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  • Market Research Expert Witness Opinions on Deceptive Labeling Rejected

    Market Research Expert Witness Opinions on Deceptive Labeling Rejected

    Tom’s a wholly-owned subsidiary of Tom’s of Maine Holdings, Inc., which, in turn, was a wholly-owned subsidiary of Colgate. Tom’s specialized in manufacturing personal care products, such as toothpaste and deodorant. The company marketed numerous toothpaste flavors and deodorant varieties as “natural”, which included 34 toothpaste flavors and 17 deodorant varieties, all of which were promoted as “natural” on their respective packaging. The packaging of each toothpaste and deodorant product featured a representation claiming the product’s “natural” nature.

    Anne De Lacour, Andrea Wright, and Loree Moran, individually and on behalf of all others similarly situated (collectively, Plaintiffs), argued that the use of the word “natural” by the Colgate-Palmolive Co., and Tom’s of Maine Inc. (collectively, Defendants) on these products was false and misleading. They contended that the products in question contained ingredients, such as aluminum chloralhydrate, glycerin, propylene glycol, sodium lauryl sulphate, sorbitol, and xylitol, which were deemed “synthetic and/or highly chemically processed.” The Plaintiffs asserted that they suffered harm as a result of relying on Tom’s “natural” representations, as they were led to purchase the products at a premium price.

    The Plaintiffs sought damages on behalf of themselves and three distinct classes – the “California Class,” the “Florida Class,” and the “New York Class.” Their claims were based on various legal provisions, including California’s Consumer Legal Remedies Act (“CLRA”), False Advertising Law (“FAL”), and Unfair Competition Law (“UCL”). In addition, the lawsuit invoked Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), New York’s General Business Law (“NYGBL”), and a claim for breach of express warranty.

    After the discovery phase concluded, the Defendants filed motions for summary judgment, motions to exclude the Plaintiffs’ experts, Dr. Zhaohui Zhou, Brian M. Sowers, J. Michael Dennis and Colin B. Weir, and a motion for class decertification.

    Market Research Expert Witness

    Brian M. Sowers is a Principal at Applied Marketing Science, Inc. (AMS), a distinguished market research and consulting firm. With a career spanning since 1996, he has amassed extensive expertise in market research. Prior to AMS, Sowers held research positions at the Forbes Consulting Group. Throughout his career, he personally designed and executed numerous market research surveys across diverse modalities and populations. Sowers holds a Bachelor of Arts in History from Roanoke College and earned a Master of Business Administration from the University of Colorado.

    Chemistry Expert Witness

    Zhaohui Sunny Zhou holds a Bachelor of Science degree in Organic Chemistry from Peking University, Beijing, China, and a Ph.D. in Bioorganic Chemistry from The Scripps Research Institute, California. Zhou is currently serving as a Professor in the Department of Chemistry and Chemical Biology at Northeastern University, and also holds positions as Faculty Fellow of the Barnett Institute of Chemical and Biological Analysis and Affiliated Faculty of Bioengineering and Biology. With expertise in chemistry, biochemistry, and chemical biology, Zhou conducts research and teaches various aspects of chemistry related to natural products and derivatives.

    Political Science Expert Witness

    J. Michael Dennis holds a B.A. and an M.A. in Government from the University of Texas. He then earned his Ph.D. in Political Science from the University of Chicago. Dennis is currently the Senior Vice President at NORC and is also the President and Owner of JMDSTAT Consulting Inc. Prior to this, Dennis held the position of a Managing Director at GfK Custom Research LLC. With over 25 years of experience, Dennis specializes in designing and conducting surveys focused on the opinions, perceptions, attitudes, preferences, and values of consumers, voters, members of association, and citizens.

    Economics Expert Witness

    Colin B. Weir holds an MBA with honors from Northeastern University and a Bachelor of Arts degree in Business Economics from the College of Wooster. Weir has provided consulting expertise on diverse consumer and wholesale products cases, specializing in calculating damages for various product categories such as food, household appliances, herbal remedies, health/beauty care products, electronics, furniture, and computers. Weir is currently serving as the President at Economics and Technology, Inc., his work involves a range of economic analyses, including econometric and statistical analysis, multiple regression, surveys, statistical sampling, micro- and macroeconomic modeling, and accounting.

    Discussion by the Court

    Plaintiffs asserted that Tom’s labeling of its toothpaste and deodorant products as “natural” was deceptive, alleging the inclusion of synthetic or highly chemically processed ingredients. They sought damages under various legal provisions. To succeed, Plaintiffs had to prove that a “reasonable consumer” would likely be misled by Tom’s use of “natural.” The reasonable consumer standard required a probability that a significant portion of the public could be misled. In their evidence, Plaintiffs relied on an expert report, governmental guidance, definitions by Named Plaintiffs, internal documents, and Tom’s employees’ testimony. The admissibility and sufficiency of this evidence were challenged in the context of Tom’s Motion for Summary Judgment.

    Expert Sowers, responsible for designing surveys on toothpaste and deodorant, aimed to assess consumer perceptions of Tom’s “natural” claims. Respondents viewed products with the contested labeling and answered a series of questions, focusing on whether the term “natural” conveyed the presence of “only natural ingredients,” “some natural and some artificial ingredients,” or “no natural ingredients” (only artificial). However, criticisms arose concerning the flaw in Sowers’s approach. He defined “natural” and “artificial” solely in relation to each other and failed to provide clear definitions, rendering the terms ambiguous. This lack of clarity undermined the meaningful interpretation of respondents’ answers, leading to the exclusion of Sowers’s report and testimony in the litigation.

    Plaintiffs engaged Expert Zhou to opine on the “scientific merit” of Tom’s use of the word “natural” in describing its toothpastes and deodorants. Defendants contended he lacked the expertise to assess whether toothpaste and deodorant ingredients were “natural.”

    Experts Dennis and Weir were engaged by the Plaintiff to provide evidence of classwide injury. Dennis conducted two surveys, one for Tom’s toothpastes and another for Tom’s deodorants. Based on those surveys, Dennis contended he could isolate a “price premium,” or portion of the market price consumers paid, that was attributable to the “natural” claim at issue. Weir, in turn, endorsed Dennis’s analysis and then used simple multiplication to calculate Plaintiffs’ claimed “price premium damages” (price premium x units sold) and “statutory damages” ($550 x units sold). Defendant argued that Dennis’ conjoint analysis suffered from numerous fatal defects and alleged that Dennis doctored the respondents’ answers. Defendant also added that Weir’s opinions were inadmissible on account of the lack of a specialized
    degree in the field of retail pricing.

    Firstly, in their attempt to illustrate a reasonable consumer’s perception of “natural,” Plaintiffs cited governmental guidance, Named Plaintiffs’ definitions, Tom’s internal documents, and the testimony of Tom’s employees. However, this evidence fell short of establishing that a reasonable consumer interpreted Tom’s use of “natural” as an assurance that its products lacked synthetic or highly chemically processed ingredients. Instead, the evidence indicated diverse interpretations of the term “natural.”

    There was no governmental guidance specifically addressing the use of “natural” labeling on personal care products, as acknowledged by Plaintiffs. The most relevant guidance pertained to food products, with differing interpretations from various agencies. In 1982, the United States Department of Agriculture defined “natural” for meat and poultry products as free of artificial flavors, colorings, chemical preservatives, and not more than minimally processed. The United States Food and Drug Administration (FDA) around 1988 stated that “natural” meant nothing artificial or synthetic had been included or added to the product beyond normal expectations. In 2015, the FDA sought public comments on the use of “natural” on food product labeling, receiving over 7,000 comments reflecting diverse interpretations, including “organic,” “minimally processed,” “chemical-free,” “hormone-free,” “non-GMO,” and “not ‘artificial’/’synthetic.’” Despite the comments, the FDA did not establish a formal definition for the term.

    Given the absence of governmental guidance specifically addressing the use of “natural” labeling on personal care products and the lack of a consistent definition for “natural” in food products, Plaintiffs were unable to rely on governmental guidance to establish a reasonable consumer’s understanding of the term. This limitation was noted in a similar case,  In re Kind, 627 F. Supp. 3d at 284, where it was emphasized that Plaintiffs could not depend on an objective, regulatory definition of “All Natural” to demonstrate a reasonable consumer’s understanding due to the nonexistence of such a definition.

    Secondly, Plaintiffs’ reliance on Named Plaintiffs’ testimony to establish a reasonable consumer’s understanding of “natural” was deemed inadequate. The Named Plaintiffs failed to provide evidence indicating that their perspectives on the term aligned with those of a reasonable consumer, as opposed to reflecting their individual subjective beliefs. Citing Hughes v. Ester C Co., 330 F. Supp. 3d 862, 872 (E.D.N.Y. 2018), the Court concluded that the Plaintiffs’ “conclusory allegations and ‘anecdotal’ testimony” were insufficient to create a genuine issue of material fact regarding deception.

    Thirdly, Plaintiffs’ reliance on Tom’s internal documents and the testimony of Defendants’ employees to substantiate their theory of deception was rejected. Tom’s internal documents did not offer a foundation for determining a reasonable consumer’s understanding of “natural.” The statements made by Defendants’ employees were deemed reflective of individual views rather than representing the collective understanding of a reasonable consumer regarding the term “natural.”

    Plaintiffs’ failure to present evidence supporting the claim that a reasonable consumer interprets “natural” as alleged resulted in the absence of a triable issue of fact regarding deception. Consequently, Defendants were deemed entitled to summary judgment concerning Plaintiffs’ claims under CLRA, FAL, UCL, FDUTPA, NYGBL, and breach of express warranty. 

    The remaining motions to exclude the reports and testimony of the experts Zhaohui Sunny Zhou, Colin B. Weir and J. Michael Dennis were denied as moot.

    Defendants sought to decertify the classes, emphasizing the district Court’s obligation to monitor class decisions as the evidentiary record evolves. The Court may decertify a class if Rule 23 requirements are not met. A crucial Rule 23(b)(3) requirement is that common questions of law or fact must predominate over individual ones. Through the course of discovery, it became evident that Plaintiffs lacked support for their claim that reasonable consumers understood Tom’s use of “natural” to imply the absence of synthetic or highly chemically processed ingredients. The absence of generalized proof of deception led to a lack of common issues of fact, prompting the Court to decertify the classes.

    Held

    The Court issued a final ruling on January 04, 2024 granting Tom’s motion for summary judgment. Defendants’ motion to exclude the opinions of Sowers was also granted. Furthermore, Defendants’ motion to decertify the classes was granted. Lastly, any remaining motions by Defendants, including the motions to exclude Zhaohui Zhou, J. Michael Dennis and Colin B. Weir were denied as moot, implying that these motions were no longer relevant or necessary for consideration.

    Key Takeaway

    In the legal proceedings against Tom’s and Colgate, the expert testimony of Brian M. Sowers played a pivotal role in assessing consumer perceptions of the “natural” labeling on toothpaste and deodorant products. Sowers designed surveys to gauge how consumers understood the term “natural,” and his conclusions were challenged during the litigation. The Court ultimately excluded Sowers’s report and testimony, highlighting flaws in his approach. The Court found that Sowers defined “natural” and “artificial” solely in relation to each other, leading to ambiguity in respondents’ answers. This lack of clarity undermined the reliability of Sowers’s findings, contributing to the Court’s decision to grant summary judgment in favor of the Defendants. The exclusion of Sowers’s expert testimony reinforced the importance of clear definitions and methodologies in expert reports to establish a meaningful understanding of consumer perceptions in deceptive labeling cases.

    Case Details

    Case Caption Lacour v. Colgate-Palmolive Co.
    Docket Number 1:16cv8364
    Court United States District Court, New York Southern
    Citation 2024 U.S. Dist. LEXIS 1227
    Order Date January 3, 2024
  • Royalty Analysis Conducted by Finance Expert Witness Deemed Reasonable

    Royalty Analysis Conducted by Finance Expert Witness Deemed Reasonable

    On June 11, 2021, Utherverse filed a patent infringement complaint against Epic, alleging that four Fortnite events (the “Accused Events”) violated the ‘071 Patent and the ‘605 Patent, collectively known as the “Asserted Patents.” These patents relate to enabling numerous participants to connect in a virtual computer-generated environment for shared virtual experiences. The current issue before the Court involves Epic’s Daubert motion to exclude Utherverse’s damages expert, Michele Riley. Judge Theresa L. Fricke, United States Magistrate Judge, issued a Report and Recommendation, which pushed for denying the motion to exclude the testimony of Michele Riley.

    Finance Expert Witness

    Michele Riley is a Managing Director at Stout, specializing in complex litigation consulting for breach of contract, unfair competition, investigations, and compliance. She holds certifications as a Certified Public Accountant, Certified Fraud Examiner, and is Certified in Financial Forensics.
    Riley specializes in assessing intellectual property damages and valuation. She has testified in cases involving patent, trademark, and copyright infringement, as well as trade secret misappropriation.

    Discussion by the Court

    According to the Court’s decision in Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC, 879 F.3d 1332, 1347 (Fed. Cir. 2018), it was established that when reviewing damages in patent cases, the Federal Circuit applies regional circuit law to procedural issues and Federal Circuit law to substantive and procedural issues related to patent law. In reviewing motions to exclude expert testimony related to patent royalties, the Federal Circuit has applied its own law.

    Judge Fricke, citing Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1324 (Fed.Cir.2009), observed that two alternative methods exist for calculating damages in a patent case; they “are the patentee’s lost profits and the reasonable royalty he would have received through arms-length bargaining.” To calculate the reasonable royalty, patentees generally consider a hypothetical negotiation, in which the asserted patent claims are assumed valid, enforceable, and infringed, and attempt “to ascertain the royalty upon which the parties would have agreed had they successfully negotiated an agreement just before infringement began.” This hypothetical negotiation “necessarily involves an element of approximation and uncertainty.” In determining the reasonable royalty that would have been agreed to at the hypothetical negotiation, parties in patent cases frequently utilize the fifteen factors enunciated in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.Supp. 1116, 1120 (S.D.N.Y.1970).

    In Lucent Technologies Inc. v. Microsoft Corporation, 580 F.3d at 1326, it was established that a hypothetical negotiation can result in either a lump-sum license or a running royalty license. A lump-sum license is an up-front payment in full for the invention that involves uncertainty about “whether the technology is commercially successful or even used.” In contrast, a running royalty license is directly tied to how often the invention is incorporated into products by the licensee and is calculated by multiplying the proposed royalty rate by the proposed royalty base. The burden of proving damages falls on the patentee.” To properly carry this burden, the patentee must sufficiently tie the expert testimony on damages to the facts of the case. 

    Judge Fricke stated that Riley’s analysis began with a general overview of the parties’ industries, the parties themselves, and the Accused Events. She explained that, based on her discussions with Craig Rosenberg, Utherverse’s technical expert, she understood that the Asserted Patents involved enabling a large number of participants to connect in a virtual computer-generated environment for shared virtual experiences. She calculated the royalty base by determining the revenue attributable to the Accused Events, including microtransaction purchases made by Fortnite users through the in-game currency. This encompassed items specifically available for the Accused Events in the Fortnite Item Shop, incremental revenue from microtransaction purchases related to the Accused Events, and the value to Epic of new and returning users due to the Accused Events.

    For determining the royalty rate, Riley analyzed Utherverse Digital agreements, explaining their relevance in a hypothetical negotiation. After reviewing various data points and assessing their significance in a hypothetical negotiation, Riley made her conclusions about the royalty rate range known. She partially relied on the 2020 Royalty Rate Industry Summary from IPSCIO Reports.

    Georgia-Pacific factor 1 considers: “The royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty.” Judge Fricke citing Wordtech Sys. v. Integrated Networks Solutions, Inc., 609 F.3d 1308, 1320 (Fed.Cir. 2010), held that a patentee may not rely on license agreements that are ” ‘radically different from the hypothetical agreement under consideration’ to determine a reasonable royalty.” Further, “comparisons of past patent licenses to the infringement must account for ‘the technological and economic differences’ between them.”

    Ephere was engaged in computer graphics and software development, specializing in designing and implementing software solutions for computer graphics, film, and games, extending existing software for new functions, and providing consulting and support in the film and games industry. Epic argued that Riley inappropriately used the Ephere license as a substitute for apportionment, as she did not demonstrate sufficient comparability. Specifically, Epic contended that Riley failed to analyze the technological comparability between the ‘962 Patent from the Ephere license and the Asserted Patents. The Court was urged to conclude that Riley had not established a baseline comparability between the technology in the Ephere License and the Asserted Patents.

    But Judge Fricke observed that in addition to providing a summary of the ‘962 Patent and the background of the invention itself, Riley also discussed the relationship between the patent from the Ephere license and the Asserted Patents. Judge Fricke determined that, according to Federal Circuit precedent, Riley needed to demonstrate baseline comparability between the ‘962 Patent and the Asserted Patents. It was noted that she had fulfilled this requirement in her report. Any further examination of the similarities and differences between the two was considered a factual matter rather than a methodological one and could be addressed during cross-examination.

    Epic asserted that Riley couldn’t rely on Epic’s internal document about payment to an artist of one of the Accused Events, Epic’s merchandise agreements, a published industry report, and a Utherverse Digital license agreement to establish her royalty base. Judge Fricke, referencing Microsoft Corp. v. Motorola, 904 F.Supp.2d 1109, 1118 (W.D. Wash. 2012), found that these documents provided some indication of the appropriate initial royalty rate, making Riley’s testimony admissible. For instance, the merchandise agreements involved Epic and certain artists linked to the Accused Events, while the Utherverse Digital agreement supported Riley’s opinion on a suitable royalty rate.

    Regarding Epic’s internal document and the IPSCIO industry report, these were among various data points Riley used in her royalty rate analysis. Judge Fricke asserted that she clarified the relevance of these documents and their connection to her analysis, leaving the degree of comparability for cross-examination rather than a Daubert motion.

    Defendant Epic Games, Inc. (“Epic”) respectfully objected to the Report and
    Recommendation concerning the motion to exclude the testimony of Riley on the following grounds:

    1. The R&R had erroneously recommended that the Court find Riley demonstrated the required baseline technological comparability between the license agreement she relied on and the technology at issue in this case. The record did not support such a finding, and holding otherwise on this record would have been contrary to binding Federal Circuit precedent.
    2. The R&R had not addressed Epic’s motion to exclude Riley’s royalty rate opinion for failing to apportion damages. Adopting the R&R and allowing Riley to present a damages theory that failed to apportion damages would have been contrary to established Federal Circuit law.
    3. The R&R’s finding that certain “comparable transactions” would inform the starting point of a royalty rate was clearly erroneous because those transactions were not patent licenses and were in no way economically or technologically comparable to the facts of this case.

    After reviewing the Report and Recommendation of Judge Fricke as well as the objections to the Report and Recommendation, the Court adopted the Report and Recommendation.

    Held

    The Court denied Epic Games, Inc.’s motion to exclude Utherverse Gaming, LLC’s damages expert, Michele Riley. 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 Court scrutinized Riley’s analysis, noting her thorough examination of industry, parties, and events involved. The analysis included determining the royalty base and rate, involving a hypothetical negotiation and reliance on Utherverse Digital agreements. The Court acknowledged the inherent approximation and uncertainty in such assessments but deemed Riley’s methodology admissible. This demonstrates the Court’s consideration of the application of established principles in patent cases.

    Concerns were raised by Epic regarding Riley’s use of the Ephere license and other documents for establishing the royalty base. The Court, citing Federal Circuit precedent, required Riley to demonstrate baseline technological comparability, which was found to be fulfilled in her report. The Court acknowledged that further exploration of similarities and differences could be addressed during cross-examination, highlighting the importance of factual matters in such evaluations.

    Epic’s objection to the use of certain documents, including an internal document, merchandise agreements, and industry reports, was addressed by the Court. The Court, referencing relevant legal precedent, found these documents provided indications of an appropriate initial royalty rate, supporting the admissibility of Riley’s testimony. The Court emphasized the role of cross-examination in assessing the degree of comparability, showcasing a balanced approach to the admissibility of evidence.

    In summary, the Court’s decision underscores the importance of adherence to established legal principles in patent cases, including the use of regional circuit law and Federal Circuit law, the consideration of two primary methods for calculating damages, and the scrutiny of expert testimony methodologies. The decision reflects a nuanced approach, allowing for cross-examination to address factual matters while ensuring the admissibility of expert opinions based on sound methodology.

    Case Details:

    Case Caption: Utherverse Gaming Llc V. Epic Games Inc
    Docket Number: 2:21cv799
    Court: United States District Court, Washington Western
    Citation: 2023 U.S. Dist. LEXIS 232999
    Order Date: January 12, 2024

  • Firearms & Ballistics Expert Witness Testimony Rejected for not being based on Empirical Evidence

    Firearms & Ballistics Expert Witness Testimony Rejected for not being based on Empirical Evidence

    In January 2021, Timothy Davis experienced an unexpected discharge of his Sig Sauer P320 XCarry pistol while exiting his vehicle, resulting in a severe leg injury from a 9mm hollow-point bullet. The circumstances surrounding the incident were unclear, with conflicting accounts in Davis’ deposition. He stated that, while sitting in his vehicle, he holstered the P320, and as he extended his leg, the pistol discharged. Davis insisted that the P320 was fully holstered and secured on his left hip.

    However, a police report and an EMT report provided a different version, indicating that Davis was attempting to holster the P320 when the discharge occurred. Regardless, Davis claimed the P320 discharged without a trigger pull, a contention disputed by Sig Sauer.

    In January 2021, Plaintiff Timothy Davis claimed that his Sig Sauer P320 XCarry pistol discharged unexpectedly, injuring his leg with a 9mm hollow-point bullet. Davis provided conflicting accounts of the incident: one stating he holstered the gun before exiting the vehicle, and another suggesting he was attempting to holster it when the discharge occurred.

    Davis filed a product liability and negligence lawsuit against Sig Sauer, alleging that the P320 lacked external safeties, making it unreasonably dangerous. Gunsmith James Tertin and human factors engineer William Vigilante, serving as expert witnesses, argued that the absence of a manual safety rendered the pistol defective, increasing the risk of accidental discharge. They contended that this defect was the proximate cause of Davis’ injury.

    Sig Sauer moved to exclude Tertin and Vigilante’s opinions and sought summary judgment, claiming that without the expert testimony, there was no genuine dispute of material fact, and Davis failed to establish causation.

    Firearms & Ballistics Expert Witness

    James Tertin is currently the director of research and development for Magnum Research, a firearms manufacturer based in Pillager, Minnesota. In that role, he is responsible for designing and developing new firearms for the company.

    He has been a professional gunsmith since graduating in 1972 from the Gunsmithing School at Trinidad State College in Colorado; the oldest gunsmithing school in the United States. Over the past fifty years, he has been awarded seven firearm design patents.

    Human Factors Engineering Expert Witness

    William Vigilante graduated with a Doctoral of Philosophy and a Master’s of Science in Ergonomics (Human Factors) Psychology and a Bachelor of Science degree in Psychology (Cognitive track). He is also a Certified Professional Ergonomist by the Board of Certification in Professional Ergonomics (#2019). He has more than 25 years of experience in psychological and human factors research with a focus on human-machine interaction, control-display design, product design, hazard identification and mitigation, risk perception, situational awareness, perception-reaction time, and the design and testing of warning systems.

    Discussion by the Court

    Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. It permits an expert to testify about scientific knowledge if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or 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.”

    Sig Sauer had challenged the testimony of Tertin and Vigilante on various grounds, asserting that their causation opinions were speculative and lacked reliable foundations. Additionally, Sig Sauer questioned Vigilante’s qualifications to opine on firearm design. Sig Sauer’s primary objective was to exclude Tertin and Vigilante from expressing the view that Davis’ accident might have been prevented with a thumb safety or tabbed trigger safety on the P320.

    The Court concurred with Sig Sauer’s argument, finding that neither Tertin nor Vigilante had a reliable factual basis for their causation opinions. Tertin’s opinion, which stated that any single-action firearm without a manual thumb safety is defective, lacked empirical evidence. Tertin suggested that a tabbed trigger “probably would have prevented the accident,” but he admitted to having no information about what caused Davis’ trigger to depress. Tertin performed no analysis on the circumstances of the accident, providing no basis for his conclusion on the lack of a manual safety being the proximate cause. The Court deemed Tertin’s opinion as pure speculation, lacking any factual foundation or empirical evidence, and therefore inadmissible for proving causation.

    Vigilante’s opinion faced a similar challenge. He contended that the P320’s lack of an external manual safety made it defective and unreasonably dangerous, attributing it to the unintentional discharge in Davis’ case. According to Vigilante, triggers could move through inertia, foreign object contact, or contact with a body part, but he lacked an opinion on how Davis’ trigger became engaged.

    Vigilante admitted to not inspecting Davis’ pistol or holster, relying solely on Davis’ deposition and a sheriff’s report for his understanding of the accident. He did not speak with Davis or review the first responders’ testimony, and no testing or analysis of physical evidence was conducted to validate Davis’ version of the accident. Vigilante’s causation opinion appeared detached from the specific circumstances of Davis’ case, relying on a general conclusion about the P320’s safety without factual support.

    Even Vigilante’s generalized conclusions were based on shaky grounds, using anecdotal data from YouTube videos and a memorandum by the United States Immigration and Customs Enforcement Agency. This lack of empirical evidence failed to meet the standards set by Rule 702 for expert testimony. Even if one assumed the absence of a manual safety was a design defect, Vigilante provided no factual basis for concluding that a manual safety would have prevented Davis’ specific accident. Without a thorough investigation into the accident’s circumstances, Vigilante’s causation opinion was deemed too speculative and lacking reliability. Therefore, his expert testimony was precluded.

    The Court briefly addressed another argument asserted by Davis in support of admitting the expert testimony of Tertin and Vigilante. Davis compared two recent Orders from other district courts that considered similar motions filed by Sig Sauer. In the Northern District of Georgia, Sig Sauer’s motions were partially denied, while in the Western District of Oklahoma, Sig Sauer’s motions were granted. Davis urged the Court to distinguish the Western District of Oklahoma case, Herman V. Sig Sauer, asserting that the facts in the present case were distinct.

    After reviewing both Orders and their supporting records, the Court concluded that Herman was not distinguishable, particularly concerning the reasoning supporting the exclusion of expert testimony by Tertin and Vigilante. Despite the Northern District of Georgia recognizing that the opinions of Tertin and Vigilante were based on the specifics of the incident in that case, the Court found no similar evidence in the present case. Similar to the Herman Court, the Court noted broad conclusions about an alleged defect in Sig Sauer’s P320 applied generally to the case’s facts. Tertin and Vigilante both admitted that the specific circumstances of Davis’ incident weren’t crucial to their opinions. Therefore, as explained above, neither expert could be relied upon to provide an accurate and helpful opinion on what may have caused the injury in Davis’ particular case. Consequently, both experts were precluded from testifying.

    With the exclusion of Tertin and Vigilante, Davis found himself without any expert witness to testify regarding the alleged defect and causation. This absence meant that Davis could not demonstrate the existence of a defect and its role in causing his injury. Consequently, his claims lacked an essential element and failed under Kentucky law. As a result, the Court granted Sig Sauer’s motion for summary judgment.

    Held

    The Case was decided in Defendant, Sig Sauer’s favor after the testimony of both experts, James Tertin and William Vigilante were excluded and Sig Sauer’s motion for summary judgment was granted.

    Key Takeaways:

    The admissibility of expert witness testimony is governed by Federal Rule of Evidence 702, which sets criteria requiring the expert’s knowledge to assist the trier of fact, be based on sufficient facts and data, use reliable principles and methods, and be reliably applied to the case’s facts. In the case against Sig Sauer, challenges were raised against the expert testimony of Tertin and Vigilante, asserting that their causation opinions were speculative and lacked reliable foundations. Additionally, Vigilante’s qualifications to opine on firearm design were questioned. The Court, agreeing with Sig Sauer’s arguments, found that neither expert had a reliable factual basis for their causation opinions, rendering them inadmissible under Rule 702 due to a lack of empirical evidence and factual support. Both experts were criticized for offering broad conclusions about an alleged defect in Sig Sauer’s P320, which were then applied generally to the case’s facts, leading the Court to deem their opinions speculative and lacking a specific connection to the incident in question. Vigilante’s reliance on anecdotal data and Tertin’s admission of no empirical evidence were cited as failures to meet the standards set by Rule 702, which requires a reliable basis for expert opinions. Attempts by the Plaintiff to distinguish the present case from others with varying outcomes were rejected by the Court, emphasizing the lack of similar evidence showing the experts’ opinions were based on the specific circumstances of the incident. With the exclusion of expert testimony, the Plaintiff was unable to demonstrate the existence of a defect and causation, resulting in the failure of claims under Kentucky law. As a consequence, the Court granted Sig Sauer’s motion for summary judgment, underscoring the critical role that expert testimony can play in product liability cases.

    Case Details:

    Case Caption Davis v. Sig Sauer, Inc.
    Docket Number 3:22cv10
    Court United States District Court for the Eastern District of Kentucky, Central Division
    Citation 2024 U.S. Dist. LEXIS 1796
    Order Date January 4, 2024
  • Law Enforcement Expert Witness Testimony Limited for Telling the Jury what Result to Reach

    Law Enforcement Expert Witness Testimony Limited for Telling the Jury what Result to Reach

    Plaintiff Kang, a former Savannah police officer, filed a lawsuit against Police Chief Roy Minter and the City of Savannah alleging he was wrongfully terminated.

    Kang alleges that his termination, which followed his involvement in a group complaint and filing his own complaint against Chief Minter, was based on racial discrimination and retaliation. He also stated that the the process governing the disciplinary proceedings that led to his termination was inappropriate. Kang has filed various claims, including a claim for retaliation for engaging in constitutionally protected speech, loss of employment rights, and violation of equal protection rights under federal laws.

    Kang has also brought claims against the City of Savannah, where he alleges retaliation, loss of employment rights, procedural due process violations, and a Monell claim for policies contributing to the violation of his rights.

    Both parties have submitted Motions for Summary Judgment, which are awaiting a decision from the district judge. Additionally, Kang wants to exclude expert testimony from Chief Minter’s expert, Louis M. Dekmar, and Chief Minter seeks to exclude certain opinions from Kang’s experts, Richard Register and Gary Vowell. These motions are now awaiting a decision.

    Law Enforcement Expert Witnesses

    Louis M. Dekmar has 45 years of civilian police experience and four years of military police practice as a law enforcement specialist (USAF). His experience includes serving as police chief or chief of public safety for 31 years. Presently, he is the Chief of Police for the City of LaGrange, Georgia. He is responsible for the supervision, personnel, and management of the LaGrange Police Department. In the police department, he instituted significant personnel, operational, and service-related initiatives, improving training and educational curriculum, developing, and expanding community and problem-solving policing programs, while reducing liability and crime rates and increasing citizen confidence and community partnerships.

    Gary Vowell has retired effective September of 2020 as the head of the Georgia Department of Public Safety. These duties included being in charge of the Georgia State Patrol and the Georgia State Capitol Police. He formerly served as the Sheriff of Tift County, Georgia between 1997 and 2012 (4 terms). He currently serves on the board of directors of the Georgia Department of Natural Resources. He has taught numerous courses dealing with policing at the Georgia Police Academy in Forsyth, Georgia.

    Richard E. Register is a retired Special Agent with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and had been in this position since 1999. Prior to this position, he served as a Firearm/Toolmark Examiner with ATF from 1996 to 1999. He also served as a Police Officer for the Fulton County Police Department between 1993 and 1996.

    Discussion by the Court

    The Plaintiff in the case sought to exclude the testimony of the Defendant’s expert, Louis M. Dekmar, who has 45 years of law enforcement experience and was offered by Defendant Minter to provide opinions on whether certain actions align with reasonable police practices. The Plaintiff argued that Dekmar’s entire testimony fell into three inadmissible categories: (1) legal conclusions, (2) opinions on the ultimate issue, and (3) opinions more prejudicial than probative.

    The Court agreed with the Plaintiff regarding legal conclusions, citing Hanson v. Waller (888 F.2d 806, 811, 11th Cir. 1989). The Court determined that while Dekmar could testify about practices followed by police departments regulated by laws, he could not instruct the jury on the legal requirements of statutes and regulations. For instance, Dekmar couldn’t opine on whether Defendant Minter included the legal requirements of ‘due process’ as defined by the United States Supreme Court in his disciplinary process or specify what those requirements were. The Court clarified that it, not Dekmar, must be the jury’s sole source of law regarding the Due Process Clause’s requirements.

    However, the Court acknowledged that Dekmar’s testimony might touch on the law to the extent industry custom and practice were shaped by legal requirements. While Dekmar could not assert that a “totality-of-circumstances test” is the law, he could offer an opinion that it is common practice for police departments to use that approach in disciplinary proceedings. In other words, the Court permitted Dekmar’s statement that a competent police chief considered the seriousness of charges and reviewed evidence based on the ‘totality-of-circumstances test, rather than a rigid step-by-step analysis, deeming it acceptable as it pertained to industry practices without providing specific legal conclusions or requirements. The Court thus allowed certain aspects of Dekmar’s testimony that aligned with industry practices but prohibited him from providing legal conclusions or opinions on the specific legal requirements.

    The Court determined that Louis M. Dekmar could not offer opinions on the specific legal authority bestowed upon Defendant Minter by City of Savannah practices, policies, ordinances, contracts, codes, forms, or other instruments. The Court clarified that while Dekmar could speak to customary authority or how a reasonable police chief might interpret a document in line with accepted practices, he could not definitively opine on the scope of Defendant Minter’s legal authority as Chief of Police.

    Regarding the objection to Dekmar testifying on ultimate issues, the Court noted that while Rule 704(a) of the Federal Rules of Evidence allows opinions embracing ultimate issues, it emphasized that an expert cannot simply instruct the jury on the desired result. The Court agreed with the Plaintiff’s objection, stating that Dekmar’s conclusion that Minter’s termination of Kang was not due to racial discrimination or retaliatory motive essentially directed the jury on how to decide those specific claims. The Court asserted that in this case, the jury had the responsibility to determine the weight and implications of the evidence without being guided by the expert witness.

    The Court rejected the Plaintiff’s Rule 403 argument which stated that expert testimony, even if admissible under Rule 702, is still subject to other rules, including Rule 403. The Plaintiff claimed potential prejudice, arguing that the jury might give undue weight to Dekmar’s determinations because he is presented as an expert. However, the Court found this argument unpersuasive, stating that Dekmar’s anticipated testimony, within the limitations outlined in the order, is not likely to confuse or mislead the jury, be cumulative, or unnecessarily time-consuming. The Court granted in part and denied in part the Plaintiff’s Motion to Exclude Expert Testimony of Louis M. Dekmar, limiting Dekmar’s testimony to exclude legal conclusions and opinions directing the jury on the desired result. The Court did not provide an exhaustive list of excluded opinions, allowing either party to seek guidance on specific opinions through a motion in limine consistent with the court’s instructions.

    Defendant Minter sought to exclude certain opinions from Plaintiff’s experts, Richard Register and Gary Vowell, regarding Minter’s conduct during the disciplinary process. Minter argued that these opinions lacked a sufficient factual basis and were unreliable. Register and Vowell, retired law enforcement officials, had decades of experience. Minter challenged opinions such as Minter’s use of draft policies, involvement in the disciplinary process, the absence of any precipitating factor for Plaintiff’s termination, and unequal discipline compared to another officer.

    The Court, however, held that Register and Vowell’s opinions, although possibly not the best evidence, had a factual foundation based on their review of pleadings, disclosures, and Plaintiff’s affidavit. The Court noted that failure to consider all available documents might affect the weight of their opinions but did not render them inadmissible. The Court concluded that Register and Vowell had a factual basis for their analysis, and any weaknesses could be addressed through cross-examination during trial. Consequently, Plaintiff met the burden of demonstrating that Register and Vowell’s opinions were based on sufficient facts and data, and therefore, were reliable.

    In response to Defendant Minter’s claim that Register and Vowell’s opinions lacked reliability due to a lack of identified guidelines or standards, both experts clarified that their opinions were grounded in their extensive law enforcement experience in Georgia, particularly in supervisory roles. The Court emphasized that for expert opinions based on experience, the expert must explain how that experience led to the conclusions, why it suffices as a basis, and how it is reliably applied to the facts.

    The Court clarified that, in this case, there was no requirement for the police practices experts to cite scientific or empirical data or explicitly refer to recognized policing guidelines for their opinions to be deemed reliable. Register and Vowell’s opinions were based on their education, research, experience, and document review, and the Court found nothing inherently unreliable in the methodology. Any perceived methodological flaws could be addressed through cross-examination during the trial.

    Held

    The Court has granted in part and denied in part Plaintiff’s Motion to Exclude Expert Testimony of Louis M. Dekmar, stipulating that Dekmar is restricted from providing legal conclusions or instructing the jury on the desired result. Conversely, the Court has denied Defendant Minter’s Motion in Limine to Preclude Certain Opinions of Plaintiff’s Experts. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaway:

    The Court’s rulings on expert testimony in this case have established clear parameters for admissibility. The Court prohibited experts from offering legal conclusions or instructing the jury on the desired result, firmly delineating the separation of roles between experts and the court in interpreting legal requirements and allowing the jury to make decisions. It also underscored the importance of a factual foundation for expert opinions, allowing them even if not all available documents were considered, with potential flaws subject to cross-examination during trial. The Court recognized the reliability of experience-based opinions, emphasizing that experts must explain how their extensive experience supports their conclusions. Furthermore, the Court rejected the argument that expert testimony could be excluded under Rule 403 merely because the expert is presented as an ‘expert,’ clarifying that potential undue weight given to expert opinions does not render the testimony unduly prejudicial if it is otherwise probative. The Court encouraged addressing any perceived weaknesses in expert methodologies through cross-examination rather than wholesale exclusion. Lastly, the Court affirmed that expert opinions need not explicitly cite scientific or empirical data or recognized guidelines to be deemed reliable, recognizing the practical application of knowledge and expertise in the given field.

    Case Details

    Case Caption Kang V. The Mayor And Aldermen Of The City Of Savannah Et Al
    Docket Number 4:21cv111
    Court United States District Court, Georgia Southern
     Citation  2024 U.S. Dist. LEXIS 6954
    Order Date January 12, 2024
  • Mechanical Engineering Expert Witness Opinions on Design Defects and Manufacturing Defects Admitted

    Mechanical Engineering Expert Witness Opinions on Design Defects and Manufacturing Defects Admitted

    Plaintiff Patricia Medellin filed a lawsuit to recover damages for severe injuries she suffered when she fell while using Defendant’s Little Giant Velocity Ladder, a multi-use ladder with adjustable features. The ladder could be configured into various climbing systems, including an extension ladder. Medellin asserted that the “Rock Locks” (version 2.1), which were the locking mechanisms on either side of the ladder used to secure the extension sections at the user’s chosen height, failed to function properly. This alleged failure resulted in the Rock Locks not securing the ladder in its extended position, leading to Medellin’s fall from height.

    On November 29, 2019, Patricia Medellin and her fifteen-year-old grandson, Benjamin Jones, were hanging Christmas lights along the roof of Medellin’s home. They unfolded the ladder and extended it until hearing the Rock Locks “click” into place, indicating proper security. At some point after Medellin climbed the ladder, she heard clicking sounds as the top of the ladder retracted downward, and the bottom of the ladder slid away from the house. Benjamin Jones also heard clicking sounds and observed the ladder telescoping down. Medellin fell with the ladder, landing face-down on it. As a result, Medellin alleged she sustained multiple bodily injuries.

    Medellin alleged that the Defendant had “defectively designed and manufactured” her ladder and “provided improper warnings and instructions.” According to Medellin’s expert witness, Stanley A. Kiska, the Rock Locks could be inadvertently set in a “false lock” condition, where “the extended section of the ladder is able to remain in place and may appear to be locked to the user, but, in fact, it is not properly and completely secured.” When in this false lock condition, the ladder gives the illusion of being securely locked, though it is not. The ladder, when in a false-locked condition, would retract (i.e. shorten) under the user’s weight during a climb, resulting in both the ladder and the user falling.

    The Defendant moved to exclude Stanley Kiska’s testimony and sought summary judgment. The case had been referred to the Magistrate Judge Peter Bray in accordance with 28 U.S.C. § 636(b)(1). The Judge Peter Bray gave his recommendation after reviewing the motions, the responses, and relevant legal provisions.

    Mechanical Engineering Expert Witness

    Stanley A. Kiska, a licensed professional engineer holding a Bachelor of Science degree in Mechanical Engineering, has a comprehensive background in ladder-related matters. With a 16-year tenure as a Product Engineer/Senior Product Engineer at the Werner Ladder Company, he garnered extensive expertise in ladder design, development, testing, manufacturing, and quality control. Currently, Kiska serves as an independent engineering consultant for Integra Engineering, PC, specializing in forensic engineering and investigating hundreds of ladder and scaffolding accidents. He has applied forensic engineering principles to develop opinions, write reports, and provide expert witness testimony in depositions and trials, representing both Defendants and Plaintiffs. With over 35 years of experience, his qualifications underscore his proficiency and authority in the field.

    Discussion by the Court

    Stanley Kiska’s opinion was that Medellin’s ladder could be placed in a false locked condition on the ground, set into position for use, and partially climbed without revealing the false locked condition to the user. He reached this opinion after reviewing deposition testimony from Medellin and Jones, examining photographs and videos of Medellin’s ladder, and inspecting both the ladder itself and the site of Medellin’s accident. Additionally, Kiska studied reports and video demonstrations of testing conducted by another of Medellin’s experts, Peter J. Poczynok, P.E., in a separate federal case (Davis v. Little Giant Ladder Sys., LLC, 2:19-cv-00780-SPC-NPM (M.D. Fla.)). Kiska also consulted with Poczynok during the process.

    The Davis lawsuit involved the identical ladder model, the same version of Rock Locks, and the same false lock claim as the present case. Poczynok’s testing and reports in Davis, which were attached to Poczynok’s declaration in this case demonstrated that ladders with Rock Locks version 2.1 could be set in the false lock condition and positioned for use while still falsely locked. Additionally, Poczynok illustrated that the false lock could disengage after a user’s weight was applied to the ladder’s rungs. In his declaration for this case, Poczynok stated that, during his work on the Davis case, he “was able to place the locks in a false lock condition when he set up the ladder on the ground, then raised it into position.” He further mentioned that he had “on numerous occasions placed the locks in a false lock condition, on the ground, on the same model ladder that was involved in Medellin’s incident, including Medellin’s ladder, and had been able to set the ladders into a raised and upright position with the false lock intact.” Kiska reviewed and incorporated Poczynok’s testing and opinions into his analysis of Medellin’s accident.

    While the Defendant raised multiple complaints about how Kiska relied on Poczynok’s testing, it’s noteworthy that the Defendant did not move to exclude Poczynok’s opinions. Poczynok had been designated as an expert witness in the case and was permitted to testify at trial, specifically about his opinion that the ladder could be placed into a false lock condition on the ground and then raised into position without disturbing that condition. The Defendant clarified that it strategically chose to “utilize Poczynok’s testing videos to highlight elements absent from Medellin’s accident”. Additionally, the Defendant did not object to Kiska relying on Poczynok’s testing. The objection was solely directed at Kiska’s opinions that Medellin was able to (1) set her ladder into a ‘false lock’ condition on the ground and (2) raise it into position without disturbing the condition.

    Kiska based the objected-to opinion on various sources of information and his extensive professional engineering experience in the field. He drew upon Poczynok’s testing, conducted his own inspection of the ladder, and considered the eyewitness testimony of both Medellin and her grandson. The Defendant failed to present any valid reason for asserting that Kiska’s reliance on these information sources was improper. It was entirely appropriate for Kiska to rely on Poczynok’s opinions, as the Federal Rules of Evidence allow experts to base their opinions on the opinions of other experts, according to the Advisory Committee’s Notes to the 2000 Amendments of Fed. R. Evid. 702.

    The Defendant heavily criticized Poczynok’s testing methodology and opinions but framed these complaints as arguments against Kiska’s reliance on Poczynok’s opinions, rather than directly moving to exclude Poczynek as an expert. The Defendant argued, in the context of seeking to exclude Kiska’s opinions, that Kiska could not rely on Poczynok’s opinions because there was “no established protocol or general acceptance of such testing.” However, the Defendant made a strategic choice not to challenge Poczynok as an expert and expressed the intention to cross-examine Poczynok at trial as part of its defense. Therefore, any attempt by the Defendant to challenge Poczynok’s opinions under the guise of objecting to Kiska’s reliance on those opinions was not presented before the Court at this juncture.

    The Defendant contended that Kiska was obligated to validate or replicate Poczynok’s testing before relying on it, a requirement the Court found no awareness of. Contrary to the argument, as discussed in the preceding paragraph, Kiska was only required to ensure that the other experts he relied on were reliable. Poczynok’s reports were deemed to meet this standard, being detailed, inclusive of photos, describing his testing, and outlining his methodology. Kiska thoroughly reviewed these materials and integrated them into his analysis.

    The Defendant argued that Poczynok’s testing could not be reliably applied to the context of Medellin’s accident due to several reasons: (1) the pitch of Medellin’s roof was more distinct than the roof on which Poczynok conducted his testing; (2) in four of Poczynok’s ten tests, the ladder was extended well beyond the roofline, making those tests inapplicable to Medellin’s accident, a point conceded by Kiska; (3) of the remaining six applicable tests, only two showed the ladder contracting and losing contact with the roof, resulting in the climber falling; (4) in the two tests where the climber fell, the ladder did not slide straight back, as in Medellin’s case, but instead rotated out from under the climber due to the roof’s pitch; and (5) none of the ten tests replicated the “clicking” sound described by Medellin and Jones.

    The Court was not convinced that the distinctions between Poczynok’s tests and Medellin’s accident rendered the tests inadmissible. Even if Poczynok’s tests were not intended to precisely recreate Medellin’s accident, the Court emphasized that recreations must only be “substantially similar” to provide a fair comparison, as outlined in United States v. Norris, 217 F.3d 262, 270 (5th Cir. 2000). The Court found that the conditions of Poczynok’s testing were substantially similar to those of Medellin’s fall. Poczynok used the same model ladder as Medellin (equipped with Rock Locks 2.1), configured it as an extension ladder, and positioned it against a pitched roof above the driveway. The Court also highlighted that Kiska critically evaluated Poczynok’s tests and disregarded those he deemed inapplicable to Medellin’s accident. The distinctions raised by the Defendant were not significant enough to render Poczynok’s tests an unfair comparison to Medellin’s accident. The Court noted that any disparities between Medellin’s accident and Poczynok’s testing could be demonstrated through cross-examination. 

    The Defendant argued that Kiska’s opinions on design defect should be excluded, contending they were unreliable and irrelevant.  Specifically, the Defendant asserted that Kiska failed to provide evidence or testing to demonstrate that his alternative design would have prevented Medellin’s accident.

    In design defect claims, the Plaintiff is required to present a safer alternative design that “would have prevented or significantly reduced the risk of the Plaintiff’s personal injury  without substantially impairing the product’s utility”. While the alternative design must be tested before a jury can conclude it would prevent or reduce the risk of injury, it’s not mandatory for the Plaintiff to build and test a prototype. Testing “can be as simple as applying math and physics to establish the viability of a design,” as clarified in Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 407 (5th Cir. 2016).

    Kiska provided the opinion that the Rock Locks 2.1 were defective in design due to the aluminum barrel pins pivoting into place and the locks lacking contrasting color to signal incomplete insertion of the barrel pins. His alternative design suggested the use of steel barrel pins that move linearly/perpendicularly into place and are colored red. The Defendant contended that Kiska had not tested the proposed design, thus lacking evidence that it would have prevented or significantly reduced the risk of Medellin’s injury.

    Kiska tested the alternative design by applying engineering principles and analyzing the functionality of the current and proposed designs as a professional engineer. In support of the steel barrel pin with perpendicular movement, Kiska compared the coefficient of friction between an aluminum barrel pin and a steel barrel pin. He pointed out that “aluminum barrel pins are undesirable because of the higher coefficient of friction that exists between sliding parts (aluminum on aluminum vs. aluminum on steel), which can adversely affect proper locking”. Kiska determined that the friction coefficient of the aluminum-to-aluminum interface would be approximately twice as great as aluminum-to-steel, making it more difficult for the locking pins to engage properly and, therefore, more likely to ‘falsely lock.’

    Kiska had also proposed using barrel pins that approach the rung holes perpendicularly, similar to those utilized in version 3.0 of Defendant’s Rock Locks. Although Kiska did not take measurements of a ladder equipped with Rock Locks 3.0, he testified that the perpendicular design is “more forgiving all things being equal” and “more favorable in terms of properly engaging and not hanging up on the inner section swage and false locking”. Kiska explained that, based on the design’s operation, the angled or arcing approach of the ladder’s barrel pins necessitates a “more exacting alignment between the sections” to get the barrel pins to properly engage beyond a false lock. The Court concluded that Kiska should be permitted to testify about his proposed alternative design, and any weaknesses in his analysis could be addressed through cross-examination.

    Regarding the red coloring on the barrel pin, the Defendant argued that Kiska did not test the proposed design, wasn’t a human factors expert, and did not cite any study, testing, or modeling to demonstrate that a colored barrel pin would reduce the risk of injury. However, Kiska, being an expert in the field, was familiar with the use of coloration for safety purposes. He expressed the opinion that “many manufacturers use creative coloring (particularly the color red) as a means to draw attention to locking components as a means to communicate to users that a safety problem may exist”. Kiska’s report included side-by-side photographs illustrating the visual differences in the ladder’s design and the alternative design. He noted that when the colored pin is completely inserted, the red color would not be visible to the user, indicating that the lock is properly engaged. Kiska also referred to one of Defendant’s prior ladder designs that used colored locks to signal improper engagement of the locking mechanism. The Court acknowledged the weaknesses pointed out by the Defendant but deemed the arguments insufficient to completely exclude Kiska as an expert. Any weaknesses could be addressed by the Defendant through cross-examination to present them to the jury.

    The Defendant argued that Kiska’s opinions on manufacturing defects were irrelevant because Kiska had not demonstrated that: (1) the identified manufacturing defects existed when Medellin’s ladder left the manufacturer; and (2) the manufacturing defects caused Medellin’s accident.

    In a manufacturing defect claim, the Plaintiff was required to prove, among other things, that a product was defective when it left the manufacturer and that the defect was a producing cause of the Plaintiff’s injuries.

    Kiska’s report had identified two manufacturing defects: (1) the hardness of the ladder’s feet exceeded the product specification’s upper tolerance limit; and (2) the width of the ladder’s outer section assembly exceeded the product specification’s upper tolerance limit. The Defendant argued that Kiska had not demonstrated that Medellin’s ladder was defective when it left the manufacturer.

    Kiska’s report stated that “Inspection of the subject ladder shows that it was not manufactured to specification”, and Medellin’s deposition testimony, which Kiska reviewed, tended to demonstrate that the ladder’s condition remained unchanged between its manufacturing and Medellin’s accident. For instance, Medellin mentioned purchasing her ladder in November 2017 and using it only twice before her accident occurred: once in 2017 and once in 2018. She stored the ladder in her garage in its most compact configuration—fully retracted on both sides and folded in half. No one else used the ladder, and it had not been used after Medellin’s accident. Kiska inspected Medellin’s ladder and found it to be in generally good condition. The Defendant did not challenge Medellin’s testimony regarding her storage or use of the ladder or provide evidence that the ladder’s condition changed between its manufacture and Medellin’s accident or between Medellin’s accident and Kiska’s inspection. Whether the identified manufacturing defects existed when the ladder left the factory was deemed a question for the jury.

    Regarding the causal connection between the manufacturing defects and Medellin’s accident, Kiska explained that the hardness of the ladder’s feet exceeded the product specifications, and harder material provides less slip resistance. He opined that “The likelihood of bottom slip out of a ladder is greater when its feet are composed of a harder material. This was the case with Medellin’s ladder”. Kiska reviewed the ladder’s specifications, which required slip-resistant feet “with a ‘Shore A durometer of 80+1-2.’” Thus, the maximum durometer reading would be 82 Shore A, but Medellin’s ladder’s left foot measured 91-92 Shore A, while the right foot measured 92-93 Shore A. Kiska stated that the feet on Medellin’s ladder would not be expected to provide as much resistance to slipping out as feet within the proper specifications. Thus, Kiska tied the out-of-specification hardness of the ladder’s feet to its propensity to slide out from under the user.

    Kiska had also determined that the outer assembly of Medellin’s ladder exceeded the product specification’s upper tolerance limit. He explained that the specification drawing set the ladder’s outer assembly width at 15.00 inches, +0.00/-0.06, meaning the width should not exceed 15.00 inches under any circumstances. Kiska measured Medellin’s ladder at various points and found that both extension sections exhibited widths greater than allowed by the manufacturing drawings. This increased clearance could allow for greater misalignment of the two sections and their mating parts. Kiska explained that while some clearance is necessary for sections to slide freely, excessive clearance increases the inner section’s ability to shift relative to the outer section, adversely affecting the alignment of the locking pins and exacerbating the ability of the pins to be directed into their respective rung holes.

    Kiska had connected his measurements indicating the ladder was out of specification to the ladder’s tendency to become falsely locked. Consequently, Defendant’s motion to exclude Kiska as an expert was denied.

    Defendant sought summary judgment, reiterating the same arguments presented in the motion to exclude Kiska’s opinions. Defendant contended that Medellin did not establish causation, failed to propose a safer alternative design, and could not link the manufacturing defects to her accident. The Court, having found Kiska’s opinions admissible, suggested that if Defendant contested the degree of slip resistance in Medellin’s ladder, it could address that issue during Kiska’s cross-examination. The Court recommended that the Defendant’s Motion for Summary Judgment be denied.

    Therefore, Judge Peter Bray denied Defendant’s Motion to Exclude the Opinions of Stanley Kiska and also recommended the denial of Defendant’s Motion for Summary Judgment. The parties were granted fourteen days from the service of the Memorandum and Recommendation to submit written objections. Failure to file timely objections would result in the preclusion of appellate review for factual findings or legal conclusions, except for plain error.

    On January 2, 2024, the Defendant filed four objections. Initially, the Defendant contested Judge Bray’s denial of their challenge to Kiska’s opinions regarding the “false lock” condition of the Plaintiff’s ladder. Subsequently, the Defendant objected to Judge Bray’s determination that Kiska’s opinions on design defects should be allowed as evidence. Additionally, the Defendant raised an objection to Judge Bray’s conclusion that Kiska’s opinions on manufacturing defects should be admitted. Finally, the Defendant opposed Judge Bray’s recommendation to deny their Motion for Summary Judgment.

    Upon thorough de novo consideration of the objected portions of the Magistrate Judge’s Report and Recommendation (M&R) and a review of the remaining proposed findings, conclusions, and recommendations for plain error, the Court found no errors. Consequently, the Court accepted the M&R and adopted it as the opinion of the Court. The Defendant’s arguments were deemed insufficient to warrant reversal, as they were fully examined and failed to demonstrate a compelling reason for a different outcome.

    Held

    The Court rendered the following decisions:

    1. Judge Bray’s Magistrate Judge’s Report and Recommendation (M&R) was fully accepted and adopted as the holding of the Court.
    2. The Defendant’s Motion to Exclude the Opinions of Stanley Kiska is denied.
    3. The Defendants’ Motion for Summary Judgment is also denied.

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

    Key Takeaways:

    Stanley Kiska’s expert opinion regarding the “false lock” condition of Medellin’s ladder was accepted by the Court, asserting that the ladder could be falsely locked on the ground, raised into position for use, and partially climbed without the user detecting the false lock. Kiska based this conclusion on a comprehensive review of deposition testimonies, photographs, videos, ladder inspections, and testing conducted by another expert, Peter J. Poczynok, in a related case. Despite the Defendant’s objections to Kiska relying on Poczynok’s testing methodology, the Court noted that the Defendant strategically chose not to challenge Poczynok as an expert witness during the case and did not object to Kiska’s reliance on Poczynok’s testing.

    Furthermore, the Defendant’s objections to the validity of Poczynok’s testing for comparison purposes were overruled by the Court, which deemed Poczynok’s testing substantially similar, with any disparities to be addressed during cross-examination. The Court also allowed Kiska to testify about design defects and propose an alternative design, emphasizing that testing could be as simple as applying math and physics. The Defendant’s objections to Kiska’s reliance on Poczynok’s testing for design defects were considered insufficient, and the Court permitted Kiska to present his expert opinions.

    In addition, the Court addressed the Defendant’s objections to Kiska’s opinions on manufacturing defects, specifically challenging the lack of evidence demonstrating that the defects existed when Medellin’s ladder left the manufacturer and that they caused the accident. The Court found Kiska’s measurements and analysis adequate to present a question for the jury on these issues.

    Overall, the Court deemed Kiska’s expert opinions admissible, rejecting the Defendant’s objections as lacking merit and providing a comprehensive analysis of the expert’s methodologies and conclusions in the case.

    Case Caption: Medellin v. Wing Enters., Inc.

    Docket Number: 4:21cv3582

    Court: United States District Court, Texas Southern

    Citation: 2023 U.S. Dist. LEXIS 232419

    Order Date: December 17, 2023

  • Urogynecology Expert Witness Testimony about inadequate risk disclosure admitted in medical device product liability action

    Urogynecology Expert Witness Testimony about inadequate risk disclosure admitted in medical device product liability action

    Connie Thacker (Plaintiff) received two surgical mesh devices, Prolift and TVT-Secur, as implants on May 8, 2009. Both devices were manufactured by Ethicon, Inc. and were designed to treat pelvic organ prolapse and stress urinary incontinence in women. Later, Thacker sued, alleging damages resulting from the use of these devices and identified Bruce Rosenzweig as her “Case-Specific Urogynecologist.”

    Ethicon moved to exclude Rosenzweig’s opinion that it did not adequately furnish Thacker’s implanting physician, Dr. James Guiler, with necessary information about Prolift and TVT-Secur. Ethicon also also aimed to bar Rosenzweig from presenting any opinions regarding general causation.

    Urogynecology Expert Witness

    Dr. Bruce Alan Rosenzweig, an Assistant Professor of Obstetrics and Gynecology at Rush University Medical Center and an Attending Physician of Obstetrics and Gynecology at Rush Presbyterian St. Luke Hospital. He earned his M.D. from the University of Michigan. Following medical school, he completed an Obstetrics and Gynecology Residency at Michael Reese Hospital. He pursued a one-year pelvic surgery fellowship at the State University of New York, and subsequently attended a two-year Urogynecology and Urodynamic fellowship at UCLA Harbor General Hospital. Throughout his career, Rosenzweig has performed over a thousand pelvic floor surgical procedures and utilized various synthetic pelvic mesh products. He has conducted over 350 surgeries addressing complications related to synthetic mesh. Rosenzweig possesses expertise and knowledge in the field of the pelvic floor and its reactions to materials and devices. Additionally, he has contributed to the field by inventing and designing products for gynecological applications.

    Discussion by the Court

    Regarding the Defendants’ motion to exclude Rosenzweig’s opinion on whether the Defendants provided sufficient information to Guiler about Prolift and TVT-Secur, the Defendants highlighted specific statements in Rosenzweig’s report. Rosenzweig, based on his examination of Thacker’s medical records, experience, education, and a review of depositions, internal Ethicon documents, and medical literature, expressed two key opinions with a reasonable degree of medical certainty:

    1. Thacker couldn’t make a fully informed medical decision about TVT-S and Prolift mesh implantation because Ethicon did not fully disclose the risks and complications in the Instructions for Use (IFUs), both early and late. The lack of complete disclosure by Ethicon meant that Thacker, and surgeons, including her implanting surgeon, were unaware of these risks. Despite Ethicon having information about these risks before the devices’ launch, it was not fully disclosed. Consequently, Thacker’s implanting surgeon couldn’t convey this information to her for proper consent regarding the risks associated with TVT-S and Prolift devices. This resulted in Thacker being unable to make a fully informed decision about the implantation, and, with a reasonable degree of medical certainty, she suffered injuries that were not disclosed by Ethicon. The inadequate disclosure of these risks was considered a substantial factor and/or cause of Thacker’s injuries.
    1. Thacker’s implanting surgeon, Guiler, couldn’t furnish the necessary and required information to Thacker for informed consent. This inability stemmed from Ethicon’s failure to fully disclose and evaluate the essential information before the launch of the medical devices.

    The Defendants objected to Rosenzweig’s opinions solely on the basis that he should not be allowed to testify regarding Guiler’s state of mind. The objection contended that Rosenzweig lacked insight or expertise into the specific knowledge or state of mind of Guiler. It was emphasized in the objection that there was no challenge to Rosenzweig’s qualifications to express opinions on whether Ethicon adequately disclosed the risks and complications of its products.

    The Court concurred with the Defendants that Rosenzweig should not be allowed to testify about Guiler’s knowledge or state of mind. It was noted that the Plaintiff intended to call Guiler as a witness at the trial, allowing him to testify about his own knowledge and state of mind. The Court clarified that the portion of Rosenzweig’s report in question did not express an opinion on Guiler’s knowledge or state of mind. Instead, it focused on whether Ethicon adequately disclosed the risks and complications of its products to physicians, including Guiler. Rosenzweig’s opinion that Ethicon did not disclose adequately and, consequently, physicians couldn’t adequately inform patients, was deemed permissible. The Court stated that any inconsistency between Rosenzweig’s testimony on Ethicon’s disclosure to Guiler and Guiler’s own testimony could be addressed through cross-examination.

    Regarding Rosenzweig’s opinion on general causation, Ethicon contended that Plaintiff Thacker had not identified Rosenzweig as an expert on general causation. Consequently, Ethicon argued that the Court should bar Rosenzweig from providing testimony on this particular topic.

    The Court rejected the motion, asserting that the Defendants had not provided sufficient evidence to support their claim that Thacker did not appropriately designate Rosenzweig as an expert on general causation.

    This case was initially filed in the United States District Court for the Eastern District of Kentucky, but on July 31, 2012, it was transferred to the Southern District of West Virginia as part of a multidistrict litigation (“MDL”) titled In re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation. The MDL Court organized cases into different “Waves,” and Thacker’s case was assigned to “Wave 4”. The pretrial order for Wave 4 mandated that the Plaintiff disclose experts by January 17, 2017, Defendants disclose experts by February 15, 2017, and Daubert motions be filed by April 13, 2017. Additionally, the pretrial order imposed a limit of a maximum of five experts for each side in each case.

    In adherence to the pretrial order issued by the MDL Court, on January 17, 2017, the Plaintiffs’ counsel in the MDL provided defense counsel with a designation and disclosure of general expert witnesses. The disclosure comprised a list of 25 “general retained experts,” which included 13 urogynecologists. Rosenzweig, also a urogynecologist, was among the experts identified in the disclosure.

    The Defendants contended that the expert disclosure made on January 17, 2017, in the MDL did not fulfill the Plaintiff’s responsibility to designate Rosenzweig as a general causation expert in her specific case. They argued that the disclosure could not have outlined the general causation experts Thacker intended to call, as it included 25 doctors, exceeding the MDL Court’s limit of five retained experts per case. According to the Defendants, the Plaintiff Steering Committee (“PSC”) in the MDL identified all general causation experts to be retained across all Wave 4 cases with the January 17, 2017 expert disclosure. Defendants asserted that each individual Plaintiff was then obligated to serve a separate disclosure, specifying the general causation experts retained for their particular case.

    The Defendants did not refer to any order from the MDL Court explicitly outlining the procedure they argued for. The only order highlighted by the Defendants was the Pretrial Order for the Wave 4 cases, which mandated that Plaintiffs disclose their experts by January 17, 2017.

    In instances where the MDL Court issued additional orders concerning Plaintiffs’ expert disclosures, it remains uncertain if such orders would have been applicable to Thacker’s case. This uncertainty arises because, on June 28, 2017, the MDL Court placed Thacker’s case on the “inactive docket” following counsel’s notification of an agreed-upon settlement model. Concurrently, the MDL Court extended all discovery deadlines for Thacker’s case. Thacker’s case remained on the inactive docket within the MDL Court until it was later remanded to the United States District Court for the Eastern District of Kentucky.

    The Defendants failed to provide sufficient evidence to support their claim that Thacker did not appropriately designate Rosenzweig as a general causation expert in accordance with the MDL Court’s requirements. Concerning the disclosure of general causation experts in this Court, the Judge issued the scheduling order. This order established deadlines for Thacker and the Defendants to submit “case-specific expert witness reports” and for the Defendants to “designate general causation experts and testimony developed and existing in” the MDL. However, no deadline was set for Thacker to designate general causation experts. The reason for this omission is unclear, and it is possible that the Judge determined Thacker had already identified general causation experts in the MDL as per that Court’s established procedure. Nevertheless, Thacker did not miss any deadline set by this Court for designating general causation experts.

    Consequently, the Court allowed Rosenzweig to testify as a general causation expert on behalf of Thacker.

    Defendants argued that due to Thacker’s failure to designate Rosenzweig as a general causation expert after the case was remanded, they refrained from filing a Daubert motion challenging the substance of Rosenzweig’s general causation opinions. Although the Defendants had previously filed a motion in the MDL Court to exclude Rosenzweig’s general causation testimony, it seems this issue was addressed during the period when Thacker’s case was on the inactive docket in the MDL. The MDL Court explicitly stated that its Daubert ruling did not apply to Thacker’s case. Consequently, the Court granted the Defendants 30 days to submit a Daubert motion challenging Rosenzweig’s testimony on general causation, adhering to the response and reply times outlined in the Local Rules.

    The Court rejected any vague request by the Defendants to exclude the general causation opinion of any expert not specifically identified by name in their motion. The Court deemed such a request too ambiguous to address and, accordingly, denied it.

    Held

    1) Defendants’ motion in limine to exclude improper testimony from Plaintiff’s expert Bruce Rosenzweig was denied.

    2) Defendants were granted permission to file a motion challenging the substance of Rosenzweig’s general causation opinion. This motion must be filed within 30 days of the entry date of the order, and the response and reply times are to be in accordance with the Local Rules.

    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 Court’s rulings on expert testimony in this case centered on Dr. Rosenzweig’s opinions regarding the adequacy of information provided by Ethicon to both the plaintiff, Thacker, and her implanting surgeon, Dr. Guiler. The Court agreed with the Defendants that Rosenzweig should not testify about Guiler’s state of mind, emphasizing that the focus should remain on Ethicon’s disclosure practices rather than the individual surgeon’s awareness. While permitting Rosenzweig to opine on Ethicon’s inadequate disclosure and its impact on physicians, including Guiler, the Court stressed that any inconsistencies could be addressed through cross-examination during the trial.

    In terms of general causation, the Defendants sought to exclude Rosenzweig’s testimony, arguing that Thacker had not properly identified him as a general causation expert. The Court rejected this motion, citing insufficient evidence from the Defendants. The case’s transfer to a multidistrict litigation (MDL) setting added complexity, with the Defendants challenging the adequacy of Thacker’s expert designation during the MDL proceedings. Despite the Defendants’ contentions regarding the MDL Court’s procedure for expert disclosures, the Court found no evidence to support their claim and allowed Rosenzweig to testify as a general causation expert.

    Case Caption: Thacker V. Ethicon, Inc. Et Al

    Docket Number: 5:20cv50

    Court: United States District Court, Kentucky Eastern

    Citation: 2024 U.S. Dist. LEXIS 4379

    Order Date: January 09, 2024

  • Finance expert witness excluded since opinion did not rely on specialized or technical knowledge

    Finance expert witness excluded since opinion did not rely on specialized or technical knowledge

    In February 10, 2023, Defendants, consisting of Varsity Brands, LLC; Varsity Spirit, LLC; Varsity Spirit Fashions & Supplies, LLC and U.S. All Star Federation, filed a Motion to Exclude the Testimony of James H. Aronoff. The motion sought to prevent the admission of Aronoff’s expert testimony, which was disclosed by the Indirect Purchasers, Jessica Jones and Christina Lorenzen, on June 20, 2022.

    Aronoff’s expert report, submitted by the Indirect Purchasers, comprised three parts. The first part detailed the history of Varsity, encompassing its growth, ownership structure, and product and service offerings. The second part outlined Varsity’s operational model, alleging that the company created barriers to entry and utilized its dominant market share and access to capital to stifle competition in various segments of the Competitive Cheer market. The third part of Aronoff’s report provided specific, pragmatic recommendations for structural relief within the Competitive Cheer market.

    In response to arguments propounded by other experts, the Indirect Purchasers disclosed a rebuttal report from Aronoff on December 14, 2022.

    Finance Expert Witness

    James Aronoff has more than thirty-eight years of professional experience, primarily in the financial services industry. He has held several senior positions within highly regulated financial institutions that operate in competitive markets. He is currently a Managing Director of Cohn Reznick’s Restructuring and Dispute Resolution practice. He provides advisory services to clients, offering guidance on matters related to regulatory compliance, best practices, restructuring and workouts, dispute resolution, and enterprise risk management.

    Discussion by the Court

    The Defendants’ motion contested the admissibility of Aronoff’s opinions, presenting three main arguments. Firstly, they argued that Aronoff lacked relevant experience. Secondly, they asserted that the majority of his report consisted of factual narration. Lastly, the Defendants contended that Aronoff’s recommendations for structural relief were inappropriate subjects for expert testimony.

    The Defendants initially asserted that Aronoff lacked the qualifications to serve as an expert. They argued that Aronoff’s background did not include any relevant experience in sports or sports management, he was not an economist, and had no prior involvement in antitrust litigation before this assignment. Despite Aronoff’s claim of expertise in compliance programs, the Defendants contended that his opinions were not directly linked to those programs but merely suggested potential remedies such as forbidding Varsity and/or USASF from engaging in practices complained about by the Plaintiffs or other proffered experts. In contrast, the Indirect Purchasers argued that Aronoff’s extensive curriculum vitae demonstrated his experience and expertise in corporate governance and compliance within large and complex business organizations. The Court ultimately determined that Aronoff’s background in corporate governance and compliance qualified him to provide testimony on the topic.

    The Defendants contended that the majority of Aronoff’s reports constituted a “factual narrative” devoid of any technical or scientific conclusions. In response, the Indirect Purchasers argued that Aronoff’s report not only presented historical facts but also provided context and analysis, making it admissible as expert testimony. The Court, citing cases such as Highland Capital Mgmt., LP v. Schneider, 379 F. Supp. 2d 461, 469 and Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307, 1330 emphasized that expert testimony should not be solely for constructing a factual narrative based on record evidence, as such evidence could be appropriately presented through percipient witnesses and documentary evidence. However, an expert, like Aronoff, was allowed to articulate the “factual underpinning” on which his opinions were based, distinguishing it from a mere recitation of facts.

    In the case, the Court noted that Aronoff’s opening report contained a section titled “Background,” constituting nineteen pages out of a total of forty-one. This section provided a comprehensive history of competitive cheer, detailed Varsity’s corporate and acquisition history, discussed Varsity’s interactions with governing bodies in competitive cheer, and outlined the ownership of Varsity by private equity firms. These facts were supported by footnotes to deposition testimony, documents, and Indirect Purchasers’ Complaint.

    The Court determined that while this information might be appropriate when presented by fact witnesses or through documentary evidence, it was not relevant or necessary to contextualize or support Aronoff’s opinion testimony in his opening report regarding Varsity’s operational model. As a result, the Court excluded any testimony from Aronoff that intended to cover these factual details.

    The Defendants contended that the remaining portion of Aronoff’s opinions, specifically his recommendations for structural relief, should be excluded as they were deemed irrelevant. The Defendants argued that Aronoff’s recommendations, offered in both his opening report and rebuttal reports, failed to meet the requirements of Rule 702, asserting that the testimony lacked relevance and reliability. The Defendants specifically claimed that Aronoff’s opinions, focusing on injunctive relief, did not contribute to the understanding of evidence or the determination of facts in question.

    In response, the Indirect Purchasers argued that Aronoff’s recommendations served as guideposts for the trier of fact, aiding in the analysis of the competitive effects of the Defendants’ business practices and proposing mitigating practices grounded in corporate governance to restore and maintain competition in the relevant market.

    However, the Court determined that Aronoff’s recommendations did not appear to rely on specialized or technical knowledge. Additionally, the recommendations were deemed non-specific, and Aronoff himself acknowledged during deposition that they were intended as a starting point for crafting actual procedures, lacking specific rules for embodiment in an agreement or order. Consequently, the Court found Aronoff’s testimony not clearly derived from specialized knowledge and lacking specificity, and as a result, excluded his testimony in its entirety. The Court did note the possibility of reconsideration if the Defendants presented proof related to Aronoff’s testimony, with a potential allowance for his testimony as a rebuttal expert at that time.

    Held

    The Court granted the Defendants’ Motion to Exclude the Testimony of James Aronoff.

    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 hinges on several key considerations, as illustrated in the case involving Aronoff. First and foremost, the qualifications of the expert play a crucial role. In this instance, the Defendants challenged Aronoff’s expertise, contending that his background lacked relevance to the subject matter. The Court underscored the significance of an expert’s qualifications in determining admissibility. Additionally, the purpose of expert testimony must surpass presenting a mere factual narrative, a task better suited for percipient witnesses or documentary evidence. The Court emphasized that expert opinions should articulate the “factual underpinning” supporting their conclusions. Furthermore, the relevance of information presented in an expert’s report is paramount. In this case, a section of Aronoff’s report providing historical context and corporate details was excluded as irrelevant. Specificity in recommendations is another critical factor; non-specific recommendations lacking in specialized knowledge may be deemed irrelevant and unhelpful to the trier of fact, leading to exclusion. The Court also considered the linkage of recommendations to specialized knowledge, ultimately excluding Aronoff’s testimony as it appeared not to rely on such knowledge.

  • Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Plaintiff Wilfredo Maribona filed a negligence suit against Defendant Wal-Mart Stores East, LP. Maribona summarized his claim, asserting that he slipped due to the painted stop bar in the parking lot being slippery when wet from rain. Despite no accident report being filled out, the incident was recorded by store surveillance.

    The Plaintiff enlisted Christopher Zimmerman (“Zimmerman”) as an expert witness, who asserted that the paint on the stop bar lacked sufficient slip resistance, and Wal-Mart had violated multiple building and other codes. In response, the Defendant hired Derrek-Ian Verlaan (“Verlaan”) as its rebuttal expert, contending that the stop bar was not slippery. Both parties sought to prevent the other’s expert from testifying.

    The Court addressed three motions: (1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan; (2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman; and (3) Defendant’s Motion for Final Summary Judgment.

    Building Inspection Expert Witness

    Christopher M. Zimmerman is a Florida State Licensed Building Inspector and a Florida State Licensed Plans Examiner with over 16 years of experience examining the permitting and construction process, including construction safety practices. He has obtained his Bachelor of Science degree in Criminology from Florida State University and has further enhanced his investigation skills during an internship with Florida Department of Insurance, Fraud Division. Zimmerman is currently a partner of Zimmerman Associates of Florida, where he provides research, inspection and expert witness services to owners, the legal profession and their clients, on matters concerning construction activity, property damage and personal injury.

    Construction Expert Witness

    Derrek-Ian G. Verlaan is a Certified Safety Professional and a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, where he has been performing scientific investigation, research, and consulting for over 20 years. His consulting practice areas include construction, safety, environmental, and fire. He investigates residential and commercial property losses related to structural, fire, water damage, mold, and corrosive drywall. He has obtained his Bachelor of Science from the University of West Florida.

    Discussions by the Court

    The Plaintiff asserted that Christopher Zimmerman possessed over 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner, specializing in permitting and construction processes, including construction safety and is qualified by the Court to provide testimony in these areas.

    In an on-site inspection performed on July 7, 2021, approximately six months after the event, Zimmerman assessed the site under overcast weather conditions following rain. Without conducting destructive testing, he employed the methods typical of a building inspector, including visual inspection, tactile examination, and surface scratching. Zimmerman explained his methodology by visually examining and feeling the conditions on-site, touching the surface with his hands, and scratching it to identify any abrasive additive. He observed variations in the surface along the painted line, noting smooth areas and pitting likely caused during the spray application, as seen in photographs. Multiple pictures were taken to document various conditions in the area, including instances of cracking.

    Zimmerman expressed the opinion that the pertinent paint striping lacked an abrasive additive, failing to provide slip-resistant construction. His first opinion identified the route as a primary access and egress route, marked for pedestrians, citing relevant codes and criteria. His second opinion asserted that Wal-Mart failed to furnish a consistently slip-resistant walking surface for the Plaintiff’s use under expected conditions and use. In a written opinion dated April 27, 2023, Zimmerman stated that a natural asphalt surface usually offers good slip resistance. However, when coated with paint without proper texturing or an abrasive additive, the slip-resistant characteristics diminish. The stop bar marking, having multiple layers of paint, concealed the natural abrasive features of the asphalt. Zimmerman found no evidence of an abrasive additive during his examination, describing the surface as smooth and nonporous. Such hard, smooth surfaces without sufficient abrasive additives are recognized as posing a slip hazard, especially when wet or contaminated.

    The Defendant asserted that Derrek-Ian Verlaan, held certifications as a Certified Safety Professional and served as a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, bringing over 20 years of experience in scientific investigation, research, and consulting. Verlaan also engaged in property loss consulting related to insurance, fire investigation, and environmental consulting. Despite his extensive experience, he had not testified in Court before, and his testimony had never been disqualified. 

    When Verlaan was engaged, the pavement markings at the Wal-Mart store had already been repainted, preventing him from inspecting the accident scene. Instead, he relied on a video of the incident, still photographs taken by Zimmerman, and six months’ worth of company slip and fall information for the location. His analysis revealed that out of 336 people traversing the pavement markings, including the stop bar, the Plaintiff was the only one to slip. Verlaan examined the video for partial slips or slip recoveries among the 118 people who physically stepped on the stop bar, conducting a statistical analysis to determine their steps. This analysis was connected to published research correlating certain levels of coefficient of friction with reduced slipping risks. However, Verlaan did not conduct a slip coefficient test because the surface had changed.

    Verlaan conducted a gait analysis of the video footage, noting that the Plaintiff did a partial split while holding a shopping cart. Based on discovery materials, Verlaan opined that reflective cracks in the paint could disperse surface water on the pavement markings, reducing the potential for slips due to hydroplaning. Additionally, he found that the stop bar was not slippery, as no other slip and falls were reported or observed in the preceding six months. Verlaan concluded that the walking surface was slip-resistant, and the Plaintiff’s slip was deemed an atypical random event, supported by video analysis and estimated incident rates.

    The Court emphasized the criteria for admissible expert testimony: qualifications, reliable methodology, and helpfulness to the trier of fact. In this case, both parties contended that the opposing expert failed to meet these requirements. However, the Court determined that both Zimmerman and Verlaan were qualified based on their education, training, and experience. Arguments challenging their qualifications were dismissed.

    The Court determined that Plaintiff successfully demonstrated the reliability of Zimmerman’s methodology and the helpfulness of his testimony regarding the first opinion. Any perceived shortcomings were deemed matters that go to the weight of the testimony and the admissibility of drawn conclusions or second opinion, which could be addressed during the trial. Conversely, the Court found that Defendant failed to establish the reliability of Verlaan’s methodology or the helpfulness of his testimony. Verlaan conducted no site examination of any kind, relying instead on counting people who did not slip during an arbitrary two-hour period to draw speculative conclusions. The relevance of the numbers of individuals who didn’t slip at or near the pertinent time was acknowledged, but it was not based on his expert testimony.

    The Defendant filed a motion for summary judgement. Responses in opposition were also filed but ultimately the motion for summary judgement was denied. The Court citing, Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023), held that, under Florida law, a Plaintiff must establish four elements to sustain a negligence claim: (1) the Defendant owed a ‘duty, or obligation, recognized by the law, requiring the Defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks’; (2) the Defendant failed to conform to that duty; (3) there is ‘a reasonably close causal connection between the nonconforming conduct and the resulting injury’ to the claimant; and (4) some actual harm. The record indicated genuine disputes on material facts, and it did not support the conclusion that the Defendant was entitled to judgment as a matter of law. Consequently, the Court denied the motion for summary judgment.

    Held

    The Court ruled on three motions: 1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan was granted; 2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman was denied; and 3) Defendant’s Motion for Final Summary Judgment was also denied.

    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 negligence suit brought by Wilfredo Maribona against Wal-Mart, expert testimony played a crucial role in shaping the arguments of both parties. Plaintiff’s expert, Christopher Zimmerman, utilized his 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner to assert that the painted stop bar lacked sufficient slip resistance, supporting his opinions with a thorough on-site inspection and visual assessments. Zimmerman’s methodology and qualifications were deemed reliable by the Court. On the other hand, the Defendant’s rebuttal expert, Derrek-Ian Verlaan, faced challenges in establishing the reliability of his methodology, as he conducted no site examination of any kind and relied on counting people who did not slip during a specific period. The Court found Verlaan’s approach lacking and irrelevant to his expert testimony. The Court’s emphasis on qualifications, reliable methodology, and helpfulness to the trier of fact underscores the critical role of expert testimony in negligence claims. Ultimately, the Court’s decision to deny the Defendant’s motion for summary judgment highlights the importance of genuine disputes on material facts in negligence cases, emphasizing the role of expert opinions in establishing liability and potential negligence.

  • Court reserves ruling on the motion to exclude after the expert’s opinion is found to consist of legal questions for the Court

    Court reserves ruling on the motion to exclude after the expert’s opinion is found to consist of legal questions for the Court

    Plaintiff, Racine Car Dealer, LLC, (“Racine” or “RCD”) a former Hyundai and Genesis motor vehicle dealer, claimed that Defendant, Hyundai Motor America(“HMA”) deceived it, withheld information, and altered the rules and policies of Hyundai’s dealer incentive program without notice. This alleged conduct compelled the Plaintiff to terminate the Genesis side of its dealership before completing the sale of its franchise to a third party. The Plaintiff proceeded to trial, asserting claims under the Wisconsin Motor Vehicle Dealer Law, the Automobile Dealers’ Day in Court Act, and Wisconsin contract law.

    Racine attempted to hold HMA accountable for its failure to meet the explicit “exclusive facility” requirement outlined in HMA’s Hyundai Accelerate Incentive Program. Due to this non-compliance, Racine did not qualify for incentive payments under the program. Racine asserted that this failure to qualify for Accelerate Incentive Program payments “coerced” the dealership into terminating its Genesis franchise, which was necessary to finalize the sale of the dealership to a third party, Zeigler Auto Group. Racine claims that the failure to qualify for incentives resulted in a $2 million reduction in the purchase price during the sale to Zeigler. Racine asserted that, as part of the Hyundai Accelerate Incentive Program, HMA “indirectly” violated Wisconsin Motor Vehicle Dealer Law § 218.0116(1)(i) by canceling Racine’s Genesis franchise.

    Defendants had disclosed an expert, Sharif Farhat, who issued a “dealer network analysis” report on October 24, 2023. In his report, Farhat opined that (1) it was reasonable for Defendants to support dealer efforts in improving brand representation through programs like Accelerate Incentive Program; (2) RCD’s claims alleged that the Accelerate Program disadvantaged small market Hyundai dealers were unsupported, speculative, and internally inconsistent; and (3) RCD’s claim suggested that HMA through their Accelerate Incentive Program “coerced” dealers into terminating their Genesis franchise was misleading and incorrect.

    Plaintiff asserted that Farhat’s opinions would not aid the jury in understanding the evidence or determining relevant facts. Additionally, the Plaintiff argued that these opinions were not based on sufficient facts or data and were not derived from reliable principles or methods. The opinion was sought to be excluded for three primary reasons. First, it was deemed irrelevant to any issues related to the Plaintiff’s claims. Second, even if relevant, determining the reasonableness of Defendants’ support for dealer efforts did not necessitate expert testimony. Third, the Plaintiff contended that Farhat’s report lacked any reasoning or methodology supporting the testimony, rendering it scientifically unreliable.

    Defendant Hyundai Motor America formally requested motions in limine, seeking to prevent Plaintiff Racine Car Dealer, LLC from making references, through argument, testimony, questioning, statements, documents, or any other means, to other lawsuits allegedly involving HMA. Additionally, HMA sought a motion precluding Racine from introducing as evidence or referring to a November 4, 2020, letter authored by the New York State Automobile Dealers Association (“NYSADA”). Furthermore, HMA requested a motion in limine to block Racine from presenting any evidence, argument, or testimony related to or referencing hearsay news articles concerning HMA.

    Automotive Industry Expert Witness

    Sharif Farhat is the Vice President of Expert Analytical Services at Urban Science Applications, Inc. He received his Bachelor of Science degree in Computer Science with minors in Mathematics and Business Administration from Michigan State University and then obtained his Masters degree in Business Administration from the University of Detroit. His specialities include analytical techniques to evaluate programs, policies, and metrics to assess dealer performance for the automotive industry. 

    Discussions by the Court

    The Plaintiff argued that the testimony and the October 24, 2023, report of the defense expert, Sharif Farhat, should be excluded for two main reasons: (1) they would not assist the jury in understanding the evidence or determining a fact in issue, and (2) the opinions were not based on sufficient facts, data, the product, or reliable principles or methods. The admissibility of expert opinion was guided by Rule 702, interpreted by the Supreme Court to allow expert testimony that is both reliable and relevant (Daubert v. Merrell Dow Pharmaceuticals, Inc.; Fed. R. Evid. 702). The Seventh Circuit condensed the requirements of Rule 702 into a three-part test, compelling district Courts to evaluate the proffered expert’s qualifications, the reliability of the expert’s methodology, and the relevance of the expert’s testimony (Gopalratnam v. Hewlett-Packard Company, 877 F.3d 771, 779 (7th Cir. 2017)).

    Initially, no expert reports were admitted at trial due to being largely considered classic hearsay. However, certain portions, such as demonstrative charts and graphs, 1006 summaries, and other documents, were allowed to be presented to the jury, if not separately admitted into the record under the Federal Rules of Evidence. Furthermore, the Plaintiff did not challenge Farhat’s qualifications but contested the relevance and reliability of his opinions. Farhat, an expert in the automotive dealership industry, asserted in his report that (1) it was reasonable for the Defendant to support dealer efforts to enhance brand representation through the Accelerate Incentive Program; (2) the Plaintiff’s previously rejected claim of the program disadvantaging small market Hyundai dealers was contrary to market data; and (3) the Plaintiff’s claim that the Defendant, via the Accelerate Incentive Program, coerced dealers to terminate their Genesis franchises was incorrect. The Defendant countered by stating that Farhat had never been excluded as an expert in any matter, followed an eight-step methodology in forming his opinions, and relied on various sources, including deposition transcripts, exhibits, summary judgment briefing, program documents, communications to the dealer network, sales and dealership data, automotive registration data, and information on program payments and accruals to Wisconsin dealers.

    The Defendant stated that it would not present the second opinion of the expert, rendering the Plaintiff’s motion regarding that opinion granted as unopposed. Consequently, only opinions 1 and 3 remained, their relevance depending on the requirements for proving Plaintiff’s exclusive facilities claim under the Wisconsin Motor Vehicle Dealer Law. The Court was unconvinced that the first and third opinions were reasonably in dispute, and if contested, both could be considered legal questions for the Court. Particularly regarding the third opinion, the parties’ factual positions continue to be two ships passing in the night. Legally, the Defendant asserted that the Plaintiff must prove that the Defendant unreasonably required or coerced the provision of exclusive facilities, while the Plaintiff argued it only needed to prove that the Defendant “coerced” or “attempted to coerce,” with the burden shifting to the Defendant to demonstrate reasonableness. Due to these disputes and lack of clarity, which were likely to impact jury instructions and the verdict form, the Court reserved judgment on the remaining portion of the motion regarding the relevance of Farhat’s first and third opinions for further discussion with the parties at the final pretrial conference.

    The Plaintiff contended that an email, sent by Karen Mendez to “All Hyundai Dealers” on January 10, 2020, announcing the Accelerate Incentive Program and its terms and conditions, should be excluded as irrelevant unless credible evidence demonstrated its receipt by Racine Car’s general manager, James Bozich, or any other personnel at Racine Car. Alternatively, the Plaintiff argued that the Defendant should be barred from referencing or implying that the email was distributed to all dealers because: (1) there was no group email address linked to “All_Hyundai_Dealers@hmausa.com;” and (2) the original email containing the actual dealer emails in the blind copy recipient field had been deleted.

    Initially, the email was considered relevant to the factual dispute between the parties regarding whether James Bozich or any other Racine Car personnel were adequately informed about the Defendant’s Accelerate Incentive Program and the overall reasonableness or coerciveness of HMA’s conduct. Despite Bozich maintaining that he never saw the email due to it being sent to his old “homerunautogroup.com” email instead of his “sbcglobal.net” email, the Court noted in its summary judgment opinion that the Defendant had presented evidence indicating Bozich was on the email distribution list. The Plaintiff emphasized the inability to confirm the recipients of the email, but the Defendant referred to Karen Mendez’s testimony, stating that she habitually blind copied all-dealer emails to specific dealer emails in a “regional dealer directory” produced during discovery. Mendez mentioned that Bozich’s email would have been included if it was in that directory. Despite the uncertainty, Defendant argued that Bozich’s “homerunautogroup.com” email was on the “Current Dealer Email List as of 9.2020.” Defendant also produced an “Email Distribution List” dated January 6, 2020, including Bozich’s “sbcglobal.net” email. The Defendant further claimed that Mendez sent another email about the program 21 days later to the same “All Hyundai Dealers” group, including Bozich and Basich as recipients, specifically to Bozich’s preferred “sbcglobal.net” email address. Additionally, the Defendant anticipated that Racine Car’s then-acting general manager, Adrian Basich, would testify that he was aware of the January 10, 2020, email and its requirements, and that Bozich regularly used the “homerunautogroup.com” email during his tenure at Racine Car.

    Therefore, the Plaintiff’s motion was based on a disputed material fact. The argument that the email could be “highly prejudicial” highlighted the contentious nature of whether Bozich or others at Racine received the email. The Court determined that these issues, including the credibility of the parties’ evidence, were matters for the jury to decide. Consequently, the Plaintiff’s motion to exclude the email or limit testimony concerning it was denied.

    Defendant argued that the Plaintiff should be barred from presenting evidence and arguments related to other lawsuits against Hyundai Motor America, asserting that such evidence would be irrelevant and excessively prejudicial. The Court granted this motion as it remained unopposed by the Plaintiff.

    Defendant argued that the Plaintiff should be prevented from presenting or referencing a November 4, 2020, letter from the New York State Automobile Dealers Association criticizing the Accelerate Incentive Program. The Defendant contended that the letter was inadmissible hearsay, irrelevant, and unduly prejudicial. The Court granted this motion as it went unopposed by the Plaintiff.

    Defendant asserted that the Plaintiff should be barred from presenting evidence or arguments related to news articles about Hyundai Motor America, citing their irrelevance and inadmissibility as hearsay. The Court granted this motion as it remained unopposed by the Plaintiff.

    Held

    1) Plaintiff’s motion in limine to exclude the opinions and report of Defendant’s expert Sharif Farhat was granted in part. Farhat’s second opinion was granted as it was unopposed. The Court reserved the ruling on Plaintiff’s motion in limine in part, Farhat’s first and third opinions were reserved for further discussion with the parties at the final pretrial conference. However, Plaintiff’s motion in limine to exclude the January 10, 2020, email or limit references regarding the email was denied.

    2) Defendant’s motion in limine to exclude reference to or evidence of other lawsuits was granted as unopposed. Defendant’s motion in limine to exclude New York Lobbying Group’s letter criticizing Defendant’s Accelerate Incentive Program was granted as unopposed. Defendant’s motion in limine to exclude hearsay news articles was granted as unopposed.

    3) 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 between Racine Car Dealer, LLC (Racine) and Hyundai Motor America (HMA), expert testimony played a crucial role in shaping the narrative of the case. Racine sought to hold HMA accountable for alleged deceptive practices, withholding information, and changes to the dealer incentive program. The defense expert, Sharif Farhat, issued a “dealer network analysis” report opining on various aspects, including the reasonableness of HMA’s support for dealer efforts and disputing Racine’s claims of program disadvantages and coercion. Racine challenged the admissibility of Farhat’s opinions, arguing they lacked relevance and reliability. The Court acknowledged the dispute over exclusive facilities claims, and the relevance of Farhat’s opinions became a focal point during the trial, likely to affect the jury instructions and verdict form.

  • Expert found qualified to opine on the Overall Completeness of the Stage Prop based on his experience in Construction Management and Operations

    Expert found qualified to opine on the Overall Completeness of the Stage Prop based on his experience in Construction Management and Operations

    The case originated from a contract disagreement between Movie Prop Rentals LLC and Miami Prop Rentals LLC, businesses in the movie production sector, and The Kingdom of God Global Church, a not-for-profit religious organization. The Plaintiffs claimed that the Defendants did not fulfill their part of a contract concerning the design and construction of a stage prop. They asserted that the Defendants did not make the necessary installment payments as stipulated in the contract. On the other side, the Defendants argued that the Plaintiffs’ insufficient progress in fabricating and constructing the stage prop released them from the responsibility to make additional payments.

    The Plaintiffs submitted a Daubert motion claiming that the Defendants’ rebuttal expert, Kane Smith, lacked the qualifications necessary to offer an expert opinion regarding the completion and quality of the Stage Prop. Additionally, the Plaintiffs argued that Smith utilized an unreliable methodology when reviewing the Stage Prop.

    Construction Expert Witness

    Kane Smith is an independent insurance consultant with over twenty years of experience in the construction business. He specializes in managing complex construction projects “ranging from airports to power generation facilities.” He has experience managing projects on 3 continents with budgets ranging from $5 million to $3 billion.

    Discussion by the Court

    Smith, an independent insurance consultant specializing in overseeing diverse construction projects, was challenged by the Plaintiffs regarding his expertise in the specialized field of stage prop fabrication. While acknowledging Smith’s qualifications in general construction, the Plaintiffs argued that his lack of experience specifically in stage prop fabrication invalidated his expertise. In response, the Defendants emphasized Smith’s extensive construction management experience spanning over two decades, asserting it qualified him to testify about the overall completeness of the Stage Prop.

    The Court ruled that Smith was qualified to testify regarding the Stage Prop’s overall completeness but acknowledged limitations as identified in his expert report. Plaintiffs contended that the disparity between complex construction projects and intricate stage prop fabrication rendered Smith unqualified to opine on the completeness of the Stage Prop. However, the Court found Smith’s experience, as detailed in his report and qualifications, sufficient for providing expert testimony on the construction and fabrication progress of the Stage Prop.

    Although acknowledging Smith’s lack of knowledge in specific finishing work for the Stage Prop, deeming it different from his expertise, the Court considered this aspect as affecting the weight of Smith’s expert testimony rather than its admissibility. The Court permitted Smith to offer expert rebuttal testimony, constrained by the parameters outlined in his report.

    The Plaintiffs contested the reliability of Smith’s methodology in assessing the overall completion of the Stage Prop. They argued that Smith’s inability to personally inspect the materials and the lack of sufficient documentation invalidated his expert opinion. The Defendants countered by stating that Smith’s review of a Dropbox containing various materials like budgets, design plans, photographs, and videos of the Stage Prop validated the reliability of his expert testimony.

    Plaintiffs reiterated their stance, asserting that Smith’s methodology was unreliable based on his expert report and deposition testimony. Smith’s report explicitly mentioned limitations due to not being able to physically inspect the site or have comprehensive information about the construction milestones or fabrication process. Smith further acknowledged that he lacked an inventory to guide his review of the Stage Prop, instead remarking that he estimated its completeness based on plans and a count of columns and pieces, lacking an inventory for guidance.

    However, referencing Federal Rule of Evidence 703, which permits experts to base opinions on provided facts or data, the Court noted that Smith had access to photographs, videos, design plans, and construction documents related to the Stage Prop. The Court deemed these materials sufficient for Smith to apply his expertise gained from complex construction projects, even though he acknowledged limitations in his review.

    Acknowledging the limitations outlined in Smith’s report, the Court ruled that while the Plaintiffs’ challenges affected the weight of Smith’s assessment, they did not warrant exclusion. The Court advised that any deficiencies in Smith’s review could be addressed during cross-examination rather than being grounds for exclusion.

    The Court concluded that Smith’s expert rebuttal testimony was beneficial for the jury, a point that the Plaintiffs did not contest. Smith aimed to offer rebuttal expert testimony regarding the completeness of the Stage Prop. The Court recognized the significance of this testimony in aiding the jury’s comprehension of the progress made in constructing and assembling the Stage Prop, pivotal aspects in determining whether the Plaintiffs fulfilled their obligations under the contract.

    The Plaintiffs aimed to prevent the introduction of evidence or testimony by Defendants related to two specific aspects: the stage of construction of the Stage Prop and the percentage of payments made for it. They specifically sought to exclude Joseph Busch and Ashley Nicole Larimer from providing opinion testimony on these matters. Plaintiffs argued that neither Busch nor Larimer were qualified to give opinion testimony, lacked a proper foundation for such testimony, and their inclusion would result in undue prejudice. They pushed for the exclusion of these witnesses from discussing the current stage of construction, the overall percentage of completion, and the financial aspects regarding payments made to Plaintiffs in relation to the total completion.

    Defendants countered by asserting that Busch and Larimer were fact witnesses relying on personal observations, making their testimony admissible. Plaintiffs maintained that both witnesses lack sufficient professional qualifications to testify on the Stage Prop’s completion and financial aspects. However, Defendants pointed out that Rule 701 of the Federal Rules of Evidence governs the admission of these witnesses’ testimony.

    Plaintiffs also argued that allowing the opinion testimony of either witness would result in unfair prejudice, citing the witnesses’ supposed lack of adequate knowledge concerning the Stage Prop’s construction status and financial details. They suggested that these gaps may be addressed during cross-examination. Nonetheless, they stressed the relevance of this evidence to critical facts, such as the Stage Prop’s overall completion, the agreed-upon price, and the construction progress gauged by the Parties’ budgets.

    The Court ultimately determined that while there might be potential shortcomings in the witnesses’ knowledge, these could be addressed through cross-examination. The evidence’s relevance to crucial facts such as the Stage Prop’s completion and the financial agreements outweighed the risk of unfair prejudice, leading to the conclusion that the probative value of this evidence is not significantly outweighed by the risk of unfair prejudice.

    The Plaintiffs aimed to prevent Defendants from introducing additional witnesses beyond those previously disclosed, namely, Joseph Busch, Ashley Nicole Larimer, and Kane Smith, arguing that doing so would cause undue prejudice. However, the issue of introducing undisclosed witnesses falls under Federal Rule of Civil Procedure 37. This rule specifies that if a party fails to disclose information or identify a witness as required by Rule 26(a) or (e), they cannot use that information or witness as evidence at trial unless the failure was substantially justified or harmless.

    Consequently, if Defendants attempt to present an undisclosed witness at trial, they must demonstrate that their failure to disclose that witness earlier was either substantially justified or harmless. Should Defendants establish this, the Court will then decide whether to allow the undisclosed witness, whether the jury should be informed about the non-disclosure, and if Defendants should face sanctions for the late disclosure. The Court, therefore, chose not to preemptively bar Defendants from introducing undisclosed witnesses at trial.

    Defendants asserted five claims based on alleged breach of the Parties contract: Breach of Oral Contract (Count I); Unjust Enrichment in the Alternative (Count II); Breach of the Implied Duty of Good Faith and Fair Dealing (Count III); Violation of the Florida Deceptive and Unfair Trade Practices Act (Count IV); and a request for Temporary, Preliminary, and Permanent Injunctive Relief (Count V).

    The Plaintiffs aimed to exclude evidence related to Counts II to V of the Defendants’ Counterclaim, arguing that allowing such evidence would result in undue prejudice. They based this argument on Defendants’ deposition testimony, suggesting that Defendants only intended to pursue Count I of their Counterclaim. However, the Court did not need to entertain this argument because its previous Order on the Motion for Summary Judgment had already granted Plaintiffs summary judgment on Counts II to V of Defendants’ Counterclaim.

    The Plaintiffs sought to exclude any additional evidence regarding damages linked to travel and related expenses connected to the Defendants’ planned outreach event. Plaintiffs noted that Defendants identified their damages as the money paid under the contract and related travel expenses. Plaintiffs insisted that evidence of damages related to the outreach event should be confined to the redacted bank statements disclosed during discovery.

    Similar to the request to limit undisclosed witnesses, Plaintiffs invoked Rule 37 concerning the admission of information not provided during discovery. If Defendants attempted to introduce further documentation regarding their travel and event-related expenses, which had not been previously disclosed, the Court would then assess the admissibility of such evidence under Rule 37.

    Held

    The Court denied Plaintiff’s Daubert motion to exclude the testimony of Defendant’s expert Kane Smith. The Court also denied Plaintiff’s request for an Order in Limine, in accordance with the foregoing, to bar all evidence referred to above which may be attempted to be adduced by Defendants at trial.

    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 Plaintiffs contested the expertise of the expert witness, arguing that while he possessed extensive experience in construction management, his lack of specialization in the specific field of stage prop fabrication invalidated his opinion regarding the completeness of the Stage Prop. However, the Defendants countered by emphasizing the expert’s lengthy construction management background spanning over two decades, asserting that it qualified him to testify about the overall completeness of the Stage Prop.

    The Court ruled that the expert, despite acknowledged limitations outlined in his report, was qualified to testify on the Stage Prop’s overall completeness. While the Plaintiffs highlighted the disparity between complex construction projects and intricate stage prop fabrication as a reason to discredit the expert’s opinion, the Court found his experience and qualifications sufficient for providing expert testimony on the construction and fabrication progress of the Stage Prop.

    Although the Court acknowledged the expert’s lack of knowledge in specific finishing work for the Stage Prop, deeming it different from his expertise, it viewed this aspect as affecting the weight of his expert testimony rather than its outright admissibility. Thus, the Court permitted the expert to offer expert rebuttal testimony, confined within the parameters outlined in his report.

    The reliability of the expert’s methodology was a point of contention. The Plaintiffs challenged the methodology, pointing out limitations in physical inspection and comprehensive information, which they argued undermined the expert’s opinion. However, the Defendants defended the reliability based on materials provided during discovery, including photographs, videos, design plans, and construction documents related to the Stage Prop.

    The Court, citing Federal Rule of Evidence 703, noted that the expert had access to adequate materials to apply his expertise, despite acknowledging limitations in his review. It highlighted that while the deficiencies affected the weight of the expert’s assessment, they didn’t warrant exclusion, and could instead be addressed during cross-examination.

    Ultimately, the Court recognized the significance of the expert’s testimony in aiding the jury’s comprehension of the construction progress of the Stage Prop, despite the challenges raised by the Plaintiffs.