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  • Economics Expert Was Allowed to Opine on the Value of Companionship Services

    Economics Expert Was Allowed to Opine on the Value of Companionship Services

    Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.

    Bobst NA filed a motion to exclude the testimony of Plaintiff’s economic expert, Kristin K. Kucsma, M.A.

    Economics Expert Witness

    Kristin K. Kucsma, M.A. has worked extensively on cases involving personal injury, wrongful death, employment law, wrongful incarceration, mass torts, punitive damages and lost profits.

    She spent over 13 years teaching economics at the undergraduate and graduate level at Saint Peter’s College, Rutgers, Seton Hall and Drew Universities. Her areas of expertise include American Economic History, Applied Micro Economic Theory, banking and financial markets and corporate finance. Ms. Kucsma is an active member of the National Association of Forensic Economics and the Eastern Economics Association, a member of the American Economics Association, and a former Member of the District Ethics Committee, Office of Attorney Ethics of the Supreme Court of New Jersey. She earned a B.A., summa cum laude, in Economics from Seton Hall University, an M.A. from Rutgers University, and currently is ABD at Rutgers University.

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

    Discussion by the Court

    A. Reliability

    1. Lost Future Earnings

    Bobst NA argued that Kucsma’s selection of Montgomery’s 2020 earnings as his “projected earnings base” is unsupported and “driven by assumptions supplied by counsel rather than by verifiable employment data.”

    It argued that 2020 was a “marked spike” in earnings because Montgomery worked significant amounts of overtime as a feeder that he never did as a die cutter operator. Bobst NA also highlighted that Kucsma could not state when Montgomery changed roles or how long he was out of work in 2021 during her deposition.

    The Court found that Kucsma’s opinion on Montgomery’s lost future earnings is reliable and may be offered to a jury. She bases it on her significant knowledge, experience, and review of the record, including Montgomery’s paystubs from November 2016 until February 2022, his federal tax documents from 2017 to 2022, and responses to a general “preliminary fact-finding questionnaire.”

    Bobst NA repeatedly contended that Kucsma’s deposition testimony shows that she relied on Plaintiff’s counsel’s representations rather than the objective record. In any event, Bobst NA cited no authority for the proposition that an economics expert may not partially rely on an attorney’s representations.

    Bobst NA also attacked Kucsma’s conclusions as inconsistent with the record. It maintained that the work detail report shows Montgomery worked less overtime as a die cutter operator than as a feeder and only worked as a feeder in 2020. These are not “significant errors” that go to the admissibility of Kucsma’s opinion. They go to its weight.

    Kucsma can rely on Montgomery’s 2020 earnings because that figure is not “substantially higher than his average annual income.” While a jury may find that “an average or median of Montgomery’s earnings over several years is a more sensible approach” to calculate future earnings loss, Kucsma’s use of Montgomery’s last full year of earnings did not render her opinion unreliable for Rule 702 purposes.

    2. Intangible Damages

    Bobst NA argued that Kucsma’s opinions regarding damages for loss of companionship and advice-related services are unreliable and unsupported.

    It maintained that Kucsma provided “no analysis” or peer-reviewed studies showing that parental interaction is economically equivalent to hourly wages for paid companions, social workers, and financial advisors.

    In rendering her opinion, Kucsma relied on certain facts and assumptions about Montgomery, his adult children, and their relationships. There is no indication that Kucsma exaggerated, falsified, or misinterpreted the children’s responses. Indeed, she testified that Montgomery’s children had the opportunity to review the information in her report for its accuracy. Kucsma testified that she followed “the generally accepted method among economists” to attribute a pecuniary value to the intangible losses for which Plaintiff seeks to recover.

    The Court held that Kucsma has “good grounds” for her opinion based on her professional experience as a forensic economist and her testimony that her application of a services-based valuation framework is generally accepted within the relevant professional community.

    B. Fit

    Bobst NA also argued that Kucsma’s intangible damages opinion will not assist the jury, i.e., it does not fit, because it “invades the province of the jury.”

    The Court found that Kucsma’s explanation of the pecuniary value of advice, counsel, and companionship services will be “helpful in providing the jury with guidance and in avoiding the potential for undue speculation.” Specifically, her testimony regarding the hourly rates for companionship and advice-related services will assist the jury in assigning value to Plaintiff’s intangible losses.

    However, testimony concerning the frequency with which Montgomery provided such services is more appropriately elicited from his children themselves. Likewise, Kucsma’s presentation of specific damages calculations—derived from mathematical formulas incorporating the average hours of services rendered—would not assist the jury in assessing Plaintiff’s damages. As such, “there is no need for her expert testimony on these issues.”

    Held

    The Court granted in part and denied in part Bobst NA’s motion to exclude the testimony of Kristin K. Kucsma. Bobst NA’s motion is granted to the extent it sought to exclude Kucsma’s opinions as to the number of hours that Montgomery provided advice, counseling, and companionship services to his children, as well as her calculation of Plaintiff’s damages based on those estimates. Bobst NA’s motion is denied to the extent that it sought to exclude Kucsma’s opinions about Montgomery’s lost future earnings and the pecuniary value of advice, counseling, and companionship services.

    Key Takeaway

    It is within the trial court’s discretion to determine when a Plaintiff’s testimony about the decedent’s services will suffice and when an expert’s further testimony will aid the jury to make a reasonable evaluation of those services. Where such testimony is admitted, it should be followed by a charge that the expert’s opinion is only advisory, and that the jury should make its own determination of the economic value of decedent’s lost services.

    Please refer to the blog previously published about this case:

    Biomechanics Expert Allowed to Opine on the Cause of Death

    Pathology Expert Allowed to Opine on Pain and Suffering

    Case Details:

    Case Caption: Montgomery V. Bobst Mex SA
    Docket Number: 2:24cv367
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: April 30, 2026
  • Economics Expert Allowed to Opine on Constant Inflation 

    Economics Expert Allowed to Opine on Constant Inflation 

    This is a consolidated action for securities fraud brought by Lead Plaintiff Los Angeles County Employees Retirement Association on behalf of a putative class of investors in the Ohio-based electrical utility company FirstEnergy Corporation. Plaintiffs alleged violations of the Securities Exchange Act of 1934 and the Securities Act of 1933 by FirstEnergy, its named officers and directors, and a group of underwriters, in connection with the Ohio House Bill 6 scandal.

    W. Scott Dalrymple was retained as an expert witness on behalf of Plaintiffs, and submitted an expert report in June 2022 analyzing whether FirstEnergy’s common stock traded in an efficient market and addressing whether damages could be calculated using a common methodology. Defendants filed a motion to exclude Dalrymple as an expert.

    Defendants did not challenge Dalrymple’s qualifications, nor did they challenge the reliability of an event study methodology generally. Instead, the issue advanced by Defendants is whether Dalrymple has sufficiently explained how he would or could apply his proposed methodology to the facts as alleged in the Complaint.

    Plaintiffs argued that Dalrymple has reliably applied his proposed technique to the facts of the case and has offered a reasonable view of constant inflation that could, at any rate, rest on assumptions of liability at this stage in the case.

    Economics Expert Witness

    William Scott Dalrymple is an economist and a CFA charter holder with extensive experience in economic, financial, and statistical analyses. During his career, he has worked on issues relating to the analysis of economic damages involving securities litigation, business valuation, structured finance, financial derivatives, antitrust, intellectual property, and breach of contract.

    Moreover, Dalrymple holds a Master of Science in Economics from the London School of Economics and Political Science and a Bachelor of Business Administration in Finance and Business Honors from the University of Texas at Austin. 

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

    Discussion by the Court

    To begin with, Defendants did not contest the testing, peer review and publication, or acceptance of event study methodologies generally; instead, they attempt to undermine the possible accuracy of Dalrymple’s proposed methodology in this particular instance. But Defendants advance this argument by misconstruing Dalrymple’s testimony and recharacterizing Plaintiffs’ theory of the case.

    Plaintiffs have presented a viable, consistent, and classwide approach to damages. Their theory is that Defendants “concealed corrupt conduct,” causing “FirstEnergy’s stock to trade at an inflated price throughout the Class Period” such that “revelations of Defendants’ corruption, beginning in July 202, caused this inflation to dissipate, damaging investors.” Under Plaintiffs’ theory, it may be the case that inflation is constant, or it may be variable. The Court need not reach that argument, or Defendants’ concern about Plaintiffs’ supposedly new criminal enterprise theory. Even if the inflation is time-varying, the fact that a damages model does not account for such variation is not a reason to discount the damages model at this stage.

    In sum, the Court is satisfied by Dalrymple’s testimony that any potential time variation in inflation could be accounted for under his proposed event study (or out-of-pocket) damages methodology. Overall, Defendants’ challenges to the accuracy of Dalrymple’s proposed methodology go to the weight of the evidence, not to its admissibility.

    To the extent that Defendants challenge Dalrymple’s testimony as inconsistent with his earlier expert reports or violative of Rules 26 or 37, neither argument is availing.

    Rule 26 “contemplates that the expert will supplement, elaborate upon, explain and subject himself to cross-examination upon his report.” That is what Dalrymple did, at Defendants’ request.

    Held

    The Court denied the Defendants’ motion to exclude the testimony of W. Scott Dalrymple.

    Key Takeaway

    Experts are permitted wide latitude in their opinions, including those not based on firsthand knowledge, so long as the expert’s opinion has a reliable basis in the knowledge and experience of the discipline.

    Case Details:

    Case Caption: In re Firstenergy Corp. Securities Litigation
    Docket Number: 2:20cv3785
    Court Name: United States District Court for the Southern District of Ohio, Eastern Division
    Order Date: April 30, 2026
  • Pathology Expert Allowed to Opine on Pain and Suffering

    Pathology Expert Allowed to Opine on Pain and Suffering

    Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.

    Bobst NA filed a motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.

    Pathology Expert Witness

    Wayne Kenneth Ross, M.D., P.C. is board-certified by both the National Board of Medical Examiners and the American Board of Pathology in Anatomic and Forensic Pathology. He maintains current medical licensure in
    Pennsylvania and has practiced continuously as a forensic pathologist for over three decades.

    Throughout his career, he has conducted thousands of autopsies and
    death investigations involving traumatic injuries, gunshot wounds, blunt force trauma, and other violent deaths where assessing consciousness and pain perception at the time of injury is critical.

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

    Discussion by the Court

    A. Reliability

    Bobst NA maintained that Ross used unreliable methods to reach his conclusion that Montgomery experienced sixty to ninety seconds of pain and suffering. The Court disagreed.

    Bobst NA sought to exclude Ross’ opinion based on its argument that Ross did not examine scientific literature as required, and instead cherry-picked studies to support his causal connections. It focuses its criticism of Ross’ report on its references to “studies pertaining to strangulation and suffocation events in children, examinations of hangings, and studies detailing the areas of the brain associated with fear response.” Bobst NA explained that Ross did not address “either in his report or his deposition . . . why he believed that studies focusing on children and strangulation were more appropriate in his analysis than studies of adults and traumatic compression asphyxia injuries.”

    While it is a close call, upon review, Ross’ opinion is not based only on “subjective belief or unsupported speculation.” While Bobst NA may disagree with the methods he used to reach his conclusions—formulating a hypothesis, analyzing available evidence and literature, and applying the principles of neuropathology—the methods used are enough to provide “good grounds” for his opinions under Rule 702.

    B. Fit

    Bobst NA also contended that Ross’ opinions did not “fit” the facts of this case, arguing that they “will not assist a jury” and “would only serve to cause confusion and misunderstanding.”

    Plaintiff has shown that Ross’ opinions fit the case because they have a nexus to and will assist the jury with the questions that jurors will be required to consider when determining whether Plaintiff can recover for survival.

    Held

    The Court denied Bobst NA’s motion to exclude the testimony of Plaintiff’s expert Wayne Ross, M.D., P.C.

    Key Takeaway

    When determining whether to admit expert testimony or not, the test “is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct.” Any gap between Ross’ opinion and the information underlying it must be “extreme” and “clear” for it to be excluded as unreliable.

    Please refer to the blog previously published about this case:

    Biomechanics Expert Allowed to Opine on the Cause of Death

    Case Details:

    Case Caption: Montgomery V. Bobst Mex SA
    Docket Number: 2:24cv367
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: April 30, 2026
  • Microbiology Expert Not Allowed to Opine on Performance Ratings

    Microbiology Expert Not Allowed to Opine on Performance Ratings

    This action arises from Jennifer Hailes’ claim of retaliation for prior EEO protected activity under Title VII of the Civil Rights Act of 1964. Hailes challenged the administrative grant of summary judgment in favor of the VA in EEOC Case No. 532-2023-00016X for Hailes’ claims of retaliation for protected activity in the form of a “fully successful” performance rating for Fiscal Year 2021 and an admonishment by her supervisor on January 4, 2022.

    Defendant Secretary of the Department of Veterans Affairs filed a motion to exclude two expert reports of Tracie Ellis-Reid and Steven N. Emancipator offered by Plaintiff Jennifer Hailes.

    Microbiology Expert Witness

    Tracie Ellis-Reid is a board-certified medical technologist in the discipline of microbiology. She worked for over 30 years in Pathology & Laboratory Medicine Services at the Department of Veterans Affairs.

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

    Pathology Expert Witness

    Steven N. Emancipator is Board-certified in anatomic and clinical pathology and in immunopathology. He currently consults with clinical and research laboratories and with principal investigators.

    Previously, with the College of American Pathologists, Emancipator served on the Council on Accreditation, as a state commissioner, a master laboratory inspector, and as director of a clinical laboratory certified by the College. For 35 years, he served as a professor of pathology as Case Western Reserve University and for the last nine years he has been an emeritus professor. From 2006 through 2017, he was chief of Pathology & Laboratory Medicine Service, at the Veterans Affairs hospital in Cleveland.

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

    Discussion by the Court

    1. Tracie Ellis-Reid

    Until 2020, Ellis-Reid was Hailes’ supervisor and the person who prepared her performance evaluations. Ellis-Reid proposed to testify about Hailes’ “annual performance rating” for fiscal year 2021.

    Indeed, Ellis-Reid’s report is composed of an element-by-element critique of Hailes 2021 performance review, with an assessment of exhibits used to support the review, and a comparison with a co-worker.

    Ellis-Reid proposed to determine, with reference to certain agency documents, whether the Secretary “violated laws and regulations regarding patient safety, the Plaintiff’s Title VII right, and adverse disciplinary action (post-protected activity reprisal) in the form of the lowering of the Plaintiffs FY21 annual performance rating.” There are a few problems with this proposal, starting with the fact that Ellis-Reid doesn’t claim to be a legal professional. So she’s not in a position to offer an opinion about whether anyone unlawfully retaliated against Hailes. But even if she were, it’s the Court’s job to determine what the law is and it’s the jury’s job to determine whether a violation occurred.

    Even putting these concerns aside, the fact that a witness might qualify as an expert does not, as a result of that expertise, mean that her opinion is admissible. The expert’s opinion must still otherwise be helpful to the trier of fact.

    The Secretary conceded that—even though Hailes offered Ellis-Reid as a non-scientific expert in agency performance evaluations—Ellis-Reid’s opinions in “the laboratory specimen testing portions” of Ellis-Reid’s report are admissible.

    The remaining three sections of Ellis-Reid’s report discuss Hailes’ performance in customer service, safety, and education and employee development. By comparing Hailes’ performance to the criteria set out in collective bargaining agreement provisions and Veterans Affairs policies and procedures, Ellis-Reid concluded that she disagreed with the overall ratings that Hailes received in these areas. But as the Secretary pointed out, an expert isn’t required to say whether Hailes’ ratings in these areas were appropriate.

    2. Steven N. Emancipator

    Emancipator proposed to review acts of Congress, provisions of the Code of Federal Regulations, certain accreditation standards, and the Department of Veterans Affairs Labor Management Relations master agreement.

    For starters, Emancipator’s stated objective is to make sure that Hailes meets her burden of proof, “establish undeniable facts” that Hailes “received unlawful, improper, or conflicting orders,’ and “prove” certain other matters. In other words, Emancipator proposed to offer an “advocacy-based interpretation” rather than one based on his expertise.

    Emancipator said that “expert review of Microsoft Outlook email correspondences of the Plaintiff and P&LMS management officials is necessary to show that notifications of unlawful, improper, and/or conflicting orders from the Plaintiff went unanswered and unresolved, which is an imminent threat to patient care and safety.” But the jury doesn’t need an expert to say whether emails went unanswered and unresolved, so testimony on this issue wouldn’t be helpful.

    Emancipator also said that his consideration and opinion about evidence supplied to him is “necessary to determine if the Agency violated laws and regulations regarding patient safety, and regarding the Plaintiff’s right to refuse such orders that would require the Plaintiff to violate applicable laws, that led to a lower performance rating of bench work and records & reporting for the Plaintiff’s 2020 fiscal year annual performance rating.”

    The Court found that Emancipator did not discuss the evidence in this case that he used to base his opinion. He’s basing his conclusion on “the best of his recollection and understanding” as the VA Medical Center Director, a position which, according to his resume, he last held in 2017.

    Nevertheless, the portion of Emancipator’s report that details the duties of a lab director is helpful and relevant.

    Held

    The Court granted in part and denied in part the Secretary’s motion to exclude the reports of Tracie Ellis-Reid and Steven Emancipator.

    It should be noted that Emancipator and Ellis-Reid neglected to state all the cases in which they had testified as experts in the last four years, and their reports did not state their compensation “for their study and testimony in this case.” If Hailes wishes to rely on Ellis-Reid’s and Emancipator’s opinions about laboratory testing and laboratory director duties, respectively, she must provide to the Secretary supplemental reports from Ellis-Reid and Dr. Emancipator with the information required by Rule 26.

    Key Takeaway

    There is a “subtle” but “nonetheless important” distinction between “opining on the ultimate question of liability” — which is impermissible — and “stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue” — which is permissible.

    Case Details:

    Case Caption: Hailes V. Secretary of Department of Veterans Affairs
    Docket Number: 1:24cv293
    Court Name: United States District Court for the Northern District of Ohio, Eastern Division
    Order Date: April 30, 2026
  • Equipment Financing Expert Allowed to Opine on Custom and Practice

    Equipment Financing Expert Allowed to Opine on Custom and Practice

    Plaintiffs, Equipment Leasing Group of America LLC (ELGA) and CIBM Bank (CIBM), brought suit against Defendants Pure Midstream, LLC; Pure Aviation, LLC (WY); Pure Aviation, LLC (MT); Pure Aviation AP, LLC; and Carlo Domenic DiMarco, for an alleged breach of an Aircraft Financing Agreement (the AFA) and an Amended AFA.

    Plaintiffs called Bob Rinaldi as an expert on industry standards in the field of equipment financing and leasing.

    Defendants objected during trial to the relevance of his testimony to the ultimate legal question of whether the AFA’s “absolute and unconditional” clause requires payment of the entire balance.

    Equipment Financing Expert Witness

    Bob Rinaldi began his career in the equipment finance and leasing industry in or about 1984. In 2018, he founded Rinaldi Advisory Services. He has also been a member of and held various leadership positions in industry trade groups, including Equipment Leasing and Financing Association (ELFA) and National Equipment Finance Association (NEFA).

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

    Discussion by the Court

    Rinaldi testified that in the equipment leasing and financing industry, the term “absolute and unconditional” means, “essentially, your payments must be made no matter what.” He added that a contract provision “requiring the unconditional, the absolute and unconditional payment of the entire lease term” is “not only standard, it’s a requirement” in the equipment leasing and financing industry, because “the capital markets wouldn’t exist to finance these types of transactions if that didn’t exist.”

    The Court did not rely on Rinaldi’s testimony to the extent he offered any opinion about what the AFA says or how it should be construed. But the Court may, to the extent that it reaches parol evidence, consider Rinaldi’s opinion that “absolute and unconditional” clauses are, in fact, customary in the equipment leasing and financing industry, and his opinion about how such terms are commonly understood.

    Held

    In sum, the Court overruled Defendants’ objection to Bob Rinaldi’s testimony.

    Key Takeaway

    While an expert is not permitted to offer his opinion on how, as a matter of law, a contract should be construed, it should be noted that expert testimony may be allowed when it addresses custom and practice in a particular trade as it relates to a contract dispute.

    Case Details:

    Case Caption: Equipment Leasing Group Of America LLC V. Pure Midstream
    Docket Number: 1:23cv16099
    Court Name: United States District Court, Illinois Northern
    Order Date: May 01, 2026
  • Biomechanics Expert Allowed to Opine on the Cause of Death

    Biomechanics Expert Allowed to Opine on the Cause of Death

    Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.

    Plaintiff sought to exclude the opinions of Bobst NA’s expert Alfred P. Bowles II, M.D.

    Biomechanics Expert Witness

    Alfred Palmer Bowles II, M.D. has a Bachelor of Science in mechanical engineering and is a Doctor of Medicine who was a licensed physician for over twenty-five years in the fields of general medicine and general surgery. He served in the United States Air Force Reserve for twenty-one years as a credentialed general surgeon and flight surgeon. He is also an accredited traffic accident reconstructionist. Bowles received post-graduate education in trauma medicine, accident reconstruction, and biomechanics applied to the investigation of impact trauma.

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

    Discussion by the Court

    Plaintiff contended that Bowles is not sufficiently qualified to offer his opinions regarding cause and manner of death and the duration of conscious pain and suffering because he is primarily a biomechanics expert and not a forensic pathologist.

    As Bobst NA explained, Bowles has over twenty-four years of experience in the fields of general surgery, general medicine, and emergency medicine. Bowles also testified that he has previously provided professional expert opinions in litigation matters regarding the duration of conscious pain and suffering.

    He testified that “the duration of conscious activity . . . is where my work starts and ends, with the understanding that once your conscious activity has ended, then you’re no longer able to perceive or process . . . the thoughts or the feelings of . . . pain.” He explained that in the cases that he has worked on, “usually there is some allegation that relates to something or a concept that is like pain or suffering.”

    Given his experience and training, the Court found that Bowles satisfied the liberal standards for expert qualification even if he is not the most qualified expert to opine on the subjects at issue.

    Held

    The Court denied the Plaintiff’s motion to exclude the opinions of Defendant Bobst North America, Inc.’s expert Alfred Bowles.

    Key Takeaway

    A medical degree is not a prerequisite for qualification as an expert capable of testifying regarding the cause of a person’s injuries. In other words, an expert need not possess a particular medical specialty to testify regarding the cause of Montgomery’s death or the duration of any conscious pain and suffering he may have experienced.

    Case Details:

    Case Caption: Montgomery V. Bobst Mex SA
    Docket Number: 2:24cv367
    Court Name: United States District Court, Pennsylvania Eastern
    Order Date: May 01, 2026
  • Appraisal Expert Allowed to Opine on Just Compensation

    Appraisal Expert Allowed to Opine on Just Compensation

    This case concerns an alleged taking of nearly eighteen acres of real property within the bounds of the Lafitte Area Independent Levee District  (“LAILD”) in Jefferson Parish, Louisiana.

    CMP owns property within the boundaries of the LAILD in Jefferson Parish. As part of the Rosethorne Basin Lafitte Tidal Protection Levee Project, LAILD entered CMP’s property on or about May 27, 2024, to raise the height of an existing levee. Nearly three months later, on August 22, 2024, LAILD passed Resolution 495, which provided for the appropriation of the portion of CMP’s land containing the levee. CMP filed the suit against LAILD for failure to pay just compensation for a taking under the Louisiana Constitution.

    Throughout the course of the underlying suit, CMP hired three experts, Baldwin R. Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry to assist in calculating the value of its land occupied by LAILD. LAILD sought to exclude, or alternatively limit, the testimony of CMP’s expert witnesses.

    Arborist Expert Witnesses 

    Frederick Joseph Fellner, Ph.D.  worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager.  In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.” 

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

    Dr. Malcolm M. Guidry is a consulting arborist with more than 30 years of experience in arboriculture, urban forestry, tree risk assessment, and forensic tree investigations. He has provided expert consulting services since 1991 in matters involving tree appraisal, tree health diagnosis, construction-related tree impacts, and urban forest management.

    He is licensed as a consulting arborist in both Louisiana and Mississippi and is affiliated with professional organizations including the American Society of Consulting Arborists and the International Society of Arboriculture.

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

    Appraisal And Valuation Expert Witness

    Baldwin R. Justice is a general certified real estate appraiser in Louisiana, Mississippi, Texas, Florida and Alabama, and he has extensive experience in the appraisal of nearly all property types in markets across our entire geographic coverage area. He has also been awarded the prestigious the MAI designation by the Appraisal Institute®. Finally, Justice has been qualified as an expert witness in the field of real estate appraisal and provided testimony in numerous local, state, federal, and Unites States Tax courts throughout the region.

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

    Discussion by the Court

    LAILD did not challenge the qualifications of Justice, Fellner, or Guidry, nor did it argue that their expert reports are the products of unreliable methodology or principles. Instead, LAILD contended that the expert reports of Justice, Fellner, and Guidry are irrelevant because they applied an improper method of valuation and/or compensation.

    Here, the Court found that the expert report of Justice, along with Fellner and Guidry’s joint report, are relevant to the issue of damages. All three experts opine on the valuation of the land taken by LAILD, and their reports will assist the jury in understanding the appropriate amount of compensation, if any, owed to CMP. Moreover, the Court found that the testimony based on the expert reports did not present a danger of unfair prejudice, will not confuse the issues, or mislead the jury.

    The Court has found that LAILD engaged in an unconstitutional partial taking of CMP’s property and determined that CMP is entitled to recover damages pursuant to the theory of inverse condemnation under Louisiana law. Specifically, the Court reasoned that CMP would be entitled to present evidence relating to the “highest and best use” of the taken property, severance damages, and fair market value of the property.

    In sum, the Court’s determination as to the legal standard for any damages undercuts LAILD’s argument, as such evidence is relevant for the jury in deciding the factual determination of damages. Because CMP’s expert reports enumerate damages consistent with those categories, the Court declined to exclude the testimony of the experts as to their expert reports under Rule 403. Importantly, to the extent that any portion of the reports are inconsistent with the Court’s legal determination of appropriate damages for a partial taking, the experts will be precluded from testifying as to those inconsistent parts of the reports.

    Held

    The Court denied LAILD’s motion to exclude, or alternatively limit, the testimony of CMP’s expert witnesses, Baldwin Justice, Dr. Fred Fellner, and Dr. Malcolm Guidry.

    Key Takeaway

    Even if evidence satisfies the requirements of Rule 702, other evidentiary rules, such as Rule 403, may still operate to exclude the evidence.

    Case Details:

    Case Caption: CMP, L.L.C. V Board Of Commissioners For The Lafitte Area Independent Levee District
    Docket Number: 2:24cv2298
    Court Name: United States District Court for the Eastern District of Louisiana
    Order Date: January 22, 2026
  • Law Enforcement Expert Allowed to Opine on Massage Business Inspections

    Law Enforcement Expert Allowed to Opine on Massage Business Inspections

    Plaintiff Dai Trang Thi Nguyen brought this action against Defendant City of San Jose and Individual Supervisor Defendants Joseph Hatfield and Rachel Roberts alleging that a former City Code Inspector William Gerry sexually assaulted and extorted Plaintiff during his code enforcement inspections of her massage business, and Defendants allowed Gerry’s conduct to occur in deliberate indifference to her rights to due process and equal protection.

    It is undisputed that former City Code Inspector Gerry repeatedly raped and extorted Plaintiff while inspecting her massage business in 2019.

    Defendants filed a motion to exclude the testimony of Officer Antonio Flores and Leonard Powell pursuant to Federal Rule of Evidence 702 while Plaintiff filed a motion to exclude the testimony of Dr. John M. Greene under Federal Rule of Civil Procedure 26.

    Law Enforcement Expert Witnesses

    Antonio “Tony” Flores has been a police officer with the San Francisco Police Department (“SFPD”) since 1982. During his career, Flores has conducted and supervised “several hundred” massage business inspections, often as many as fifty to sixty per year.

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

    Leonard Powell served as the Code Enforcement Manager, Zoning Administrator, and Deputy Building Official for Dangerous Building Enforcement for the City of Fremont from 2001 to 2020, where he supervised officers enforcing zoning, housing, sanitation, and building codes.

    As part of this role, he developed processes and managed investigations in massage business regulation and enforcement, trained and supervised officers, and implemented ethics and accountability systems.

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

    Psychiatry Expert Witness

    Dr. John M. Greene is board certified in both General and Forensic Psychiatry. He began practicing in the San Francisco Bay Area in 1997. He became a member of Stanford University’s Adjunct Clinical Faculty in 2005, and currently teaches topics on psychiatry and the law to the residents in the Department of Psychiatry at Stanford.

    With extensive training and expertise, Greene is regularly relied upon to provide expert testimony in civil and criminal cases regarding mental illness.

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

    Discussion by the Court

    Leonard Powell

    a. Helping the Jury Decide the Case

    Defendants argued that Powell’s testimony will not help the jury decide whether the City was deliberately indifferent. Powell’s report identified several “best practices” in the code enforcement industry that San Jose was not implementing at the time of Plaintiff’s injury, including: using partner systems for inspections; random supervisory audits; rotation of inspectors across industries; direct supervisory contact with regulated businesses; and formal post-action debriefs. However, during his deposition, Powell testified that he does not believe code inspectors are “likely” to extort or sexually assault people absent those “best practices.”

    The Court found that this did not disqualify Powell from testifying as an expert in this case. Although Powell declined to use the word “likely” in his deposition, he also testified there is “a high probability” that lone male enforcement officers would commit sexual assault and corruption, and that lone code enforcement officers going into massage businesses is an outdated practice because “there is a high probability” that something may go wrong.

    b. Reliability

    Defendants argued that Powell’s opinions are narrowly based on his experience in the City of Fremont and the City of San Rafael, which is insufficient to opine on industry-wide practices.

    The Court found Defendants’ arguments unpersuasive. Defendants’ assertion that Powell’s experience is limited only to Fremont and San Rafael is taken out of context and contradicted by his documented experience. As author of the California Code Enforcement Officer Standards Act and CACEO guidelines, Powell drafted California legislation and regulations that established statewide training and ethical standards for code enforcement officers, and he implemented these standards in Fremont. When asked about which other jurisdictions have implemented these standards, he listed San Rafael as one of the “other Bay Area cities” with similar practices.

    As for his reliance on external written documents, this is not necessary for Rule 702 purposes.

    Powell served as a code inspector supervisor for nearly two decades and authored the California legislation and regulation that established statewide training and ethical standards. In his report and his deposition, he has sufficiently explained how this experience formed his opinions on best practices in this industry, and he relied on that experience to opine on the facts of this case.

    c. Common Sense

    Finally, Defendants argued that Powell’s opinions on code inspector supervision amount only to “common sense,” not the opinion of an expert.

    Defendants also highlighted Powell’s testimony that his reassignment protocols are not specific to code enforcement, but rather are “kind of everywhere in life,” such as in consumer transactions: “If one person has a conflict with somebody else in a commercial setting, the general approach is, ‘Can I talk to somebody else?’”

    But, as Plaintiff highlights, Defendants’ excerpts of Powell’s deposition are taken out of context. For example, the phrase “common sense supervisory assessment” was counsel’s, not Powell’s.

    And before discussing his general observations of re-assignments in commercial settings, Powell testified that his knowledge of re-assignment practices for code enforcement inspectors was based on his experience in the code enforcement field.

    Upon reviewing the whole record, the Court found that Powell sufficiently used his expertise in the code enforcement industry, rather than common sense available to any lay person, to provide his opinions.

    Antonio Flores

    a. Expertise

    Defendants first argued that Flores lacked the code enforcement expertise necessary to offer opinions about the industry because he is a police officer, not a code enforcement inspector.

    The Court found that, despite his role as a police officer, Flores possessed the expertise required under Rule 702 to testify on code enforcement practices in massage businesses. Though Flores has never been a code inspector, Flores has worked extensively with code enforcement inspectors in his “several hundred” massage business inspections. Flores also testified that he has seen code inspectors operate with enforcement powers akin to those of police officers, particularly in the eyes of certain vulnerable communities including illicit massage business employees, such that the distinction between police officer and code enforcement investigator may be immaterial in this context.

    b. Reliability

    Next, Defendants argued that Flores lacked reliable support for his opinion that sexual assault or extortion is the likely outcome of a solo male code inspector working in massage businesses.

    Defendants contended that Flores testified he was not aware of any other instance in his experience in which a code enforcement inspector assaulted or extorted a massage business worker; he is not aware of any standards applicable to supervising code inspectors; he is not aware of any jurisdiction that actually supervises code enforcement inspectors the way he opines they should be supervised; and he could not point to any written standards that suggest re-assigning an employee about whom a complaint has been made.

    Analysis

    First, whether similar conduct has occurred in the past is not necessarily relevant to the theory of Plaintiff’s case—that the risks of exploitation were so obvious and well-known in the industry that the City did not need a pattern of similar instances to be on constructive notice.

    Second, Flores’s lack of experience in code enforcement supervision could foreseeably render some opinions on code enforcement inadmissible, but it does not render his entire testimony unreliable. Flores still sufficiently explained how he formed his opinions on code enforcement best practices based on his observations, trainings, and teachings conducted over forty-three years in the SFPD overseeing code enforcement inspections in massage businesses—including observations of employees vulnerable to exploitation, power dynamics, intimate spaces, and code enforcement investigators’ use of police powers.

    Third, as the Court noted above, written standards on re-assigning code inspectors after receiving complaints is unnecessary to forming a reliable opinion. The Court found that Flores may rely “solely or primarily on experience” because he has sufficiently explained how his experiences have led to his conclusions on code enforcement best practices in massage businesses, why that experience is a sufficient basis for his opinions, and how his experience is reliably applied to the facts of this case.

    c. Common Sense

    Finally, Defendants also argued that Flores’ opinions are no more than “common sense.” But upon review of the cited potions of Flores’ testimony, it appeared that Flores’ use of “common sense” referred to “common sense” among industry professionals.

    Upon reviewing Flores’s report and testimony in its entirety, the Court is satisfied that his opinions are based on his relevant experience, including experience conducting massage business inspections, rather than on the common sense available to any lay person.

    Accordingly, the Court also found that Flores is qualified as an expert by his knowledge, skill, experience, training, and education in the field of massage business inspections.

    John Greene

    Unlike Powell and Flores, Plaintiff did not challenge the admissibility of Greene’s opinions under Rule 702.

    Defendants first disclosed Greene during fact discovery on August 19, 2025, as the person who would conduct a psychiatric independent medical examination (“IME”) on Plaintiff. Plaintiff argued that Greene’s opinion must be excluded because Greene is not a “rebuttal” expert, but rather an initial expert, and he should have been disclosed as such prior to the deadline for initial expert disclosure on September 22, 2025.

    The Court agreed with Plaintiff that the timing of the IME and Greene’s report was unusual. However, Plaintiff has not provided any authority prohibiting the use of prior findings to rebut the opinion of an initial expert during trial. So long as Greene’s testimony only uses his IME findings to narrowly contradict or rebut the initial expert’s opinions on the same subject matter, the Court sees no reason for exclusion.

    Held

    • The Court denied the Defendants’ motion to exclude the testimony of Antonio Flores and Leonard Powell.
    • The Court also denied the Plaintiff’s motion to exclude the testimony of John Greene.

    Key Takeaway

    So long as the witness “explains how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts,” than the witness may rely “solely or primarily on experience.”

    Case Details:

    Case Caption: Dai Trang Thi Nguyen V. City of San Jose
    Docket Number: 5:21cv92
    Court Name: United States District Court, California Northern
    Order Date: January 22, 2026
  • Construction Expert’s Building Budget Report Excluded

    Construction Expert’s Building Budget Report Excluded

    Plaintiffs’ home was damaged by a fire on June 21, 2021. At the time of the fire, Plaintiffs had an insurance policy with State Farm.

    Plaintiffs alleged that Defendant State Farm failed to abide by the policy which allowed, at the insureds’ option, to either have the damage repaired or pay for the damage. Plaintiffs alleged that State Farm, without their consent issued payments to Plaintiffs and the mortgage holder rather than allowing Plaintiffs to decide whether to accept payment for the damage or repair the property.

    Defendant sought to exclude the testimony of Pete Hennessey, Plaintiffs’ expert witness pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, arguing that Hennessey’s report is insufficient.

    Construction Expert Witness

    Peter Hennessey has been building homes for over 25 years. He has personally built over three hundred residential homes and is one of the most respected home builders in the industry. 

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

    Discussion by the Court

    Hennessey stated that it is his opinion that it would be too risky and too expensive for the type of home to be rebuilt, to put it on top of the then existing foundation after the fire, which was not engineered to current standards.

    The basis of the facts or data considered by Hennessey included an examination of the site, obtaining estimates from subcontractors and preparing a detailed building budget report, which he set out in an exhibit attached to his report.

    However, the Court found that Hennessey’s report is entirely inadequate under Rule 26 standards. The most critical requirements of the Rule–the basis and reasons for the expert’s opinions and the data or other information considered–are totally lacking. 

    In other words, the mere submission of subcontractor estimates told Defendant nothing about the substance of Hennessey’s calculation of the damages and estimated repair costs and left it open to unfair surprise.

    Although the surprise and prejudice could be cured by taking Hennessey’s deposition, the Court declined to require this of Defendant because doing so would shift the burden of disclosure onto Defendant whereas this burden is placed squarely on Plaintiffs by the Rule. Plaintiffs elected to designate Hennessey as an expert who may be used to provide evidence under Federal Rule of Evidence 702, 703 or 705, and then failed to provide the requisite information required by Rule 26(a)(2)(B).

    However, Plaintiffs were granted additional time to comply with Rule 26(a)(2)(B) by submitting an expert report prepared and signed by Hennessey in accordance with the requirements of the Rule, if they wished to offer Hennessey as an expert witness.

    Held

    The Court granted Defendant’s motion to strike the testimony of Pete Hennessey.

    Key Takeaway

    Plaintiffs have offered nothing to establish that the failure to comply with Rule 26(a)(2)(B) was substantially justified. The surprise and prejudice to Defendant as a result of the failure are significant and have not been cured to date through supplementation or otherwise.

    Case Details:

    Case Caption: Kossmeyer V. State Farm Fire And Casualty Company
    Docket Number: 4:23cv1397
    Court Name: United States District Court, Missouri Eastern
    Order Date: April 30, 2026
  • Safety Expert Was Not Allowed to Opine on the Display Shelf

    Safety Expert Was Not Allowed to Opine on the Display Shelf

    Linda Jackson sustained a fall injury while visiting an ALDI store in Kansas City after getting her foot caught in a display with an unprotected opening at floor level.

    Defendant filed a motion to exclude the testimony of Plaintiff’s expert, Kristen Cooper VanWieren.

    Safety Expert Witness

    Kristen Cooper VanWieren is a certified safety professional and her specialty is safety programs and risk management with a focus on retail settings. She has expertise in developing and executing safety programs in a wide variety of business sizes and types, as well as several years of experience with injury and general liability insurance claims.

    Want to know more about the challenges Kristen Cooper VanWieren has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Defendant stated that VanWieren’s opinions should be excluded because: (1) the opinions were directed to matters for which expert testimony was unnecessary and inappropriate; and (2) VanWieren’s opinions were not relevant to the issues in the case.

    Defendant argued that VanWieren’s opinion regarding whether the display shelf constituted a dangerous condition would not assist the jury because the subject did not require specialized skill or expertise and was based solely on VanWieren’s review of video footage of the incident and photographs of the alleged hazardous condition, without the use of any specialized techniques or methodology.

    The Court found that the three opinions VanWieren sought to offer in this case—(1) the hazard was consistent with one that would cause Plaintiff’s fall; (2) ALDI failed to implement, execute, and enforce the type of fall-prevention procedures expected of it; and (3) ALDI failed to warn or protect patrons from the hazard—did not satisfy Rule 702’s helpfulness requirement.

    In this case, the jury could review the store’s video footage showing the endcap and documenting how Plaintiff tripped and fell, just as VanWieren did, and determine for itself whether the endcap constituted a hazard and whether it was consistent with or caused Plaintiff’s fall. The jury could also determine from the video footage whether ALDI failed to warn or protect its patrons from the shelving unit.

    Held

    The Court granted Defendant’s motion to exclude the opinions of Kristen Cooper VanWieren.

    Key Takeaway

    Because expert testimony must be helpful to the jury, courts must guard against invading the province of the jury on a question which the jury is entirely capable of answering without the benefit of expert opinion.

    Case Details:

    Case Caption: Jackson V. Aldi, Inc.
    Docket Number: 4:24cv473
    Court Name: United States District Court, Missouri Western
    Order Date: February 02, 2026