GM’s own documents in this action.

    The Court found these opinions to be the result of a reliable methodology applied to a sufficient set of facts.

    The opinions involved application of his knowledge and expertise in concluding that certain repair attempts did not actually repair the defect.

    Manzari’s opinion that Class Vehicles are unsafe to drive

    GM claimed that such an opinion was excludable because Manzari is not a vehicle safety expert. Manzari’s opinion that the Class Vehicles were unsafe to drive was an “ordinary purpose” opinion.

    The Court held that Manzari is qualified by virtue of his knowledge and experience to testify on the functioning of the vehicles.

    Manzari’s opinions that the Shifter Defect would have impacted consumers’ purchasing decisions and does impact the value of the Class Vehicles due to the cost of repair

    GM objected to the “anecdotal” nature of Manzari’s opinions regarding any alleged reduction in value and any resulting consumer behaviors.

    The Court held that cost of repair is the appropriate calculation for diminution in value damages, as Manzari noted, and the repair cost was in part based on GM’s records. Manzari’s citations to evidence in the record in coming to the precise number were reliable.

    And, considering GM itself fronted the cost to fix this issue during the warranty period, it was reasonable to conclude that such an issue impacted the Class Vehicles’ value.

    However, in concluding that “most consumers would not have purchased the Class Vehicles, or would have paid substantially less, had the problem been known to them,” Manzari started to depart from the province of what this Court viewed as his expertise, instead veering into consumer demands, with more support.

    The Court held that Manzari’s report lacked evidence of “consumer reactions” or evidence beyond “his subjective opinion.”

    The admissibility of Plaintiff’s only expert bore on both Defendant’s motion for summary judgment and Plaintiff’s motion for class certification. Plaintiff’s motion for class certification was granted while Defendant’s motion for summary judgment was granted in part and denied in part.

    Held

    The Court granted in part and denied in part GM’s motion to exclude Darren Manzari’s testimony and opinions.

    Key Takeaways:

    1. Expertise and Methodology: Manzari’s diverse career and training in the automotive industry provided a strong foundation for his expert opinions. The Court acknowledged his expertise and methodology in reviewing relevant documents and applying his knowledge and experience to reach conclusions.
    2. Reliability of Opinions: Despite GM’s objections regarding the lack of scientific analysis and independent analysis in Manzari’s opinions, the Court found them to be reliable interpretations of record evidence based on his relevant experience and knowledge.
    3. Qualifications for Testifying: The Court upheld Manzari’s qualifications to testify on vehicle functioning.

    Case Details:

    Case Caption: Riley V. General Motors LLC
    Docket Number: 2:21cv924
    Court: United States District Court, Ohio Southern
    Order Date: March 25, 2024
  • Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Testimony of Vocational Rehabilitation Expert Witness Held to Emphasize on Relevant Factors

    Defendant Amazon.com Services, Inc. (“Amazon.com”) initially hired Marcellus McMillian as a seasonal fulfillment associate and then promoted him to fulfillment associate in the make on demand department. Defendants employed him for more than a year, starting on January 11, 2017. McMillian’s back was injured in an unrelated car accident on or around August 3, 2017, and he went on medical leave. McMillian accused the Defendants of discriminating against him because of his disability and requests for accommodation.

    Defendants’ vocational rehabilitation expert, William B. Skilling, testified that he formed an opinion that McMillian was “highly employable” because McMillian’s skills were allegedly “transferable to many different occupations.” Skilling testified that he created a chart in his report where he identified “appropriate” positions for McMillian as a part of his transferable skills analysis. He then went on to testify that he formed an opinion that the occupations listed on the chart in his report are “substantially similar” to McMillian’s position with the Defendants. He testified that he made assumptions about McMillian’s rate of pay based on his job description, and was unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. Skilling’s report also makes a reference to other positions being “substantially similar” to McMillian’s position with the Defendants.

    Plaintiff requested the Court to preclude reference to and testimony of any legal conclusions from Skilling, including references in his report, and his testimony that other positions were “substantially similar” to McMillian’s position during his employment with the Defendants.

    Vocational Rehabilitation Expert Witness

    William B. Skilling has worked in the field of rehabilitation for more than 45 years. Since 1973, he has completed more than 5,000 assessments and has testified as an expert in his field on nearly 500 occasions in state and federal courts.

    Between 1982 and 1992, Skilling was under contract as a Vocational Expert by the Social Security Administration Office of Disability Adjudication and Review, while at the same time providing vocational rehabilitation services to injured workers through private contracts in Washington, Oregon, California, and Alaska.

    Discussion by the Court

    Plaintiff argued that Skilling was not qualified to opine on other employment opportunities because he made assumptions about McMillian’s rate of pay based on his job description. He was, hence, unable to testify as to how many hours McMillian worked, or what, if any benefits McMillian received. He also did not know how long McMillian’s commute was and did not interview McMillian.

    Plaintiff also argued that pursuant to FRE 702(1) Skilling’s testimony, and conclusory, unfounded opinion that other positions identified in his report were substantially similar to McMillian’s position, would not help the trier of fact understand the evidence or decide an issue of fact.

    There are certain factors that a jury can consider when determining whether other positions were “substantially similar”, including salary, benefits, hours of work per day, hours of work per year, locality, and availability of a merit-based system. One of the agreed upon jury instruction regarding Defendants’ affirmative defenses pertaining to migration, identified that the jury must determine whether “employment substantially similar to Marcellus McMillian’s former job was available to him.” While evidence of other jobs can reasonably be admitted as evidence, the question of whether the jobs are substantially similar is one for a jury to decide.

    Defendants argued that Skilling’s analysis focused more heavily on some of the other relevant factors, such as locality and the required skill, background, or experience. The Court found that the Plaintiff’s counsel forced the “substantially similar” usage on the expert witness in order to bring this Motion. To the extent Plaintiff objected to Skilling’s conclusion or believed his conclusion were unsupported, Plaintiff was free to elicit such weaknesses during cross-examination. 

    Held

    The Court denied Plaintiff’s motion to exclude reference to and testimony of any legal conclusions from Defendant’s expert William Skilling.

    Key Takeaway:

    The test under Daubert  is not the correctness of the vocational rehabilitation expert witness’s conclusions but the soundness of his methodology. Attacks to the factual underpinnings of an expert’s opinions bear on the weight of the opinion, not its admissibility.

    Case Details:

    Case Caption: McMillian v. Golden State FC LLC
    Docket Number: 2:19cv2121
    Court: United States District Court, California Central
    Order Date: February 6, 2024

  • Securities Expert Witness’ Opinion on Defendant’s Breach of Fiduciary Duties Admitted

    Securities Expert Witness’ Opinion on Defendant’s Breach of Fiduciary Duties Admitted

    Plaintiffs are former Salesforce employees who participated in the Salesforce 401(k) Plan. They alleged Defendants breached their fiduciary duties to the Plan and Plan participants in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”).

    Plaintiffs alleged the Investment Advisory Committee, Joseph Allanson, Stan Dunlap, and Joachim Wettermark (collectively, “Committee Defendants”) breached their fiduciary duty of prudence by selecting and retaining investment options with high costs relative to other, comparable investments. They relied on Robert E. Conner to support their claims against Defendants—fiduciaries of the Salesforce 401(k) Plan—under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

    Robert Conner stated that Defendants’ oversight of the Salesforce 401(k) Plan was not “consistent with the standard of care of a prudent fiduciary,” and that the Plan participants incurred “losses . . . as a result of the Plan fiduciaries’ failure to provide oversight.”

    Defendants sought an order excluding Conner’s opinions pursuant to Rule 702 of the Federal Rules of Evidence, arguing he was “not qualified to opine on the standard of care applicable to such fiduciaries under ERISA” and that his opinions were based on “flawed methodology and unreliable information.”

    Securities Expert Witness

    Robert E. Conner holds an M.B.A. in Finance from Harvard Business School. Conner is currently the President and co-founder of Datura Analytics, LLC and the co-founding officer of Thornapple Associates, Inc; two expert witness firms specializing in litigation support for investment disputes, investment industry standards, and damages. He has 46 years of experience in the securities industry serving clients in areas such as “ERISA pension and profit-sharing plans, registered and nonregistered investment managers and advisors, non-profit organizations and foundations, bankruptcy trustees, trusts and estates.”

    Conner’s opinions were partly based on his experience as a fiduciary in, among other things, investment portfolio management, including within the retirement plan industry. Conner has been an expert witness in several analogous ERISA cases.

    Discussion by the Court

    Conner Lacks the Requisite Experience

    Defendant argued that Conner never “served on a 401(k) or other pension plan committee” and has never “served as an expert witness where the ERISA fiduciary standard of care has been at issue.”

    However, Conner “managed discretionary accounts” and “provided research and transactional coverage of non-discretionary accounts” including pension plans from 1977 to 1980. From 1983 to 1998, he managed equity portfolios for pension accounts as a portfolio manager, all of which experience included managing ERISA plan assets. Since 1998, Conner has worked at two expert witness firms, supporting litigation in “the securities and commodities industry” and in “investment industry disputes.”

    In conclusion, the Court determined that the Defendants’ criticism of Conner’s experience only affected the weight of his opinions, not admissibility.

    Conner’s Opinions are based on Flawed Methodology and Unreliable Information

    Conner opined the Committee breached its fiduciary duty by choosing “investments and share classes with higher expenses even though identical investments with lower expenses were available” by: (1) as to Target Date Funds (“TDFs”), “failing to choose or switch to the JPMorgan Smart Retirement 2020 R5 share class . . . or the R6 share class when they became available”; and (2) failing to offer the “Fidelity Contra Commingled Pool (CIT)” and “Fidelity Contra Fund K6.”

    JPMorgan SmartRetirement Target Date Funds

    Defendants first argued Conner based his criticism of the Committee’s failure to substitute the Institutional share class of the JPMorgan TDFs for the R5 share class “on flawed methodology and unreliable information.”

    The underlying factual record indisputably showed that the Plan was invested in the Institutional (later renamed R5) class from the beginning of the Class Period through December 2017.”

    Plaintiffs did not dispute that the R5 and Institutional share classes were identical. Instead, they argued the “essential part” of Conner’s TDF share class opinion “focused on . . . why the R6 share class should have replaced the more expensive [Institutional/R5] share classes” more promptly, and, as Plaintiffs also pointed out, the supporting data contained in the exhibit submitted in connection with Conner’s report could support a calculation demonstrating the difference between the Institutional/R5 and R6 share classes. In light thereof, the Court found the above-described error concerned the weight, rather than the admissibility, of Conner’s opinions.

    Defendants next criticized Conner for ignoring the benefit of revenue sharing to offset Plan administrative expenses, which was provided by the R5 class but not the R6 class. Although Conner conceded that revenue sharing was applied toward expenses with the fund, he stated he did not account for the revenue sharing credit paid by the Institutional/R5 share class in his damages calculations because revenue sharing made recordkeeping and administrative costs interdependent with plan participant returns and reduced the investment returns plan participants received.

    The Court found that the above challenge primarily concerned the merits of Plaintiffs’ claims, rather than whether the report was based on sufficient facts and data.

    Collective Investment Trusts

    Defendants also sought to exclude Conner’s opinion that the Defendants breached their fiduciary duty of prudence by failing to replace the JPMorgan TDFs, the Fidelity Contrafund K, and the Fidelity Diversified International Fund K on the Plan’s investment menu with cheaper CITs sooner than they did. They argued Conner’s methodology was flawed because he inappropriately compared mutual funds with CITs, which were entirely different investment vehicles with different features. Conner did not dispute the above-referenced differences but offered his opinion that such concerns did not permit a prudent fiduciary to “rule out” CITs entirely. The Court again found Defendants’ challenge questioned the merits of Plaintiffs’ claims rather than the admissibility of Conner’s opinions in support thereof.

    Damages

    Defendants first sought to exclude Conner’s damages calculations because he did not obtain the underlying data himself and failed to properly assure its accuracy. Conner testified that he verified the numbers upon which he relied and based his own opinions upon. Accordingly, the Court declined to exclude Conner’s testimony on the basis of his use of such data.

    Flaws:

    Defendants additionally argued Conner’s damages calculations suffered from several fundamental flaws specifically:

    (1) He treated the R5 and Institutional share classes of the JPMorgan TDFs as distinct share classes;

    (2) He failed to account for the difference in expense ratios varying over the 2015 to 2017 period and by vintage; and

    (3) He multiplied his calculation of expense ratio differences by Plan assets in the challenged funds as of year-end keeping in mind expenses accrued throughout the year rather than at year end.

    As to the first of the above-listed “flaws,” the Court declined to exclude Conner’s damages calculations because, as discussed above, it isolated the mistake from the rest of Conner’s analysis.

    As to the second flaw, Conner acknowledged that the share class expense ratios could change at different times causing smaller or larger spreads, but he explained that the difference typically is about 0.10%, which is the figure he opted to use. The Court held that an expert’s arguably improper focus on damages at a particular point in time is a question of fact, rather than grounds for exclusion.

    Similarly, as to the third “flaw,”  the Court found the parties’ respective experts’ disagreement as to whether it was preferable to use monthly asset averages, as was done by Defendants’ expert, or instead to use year-end assets, as was done by Plaintiffs’ expert, concerned the weight of each such opinion, not its admissibility.

    Opinions as to Excluded Claims

    Defendants sought to exclude Conner’s opinions to the extent they pertained to claims brought solely in the Second Amended Complaint, which Plaintiffs were not permitted to file, and to claims whose dismissal from the First Amended Complaint was affirmed by the Ninth Circuit. Plaintiffs agreed that such opinions “could be stricken.”

    Held

    The Court denied the Defendant’s motion to exclude Securities Expert Witness Robert Conner with the exception of the opinions as to excluded claims.

    Key Takeaways:

    1. Requisite Qualification: Conner managed discretionary accounts and provided research and transactional coverage of non-discretionary accounts. He also worked at two expert witness firms. The Court held that he was qualified to opine.
    2. Methodological Basis: The Court’s decision emphasized that Conner thoroughly checked the numbers used in his damages calculations, ensuring that he based his opinions on a sound methodology.
    3. Challenge to Merits: Defendants argued that Conner’s methodology was flawed because he inappropriately compared mutual funds with CITs, which were entirely different investment vehicles with different features. The Court held that the Defendants’ challenge concerned the merit of Plaintiff’s claims.

    Case Details:

    Case Caption: Miguel v. Salesforce.Com
    Docket Number: 3:20cv1753
    Court: United States District Court, California Northern
    Order Date: March 20, 2024

  • Psychology Expert Witness’ Depression Diagnosis Upheld

    Psychology Expert Witness’ Depression Diagnosis Upheld

    Plaintiff Duane Anthony Beyenhof alleged that his former employer Defendant Schwan’s Consumer Brands, Inc. (“Schwan’s”) wrongfully terminated him in retaliation for reporting illegal activity at work and because of his age.

    Schwan’s claimed he was terminated for not wearing a seatbelt in violation of Defendant Schwan’s Consumer Brands, Inc.’s (“Schwan’s” or “Defendant”) zero tolerance Seat Belt Policy.

    Defendant Schwan’s Consumer Brands, Inc. requested the Court to issue an order in limine excluding the testimony of and any reference to the expert reports of Plaintiff Duane Beyenhof’s designated experts, Heather H. Xitco and Anthony E. Reading as they did not meet the admissibility requirement of the Federal Rules of Evidence (“FRE”) 702 and would have presented evidence that was needlessly cumulative and unduly prejudicial to Defendant.

    Psychology Expert Witness

    Anthony E. Reading is a licensed psychologist in the State of California. He is a Clinical Professor in the Department of Psychiatry at the David Geffen School of Medicine at UCLA. He is a member of the American Psychological Association, the California State Psychological Association, the British Psychological Society.

    Click here to purchase Anthony Reading’s Expert Challenge Study and learn about the 86 cases where his testimony has been subjected to a challenge.

    Finance Expert Witness

    Heather H. Xitco is a Principal with Dolan Xitco that provides litigation support, financial analysis, and expert testimony. She holds a Bachelor’s degree in Economics from the University of Southern California and a Master’s in Business Administration, with an emphasis in Finance, from the University of San Diego. She is a practicing Certified Public Accountant in California with a Certification in Financial Forensics (CFF).

    Heather Xitco’s testimony has been challenged in more than 50 cases in the past. You can click here to order an Expert Challenge Study on Ms. Xitco and learn all about the grounds of challenge, outcomes, retaining and opposing attorneys and more.

    Discussion by the Court

    Under Federal Rule of Evidence 703, an expert witness can base opinions upon inadmissible hearsay evidence if that evidence is reasonably relied upon by experts in the same field on the same subject. Here, Defendant was concerned that both Xitco and Reading relied on Plaintiff’s statements to form their opinions. 

    Court Should Exclude the Testimonies Of The Plaintiff’s Experts because They Do Not Offer Any Testimony that is Sufficiently beyond Common Experience or Knowledge That Would Assist the Trier of Fact

    The Plaintiffs retained Xitco to “present evidence related to Plaintiff’s economic damages, including past, present, and future lost wages and benefits, and Defendant’s finances.”

    The Defendant argued that in determining Plaintiff’s lost earnings and benefits, Xitco merely relied on his previous wages, bonus, and benefits, and then factored in an estimated 2% growth based on his past wage increases. Accordingly, the calculations in Xitco’s report were simple mathematical calculations that a non-expert witness can just as easily explain and a juror can calculate.

    The Defendant alleged that Readings’ Rule 26 Report was essentially an overview of his initial—and only—consultation with Plaintiff. He based his conclusion of Plaintiff experiencing a Major Depressive Disorder following his termination on Plaintiff’s self-reported feelings. Reading failed to exhibit the level of care required in his field due to his singular visit with Plaintiff.

    After reviewing the reports, the Court found that the evidence relied upon is of the kind reasonably relied upon by experts in the same fields on the same subjects.

    The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.

    The Court should exclude Reading Because Plaintiff Failed to Comply to FRCP Rule 26(a)(2)(A-D)

    Defendant filed a motion to exclude specifically Reading’s expert testimony and report because Plaintiff failed to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D). Concerning failure to comply with Federal Rule of Civil Procedure 26(a)(2)(A-D), federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure.

    The Court held that exclusion of the entire testimony would be unjustified, considering Plaintiff provided Reading’s Report on April 20, 2023, a year before the set trial date on March 5, 2024. Defendant had ample time to review the supplemental testimony. 

    Held

    The Court denied the motions to exclude Finance Expert Witness Heather Xitco and Psychology Expert Witness Anthony Reading.

    The Court dismissed the case on March 04, 2023.

    Key Takeaways:

    1. Admissibility under Federal Rule of Evidence 702: The Court resorts to exclusion only when the expert’s opinions lack fundamental support. The Court held that Defendant’s concerns about the reliability of Reading’s methods concerned the weight of the testimony, not the admissibility. It also found that Xitco’s expert testimony assisted the jury under Rule 702 by aiding the understanding of damages.
    2. Compliance with FRCP Rule 26(a)(2)(A-D):  Federal courts have the discretion to exclude expert witness testimony due to an untimely or inadequate expert disclosure. But excluding Reading’s Report was unjustified considering any errors were clearly harmless since Defendants had ample time to remedy any concerns.

    Case Details:

    Case Caption: Beyenhof V. Schwans Consumer Brands, Inc. Et Al
    Docket Number: 2:22cv192
    Court: United States District Court, California Central
    Citation: 2024 U.S. Dist. LEXIS 48635
    Order Date: February 14, 2024

  • OSHA/Workplace Safety Expert Witness’ testimony on alternate repair method admitted

    OSHA/Workplace Safety Expert Witness’ testimony on alternate repair method admitted

    This case arises from an incident at Darling’s plant in Kuna, Idaho. Darling is an animal processing company headquartered in Texas, with operations in several states including Idaho. Reymundo Cruz was employed as a maintenance worker at the Kuna plant in 2020 when he was fatally injured while repairing a machine called a “cow pusher” or “cow shovel.” This machine was designed and installed in 2010 by two Darling employees, Jose Guerrero and the decedent, Cruz. 

    The cow shovel utilized pneumatic pressure to push cattle carcasses into a grinder, posing potential hazards to workers. Typically, safety measures such as lockout-tagout were implemented to prevent unexpected start-ups or energy releases during maintenance. Surprisingly, the use and maintenance of the cow shovel did not specifically mandate these safety procedures.

    On April 7, 2020, Cruz was performing a repair on the cow shovel when the pressurized air caused the metal rods of the machine to extend, crushing Cruz. He died from his injuries several days later. After Cruz’s death in April 2020, OSHA inspected the Kuna plant and issued one repeat citation and five serious citations for failing to implement safety precautions and properly control hazardous energy sources.

    Cruz’s spouse, children, and stepchildren filed a Complaint in Idaho State Court alleging negligence, negligence per se, and wrongful death against Darling.

    Darling removed the case to federal court and moved for summary judgment on all claims against it. Plaintiff filed motions to strike the reports of Adam Aleksander and Bradley Giles.

    The motions to strike filed in this case were construed as objections pursuant to Rule 56(c)(2).

    OSHA/Workplace Safety Expert Witness

    Bradley Giles has extensive experience with OSHA, as shown by his CV. Notably, he is a graduate member of the Institution of Occupational Safety and Health. He is also a professional member of the American Society of Safety Engineers, a Certified Safety Professional, a Safety Trained Supervisor, and possesses a Master of Science Degree in Industrial Safety. All told, he “has over 40 years of Environmental, Safety, Health & Security (ESH&S) management.”

    Safety Engineering Expert Witness

    Adam Aleksander is a Mechanical and Industrial Engineer, with degrees from California State Univ. San Jose, Univ. of Colorado, and a Ph.D. from Texas A&M Univ. and is a licensed Professional Engineer in multiple States. His PhD training is in Human Factors Engineering and Safety Engineering.

    During a career spanning 50 years, he has wide experience in material handling, process energy systems, biomass boilers and STG’s, and investigative forensic engineering.

    Discussion by the Court

    Motion for Summary Judgment

    Plaintiffs, here, argued that Darling’s conduct fell within the exception for unprovoked physical aggression.  This exception applies where an employer “(1) committed an offensive action or hostile attack (2) aimed at the bodily integrity of the employee with (3) an unprovoked, i.e., general, intent to injure an employee.”

    Darling argued it did not know or consciously disregard any risk to employee life and limb because Cruz’s actions were not foreseeable. It argued Cruz received training on lockout-tagout protocol, knew how to operate the cow shovel, and that Cruz could have repaired the machine safely.

    Plaintiffs conceded that their negligence per se claim could not fall within the exclusive remedy exception.

    However, Darling was aware of its obligation to implement certain safety protocols when a machine, such as the cow shovel, used hazardous energy.

    Darling routinely conducted periodic safety inspections at the Kuna plant to ensure compliance with safety requirements, but it did not identify the cow shovel as a hazardous energy source or implement safety protocols specific to the machine until after Cruz’s death. 

    Accordingly, the Court granted in part and denied in part Darling’s motion for summary judgment.

    Evidentiary Objections

    Giles Report

    The Plaintiffs objected to OSHA/Workplace Safety Expert Witness Giles’ report for several reasons. They insisted on its inadmissibility because it was attached to the declaration of defense counsel who lacked the requisite personal knowledge of a declarant. Darling had, “out of an abundance of caution,” submitted a declaration from their expert. The Court found that this rendered the objection moot.

    The Plaintiffs also objected to several portions of the Giles report as speculative or improperly opining on Cruz’s state of mind. Relevant here, was Giles’ conclusion that Cruz chose to conduct the repair in the manner he did because a safer alternative existed. It did not persuade the Court that this conclusion amounted to an opinion on Cruz’s state of mind. Even to the extent it did opine on Cruz’s state of mind, the Court relied only on the Giles report for its opinion that an alternate method existed to approach the machine, which certainly did not opine on Cruz’s state of mind. The Court found that Giles reviewed the material in this case and inspected the Kuna plant and cow shovel.

    Aleksander Report

    Darling objected to portions of Safety Engineering Expert Witness Aleksander’s report, arguing it was speculative and offered an opinion on an ultimate issue. The Court did not rely on Aleksander’s statements that Darling “deliberately and intentionally ignored the hazard,” so it did not evaluate whether it opined on an ultimate issue. The Court, however, overruled the objections to the Aleksander Report as speculative. Aleksander’s opinions were based on depositions, OSHA citations, and his personal observations of the plant. Much like Darling’s expert, this provided sufficient foundation to render his opinion non-speculative.

    Held

    The Court granted in part and denied in part Darling’s motion for summary judgment. The Court denied the motions to strike the reports of Safety Engineering Expert Witness Adam Aleksander and OSHA/Workplace Safety Expert Witness Bradley Giles.

    It has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. Speculation and Opinion: Both reports encountered objections regarding speculative content and opinions on ultimate issues. While the Court did not rely on certain statements from Aleksander suggesting Darling’s intent, it overruled objections to the report as speculative due to the foundation provided by depositions, OSHA citations, and personal observations. This underscores the need for experts to ground their opinions in factual evidence rather than speculation.
    2. State of Mind Opinions: Giles’ report faced objections regarding opinions on Cruz’s state of mind. However, the Court determined that the conclusion about Cruz’s choice of repair method did not constitute an opinion on his state of mind, particularly since it relied on factual observations rather than subjective interpretation. This emphasizes the importance of distinguishing between factual observations and speculative opinions on individuals’ mental states in expert testimony.

    Case Details:

    Case Caption: Perez, Et Al. V. Darling Ingredients, Inc., Et Al.
    Docket Number: 1:22cv191
    Court: United States District Court, Idaho
    Citation: 2024 U.S. Dist. LEXIS 43678
    Order Date: March 11, 2024
  • Contracts Expert Witness Testimony Grounded in Extensive Factual Record

    Contracts Expert Witness Testimony Grounded in Extensive Factual Record

    BAE Systems Norfolk Ship Repair Inc. received a contract from the Navy to maintain, modernize, and repair the USS Tortuga. The contract included a Heavy Weather Plan (“HWP”), which granted the Navy the authority to order work stoppage when severe weather threatened the ship. According to the HWP, costs associated with its implementation, including delays, are reimbursable if they meet the criteria of being reasonable, allowable, and allocable.

    On September 2, 2019, in response to the threat posed by Hurricane Dorian, the Navy directed BAE to implement the contract’s HWP. Under the HWP, BAE had to protect the USS Tortuga by demobilizing temporary services, equipment, staging, and other items to secure the USS Tortuga against heavy weather damage and take other actions to protect the ship from water incursion. After the threat of Hurricane Dorian passed, on September 6, 2019, the Government instructed BAE to begin remobilization efforts. BAE followed the Government’s request and alleged that the HWP resulted in a twenty-one (21) day delay to the contract schedule. Compensation for that delay is the subject of the present dispute.

    To sum up, the Government acknowledged BAE and its subcontractors’ entitlement to compensation for the costs incurred while implementing the HWP, but rejected BAE’s claim for the HWP-related contract delay.

    Therefore, the United States through the Department of the Navy (“Navy or the Government”) retained Martin Gordon to review BAE NRS’s claimed costs for reimbursement related to implementing the HWP and the asserted delay claim.

    BAE contended that Gordon’s opinions were “so factually and scientifically unreliable and speculative that his proposed testimony fell well short of satisfying the exacting admissibility standard of Rule 702 and Daubert.” 

    Contracts Expert Witness

    Martin Gordon has worked as a government auditor for over thirty-one years. Gordon worked as an Auditor, a Senior Auditor, and a Team Leader, supervising other auditors. He has audited at least 351 contracts, with a total dollar value that exceeds $16 billion.

    His analysis and evaluations cover a wide range of financial, procurement and contract administration management processes across the U.S. Army, Navy, Air Force, Marine Corps and the Office of the Secretary of Defense.

    Discussion by the Court

    As summarized in his report, Gordon sought to offer the following opinions: BAE’s alleged delay costs are not compensable because there is (1) no documentation of actual costs incurred; (2) no specification of exact days encompassed by the 21-day extension; (3) BAE NSR did not submit an invoice with the corresponding Tortuga contract number; and (4) no invoices were submitted to verify and describe the work performed by BAE and its subcontractors on the Tortuga during the 21-day extension.

    Gordon also intended to opine that the information set forth above was necessary to ensure proper billing in accordance with federal guidance. He pointed to the specific circumstances of the Tortuga repairs that suggested strict adherence to the regulations was necessary. Other work delays plagued the Tortuga project, and several other Navy ships at the BAE yard had already submitted claims for delay. Thus, to avoid potential repeat billing, it was imperative for BAE NSR to tie its Tortuga-related costs to the Tortuga contract number or cost charge code. Finally, Gordon observed that the Tortuga’s high daily delay costs far exceeded the other ships’ daily costs and cited one subcontractor which failed to include actual incurred costs detailing the direct labor and material costs—and corresponding work—to support the 21-day extension.

    Gordon is Qualified to Offer Expert Opinions About BAE NSR’s Documentation of HWP Implementation Costs

    BAE NSR first argued that Gordon lacked the specialized knowledge necessary to qualify as an expert in this case. BAE challenged Gordon’s lack of familiarity with ship repair generally—and the course of dealing which it argued should inform the Navy’s decision making.

    The Company highlighted that Gordon (1) had only audited one other ship; (2) “was unsure whether he had ever audited a claim for repair and modernization of a Navy vessel” (3) “this was his first audit of a contractor’s request for compensation for a heavy weather claim … and his first audit of a claim for schedule delay,” among other things.

    After reviewing the cited deposition testimony, the Court found that BAE overstated Gordon’s supposed lack of experience and mischaracterized his disclosed opinions. BAE’s alleged shortcomings had little bearing on Gordon’s ability to apply his over thirty-one years of experience as a government auditor to the instant dispute.

    Gordon had the necessary skills to consider the documentation required by the government contract and regulatory scheme in this case—regardless of his limited familiarity with the narrow subject matter of the contract itself. Indeed, BAB did not contend that Gordon misquoted its contract or regulatory language—or that the regulations he cited did not apply.

    Gordon’s Testimony is Not Pure Speculation

    Plaintiff argued that Gordon ignored any evidence that did not support his opinions and improperly based his opinions on nothing more than mere speculation. The Court held that Plaintiff was questioning the factual underpinnings of Gordon’s opinion, which affected the weight and credibility of the witness’ assessment, not its admissibility.

    For example, Plaintiff contended that Gordon disregarded the Contracting Officer’s testimony that there was no set formula for determining the appropriate number of days for schedule delay. However, the fact that the Contracting Officer described delay compensation in this way did not contradict the Navy’s argument that there had to be support for the 21-day figure for BAE NSR and each of its subcontractors. In his report, Gordon did not apply a rigid formula but rather considered, based on his experience, if facts such as this had ever been found to justify payment under the applicable regulations. Plaintiff might have disagreed with Gordon’s findings, but that did not warrant exclusion.

    Plaintiff also contended that Gordon ignored the Technical Advisory Report (“TAR”). However, the Navy had consistently maintained that it was not bound by the TAR, and thus Gordon was not bound by it.

    Similarly, BAE NSR argued that Gordon “ignored information related to the extensions given on the other ships.” However, the Navy had all along maintained that the “facts and circumstances of other ships were not relevant to ascertaining schedule delay on the USS Tortuga.” And, Gordon’s report specifically addressed the other ships’ delay as a basis to insist on strict compliance with the contract requirements for Tortuga. Gordon was not required to accept BAE NSR’s view of the extensions granted on other ships or to agree that compensation added on these extensions precluded the Navy from adopting a different practice on this contested claim.

    Gordon’s Opinion is Based on Reliable Methodology

    BAE NSR also contended that Gordon’s opinions were not based on a reliable methodology because he ignored relevant facts and applied a general audit process, rather than one tailored to the issues here. The Court held that these criticisms ignored Gordon’s actual opinions and the extensive factual record he relied upon in reaching them. In his report, Gordon engaged with the record and laid out the basis for his opinions.

    Gordon examined documents produced by BAE NSR, its subcontractors, and MARMC. He assessed whether costs BAE NSR claimed for a proposed 21-day extension were substantiated. He reviewed the contract file documentation from BAE NSR and its subcontractors, along with pertinent documentation from the U.S. Department Defense contract Audit Agency (DCAA), and the Mid-Atlantic Regional Maintenance Center’s (MARMC) Contracting Office.

    Gordon then listed nine different forms of documentation he reviewed, including BAE subcontractor document binders, DCAA’s Audit Report on BAE NSR’s claimed Amounts, the Contracting Officer Final Decision (COFD).  

    Gordon also described the regulatory backdrop he (and the Navy) contended apply to this dispute: “The Federal Acquisition Regulations (FAR), Defense Federal Acquisition Regulations (DFARS), Code of Federal Regulations (CFR), and specific direction from Navy officials set requirements for cost tracking and reporting.” He “found a lack of sufficient documentation to support the reasonableness, allowable, and allocable requirement widespread,” which made “it impossible for [him] to recommend support for payment. Importantly—Gordon offered these opinions with respect to BAE NSR’s specific claims of 21 days of delay and PMO costs of over $111,000 per day.

    The Court held that Gordon based his opinions on the Navy’s evidence and he did not disregard facts.

    Gordon’s Opinions are not Cumulative of the DCAA

    Plaintiff believed Gordon, if he testified, would “only echo” Dianna Schweizer’s testimony. Schweizer is a Certified Public Accountant, and she assisted the Defense Contract Audit Agency (“DCAA”) in determining the costs of BAE’s implementation of the Heavy Weather Plan. The Navy properly identified Schweizer as a 30(b)(6) witness on DCAA’s audit of BAE NSR’s claim.

    Gordon, like Schweizer, intended to testify about BAE NSR’s costs of implementing the HWP. But, Gordon’s background is that of a DoDIG auditor, and as such, his focus is “on whether the government and its contractor are in compliance with applicable regulations.” Schweizer, on the other hand, performed an audit for the DCAA, and DCAA auditors “examine contractors’ financial records from a cost accounting perspective to determine whether the sums add up to those claimed by the contractor.”

    The Court held that because each witness has a different background and experience, it cannot be determined at this stage that Gordon’s testimony is cumulative and should be excluded.

    Held

    The Court denied the Plaintiff’s motion to exclude Martin Gordon’s opinions and testimony.

    Key Takeaways:

    1. Gordon’s Opinions on BAE NSR’s Claim: Gordon provided opinions on BAE NSR’s alleged delay costs, citing insufficient documentation, lack of specificity in the extension period, and missing invoices as reasons for non-compensability. He stressed the importance of adhering to federal regulations for proper billing.
    2. Qualification of Gordon as an Expert: Despite challenges to Gordon’s expertise as a contracts expert witness due to limited familiarity with ship repair and audit experience, the Court found his qualifications sufficient, relying on his extensive governmental auditing experience.
    3. Evaluation of Gordon’s Methodology: BAE NSR criticized Gordon’s methodology for ignoring relevant facts, but the Court deemed his opinions based on a reliable methodology, considering his thorough review of documentation and regulatory frameworks.
    4. Non-Cumulative Nature of Gordon’s Testimony: Despite similarities with a DCAA auditor’s testimony, Gordon’s background as a DoDIG auditor provided a different perspective, making his testimony non-cumulative and thus admissible.

    Case Details:

    Case Caption: Bae Systems Norfolk Ship Repair Inc. V. United States Of America
    Docket Number: 2:22cv230
    Court: United States District Court, Virginia Eastern
    Citation: 2024 U.S. Dist. LEXIS 45681
    Order Date: February 23, 2024
  • Engineering Expert Witness’ testimony on roof damage cause and extent deemed inadmissible

    Engineering Expert Witness’ testimony on roof damage cause and extent deemed inadmissible

    This is an insurance case arising out of a storm occurring on or about April 28, 2021, which allegedly caused damage to the roof of Plaintiff’s hotel located in San Antonio, Texas at 4 Piano Place, 78228. Plaintiff Nehal LLC d/b/a Quality Inn filed a claim to Defendant, Accelerant Specialty Insurance Company (“ASIC”) on or about March 20, 2022, after which the Plaintiff alleged the Defendant underpaid the claim. Nehal LLC then filed this action in state court alleging causes of action for breach of contract, violations of Section 542 of the Texas Insurance Code, unfair insurance practices in violation of Section 541 of the Texas Insurance Code, violations of the Texas Deceptive Trade Practice Act, and breach of the duty of good faith and fair dealing.

    Plaintiff designated W. Tom Witherspoon, a licensed engineer in the State of Texas, to testify “regarding the condition of Plaintiff’s roof, the cause and extent of damage to Plaintiff’s roof, the proper method of restoring Plaintiff’s roof to its pre-loss condition, and any other matters within his expertise related to the wind and hail damage to Plaintiff’s roof.”

    Witherspoon pointed to evidence of hail impact damage to the roof and recommended that the roof be replaced in his expert report.

    So, ASIC filed a motion to exclude Witherspoon from testifying as an expert for Plaintiff on the basis that his report was unreliable and not relevant, and his conclusions were unreliable and not supported by any methodology.

    Engineering Expert Witness

    W. Tom Witherspoon is a Navy veteran and a licensed professional engineer in the State of Texas. He has been doing forensic analyses of hail damaged roofs for more than 25 years. He is also a certified Structural Repair Specialist. During his career, Witherspoon has done forensic evaluations of various buildings, homes and other structures affected by wind or hail more than 500 times.

    Discussion by the Court

    ASIC insisted on the inadmissibility of Witherspoon’s opinions due to certain inconsistencies.  First, the date Witherspoon marked as the storm date was different from the date Plaintiff alleged as the storm date. Second, Witherspoon failed to explicitly say that the storms he referred to caused the damage at issue. ASIC further contended that Witherspoon’s conclusions were unreliable and not supported by any methodology because the data he relied on was insufficient.

    At the hearing, ASIC also further clarified that Plaintiff has admitted it did not replace the roof after obtaining funds to do so from a settlement from a prior insurance claim for roof damage. At the hearing, Plaintiff did not dispute that Plaintiff did not make any repairs to the roof despite receiving funds to do so from a prior claim.

    Witherspoon’s testimony is not reliable

    Witherspoon’s unreliable methodology and conclusions were objected to by ASIC. They argued that he failed to differentiate between prior damage—since the roof was not replaced or repaired after prior damage for which Plaintiff received a settlement—and the damage Plaintiff alleged occurred due to the 2021 storm. Given this clarification, the Court held that Plaintiff did not meet its burden to show that Witherspoon’s testimony was reliable.

    Plaintiff designated Witherspoon as an expert who might testify as to the cause of damage to the Plaintiff’s roof. The Plaintiff previously settled a claim with a reported loss date of April 12, 2016, with another insurer for damage to the property’s roof.  The evidence also established that Plaintiff did not replace the roof after it settled that claim.

    The Court noted that Witherspoon’s report and affidavit failed to address prior storms and did not attempt to differentiate damage caused by previous storms from that of the 2021 storm. Additionally, Witherspoon had not been deposed, and there is no recorded testimony from him specifically addressing the cause of the roof damage. Plaintiff submitted a sworn affidavit with its response, but the affidavit did not address whether Witherspoon analyzed or attempted to analyze what damage was attributable to prior storms versus the one at issue in this case. 

    The Court held that there was no proof of Witherspoon incorporating consideration of prior damage, or even that Witherspoon was aware that Plaintiff had received a settlement for a prior storm yet not replaced the roof.

    Held

    The Court granted Defendant’s motion to strike report and testimony of Engineering Expert Witness W. Tom Witherspoon.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. ASIC Objected to Witherspoon’s Methodology: ASIC raised objections to the reliability of Witherspoon’s methodology and conclusions regarding the cause of damage to the Plaintiff’s roof. They argued that Witherspoon failed to differentiate between prior damage and damage allegedly caused by the 2021 storm.
    2. Court’s Decision Based on Burden of Proof: The Court determined that Plaintiff failed to meet its burden to demonstrate the reliability of Witherspoon’s testimony. This determination stemmed primarily from Witherspoon’s analysis not accounting for prior damage and its potential impact on the current case.
    3. Plaintiff’s Settlement and Roof Damage History: Plaintiff had settled a previous claim with another insurer for damage to the roof, dated April 12, 2016. Despite this settlement, the roof was not replaced, indicating a history of prior damage.
    4. Witherspoon’s Report Limitations: Witherspoon’s report and affidavit did not address prior storms, and there was no attempt to differentiate damage caused by previous storms versus the 2021 storm. Additionally, Witherspoon had not been deposed, and there was no record of his specific testimony regarding the cause of roof damage.
    5. Lack of Consideration for Prior Damage: The Court found no evidence that Witherspoon considered prior damage, nor was there evidence that he was aware of the Plaintiff’s settlement for a previous storm and the subsequent lack of roof replacement.

    Case Details:

    Case Caption: Nehal Llc V. Accelerant Specialty Insurance Company
    Docket Number: 5:23cv747
    Court: United States District Court, Texas Western
    Citation: 2024 U.S. Dist. LEXIS 47407
    Order Date: February 29, 2024

  • Court Limits Accident Investigation Expert Witness’ Report on Defendant’s Liability

    Court Limits Accident Investigation Expert Witness’ Report on Defendant’s Liability

    Plaintiff sustained injuries while waiting in the loading area to board an inflatable raft as part of the Aquazoid water slide (“Aquazoid”). It occurred on August 22, 2015, at Busch Gardens Water Country USA (“Water Country”), in Williamsburg, Virginia.

    Two attendants stationed at the loading area at the top of the water slide remove the rafts from the conveyor belt and assist patrons in loading into the rafts. Once an attendant removes a raft from the conveyor belt to load it with patrons, the system engages, and another raft moves down the roller belt.

    The Plaintiff alleged that during the loading process at the top of the water slide, the conveyor belt moved a raft down the roller belt, striking Plaintiff in the leg, causing her to fall forward into the raft she was attempting to board, and resulting in injuries to her left knee. Specifically, Plaintiff argued that SeaWorld owed Plaintiff a duty of care “to have the premises in a reasonably safe condition” and to warn Plaintiff of any unsafe conditions.

    Defendant SeaWorld Parks & Entertainment, LLC, d/b/a Water Country USA retained Richard Carroll (“Carroll”) as a liability expert witness to testify at trial about the incident and the Aquazoid attraction. Plaintiff filed a motion to exclude Carroll’s opinions on the grounds that his opinions were irrelevant, likely to confuse a jury, or not the proper subject of expert testimony.

    Accident Investigation Expert Witness

    Richard Carroll has 38 years of combined aquatic facility management, operational and consulting experience. He is is the Senior Vice President and Chief Operating Officer of Jeff Hills & Associates, Inc. He has conducted multiple Aquatic Incident Investigations and over 1000 audits while employed at Jeff Ellis & Associates, Inc. Carroll has been qualified as an expert multiple times.

    Prior to assuming a position with Jeff Ellis & Associates, Richard was directly responsible for incident investigation, claims administration, collection of documentation/discoverable evidence and deposition testimony on behalf of Splish Splash Waterpark for 10 years.

    Discussion by the Court

    Plaintiffs’ first category of objections—that Accident Investigation Expert Witness, Carroll’s opinions were irrelevant and likely to confuse or mislead a jury—were not based on Carroll’s status as a qualified expert witness. Rather, Plaintiffs appeared to argue that the exclusion of these opinions was based on Rule 403.

    Plaintiff sought to exclude a second category of Carroll’s opinions on grounds that they were not proper expert testimony pursuant to Federal Rule of Evidence 702 and the requirements of expert testimony as outlined in Daubert.

    Carroll’s Opinion that Aquazoid’s Standard Operating Procedure and Attendant Training Meets Internal Industry Best Practices is Irrelevant

    Plaintiff first took issue with Carroll’s opinion that Aquazoid’s standard operating procedure and attendant training met internal industry best practices. Plaintiff contended that this statement was irrelevant because Plaintiff had not made any allegations regarding Aquazoid’s training, but rather argued that the ride attendants did not follow the training or exercise ordinary care.

    The Court held that there was little probative value in the opinion that Aquazoid’s standard operating procedure and attendant training met industry best practices because whether the attendants acted or failed to act in a way that breached their duty as established by industry standards was actually in dispute.

    Carroll’s Opinions that the Raft Conveying Process is Safe and Meets Industry Standards, the Process for Moving Rafts from the Conveying System to the Start Tub Meets Industry Standards, and the Conveying System Meets Industry Standards are Irrelevant

    The parties have stipulated that the conveying system did not have design flaws and was operating as designed at the time of the incident.

    The Court held that Carroll’s opinions that the raft conveying process was safe and met industry standards, the process of moving rafts from the conveying system to the start tub met industry standards, and the conveying systems met industry standards, had little probative value, and instead had the potential to mislead the jury into deliberating the wrong issue.

    Carroll’s Opinions that the Ride is Reasonably Safe as Designed and Compliant with Applicable Standards is Relevant

    The Plaintiff argued that Carroll’s opinions that the ride was reasonably safe as designed and compliant with applicable standards were irrelevant because Plaintiff was not alleging that the ride was unsafe or non-compliant with industry standards.

    However, the Court held that since the cited industry standards addressed where patrons were to stand while boarding the ride, such testimony would have been relevant to Plaintiff’s claim that Defendant breached its duty of ordinary care by allowing her to board from an area where she would have been struck by a raft descending onto the roller assembly.

    Carroll’s Opinion that Having Two Ride Attendants Met the Manufacturer’s Operation and Maintenance Manual Requirements is Relevant

    The Plaintiff objected to Carroll’s opinion that having two ride attendants present in the loading area met the manufacturer’s operation and maintenance manual. She argued that Defendant’s compliance with its own operating manual was irrelevant and could confuse the jury into believing that compliance with its own policies, as opposed to industry standards, was sufficient to absolve Water Country from the negligence of its employees.

    Plaintiffs’ argument misrepresented Carroll’s opinion. Carroll stated in his report, twice, that the staffing of two attendants was consistent with industry standards as well as the manufacturer’s guidance.

    The Court held that because Carroll was not basing his opinion simply on compliance with Water Country’s own policies, but instead, was basing it on Water Country’s compliance with industry standards, which were reflected in Water Country’s policies, the risk of jury confusion was minimal.

    Carroll’s Opinion that Plaintiff was Under the Influence of Alcohol is Irrelevant

    The Court held that Carroll’s opinion that Plaintiff had a duty not to participate on the ride if she was under the influence of drugs or alcohol had no probative value due to lack of allegation or evidence of Plaintiff’s impairment at the time of her alleged injury.

    Carroll’s Opinion that ProSlide Recommended Sign and Patron Communications Were in Place and in Use at the Time of the Incident may be Relevant and is not Unfairly Prejudicial

    Plaintiff moved to exclude Carroll’s opinion regarding the recommended signage in place at the time of the incident because it did not absolve SeaWorld of negligence and the signage did not warn about the dangers posed by rafts descending the roller assembly.

    Since the ProSlide recommended signs warned Plaintiff of the danger near the conveyor, and are the signs referenced by ProSlide, the Court held that it had probative value.

    Carroll’s Opinion that Plaintiff Either Walked into an Area Inside the Safety Fence When a Descending Raft Struck her or that She Tripped is Conclusory

    Carroll’s report stated that the first scenario is that Plaintiff walked into the area inside the safety fence, standing near the conveying system and a raft descended and touched Plaintiffs leg causing her to fall into the raft. Alternatively, Carroll opined that the second scenario is that Plaintiff simply tripped and fell when stepping into the raft.

    Defendant stated that Carroll “could take Plaintiff’s testimony and apply the ride mechanics and layout to illustrate to the jury what would and what would not be possible.”

    The Court held that Carroll’s opinion as to possible alternative causes of the incident—either Plaintiff stood too near the safety fence or tripped and fell—was speculative, and therefore unhelpful to the jury. Since Carroll cannot say which of the two possible scenarios occurred, his opinion that one of the two occurred would not help the trier of fact understand the evidence or to determine the facts in issue. However, Carroll’s testimony regarding how the conveyor system works under different scenarios would be helpful to the jury to understand the evidence in the case and determine the facts in issue.

    Carroll’s Opinion that the Ride Attendants Did Not Have Sufficient Time to Activate the Emergency Stop Button on the Conveyor Belt is not based on Sufficient Facts, or Data

    The Court held that because the parties stipulated that the conveying system did not have design flaws and Defendant did not know where the ride attendants were located at the time of the incident, Carroll’s opinion that the attendants’ position would not have allowed sufficient time to reach the emergency stop button was not based on sufficient facts or data.

    Carroll’s Opinion about the “Please Stand Clear of Conveyor” Sign Does Not Lack Scientific Methodology

    Plaintiff sought to exclude Carroll’s opinion that the “Please Stand Clear of Conveyor” sign was a warning to patrons of the danger of the descending roller assembly on the grounds that it “lacked scientific methodology and was internally inconsistent with his own definitions and other opinions expressed in his report.”

    The Court held that Carroll based on his opinions about the sign on relevant industry standards because he referenced the normative guidance American National Standards Institute provides when more than one hazard exists in close proximity to each other or might be preventable from a common location.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude Accident Investigation Expert Witness, Richard Carroll.

    The Court subsequently dismissed the action on March 15, 2024. It ordered the Plaintiff to cover the Defendant’s costs of action.

    Key Takeaways:

    1. Relevance and Potential Confusion: Expert testimony must be relevant and not likely to confuse or mislead the jury. Arguments about relevance should be based on established rules and standards, not merely the expert’s qualifications.
    2. Admissibility under Rule 702 and Daubert: Expert opinions should meet the admissibility requirements outlined in Federal Rule of Evidence 702 and the Daubert standard.
    3. Relevance of Industry Standards: Opinions based on industry standards are relevant when assessing claims of negligence or breach of duty, particularly regarding safety protocols and procedures.

    Case Details:

    Case Caption: Almeida-Graves V. Seaworld Parks & Entertainment Llc
    Docket Number: 4:22cv127
    Court: United States District Court, Virginia Eastern
    Citation: 2024 U.S. Dist. LEXIS 45703
    Order Date: February 20, 2024

  • Rejection of Computer Software Expert Witness’ Interpretation Attempt on Contract

    Rejection of Computer Software Expert Witness’ Interpretation Attempt on Contract

    This is a breach of contract dispute between Paired Pay and ClearObject. Paired Pay alleged that ClearObject breached the parties’ contract because ClearObject purportedly did not provide a “dedicated” team during a particular phase of the project.

    Defendant filed a motion to exclude the report and testimony of Larry E. Daniel, one of Plaintiff’s testifying expert witnesses under Federal Rule of Evidence 702.

    Daniel’s expert report stated that Plaintiff’s counsel asked him to “review documents to determine the meaning of ‘dedicated’ as it applies to the software development process in general and the Paired Pay and ClearObject agreements and to explain the significance of a dedicated team as applied to the contract that is the subject of this litigation.”

    Computer Software Expert Witness

    Lawrence E. “Larry” Daniel has over 40 years of experience in software development, data recovery, computer and server diagnosis and repair, and network administration and cybersecurity. Larry has over 20 years of experience in digital forensics and has amassed thousands of hours of experience in these areas.

    Discussion by the Court

    Computer Software Expert Witness Daniel appeared to have consulted four software companies’ websites and performed research on the definition of a ‘dedicated’ development team based on companies offering such. 

    As a matter of fact, ClearObject provided a clear definition of the word dedicated:

    “Dedicated—Full time, only working on Black Inc. workload. This improves efficiency (eliminated downtime due to context shifting), and also allows for development of a deeper domain knowledge.”

    When Daniel concluded that Defendant did not provide Plaintiff a “dedicated” software development team, it was based solely on an email between the parties.

    Under federal law, experts cannot testify as to conclusions of law, and, as stated by the Court, an interpretation of a contract is a conclusion of law. In Marx & Co. v. Diners’ Club Inc., 550 F.2d 505, 508-09 (2d Cir. 1977), the Court held that expert witnesses cannot provide opinions as to the legal obligations of the parties under a contract.

    Moreover, the Court found that Daniel blatantly attempted to interpret the contract at issue instead of attempting to testify regarding the “custom and usage of an industry.” As a result, Daniel’s conclusion was based entirely on his interpretation of evidence from this very case.

    Held

    The Court granted Defendant’s motion to exclude the report and testimony of Computer Software Expert Witness Larry E. Daniel.

    In conclusion, the Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1. Legal Limitations: Under federal law, expert witnesses cannot testify to conclusions of law. For instance, the Court cited Marx & Co. v. Diners’ Club Inc., emphasizing that expert opinions on contractual obligations are not permissible.
    2. Interpretation vs. Industry Custom: Daniel’s attempt to interpret the contract directly conflicted with the permissible scope of expert testimony, which should focus on the custom and usage of an industry rather than legal interpretations.
    3. Conclusion Basis: Daniel’s conclusion was solely based on his interpretation of evidence from the specific case, instead of broader industry practices or standards.

    Case Details:

    Case Caption: Paired Pay Inc V. Clearobject Inc
    Docket Number: 2:22cv1013
    Court: United States District Court, South Carolina
    Citation: 2024 U.S. Dist. LEXIS 46361
    Order Date: February 1, 2024