Expert Witness Profiler

Blog

  • Court admits the findings of Neuropsychology Expert Witness with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

    Court admits the findings of Neuropsychology Expert Witness with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

    The Plaintiffs, Samuel and Allison Fetchero, filed a lawsuit against the Defendant, Amica Mutual Insurance Company, following a car accident.

    The Plaintiffs had fully paid insurance premiums for underinsured motorist coverage from the defendant. The Defendant accepted the premiums and issued underinsured motorist (UIM) coverage to the Plaintiffs. On April 5, 2016, an underinsured driver, Al-Nasser negligently collided with Samuel Fetchero’s (“Sam”) car. 

    Subsequently, on April 18, 2016, Al-Nasser admitted liability for the motor vehicle collision. As a consequence of the collision, Samuel Fetchero sustained multiple injuries, resulting in both special and general damages. Allison Fetchero suffered a loss of consortium with her husband and incurred other damages. The Plaintiffs resolved their third-party claims against Al-Nasser by accepting payment of her full automobile liability insurance policy limits from Liberty Mutual Insurance Company, amounting to $100,000.

    Before accepting Liberty’s settlement payment, the Plaintiffs offered Amica, the Defendant, the opportunity to purchase the third-party tort claims against Al-Nasser, which Amica declined. On April 5, 2016, the Plaintiffs submitted a settlement demand letter to Amica, seeking the full UIM policy limits. However, on the same date, Amica, through its adjuster, offered only $25,000 to settle the claim, providing no explanation for withholding UIM benefits.

    The Fetcheros’ retained Gary Stobbe, M.D., to evaluate and provide an expert opinion on the nature and extent of Sam’s injuries resulting from the car crash on April 5, 2016. Stobbe, after reviewing Sam’s medical records and conducting interviews with the Fetcheros, concluded, on a “more-probable-than-not basis, that Sam suffered from “mild traumatic brain injury (mTBI) with cognitive and behavioral complaints”, “post-concussion syndrome”, and ” adjustment disorder with mixed anxiety and depressed mood” all linked to the mentioned accident. Stobbe noted ongoing symptoms, including “superimposed adjustment disorder with anxiety and depressed mood,” attributing it to the April 5, 2016 injury, and likely contributing to his enduring cognitive and residual issues. Stobbe expressed difficulty in assigning a specific percentage of residual impact to each diagnosis due to the interconnected nature of the mTBI, concussion, and adjustment disorder resulting from the April 5, 2016 incident.

    Stobbe expressed the opinion that the treatment administered to Sam through December 1, 2021, was reasonable and suitable in addressing the diagnosed conditions of mTBI, post-concussion syndrome, and adjustment disorder. Additionally, he recommended the consideration of additional psychological counseling, preferably with a rehabilitation psychologist, as a measure to enhance Sam’s ability to cope with his persistent residual complaints, although it was not anticipated to be curative.

    Amica designated Dr. Brett Parmenter, Ph.D., ABPP as a rebuttal witness, who asserted the opinion that the April 5, 2016, accident did not result in any neuropsychological injuries for Sam. According to Parmenter, there was no evidence indicating that Sam suffered a concussion or traumatic brain injury of any severity. Additionally, Parmenter noted that Sam’s symptoms of anxiety increased following a subsequent motor vehicle accident on December 9, 2018.

    The Plaintiffs, Samuel and Allison Fetchero, submitted a motion to exclude the testimony of Amica Mutual Insurance Company’s expert witness, Brett Parmenter.

    Court admits the findings of Neuropsychology Expert Witnesses with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

    Neuropsychology Expert Witness

    Brett A. Parmenter, Ph.D., ABPP holds a doctorate in Clinical Psychology from the University of Kansas and completed her internship at Yale University School of Medicine. Following this, she underwent a two-year fellowship in Clinical Neuropsychology at the University at Buffalo, State University of New York School of Medicine and Biomedical Sciences.

    She has been board-certified in Clinical Neuropsychology by the American Board of Professional Psychology/American Board of Clinical Neuropsychology (ABPP/ABCN) since 2009. Parmenter serves on the board of directors for the American Academy of Clinical Neuropsychology (AACN) and its Foundation. Additionally, she holds the status of a Fellow in Division 40 (Clinical Neuropsychology) of the American Psychological Association.

    Discussion by the Court

    Expert disclosures were required to adhere to the court’s specified timeline and sequence, in line with Federal Rules of Civil Procedure 26(a)(D). Following an initial expert disclosure, the opposing party had the option to present a rebuttal expert, provided their report addressed the same subject matter and was intended solely to counter the initial report. Notably, the rebuttal expert wasn’t obligated to explicitly state the intention to contradict the opposing party’s expert testimony in their report. District courts held discretion to exclude improperly disclosed expert testimony as a sanction for discovery violations.

    The Fetcheros had requested the Court to strike Parmenter as an expert witness due to her report not addressing the same fundamental subject matter as Stobbe’s. Their argument emphasized the differences in qualifications between Parmenter, a neuropsychologist, and Stobbe, a board-certified neurologist, citing specific statutes defining the scope of their respective medical fields. However, the Fetcheros failed to provide legal authority demonstrating that these qualifications alone could invalidate Amica’s assertion that Parmenter’s report aimed to contradict or rebut Stobbe’s.

    The Court refrained from evaluating Parmenter’s qualifications under Rule 702 but instead focused on whether her report aligned with or adequately addressed the topics covered by Stobbe’s report. The Fetcheros’ acknowledgment of the distinction between challenging Parmenter’s qualifications under Daubert and FRE 702 and contesting whether her report tackled the same subject matter as Stobbe’s was noted in their reply brief. Consequently, the Court chose not to delve into Parmenter’s qualifications but rather concentrated on evaluating the substance of her report and its correlation to the content covered by Stobbe’s.

    The Fetcheros had contended that Parmenter’s opinions in her report didn’t serve as a rebuttal to Stobbe’s testimony. They argued that Stobbe’s report didn’t mention Sam’s December 9, 2018, collision, thus considering Parmenter’s discussion of this subsequent accident as introducing new evidence. Additionally, they claimed that Stobbe hadn’t addressed whether Sam followed medical providers’ recommendations or agreed with other providers’ techniques and conclusions.

    However, the Court acknowledged that Stobbe’s findings about the April 5, 2016, accident and Sam’s injuries were broad, which allowed Amica to take a broader approach with its rebuttal expert report. The Court noted the risk associated with waiting until the rebuttal deadline, stating that if the opposing party offered limited or no expert disclosures, there would be little or no content to rebut.

    As a result, the Court decided not to exclude Parmenter’s responses regarding the December 9, 2018, accident, despite it not being mentioned in Stobbe’s report. Stobbe’s opinion that Sam’s injuries stemmed from the April 5, 2016, accident was countered by Parmenter’s views about an intervening or alternative cause. Furthermore, the Court opted not to exclude Parmenter’s opinion about whether Sam followed medical recommendations, emphasizing that this directly countered Stobbe’s conclusions on causation.

    Even though Parmenter was unaware that Amica had labeled her as a rebuttal expert and couldn’t identify during her deposition which parts of Stobbe’s report her testimony was expected to rebut, the Court’s analysis remained unchanged. The Court highlighted that an expert wasn’t required to explicitly indicate in their opinions that they were countering the opposing party’s expert testimony.

    Held

    The Court denied Plaintiffs Samuel and Allison Fetcheros’ motion to exclude the testimony of Defendant Amica Mutual Insurance Company’s expert witness, Brett Parmenter. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. The Court also denied the Fetcheros’ request for fees in bringing the motion.

    Key Takeaways

    This case demonstrates the wide latitude courts have to qualify rebuttal expert testimony under Rule 26, as long as it addresses the same subject matter and is intended to contradict the opposing party’s expert opinions. Even though Parmenter did not have identical qualifications to Stobbe and introduced additional topics like a subsequent accident, the Court found her testimony could still rebut his broader opinions about causation and injuries from the 2016 crash. This shows that rebuttal experts can potentially bring up related issues not specifically discussed by the initial expert if they believe those issues undermine the initial conclusions.

    Additionally, this case highlights that rebuttal experts need not explicitly state in their report that they are rebutting a specific opposing expert’s opinions. As long as the content functionally contradicts the opposing expert’s testimony, it can qualify as rebuttal. 

  • Methodology employed by the Business Valuation Expert Witness to compute damages passes the Daubert test amidst alleged violations of consumer protection laws

    Methodology employed by the Business Valuation Expert Witness to compute damages passes the Daubert test amidst alleged violations of consumer protection laws

    This case involved a dispute over the admissibility of expert testimony regarding damages in a lawsuit filed by Innovative Solutions International, Inc. (“Plaintiff”) against multiple Defendants, including Houlihan Trading Company, Inc. and Pilgrim’s Pride Corporation (“Pilgrims”). 

    Pilgrims, a company involved in preparing and packaging chicken for resale, supplied chicken that went through several vendors before reaching Defendant Houlihan Trading Co., Inc., who then sold it to the Plaintiff. The Plaintiff used the chicken in various food products that were ultimately sold to Trader Joe’s. Following customer complaints about bones in the products, Trader Joe’s terminated its contract with the Plaintiff. Consequently, the Plaintiff initiated legal proceedings against several entities in the supply chain, including Houlihan and Pilgrims. The lawsuit was filed on the grounds of multiple breaches of warranty and contract, misrepresentation, negligence, and violations of consumer protection laws. To support its claim for damages, the Plaintiff sought the admission of expert testimony from Steven J. Kessler. However, Pilgrims petitioned the Court to exclude or limit Kessler’s expert testimony, citing Rule 702 and the Daubert v. Merrell Dow Pharmaceuticals case (509 U.S. 579, 1993).

    Business Valuation Expert Witness

    Steven J. Kessler, C.P.A., A.B.V., C.F.F., has significant experience in the valuation and analysis of economic damages for business and personal injury cases and contested economic damages litigation cases. He is a Certified Public Accountant. He earned professional certifications such as Accredited in Business Valuation (ABV), Certified Valuation Analyst (CVA) and Certified in Financial Forensics (CFF), among many others.

    Discussions by the Court

    Pilgrims initially argued for the exclusion of Kessler’s testimony, contending that his method of calculating profits did not adhere to a “generally accepted way.” The Court noted that Pilgrims incorrectly applied the Frye standard, emphasizing that it had been superseded by Federal Rule of Evidence 702 according to the Daubert decision. The Daubert standard represented a departure from the stringent “general acceptance” standard set by Frye, emphasizing that while general acceptance within a scientific community could be a relevant factor, Daubert aimed to establish a more flexible test for the admissibility of expert testimony. Daubert clarified that expert testimony must be both reliable and relevant to the trier of fact, with general acceptance of a methodology, being just one factor among others in the non-exhaustive list of considerations.

    In the Daubert inquiry, Kessler’s methodology for establishing expert evidence was assessed. Kessler began by calculating the Plaintiff’s average sales growth rate, determining it to be slightly over 10% based on a seven-year period from 2013 through 2019. Next, he calculated the Plaintiff’s estimated lost profits for 2022 by using the 2019 sales volume as a base, applying the 10% annual growth rate, and factoring in the average selling price per pound for that year. In performing these calculations, Kessler employed actual figures for products sold, sales price, overhead costs, and other relevant variables for the relevant year. Lastly, Kessler utilized the annual growth rate and net loss in profits as inputs to calculate future lost profits for the subsequent 14 years. This projection involved applying the appropriate growth rate to the estimated lost profits amount.

    According to Daubert, a proponent of expert testimony must provide a precise explanation of how conclusions were reached and reference objective sources to support reliability. Mere assertions of “universal acceptance” are insufficient; instead, the proponent must demonstrate in an objective manner that the chosen scientific method is reliable. Despite Pilgrims’ challenge to the reliability of Kessler’s report, which it claimed lacked evidence of widespread acceptance, the Court noted that Daubert’s focus is on reliability and relevance rather than general acceptance.

    The Court found Kessler’s methodology, as detailed in calculating the Plaintiff’s damages, to be both reliable and relevant. The method, involving the comparison of profits over benchmark periods before and after an alleged injury, is widely accepted across jurisdictions. The Court cited the “before and after” or “profit history” method, endorsed in cases such as Bigelow v. RKO Radio Pictures 327 U.S. 251 (1946). Despite Kessler not explicitly labeling his approach as such, the Court deemed it fundamentally the same as the endorsed methods.

    In light of Daubert’s liberal approach, the Court found Kessler’s method reliable. Any disagreement with specific calculations could be addressed through cross-examination during trial, as per Daubert’s recommendation for challenging admissible evidence.

    In the alternative, Pilgrims sought to exclude Kessler’s testimony, claiming faulty data. According to Federal Rule of Evidence 702(b), expert testimony must be based on sufficient facts. However, the emphasis of Rule 702(b) is not to allow the Court to exclude testimony based on a belief in one version of the facts over another. Pilgrims’ argument was deemed unsuccessful, as it essentially amounted to a disagreement about the underlying set of facts, which Rule 702(b) prevents from being a basis for exclusion.

    Pilgrims’ additional argument contends that Kessler’s failure to include mitigation in his calculation of damages renders his testimony unreliable. Specifically, Pilgrims asserted that Kessler should have factored in Plaintiff’s potential profits to offset the damages outlined in his report. However, the Court disagrees with this stance, noting that although the failure to mitigate can be considered in a damage award, there is no authoritative basis for excluding testimony solely due to the omission of mitigation in the damages calculation. According to Daubert, Kessler’s decision not to include mitigation does not render his testimony unreliable or irrelevant, as the question of whether Plaintiff could have mitigated its damages is a matter of fact for the jury to determine.

    Pilgrims challenged Kessler’s inclusion of a 15-year projected loss of profits, claiming insufficient basis for extending sales projections post-recall. However, Kessler’s report clarified that the projected loss of profits across a 15-year period aligned with the Plaintiff’s sales relationship with Trader Joe’s, which spanned 15 years. Court acknowledged Pilgrims concern that a longstanding business relationship didn’t guarantee future business but highlighted that such a guarantee wasn’t a requirement for the admissibility of the expert testimony.

    Defendant challenged a crucial assumption in Kessler’s damages computation, specifically his exclusion of the year 2020 due to the COVID pandemic. Again, Pilgrim’s fails to explain why decisions made by an expert are anything more than questions of reasonableness best left for a jury to decide. Emphasizing the principles in Daubert, the Court asserted that once an expert meets the reliability threshold, questions regarding the weight of the testimony are within the jury’s purview, not the Court’s. In essence, the Court clarified that the reasonableness of Kessler’s assumptions in calculating damages is a matter for the jury to decide and does not constitute grounds for exclusion.

    Held

    The Court denied Defendant Pilgrims’ Pride Corporation’s motion to exclude or limit the expert testimony of Steven J. Kessler. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates that under the Daubert standard that now governs the admissibility of expert testimony, the focus is on the reliability and relevance of the expert’s principles and methodology, not the rigorous “general acceptance” standard. While the Defendant argued that the methodology employed by Plaintiff’s expert, Steven Kessler’s wasn’t generally accepted, the Court found it satisfied Daubert because it was reliable and relevant. Where the expert meets the reliability threshold as explained in Daubert, questions regarding the weight to be accorded to the testimony are for the jury, not the Court. Secondly, the Court held that outright exclusion is not warranted if the expert does not include mitigation as part of his calculation of damages. Finally, opposing parties can challenge the facts underlying an expert’s assumptions through cross-examination rather than exclusion. Disagreements about the facts are not enough to exclude expert testimony as unreliable.

  • Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Court rejects the damages calculation of Economic Damages Expert Witness but allows him to opine on available employment opportunities for the Plaintiff in Employment Discrimination Suit

    Plaintiff Rose Kochka had brought claims against West Penn Allegheny Health System Inc. (“WPAHS”) under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951, et seq., and the Pittsburgh City Code, Article 5 §§ 651.01 et seq. These claims arose from Kochka’s past employment with WPAHS. In summary, Kochka contended that WPAHS had discriminated against her based on her age and had retaliated against her by terminating her for reporting alleged discrimination. The Court addressed seven motions in limine (six filed by Kochka and one filed by WPAHS), including Kochka’s Daubert motion to Preclude and/or Limit the testimony of WPAHS’ damages and mitigation expert Chad Staller.

    Economic Damages Expert Witness

    Chad L. Staller JD, MBA, MAC, CVA serves as the president of the Center for Forensic Economic Studies and holds extensive experience collaborating with both plaintiff and defense counsel across various civil cases. His expertise involves quantifying losses sustained by diverse plaintiff profiles, including union members, government employees, business proprietors, and injured children. Staller specializes in evaluating claims related to employment discrimination, encompassing calculations of back-pay, front-pay damages, and lost benefits. Additionally, he frequently provides consultation on commercial issues, analyzing claims associated with lost profits and business interruptions. Staller has a substantial record of testifying in jury trials, bench trials, and arbitrations within state and federal court settings.

    Discussion by the Court

    Kochka attempted to limit Andrea Campbell and Morgan Henderson’s testimony about their interactions with her and Beverly Feragotti, Kochka’s direct supervisor, claiming their involvement wasn’t relevant to her termination. However, the Court deemed their testimony crucial in understanding the reasons behind Kochka’s dismissal.

    Kochka also tried to prevent Michael Weber, a Workforce Relations Consultant, from testifying, citing his testimony as hearsay based on a complaint from Campbell. The Court agreed, barring Weber’s testimony due to its hearsay nature.

    Regarding Beverly Feragotti’s termination, Kochka argued against comparing her case to Feragotti’s, stating they were terminated by different decision-makers. WPAHS disagreed, asserting that despite differing roles, both faced similar performance standards and improvement plans. The Court confirmed their distinct positions and noted differences in their terminations, emphasizing separate decision-making groups involved in each case.

    Ultimately, the Court highlighted the dissimilarities in roles, termination circumstances, and decision-makers, ruling Feragotti an unsuitable comparison for Kochka’s case.

    Kochka filed a motion to preclude Chad Staller’s opinions, citing Rule 702 and the Daubert standard, alleging Staller’s methodology and data were unreliable. Specifically, Kochka objected to Staller’s use of Department of Labor statistics for calculating economic damages, his omission of adverse tax consequences, his qualifications and method for identifying employment opportunities for Kochka, and his reliance on the Pennsylvania Office of Unemployment Compensation to assess Kochka’s mitigation of damages. WPAHS defended Staller’s opinions, asserting their appropriateness in each aspect contested by Kochka.

    The Court had agreed with Kochka regarding the unreliability of Chad Staller’s reliance on Bureau of Labor statistics to determine the duration of loss, thus rendering his calculation of economic damages based solely on these statistics unreliable as well. Staller’s reliance on the “Worker Displacement: 2019-2021” survey from the U.S. Census Bureau, which defined “Displaced Workers” as those affected by specific job loss scenarios, was found problematic.

    Although Staller acknowledged the dissimilarity between Kochka’s employment separation and the survey’s definition of “Displaced Worker,” he justified the use of this data as a proxy due to the lack of a specific dataset for terminated employees like Kochka. The Court concurred with Kochka’s argument that as Kochka was terminated and did not align with the definition of a “Displaced Worker,” Staller’s reliance on data regarding non-terminated workers was inappropriate for determining the duration of loss for a terminated employee. Staller failed to provide a basis for using data applicable to non-terminated workers to assess a worker terminated for cause.

    WPAHS attempted to argue for Staller’s opinion by asserting a seven-year mitigation period for Kochka from her separation in November 2019, suggesting that Staller’s analysis applied a three-year period from the time of his report. However, the Court rejected WPAHS’s argument, noting the misinterpretation of Kochka’s position and the lack of support for WPAHS’s claim in Staller’s report.

    Staller’s reliance on Bureau of Labor statistics projecting a three-year period for displaced workers to achieve prior earnings parity contradicted WPAHS’s claim of a seven-year mitigation period. Staller’s report explicitly calculated the three-year period not from the May 2023 report date, as WPAHS asserted, but from January 1, 2024, the presumed date when Kochka would secure mitigation employment.

    Consequently, the Court excluded Staller’s opinion on the duration of loss based on the “Worker Displacement: 2019-2021” survey and a three-year period. Staller’s economic damages calculation relying solely on Bureau of Labor statistics was also deemed unreliable. However, if Staller’s opinion on the duration of loss was supported by the human capital model (uncontested by Kochka), he could testify regarding his damages calculation during the trial.

    The Court disagreed with Kochka’s contention that Chad Staller’s decision not to calculate potential adverse tax implications affected the clarity of his damages opinion or prejudiced Kochka. The Court clarified that it’s the responsibility of the district court, not the jury, to determine any additional compensation to offset the increased tax burden resulting from a back-pay award.

    Given that the jury wouldn’t deliberate on this issue, the Court ruled that Staller’s omission of adverse tax calculations wouldn’t confuse the jury or cause prejudice to Kochka. As a result, this aspect of Kochka’s motion was denied by the Court.

    The Court dismissed Kochka’s objection regarding Chad Staller’s qualifications and methodology for assessing available employment opportunities for Kochka. Despite Kochka’s challenge to Staller’s qualifications by highlighting his lack of vocational expertise and certification, a review of Staller’s curriculum vitae affirmed his qualification to provide an opinion in this regard.

    Moreover, the Court found Staller’s methodology, utilizing employment listings from Forensic JobStats, to be reliable. Staller’s methodology was outlined in detail in his report, involving specific criteria such as keyword searches for relevant job titles and locations, along with subsequent exclusions based on these results after his deposition. The Court determined that Kochka’s objections were more related to the results of the methodology and Staller’s analysis rather than the methodology itself.

    As WPAHS argued, the Court believed that Kochka’s concerns could be appropriately addressed through cross-examination and did not serve as grounds to exclude Staller’s opinions.

    The Court agreed with Kochka’s objection concerning Chad Staller’s reliance on Pennsylvania’s unemployment compensation standards to assess Kochka’s mitigation efforts, deeming it confusing and inapplicable to this case. Staller’s reference to the Pennsylvania Office of Unemployment Compensation’s criteria for assessing job search diligence was found irrelevant as Kochka wasn’t seeking unemployment compensation in this lawsuit.

    Despite WPAHS attempting to minimize Staller’s reliance on these standards, the Court found that Staller explicitly referenced and applied these standards to Kochka in his assessment. Staller’s report indicated that Kochka had not met the standard outlined by the Pennsylvania Office of Unemployment Compensation, forming the basis of Staller’s opinion that Kochka failed to conduct a reasonable job search and mitigate her damages.

    As a result, the Court excluded aspects of Staller’s opinion that linked Kochka’s job search and mitigation efforts to the requirements of the Pennsylvania Office of Unemployment Compensation. However, Staller was permitted to testify about Kochka’s job search endeavors and the available employment opportunities.

    In Kochka’s motion to exclude evidence of her failure to mitigate damages, her main contention was the exclusion of Chad Staller’s opinion testimony, the sole evidence, according to Kochka, that WPAHS possessed regarding mitigation. Kochka argued that since Staller’s testimony should be excluded, WPAHS lacked sufficient evidence to meet its burden, thus should be barred from arguing that Kochka failed to mitigate damages.

    However, the Court denied Kochka’s motion, finding her reasoning insufficient. The Court concluded that Kochka hadn’t provided compelling reasons to prevent WPAHS from presenting evidence concerning her efforts to mitigate damages. Consequently, WPAHS was not precluded from introducing such evidence or making arguments regarding Kochka’s mitigation efforts.

    Kochka moved to preclude deposition testimony that had been designated by WPAHS, specifically related to Andrea Campbell, who was listed as witness to be called on both Kochka’s and WPAHS’ witness lists. Since Campbell was set to provide live testimony, the Court granted Kochka’s motion to preclude the deposition testimony without prejudice.

    WPAHS moved to exclude evidence and testimony involving Julie Stuck, a Labor Relations Consultant, and drafts of Kochka’s termination letter. Stuck was consulted for an HR perspective on the termination. WPAHS argued that these pieces of evidence held limited probative value since Stuck wasn’t a decision-maker and the initial and final termination letters aligned. Additionally, WPAHS expressed concern about potential unfair prejudice due to a statement by Stuck mentioning an EEOC claim.

    However, the Court disagreed with WPAHS, affirming the significant probative value of the draft termination letters and communications involving Stuck. The Court ruled that the EEOC reference by Stuck, while potentially prejudicial, didn’t substantially outweigh its probative value concerning the termination process. Therefore, the Court allowed the inclusion of this evidence and testimony.

    WPAHS requested permission to amend the Joint Exhibit List, adding Exhibits 2, 4, 5, 6, and 7, previously attached to its Motion in Limine. WPAHS sought admission of all communications related to the topic, not initially included in the parties’ Joint Exhibit List. Kochka didn’t oppose the inclusion of Exhibits 2, 5, 6, and 7 but objected to Exhibit 4.

    Kochka argued against Exhibit 4’s relevance, stating that the email text was duplicated in other emails, and the 27 pages of attachments lacked independent relevance. Kochka also pointed out the absence of evidence showing Stuck’s review or reliance on the attachment contents.

    The Court approved the motion partially, allowing admission of Exhibits 2, 5, 6, and 7, unopposed by Kochka. However, the Court deferred its ruling on Exhibit 4, which was opposed, pending further consideration.

    To sum it up, the Court granted in part and denied in part WPAS’ motion to exclude evidence and testimony involving Julie Stuck.

    Held

    • Plaintiff’s Motion in Limine #1 – To Limit the Testimony of Andrea Campbell and Morgan Henderson was denied by the Court.
    • Plaintiff’s Motion in Limine #2 – To Preclude the Testimony of Michael Weber was granted by the Court.
    •  Plaintiff’s Motion in Limine #3 – To Preclude Evidence or Argument Regarding Beverly Feragotti’s Termination was granted by the Court.
    • The Plaintiff’s Daubert Motion aimed at limiting or precluding Chad Staller’s testimony has been partially granted and partially denied. Firstly, Staller is barred from testifying regarding his opinion on the duration of loss if it relies on the “Worker Displacement: 2019-2021” survey. Additionally, if Staller’s calculation of economic damages is solely based on Bureau of Labor statistics, it is deemed unreliable and excluded. However, if his opinion on the duration of loss aligns with support from the human capital model (not challenged by Kochka), Staller is permitted to testify about his damages calculation during the trial. Secondly, Staller is not allowed to testify that the job search requirements set by the Pennsylvania Office of Unemployment Compensation represent the standard for Kochka’s reasonable and diligent job search or mitigation of damages. Nor can he testify that Kochka lacked reasonable diligence by failing to meet these requirements. Nonetheless, Staller retains the ability to testify regarding Ms. Kochka’s job search efforts and the available employment opportunities.
    • Plaintiff’s Motion in Limine #4 – To Preclude Evidence or Argument that Plaintiff Failed to Mitigate Her Damages was denied by the Court.
    •  Plaintiffs’ Motion in Limine #5 – To Preclude Defendant’s Discovery Designations was granted without prejudice by the Court.
    •  Defendant’s Motion in Limine #1 – To Exclude Evidence and Testimony Relating to Julie Stuck and Drafts of Plaintiff’s Termination Letter was granted in part and denied in part by the Court.

    Key Takeaways

    The Court excluded testimony from the Defendant’s expert witness Chad Staller regarding the duration of the Plaintiff’s loss of earnings, to the extent it relied solely on Bureau of Labor statistics about displaced workers. The Court found that since the Plaintiff was terminated for cause, rather than displaced, the statistics were not sufficiently reliable. The Court also excluded Staller’s opinions applying the standard for unemployment compensation in Pennsylvania to determine if the Plaintiff failed to mitigate damages. The Court found this would confuse the jury since the Plaintiff was not actually seeking unemployment compensation. However, the Court allowed Staller to testify about the Plaintiff’s job search efforts and employment opportunities available to her. Additionally, the Court rejected a challenge to Staller’s failure to provide calculations for adverse tax consequences, finding this issue was not for the jury. Overall, the Court demonstrated a willingness to closely scrutinize the reliability of the Defendant’s expert’s methodology and data underpinning his opinions about mitigation and damages, while still allowing him to testify on certain relevant issues like job search efforts. The Court applied the Daubert principles to ensure the expert’s testimony would assist rather than confuse or mislead the jury.

  • Court admits the testimony of SEC’s Finance Expert Witness affirming its relevance in assessing the Defendant’s violation of federal securities law

    Court admits the testimony of SEC’s Finance Expert Witness affirming its relevance in assessing the Defendant’s violation of federal securities law

    The United States Securities and Exchange Commission (SEC) filed a lawsuit against Ian Balina for allegedly offering and selling securities without proper registration and disclosures, in violation of federal securities laws.

    The United States Securities and Exchange Commission (SEC) accused Ian Balina, a self-described crypto asset investor, promoter, and influencer, of violating Sections 5(a), 5(c), and 17(b) of the Securities Act, 15 U.S.C. §§ 77e(a), 77e(c), 77q(b). According to the SEC, in May 2018, Balina entered into a $5 million investment contract with Sparkster Ltd. for its initial coin offering (ICO) of a crypto asset security called SPRK Tokens. Allegedly, Balina promoted the ICO on social media, receiving a 30 percent bonus in tokens. The SEC contends that Balina organized a Sparkster investment pool, allowing individual investors to participate by purchasing SPRK Tokens from his allocation. The distribution of SPRK Tokens through this pool, facilitated by a smart contract program, is alleged to constitute an unregistered offering of securities. Consequently, the SEC pursued legal action seeking injunctive relief, disgorgement, civil penalties, and any other necessary equitable remedies.

    Balina denied controlling the investor pool. He moved to exclude the testimony of SEC’s designated expert witness, Shimon Kogan, on the basis that his principles and methodology were unreliable. Kogan, provided four opinions after analyzing documents from the SEC and blockchain data:

    1. Balina controlled the smart contract used by the Sparkster investment pool;
    2. Balina’s control of the Sparkster investment pool is consistent with documentary and blockchain evidence of his control;
    3. Balina invested at least $104,883 in the Sparkster investment pool and received a bonus of 30% on his investment; and
    4. Promoters played a significant role in ICOs between 2016 and 2018.

    Finance Expert Witness

    Dr. Shimon Kogan has a Ph.D. in finance and is an associate professor of finance at the Wharton School, the University of Pennsylvania, and the Arison School of Business, Reichman University. His primary research interest is in financial technology, and he has researched, written, and taught on crypto markets and blockchain technology.

    Discussions by the Court

    The SEC enlisted Shimon Kogan, an expert with a Ph.D. in finance and a focus on financial technology, to provide testimony on Ian Balina’s Ethereum blockchain transactions related to the Sparkster ICO and the broader context of ICOs, cryptocurrency, and blockchain technology. Kogan asserted four opinions, including Balina’s control of the Sparkster investment pool and his financial involvement. Balina sought to exclude these opinions under Rule 702.

    Balina contested the admissibility of Kogan’s first opinion, asserting it was irrelevant, flawed, internally inconsistent, and lacked sufficient factual basis. The Court, however, deemed Kogan’s opinion that Balina controlled the Sparkster investment pool as relevant, especially in light of the SEC’s allegation that Balina’s actions with the pool constituted an unregistered offering of securities. The Court acknowledged that Kogan’s testimony could assist the trier of fact in evaluating the SEC’s claim of federal securities law violations related to the Sparkster investment pool.

    Balina contested the reliability of Kogan’s testimony, asserting a lack of clear methodology and reliance on snippets from other documents. Balina argued that Kogan’s report, based on SEC-provided documents and publicly available blockchain data, lacked a clear set of “principles and methods”
    of analysis. Kogan collaborated with Integra FEC, a forensic data analytics and litigation consulting firm, to analyze the blockchain and transaction details. Kogan and Integra gathered transaction details from the Ethereum blockchain related to the Sparkster investment pool. They cross-referenced these transactions with documents supplied by the SEC and reportedly used by Balina, aligning blockchain addresses with an investors’ Google Forms spreadsheet and the pool provider’s database. In other words, they cross-checked Ethereum blockchain data with SEC-provided documents, attributing contributions in the investment pool to personal identities in the process. Balina objected, claiming the SEC failed to demonstrate the reliability of Kogan’s methodology under Daubert. However, the Court found Kogan’s methods, including cross-checking public information and SEC documents, sufficiently reliable. The Court noted that the immutability of record of transactions made on the Ethereum blockchain supported the analysis of past transactions with a high degree of confidence, and thus, Kogan’s testimony should not be excluded under Daubert.

    Balina contested Kogan’s opinion, arguing that it should be excluded because Kogan did not personally obtain the public blockchain data or create the summarizing tables, and was assisted by Integra in writing his report. Kogan acknowledged the collaborative nature of the report, stating it would be “impossible for him to disentangle” sections prepared by Integra from his own. Federal Rule of Evidence 703 allows experts to base opinions on data they have been made aware of, even if they didn’t personally observe it. The Court observed that expert opinions are admissible when based on information reasonably relied upon in the field. Thus, the Court found that Integra’s assistance did not render Kogan’s opinions inadmissible.

    Balina also contended that Kogan’s first opinion lacked sufficient facts or data, but he failed to specify the missing details. The Court noted that if contradictory facts existed, they would affect the weight of Kogan’s opinion, not its admissibility, leaving such considerations for the jury. Citing Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.2d 546, 562 (5th Cir. 2004), the Court denied Balina’s motion to exclude Kogan’s first opinion for these reasons.

    Kogan’s second opinion asserted that blockchain evidence pointing to Balina’s control over the Sparkster investment pool aligned with other documentary evidence, including Telegram messages from Balina as well as a Google Form Balina sent to potential investors. Balina acknowledged the interconnected nature of Kogan’s first and second opinions and argued for the exclusion of the second opinion based on the same reasons as the first. The Court, consistent with its previous decision, denied Balina’s motion to exclude Kogan’s second opinion.

    Kogan’s third opinion asserted that Balina invested a minimum of $104,883 (150 ETH) in the Sparkster investment pool and received a 30% bonus on his investment. Kogan also implied the possibility of Balina investing more, citing five unidentified Ethereum addresses. Balina sought to exclude this opinion, arguing that the stated $104,883 figure was undisputed, and Kogan’s speculation about Balina investing more money in the pool was unfounded. The Court, invoking Rule 702, found that the SEC successfully demonstrated the reliability of Kogan’s testimony regarding Balina’s $104,883 investment in the pool.

    The parties disagreed on whether Kogan should be allowed to suggest that Balina might have invested more than $104,883 due to five unidentifiable Ethereum addresses. Balina argued that Kogan provided no methodology for linking these addresses to Balina’s account. The SEC countered that Kogan did not speculate about the owners of these addresses but rather highlighted the investigative facts and acknowledged limitations. The Court sided with the SEC, noting that Kogan refrained from speculating on the ownership of the unidentified Ethereum addresses. Kogan’s third opinion was grounded in his analysis of blockchain evidence, utilizing public Ethereum data and SEC-provided documents.

    Kogan’s fourth opinion asserted that promoters played a significant role in ICOs from 2016 to 2018. Balina sought to exclude this opinion, contending it was unrelated to either Balina or Sparkster and was designed to confuse or prejudice the jury. Additionally, Balina requested the exclusion of any testimony related to the “Background” section of Kogan’s report, which covered terms like “Ethereum Blockchain and ETH,” “Ethereum Addresses and Wallets,” and “Smart Contracts and ERC-20 Tokens.” Balina argued that such terms were common and could be defined by agreement, rendering testimony on these topics unnecessary.

    The Court acknowledged that experts are allowed to provide testimony on the background or “general principles” of their fields if Rule 702 requirements are met. Even if terms addressed by Kogan are commonplace in the financial technologies field, they may still be “beyond the comprehension of an average juror.” The Court found that offering background information on the terms and topics in Kogan’s fourth opinion and the background section of his report could be helpful to the jury.

    Held

    The Court denied Ian Balina’s Motion to Exclude the Testimony of the SEC’s Expert, Shimon Kogan. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This order demonstrates how courts evaluate the admissibility of expert opinions under the flexible Daubert standard. The main issues courts consider are the relevance, reliability, and helpfulness of the expert testimony to the trier of fact. 

    Here, the Court found Kogan’s testimony relevant because his opinions were related directly to the core allegations against Balina regarding the Sparkster investment pool. It deemed his methodology reliable because he used a process of cross-checking public blockchain data against documents provided by the SEC. This synthesis demonstrated internal consistency.

    The Court also clarified that under Rule 703, experts can rely on facts and data collected by assistants, as long as the expert reviews everything and stands by the final work product. Additionally, it refused to exclude any testimony related to the “Background” section of Kogan’s report, which included topics such as the “Ethereum Blockchain and ETH,” “Ethereum Addresses and Wallets,” and “Smart Contracts and ERC-20 Tokens”, deeming it helpful to the jury.

    Overall, this demonstrates Courts’ relatively permissive gatekeeping standard for expert opinions under Daubert and illustrates what factors determine admissible expert testimony in federal court. Disputed opinions often get presented to the jury rather than being excluded outright.

  • Court limits the testimony of Metallurgical Engineering Expert Witness for rendering legal conclusions by stating that certain information was not a trade secret

    Court limits the testimony of Metallurgical Engineering Expert Witness for rendering legal conclusions by stating that certain information was not a trade secret

    On March 24, 2021, BPS initiated legal action against Inashco, accusing it of having breached a non-disclosure agreement (NDA) (Claim 1), misappropriation of trade secrets (Claim 2), and unjust enrichment (Claim 3). The first claim alleged that Inashco violated the NDA by using BPS’ confidential information. Similarly, Claim 2 asserted that Inashco had used BPS’ trade secrets without authorization.

    BPS was a manufacturer of bulk processing and recycling equipment, with a notable recycling equipment system called the RecoverMax Fines Process. This system allowed for the recovery of minute metal pieces from incinerator bottom ash and auto shredder residue, including valuable metals like copper, silver, and gold and other precious metals that could have been reused in other applications. 

    Inashco, the North American branch of a Netherlands company, had processed incinerator bottom ash from power stations to recover low-grade metals to be further processed to separate the metals from the waste components. In July 2016, Inashco had become interested in BPS’ RecoverMax process, and had initiated discussions about a Mutual Non-Disclosure Agreement (NDA) to continue business discussions and the testing process. On August 2, 2016, Inashco’s president, John Joyner, signed the NDA with BPS, wherein the definition of Confidential Information included, “proprietary information
    concerning the components, construction, and processes of BPS’ RecoverMax technology used
    for crushing the mineral components of a non-ferrous metal concentrate as derived from
    municipal solid waste ash by means of [Inashco’s] process.”

    After reviewing the internal structure of the RecoverMax machine, Inashco questioned its similarities to technology manufactured by Palla Mill. BPS had clarified the distinctions, emphasizing the RecoverMax system’s focus on recovering metals from friable materials, i.e., glass, rock, and other minerals.

    Shortly after installation, Inashco raised concerns about the performance of the RecoverMax system and its hourly tonnage capacity. BPS attempted to address these issues but Inashco put BPS on notice that it
    was in breach of the RecoverMax Purchase Agreement. While the communication between BPS and Inashco regarding the purported breach was ongoing, Inashco had reached out to one of BPS’ suppliers to obtain a quote for a dust control system for the facility in Lancaster, Pennsylvania. On January 25, 2019, Inashco presented BPS with a proposed Mutual Release and Termination Agreement, initiating negotiations for the termination of the RecoverMax Agreement. During these negotiations, Inashco imported a Palla Mill system to the United States on August 25, 2019. One month later, on September 25, 2019, BPS and Inashco executed a Mutual Release and Termination Agreement. The Mutual Release and Termination Agreement explicitly stipulated that the previous NDA between Inashco and BPS would persist beyond the termination of the RecoverMax Agreement and would remain in effect until August 3, 2031, unless both parties mutually terminated it in writing before that date.

    On December 20, 2020, Inashco imported a second Palla Mill system to the United States. It was implied that Inashco utilized information and technology acquired from BPS via the exchange of information governed by the NDA to achieve comparable outcomes to the RecoverMax system by importing the Palla Mill systems and incorporating additional components from the same vendors used by BPS.

    In July 2022, Inashco enlisted the services of Dr. Jerome P. Downey, Ph.D., P.E., as an expert in the “design, development, and operation of material processing equipment.” Downey had been deposed by BPS. During his testimony, Downey revealed that Inashco’s attorneys had aided him in drafting his report. He had approximated that seventy-five percent of the 117-page report had been composed in his own words, emphasizing that any technical aspects had been directly from him.

    On August 25, 2023, BPS submitted a Motion to Strike and Exclude Downey’s Expert Report and Testimony. BPS had contended that the Court should invalidate Downey’s expert report and testimony for two primary reasons. Firstly, Downey had opined about ultimate legal conclusions, specifically stating what information is confidential and had constituted a trade secret. Secondly, Downey had not personally drafted the entire content of his expert report.

    Inashco had filed an Opposition, disputing BPS’ mischaracterization of the substance of Downey’s report and asserting that the law had permitted counsel to assist an expert in drafting the report.

    Metallurgical Engineering Expert Witness

    Jerome P. Downey earned his Ph.D. in Metallurgical and Materials Engineering at Colorado School of Mines and his B.S. and M.S. degrees in Metallurgical Engineering at Montana Tech. He is currently the Goldcorp Professor of Extractive Metallurgy at Montana Tech, where he also serves as the campus Director of the Montana University System Materials Science Ph.D. program. He is also the Chief Executive and General Manager at J. P. Downey & Associates, P.L.L.C. Downey has over 25 years of experience managing research and development projects in the chemical, metallurgical, and materials industries. 

    Discussions by the Court

    BPS contended that Downey’s testimony consisted of “impermissible legal conclusions,” when he opined that (1) BPS failed to meet the legal requirements for trade secrets or confidentiality protection; (2) Inashco did not misappropriate BPS’ trade secrets; and (3) Inashco did not violate the NDA.

    In response, Inashco argued that Courts usually permitted experts to testify as to whether the information was generally known or readily ascertainable and whether it was entitled to trade secret protection.

    Federal Rule of Evidence 704, as of the relevant time, did not prohibit an expert’s opinion from embracing an ultimate issue, as stated in Fed. R. Evid. 704(a). However, it clarified that the issue embraced by the expert must be a factual one, as was cited in Berry v. City of Detroit, 25 F.3d 1342. The Sixth Circuit, emphasized the subtle but crucial distinction between opining on the ultimate question of liability (deemed impermissible) and stating opinions that offer information for the jury to draw inferences about the ultimate issue (considered permissible). Downey could opine as to the factors underlying whether certain information constitutes a trade secret. However, he would be restricted from directly opining on whether that information is, in fact, a trade secret.

    Therefore, the Court granted BPS’ Motion to Strike and Exclude Downey’s Expert Report and Testimony, specifying that it would not take into account the portions of Downey’s report and deposition testimony that presented legal conclusions. 

    BPS also asserted that Downey’s report, was not entirely drafted by him and contained substantial portions which matched with Inashco’s interrogatory responses, violating Federal Rule of Civil Procedure 26. Inashco countered, asserting that the law allowed the counsel to aid an expert in drafting the report and that it was acceptable to incorporate discovery responses into an expert report.

    Federal Rule of Civil Procedure 26 stipulates that expert witness disclosures must be accompanied by a written report, which must be prepared and signed by the witness. Even though the rule prohibits counsel from preparing the report on behalf of the witness, it allows counsel to assist the witness, with the assistance typically limited to ensuring compliance with Rule 26’s requirements. Counsel may participate in the fine-tuning of an expert report to ensure Rule 26(a)(2)(B) compliance, but they are not permitted to create the expert’s opinion entirely and then have the expert sign it. The key question in determining the appropriateness of counsel’s participation is whether it exceeds the bounds of legitimate assistance to the point of negating the possibility that the expert genuinely prepared their own report.

    For the following reasons, the Court concluded that Downey’s expert report should not be entirely stricken.

    Firstly, Downey’s deposition testimony didn’t indicate that Inashco’s counsel had entirely fabricated the report or crossed the limits of legitimate assistance. When questioned about the report’s content in his own words, Downey specified that a substantial portion of the report was his own work, particularly any technical aspects. He estimated about “seventy-five” percent was his own work, stating that the portions he did not write primarily consisted of legal standards and italicized trade secret portion of the report. As to the italicized trade secret portion of the report, Downey mentioned that Inashco’s counsel took his opinions almost verbatim and put them in there. However, Downey clarified in the deposition that his signing of the report signified his thorough review to ensure factual accuracy and consistency with his rendered opinions. He admitted his discomfort with certain legal terminologies, indicating that this was where Inashco’s counsel provided assistance.

    No evidence suggested that the report did not accurately reflect Downey’s views. Inashco’s counsel’s assistance amounted to, at most, twenty-five percent of the report, signifying that Downey had personally drafted a significant portion of the report as a whole.

    Secondly, BPS’ argument to strike Downey’s report on account of significant portions matching with Inashco’s discovery responses failed to persuade the Court. Downey testified that his responses or evaluations of the interrogatories were included in his report. Downey also added that he considered “Inashco’s Third Supplemental Response to BPS’ Interrogatory No. 13” before drafting his expert report. Therefore, it logically follows that portions of Downey’s expert report would align with Inashco’s discovery responses.

    BPS asserted that Inashco had formulated its initial and first supplemental responses to BPS’ interrogatories before it retained Downey. These discovery responses were then carried forward into the Third Supplemental Discovery Responses, which BPS claims were directly copied into Downey’s report. According to BPS, this sequence indicated that Downey could not have participated in drafting those discovery responses.

    However, the Court observed that since those responses were carried forward, Downey would have reviewed those prior responses while assisting Inashco with the third supplemental responses. Downey’s testimony also affirmed that he had thoroughly reviewed everything in the report to ensure factual accuracy and consistency with his opinions. Consequently, the fact that portions of Inashco’s discovery responses appear in Downey’s report was thus insufficient evidence to indicate that Inashco’s counsel had entirely fabricated the report in violation of Rule 26(a)(2)(B).

    Held

    The Court has granted in part and denied in part BPS’ Motion to Strike and Exclude the Expert Report and Testimony of Inashco’ expert Jerome P. Downey. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    1) An expert cannot opine on ultimate legal conclusions, such as whether certain information constitutes a trade secret. However, the expert can testify to the underlying factors and analysis that may lead the jury towards that legal conclusion. 

    2) Counsel may assist an expert in drafting the report to ensure compliance with Rule 26, but cannot prepare the substantive opinions themselves.

    3) Mere overlap between an expert report and discovery responses does not warrant striking the report, as long as the expert reviewed the responses and adopted them as his own opinions. 

    4) The Court struck the legal conclusions in Downey’s report, but denied striking the report entirely. The Court found Downey’s testimony showed the report reflected his actual views, even if counsel helped draft portions.

  • Court excludes the testimony of Mining Engineering Expert Witness for not being of sufficient assistance to the trier of fact in determining whether the coal was mineable or merchantable 

    Court excludes the testimony of Mining Engineering Expert Witness for not being of sufficient assistance to the trier of fact in determining whether the coal was mineable or merchantable 

    This legal dispute stemmed from American Carbon Corporation (ACC) allegedly breaching a lease granting exclusive mining rights for coal owned by Big Sandy in Pike County, Kentucky. ACC was allowed to mine the “Demised Coal,” defined as mineable and merchantable coal within the property boundaries. In return, ACC was obligated to diligently mine, pay royalties, and reimburse tax payments for the coal.

    The lease expired on February 1, 2021, and during the entire five-year term, ACC did not conduct any coal mining. ACC also failed to fulfill financial obligations such as paying minimum annual royalties, deficiency payments, or tax reimbursements to Big Sandy. Approximately three months post-expiration, ACC notified Big Sandy via email that it considered the Demised Coal unmineable and unmerchantable without a capital investment from Big Sandy, using this as justification to excuse itself from lease obligations. ACC consistently argued it was not obliged to perform duties due to the coal’s alleged unmineable and unmerchantable state. Subsequently, on October 25, 2021, Big Sandy initiated legal action in this Court, alleging three counts of breach of contract. The lawsuit sought pre-judgment and post-judgment interest along with attorneys’ fees.

    To support its position, ACC presented Bill Johnson as an expert. Big Sandy filed a motion for summary judgment as well as a motion to exclude Johnson’s testimony, citing ACC’s failure to disclose crucial information as required by Federal Rule of Civil Procedure 26(a)(2)(B)(ii). Big Sandy contended that Johnson’s expert opinions were unreliable, irrelevant, and lacked disclosed supporting evidence, urging the Court to exclude them.

    Big Sandy claimed ACC breached the Lease by failing to diligently mine the Demised Coal, pay deficiency payments, and reimburse tax payments related to the coal. Big Sandy sought summary judgment on the diligent mining claim, asserting that mineability and merchantability were objective inquiries under Kentucky law. They argued ACC did not use the alternative dispute process outlined in the lease and was estopped from contesting its mineability or merchantability claims due to earlier representations.

    Regarding deficiency and tax payments, Big Sandy argued no agreement excused these payments, seeking interest and attorney’s fees if successful. ACC countered that the coal was not mineable or merchantable without a substantial loan from Big Sandy, citing market turmoil and the pandemic. ACC argued that a March 7, 2017 email exchange provided notice that the coal was not mineable and merchantable, and formally altered ACC’s obligation to pay Big Sandy the royalties and tax payments. Additionally, ACC argued that an oral agreement, despite falling under the Statute of Frauds, could act as a waiver, excusing ACC from fulfilling its obligations.

    The Court ruled ACC’s belief in profitability was not relevant to mineability or merchantability. ACC admitted no physical conditions hindered mining. ACC points to no provision in the lease that excused its obligation to diligently mine the Demised Coal unless it would be unprofitable to do so.

    ACC had relied on Mark Jensen’s deposition, a corporate representative, to support an oral agreement related to minimum royalties. However, Jensen’s deposition didn’t explicitly mention an oral agreement to suspend deficiency or tax payments. Instead, he indicated an oral agreement tied to production forecasts and minimums based on an anticipated loan to restart the mine. ACC failed to clarify the impact of this on provision § 4.7 of the lease, which mandated deficiency payments if Production Royalties fell below the Minimum Annual Royalty.

    Even if there was an oral modification regarding minimum calculations, ACC didn’t explain how this alteration affected its obligation to pay deficiencies and taxes as per the lease. The link between the oral agreement on production forecasts and minimums and the modification of ACC’s payment obligations for deficiencies and taxes, as specified in the lease, remained unclarified in ACC’s Response.

    However, both parties acknowledged a disagreement over material facts, preventing a summary judgment on Big Sandy’s breach of contract regarding damages for the diligent mining claim. Consequently, the issue of damages was scheduled to be settled in subsequent proceedings, and no judgment favoring Big Sandy would be entered until resolution of the Plaintiff’s claim for damages.

    Mining Engineering Expert Witness

    Bill Johnson has a Bachelor’s degree in Mining Engineering from the University of Kentucky and holds Professional Engineer certifications in multiple states, including Kentucky. He is the owner of Mountain Professional Services—an engineering consulting firm. He worked in the coal industry as a Mine Manager and Engineer for 32 years. He has extensive managerial skills overseeing all facets of the Mining, Permitting, and Reclamation process.

    Discussions by the Court

    Big Sandy persisted in seeking the exclusion of Johnson’s opinion, citing several reasons. They argued that Johnson’s opinion relied on market conditions rather than the physical characteristics of the coal, thus applying an incorrect standard and rendering the opinion unhelpful to the fact-finder. Additionally, Big Sandy claimed that Johnson hadn’t conducted a proper calculation regarding the profitability of mining the Demised Coal, thereby lacking support for his opinion based on market conditions. They also alleged that Johnson’s conclusions were drawn from undisclosed documents that were withheld in violation of Civil Rules, and further asserted that the remaining parts of Johnson’s opinions, aimed at rebutting those of Big Sandy’s expert David Newman, lacked any substantiating evidence from the record.

    ACC defended Johnson’s opinions, asserting their reliability without the need for specific calculations. They argued that the lack of disclosures regarding the underlying data relied upon by Johnson was inconsequential, pointing out that Big Sandy hadn’t disclosed the underlying data from its expert witness. ACC emphasized that there was no attempt from Big Sandy to compel Johnson or the Defendant to provide additional information regarding the matter.

    The Court found that Johnson’s opinions weren’t considered in the summary judgment analysis, which would warrant granting the Motion to Exclude. ACC had only briefly referenced Johnson’s testimony in response to the Motion for Summary Judgment, highlighting a material dispute regarding damages that required separate proceedings. Although ACC mentioned Johnson’s concerns about the damage calculations based on David Newman’s report, no specific citations from Johnson’s report supported these claims upon review. Johnson’s report primarily stated an opinion that none of the coal in Newman’s calculations was mineable or merchantable due to coal pricing and recovery percentages during a specific timeframe. ACC’s assertion of Johnson raising legitimate issues regarding damage calculations did not align with the content of Johnson’s report.

    ACC had acknowledged that it wasn’t contending any defects rendered the Demised Coal unmineable or unmerchantable. They clarified that profitability wasn’t a factor in determining the coal’s mineability or merchantability according to Kentucky standards. This acknowledgment led to the conclusion that Johnson’s expert report wouldn’t assist the fact-finder in comprehending the evidence or deciding relevant facts. As a result, it could be excluded on these grounds.

    Even if Johnson’s report had been considered in the Court’s analysis of the Motion for Summary Judgment, it was evident that ACC had not adhered to the rules regarding expert disclosures. Johnson, in his expert report, mentioned reviewing specific documents but revealed in his deposition that he had reviewed additional undisclosed materials, including documents from a Dropbox and his former employer, which ACC had not disclosed in written discovery.

    ACC did not file a motion to exclude Big Sandy’s expert, so the Court dismissed the argument that ACC’s failure to disclose should be excused due to errors made by Big Sandy. The Court highlighted that this wasn’t a substantial justification or a harmless oversight. Additionally, ACC didn’t provide any legal basis or precedent supporting the idea that a Plaintiff must file a motion to compel information from expert reports before seeking relief in a motion to exclude. The Court pointed out that according to Rules 26(a) and 37(c), as well as Sixth Circuit precedent, failure to make proper disclosures could lead to automatic and mandatory exclusion without justification from the non-compliant party.

    Held

    Big Sandy’s motion for summary judgment was granted by the Court on each breach of contract claim. The Court also granted Big Sandy’s motion to exclude the testimony of Bill Johnson. However, the Court decided that the matter of damages will be resolved by subsequent proceedings and no judgment in favor of Big Sandy will be entered until the resolution of the Plaintiff’s claim for damages.

    Key Takeaways:

    The Court found Johnson’s opinions regarding whether the coal was mineable or merchantable to be irrelevant because ACC conceded it was not arguing there were defects with the coal that made it unmineable. Under Kentucky law, profitability is not part of the calculation for whether coal is mineable or merchantable. The Court also found ACC failed to comply with expert disclosure rules under Rule 26(a) by not disclosing all the information Johnson relied on in forming his opinions. ACC did not provide justification for this failure. The Court stated that exclusion of non-disclosed evidence is automatic under Rule 37(c) unless the failure was justified or harmless. Overall, the key takeaways regarding expert testimony are the importance of complying with expert disclosure rules and offering opinions relevant to the specific legal issues in the case. Irrelevant opinions or noncompliance with disclosure requirements can result in exclusion of the expert testimony.

  • Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion, not admissibility; Court admits the testimony of Structural Engineering Expert Witness in insurance coverage dispute

    Questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion, not admissibility; Court admits the testimony of Structural Engineering Expert Witness in insurance coverage dispute

    This insurance coverage dispute arose when the Plaintiff, Fiberco’s building was damaged by a hailstorm in April 2020 while insured under a policy issued by Defendant, Acadia Insurance Company effective from April 10, 2020 to April 10, 2021. FiberCo subsequently filed a claim with Acadia for the hail damage to the building. After an assessment, Acadia’s engineer identified at least seven places on the roof of the building with openings at the seams of overlapping metal panels, which reduced the water shedding capability of the roof in those areas, and additional hail dents. Acadia denied FiberCo’s claim, explaining that while the seven open seams were considered a covered loss, the dents to the roof fell under the Policy’s cosmetic damage exclusion. Consequently, the overall amount of the covered loss was deemed to be below the Policy’s deductible amount. In response, FiberCo initiated legal proceedings by filing a lawsuit against Acadia Insurance Company and also Union Standard Lloyds, underwriter of the insurance policy to which Fiberco and Acadia Insurance Company (Acadia) were parties.

    During discovery, Fiberco’s expert David Day provided a report concluding that all of the building’s metal roofing needed replacement due to the functional damage arising from the hail and the wetted insulation also needed replacement. He also opined that the hail dents which have not opened seams would cause accelerated corrosion and reduce the roof’s useful life by 25%. Fiberco provided initial expert designations and first amended designations to Acadia and Union, which had listed Day as a retained expert. Acadia and Union then deposed Day and learned his assistant, not Day himself, had inspected Fiberco’s building. Later, Day personally inspected the building for the first time. Fiberco subsequently filed a second amended expert designation for Day, after the deadline and without leave of court. The second designation did not include a supplemental report or declaration from Day at that time, but stated Day’s testimony would rely on his previous deposition and later inspection of the property. 

    Acadia and Union Standard moved to strike Day’s expert testimony, objecting to Day’s characterization of the dents as “functional” and questioning the scope and reasonableness of the necessary repairs to FiberCo’s building. They argued that Day’s opinions lacked a basis in reliable facts or data, were not the product of reliable scientific principles and methods, had not applied any reliable principles and methods to the facts of the case, and did not aid the trier of fact. Additionally, they claimed that Day’s second expert designation was untimely and prejudicial.

    Structural Engineering Expert Witness 

    David Vaughan Day holds a Bachelor of Science in Construction and is a registered professional engineer and an expert in foundation and structural defects in residential and commercial construction. He has been a structural forensic engineer since 1998 and has performed over 1,000 structural forensic inspections, and at least half are wind/hail assessment inspections. Day is the President and Chief Engineer for CASA Engineering, L.L.C., and has been designated a Diplomate in Forensic Engineering Board by the National Academy of Forensic Engineers.

    Discussions by the Court

    Federal Rule of Evidence 702 governed the admissibility of expert testimony, allowing opinion testimony from qualified experts if it assisted the trier of fact and met specific criteria. The Court, acting as a gatekeeper, required the party presenting expert testimony to prove its reliability and relevance by a preponderance of evidence. Expert testimony was considered relevant if it aided in understanding the evidence or determining a fact in question, aligning with Federal Rule of Evidence 401. Reliability necessitated scientifically valid reasoning or methodology, avoiding subjective belief or unsupported speculation. The Court, applying the Daubert factors, assessed the reasonableness of the expert’s approach rather than focusing solely on the conclusions drawn.

    The crux of the dispute concerned the reliability of Day’s testimony and the timeliness of the second amended expert designations. As an initial matter, however, Day was clearly qualified, and his reports were relevant to the issues in the case. His reports were also relevant to the issues in the case; in fact, they were highly relevant. Day’s report provided information concerning whether the building had suffered hail damage and the extent of the damage—both issues at the heart of the dispute. Thus, Day’s testimony was considered relevant because it assisted the trier of fact in determining facts in issue.

    Testimony was deemed reliable when “the reasoning or methodology underlying the testimony is scientifically valid.” Acadia and Union had urged the Court to strike Day’s expert testimony, asserting that his opinions on accelerated corrosion and microfractures lacked support from reliable sources or data and were contradictory to the publications Day referred to. FiberCo countered that these opinions were based on Day’s personal observations and experience, arguing that the Defendants’ objections were suitable for cross-examination but not grounds for striking Day’s testimony. The Court sided with FiberCo, emphasizing deference to the jury’s role in resolving conflicting expert opinions. It held that questions regarding the bases and sources of an expert’s opinion affected the weight assigned to the opinion rather than its admissibility, leaving such considerations for the jury’s deliberation.

    Ultimately, the Defendants sought to strike Day because they disagreed with his application of scientific methodology to the facts of the case, asserting that he misinterpreted the publications he relied upon. The Court, considering this disagreement, emphasized that the traditional and appropriate methods for addressing shaky but admissible evidence were vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Consequently, the Court denied Acadia and Union’s motion to strike Day.

    The Court, however, had taken issue with the untimeliness of FiberCo’s second amended expert designations, its failure to seek leave from the Court, and its misrepresentation that Day had examined and inspected the property, which he had not personally done. The Court found that Acadia would be unfairly prejudiced without the chance to depose Day after he had inspected the property, especially given that FiberCo had led Acadia to believe Day had already done so before his deposition. As a result, the Court had ordered that Acadia be given the opportunity to redepose Day, if it chose to, at FiberCo’s expense.

    Held

    The Court denied the motion to strike Day’s expert testimony. The Court found him qualified, his opinions relevant, and arguments about his factual bases went to weight rather than admissibility. However, the Court agreed the late expert designation was prejudicial, so it ordered Day to be re-deposed by Acadia about his late personal inspection at Fiberco’s cost. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates that objections with regard to an expert’s factual bases and application of methodology generally call into question the weight assigned to the testimony, not admissibility. The Court rejected Acadia’s motion to strike Day’s testimony despite Acadia’s arguments that Day misapplied the science. The Court stated that vigorous cross-examination is the appropriate means to address shaky expert opinions. However, this case also shows that unfair prejudice from a late expert designation can warrant a supplemental deposition. Here, Acadia relied on Day having inspected the property when deposing him initially. Allowing a late inspection and designation without a new deposition would be prejudicial. Finally, Courts consider if the opinions will assist the trier of fact, meaning they must be relevant to disputed issues. Courts act as gatekeepers to admit only useful expert testimony.

  • Court admits the testimony of Materials Science Expert Witness on defective gaskets despite it being based on the analysis of his colleague

    Court admits the testimony of Materials Science Expert Witness on defective gaskets despite it being based on the analysis of his colleague

    This case involves a dispute between Norris Brothers Excavating, LLC (“Norris Bros.”), Southern Pipe & Supply Company, Inc. (“Southern Pipe”), and Romac Industries, Inc. (“Romac”) regarding leakage in a water transmission line installed by Norris Bros. for the City of Anniston, Alabama. Norris Bros. alleges the leaks were caused by defective restraining gaskets manufactured by Romac and supplied by Southern Pipe.

    In support of its claims, Norris Bros. disclosed Dr. Todd J. Menna, Ph.D. as an expert witness. Menna, an Engineering Manager for Element Materials Technology, prepared a report opining that the restraining gasket failures were caused by a manufacturing defect. After Romac disclosed its own expert, Richard Edwards, P.E., Norris Bros. followed it up by disclosing a rebuttal report by Menna. In the rebuttal report, Menna revised his opinion, attributing the cracking and failure of the gaskets to their aging and degradation before being delivered to the Anniston job site. He concluded that if Romac had supplied Norris Brothers with gaskets that hadn’t been stored for at least three years, the gaskets wouldn’t have cracked during installation, preventing subsequent water leaks.

    Third-Party Defendant, Romac filed a motion to exclude both of Menna’s reports and any related testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc.

    Materials Science Expert Witnesses

    Todd Menna holds extensive expertise in materials science and engineering, specializing in the testing and analysis of a wide range of materials and devices, including polymeric, rubber, metallic, ceramic, and composite materials. His experience encompasses investigating and offering expert testimony in projects concerning product liability and intellectual property.

    Discussions by the Court

    Romac contends both of Menna’s reports must be excluded due to the lack of a proper
    factual basis as required by Federal Rules of Evidence 702(b). Specifically, Menna did not conduct any independent testing and instead relied almost exclusively on the Failure Analysis on four restraining
    gaskets from the Anniston jobsite, performed by his colleague Mary Kosarzycki, a former senior engineer at Element. Romac contended that by reviewing the photographs and observations recorded by Kosarzycki rather than conducting additional tests to confirm the basis of her analysis and especially without doing his own examination of the gaskets, Menna had no way to verify the accuracy and reliability of Kosarzycki’s testing methods and results.

    In response, Norris Bros. emphasized that Menna was directly involved in the analysis conducted by Kosarzycki. He participated in the project, reviewed the damaged gaskets firsthand, handled them himself, and signed off on Kosarzycki’s report before it was finalized. Based on his personal observations and involvement, Norris Bros. argued Menna had a reasonable factual basis for his conclusions about the cause of the gasket failures. The Court agreed with Norris Bros., stating that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed under Federal Rules of Evidence 703. The Court held that any weaknesses in the factual foundation of Menna’s opinions, as alleged by Romac, affected how much the evidence was worth, rather than making it inadmissible.

    As another basis for exclusion, Romac objected to Menna’s rebuttal report, in which he modified his original opinion and concluded the gasket failures were caused by aging and degradation before delivery rather than a manufacturing defect. Romac argued this report should be excluded under Federal Rules of Evidence 37(c)(1) as an improper rebuttal and untimely disclosure. In Romac’s view, Menna asserted an entirely new causation theory, which went beyond the permissible scope of a rebuttal report. Additionally, because the new theory was disclosed after the original expert deadline, Romac claimed it was prejudiced in its ability to fully respond.

    Norris Bros. characterized Menna’s revised opinion as a proper modification in response to new information provided by expert Edwards. It contended that experts commonly adjust their views based on insights gained during rebuttal exchanges, which contributes to the adversarial process. Norris Bros. also argued that any delay in disclosing the new opinion was harmless. Since Menna’s rebuttal report was submitted by the rebuttal deadline, Romac had sufficient time to prepare for the modified views.

    The Court again sided with Norris Bros., rejecting the notion that experts cannot present new opinions in rebuttal reports as long as they are truly offered to contradict the opposing expert. The Court also agreed the timing of the disclosure was harmless here, given there were still months before trial after Menna’s rebuttal report. In the Court’s view, Romac had adequate opportunity to question Menna about his evolving opinions and adjust its trial strategy accordingly. For these reasons, the Court declined to exclude the rebuttal report as improper or untimely under Rule 37(c)(1).

    Held

    The Court denied Third Party Defendant Romac’s Motion to Exclude the Expert Reports and Testimony of Plaintiff’s expert Todd J. Menna, Ph.D.  The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    This case demonstrates important principles regarding the admissibility of expert witness testimony under the Federal Rules of Evidence. The expert’s opinion was required to be grounded in facts or data that they were made aware of or had personally observed. If an expert’s testimony amounted to mere guesswork or speculation, the Court was to exclude it. However, if the opinion had a reasonable factual basis, it was not to be excluded. According to the Federal Rules of Evidence, experts were granted considerable freedom in establishing the foundation for their opinions. The determination of whether an expert opinion had an adequate basis was a matter left for the trier of fact to decide.

  • Court admits the testimony of Agriculture Expert Witness after establishing it is not conduit testimony from an expert on a matter outside his field of expertise

    Court admits the testimony of Agriculture Expert Witness after establishing it is not conduit testimony from an expert on a matter outside his field of expertise

    This case involved soybean farmers Jerry and Frances Probasco suing agricultural cooperative MFA Incorporated and employee Nick Riihinen for negligence, breach of contract, and breach of warranty after herbicide sprayed on their crops by MFA allegedly killed 162 acres of soybeans. The case was heard in the United States District Court for the Southern District of Iowa, Central Division.

    In the spring of 2021, the Probascos had planted 185 acres of Channel® XtendFlex® Soybeans, tolerant to dicamba, glyphosate, and glufosinate but not 2,4-D. Around July 20, 2021, MFA and Jerry Probasco had discussed the cost of MFA spraying Liberty and Roundup herbicides on the Soybeans. MFA had recommended a residual herbicide, Warrant, without inquiring about the Probascos’ post-harvest cover crop plans or warning about limitations. 

    Around July 21, 2021, Nick Riihinen, MFA’s spray applicator, sprayed herbicides, including 2,4-D, on most of the Probascos’ Soybeans. Shortly after, the Soybeans sprayed by Riihinen died. By July 26, 2021, the Probascos had noticed the absence of the Channel seed sign at the field entrance of the Probasco’s property. Despite MFA’s awareness that the Soybeans were Channel® XtendFlex®, intolerant to 2,4-D, they had been sprayed with this herbicide, resulting in the death of almost all Soybeans. 

    During discovery, Plaintiffs had identified two expert witnesses: John Bos and Katie Ahlstrom. Bos had observed the dead soybean crops and sent a sample of the crops to a lab for testing. Plaintiffs had intended to propound opinion testimony regarding the cause of the damage he observed. During his deposition, Bos had testified that he suspected 2,4-D caused the soybean crop to die based on how quickly the crop had died after being sprayed. He had begun forming this opinion before receiving lab results.

    Katie Ahlstrom, who works at South Dakota Agricultural Laboratories, had received the sample Bos took and tested it for 2,4-D and glufosinate. She had memorialized her test results in the Report, including measuring the parts per billion of each of those substances. If called to testify, Plaintiffs would have elicited three opinions from Ahlstrom: (1) the sample was received and stored using proper protocols, (2) the testing methods were scientifically acceptable, (3) and the quality control results for the tests were within acceptable limits.

    Before the Final Pretrial Conference, there had been a miscommunication between the parties regarding stipulations in the proposed Final Pretrial Order. Initially, the parties had tentatively agreed to stipulate that 2,4-D killed the soybeans. At the time of that agreement, Bos and Ahlstrom were both listed on Plaintiffs’ witness list. Subsequently, Plaintiffs removed Ahlstrom from their witness list in reliance on the expected stipulation regarding 2,4-D. However, when Defendants noticed Ahlstrom’s removal from the witness list, they decided not to stipulate to 2,4-D as the cause of death for the soybeans. Instead, Defendants filed their Motion in Limine to preclude Bos from testifying to the contents of the Report. Both sides were allowed to, and did, file supplemental briefs on the narrow question of Bos’s ability to testify about the Report. Defendant argued in supplemental briefs that Bos was not qualified to testify as to matters contained in the Report. In contrast, Plaintiffs contended that Fed. R. Evid. 703 allowed Bos to rely on and interpret the Report to support his opinion that 2,4-D killed the soybeans.

    Agriculture Expert Witness

    John Bos is the owner of Crop Services, Inc., an Agricultural Supply and Fertilizer Dealer located near Drakesville, Iowa. He is a licensed chemical dealer and custom applicator with over 49 years of experience. 

    Discussions by the Court

    The admissibility of expert testimony is governed by Fed. R. Evid. 702, which stated that a qualified expert could testify if their knowledge, skill, experience, training, or education would help the trier of fact understand the evidence or determine a fact in issue. Rule 702 served a “gatekeeping function” to ensure scientific testimony was relevant and reliable. Pursuant to Rule 703, an expert could rely on otherwise inadmissible hearsay evidence if reasonably relied upon by experts in the field. But a party cannot call an expert simply as a conduit for introducing hearsay under the guise that the testifying expert used the hearsay as the basis of his testimony.

    When it ruled in open Court on the motion in limine, the Court had not fully appreciated the interplay between Bos’s opinion and Ahlstrom’s Report. The Court had mistakenly believed that Bos needed Ahlstrom’s Report to confirm the presence of 2,4-D in the soybean sample. In reality, as the Court later understood, Bos already knew the sample would have 2,4-D because Plaintiffs and Defendants alike agreed that the soybeans were sprayed with 2,4-D shortly before they died. Thus, as it related to the concentration of 2,4-D in the soybean sample (measured, apparently, in parts per billion), Ahlstrom’s Report simply transmitted data that an expert like Bos commonly would rely upon when forming an opinion. Bos was allowed to rely on this data without Ahlstrom herself testifying.The reasonableness of Bos’s reliance on such data went to the weight, not the admissibility, of his opinions

    Had Ahlstrom herself testified, Plaintiffs would have elicited three opinions from her: (1) the sample was received and stored using proper protocols, (2) the testing methods were scientifically acceptable, (3) and the quality control results for the tests were within acceptable limits. Plaintiffs had represented that they did not intend to offer into evidence the letter dated September 14, 2022, in which Ahlstrom stated these three opinions. Moreover, although Bos could testify that it was customary for experts in his field to send samples to a laboratory for testing and rely on the results of that testing, the Court had understood that he did not intend to testify to Ahlstrom’s three opinions, either. In other words, he would not “parrot” her opinions about the reliability of the testing, but rather simply would use the data regarding the concentration of 2,4-D to support his opinion on causation. This was within the scope of admissible expert testimony.

    Held

    The Court denied MFA’s motion in limine and permitted Bos to rely upon, and testify about, Ahlstrom’s Report to the extent set forth above.

    The Court, on its decision dated October 24, 2023, ruled in favor of Defendant MFA Incorporated regarding the Plaintiffs’ claim of breach of contract. However, the Court sided with Plaintiffs Jerry and Frances Probasco on their claim of breach of implied warranty of fitness for a particular purpose. Additionally, the Court favored Defendant MFA Incorporated on the Plaintiffs’ claim of negligence. Regarding comparative fault, the jury determined that Jerry and Frances Probasco were 70% at fault, while Defendant MFA Incorporated was found to be 30% at fault.

    Key Takeaways

    This case demonstrates that under Federal Rule of Evidence 703, an expert witness can rely on and testify about hearsay evidence, like the lab report here, in forming an opinion, if it is the type of evidence reasonably relied upon by experts in that field. However, conduit testimony from an expert on a matter outside his field of expertise is considered inadmissible.

    The Court allowed the expert here to rely on quantitative lab data showing the concentration of chemicals found in the crop samples he submitted for testing. But the Court prohibited him from testifying about the testing methodology or opining on the validity of the lab procedures and protocols, as he lacked expertise on those matters. 

    Overall, this case underscores the importance of tying expert opinion testimony to the witness’s specific expertise. While an expert can reasonably rely on certain otherwise inadmissible hearsay evidence in forming opinions, the expert cannot simply repeat hearsay opinions or information outside his or her expertise. Drawing this line is key to ensuring expert opinion testimony satisfies the reliability and relevance requirements under the Federal Rules of Evidence.

  • Court rejects the testimony of Human Factors Engineering Expert Witness after concluding jury cannot receive appreciable help from her “inconsistent” testimony 

    Court rejects the testimony of Human Factors Engineering Expert Witness after concluding jury cannot receive appreciable help from her “inconsistent” testimony 

    The case in question involves a lawsuit filed by the Plaintiff, Clyde Arterburn, against Home Depot U.S.A., Inc. (referred to as Home Depot) for injuries sustained when he tripped and fell in a Home Depot store on September 21, 2020. According to the documents, Arterburn claims that he tripped over a metal basket holder that had been placed over a slightly protruding pipe as he was exiting the store. Home Depot argues that the basket holder was intended to hold baskets, not to cover the pipe, although there were no baskets in the holder at the time of the incident. The area where Arterburn walked and tripped over the basket, between a yellow bollard and a wall, was wide enough that he was able to pass through without twisting or adjusting his body in any way, and there were no signs or warnings in the vicinity to alert customers. 

    Plaintiff’s expert witness, Joellen Gill, reviewed various materials, including photographs of the incident location, Home Depot’s supplemental discovery responses, and deposition transcripts of involved parties. In her report, Gill concluded that the incident area, between the yellow bollard and the wall, constituted a foreseeable pedestrian walkway around 40 inches wide. She noted that typical aisles and walkways usually had a minimum width of 36 inches. Gill estimated the wire basket’s height at 13.75 inches using the assumption that it was a quarter of the bollard’s height, which was 55 inches, without direct measurement. She reviewed and testified about Home Depot’s internal policies and procedures regarding keeping the aisles clear of tripping hazards and the use of merchandising displays. She observed that individuals tend to focus their visual gaze toward their intended destination rather than on the ground in their immediate vicinity. Gill discussed safety measures that Home Depot could have implemented to prevent similar incidents in the future. 

    Home Depot filed a Motion to Exclude the Testimony of Joellen Gill, while Clyde Arterburn opposed this motion.  

    Human Factors Engineering Expert Witness 

    Joellen Gill, CHFP, CXLT, CSP holds a BS in human factors engineering from Georgia Tech and Wright State Universities, earned in 1979. With nearly four decades of experience, she spent 15 years in aerospace and national defense as a human factors engineer focused on safety and risk management. In 1994, she began employment with Applied Cognitive Sciences, a consulting firm specializing in human factors engineering, particularly safety and risk management and went on to become the owner/president of Applied Cognitive Sciences in 2018.

    Joellen Gill is a Certified Human Factors Professional and boasts additional credentials as a licensed tribometrist and a Certified Safety Professional, underscoring her expertise in the field.

    Discussion by the Court  

    The Court engaged in a detailed discussion and analysis of various factors pertaining to the admissibility of expert testimony: 

    The Court initiated its discussion by addressing the qualifications of the expert, Joellen Gill. It noted that Federal Rule of Evidence 702 requires that a witness be qualified as an expert based on knowledge, skill, experience, training, or education. The Court emphasized that the Rule 702 allows for a broad conception of expert qualifications and that only a minimal foundation of knowledge, skill, and experience is required. It pointed out that a lack of particularized expertise goes to the weight of the testimony, not its admissibility. The Court assumed Ms. Gill was qualified as an expert, indicating that her qualifications were not a point of contention in the case. 

    The Court then shifted its focus to the reliability of the expert testimony. It detailed the factors outlined in Daubert v. Merrell Dow Pharms., Inc., a landmark case that established the standards for assessing the reliability of expert testimony. These factors included whether the expert’s method, theory, or technique is generally accepted within the relevant scientific community, whether the method has been tested, subjected to peer review and publication, and the known or potential rate of error of the method. The Court made it clear that the test for reliability was not about the correctness of the expert’s conclusions but the soundness of their methodology. It further explained that reliability required some objective, independent validation of the expert’s methodology. 

    The Court emphasized the necessity of a connection, or “fit,” between the expert testimony and the issue at hand in the case. It noted that an expert’s testimony should provide appreciable help to the trier of fact and that expert testimony is inadmissible if it concerns issues within the knowledge and experience of ordinary lay people. 

    The Court pointed out that, in this case, the central question was whether Joellen Gill’s expert testimony met the criteria for admissibility outlined in Rule 702, specifically focusing on relevance and reliability. 

    Moving on to the issue of relevance, the Court examined whether Joellen Gill’s testimony would assist the jury in understanding the evidence or determining a fact in issue, as required by Rule 702. Home Depot contended that her opinions were well within the knowledge and experience of ordinary laypeople and therefore were not necessary. The Court agreed with Home Depot, asserting that the vast majority of Gill’s opinions about foreseeable pedestrian walkways, Home Depot’s policies, and customer behavior were common knowledge and did not provide appreciable help to the jury. 

    The Court stressed that the jury should be able to draw its conclusions regarding the safety of the basket holder at Home Depot based on their own normal life experiences. It indicated that jurors would likely have visited similar stores, used similar shopping baskets, and generally had awareness of shopping basket holders’ locations, making Gill’s testimony redundant and irrelevant. 

    Home Depot contested the relevance and reliability of Gill’s testimony regarding whether the Plaintiff traversed a foreseeable walkway, highlighting her alleged error in identifying the width of the chosen walkway. They pointed out that the 40-inch measurement referred to the distance from the bollard to the wall, not the actual space between the bollard and the white cabinet, which was the pertinent area. Defendant argued that the area Gill claimed was a “pedestrian walkway” had a cabinet located against the wall providing a visual cue that people should not walk there. The Plaintiff’s response to this challenge was considered inadequate by the Court. The Plaintiff cited Gill’s reliance on measurements provided by her assistant and referenced the Plaintiff’s deposition testimony, indicating that the white cabinet was further back at the time of the incident. However, the Court found it hard to accept Gill’s acceptance of the 40-inch measurement for the walkway while also relying on the photo to determine facts about that specific area. The Court criticized Gill’s estimation of the basket’s height at 13.75 inches, seemingly based on visual approximation from the photo where the basket seemed to occupy a significant portion of the space between the bollard and the cabinet. The inconsistency in Gill’s testimony about the walkway rendered it irrelevant in the Court’s assessment. The Court concluded that Gill’s testimony appeared unreliable, leaning on subjective belief or unsupported speculation, without needing to rule on the specific width of the walkway. 

    Held 

    The Court granted Home Depot’s Motion to Exclude Testimony of Plaintiff’s expert Joellen Gill. The Court issued a final ruling on October 20, 2023 dismissing the action without prejudice.

    Key Takeaways:

    • Reliability Standards: The Court applied the standards outlined in the Daubert case to assess the reliability of expert testimony. These standards emphasize the necessity for the expert’s methodology to be based on sound science, subject to testing, peer review, and known error rates. Expert opinions should rely on proper methods and procedures rather than subjective belief or unsupported speculation. 
    • Relevance and “Fit”: Expert testimony must have a valid scientific connection or “fit” with the issues in the case. The Court highlighted that expert testimony should provide appreciable help to the trier of fact. In this case, it was observed that the jury should be able to draw its own conclusions on matters within their common knowledge and experiences, making Gill’s testimony redundant and irrelevant. 
    • Inaccuracies and Inconsistencies: The Court also considered inaccuracies and inconsistencies in the expert’s analysis as factors that further undermined the reliability and relevance of her testimony.