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  • Infectious Disease Expert Witness Testimony on “Regulatory Approval of HIV Rapid Test to Screen Blood Donors” Excluded 

    Infectious Disease Expert Witness Testimony on “Regulatory Approval of HIV Rapid Test to Screen Blood Donors” Excluded 

    Mariette Waters was on a cruise ship when she had a medical emergency necessitating a blood transfusion. Since the cruise ship operator did not store blood on the vessel for transfusions, it began to solicit passengers to donate blood via the public announcement system. The cruise operator then screened the potential donors, their donated blood, and administered the transfusion. Waters later sued the cruise ship operator, alleging that during this process, it administered a transfusion with HIV infected blood.

    Waters alleged three counts of negligence:

    • medical negligence (Count I);
    • vicarious liability for medical negligence based on actual agency (Count II); and
    • vicarious liability for medical negligence based upon apparent agency (Count III)

    The Defendant retained Jeffrey Klausner, an infectious disease expert witness to testify in this case. One of the issues that Klausner sought to opine was the use of a particular testing kit by the Defendant — the MedMira Multiplo HBc/HIV/HCV test – and its approval status by regulatory authorities in different jurisdictions.

    Note: MedMira is not a party to this litigation.

    Waters moved to exclude testimony and opinions from Defendant’s HIV expert, Jeffrey Klausner, specifically, statements asserting approval of the MedMira Multiplo HBc/HIV/HCV test by any regulatory body in any country in the world. Additionally, Plaintiff sought to preclude Klausner from referring to a separate study he had conducted in Peru, involving a different HIV rapid test, in order to assess the sensitivity or reliability of the test used by the Defendant in this case.

    Infectious Disease Expert Witness

    Dr. Jeffrey D. Klausner, M.D., M.P.H., the subject matter expert in HIV at the U.S. Centers for Disease Control and World Health Organization, holds certification in Infectious Disease and Internal Medicine. He graduated with Honors from Cornell University Medical College and has a Master of Public Health in International Health and Infectious Disease Epidemiology from the Harvard School of Public Health. He has two professorships at the Keck School of Medicine, University of Southern California, and prior at the David Geffen School of Medicine and Public Health at the University of California Los Angeles. Klausner has authored over 650 peer-reviewed research papers on infectious diseases, with a particular focus on HIV/AIDS.

    Discussion by the Court

    Plaintiff claimed that during testimony, Klausner stated his belief that the specific model of HIV rapid test used by the Defendant, the MedMira Multiple HBc/HIV/HCV test (“Subject Test”), possessed regulatory approval in Canada and the European Union through the respective regulatory bodies. With regard to the European Union approval, Klausner initially thought he saw the relevant marking on the Subject Test box, but when presented with the box during deposition, the marking was absent. Klausner then conceded that he believed in European Union approval of the Subject Test, but had no knowledge or opinion on the matter. Regarding regulatory approval in Canada, Klausner testified that he thought he saw documents indicating approval by Health Canada, the regulatory body for Canada for the Subject Test. However, when questioned about providing any basis, data, document, or evidence for this approval, Klausner replied in the negative.

    Plaintiff contended that, according to Daubert, an expert is obligated to have a “sufficient basis” for their testimonial evidence. Plaintiff argued that the expert had no basis, leading to the request for the preclusion of his testimony on this particular topic during the trial.

    The Defendant countered by stating that Klausner had no intention of expressing an opinion about regulatory approval for the Subject Test. However, the Defendant requested the Court to allow Klausner to testify that the Subject Test shares a common underlying technology with another product from the same manufacturer, MedMira. Notably, the mentioned product does possess some degree of FDA approval.

    The Court, after reviewing the record, including the deposition, concluded that there is sufficient support for precluding Klausner’s testimony regarding any regulatory approval that the Subject Test has or does not have from any country worldwide. Consequently, Plaintiff’s first motion was granted.

    Plaintiff contended that Klausner’s opinions, derived from the Peru Study, lacked reliability and utility under Daubert, as there was no justification for imputing the study’s findings to the Subject Test. The Plaintiff argued that the tests were substantially different, with the Peru Study involving the MedMira Multiplo TP/HIV rapid test (“Multiplo”) that screens for HIV and syphilis. In contrast, the Subject Test, used aboard Defendant’s vessel and in its medical center, tests for HIV, Hepatitis B, and Hepatitis C. Despite Klausner acknowledging that Multiplo was not used by the Defendant, he expressed an expectation of similarity due to both tests being manufactured by the same company. Plaintiff asserted that such an insufficient basis for an expert opinion could mislead the jury, characterizing the testimony as lacking data, unreliable principles, and unreliable application of principles to the case’s facts.

    To support the argument, the Plaintiff referenced the case Pessman v. Trek Bicycle Corp., 3:18-cv-50243 (N.D. Ill. Dec. 6, 2021). In Pessman, an expert’s testimony was excluded under Daubert for attempting to impute the defects of one bicycle model to a different model produced by the same manufacturer. The Court in Pessman emphasized that the expert had not sufficiently explained the scientific methodology behind his conclusion and stressed the necessity for expert opinions to be backed by “appropriate validation.”

    In response, the Defendant with a review of Klausner’s qualifications, emphasizing that the Plaintiff had overlooked this aspect of the analysis. Klausner, a distinguished expert, graduated with Honors from Cornell Medical School and earned a Master of Public Health in International Health and Infectious Disease Epidemiology from the Harvard School of Public Health. Holding two professorships at the Keck School of Medicine, University of Southern California, Klausner served as the subject matter expert in HIV at both the U.S. Centers for Disease Control and the World Health Organization. His extensive expertise is further highlighted by his authorship of over 650 peer-reviewed research papers on infectious diseases, specifically focusing on HIV/AIDS. The Defendant contended that these qualifications affirm Klausner’s expertise and qualify him to opine on the subject matter.

    In Klausner’s expert report, he expressed the opinion that the Multiplo test utilized in the Peru Study showcased “excellent performance in detecting HIV antibodies.” The Defendant argued that the Multiplo Test, manufactured by MedMira, a Canadian biotechnology company, is similar to the Subject Test as both are rapid tests designed to detect HIV antibodies. Emphasizing that MedMira holds the patent on Rapid Vertical Flow Technology (“RVF”), the Defendant highlighted that MedMira produces various healthcare products for the rapid testing of infectious diseases, such as HIV, hepatitis, and syphilis. RVF serves as the “core engine” for MedMira’s rapid testing solutions, encompassing the Subject Test, the Multiplo Test used in the Peru Study, and the MedMira Reveal G2 Rapid HIV-1 Antibody Test (“Reveal Test”). Notably, the Reveal Test obtained FDA approval on June 23, 2004. The Defendant contended that the shared RVF technology establishes a sufficient connection, indicating that regulatory approvals or field studies related to Multiplo or Reveal are pertinent and adequate to demonstrate the performance of other MedMira HIV rapid antibody tests, including the Subject Test.

    The Defendant argued that Klausner’s various opinions supported the conclusion that different MedMira tests, including the Subject Test, share similarities. Klausner testified that MedMira products utilize the same HIV antibody detection technology, specifically the RVF technology, which had received FDA approval. Furthermore, Klausner stated that within the MedMira portfolio of tests, there would be an increased similarity between antigens used and the mechanisms of antibody detection. He also noted that there would be greater similarity between MedMira’s manufactured HIV antibody tests than there would be between different manufacturers’ products. These statements were presented by the Defendant as evidence supporting the contention that the various MedMira rapid tests, including the Subject Test, exhibit similarities.

    The Defendant further argued that Plaintiff’s HIV expert lacked a basis to challenge the assertion that the RVF technology, approved by the FDA for testing HIV antibodies in the Reveal Test, is identical to the technology employed in the Subject Test. Consequently, the Defendant maintained that there was enough evidence of similarities among various MedMira HIV antibody rapid tests, justifying the utilization of Klausner’s Peru Study to demonstrate the performance of MedMira HIV rapid antibody testing technology.

    The Defendant contended that Plaintiff’s reliance on the Pessman case was misplaced. In Pessman, the expert relied on information due to a product recall and speculation that issues spread to other models within that manufacturer’s portfolio of products. The Defendant argued that Plaintiff’s contentions pertained more to the weight the jury should assign to the expert opinion rather than its admissibility. Defendant also contended that the Supreme Court has acknowledged the district court’s “broad latitude” in permitting expert testimony grounded in “professional studies or personal experience.”

    Furthermore, the Defendant argued that Klausner’s testimony should be deemed admissible because the opposing party has the opportunity to scrutinize the factual basis for the opinion during cross-examination. The Defendant cited the principle that expert opinions should only be excluded when they are so fundamentally unsupported that they provide no assistance to the jury. Consequently, the Defendant concluded that Klausner’s expert opinion was admissible, and any challenges to his opinions could be addressed during cross-examination by the Plaintiff.

    In response, the Plaintiff contended that the Defendant’s attempt to establish a basis for admitting expert testimony, grounded in the shared use of RVF technology to assert a substantial similarity between the Multiplo Test used in the Peru Study and the Subject Test used by Defendant, was unfounded and flawed. Plaintiff argued that this claim lacked support from Klausner, as he neither mentioned RVF technology in his deposition nor opined that the tests’ similarity was based on its shared use. Plaintiff asserted that relying solely on this asserted commonality was irrelevant, incapable of establishing reliability, and deemed improper when imputing the results of one test to another.

    The Court determined that Klausner’s testimony lacked both reliability and helpfulness to the trier of fact. Consequently, he was precluded from asserting that findings from the Peru Study, specifically related to the Multiplo test, had any relevance to the reliability of the Subject Test employed by the Defendant.

    The Court clarified that the reliability of the Peru Study itself was not under scrutiny; instead, the issue revolved around the application of that study’s findings to the specific facts of this case.

    The Court observed that the process of imputing findings from the Peru Study to the Subject Test necessitates an assessment of the RVF Technology. Although RVF technology may serve as a connecting feature among three MedMira tests, including the Subject Test, the Defendant did not argue that RVF is the actual technology responsible for detecting HIV antibodies. Rather, the Rapid Vertical Flow (RVF) technology facilitates the swift delivery of blood specimens to the elements within rapid HIV tests, enhancing the speed of antibody detection. Notably, the Court highlighted that Klausner did not testify that the shared RVF technology constituted a sufficient basis for imputing the safety or reliability of one test to another within the MedMira portfolio. In addition, Klausner did not discuss the RVF technology in his deposition or in his prepared expert statement, rendering the argument not properly categorized as an expert opinion under Federal Rule of Evidence 701, 702, or 703.

    Furthermore, the Court deemed Klausner’s expert testimony, wherein he expressed an expectation that MedMira’s HIV antibody detection qualities would resemble each other more than tests from different manufacturers, as insufficient to meet the reliability prong. The Court held that it was not scientifically reliable to impute the findings from a well-funded study conducted by outstanding scientists in an excellent clinical research infrastructure, as mentioned by Klausner in his deposition, to a different HIV test merely based on an expectation of similarity.

    In line with a district Court’s gatekeeping role under Daubert, it is essential to prevent speculative and unreliable expert testimony from reaching the jury. Klausner, in this case, has provided only speculative assertions regarding the similarities between the Subject Test and Multiplo test. Consequently, the expert testimony fails to meet the reliability and helpfulness prongs under Daubert.

    As a result, Klausner was precluded from testifying that the study he conducted in Peru concerning a different type of HIV rapid test had any relevance to the reliability or sensitivity of the Subject Test.

    Held

    The Court granted the Plaintiff’s Daubert Motion to Exclude certain opinions of Defendant’s Expert, Jeffrey D. Klausner.

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

    Key Takeaways

    In this medical negligence case, the Defendant Celebrity allegedly infected the Plaintiff Mariette Waters with HIV during a blood transfusion at the shipboard medical center. The Defendant’s medical staff administered blood from a donor with an “advanced, longstanding, chronic” HIV infection, leading to the Plaintiff’s HIV diagnosis three months later. The Defendant’s failure to detect HIV in the donor’s blood was attributed to the failure to adhere to mandatory protocols for donor screening and blood testing.

    The Court addressed Plaintiff’s efforts to exclude specific testimony from the Defendant’s HIV expert, Jeffrey Klausner. Plaintiff succeeded in precluding Klausner from testifying about regulatory approval for the HIV rapid test used in the case. The Court found insufficient basis for Klausner’s belief in approval and granted Plaintiff’s motion.

    Plaintiff also challenged Klausner’s opinions based on a study conducted in Peru, arguing that the tests in question were materially different. The Court agreed, precluding Klausner from testifying about the study’s relevance to the reliability of the HIV test used by the Defendant. The Court emphasized the lack of a scientific basis to impute findings from one test to another based solely on the expectation of similarity.

    Defendant argued that Klausner’s testimony should be admissible, emphasizing Klausner’s qualifications and asserting the similarity of the MedMira tests. The Court disagreed, finding Klausner’s opinions lacked reliability and helpfulness to the trier of fact. The Court held that Klausner’s expectation of similarity between tests, without a scientific basis, was insufficient. Consequently, Klausner was precluded from asserting the Peru study’s findings as relevant to the reliability of the Defendant’s HIV test. The Court emphasized its gatekeeping role under Daubert to ensure the exclusion of speculative and unreliable expert testimony from reaching the jury.

    Case Details

    Case Caption Waters v. Celebrity Cruises, Inc.
    Docket Number 1:22cv22913
    Court United States District Court, Florida Southern
    Citation 2024 U.S. Dist. LEXIS 15064
    Order Date January 29, 2024
  • Mechanical Engineering Expert Witness Opinions on Slipperiness of Shower Floor Admitted

    Mechanical Engineering Expert Witness Opinions on Slipperiness of Shower Floor Admitted

    The case involved the Plaintiff, Anthony Cladd who fell and suffered injuries while using a shower stall at a truck stop owned by the Defendant, TA Operating, LLC. The Plaintiff asserted that the fall and injuries were a result of the shower stall being unsafe, and claimed that the Defendant breached a duty of care owed to him. The Plaintiff pursued legal action against the Defendant, alleging premises liability.

    The Plaintiff claimed that the reason for his fall was the presence of standing water in the shower during use, stating that “The shower has a lot of standing water and was draining very slowly.” The Plaintiff alleged negligence on the part of the Defendant, asserting that they failed to maintain the shower drain, leading to a significant backup and slip hazard. Additionally, the Plaintiff accused the Defendant of failing to provide an anti-slip surface in the shower, neglecting to inspect the shower for unreasonably dangerous conditions, and not warning the Plaintiff about such conditions. The Plaintiff further claimed that the Defendant failed to correct the hazardous conditions, lacked adequate staff to inspect the shower, insufficiently trained their staff for identifying dangerous conditions, and did not adhere to its own corporate policies or have sufficient policies in place.

    On June 6, 2022, the Court issued its Case Management and Scheduling Order, which set a deadline for the Plaintiff to disclose any retained experts and their reports by February 6, 2023. However, on February 17, 2023, the Plaintiff, having failed to comply with the deadline, filed a Motion for Extension of Time to disclose their experts. Subsequently, on February 24, 2023, the Court granted the Plaintiff’s motion, extending the expert disclosure deadlines by 45 days, with the new deadline set for April 10, 2023. On the specified date, April 10, 2023, the Plaintiff disclosed two retained expert witnesses, namely David Collette and Georges El-Bahri. The Plaintiff’s expert disclosures indicated that a copy of El-Bahri’s written report was being prepared and would be provided upon receipt. However, even three months after the initially expected date for producing El-Bahri’s report, the Plaintiff had not supplied any expert report for El-Bahri. The Defendant’s counsel made efforts to obtain the report by sending correspondences to the Plaintiff’s counsel. Despite these requests, no expert report was provided and the discovery was ultimately closed.

    The Defendant filed a Daubert Motion to Preclude the testimony and opinions of Plaintiff’s Expert, David Collette, a Motion to Strike Plaintiff’s Expert Witness Georges El-Bahri as he failed to furnish an expert report within the stipulated timeframe, and a Motion for summary judgment.

    Collette admitted during deposition that he was not qualified to provide expert opinions on the coefficient of friction of the shower floor with standing water, and he did not conduct any testing under such conditions. The Defendant argued that Collette’s opinions were speculative, with questionable relevance to the trial issues. The methodology employed by Collette was deemed unscientific and unreliable, and the Defendant contended that his testimony would not assist the jury but instead lead to confusion.

    Mechanical Engineering Expert Witness

    David Collette holds a Bachelor of Science in Mechanical Engineering from the University of Manitoba, Canada and further pursued his education by earning a Masters of Business Administration from the University of Chicago. With an academic background in both engineering and business, Collette possesses over 18 years of extensive experience. Throughout his career, he has demonstrated expertise in developing, commercializing, analyzing, and troubleshooting walkway solutions, encompassing various aspects such as chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Currently serving as the President of Substratum Group, Collette leads the development of proprietary products and services aimed at supporting Walkway Management programs. His role involves providing customers with comprehensive solutions related to the selection, testing, care, and maintenance of walkways (e.g., floors, sidewalks, ramps, stairways) and bathing surfaces (e.g., tubs, showers).

    Orthopedic Surgery Expert Witness

    Dr. Georges F. El-Bahri, a Doctor of Osteopathic Medicine, earned his degree from Nova Southeastern University College of Osteopathic Medicine. He holds a Bachelor of Science in Biomedical Science from the University of South Florida. El-Bahri pursued postgraduate education and training, completing an Orthopedic Sports Medicine Fellowship at Andrews Research and Education Foundation, and an Orthopedic Surgery Residency at Largo Medical Center. His expertise extends to sports medicine injuries, particularly those of the knee and shoulder, with a focus on arthroscopic procedures, total joint replacements, and general orthopedic care. El-Bahri holds various positions, including Certified Life Care Planner at Life Care Plan MD, Extremity Surgeon at Interventional Pain Specialists, Extremity Surgeon at Spine Centers of America, Orthopedic Surgeon at Ortho One Jacksonville, and Orthopedic Specialist at Concentra-Occupational Health. He also maintains his private practice at Bahri Orthopedics and Sports Medicine Clinic.

    Discussion by the Court

    The Defendant requested the Court to exclude David Collette’s entire testimony, contending that he lacked qualification, utilized invalid methodology, and his testimony would not assist the trier of fact. The Court observed that an expert’s qualification is determined by factors such as knowledge, skill, experience, training, or education, according to Federal Rule of Evidence 702. An expert is not automatically deemed unqualified if their experience doesn’t perfectly align with the matter at hand. The qualification assessment should consider the expert’s credentials in relation to the subject matter of the proposed testimony. If an expert is minimally qualified, objections to their expertise should be treated as matters of credibility and weight, rather than admissibility.

    Collette holds a Bachelor of Science degree in Mechanical Engineering and served as a voting member on the technical committee for American National Standards Institute (ANSI)/National Floor Safety Institute(NFSI) B101.4 Test Method for Measuring the Wet Barefoot Condition of Surfaces, focusing on developing a barefoot standard for various surfaces such as bathtubs, shower enclosures, pool decks, and walkways in 2019. With over 14 years of experience in developing, launching, and auditing walkway and bathing surface safety programs. Collette does not possess a PhD in engineering. However, a preponderance of evidence indicated his qualification to testify on the coefficient of friction of the shower stall floor, its slipperiness, and relevant industry standards.

    In the case of Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011), it was established that a qualified expert utilizing reliable testing methodology has the authority to testify about the safety of a Defendant’s flooring choice, determined by the surface’s coefficient of friction. Typically, coefficient of friction evidence is presented by an expert witness who also addresses industry standards and assesses whether the surface complies with them. Furthermore, according to Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015), a delay in testing the area where an accident occurred does not undermine the reliability of coefficient testing if the site has not materially changed since the incident. The case emphasized that weaknesses in the factual basis of an expert’s opinion are subject to challenges in terms of credibility and weight through cross-examination and the presentation of contrary evidence.

    Collette conducted coefficient of friction tests using an American Slip Meter 925 tribometer and the ANSI A326.3 standard test method for measuring dynamic coefficient of friction (DCOF) of hard surface flooring materials. He asserted that the test method employed was the standard test used by manufacturers, interior designers, and architects for testing bathing surface floors. Collette performed the coefficient of friction test on the shower stall floor under somewhat different conditions than were present during the accident: it was over two years later, and there was no significant standing water present for his test. Additionally, he tested three samples of the shower stall floor instead of the entire surface. The Defendant could raise these considerations, but they pertain to the weight and credibility of the evidence, not its admissibility. Collette utilized an established methodology, the ANSI A326.3 standard test method, to assess the coefficient of friction of the surface. A preponderance of the evidence suggested that his testimony was grounded in a reliable methodology.

    In Sorrels, it was established that expert testimony concerning the coefficient of friction (COF) of a flooring surface could be beneficial to a jury in a slip and fall case. The Court emphasized that challenging such evidence should be done through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of truth, as outlined in the Daubert case.

    Collette’s testimony closely parallels the testimony presented in Sorrels, proving beneficial to the jury in the slip and fall context. The preponderance of the evidence suggested that Collette’s testimony would aid the trier of fact by applying his expertise and remained relevant to the case. The Daubert standard was deemed satisfied for all three prongs, and as a result, Collette’s testimony was not barred.

    To establish a premises liability claim, the Plaintiff must demonstrate the elements of a negligence claim and prove that the Defendant had possession or control of the premises and notice of the hazardous condition. This includes showing: (1) the Defendant owed a duty, (2) there was a breach of that duty, (3) a causal link between the breach and the Plaintiff’s injury, (4) the Plaintiff suffered damages due to that injury, (5) the Defendant had possession or control of the premises, and (6) the Defendant had actual or constructive notice of the dangerous conditions leading to the injury.

    The Defendant argued, as a matter of law, that a wet shower stall floor is not inherently dangerous and cannot impose liability on the owner. Premises owners are typically not liable for obvious risks unless an uncommon design or construction creates a hidden danger. In such cases, where a prudent invitee would not anticipate the danger, the premises owner may be found liable, as established in Echevarria v. Lennar Homes, LLC, 306 So. 3d 327, 330 (Fla. 3d Dist. Ct. App. 2020). Additionally, a breach of industry standards serves as evidence of negligence, as outlined in Hilliard v. Speedway Superamerica LLC, 766 So. 2d 1153, 1155 (Fla. 4th Dist. Ct. App. 2000).

    Considering the evidence favorably for the non-moving party, a material fact dispute exists regarding whether the shower stall floor posed a hidden danger. Collette, the Plaintiff’s expert witness, asserted in his written report that the wet dynamic coefficient of friction for the shower stall floor fell below industry standards for public showers and floors meant to be walked upon when wet. This condition, akin to the level-changing steps in Echevarria and Hilliard, could be perceived as more slippery than reasonably expected, potentially adding a hidden danger. A jury could reasonably find that such conditions create liability for premises owners, as invitees may not anticipate these dangers.

    The Defendant argued that Collette’s opinions were irrelevant and unsupported. However, in considering the evidence favorably for the non-moving party, Collette’s report and opinions were deemed relevant as they made it more likely that the shower stall floor had hidden danger, being more slippery than reasonably expected. Consequently, the Court determined that summary judgment was not appropriate for this matter.

    According to Federal Rule of Civil Procedure 26(a)(2)(B), expert witness disclosures must be accompanied by a signed report if the expert is “retained or specially employed” for testimony. These disclosures must adhere to Court-ordered deadlines, as outlined in Federal Rule of Civil Procedure 26(a)(2)(D). Failure to make such disclosures could result in the expert being barred from presenting evidence at trial, unless the failure is deemed “substantially justified or harmless,” pursuant to Federal Rule of Civil Procedure 37(c)(1).

    In this case, the Case Management and Scheduling Order stipulated a deadline for the Plaintiff’s disclosure of expert reports as February 6, 2023 . The Defendant emphasized that the Plaintiff did not disclose a report from Georges El-Bahri by that date. The Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike. The Court decided that Defendant’s Motion to Strike may be treated as unopposed. Consequently, it was deemed appropriate to strike El-Bahri as an expert witness for the Plaintiff.

    Held

    The Court also denied the Defendant’s Daubert Motion seeking to preclude the testimony and opinions of Plaintiff’s Expert, David Collette. Furthermore, the Court granted the Defendant’s Motion to Strike Plaintiff’s Expert Witness, Georges El-Bahri. The Court also denied the Defendant’s Motion for Summary Judgment.

    The Court issued a ruling on January 08, 2024 to terminate all pending motions and administratively close the case pending further order of the Court. The parties were directed to file a joint stipulated form of final order or judgment or move the Court upon good cause to reopen the case on or before March 04, 2024.

    Key Takeaways

    The Plaintiff, who suffered injuries in a truck stop shower stall, relied on the expert opinions of David Collette to establish the hazardous conditions of the shower floor. The Defendant contested the admissibility of Collette’s testimony, asserting that he lacked qualifications and used unreliable methodology. The Court, however, found that Collette, with his engineering background and extensive experience, met the qualifications for offering expert opinions on the coefficient of friction of the shower floor. The Court emphasized that objections to an expert’s expertise should be matters of credibility and weight, rather than admissibility. Collette’s use of established testing methodology and his relevance to industry standards strengthened the admissibility of his testimony. The Court also highlighted the significance of expert testimony in premises liability cases, acknowledging its potential to assist the jury in understanding complex issues such as the slipperiness of flooring surfaces. The Plaintiff’s expert Georges El-Bahri faced challenges to the timeliness of expert disclosures because the Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike, therefore barring the expert. Here, the Court underscored the importance of adhering to procedural rules for expert witness disclosures and the potential consequences, such as being barred from presenting evidence at trial.

    Case Details

    Case Caption Cladd v. Ta Operating, LLC
    Docket Number 3:22cv517
    Court United States District Court, Florida Middle
    Citation 2023 U.S. Dist. LEXIS 233821
    Order Date December 7, 2023
  • Real Estate Appraisal Expert Witness Testimony about Diminution in Value of Insured Property Rejected

    Real Estate Appraisal Expert Witness Testimony about Diminution in Value of Insured Property Rejected

    Plaintiff Nichole Hertel sued State Farm Lloyds citing failure to pay insurance benefits following severe damage to her home during the February 2021 winter storm. Since filing suit, Plaintiff has sold and vacated her home.

    The Court issued a Scheduling Order in April 2023 which set a deadline of September 13, 2023, for Plaintiff to name her experts and furnish their reports. Despite the specified deadline, Plaintiff designated Michael Brubaker as an expert and submitted his expert report on December 18, 2023. Brubaker, an experienced appraiser, was intended to testify about the value of Plaintiff’s home at the time of sale and its hypothetical value if storm damages had been promptly remediated. Plaintiff sought an extension of the September 13, 2023 deadline such that Brubaker’s report and testimony could be admitted.

    In light of the untimely submission, Defendant State Farm Lloyds sought to exclude Brubaker’s report and testimony, arguing that they were both untimely and unreliable. The Court considered the motion alongside Defendant’s separate motion to exclude the testimony and opinions of other experts: All Peril Adjusting, LLC; Tom Cain; and Southeast Environmental Microbiology Laboratories. However, it was clarified that Plaintiff did not intend to present the testimony or opinions of these additional experts.

    The Court denied as moot any requests present in Defendant’s motion seeking exclusion of experts other than Brubaker. The primary issue before the Court was whether to exclude Brubaker’s testimony and opinions.

    Real Estate Appraisal Expert Witnesses

    Michael Brubaker is a highly experienced real estate appraiser and broker in Texas. He has held a Certified General Appraiser license in the state and is also a licensed real estate broker. Brubaker earned the prestigious SRA designation from the Appraisal Institute in 1988, demonstrating his expertise in residential appraising. He holds a Bachelor’s degree in Architecture from the University of Houston earned in 1981.

    Over his long career spanning more than 35 years, Brubaker has undertaken extensive education in the appraisal field including numerous courses and seminars offered by organizations like the Appraisal Institute. Brubaker is recognized as a leader in the appraisal community through his prior roles as an instructor, Director, and committee member for appraisal and real estate trade groups.

    Brubaker has performed valuations for purposes including eminent domain, litigation support, relocation, and lending. He has appraised both residential and commercial properties. Through his depth of experience, Brubaker has testified and been qualified as an expert witness in Texas Courts on multiple occasions. He counts major law firms and lenders among his past clients during his 30+ year career as an appraiser. Overall, Brubaker’s extensive qualifications and active involvement make him a recognized authority in the real estate appraisal field.

    Thomas “Tom” Cain is a Certified Real Estate Appraiser at Brubaker & Associates, Inc. Cain spent over 20 years as a financial advisor prior to becoming an appraiser. He hold a M.B.A from Baylor University and is a member of the Houston Association of Realtors, Texas Association of Realtors,National Association of Realtors as well as the Association of Texas Appraisers.

    Discussion by the Court

    During the hearing, the parties’ arguments were centered on the relevance of Mike Brubaker’s testimony regarding the diminution in value of Plaintiff Nichole Hertel’s home. Both parties acknowledged that Plaintiff’s insurance policy did not cover diminution in value. Plaintiff asserted that Brubaker’s testimony was pertinent to establishing her actual pecuniary loss.

    The Court referenced the case of Southwest Risk, L.P. v. Ironshore Specialty Ins. Co., 188 F. Supp. 3d 621, 629 (S.D. Tex. 2016), which clarified that, under Texas law, insured individuals cannot recover from their insurer if they have not suffered a pecuniary loss—meaning if the proceeds from the sale of their home had made them whole. However, the Court noted that the degree of Plaintiff’s actual pecuniary loss was not relevant, as Defendant had not raised a pecuniary loss argument. Moreover, Defendant explicitly stated during the hearing that it did not plan to raise a pecuniary loss argument at trial.

    At this stage, the Court found that Brubaker’s testimony was not relevant for two reasons: (1) Plaintiff’s insurance policy did not cover diminution in value, and (2) the diminution in value of Plaintiff’s home did not pertain to any pending legal issue in the case. The Court concluded that Brubaker’s testimony was not relevant given these circumstances. It was emphasized that if Defendant were to raise a pecuniary loss argument in the future, the Court would reconsider the relevance of Brubaker’s opinion.

    Held

    The Court denied Plaintiff’s motion to extend Plaintiff’s Expert Designation Deadline but granted Defendant’s motion to exclude the testimony of Michael Brubaker. A final decision has not been reached in this case by the Court considering the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Both parties acknowledged that Plaintiff’s insurance policy did not cover diminution in value, a point that became pivotal in the arguments presented. Plaintiff contended that Brubaker’s testimony was crucial for establishing her actual pecuniary loss. The Court referenced the precedent set by Southwest Risk, L.P. v. Ironshore Specialty Ins. Co., emphasizing that under Texas law, insured individuals cannot recover from their insurer unless they have suffered a pecuniary loss—defined as not being made whole by the proceeds from the sale of their home. Despite Plaintiff’s stance, the Court deemed Brubaker’s testimony irrelevant for two primary reasons: the exclusion of diminution in value from the insurance policy coverage and its consequent lack of pertinence to any pending legal issue in the case. Notably, the Court clarified that the degree of Plaintiff’s actual pecuniary loss was not a relevant consideration at this stage, as Defendant had not raised a pecuniary loss argument and explicitly stated it had no intention to do so at trial. The Court concluded that Brubaker’s testimony was not relevant in the given circumstances, while leaving open the possibility of reconsideration if the Defendant were to introduce a pecuniary loss argument in the future.

    Case Details:

    Case Caption Hertel V. State Farm Lloyds
    Docket Number 4:22cv4448
    Court United States District Court, Texas Southern
    Citation 2024 U.S. Dist. LEXIS 14011
    Order Date January 26, 2024
  • Management Consulting Expert Witness’ Rebuttal Report on Breach of Warranty Counterclaim Admitted

    Management Consulting Expert Witness’ Rebuttal Report on Breach of Warranty Counterclaim Admitted

    This case involves contract disputes. The first contract between Plaintiff, SIS, LLC (“SIS”)  and Defendant, Orion Group Holdings, Inc. was the Professional Services Agreement (“PSA”). It was entered into in June 2010. Under the PSA, Plaintiff provided software consulting services for Defendant. After over ten years of performance under the PSA, the parties entered into a second agreement, the SaaS Services Agreement (“SaaS Agreement”), which was to last five years. It was entered into in 2020. Under that agreement, Plaintiff provided Defendant with different software, including but not limited to Microsoft Dynamics 365, which Defendant purchased as part of a project to implement a new enterprise-wide software system.

    Eventually, a disagreement occurred, and Defendant stopped payment under the SaaS Agreement. Defendant only paid one of the five required payments. Plaintiff sued Defendant to recover the remaining payments. As part of Defendant’s answer, it asserted a counterclaim. The counterclaim alleges that Plaintiff’s “services” under the PSA failed in their entirety.”

    Plaintiff argues that (1) the PSA makes no warranties as a matter of law, and (2) Defendant failed to plead compliance with a condition precedent to recovery.

    Pursuant to the First Amended Scheduling Order (the “Scheduling Order”), SIS
    designated its two experts on January 5, 2023. Neither expert served the required report.

    James Bowman and Mark Kershteyn had been designated to testify whether the professional services rendered by SIS to Orion under the parties’ Professional Services Agreement, especially those intended to aid Orion in selecting, purchasing, and utilizing the Microsoft and SIS software defined as “Services” in the parties’ SaaS Agreement, (1) met or exceeded industry standards, (2) complied with all federal, state, local laws, statutes, and ordinances, and (3) otherwise fulfilled all warranties made by SIS to Orion regarding those professional services.

    The Court addressed the Motion to Strike concerning Bowman’s designation as a liability expert and his report (the “Bowman Report”). The motion sought to strike the report for three main reasons: (i) the report was served on June 16, 2023, five months beyond the deadline specified in the Court’s Agreed Scheduling Order; (ii) Bowman failed to demonstrate his competence to render liability expert opinions; and (iii) the report was deemed wholly conclusory without citing any evidence, thereby violating Rule 702 of the Federal Rules of Evidence and Rule 26(a)(2) of the Federal Rules of Civil Procedure.

    Additionally, although Kershteyn was timely designated, he never served a report. SIS was deemed to have no excuse for its failure to produce Kershteyn’s report on any topic. Despite subsequent interrogatories revealing SIS’ alleged damage claim as $2,186,316, representing the remaining contract balance for the last four years of the SaaS Agreement, Kershteyn asserted that SIS’ lost net profit was “irrelevant.” SIS refused to produce its lost profits evidence, contrary to the legal standard for breach of contract damages. Consequently, Kershteyn’s damages methodology was considered fundamentally flawed as a matter of law. Orion also objected to SIS’ designation of Mark Kershteyn and moved to strike the same.

    Management Consulting Expert Witness

    James Bowman has more than 40 years of experience as an executive, entrepreneur and thought leader in the technology services arena, including 17 years as president and CEO of SBS Group where he oversaw growth from a small, local partner to a leading international Microsoft solution provider. He has demonstrated acumen in consulting services, sales, marketing, and daily operations overseeing multiple business units. He boasts of extensive experience within the Professional Services, Distribution, and Manufacturing industries.

    Discussions by the Court

    Orion sought to strike the expert designation and report of James Bowman (“Bowman”), who was designated as SIS’ expert for rebutting liability in relation to Orion’s breach of warranty counterclaim. Orion argued that Bowman’s report was both untimely and conclusory. Furthermore, Orion asserted that Bowman lacked the competence required to provide liability expert opinions under the Daubert standard. The Court initially addressed the issue of Bowman’s competence to testify as an expert under Daubert.

    Under Daubert, trial courts are tasked with a gatekeeping function to assess the scientific validity of expert testimony and its applicability to the facts in question. The text outlines Rule 702 criteria, stating that a qualified expert can testify if their specialized knowledge assists the trier of fact, rests on sufficient facts and reliable principles, and the witness has reliably applied those principles to the case’s facts. The proponent of expert testimony must demonstrate its reliability by a preponderance of the evidence.

    The Court examined Bowman’s credentials, revealing that he served as Chairman of the Board at Velosio, a competitor of SIS and Microsoft’s largest independently owned solution provider for Business Applications. Bowman’s resume indicated his role as Chief Revenue Officer at Velosio from 2018 to 2021, overseeing Sales, Marketing, and Cloud efforts, acting as the primary relationship manager for Velosio’s Microsoft connection, and liaising with service/implementation teams. SIS contended that Bowman was qualified to testify as an expert based on his extensive work experience, attendance at industry conferences, participation in industry organizations, and involvement in sales and acquisitions.

    The Court determined that Bowman’s background and experience were satisfactory, establishing by a preponderance of the evidence that he was qualified to testify as a rebuttal expert regarding SIS’ performance under the PSA. The Court cited Federal Rule of Evidence 702(a)-(d), emphasizing Bowman’s “knowledge, skill, experience, training, or education.” SIS pointed out that Bowman possessed over thirty years of industry experience and had participated in “more than 500 implementations,” including those relevant to the ongoing lawsuit.

    According to the First Amended Scheduling Order, the deadline for designating Plaintiff’s experts and providing reports was January 5, 2023. SIS conceded that Bowman did not submit an expert report by the specified date. However, SIS argued that Bowman’s report was intended solely for rebuttal, addressing Orion’s counterclaim, and was thus timely filed on June 16, 2023. The Court, in the Amended Order Granting Defendant’s Unopposed Motion, allowed Plaintiff’s designated retained expert to serve a rebuttal report within 30 days after Defendant’s expert reports were served. Orion contended that the report was untimely and should be dismissed due to not meeting the original January deadline. The Court determined that Bowman was explicitly designated as a rebuttal expert witness, and therefore, his rebuttal report, filed on June 16, 2023, was considered timely within the 30-day window following Orion’s submission of expert reports on May 19, 2023.

    Orion raised concerns about the content of Bowman’s report, asserting that it did not adequately establish or address the designated components: industry standards, compliance, and warranties. Orion further argued that Bowman failed to cite any evidence and did not rebut any portion of Orion’s liability expert, Greg Crouse, or mention Crouse’s report. In the appendix to his rebuttal report filed on June 16, 2023, Bowman provided a list of documents he relied on, including recordings of internal meetings between SIS and Orion during the relevant period. SIS countered by highlighting that Bowman’s opinions were firmly grounded in a Statement of Facts, wherein he precisely identified the basis for each observation.

    The Court rejected Orion’s motion to strike Bowman’s rebuttal report but issued a caution. Bowman was restricted to providing testimony exclusively in rebuttal. During the trial, he was confined to presenting opinions that were both outlined in his report and specifically offered as direct rebuttals to Orion’s designated liability expert concerning the breach of warranty counterclaim.

    SIS designated Mark Kershteyn (“Kershteyn”), a co-owner of SIS, to serve as a fact witness concerning SIS’ damages under the SaaS Agreement. Additionally, Kershteyn was designated as a non-retained expert to provide testimony on SIS’ standard of performance under the PSA. According to Rule 26(a)(2)(C), a witness who is not “retained or specially employed to provide expert testimony in the case” is classified as a non-retained witness and is not required to file a report. The distinction lies in the fact that a retained expert is recruited solely to offer expert testimony without prior personal knowledge of the case’s facts, while a non-retained expert’s testimony stems from their direct involvement in the events leading to the litigation.

    As a non-retained expert witness, Kershteyn was not obligated to provide an expert report on the issue of SIS’ standard of performance under the PSA. Similarly, he was not required to submit a report on SIS’ damages under the PSA, as he qualified as a lay witness testifying from personal knowledge of the transaction. Orion contended that Kershteyn’s interrogatory responses on the issue of damages should be excluded due to his alleged failure to identify SIS’ claimed lost profits. The Court, in a previous ruling, had already stated that Kershteyn’s affidavit was enough to raise a genuine issue of fact as to direct lost profits damages associated with the alleged breach.

    Therefore, Kershteyn, as a non-retained expert, was not mandated to submit a report on Orion’s breach of warranty counterclaim. Additionally, Kershteyn was permitted to testify as a lay witness regarding SIS’ alleged damages based on the SaaS Agreement.

    Held

    The Court denied Orion’s Motion to Strike SIS’ Designation of Experts and the Expert Report submitted by James Bowman. 

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

    Key Takeaways

    In this case involving contract disputes between SIS, LLC (“SIS”) and Orion Group Holdings, Inc., the Court addressed challenges to expert testimony provided by James Bowman and Mark Kershteyn. The dispute centered around SIS’ performance under the Professional Services Agreement (PSA) and the SaaS Services Agreement (SaaS Agreement). Bowman, designated as an expert for rebutting liability in Orion’s breach of warranty counterclaim, faced objections over his competence to render liability expert opinions. Kershteyn, a co-owner of SIS, served as a fact witness and non-retained expert. The Court determined that Kershteyn was not required to serve an expert report as a non-retained expert on Orion’s breach of warranty counterclaim.The key takeaway underscores the Court’s careful consideration of objections related to expert testimony, ensuring compliance with procedural rules and evaluating the sufficiency of evidence presented in the context of contract disputes.

    Case Details

    Case Caption Sis, Llc V. Orion Group Holdings, Inc. Et Al
    Docket Number 4:22cv891
    Court United States District Court, Texas Southern
    Citation 2023 U.S. Dist. LEXIS 233454
    Order Date   December 21, 2023
  • Safety Expert Witness Testimony on Safe Means of Access as per Maritime Industry Standards Admitted

    Safety Expert Witness Testimony on Safe Means of Access as per Maritime Industry Standards Admitted

    The Plaintiff, William Austin, III, sustained injuries while disembarking from the dredging vessel W308 RS WEEKS (the “vessel”). The Plaintiff alleged that, during his course of employment with Sontheimer Offshore/Catering Co. and Weeks (collectively, the Defendants), he suffered severe and permanently disabling injuries. The Plaintiff contends that the Defendants were negligent in various aspects, including failure to properly supervise, direct, and control operations, provide or utilize safe equipment, offer adequate assistance, ensure safe egress from the vessel, give adequate warning of known dangers, and provide a safe working environment. Under the Jones Act, the Plaintiff claims that Weeks had a duty to furnish a safe workplace, a competent and adequate crew, safe gear, equipment, and a seaworthy vessel. The Plaintiff argues that Weeks’ alleged failures, coupled with the unseaworthiness of the vessel, were the proximate causes of his injuries.

    On December 19, 2023, Weeks filed a Daubert motion seeking to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison. Weeks asserted that Borison’s testimony was unhelpful, conclusory, and usurped the role of the factfinder. On December 26, 2023, the Plaintiff provided Weeks with a supplemental report from Borison. In response, Weeks filed another motion aiming to exclude Borison’s supplementary report. Weeks contended that the Plaintiff submitted the supplemental report because they acknowledged that Borison’s initial report contained opinions that did not meet the requirements of Federal Rule of Evidence 702. Weeks argued that the information in the supplemental report was available to Borison when the original report was prepared, and it would be impermissible to use this information to undermine Weeks’s Daubert motion. Additionally, Weeks contended that the report should be excluded as it allegedly violated the Court’s scheduling order.

    In response, the Plaintiff argued that Borison was qualified to testify and would offer testimony that is both helpful and non-conclusory regarding safety policies. The Plaintiff also contended that Borison’s supplemental report should not be excluded despite its untimeliness. The Plaintiff explained that the delay was a result of the Defendants’ procrastination in producing the vessel’s captain for a deposition and the Plaintiff’s difficulties in locating specific photographs. Furthermore, the Plaintiff asserted that none of the “new” information in the supplemental report was unknown to Weeks, thereby causing no prejudice to them.

    On December 27, 2023, Weeks requested an extension of its expert report deadline until January 8, 2024, to allow time for supplementing its expert report if deemed necessary after reviewing Borison’s supplemental report. The Plaintiff did not oppose this extension request, and the Court granted Weeks’ motion for an extension.

    Safety Expert Witness

    Robert E. Borison possesses over 50 years of safety experience in industries related to the exploration, production, and transport of oil and gas, as well as the marine, general, and commercial sectors. His expertise encompasses safety issues across various settings, including production platforms, barges, structural and fabrication yards, as well as vessels/boats, commercial and industrial buildings, and building projects. Borison obtained his degree in Business Administration from Louisiana State University. He currently serves as the President of Total Safety Services, Inc.

    Discussion by the Court

    Weeks contested the relevance of Borison’s proposed testimony under Rule 702, asserting that his opinions pertained to common-sense matters unrelated to his expertise. Weeks argued that Borison’s opinions encroached upon the factfinder’s role and included impermissible conclusions of law.

    Weeks contended that Borison’s testimony was unnecessary and unhelpful, asserting that it delved into common-sense matters that did not necessitate expert testimony and usurped the factfinder’s role. In response, the Plaintiff argued that Borison’s extensive experience, with testimony in over eighty-five cases related to maritime safety, qualified him to educate the jury on relevant rules, regulations, and acceptable practices pertinent to the case.

    The U.S. Fifth Circuit Court of Appeals has outlined that expert testimony ought to be excluded when the jury can effectively assess a situation through common experience and knowledge, as stated in Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir.1990). The primary consideration for the Court is whether the expert testimony consists of conclusions derived from common sense or serves to explain technical issues that aid the jury in understanding the relevant facts of the case.

    Weeks relied on a precedent where another section of the Court concluded that Borison could not testify because his opinion didn’t require or utilize any expertise, and it wouldn’t assist the jury in resolving any case issues. However, in the current case, Borison’s opinion, as outlined in his report, asserted that Weeks breached health and safety requirements by failing to provide a “safe means of access.” His opinion clarified that a ladder should have been supplied as a secure method of disembarking the vessel. Defining what constitutes a “safe means of access” in accordance with maritime safety standards and the maritime industry is not a matter of common sense the Court was readily familiar with. Borison’s specialized knowledge and experience in marine safety were asserted to be crucial in illuminating this specific issue.

    Subsequently, Weeks contended that Borison’s report lacked thorough analysis as it did not consider whether the water taxi captain should have assigned a deckhand to assist the Plaintiff during the transfer and did not assess the feasibility and safety of repositioning the tug closest to the vessel’s bow ladders. The Court observed that this challenge pertained to the foundation and source of Borison’s opinion, suggesting that it should be addressed through cross-examination rather than exclusion.

    Weeks additionally asserted that Borison’s opinions went beyond factual analysis and ventured into offering legal conclusions, thereby impinging on the factfinder’s ability to draw its own conclusions. Weeks referenced Rule 704(a), which stipulates that testimony in the form of an opinion or inference, otherwise admissible, is not objectionable because it addresses an ultimate issue for the trier of fact. However, Weeks argued that Fifth Circuit case law makes it clear that Rule 704(a) does not permit a witness to provide legal conclusions, citing Shawler v. Big Valley, L.L.C., 728 F. App’x 391 (5th Cir. 2018).

    Weeks argued that Borison’s statements, asserting that supervisors “failed to install, or request to install, a gangway” and that captains should have provided specific instructions, were improper conclusions. However, these statements did not constitute legal conclusions regarding Weeks’ negligence. The Court found that that Borison’s testimony was permissible as he did not offer opinions on unseaworthiness, negligence, or causation.

    The Court was not persuaded that Borison had crossed the line by providing legal conclusions. The Court held that Borison offered expert opinion testimony that could potentially assist the jury in determining the ultimate legal question, specifically, legal fault. The Court acknowledged that the admissibility of such testimony depended on how the actual questions and answers were framed during the trial, as it could be either objectionable or not in specific circumstances. The Court indicated that it would be better positioned during the trial to assess whether Borison genuinely reached legal conclusions that fall within the jury’s purview or if he instead presented admissible opinions intended to suggest a particular legal conclusion.

    As previously mentioned, Weeks sought to strike Borison’s supplemental report. Weeks argued that the supplemental report should be stricken due to procedural violations, untimeliness, and the perceived unnecessary nature of the additional opinions.

    Weeks contended that it was procedurally impermissible for the Plaintiff to attempt to address the issues raised in Weeks’ Daubert motion through a supplemental report. Since the Court had previously addressed Weeks’ motion to exclude and deemed Borison’s original conclusions admissible, the Court did not have to consider this argument as the supplemental report does not remedy the alleged defects in the original report.

    Weeks argued that the supplemental report introduced new opinions based on evidence previously available to Borison, characterizing it as an impermissible attempt for a “second bite at the apple” to offer opinions complying with Federal Rule of Evidence 702. Weeks contended that the supplemental report violated the case management order and should be excluded. In response, the Plaintiff argued that the delay in the supplemental report was due to defense counsel’s tardiness in producing Captain Isaac Martinez (“Captain Martinez”) for a deposition and the Plaintiff’s difficulty in locating photographs that he took of the scene. The Plaintiff further asserted that there was no prejudice or unfair surprise to Weeks regarding the information presented in the supplemental report.

    Contrary to Weeks’ claim that exclusion is mandatory, the decision to admit or exclude evidence produced in violation of the Court’s scheduling order is within the Court’s broad discretion. In exercising this discretion, the Court takes into account several factors, including the importance of the evidence, the prejudice to the opposing party of including the evidence, the potential for curing such prejudice through a continuance, and the explanation provided for the party’s failure to disclose.

    Concerning the first factor, the Plaintiff clarified that the supplemental report incorporated photographs taken by the Plaintiff at the scene and details obtained during Captain Martinez’s depositions regarding responsibility for methods of transferring personnel on and off the dredge. The Plaintiff asserted that Borison’s testimony would significantly assist in explaining safety statutes, industry guidelines, and Weeks’s safety rules to the jury. However, the Plaintiff did not explicitly elaborate on how the information in the supplemental report was crucial to the case. As a result, this factor did not weigh in either direction.

    Regarding the second and third factors, Weeks argued that the supplementation of the report would cause prejudice, but failed to specify any particular harm beyond the timing issue of its expert report being due one day after receiving the supplemental report. However, Weeks later requested a ten-day extension to produce a supplemental expert report if deemed necessary after reviewing Borison’s supplemental report. The Court granted this extension, thereby remedying any identified prejudice, and no further continuance was sought or deemed necessary.

    Regarding the fourth factor, the Plaintiff clarified that the delayed disclosure was attributed to the postponed deposition of Captain Martinez and the Plaintiff’s challenges in locating photographs of the accident scene. While Plaintiff did not take Captain Martinez’s deposition until after the original report, the Plaintiff had possession of the accident photographs throughout the entire period as they were found on an old mobile phone that proved challenging to locate. The Plaintiff explained that some of the information was available at the time of the initial report, while some was not. Consequently, this factor did not strongly favor either direction.

    Upon evaluating the four factors discussed earlier, the Court concluded that excluding the supplemental report was inappropriate. This decision was based on the limited prejudice to Weeks and the possibility of remedying any identified prejudice by allowing Weeks to submit its own supplemental report.

    Held

    The Court denied Weeks’ Daubert motion to exclude Borison’s testimony. Additionally, the Court also denied Weeks’ motion to strike Borison’s supplemental report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    In the legal proceedings involving the injuries sustained by the Plaintiff while disembarking from the dredging vessel, the Court addressed Weeks’ motions to exclude testimony from the Plaintiff’s maritime safety expert, Robert E. Borison, and to strike Borison’s supplemental report. Weeks argued that Borison’s testimony was unhelpful and conclusory, and the supplemental report was procedurally flawed, untimely, and contained unnecessary opinions. However, the Court denied both motions, ruling that exclusion was inappropriate. The Court emphasized the importance of its discretion in such matters and considered factors such as the importance of the evidence, prejudice to the opposing party, the possibility of curing such prejudice, and the explanation for the delayed disclosure. While Weeks claimed potential prejudice, the Court found it to be limited, and any identified issues were remedied by granting Weeks an extension to submit its own supplemental report. Overall, the Court determined that excluding Borison’s testimony and the supplemental report was not warranted, allowing for a comprehensive presentation of expert evidence during the trial.

    Case Details

    Case Caption Austin v. Sontheimer Offshore/Catering Co.
    Docket Number 2:23cv1602
    Court United States District Court, Louisiana Eastern
    Citation 2024 U.S. Dist. LEXIS 9764
    Order Date January 19, 2024
  • Architecture Expert Witness Testimony on Causation and Floor Safety Admitted

    Architecture Expert Witness Testimony on Causation and Floor Safety Admitted

    On December 12, 2020, Lynda S. Rowland and Patricia M. Stallcup planned to dine at the Outback Steakhouse in Shreveport.  Rowland, who arrived first, slipped while walking to a small booth in the lounge area but managed to break her fall by reaching and grabbing the back of an adjacent booth. Shortly after,  Stallcup arrived and also slipped as she approached the booth where  Rowland was waiting.  Stallcup fell to the floor onto her knees. Both individuals suffered personal injuries from the slips, with  Rowland primarily to her knees and  Stallcup to her ankle and back.

    The Plaintiffs individually initiated legal actions against the Defendants in the First Judicial District Court, Caddo Parish, State of Louisiana. The Defendants subsequently removed the suits to Louisiana Western District Court, citing diversity of citizens. The Court consolidated the separate suits.

    The Defendants, namely Outback Steakhouse of Florida, LLC, d/b/a Outback Steakhouse, Bloomin Brands, Inc. d/b/a Outback Steakhouse, and National Retail Properties, L.P., argued that  Rowland was in proximity to the booth where she allegedly slipped but did not fall.  Rowland stated she neither saw anything on the ground nor touched the floor or the bottom of her shoes. She testified that an Outback employee wiped the floor after her slip, and she observed nothing on the towel.

     Stallcup, walking toward  Rowland, fell at least one booth away from their original position. Initially, she fell on her knees and then landed on her buttocks. Neither  Stallcup nor  Rowland noticed anything on the floor before or after the incident.  Stallcup was unaware of any residue on her knees, buttocks, or shoes. She testified that a different Outback employee cleaned the area where she fell, and neither of them observed anything on that towel.

    To conclude, this slip and fall case involves two incidents that occurred on December 12, 2020, at the Outback Steakhouse restaurant in Shreveport, Louisiana. Plaintiffs Lynda Rowland and Patricia Stallcup claim that inadequate maintenance leading to a slippery floor caused their accidents and resulting injuries on that date. The Defendants, Outback Steakhouse, dispute these claims, contending, among other arguments, that no hazardous condition existed. Both parties presented expert testimony regarding causation under Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6(B).

    The Court had before it two Daubert Motions: firstly, Plaintiffs filed a Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood, and secondly, Defendants submitted a Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English. Additionally, Defendants filed a Motion to Strike the Affidavit of Jason English.

    Architecture Expert Witness

    Mitchell Allen Wood, currently serving as the Principal at ArchitectniX APAC, brings a wealth of expertise to his role, grounded in a comprehensive educational background and extensive work experience. He has obtained a Bachelor of Science in Civil Engineering from Louisiana State University and a Bachelor of architecture from Tulane University. He has further completed a Masters of Architecture from Tulane University and a Masters of Business Administration from the University of Maryland. Over the course of his career, Wood has been involved in numerous new, repair, and renovation projects, specifically in culinary and eating facilities. With a background in code enforcement and a keen understanding of restaurant environments, he possesses a thorough awareness of the safety requirements for pedestrian means of egress, emphasizing the need for hazard-free and secure pathways.

    Safety Engineering Expert Witnesses

    Jason T. English, is a seasoned professional engineering consultant who specializes in safety engineering, encompassing workplace safety, premises safety, product safety, safety management, and human factors/ergonomics. He holds a Bachelor of Science degree in Industrial Engineering and a Master of Science degree in Safety Engineering, both earned at Texas A&M University (College Station). He owns English Engineering Inc., which provides professional consultation services in the field of safety engineering, to include workplace safety, premises safety, product safety, and human factors/ergonomics.

    Discussions by the Court

    Federal Rule of Evidence 702 governs the admissibility of expert testimony, requiring the proponent to demonstrate that the expert’s knowledge will aid the trier of fact, the testimony is based on sufficient facts, the methods are reliable, and the application to the case is reliable. The Daubert factors, including testability, peer review, error rate, and general acceptance, guide the evaluation of reliability. The trial court acts as a gatekeeper, ensuring the testimony is both reliable and relevant. However, the Court’s role is not a replacement for the adversary system, and the rejection of expert testimony is the exception rather than the rule. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are emphasized. The proponent bears the burden of proving that the expert testimony meets Rule 702 requirements. 

    The Plaintiffs sought to exclude the testimony of defense expert Mitchell Wood, alleging that his causation opinions were unreliable and that he lacked the necessary education and training as a safety engineer to qualify for giving opinions on floor maintenance. However, the Court, after evaluating Wood’s credentials and extensive experience, determined that he was qualified to testify as an expert in the case, including offering opinions on causation and floor safety. The Court highlighted Wood’s educational background, which included a bachelor’s degree in civil engineering and master’s and bachelor’s degrees in architecture. Furthermore, Wood held licenses in commercial construction, inspection, and architecture, and his 34 years of experience as a certified code review architect, licensed general contractor, licensed building inspector, and civil engineer were considered as additional qualifications for his role as an expert in the case.

    The Court determined that Mitchell Wood’s opinions and report were grounded in sufficient facts and data. Upon review of the record, the Court found no mischaracterization of facts or use of inadmissible evidence in Wood’s work. It was observed that Wood had considered, for the most part, the same evidence that the Plaintiffs’ expert had reviewed. The Court advised the Plaintiffs to focus on robust cross-examination and the presentation of contrary evidence to contest Wood’s opinions. Additionally, the Court believed that Wood’s expert opinions would aid the jury in considering Section 2800.6(B). Consequently, the Plaintiffs’ Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood was denied.

    Defendants raised objections to the report of Plaintiffs’ expert, Jason English, arguing that it contained numerous speculative assumptions and conjectures without factual evidence to support them. The defense asserted that English’s report was unreliable and irrelevant to the elements required in Section 2800.6(B). Specifically, Defendants criticized English’s theories of causation related to grease build-up on the floor and the use of improper cleaning products, claiming that these theories would mislead and confuse the jury.

    In response, Plaintiffs reiterated their focus on English’s report and introduced an affidavit from English, emphasizing factors relevant to determining whether the floor maintenance practices at Outback created an unreasonably dangerous condition. However, Defendants filed a Motion to Strike the affidavit, contending that it violated Federal Rule of Civil Procedure 26(a)(2)(D) as the additional information should have been included in English’s initial report.

    After thorough review of the arguments presented in both defense motions, the Court acknowledged that presenting the affidavit in response to the defense Daubert motion was not ideal. However, the potential prejudice to the defense was considered to be mitigated by the trial date being reset to May 2024. The Court expressed the belief that Jason English’s explanations and opinions, covering various standards in the restaurant industry, technical aspects of floor cleaning fluids and methods, proper application, and the consequences of improper use, were grounded in sufficient factual evidence. The Court concluded that English’s testimony would assist the jury in evaluating the elements required under Section 2800.6(B). It was noted that the defense retained the option to conduct rigorous cross-examination, and jurors would be instructed to weigh English’s testimony appropriately based on the facts and testimony presented during the trial. Consequently, both Defendants’ Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English and Defendants’ Motion to Strike the Affidavit of Jason English were denied.

    Held 

    The Court denied Plaintiffs’ Motion to Exclude the Testimony, Report, and Opinions of Defendants’ Expert Mitchell Wood. Furthermore, the Court denied both Defendants’ Motion to Exclude the Testimony, Report, and Opinions of Plaintiffs’ Expert Jason English and Defendants’ Motion to Strike the Affidavit of Jason English.

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

    Key Takeaways

    In this slip and fall case stemming from incidents at an Outback Steakhouse, both parties presented expert testimony related to causation under Louisiana’s Merchant Liability Statute. The Court addressed Daubert motions concerning the admissibility of expert testimony, focusing on the qualifications and reliability of the experts. Plaintiffs sought to exclude the testimony of defense expert Mitchell Wood, citing his lack of requisite qualifications. However, the Court determined that Wood’s extensive experience and education qualified him to testify, and his opinions were grounded in sufficient facts. The Court encouraged vigorous cross-examination by the Plaintiffs. On the other hand, Defendants challenged the reliability and relevance of Plaintiffs’ expert, Jason English, arguing that his report contained speculative assumptions. On presenting an affidavit from English in response to the Daubert motion, the Court allowed it despite allegations that the affidavit violated Federal Rule of Civil Procedure 26, stating that potential prejudice was mitigated by the trial date being reset. The Court deemed English’s opinions, covering restaurant industry standards and floor maintenance practices, grounded in sufficient factual evidence, and concluded that his testimony would aid the jury. Both experts’ testimonies were deemed admissible, underscoring the importance of thorough qualifications, reliability, and flexibility in applying Daubert principles in expert testimony admissibility.

    Case Details 

    Case Caption Rowland v. Outback Steakhouse of Fla., LLC
    Docket Number 5:22cv667
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 9648
    Order Date January 18, 2024
  • Accounting Expert Witness’ Two-Party Market Analysis Admitted

    Accounting Expert Witness’ Two-Party Market Analysis Admitted

    Hayward Industries, Inc. (the Plaintiff), a company in the pool industry, filed a complaint against competitors (the Defendants) over the sale of aftermarket replacement salt cells for use in Plaintiff’s chlorine generator systems. Chlorine generators, also known as “salt cell systems,” convert dissolved salt into chlorine to sanitize pools. Chlorine generator systems replace the need for liquid or tablet chlorine. The salt cell has a limited use life and is replaced by inserting a new salt cell into the overall system when the prior cell is exhausted. Hayward manufactures and sells pool chlorination systems, and the dispute centers around the Defendants’ alleged violations of the Lanham Act and other claims. The Plaintiff contends that the Defendants’ advertising is misleading and creates confusion among customers, making them believe that the aftermarket products are actually Hayward’s.

    The Plaintiff presented Juli Saitz’s expert report in the legal proceedings to bolster their damage claims, particularly focusing on her assessment of lost profits the Plaintiff is entitled to. Saitz conducted an analysis of the relevant market, characterizing it as a two-party market. This characterization suggested that Hayward, the Plaintiff, would have secured sales of replacement salt cells if not for the Defendants’ alleged false advertising and trademark infringement.

    The Defendants filed a Motion in Limine, pursuant to Federal Rules of Evidence 702, in order to exclude the testimony of the Plaintiff’s damages expert, Juli Saitz.

    Accounting Expert Witness

    Juli Saitz is a Certified Public Accountant with nearly 25 years of experience. She has been appointed as an expert in matters of forensic accounting on more than 20 occasions. Saitz has testified in both litigation and arbitration for disputed values in excess of $100 million. She has served as an expert in matters involving business divorces; shareholder disputes; fraud claims; breach of contract matters; patent, trademark, and copyright infringement; and royalty disputes.

    Saitz has a background in commercial disputes and financial consulting services related to financial analysis, investigations, and damage analysis. She is experienced across a range of industries including entertainment, real estate, hospitality, food and beverage, consumer products, financial services, and manufacturing.

    Discussion by the Court

    Federal Rules of Evidence 702 requires that an expert’s opinion testimony be “based on sufficient facts or data” and must be “the product of reliable principles and methods.” Daubert, as was held in Sardis v. Overhead Door Corp., 10 F.4th 268, 281 (4th Cir. 2021), provides non-exhaustive “guideposts” to aid in the required analysis as to whether an expert’s testimony is reliable: (1) whether the expert’s theory or technique “can be (and has been) tested”; (2) whether the theory or technique has been subject to prior review and publication; (3) “the known or potential rate of error” inherent in the expert’s theory or technique; and (4) whether the expert’s methodology is generally accepted in his field of expertise.

    The Defendants are seeking to exclude Saitz’s report, asserting three main arguments. Firstly, they claim that Saitz used a patent damages framework (the Panduit test) inappropriately for Lanham Act cases. Secondly, they argue that Saitz did not establish a connection between the Defendants’ alleged infringing conduct and the assumed transferred sales to Hayward, thus failing to show causation as required to support a lost profits award. Lastly, the Defendants assert that Saitz overlooked significant and undisputed evidence, including factors like pricing influencing consumer decisions, the market for the goods at issue—replacement salt cells for pool chlorination systems-not being a two-party structure as assumed, and issues related to Hayward’s supply chain disruptions and inventory during the relevant damages period.

    The Court has rejected the Defendants’ motion. The challenges raised by the Defendants regarding Juli Saitz’s expert report were deemed as concerns about the weight of her testimony rather than its admissibility. The Court acknowledged that Saitz’s methodology, which had been employed by other courts, is acceptable in cases involving essentially a two-party market. The ruling suggests that the Defendants can contest Saitz’s methodologies during cross-examination concerning damages but doesn’t deem them grounds for excluding her testimony.

    Held

    The Court denied Defendants’ motion to exclude Saitz’s expert report and testimony from trial. As of now, the Court has not reached a verdict in this case, as there are still pending issues that await resolution.

    Key Takeaways:

    The key takeaways from the court proceedings on expert testimony are grounded in the Federal Rules of Evidence, particularly Rule 702, which mandates that expert opinions must be based on sufficient facts and reliable principles and methods. The Daubert standard, as elucidated in Sardis v. Overhead Door Corp., provides guiding criteria to evaluate the reliability of expert testimony, including whether the theory or technique is testable, has undergone prior review, the potential rate of error, and general acceptance in the field.

    In this specific case, the Defendants sought to exclude the expert testimony of Juli Saitz, raising three primary objections. Firstly, they argued that Saitz improperly utilized a patent damages framework for Lanham Act cases. Secondly, they contended that Saitz failed to establish a connection between the alleged infringing conduct by the Defendants and the assumed transferred sales to Hayward, thereby lacking causation necessary for a lost profits award. Lastly, the Defendants asserted that Saitz overlooked crucial evidence, such as pricing influences on consumer decisions, the market structure not aligning with the assumed two-party framework, and issues related to Hayward’s supply chain disruptions.

    Despite these challenges, the Court denied the Defendants’ motion, emphasizing that the concerns raised pertained to the weight of Saitz’s testimony rather than its admissibility. The Court acknowledged the acceptance of Saitz’s methodology in similar contexts and allowed the Defendants to challenge her methodologies during cross-examination. Saitz, with nearly 25 years of experience, brings expertise in forensic accounting and has been involved in diverse disputes, ranging from business divorces to intellectual property matters. The Court’s decision underscores the importance of cross-examination in scrutinizing expert testimony, granting the Defendants an opportunity to challenge Saitz’s methodologies and findings while allowing her testimony to remain admissible.

    Case Details

    Case Caption Hayward Industries, Inc. V. Blueworks Corporation Et Al
    Docket Number 3:20cv710
    Court United States District Court, North Carolina Western
    Citation 2024 U.S. Dist. LEXIS 9511
    Order Date January 17, 2024
  • Railroad Expert Witness Testimony Evaluating Light Cannon as a Field Test Admitted

    Railroad Expert Witness Testimony Evaluating Light Cannon as a Field Test Admitted

    Railroad companies were obligated to ensure that locomotive conductors met federal standards of visual acuity, including color vision, before they were permitted to conduct trains, in accordance with 49 C.F.R. § 240.121(c). To comply with these regulations, conductors underwent testing approximately every three years to confirm adherence to the specified vision standards. The federal regulations provided a range of acceptable testing methods, outlined in 49 C.F.R. App. F(4), to assess a conductor’s ability to differentiate between the colors of railroad signals. In cases where a conductor did not pass the test chosen by their employer, they had the option to request further testing, often in the form of a field test, to ascertain their fitness for duty.

    Union Pacific Railroad Company initiated its color vision test process by conducting an Ishihara fourteen-plate color vision test, known for its high sensitivity to color-vision deficiencies. If a conductor successfully passed this initial test, recertification to operate trains was granted without any complications. However, if a conductor failed the test, the usual course of action involved progressing to a field test. This field test aimed to assess whether the conductor could safely operate trains despite any color vision deficiency. If the conductor passed the field test, Union Pacific would similarly recertify them for train operation.

    Monte Mills (“Mills”), the Plaintiff, served as a conductor for Union Pacific Railroad Company (“Union Pacific”), the Defendant, for a period exceeding twelve years. Throughout this duration, Union Pacific conducted vision tests on Mills on at least three occasions. In the first two tests, Mills did not pass the Ishihara due to a color-vision deficiency. Nevertheless, on both occasions, Mills successfully cleared Union Pacific’s subsequent field test and was recertified.

    In 2016, Union Pacific conducted another round of color vision testing for Mills. Once again, Mills did not pass the Ishihara and underwent a subsequent field test. However, by 2016, Union Pacific had introduced a new field test called the Light Cannon. Mills did not pass the Light Cannon test, leading to Union Pacific denying him recertification. Consequently, this denial marked the conclusion of Mills’ employment as a conductor at Union Pacific, despite his history of incident-free work.

    On March 21, 2022, Mills initiated a lawsuit against Union Pacific, alleging unlawful discrimination based on disability, contravening § 12112 of the Americans with Disabilities Act (ADA). The legal proceedings advanced through discovery and the presentation of proposed expert witnesses. Subsequently, Mills filed a Motion in Limine, urging the Court to exclude testimony from Union Pacific’s expert witness Steven Fender. Union Pacific, in response, sought summary judgment and submitted a Motion to Strike Testimony from Mills’ Experts Jay Neitz and Kevin Tranngle. Furthermore, on October 10, 2023, Mills filed a Notice of Supplemental Authority, to which Union Pacific objected, promptly requesting the Court to strike the Notice from the record.

    Railroad Expert Witness

    Steven J. Fender is a seasoned Railroad Transportation/Safety Consultant, bringing an extensive 45 years of experience in the railroad industry. His expertise led him to frequent participation in rule and regulation review and development teams, as well as diverse roles within multi-modal and multi-discipline public safety evaluation teams, task forces, and industry-related projects and programs. Presently, Fender holds the position of Principal at Fender Rail Transportation and Safety Consulting Services, LLC. Prior to this, he served as the Railroad Administrator at the Federal Railroad Administration, where his principal responsibility involved providing guidance and direction for the Federal Railroad Administration (FRA) and the US Department of Transportation (the “DOT”) transportation safety policy and organizational operations. Fender’s educational background includes multiple learning institutions nationwide, attended at various locations, further solidifying his comprehensive knowledge and qualifications in the field.

    Occupational Medicine Expert Witness

    Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his M.D. from the University of Minnesota Medical School and also holds an MBA in Healthcare Management from Case Western Reserve University. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle is currently a Senior Clinical Instructor at Case Western Reserve University and is the Associate Staff Member at Euclid General Hospital.

    Ophthalmology Expert Witness

    Dr. Jay Neitz is the E.K. Bishop Endowed Professor in Ophthalmology at the University of Washington in Seattle, boasting a career spanning over 30 years as a research scientist and educator.  He obtained B.A. from San Jose State University and then earned his Ph.D. from the University of California, Santa Barbara. With comprehensive expertise in all facets of eye disorders and their impact on visual performance, Neitz has made significant contributions to the field. His extensive research encompasses a focus on color vision deficiencies, where he has not only developed but also refined various tests and methods for identifying such deficiencies.

    Discussion by the Court

    Mills moved to exclude the testimony of Union Pacific’s expert, Steven Fender, who served as a Railroad Transportation and Safety Consultant. Fender has a background of working in various positions for the Federal Railroad Administration (FRA) over numerous years. The dispute between the parties revolved around Fender’s proposed testimony, specifically focusing on his evaluation of the Light Cannon as a field test.

    Mills argued that Fender’s testimony was neither relevant nor based on a reliable foundation, advocating for its exclusion. Union Pacific countered, asserting that Fender’s testimony was both reliable and relevant. Additionally, Union Pacific contended that Fender’s testimony was crucial as it was seen as dispositive, emphasizing that employers should not face liability for adhering to federally imposed safety guidelines.

    The federal regulations in question aimed to ensure train conductors could “recognize and distinguish between the colors of railroad signals.” While providing a list of acceptable color-vision tests, the Federal Railroad Administration (FRA) acknowledged that individuals failing these tests might still be qualified for the role. Notably, the regulations did not mandate specific follow-up tests for those who failed the specified tests, granting railroad companies discretion in evaluating conductor fitness within a defined framework.

    After establishing a prima facie case under the ADA, an employer could avoid liability for an alleged discriminatory qualification standard by invoking affirmative defenses such as business necessity or direct threat. Successfully asserting a business necessity defense required the employer to demonstrate that the challenged standard was both job-related, consistent with business necessity, and that reasonable accommodation would not enable performance.

    The FRA stipulated that a railroad company’s field test must be “valid, reliable, and comparable” for assessing a person’s ability to safely perform as a locomotive engineer or conductor. Mills argued that determining the validity of the Light Cannon required a medical, scientific inquiry, asserting that Fender lacked the necessary medical background. Despite acknowledging that testimony based on medical or scientific assessment might be more persuasive, the Court did not find Fender’s expertise wholly inappropriate for evaluating the Light Cannon. Fender’s extensive professional history in railroad safety suggested he was well-suited to assess whether a field test mimicked the conditions faced by train operators and whether use of the Light Cannon is at least permissible under federal regulations. While Fender lacked a medical or scientific background, the Court deemed these limitations not severe enough to warrant his disqualification, allowing Mills to address them through cross-examination.

    The central issue in this case was whether Union Pacific’s decision not to recertify Mills amounted to disability discrimination under the ADA. Another critical aspect was Union Pacific’s ability to establish an affirmative defense to disability discrimination, potentially involving the determination of business necessity. Fender’s testimony regarding the Light Cannon’s compliance with federal regulations could provide insight for the fact finder on this matter. Mills expressed concerns about potential confusion caused by Fender’s testimony. Despite acknowledging a remote possibility of confusion, the Court was confident that any such issues could be addressed through cross-examination, thus deeming the testimony admissible.

    Union Pacific asserted that Fender’s testimony was not only relevant and reliable but also dispositive under Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 573-74 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999). The Court acknowledged the relevance and reliability of Fender’s testimony but disagreed with Union Pacific’s interpretation of Albertson’s, finding it a stretch. In Albertson’s, the Supreme Court allowed an employer to insist on a specific federal safety regulation, and Union Pacific argued for a similar discretion. However, the Court noted significant differences in the facts, emphasizing that Union Pacific couldn’t opt out of conducting follow-up tests as per governing regulations.

    While recognizing railroad companies’ discretion in choosing follow-up tests, the Court clarified that it must align with federal laws, including the ADA. Consequently, Fender’s testimony on the Light Cannon’s compliance with federal regulations was deemed relevant but not dispositive. Mills’ Motion to Exclude Fender’s Testimony was denied. The Court clarified that although federal regulations do not mandate the use of the Light Cannon, Fender’s testimony on the matter is not considered dispositive.

    Union Pacific moved for summary judgment, asserting four main contentions: (1) Mills’ claims were time-barred, (2) Mills did not qualify as a “qualified individual” under the ADA and relevant caselaw, (3) Union Pacific had legitimate, non-discriminatory, and non-pretextual reasons for denying Mills return to the conductor position, and (4) Mills could not establish a disparate impact claim.

    Union Pacific argued that Mills received a notice of his right to sue in January 2021, citing Mills’ deposition testimony where he affirmed receiving it on or around January 21, 2021. Union Pacific also presented the notice letter from the Equal Employment Opportunity Commission (the “EEOC”), dated January 21, 2021, as evidence. According to Union Pacific, since Mills filed his lawsuit on March 31, 2022, well beyond the ninety-day limit from the alleged notice date, the claim should be considered time-barred.

    In contrast, Mills contested receiving the notice and claimed uncertainty during his deposition about what a notice of right to sue entailed. He believed he had received various documents from the EEOC and assumed the notice letter was among them. Mills and his counsel, upon closer examination, could not locate the letter in the EEOC’s file on Mills, raising doubts about its existence and delivery. Both Mills and his counsel submitted sworn declarations supporting their findings.

    The Court noted the absence of evidence from Union Pacific demonstrating that the notice letter was indeed mailed to Mills, as required by the mailbox rule. Consequently, the Court concluded that there was insufficient evidence to deem Mills’ claim time-barred.

    Union Pacific contended that Mills’ claims should be legally barred as he did not qualify as a “qualified individual” under the Americans with Disabilities Act (ADA). A qualified individual, as per the ADA, is someone possessing the necessary skills, experience, education, and other job-related requirements for the disputed position and can perform its essential functions with or without reasonable accommodation.

    Union Pacific argued that since the Federal Railroad Administration (FRA) had approved its administration of the Light Cannon, anyone failing this test did not meet the job-related requirements of the position and, therefore, could not be considered qualified. The Court, however, determined that the issues of whether Mills possessed the required qualifications to be a conductor and if he could perform the essential functions of the role were factual questions.

    The Court highlighted Mills’ extensive work history of successfully passing color-vision field tests and accurately identifying railroad signals. Based on these facts, the Court concluded that a jury could reasonably find Mills to be a qualified individual. Consequently, the Court deemed summary judgment on that basis inappropriate.

    The Court recognized that being a train conductor is a high-stakes occupation, where some degree of color-vision discernment is deemed important. However, the question of whether Mills’ specific disability is pertinent to the job requirements of a train conductor remained a disputed material fact. Consequently, the Court concluded that summary judgment on that basis was inappropriate.

    Union Pacific claimed that Mills could not establish a disparate impact claim for three reasons: (1) lack of statistical evidence supporting his claim, (2) Mills was only “regarded as” having a disability, not having an “actual disability,” and (3) Union Pacific’s use of the Light Cannon was justified by business necessity. The Court determined that the primary purpose of the Light Cannon was to screen out individuals with color vision deficiency, making it unnecessary and wasteful to demand statistical evidence confirming its intended function. Therefore, Mills was not obliged to provide statistical evidence for his disparate impact claim.

    Regarding the argument about Mills being “regarded as” disabled, Union Pacific acknowledged this, and since Mills asserted his disability, the Court deemed Union Pacific’s contention insufficient to warrant summary judgment.

    In the broader context, Union Pacific failed to conclusively demonstrate that the Light Cannon accurately measured Mills’ actual ability to perform essential job functions or that no reasonable accommodation existed to address any performance deficiency. Consequently, the Court deemed summary judgment on the basis of a business-necessity defense inappropriate.

    In his response to Union Pacific’s Motion for Summary Judgment, Mills briefly mentions the Independent Medical Record Review (“the Report”) conducted by two expert witnesses, Jay Neitz and Kevin Trangle (the “Doctors”). Trangle, a Doctor of Occupational Medicine, and Neitz, a Professor of Ophthalmology specializing in color vision and vision disorders, were retained by Mills’ counsel to assess whether the Light Cannon screens out individuals with color vision deficiency who could still safely perform conductor duties. 

    Union Pacific moved to strike the Independent Medical Record Review Report from the record and any references to it in Mills’ Response. According to Union Pacific, the Report functions as a transmitter of testimonial hearsay, violating Fed. R. Evid. 703, and the opinions expressed by the Doctors lack a proper foundation, constituting baseless speculation in contravention of Fed. R. Evid. 702. 

    The opinion presented by the Doctors in the Report is partially based on a scientific study conducted by Dr. Jeff C. Rabin. The Doctors interpret Rabin’s study to suggest that the Light Cannon fails many individuals who could safely operate trains.

    Union Pacific contends that the Doctors, rather than forming independent conclusions, have merely repackaged Rabin’s report and presented it as their own opinion. To support this assertion, Union Pacific highlights that neither Doctor had conducted personal research on the Light Cannon nor even witnessed the administration of a Light Cannon test.

    The Court asserted that expert testimony is not required to be founded on personal knowledge but can rely on information that experts in a specific field would consider. Therefore, the Doctors were not obligated to personally study or observe the Light Cannon in operation. Additionally, since Union Pacific did not present any evidence or argument questioning the reliability of Rabin’s study, the Court tentatively concluded that experts in the field of color-vision testing could reasonably rely on the study.

    Upon thorough consideration, the Court determined that the Doctors did apply their training and experience to the available sources, reaching an independent judgment. While the Doctors integrated Rabin’s study findings into their analysis, they also conducted an exhaustive review of Mills’ color vision tests history and Union Pacific work safety records. The Court noted that the Doctors’ application of their own expertise is evident in their broader discussion of color-vision testing and their interpretation of Mills’ test results. Consequently, the Court rejected Union Pacific’s first challenge, asserting that the Doctors’ opinions are not mere transmissions of testimonial hearsay.

    Union Pacific contended that the Doctors’ conclusions lack a sufficient factual basis for admissibility under Rule 702. The Doctors, in their Report, assert that the Light Cannon, as administered to Mills, “fails anomalous trichromats (individuals with slight color vision defects) who can safely perform their railroad duties”. Additionally, they opined that Mills can “safely distinguish colors necessary” for railroad work. Union Pacific argued that these conclusions lack an appropriate factual foundation.

    In addition to the standards outlined earlier, the Court underscored that, in addressing Daubert challenges, its role was not to determine the correctness of the expert’s opinions but to assess whether the testimony held substance and would be beneficial to a jury, as established in Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 960-70 (9th Cir. 2013). Moreover, the Ninth Circuit affirmed that the facts or data required under Rule 702 could encompass the specialized knowledge and experience of the testifying expert, as indicated in Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1024 (9th Cir. 2022).

    The Doctors’ opinion on the Light Cannon’s tendency to fail anomalous trichromats, despite their qualification for railroad duties, was grounded in their examination of Rabin’s study, their assessment of Mills’ medical and work history, and their specialized knowledge of anomalous trichromats. Although this factual foundation was subject to potential challenges through cross-examination and opposing evidence, it undeniably existed, contrary to Union Pacific’s assertions. The Court determined that such testimony possessed sufficient substance to be beneficial to a jury, even if it did not conclusively resolve the central issues in the case.

    The validity of the Doctors’ opinions on Mills’ color vision remains consistent. Union Pacific contends that the evidence reviewed by the Doctors lacks relevance with regard to Mills’ color vision in 2016. However, the Report clarifies that the Doctors diligently examined Mills’ comprehensive history of color vision testing at Union Pacific. While acknowledging the potential for changes or deterioration in one’s vision over time, the Court determined that Mills’ test history remained pertinent. When coupled with an assessment of Mills’ accident-free work record and the Doctors’ individual expertise in ophthalmology and occupational medicine, the factual foundation for their testimony was evidently sufficient. Any perceived methodological flaws by Union Pacific could be addressed through cross-examination.

    On October 10, 2023, Mills filed a Notice of Supplemental Authority with the Court, attempting to bring attention to a federal complaint filed by the EEOC against Union Pacific in Minnesota. The complaint, similar to Mills’ case, alleged that Union Pacific’s use of the Light Cannon violated the ADA. Union Pacific objected to this filing shortly thereafter. The Court, noted that the filing of a complaint did not provide guidance on how to handle Mills’ case, sustained Union Pacific’s objection. Consequently, Mills’ Notice was stricken from the record.

    Held

    The Court determined that Steven Fender’s testimony could provide relevant information to the fact finder, rendering it admissible. Consequently, Mills’ Motion in Limine was denied. Recognizing unresolved questions of material fact that precluded summary judgment, the Court also denied Union Pacific’s Motion for Summary Judgment. The Court further concluded that Mills’ experts had appropriately applied their expertise to the available materials, establishing a sufficient factual basis to withstand preclusion under Rules 702 and 703. Therefore, Union Pacific’s Motion to Strike was denied. Additionally, the Court sustained Union Pacific’s objection to Mills’ proffer of a recently filed suit against Union Pacific, considering it did not qualify as supplemental authority. As a result, the Notice was stricken from the record.

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

    Key Takeaways

    In the legal dispute between Monte Mills and Union Pacific, the admissibility of expert testimony played a pivotal role, particularly regarding the compliance of Union Pacific’s Light Cannon color vision test with federal regulations. The Court addressed Mills’ motion to exclude testimony from Union Pacific’s expert, Steven Fender, and allowed its admissibility, deeming it relevant but not dispositive.

    Union Pacific’s attempt to strike testimony from Mills’ expert witnesses, Jay Neitz and Kevin Trangle, was rejected by the Court. The Court asserted that expert testimony need not be based on personal knowledge and deemed the Doctors’ opinions sufficiently grounded in their review of studies, Mills’ test history, and their specialized knowledge.

    Union Pacific sought summary judgment on multiple grounds, including the timeliness of Mills’ ADA claims, his qualification as a “qualified individual,” and the failure to establish a disparate impact claim. The Court dismissed Union Pacific’s arguments, allowing the case to proceed to trial. Lastly, Mills’ attempt to introduce a Notice of Supplemental Authority regarding a similar EEOC complaint in Minnesota was stricken from the record.

    Case Details

    Case Caption Mills V. Union Pacific Railroad Co.
    Docket Number 1:22cv143
    Court United States District Court, Idaho
    Citation 2024 U.S. Dist. LEXIS 9036
    Order Date January 16, 2024
  • Construction Expert Witness Testimony Admitted Despite Conducting Inspection Three Years Post Hurricanes

    Construction Expert Witness Testimony Admitted Despite Conducting Inspection Three Years Post Hurricanes

    This dispute stems from damages caused by Hurricane Laura and Hurricane Delta to a residence at 3321 Landfair Street, Lake Charles, Louisiana. The property, owned by the estate of Bobby Shelton, was insured by State Farm Fire & Casualty Company . Cynthia Frisbie, the executor of the estate, filed a lawsuit on October 16, 2021, in the Louisiana Western District Court, alleging that  State Farm did not promptly or adequately compensate for covered losses under the insurance policy.

    While the Frisbie suit was still ongoing on August 16, 2022, Cat 5 Pro LLC (“Cat 5”) initiated a separate lawsuit against State Farm in the same court. Cat 5 claimed that Frisbie had assigned her rights under the policy to Cat 5, asserting that State Farm owed them $69,625.27 (factoring in a $16,657.42 payment) for mitigation work carried out at the Shelton residence. Cat 5 raised claims of breach of contract and bad faith under Louisiana law in connection with the unpaid invoices for their completed work.

    The two suits proceeded through the Case Management Order for first-party hurricane claims but did not resolve. They were consolidated at State Farm’s motion and have been set for jury trial on January 29, 2024. On September 26, 2023, Cat 5’s bad faith claims were dismissed on the grounds that these had not been validly assigned by Frisbie. On November 17, 2023, Cat 5 filed suit against State Farm in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana. There it raised breach of good faith and fair dealing, breach of contract, detrimental reliance, and fraud claims under Louisiana law against the insurer based on the $69,625.27 in unpaid invoices for its work on the property at 3321 Landfair Street. It also asserted that the amount in controversy “does not exceed $75,000.”

    State Farm removed the suit to the Western District Court of Louisiana on the basis of diversity jurisdiction. Plaintiff filed a Motion to Remand, which this Court denied. State Farm then filed a Motion to Dismiss the state filed removed suit, which this Court granted.

    Plaintiff Cat 5 Pro filed a Daubert motion to exclude the reports and
    testimony of State Farm’s expert Jonathan Palmer as well as a motion to strike the expert report of Jonathan Palmer.

    Construction Expert Witness

    Jonathan Palmer, licensed as a building and residential contractor since 2017, boasts over 17 years of construction experience. He earned a postbaccalaureate certification in Construction Management from Louisiana State University. Palmer has overseen a diverse range of construction projects, including small complex residential ventures to large commercial projects. Since 2019, he has served as a Managing Building Consultant at Keystone Experts and Engineers.

    Discussion by the Court

    Under Federal Rule of Evidence 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” When expert testimony is challenged under Daubert, the burden of proof rests with the party seeking to present the testimony.

    Palmer had been retained by State Farm to provide insights into the disputed invoice under scrutiny in this litigation. Cat 5 contested Palmer’s qualifications, asserting an alleged deficiency in certifications and licensure. They also claimed he failed to articulate his expert designation during deposition. Additionally, Cat 5 argued that Palmer’s report and opinions lacked reliability due to his inspection occurring three years after the hurricanes.

    Cat 5 contended that Palmer lacked qualifications because he acquired his residential construction license post-Hurricanes Laura and Delta and lacked official certifications in related areas. They argued that expertise is determined by “knowledge, skill, experience, training, or education,” as per Federal Rule of Evidence 702. The Court noted that the absence of certain certifications, including a residential construction license obtained after the hurricanes, might not automatically disqualify an individual from providing expert testimony.

    State Farm countered, asserting that Palmer was qualified as an expert general contractor. They refuted Cat 5’s claim that Palmer obtained his residential construction license in 2021, presenting evidence that he held it since 2018. State Farm highlighted Cat 5’s lack of construction and mold remediation licenses, emphasizing that Cat 5 only acquired a home improvement license in 2021 after performing mitigation work on the Frisbie property post-hurricanes.

    Regarding Palmer’s testimony on his area of expertise, State Farm contested Cat 5’s representation, asserting misrepresentation. Cat 5 claimed Palmer couldn’t specify State Farm’s designation of him as an expert witness during his deposition. However, Palmer clarified that while he didn’t know the specific terminology, his expertise lay in being a general contractor. State Farm argued that Palmer’s qualification stemmed from his knowledge, education, experience, and expertise in general contracting.

    On the matter of reliability, State Farm maintained that Palmer’s 14-page report, based on Cat 5’s estimate, photographs, drying logs, State Farm’s photographs, and his own inspection (albeit conducted three years post-hurricane), demonstrated the credibility of his findings.

    The Court determined that an expert’s opinions remain reliable even if they rely on evidence gathered by others rather than the expert’s direct inspection of the residence. State Farm emphasized that such arguments challenge credibility and are suitable for cross-examination, but they do not constitute a basis for deeming the expert’s testimony inherently unreliable.

    State Farm contended that the case’s nature was inherently spoliative, given that the disputed invoice originated after the completion of mitigation work, making it impossible to inspect the property before that work was done. After reviewing the memoranda from both parties, the Court found no grounds to exclude Palmer’s report and testimony.

    Henceforth, when Cat 5 argued that Palmer’s expert report should be stricken because he inspected the Frisbie property three years after Hurricanes Laura and Delta damaged the property, and because there was some confusion as to the bates numbers on certain photographs, the Court found no basis to grant the relief sought by Cat 5.

    Held

    The Court denied the Daubert motion to exclude the reports and
    testimony of Jonathan Palmer as well as the motion to strike the expert report of Jonathan Palmer.

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

    Key Takeaways:

    The admissibility of expert testimony in this case hinged on Federal Rule of Evidence 702, which outlines the qualifications and criteria for expert witnesses. The Court emphasized that lacking specific certifications or licenses, especially when related to post-disaster scenarios, does not automatically disqualify an expert under Rule 702. State Farm successfully argued that Palmer’s expertise as a general contractor, supported by knowledge, education, and experience, qualified him to provide insights into the disputed invoice. The Court highlighted that challenges to expert testimony, such as those raised by Cat 5, should be addressed through cross-examination rather than outright exclusion. Additionally, the Court rejected the argument that the nature of the case, involving post-mitigation inspection, rendered expert testimony inherently unreliable. This case underscores the importance of adherence to Rule 702’s criteria and the recognition that challenges to expert testimony primarily serve as fodder for cross-examination rather than grounds for exclusion.

    Case Details

    Case Caption Frisbie V. State Farm Fire
    Docket Number 2:21cv3658
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 8907
    Order Date January 17, 2024
  • Trucking Expert Witness Testimony on Negligent Operation of Vehicles Admitted

    Trucking Expert Witness Testimony on Negligent Operation of Vehicles Admitted

    Plaintiff Shawn Martin suffered serious injuries from the rear-end motor vehicle collision with Defendant Valenzuela’s trailer, which occurred on I-84 on Cabbage Hill outside Pendleton, Oregon, amid adverse weather conditions. Defendants Luis Valenzuela and Baljinder Singh were operating commercial motor vehicles, while Defendant Joel Hannu was driving a large pick-up truck. The Plaintiff, Shawn Martin, operated a pick-up truck and had a passenger, Dylan Smith, at the time of the incident.

    Defendants Valenzuela and Singh encountered a scene with multiple vehicles blocking the highway upon their arrival. As Defendant Valenzuela was slowing down for traffic, Defendant Singh, along with a Black Ford Escape, collided behind him, forcing Valenzuela out of his lane. Consequently, Valenzuela’s semi-truck was struck by Defendant Singh and/or the Ford Escape. Despite managing to bring his truck to a complete stop on the highway exit ramp without colliding with other vehicles, Valenzuela couldn’t proceed forward due to previous collisions blocking the road. Additionally, Defendant Singh’s tractor-trailer obstructed the exit. In a matter of seconds, the Plaintiff, Shawn Martin, collided with the rear of Valenzuela’s trailer.

    The Plaintiff entered the highway from the onramp immediately preceding the exit where the accident occurred. At that location, an Oregon Department of Transportation (ODOT) worker flagged down the Plaintiff, warning of an accident or a stalled vehicle in the fast lane about two miles down the road. Although the Plaintiff noticed some fog upon entering the highway, the weather conditions worsened just before the accident, reaching “zero visibility.” Despite being aware of the stalled vehicle ahead and facing poor visibility, multiple witnesses, including the Plaintiff’s passenger, had confirmed the Plaintiff’s speed at 45 miles per hour just before colliding with the back of Valenzuela’s stopped trailer. Plaintiff sustained serious injuries in the accident. Plaintiffs Shawn Martin and Karen Martin brought a negligence action against multiple Defendants, stemming from a multi-vehicle accident.

    The Plaintiff hired a trucking expert, Lew Grill, with the intention of obtaining testimony on Federal Motor Carrier Safety Administration (FMCSA) regulations. Grill’s evaluation focused on determining whether the Defendants’ drivers had violated FMCSA regulations. 

    The final deadline for expert disclosures had been known to the parties for months. By Order dated April 10, 2023, the Court reset the deadline for expert disclosures to July 18, 2023, and rebuttal expert disclosures to August 8, 2023. On July 18, 2023, the Plaintiffs disclosed and produced reports from their two purported primary experts, Lew Grill ( Trucking Expert)  and Sharla Paso (Medical Billing Expert). On August 8, 2023, the date for rebuttal reports, Plaintiffs submitted a four-page “rebuttal” report from Paso and newly disclosed expert Michele Cook (“Paso/Cook Report”) that contained the primary opinions alluded to but not included in the original Paso Report.

    Defendant Valenzuela moved to exclude the expert report of Plaintiffs’ trucking expert, Lew Grill (“Grill”), under Federal Rule of Evidence 702. The basis for Valenzuela’s motion was the assertion that Grill’s opinion, as presented in his expert report, lacked sufficient reliability, and his methodology was flawed due to a failure to consider adequate facts and data. Additionally, Defendant Singh joined in the motion. Defendant Singh also moved to strike the expert reports of Passo/Cook due to Plaintiffs’ failure to adhere to their expert discovery obligations under Fed. R. Civ. P. 26(a)(2)(B).

    Trucking Expert Witness

    Lew Grill, an expert witness in motor fleet safety, accident investigation, and traffic accident reconstruction, has a comprehensive background in the trucking industry. He has over 50 years’ experience as a truck driver, independent trucker, truck driver training instructor, and consultant for motor carriers and truck driving schools. Grill holds licenses, certifications, and qualifications as a Commercial Motor Vehicle (CMV) driver with endorsements for hazardous materials, tank truck, double & triple trailers, passenger carriage, and school bus. Currently, Grill is the Founder and Chief Visionary Officer (CVO) at The Legacy Corporation International, and since March 1990, he has been the Founder/CVO, Author, Publisher, A/V Producer, and trucking consultant at Atlantic Pacific Resource Group, Inc.

    Medical Billing Expert Witness

    Sharla Paso, DNP, RNC-OB, Women’s Health CNS, has a Doctorate in Nursing Practice (DNP) from the University of Washington, and has 25 years of experience in various nursing areas including ICU, medical surgical, dialysis, and all areas of obstetric/newborn nursing. Sharla holds certifications in obstetric nursing and as a Life Care Planner. Paso is currently the Owner of Medical Vocational Planning, LLC, and is the Founder of Listen Line Community Services. She obtained her Associate Degree from the College of St Catherine-MPLS and then earned her B.S.N. from Walden University. 

    Life Care Planning Expert Witness

    Michele Cook, RN, MA, ABVE has been a Registered Nurse, Medical Case Manager and Vocational Rehabilitation Counselor for over 30 years. She is also a Life Care Planner for over 15 years. She obtained her R.N. from Los Angeles County College of Nursing and Allied Health and then earned her M.A. from Marylhurst University. Cook is currently the Owner/Operator of Medical Vocational Planning, LLC, which serves the attorney clients in areas of medical negligence, personal injury, motor vehicle accidents, product liability, wrongful death, domestic relations, and workers’ compensation.

    Discussion by the Court

    Federal Rule of Evidence 702 outlines the criteria for admissibility of expert testimony, requiring qualification, reliability, and relevance. The proponent bears the burden of establishing these requirements by a preponderance of the evidence. The Court acts as a gatekeeper, ensuring the testimony is both relevant and reliable. The relevancy bar is low, demanding logical advancement of a material aspect of the case. Testimony is reliable if rooted in the knowledge and experience of the relevant discipline, with a flexible inquiry allowing broad discretion to trial Courts. The reliability test focuses on the methodology’s soundness, not the correctness of conclusions, and shaky but admissible evidence should be addressed through cross-examination and contrary evidence rather than exclusion.

    Lew Grill, a trucking expert retained by the Plaintiffs, provided an expert opinion where he formulated the opinion that both Defendants Singh and Valenzuela were negligent in their operation of their vehicles and failed to adhere to the Federal Motor Carrier Safety Administration (“FMCSA”) regulations. His opinion was based on the review of several documents, including the Oregon State Police Traffic Crash Report, Oregon State Police Incident Report, Driver Statements, Photos of the accident scene, and Deposition Transcripts for Plaintiff Shawn Martin, witness Dylan Smith, and Defendant Singh.

    In their motion to exclude Grill’s testimony, the Defendants pointed out that Grill had not reviewed testimony from witnesses Joel Hannu and Sam Glerup or Defendant Valenzuela, which would have provided information on the conditions immediately preceding the accident. Additionally, the Defendants noted that Grill did not consider testimony from multiple witnesses regarding the weather at the time of the accident or the conditions of the road. The Defendants argued that reviewing this evidence was crucial for any expert to form a reliable opinion. Due to Grill’s failure to examine this evidence, the Defendants asserted that his opinion was unreliable and should be excluded. In response, the Plaintiffs contended that “material facts (time and place of the accident, parties, etc.) are common and generally accepted among all expert reports” and that this case was “relatively simple,” requiring the review of only basic evidence.

    Arguments regarding whether Grill should have reviewed additional documents in formulating his opinion were considered by the Court to pertain to the weight, rather than the admissibility, of Grill’s testimony. The Court emphasized that the requirement for expert testimony to be based on “sufficient facts or data” involves a quantitative analysis rather than a qualitative one. The Court clarified that this requirement doesn’t authorize the exclusion of expert testimony based on the Court’s belief in one version of the facts over another. The Court cited Bluetooth SIG, Inc. v. FCA US LLC, 468 F. Supp. 3d 1342 (W.D. Wash. 2020), stating that the factual basis of an expert opinion goes to the credibility of the testimony, not its admissibility. Therefore, any issues concerning the materials deemed more appropriate for the expert to consult were deemed matters of weight, not admissibility, of the expert’s testimony.

    The Court concluded that Grill’s failure to review all available evidence, including what the Defendants deemed essential, did not render his decision unreliable, at least under Rule 702. While the Defendants presented persuasive arguments highlighting deficiencies in Grill’s analysis due to his limited review of the evidence, on the other hand the Defendants conceded that the basic facts of the accident were not in dispute. As such, the Court determined that Plaintiffs were entitled to have their expert formulate an opinion based on “relatively simple” facts without rendering the opinion inadmissible under Rule 702. Therefore, the Court denied the Defendants’ motions to exclude Grill’s testimony.

    Under Rule 37(c)(1), failure to disclose information required by Rule 26(a) may result in exclusion of evidence unless the failure is justified or harmless. To overcome Rule 37’s preclusive effect, a party must show substantial justification or harmlessness. The burden lies on the party facing sanctions to prove harmlessness. Factors guiding the Court in this determination include prejudice, the ability to cure the prejudice, trial disruption likelihood, and any bad faith or willfulness in nondisclosure. Exclusion of expert testimony is not appropriate if other less severe sanctions are available, especially when harm can be easily remedied.

    On the deadline for expert disclosures, which was July 18, 2023, the Plaintiffs submitted a purported expert report from medical billing expert Sharla Paso. The two-page report asserted that the cost of Plaintiff Martin’s medical treatment was reasonable and necessary. However, the report lacked a basis for this opinion and mentioned that Paso was recently hired and in the process of reviewing the records. Subsequently, on the deadline for rebuttal expert disclosures, which was August 8, 2023, the Plaintiffs submitted a combined rebuttal expert report from Paso and her associate, Michele Cook. This report contained the complete opinions regarding the reasonableness of Plaintiff Martin’s medical treatment.

    In their motion to strike, the Defendants argued that the reports should be excluded because the initial Paso report did not contain the required information under Fed. R. Civ. P. 26(a)(2)(B), and the Paso/Cook report was not an appropriate subject for rebuttal testimony. The Defendants sought to strike the Paso/Cook reports and prohibit the testimony of these experts at trial. During oral argument, the Plaintiffs conceded that Paso’s initial expert report did not contain the required information as per Rule 26(a)(2)(B), and the opinions in the Paso/Cook report were not a proper subject for rebuttal testimony. Citing Grove City Veterinary Serv. v. Charter Practice Int’l., 3:13-cv-2276-AC (D. Or. Apr. 19, 2016), in this case it was acknowledged that if the purpose of expert testimony is to contradict an expected portion of the other party’s case-in-chief, then the witness is not a rebuttal witness. Plaintiffs attributed this error to counsel’s unfamiliarity with Rule 26’s expert disclosure requirements. Thus, it is undisputed that Plaintiffs failed to comply with Rule 26.

    Exclusion of the experts was deemed unwarranted in this case. Any potential prejudice to the Defendants was considered easily curable by requiring Paso and/or Cook to undergo expert depositions, at the Plaintiffs’ expense. Additionally, Defendants were allowed to supplement their rebuttal reports if deemed necessary. Given that no trial date was set, both parties had ample opportunity to address and remedy any prejudice in advance of trial. Moreover, the Court noted that there is no evidence indicating bad faith or willfulness in the delayed disclosure of evidence. Consequently, the Defendants’ motion to strike the expert reports was denied, and instead, Plaintiffs were ordered to facilitate depositions for Paso and Cook, at their expense. Defendants were permitted to supplement their expert reports after these depositions.

    Held

    The Court denied the Defendants’ motions to exclude the testimony of Lew Grill and also denied the Defendant’s motion to strike the expert reports of Passo/Cook. The following orders were issued:

    1. Within fourteen (14) days from the date of the order, Plaintiffs were directed to submit separate and complete expert reports for either or both Paso and Cook.

    2. Defendants were granted permission to depose Paso and/or Cook, with Plaintiffs being responsible for any expert fees associated with the deposition if conducted.

    3. Defendants were allowed to supplement their rebuttal expert reports if deemed necessary.

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

    Key Takeaways

    In the presented case, Plaintiffs brought a negligence action against Defendants following a multi-vehicle accident on I-84. The Plaintiff hired a trucking expert, Lew Grill, to provide an opinion on the Defendants’ alleged negligence in operating their vehicles and violating Federal Motor Carrier Safety Administration (FMCSA) regulations. Defendants moved to exclude Grill’s testimony, arguing it lacked reliability due to a limited review of evidence. The Court, however, deemed Grill’s failure to consider additional documents as a matter concerning the weight, not admissibility of his testimony, and denied the motion. Another dispute arose the Plaintiffs’ failure to comply with their expert discovery obligations. The Court refrained from excluding the testimony in question, instead directing the concerned experts to submit to expert depositions, at Plaintiffs’ expense. These decisions underscore the importance of complying with disclosure rules and suggest that Courts prioritize addressing evidentiary issues through less severe sanctions when possible.

    Case Details

    Case Caption Martin v. Hannu
    Docket Number 2:21cv364
    Court United States District Court, Oregon
    Citation 2024 U.S. Dist. LEXIS 6658
    Order Date January 12, 2024