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  • Experts could rely on reliable “other sources” and even hearsay to offer their opinions; Court notes before admitting part of Marketing Expert Witness’ testimony

    Experts could rely on reliable “other sources” and even hearsay to offer their opinions; Court notes before admitting part of Marketing Expert Witness’ testimony

    The lawsuit was a trademark infringement action filed by Forest River, Inc. against inTech Trailers, Inc. It sought injunctive relief, damages, costs, attorneys’ fees, and any other appropriate remedies. The legal action arose from inTech’s knowing and intentional infringement of Forest River’s DELLA TERRA trademark and its mountain design trademark, (“Forest River Mountain Design”) (Forest River Mountain Design and DELLA TERRA collectively, the “Forest River Marks”). The claims were made under the Lanham Act, the Indiana Trademark Act, and the common law of the State of Indiana, asserting inTech’s infringement of the Forest River Marks.

    Forest River, Inc., a prominent player in the manufacturing of recreational vehicles (“RVs”), cargo trailers, utility trailers, pontoon boats, and buses, among other products, had utilized the Forest River Marks to brand, promote, advertise, market, and sell a new line of its RVs known as the “DELLA TERRA RVs.” Forest River extensively promoted, advertised, marketed, and sold a substantial number of DELLA TERRA RVs under the Forest River Marks. Consequently, the Forest River Marks became distinctive and well-recognized at common law within the industry and among consumers in the United States and Canada.

    inTech, a competitor of Forest River in the United States and Canadian markets, was knowledgeable about Forest River’s RV product lines and trademarks, with certain members of its leadership having prior connections with Forest River. Commencing in November 2020, inTech initiated a campaign aimed at selling a new line of RVs by creating confusion among consumers, leading them to believe that its new RVs were DELLA TERRA RVs. inTech branded this new line as “Terra,” a name bearing a confusing similarity to DELLA TERRA, and also incorporated a new mountain design similar to that used by Forest River on its RVs. By using “terra” and the mountain design in various combinations, including with a third mark Forest River had used in the past—OASIS—inTech engaged in actions that traded on the goodwill associated with Forest River’s Forest River Marks.

    inTech’s use of “Terra” was found to have infringed Forest River’s trademark rights in DELLA TERRA. Additionally, inTech’s use of its new mountain design was determined to infringe Forest River’s trademark rights in the Forest River Mountain Design. The inclusion of an old Forest River mark, OASIS, along with inTech’s knowledge of Forest River’s RV lines, indicated an intentional, willful, and knowing campaign to create initial interest confusion, closely align with the Forest River Marks, and capitalize on Forest River’s goodwill associated with those marks. inTech’s use of “Terra” and its new mountain design in composite marks was found to infringe composite marks comprising the Forest River Marks. All of these infringements were causing confusion in the RV industry and among consumers, thereby violating the Lanham Act, Indiana state law, and common law, entitling Forest River to seek relief.

    Forest River, Inc. (“Forest River”) supported its claims by engaging a survey from an Intellectual Property valuation expert, David Franklyn, who conducted a scientific and controlled double-blind survey involving actual consumers of RV travel trailers. The purpose of the survey was to address the crucial question in the case: whether consumers were likely to be confused by inTech Trailers, Inc.’s (“inTech”) infringement on Forest River’s DELLA TERRA and Mountain Design trademarks. According to Forest River’s expert, David Franklyn, the findings indicated that a legally significant percentage of travel trailer consumers were indeed confused by inTech’s infringement.

    In response to Forest River’s claims, inTech presented the testimony of a marketing expert, Thomas Maronick. Forest River claimed that despite not conducting his own survey to directly challenge Franklyn’s results, Maronick attempted to provide opinions that, if admitted, would seek to “inform” the jury about RV consumers and their thought processes. Forest River contended that Maronick lacked expertise specifically in RV consumers. Furthermore, Maronick went beyond his role as an expert witness by placing himself in the position of the Court, evaluating evidence using the wrong standard (the United States Court of Appeals for the Ninth Circuit’s Sleekfast factors), and opining on the legal issue of likelihood of confusion. Additionally, Forest River argued that Maronick’s opinions lacked reliance on any verified data or reliable analysis; he merely repeated data from third-party sources and surveys without evaluating the reliability of those sources or applying methodology critiques to his own references.

    Due to Thomas Maronick’s “alleged” lack of reliable methodology and qualifications to opine on the thoughts and behaviors of RV consumers, Forest River, Inc. argued that Maronick’s proffered opinions amounted to nothing more than unsubstantiated and unreliable legal briefing. It was asserted that such ipse dixit opinion testimony was inadmissible under Rule 702 and Daubert. Consequently, Forest River, Inc. sought to exclude the testimony of inTech Trailers, Inc.’s opinion witness, Thomas Maronick.

    Marketing Expert Witness

    Dr. Thomas Joseph Maronick served as a marketing consultant since 1997, offering guidance on marketing strategy and consumer research issues in litigation. He functioned as an expert witness in more than 150 cases and conducted over 300 survey research projects related to advertising and trademark litigation. Before his consulting role, Maronick served as the director of impact evaluation in the Bureau of Consumer Protection at the Federal Trade Commission from 1980 to 1997. During this time, he acted as the in-house specialist on marketing and survey matters. Maronick has also contributed to publications on the impact of marketing on consumers.

    Discussion by the Court

    Forest River sought to exclude the anticipated testimony of Maronick. Forest River contended that Maronick’s testimony included inappropriate legal conclusions, particularly in sections 4 and 6 of his report. Forest River argued that Maronick gave conclusions under certain likelihood of confusion factors developed in another circuit and analyzed seven factors known as the “Diamond” factors used to evaluate consumer surveys. In response, InTech clarified that Maronick would not provide an opinion on the likelihood of confusion. The Court interpreted this as a concession, indicating that the set of opinions presented in section 4, even in the context, was no longer in dispute and would not be offered.The Court focused on the opinions in section 6 of Maronick’s report.

    InTech had stated that Maronick would only offer his critique of Franklyn’s survey without delving into tracing the seven factors in the reference guide, as courts typically do. He was not required to inform the jury about the judicial evaluation of surveys using these factors. The Court had the responsibility to instruct the jury on weighing evidence, determining witness credibility, and assessing expert opinions.

    The reference guide, emphasized as not constituting the law, was deemed inappropriate to present to the jury, as it could be misleading and prejudicial under Rules 702, 704, and 403. It was clarified that the guide was intended for judges and possibly counsel but not for the jury.

    Accordingly, the Court held that Maronick had to limit his opinions to the analysis of Franklyn’s survey. However, he was permitted to articulate the factors in evaluating surveys to the extent that they proved to be considerations used by experts in his field for developing or assessing surveys, aligning with his experience. It was noted that many critiques in this section (Section 6) already appeared in Section 7 of his report.

    Franklyn conducted a Squirt survey to determine whether consumers of towable travel trailers were likely to be confused by Forest River’s Della Terra and inTech’s Terra marks. The viewed images of travel trailers, were randomly classified as “test” or “control” subjects. Respondents answered two “buffer” questions early on to blind the study’s purpose. Later, they indicated whether the subsequent images were made by, affiliated with, or sponsored by the company that produced the first travel trailer—in this case, Forest River’s Della Terra travel trailer. Franklyn opined that 11 percent of respondents showed confusion, which he considered a significant percentage. He further asserted that a majority of these respondents formed their confusion based on the Terra mark or mountain design.

    Forest River argued that Maronick should have conducted a rebuttal survey to address gaps in methodology or data in Franklyn’s survey. However, the Court determined that an opinion witness, in rebuttal, need not necessarily replicate or develop new data. A rebuttal witness may critique another’s opinions without offering alternatives, as long as it aids the jury in deciding a triable issue. Maronick was allowed to base his opinions on Franklyn’s information and add his own insights, provided the information was of a type that experts in his field reasonably rely on. Forest River viewed Maronick’s five critiques of Dr. Franklyn’s survey as unreliable and derivative of his own assertions.

    First, Maronick critiqued Franklyn’s survey methodology, asserting that the sample used (the entire U.S. population) was overbroad. Maronick contended that Franklyn should have sampled individuals within the target market for travel trailers, emphasizing that 75 percent of travel trailer purchasers are over age 45 with disposable income above the national average. Franklyn reported that he set quotas in line with census distributions for age, gender, and region. In support of his critique, Maronick referenced a demographic profile study of RV owners conducted by Ipsos in 2020. Ipsos appears to be a near-50-year international company, publicly-traded in the European Union, with nearly 90 markets (including the United States), that collects and compiles data for its clients to make decisions.

    The Court found that Maronick’s opinion drew on reputable data and explained the method for conducting a reliable survey, contributing to the jury’s understanding of the importance of starting with a proper sample. While Forest River raised concerns about the weight of his opinion, the Court deemed these concerns relevant to the weight rather than the admissibility of the opinion.

    Second, Maronick opined that Franklyn should have used a broader array of images of competing trademarks instead of just a single control image (inTech Sol) and buffer image (Jayco Eagle). According to Maronick, using only these two images increased the likelihood of finding an association between Forest River’s mark and inTech’s mark. Franklyn employed a two-room format in his survey, showing respondents the Forest River Della Terra model in room one and two other images in room two, either the inTech Terra travel trailer (test group) or the Sol RV (control group). Maronick argued that showing these sequential images one at a time, rather than in an array, could skew responses substantially higher. Forest River contended that Maronick’s opinions lacked data or methodology because he didn’t conduct his own survey, characterizing them as merely his say-so. However, the Court disagreed, noting that while Forest River might not agree with the method or data, these were matters for cross-examination and argument at trial, not questions of admissibility under Rule 702. The Court recognized that experts could rely on reliable other sources and even hearsay to offer their opinions, citing United States v. Conn, 297 F.3d 548.

    Third, Maronick opined that Franklyn’s use of the inTech Sol RV as the control image was so different from the Terra unit that it signaled to respondents an association between the Della Terra and Terra. Maronick referred to a standard in survey methodology stating that a control should share as many characteristics with the experimental stimulus as possible, except for the characteristic being assessed. He cited survey and industry authorities to support this step in his method, specifying differences in size and configuration that, in his view, skewed the results. Maronick’s experience in developing and conducting surveys, combined with industry sources, provided a reliable basis for his critique. While Forest River may challenge the credibility of his opinion during cross-examination and argument, its concerns were deemed suitable for trial rather than questions of admissibility under Rule 702.

    Fourth, Maronick opined that the use of two “irrelevant” questions between respondents’ viewing of the Della Terra image and the images of the Terra, Sol, and Jayco units caused respondents to “guess.” He characterized the intervening questions as a modification to the Squirt survey format. Maronick supported his opinion by referencing industry support, a factual basis within Franklyn’s survey method, facts within the questions and responses, and the logical concern that this method might prompt specific responses. His method included a check-and-balance to frame survey questions clearly and precisely, avoiding bias and using control questions when appropriate. Maronick’s experience and the factual basis he provided spoke not only to his method but also to an issue that the jury might reasonably consider when evaluating the weight to give the survey. Forest River’s concerns were deemed to pertain more to the weight of Maronick’s critique rather than its admissibility.

    Fifth, Maronick disagreed with Franklyn regarding whether a 9 percent net difference of survey respondents finding confusion between the Della Terra and Terra represented a significant likelihood of confusion. While Maronick couldn’t recall if his critique drew from the entirety of Franklyn’s analysis or a specific section, the Court considered this a factual gap suitable for cross-examination rather than outright exclusion. Maronick provided a formula for testing statistical significance, although he didn’t include the outcome in his report. Despite not being asked in deposition whether he ran the formula or the results, the Court noted that he offered a basis and method for testing his conclusion, making it testable. Maronick’s opinion, built on a method for adjudging surveys, a formula for statistical significance, data from Franklyn’s survey, and his experience in conducting 300 surveys, aimed to assist the jury in understanding not just the survey but also what it might convey to a factfinder. The Court concluded that his opinion was not inadmissible under Daubert. 

    Held

    The Court granted Forest River’s motion to exclude Maronick’s opinion concerning his conceded opinions and those in section 4 of his report. However, the Court denied the motion as to Maronick’s critique of Franklyn’s survey, particularly his analysis of the five flaws and conclusion derived from the survey. 

    Key Takeaways:

    This opinion addresses the admissibility of expert witness testimony under Daubert and Rule 702. The Court denies most of Forest River’s motion to exclude Intech’s expert, Maronick. The Court finds that Maronick is qualified based on his credentials and experience in marketing research and surveys. His critiques of the opposing expert’s survey methodology are admissible even without conducting his own survey. An expert can rely on outside sources and data reasonably relied upon in the field to critique another expert’s methodology. Any flaws in the data go to weight not admissibility. Maronick tied his critiques to his experience and industry practices for reliable survey methods. The Court excludes only his conceded opinions on likelihood of confusion factors and his discussion of how judges assess survey factors. Experts cannot opine on ultimate legal conclusions. But experts can utilize reliable principles and methods even if their data has gaps, as cross-examination exposes doubts in the testimony for the jury to weigh. The judge ensures the methodology and data are connected to the opinion, not that the opinion is flawless. 

  • “Unexplained” Methodology employed by Accounting Expert Witness passes Daubert Test after Court notes that merits and drawbacks of the Methodology have been discussed

    “Unexplained” Methodology employed by Accounting Expert Witness passes Daubert Test after Court notes that merits and drawbacks of the Methodology have been discussed

    Plaintiffs BRP Colleague Inc. (“BRP Colleague”) and Baldwin Krystyn Sherman Partners, LLC (“BKS”) jointly referred to as “BRP,” had initiated legal proceedings against Defendants Edward (Teddy) Gillen (“Gillen”) and Edgewood Partners Insurance Center Inc. (“EPIC”) concerning Gillen’s prior association with BRP and his subsequent employment with EPIC, a direct competitor of BRP. BRP (together with BRP Group, Inc. and its affiliated entities, collectively “BRP Group”) offers insurance, benefits, and risk management solutions for individuals and businesses across the country, with a particular focus in the Southeast. EPIC is a direct competitor of BRP. It is an insurance brokerage and consulting firm selling property and casualty insurance, employee benefits insurance and specialty program insurance, including medical malpractice insurance.

    The basis of BRP’s claims revolved around alleged violations by Gillen of the Defend Trade Secrets Act, the Georgia Trade Secrets Act, and tortious interference with contractual and business relationships. The focal point was Gillen’s departure from BRP and his purported violation of a legally binding and enforceable restrictive covenant agreement known as the Employee Covenant Agreement (“Agreement”). Plaintiffs also claimed that EPIC had tortiously interfered with contract, business relationships, and expectancies by unlawfully taking Plaintiffs’ business for itself (and Gillen) after Plaintiffs rejected EPIC’s attempt to purchase Plaintiffs’ business. Plaintiffs sought attorney’s fees from both Gillen and EPIC.  

    Gillen, a former insurance producer for BRP specializing in the sale of medical malpractice insurance policies, was accused of breaching various legal obligations and engaging in actions detrimental to BRP’s interests. Notably, BRP contended that Gillen misappropriated confidential and proprietary information, including trade secrets, during his tenure with BRP. This misappropriation was alleged to have been utilized by Gillen to illicitly solicit and service BRP’s customers on behalf of, and to the advantage of, EPIC, his current employer.

    The crux of the matter lay in Gillen’s alleged theft of confidential and proprietary information, constituting trade secrets, and the subsequent utilization of these unlawfully obtained assets to serve EPIC’s interests. BRP contended that Gillen, in defiance of his restrictive covenants and applicable laws, had engaged in the solicitation and servicing of BRP’s clients for EPIC’s benefit.  

    EPIC, according to BRP’s assertions, was not a passive beneficiary of Gillen’s actions but actively participated in and facilitated the breach of Gillen’s legal obligations to BRP. BRP accused EPIC of knowingly benefiting from Gillen’s illicit conduct and further asserted that EPIC conspired with Gillen to undermine BRP’s contractual, statutory, and common law rights. This ongoing wrongful conduct by the Defendants, BRP argued, had resulted in irreparable harm and substantial damages to BRP.

    In response to the alleged misconduct, BRP sought both preliminary and permanent injunctive relief to halt and prevent the continued harm arising from the Defendants’ actions. Additionally, BRP sought monetary damages and other available relief as a remedy for the harm caused by Gillen and EPIC’s wrongful conduct. 

    The financial aspects of the case involved BRP’s claims for lost profits and unjust enrichment damages against the Defendants. BRP, supported by expert witnesses Joseph J. Egan and Myles D. Kaluzna, estimated its lost profits (both past and future) to amount to $991,755. Furthermore, BRP’s economics experts opined that EPIC had been unjustly enriched by $710,528 through its wrongful acts. Notably, Defendants had engaged J. Lester Alexander III (“Alexander”) to counter BRP’s expert report, suggesting a contested battleground over the quantification of damages.

    Plaintiff filed an initial motion to exclude the testimony of J. Lester Alexander III which was dismissed without prejudice by the Court on account of noncompliance with the local rules. After the Plaintiff’s re-filed the motion as per the Court’s directions, the Court addressed Plaintiffs’ Motion to Exclude Expert Report and Opinions of Alexander, which sought the exclusion of Defendants’ rebuttal damages expert, Alexander, under Federal Rule of Evidence 702 and Daubert. Plaintiffs asserted two primary reasons for the exclusion: first, that Alexander’s opinions were grounded in speculation and an unexplained methodology, and second, that his testimony would not contribute to the jury’s understanding of the evidence. 

    Accounting Expert Witness

    J. Lester Alexander III B.S., C.P.A., C.F.E. is the Executive Vice President of J.S. Held LLC. He has served as the Founder and Chief Executive Officer of AEA Group. He is a former partner of PwC and the former southeastern practice leader of one of its legacy firm’s consulting practices. Alexander practiced for more than three decades, performing audit, tax, and consulting services. In recent years, he concentrated his practice in the areas of economic research, financial investigations, forensic accounting, and valuation services. He had been admitted as an expert witness and testified in Federal and state courts on a variety of financial subjects.

    Discussions by the Court

    In response to the motion to exclude Alexander’s testimony, the Court had engaged in a comprehensive analysis of the admissibility of expert testimony, applying the standards set forth in Federal Rule of Evidence 702 and the Daubert framework. The Court had begun by outlining the criteria for admitting expert testimony under Rule 702, emphasizing that an expert’s testimony should assist the trier of fact in understanding the evidence or determining a factual issue. 

    The Court had acknowledged that Rule 702 required that expert testimony be based on sufficient facts or data, be the product of reliable principles and methods, and that the expert had reliably applied those principles and methods to the facts of the case. The Court then had turned to the Eleventh Circuit’s three-part test, as articulated in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 562 (11th Cir. 1998), which mandated that the expert must be qualified, the methodology must be sufficiently reliable, and the testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. Plaintiffs alleged that Alexander’s testimony was inadmissible under both the second and the third elements of the Harcos Chemicals test.

    The Plaintiff argued that Alexander’s testimony regarding the methodology he allegedly employed in preparing his calculation of Plaintiffs’ lost profits manifested his repeated reliance on his subjective viewpoint under the cloak of purported reliance on industry standards and publications. For instance, Alexander’s report and calculation of lost profits were based on the presumption that economic damages cannot exceed the total value of the lost business, but when asked to explain the basis for this assertion, he failed to cite a source. Although he mentioned publications like “Valuation Services Practice A for Lost Profits 2020” and the “Litigation Handbook” as supporting his methods, he did not specify which parts of those publications supported the propriety of his method.

    Due to his failure to cite all the sources he used, show his calculations, or even remember the numbers he used to calculate his final figures, Alexander’s findings were impossible to duplicate, confirm, or refute.

    Alexander engaged in speculation when calculating Plaintiffs’ lost profits. In reaching his final damages conclusion, Alexander multiplied Plaintiffs’ total 2021 lost revenue by a revenue multiple of 2.03 without providing support for the assertion that the revenue multiple was more reliable than other methods of calculating damages.

    Furthermore, Alexander chose his revenue multiple by taking the median revenue multiple
    of four transactions he pulled from DealStats. One of the four transactions is from the Pittsburgh
    market, while the other three are from Florida. With no analysis or investigation for this assertion,
    Alexander stated that the Atlanta and Pittsburgh markets were on par “from the point of view of
    profitability of an insurance agency.”

    The Plaintiffs noted Alexander’s reliance on alleged comparable transactions to calculate the revenue multiple without articulating a basis for his subjective definition of a comparable transaction. Alexander failed to adequately respond when confronted with the ways in which his transactions substantively differed from the business at issue in this case.

    The Plaintiffs further accused Alexander of failing to seek out and rely on relevant data, instead making unfounded assumptions. The Plaintiffs asserted this speculative approach rendered Alexander’s methodology unreliable.

    Finally, the Plaintiffs contended Alexander’s flawed methodology would not help the jury assess the validity of the Plaintiffs’ expert’s calculations. Rather, they argued his testimony would confuse the issues and prejudice the Plaintiffs by providing a veneer of expertise without a sound analytical basis.

    In response, the Defendants argued Alexander’s methodology was reliable and his testimony would aid the jury. They stated Alexander relied on established principles of valuation science and damages calculation. The Defendants stated that any questions regarding the credibility of Alexander’s methodology were reserved for the jury. The Defendants further argued Alexander’s decades of experience in the industry provided a sufficient basis for his choices.

    The Court agreed with the Defendants and denied the motion to exclude. It found Alexander sufficiently explained his methodology during his deposition. The Court held that while Plaintiffs’ selected quotes arguably implicated Alexander’s credibility as a witness, the context of those quotes demonstrated that Alexander’s testimony was based on more than mere speculation.

    Specifically, the Court noted Alexander based his opinions on his professional training and 2006 American Institute of Certified Public Accountants’ Guide, not just common sense. It also observed Alexander used a different methodology than the Plaintiffs’ expert, calculating damages using a market-based approach instead of an income-based approach. The Court stated Alexander extensively discussed his techniques in his deposition.

    The Court concluded Alexander’s methodology was sufficiently reliable under Daubert. It also found Alexander’s testimony would be relevant in assessing damages, meeting Rule 702’s low bar for assisting the trier of fact. 

    Held

    The Court denied Plaintiffs’ Motion to Exclude Expert Report and Opinions of Defendant’s expert, J. Lester Alexander, III. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    • The Court found that Alexander was sufficiently qualified based on his training and experience as an accountant. His methodology of using a market-based approach to calculate damages was deemed reliable, even if it differed from the Plaintiff’s expert’s income-based approach.
    • The Court determined that Alexander’s testimony regarding damages calculations would be helpful to the jury in understanding the evidence and determining facts at issue in the case. Therefore, it met the relatively low threshold for relevance and assisting the trier of fact.
    • While the Plaintiffs argued Alexander’s opinions were speculative, the Court found in the full context of his deposition he provided adequate explanation of his methodology grounded in accounting standards and training. Questions about his credibility were for the jury.
    • The Court denied the motion to exclude Alexander’s testimony, finding it met the qualifications, reliability, and helpfulness requirements for expert testimony under Rule 702 and Daubert. This provides a good overview of how courts assess expert witness admissibility.
  • Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Occupational Medicine Expert Witness’ projection of Plaintiff’s future medical care costs rejected by the Court for lacking sufficient basis in the medical evidence

    Plaintiff Autumn Brown, who was twenty-two years old at the time, sustained injuries on June 24, 2020 after a vehicle driven by an employee of Defendant BellSouth Telecommunications, LLC struck her vehicle at an intersection in Pascagoula, Mississippi. She was taken to the emergency department at Singing River Hospital where they found she had suffered a broken right wrist, broken bones in her pelvic area, a fractured lumbar vertebra, and a liver laceration. She was transferred to USA Medical Center in Mobile, Alabama for further treatment, where testing revealed she also had a ruptured bladder.

    Brown reported having issues controlling her bowel and bladder, back and pelvic spasms, stiffness, decreased range of motion, incontinence, and mental health problems – all of which she attributed to the accident.

    Defendant BellSouth filed a motion in limine to limit the testimony of Plaintiff’s retained expert, Dr. Gregory L. Smith, regarding Smith’s life care plan which projected $345,337 in future medical damages for Brown. BellSouth argued the life care plan lacked sufficient factual basis.

    Occupational Medicine Expert Witness

    Gregory L. Smith, M.D., M.P.H. graduated from Rush Medical College in Chicago and served in the U.S. Army Medical Corp for six years, achieving the rank of Major and completing his residency in Occupational and Preventive Medicine at Walter Reed Army Medical Center. Following his military service, he earned a Master’s of Public Health (MPH) from Harvard University and published numerous research articles in peer-reviewed medical journals.

    In 1988, Smith entered private practice, specializing in Occupational Medicine in various states, including California, Georgia, Florida, and Texas. He was recognized as a Fellow of the American Board of Occupational and Preventive Medicine and appointed as an Agreed Medical Examiner (AME) by worker’s compensation judges in two California counties. Additionally, he obtained certification from FIG® in Medical Cost Analysis.

    Smith’s extensive experience includes providing expert medical opinions and testimony on numerous cases related to causation, medical necessity, and future medical care. He has authored hundreds of Life Care Plans and Medical Cost Projections for personal injury cases, demonstrating a comprehensive understanding of medical assessments and cost analysis in the legal context.

    Discussions by the Court

    Smith reviewed Brown’s medical records and conducted an interview, leading to the following conclusions:

    Brown had the following diagnoses and associated impairments linked to the injury:

    • She experienced pelvis pain resulting from bilateral superior pubic rami comminuted displaced fractures, a right inferior pubic ramus fracture, and a left sacral ala intra-articular fracture. She underwent open reduction internal fixation (ORIF) for bilateral superior ramus fractures and closed reduction percutaneous screw fixation for bilateral sacral fractures on June 25, 2020.
    • Brown faced bowel incontinence.
    • She reported right wrist pain attributed to a healed impacted fracture of the distal radius and an ulnar styloid process nondisplaced fracture.
    • A bladder repair was performed on June 25, 2020, resulting in residual bladder urgency and incontinence.
    • Brown struggled with anxiety and depression

    Smith, in his future care projections, organized the anticipated needs into four categories: (1) medication; (2) future diagnostic studies and surgeries for the “late sequelae” of Brown’s broken bones and bladder rupture; (3) durable medical equipment (“DME”); and (4) a Functional Restoration Program for pain management.

    Regarding medication, Smith opined that Brown had an “ongoing need for prescription medications,” including daily use of cyclobenzaprine, which proved effective for residual symptoms. He projected that Brown would require Cyclobenzaprine (Flexeril) at 10mg per day for 63.9 years, with a total cost of $7,668.

    The most substantial projected future care costs were allocated to the “late sequelae” of Brown’s ongoing wrist and pelvic pain from broken bones, as well as for “neurogenic bowel and bladder” problems presumably related to her rupture. Smith predicted that these “late sequelae” would necessitate a comprehensive diagnostic evaluation, along with potential interventional pain injections and/or surgery. The projected future care costs also factored in pre- and post-operative diagnostic studies, perioperative medical and facility costs, and required post-operative therapy.

    In terms of durable medical equipment (DME), Smith foresaw Brown’s need for six Neuromuscular Stimulator units throughout her life, each costing $600, along with two sets of supplies per year for these units. The total projected cost for DME amounted to $11,268.

    The remaining costs in the life care plan covered a Functional Restoration Program, incorporating a three-day evaluation and 160 hours of programming, with a total cost of $27,000.

    In summary, Smith projected Brown’s future medical damages at $345,337.

    The Court found that Smith’s testimony failed the Daubert test because his report lacked specificity in linking Brown’s medical records to the projected future care needs and establishing a reasonable degree of medical probability in the causal relationship to the accident.

    In the context of future diagnostic studies and procedures for the “late sequelae” of Brown’s injuries, Smith did not identify or describe these sequelae beyond residual pain. The report failed to connect specific instances of projected future medical care to recommendations by any of Brown’s treating physicians. Additionally, the Court noted that Plaintiff’s counsel acknowledged during the hearing on September 21, 2023, that none of the treating physicians would opine on the need for future treatment, leaving the court unconvinced by Smith’s projections.

    Furthermore, the Court observed that some of the medical records cited by Smith contradicted his projections. Brown mentioned in her interview with Smith that her orthopedist and urologist had released her, and the report indicated that she was no longer seeing a physical therapist. Despite listing a home exercise program under current treatments, Smith did not mention physical therapy, and no surgeries were scheduled.

    Smith projected twelve future neurologist visits, although he provided no records of Brown receiving neurology care after the accident. Moreover, Brown denied a head injury immediately after the accident, and her hospital CT scan revealed “no significant abnormality.”

    In essence, the Court concluded that Smith’s assertions were insufficient, emphasizing the need for a more concrete connection between Brown’s medical records, the projected future care needs, and a demonstrated causal relationship to the accident. The Court could not rely solely on Smith’s assertions without a more substantial basis.

    Smith’s projections of Brown’s future care needs were deemed insufficient by the Court. In the case of future drug costs, Smith’s assertion that Brown had an “ongoing need” for Flexeril was criticized. The Court noted that simply because she was currently taking the drug and it had been effective did not necessarily mean she would require it for the rest of her life. Smith did not provide detailed explanations for why she would need Flexeril continuously, relying on a broad statement about her “ongoing need.”

    Similarly, Smith’s opinion about the Neuromuscular Stimulator unit lacked sufficient justification. While he asserted that Brown would benefit from prolonged use due to chronic pain, he did not explain why she would experience a lifetime of problems with pain and spasms or how the stimulator would address these symptoms adequately.

    The last medical care projection, the Functional Restoration Program, was also challenged. Smith referenced “current treatment guidelines (ODG)” to support the prescription, stating that Brown was expected to have long-term issues with bowel and bladder incontinence, anxiety, depression, and significant functional losses. However, the Court noted that no treating physician had recommended this program for Brown, and Smith’s conclusory statements lacked a clear basis in the medical evidence.

    The Court emphasized the difference between weak and insufficient bases for expert testimony, asserting that Smith’s life care plan did not demonstrate a sufficient reliance on medical evidence to predict Brown’s future care needs accurately. Despite Smith’s status as a medical doctor, the Court found that he provided projections without an adequate foundation in the available medical evidence, specifically regarding the medical necessity of the predicted future care.

    While Brown was undoubtedly injured, the medical records discussed in Smith’s report did not demonstrate an ongoing, specific, permanent injury. These records also lacked any doctor’s recommendations for future care. Smith’s report acknowledged the possibility of future pain, including the “chronic pain syndrome” he attributed to Brown, but he noted that it had not been diagnostically evaluated or treated.

    The Court determined that there was a significant analytical gap between the data presented and the opinions Smith proffered. The absence of conclusive evidence supporting ongoing, specific injuries and the lack of doctor-recommended future care contributed to this analytical gap.

    Additionally, the Court concluded that the opinions expressed in Smith’s life care plan were inadmissible under Federal Rule of Evidence 403. Based on the reasons discussed earlier, the Court found that the “probative value” of Smith’s life care plan was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and potential to mislead the jury regarding the extent of Brown’s future medical needs and their associated costs.

    Held

    The Court granted Defendant BellSouth Telecommunications, LLC’s Motion in Limine to Limit Testimony of Plaintiff’s Retained Expert, Gregory L. Smith, M.D., M.P.H., as a result of which he was precluded from testifying at trial to the opinions in his life care plan.

    The case was dismissed with prejudice on October 23, 2023 after the parties announced to the Court a settlement of this case.

    Key Takeaways:

    • An expert’s testimony must be based on sufficient facts and data to be admissible under Rule 702. The Court found Smith’s life care plan lacked a sufficient basis in the medical records.
    • An expert cannot simply state conclusions without explaining the underlying facts and analysis. The Court found there was too great an analytical gap between the data and Smith’s opinions.
    • An expert should clearly connect their opinions to specific recommendations by treating physicians when possible. Smith did not link his projections to any treating doctor’s recommendations.
    • A life care plan should identify ongoing, specific, and permanent injuries as a basis for projections. The Court found Smith did not show Plaintiff had such identifiable permanent injuries.
    • Expert opinions can be excluded under both Rule 702 and 403 if unreliable or prejudicial. The Court found admission would be unfairly prejudicial and misleading here.
  • Court validates the objective findings of the statistics expert witness in this class action lawsuit consisting of disability discrimination claims

    Court validates the objective findings of the statistics expert witness in this class action lawsuit consisting of disability discrimination claims

    This case originated from a class action lawsuit filed by the Center for Independence of the Disabled, New York and other nonprofit organizations (collectively referred to as Plaintiffs) against the Metropolitan Transportation Authority (“MTA), New York City Transit Authority (“NYC Transit”), and the City of New York(“the City”) (collectively referred to as Defendants). The lawsuit alleged that hundreds of thousands of New Yorkers with mobility disabilities were persistently and discriminatorily excluded from accessing the New York City subway system due to the failure of the Defendants to adequately maintain the already limited number of elevators in the system. 

    The Plaintiffs contended that subway riders with mobility disabilities routinely faced abrupt and extended elevator outages lasting for months, without any prior notice or warning mechanisms like signage or announcements. Moreover, the Defendants allegedly failed to provide any alternative accommodations to facilitate the transportation of people requiring elevator access when outages occurred. The Plaintiffs asserted that the overall elevator accessibility in the New York City subway system was already poor compared to other major US cities, with only 112 (24%) of the 472 subway service line stations in New York City being wheelchair-accessible.

    Public data from the MTA demonstrates that over 9,019 elevator outages occurred during the one-year period ending on June 30, 2015. Over 4,100 of those outages were unscheduled—a predictable result of Defendants’ failure to maintain and implement adequate preventative maintenance procedures

    Plaintiffs alleged that Defendants’ failure to maintain the limited number of elevators they provide in the New York City subway system violated federal and local disability rights laws, including Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and the New York City Human Rights Law (“NYCHRL”). The Court was left to assess whether Defendants have established that they provide reasonable accommodations to class members when elevator outages prevent them from accessing the subway.

    The Defendants retained Dr. Alan J. Salzberg, a statistician, to analyze the overall median availability of elevators in the NYC subway system using MTA data. The Plaintiffs did not contest his availability calculations but argued that the aggregated figures could obscure variability. Hence, the Plaintiffs presented two rebuttal experts – Andrew D. Schwarz and Sylvia Morse – to provide context to Dr. Salzberg’s opinions. 

    The Plaintiffs also filed a motion to exclude Dr. Salzberg’s testimony, arguing that he exceeded his expertise scope, manipulated data unreliably, and made flawed assumptions, rendering his testimony unhelpful and misleading. 

    Statistics Expert Witness

    Alan J. Salzberg Ph.D., is Senior Statistician and Principal of Salt Hill. His focus is statistical analysis, sampling, estimation, and modeling, especially using large or complex datasets. Many of Dr. Salzberg’s consulting projects and research papers have related to the detection and measurement of bias. He has testified as an expert witness in statistics in federal and state court. Prior to joining Salt Hill, Alan was CEO of Analysis & Inference. Salzberg holds a Ph.D. in Statistics from the Wharton School of the University of Pennsylvania, where he also received a Bachelor of Science in Economics.

    Discussions by the Court

    In response to Plaintiffs’ motion to exclude the testimony of Defendants’ expert, Alan Salzberg, the Court engaged in a detailed discussion rooted in the parameters set by Federal Rule of Evidence 702. The Court emphasized that, under Rule 702, the party seeking to introduce expert testimony bore the burden of demonstrating that the testimony met certain criteria, including being based on sufficient facts or data, the product of reliable principles and methods, and reliably applied to the facts of the case. Additionally, the expert’s testimony had to be relevant and assist the jury in understanding the case. 

    The Court considered the motion to exclude the testimony of Alan Salzberg, the Defendants’ expert, who had submitted reports critiquing two of the Plaintiffs’ experts, Andrew Schwarz, an economist, who developed a model to demonstrate the practical implications of elevator outages on passengers traveling on certain high-usage subway routes during rush hours, and Sylvia Morse, Policy Program Manager at Pratt Center for Community Development. The Court began by addressing Salzberg’s expert report titled “Subway Accessibility Analysis.” Salzberg, was tasked with reviewing public elevators in the New York City subway system to determine the elevator, station, and station stop availability for riders with mobility disabilities. Schwarz’s analysis was “intended to highlight the impact of the frequency of inaccessibility calculated by Salzberg on the commutes of targeted types of individuals.”

    In response to Schwarz’s report, Salzberg submitted a reply report on May 2019, using the same Metropolitan Transportation Authority’s (“MTA”) Trip Planner tool that Schwarz relied on for his analysis. Salzberg performed his own analysis of the 200 trips considered by Schwarz and identified errors in Schwarz’s analysis, such as, Schwarz had not selected the 200 subway trips at random and excluded downtown Manhattan stations.

    After the Second Circuit’s remand, Salzberg submitted an update to his report, dated September 12, 2022, concerning accessible elevator, station, and station stop availability, using new data, from 2019 through 2021. In response, Plaintiffs submitted an updated report from Schwarz, dated November 23, 2022. Schwarz, using Salzberg’s statistical calculations, again examined the likelihood that a commuter taking a trip along 200 commuting routes involving subway stations commonly used by passengers with mobility disabilities would experience a failed trip during a particular period of time. The Court noted that Plaintiffs did not challenge Salzberg’s availability calculations, focusing instead on his qualifications and the assumptions underlying his statistical calculations. 

    Plaintiffs argued that Salzberg was unqualified to render an expert opinion in the case due to his lack of expertise in transportation systems, commuting patterns in New York City, or accessibility barriers for people with mobility disabilities. The Court countered this by highlighting that Salzberg analyzed the same data examined by Schwarz, who himself was an economist without expertise in transportation systems. The Court emphasized that Salzberg’s qualifications were appropriate for critiquing Schwarz’s model.

    Another argument raised by Plaintiffs was the unreliability of Salzberg’s methodologies, grounded in alleged flawed assumptions. Plaintiffs contended that these flaws rendered his opinion unreliable and unhelpful to the trier of fact. The Court, however, clarified that criticisms of methodology went to the weight of the expert’s opinion, not its admissibility. The Court stated that faults in methodology were a matter for cross-examination. 

    Plaintiffs specifically challenged Salzberg’s assumption that the MTA’s Trip Planner accurately reflected availability and delays associated with having to reroute or that passengers received timely notification of elevator outages. The Court deemed it reasonable for Salzberg to have relied on data pertaining to route availability and delays, which were maintained by the MTA in the regular course of business and were accessible to the public through the MTA’s Trip Planner online tool. The Court also noted Schwarz’s reliance on the same Trip Planner data in his analysis, highlighting that any inaccuracies would affect both analyses. Plaintiffs’ claims about data inaccuracy were considered arguments concerning the weight of the evidence and not to its admissibility.

    Another point of contention was Salzberg’s definition of a “successful” trip, where Plaintiffs argued that he deemed a trip successful regardless of its duration or onerousness. Salzberg’s use of the Trip Planner tool to determine alternative itineraries was defended by the Court, emphasizing that Plaintiffs could challenge the feasibility of these alternatives on cross-examination. 

    The Court also addressed Salzberg’s consideration of nearby stations when an elevator outage affected the original station, adding travel time to the itinerary whenever necessary. Plaintiffs contended that this introduced selection bias. The Court rejected this argument, stating that Salzberg reliance on the MTA’s Trip Planner to determine alternative itineraries demonstrated no selection bias.

    Moving to the critique of Plaintiffs’ expert Sylvia Morse, the Court outlined the situation. Morse had submitted a rebuttal report focusing on the real-world performance of the bus system and
    factors affecting rider experience, challenging two assumptions made by Salzberg. The first assumption was that transit users with mobility disabilities could always access buses, and the second was that the MTA’s Trip Planner accurately reflected a transit user’s travel time. Ultimately, Morse concluded that accessibility barriers and the unreliability of buses impeded or delayed the completion of alternative itineraries that relied on use of the bus system for transit users with mobility disabilities.  

    In response, Salzberg prepared a rebuttal report criticizing Morse’s reliance on anecdotal customer complaints and arguing that such complaints represented a tiny fraction of all accessible bus trips and was not a statistically valid basis to support a conclusion that the bus system suffered from widespread barriers to accessibility. Plaintiffs challenged Salzberg’s analysis, raising arguments that the Court deemed relevant to the weight of the evidence, not its admissibility.

    Plaintiffs faulted Salzberg for assuming that each complaint concerned only a single ride or bus operator. The Court noted that Plaintiffs had no evidence to support their assumption that a complaint could pertain to multiple trips, highlighting the lack of basis for this criticism. Plaintiffs’ challenge to Salzberg’s conclusion regarding Trip Planner’s notification of elevator outages in real time was also addressed. The Court acknowledged Plaintiffs’ freedom to challenge the persuasiveness of this opinion on cross-examination but found the assumption not unfounded enough to render the opinion inadmissible.

    Held 

    The Court denied the Plaintiffs’ Daubert motion to exclude Dr. Salzberg’s testimony, finding that their criticisms went to the weight rather than the admissibility of his opinions. The Court determined there was no basis to preclude Dr. Salzberg’s expert testimony under the applicable rules of evidence. 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 highlights several important considerations regarding the admissibility of expert witness testimony. A key takeaway is that critiques of an expert’s methodology ,sometimes, generally relate to the weight of the testimony rather than its admissibility. The Court emphasized that alleged flaws in an expert’s assumptions or analysis are fodder for cross-examination but do not necessitate exclusion. Furthermore, the ruling demonstrates that rebuttal experts need not have specialized expertise in the substantive field at issue if they are commenting on another expert’s methodology. Finally, the Court highlighted that rebuttal experts should bring specialized knowledge to bear on an issue rather than just speculating or relying solely on anecdotal evidence. These insights shed light on key considerations for expert witness testimony.

  • Geotechnical Engineering Expert Witness’ testimony does not fully pass Daubert Scrutiny as Court rejects his legal conclusions on contractual responsibilities

    Geotechnical Engineering Expert Witness’ testimony does not fully pass Daubert Scrutiny as Court rejects his legal conclusions on contractual responsibilities

    This case is centered around a contractual dispute between Greenup Industries, LLC (“Greenup”), the general contractor, and Five S Group, LLC (“Five S”), the subcontractor, along with the involvement of Hartford Fire Insurance Company (“Hartford”), related to excavation work on a U.S. Army Corps of Engineers (“USACE”) project.

    In 2020, Greenup was awarded a contract to execute a specific scope of work related to the United States Army Corps of Engineers’ Hurricane Storm Damage Risk Reduction Project at the Bonnet Carre Spillway, referred to as the Stockpile #1 work (the “Prime Contract”). The comprehensive work involved excavating a designated amount of fill from Bonnet Carre Spillway and transporting it to another specified location. Subsequently, Greenup initiated the process of soliciting bids from subcontractors to undertake particular aspects of the Stockpile #1 work, and Five S submitted a bid proposal to Greenup.

    On October 26, 2020, Greenup, as the prime contractor, entered into a subcontract (“Subcontract”) with Five S, the subcontractor. The terms of the Subcontract outlined that Five S would be responsible for providing labor and equipment to prepare the excavation site and excavate 1,000,000 cubic yards (“CY”) of fill material (the “Work”). The Subcontract stipulated that the excavation of 1,000,000 CY of fill material should be completed within approximately 15 months. Notably, Five S was awarded only a portion of the total Work and did not receive any trucking or delivery responsibilities; the Subcontract exclusively focused on site preparation and excavation. The Subcontract also integrated the schedule of the Prime Contract.

    Greenup retained the authority to schedule the work, and Five S had the obligation to complete the various components and the entirety of the Subcontract Work in accordance with the schedule outlined in the Prime Contract with the USACE or as directed by Greenup. Throughout the course of the litigation, Five S and Hartford consistently asserted that Five S was entitled to standby time for delays purportedly caused by Greenup. Additionally, they contended that Greenup was obligated to provide a specific number of trucks under the Subcontract.

    Now, the current motion before the Court involved Greenup’s request to strike and/or limit the expert testimony and reports of David E. Lourie, retained by Five S. Greenup argued that Lourie’s proposed testimony contained impermissible legal conclusions and should be excluded from the trial. Specifically, they disputed two of Lourie’s opinions concerning contractual interpretation and another opinion which questioned the factual support on soil moisture at the project site. Five S, in opposition, defended Lourie’s qualifications and asserted that his testimony could help in resolving the terms of the subcontract which the Court found ambiguous. The Court was tasked with deciding whether Lourie’s expert opinions should be admitted into evidence.

    Geotechnical Engineering Expert Witness

    David E. Lourie P.E., D.GE, is CEO and founder of Lourie Consultants, a geoprofessional firm based in Louisiana near New Orleans. He has been practicing geotechnical engineering and geoenvironmental consulting for nearly 40 years. He is an adjunct professor at the University of New Orleans and has been an adjunct associate professor at Tulane University.

    Discussions by the Court

    The Court analyzed the motion to exclude expert testimony in accordance with Federal Rules of Evidence 702 and 704. Federal Rule of Evidence 702 served as the governing framework for the admissibility of expert witness testimony, emphasizing the need for the expert’s knowledge, skill, experience, training, or education to assist the trier of fact in understanding the evidence or determining a fact in issue. Trial Courts are entrusted with the responsibility of acting as gatekeepers to ensure the reliability and relevance of expert testimony before allowing it into evidence, following the principles set forth in Daubert v. Merrell Dow Pharmaceuticals (1993). Daubert established that expert testimony must not only be relevant, in the sense that it pertains to a fact in issue, but also reliable. An expert’s testimony had to meet the requirement of relevance, which extended beyond the general relevance criteria specified in Federal Rule of Evidence 402. Specifically, the expert’s proposed opinion needed to assist the trier of fact in understanding or determining a fact in issue.

    In the case at hand, the primary issue raised by Greenup and was the admissibility of three specific opinions put forward by David Lourie, the proffered expert. The first legal conclusion was “Opinion One,” where Lourie made at least two ultimate legal conclusions: firstly, that the Five S bid proposal was incorporated into the Subcontract, and secondly, that it did not conflict with the other contract documents. Importantly, he stated, “[t]herefore and subject to legal interpretation, we believe FSG is entitled to compensation for its standby time in accordance with its bid proposal”. The second legal conclusion was “Opinion Two,” where Lourie contended that the primary reason for low productivity and schedule slippage was Greenup’s inability to provide the required number of trucks consistently. Lastly, in “Opinion Three,” Lourie attempted to discredit Greenup’s claims regarding the adverse impact of wet clay on Five S’s performance. He did so by presenting another legal and ultimate conclusion, stating, “Therefore, we conclude there is no basis for JW’s allegation that FSG’s ‘means and methods’ were responsible for the clays being too wet.” Importantly, this conclusion was not based on a scientific analysis but on his assertion that Greenup “should have anticipated that the excavated soils loaded into trucks could be ‘wet’ and require processing.” Notably, Greenup contended that Lourie failed to provide factual support for this assertion, and it contradicted the explicit terms of the Subcontract, which assigned all means and methods to Five S.

    The Court emphasized the well-established principle that experts were not allowed to render conclusions of law, citing Goodman v. Harris County. The specific legal issue under consideration was whether the Subcontract incorporated the Bid Proposal, which constituted a question of contractual interpretation. The Court noted that while experts could assist in resolving contractual ambiguities by shedding light on industry customs and usage, Lourie’s background and experience as a civil and environmental engineer did not qualify him to provide opinions on contractual responsibilities.

    The Court cited the case of Dickson v. Sklarco L.L.C., which addressed a similar situation where an expert outside the field of law was found to be improper in rendering legal conclusions. In this case, the Court concluded that Lourie’s testimony about the contractual obligations of the parties was outside the scope of his expertise and qualifications. The Court found that Lourie did not provide evidence or reasoning based on industry customs or practices that would support his opinions regarding the contractual obligations.  

    While the Court acknowledged that expert testimony should be admitted if it helped the jury understand complex technical matters, it was of the opinion that Lourie’s testimony went beyond this scope and encroached into the realm of legal conclusions. As such, the Court decided that Lourie’s legal opinions concerning the contractual aspects should not be admitted as expert testimony. It emphasized that Lourie was not licensed to practice law in the state of Louisiana and, therefore, was not qualified to offer legal conclusions on contractual responsibilities of the parties.

    The Court, however, found Lourie’s testimony in “Opinion Three” regarding soil moisture to be based on sufficient facts and data. Lourie had relied on USACE test results, preconstruction soil boring data, and other project documents. This met the requirements of Federal Rule of Evidence 702, as it was firmly grounded in data and the expert’s experience in the field. The Court noted that the opposing party’s disagreement with Lourie’s interpretation of the facts did not render his opinion irrelevant or unreliable. The Court highlighted that challenges to the factual basis of expert opinions were more appropriately addressed through cross-examination during the trial. The Court stated that under the adversarial system, challenges to the factual basis of an expert opinion were best addressed through cross-examination rather than exclusion.

    Held

    Greenup’s request to strike and/or limit the expert testimony and reports of David E. Lourie was granted in part and denied in part by the Court. 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 the importance of ensuring expert witnesses stay within the bounds of their expertise when testifying. The Court excluded portions of the expert’s proposed testimony that strayed into providing legal conclusions, rather than keeping to his area of technical expertise. Specifically, the engineering expert was prohibited from opining on the meaning of contract terms, whether one document was incorporated into the contract, and the contractual responsibilities of the parties. Interpreting contracts requires specialized legal knowledge the expert did not possess. However, the expert was permitted to testify regarding technical engineering issues like soil moisture content that were within his qualifications. 

    This case underscores that Courts serve a gatekeeping role in screening expert testimony to ensure it is relevant and reliable under Daubert standards. Experts cannot draw legal conclusions better left to the jury. However, experts may offer opinions on technical questions within their field of expertise that will assist the trier of fact. Challenges to the factual bases for an expert’s opinion are better handled through cross-examination rather than exclusion. Overall, this case provides guidance on confining expert testimony to the proper scope so it constructively contributes to the resolution of disputed issues.

  • Racially Polarized Voting Analysis of Voting Expert Witness found to satisfy the Daubert requirements in light of anticipated changes

    Racially Polarized Voting Analysis of Voting Expert Witness found to satisfy the Daubert requirements in light of anticipated changes

    Plaintiff, Black Louisiana voters, alongside nonprofit organizations advocating for civic engagement and social equality, filed this lawsuit formally accusing the Defendants, specifically Secretary of State R. Kyle Ardoin, and Intervenor-Defendant, the State of Louisiana, through Louisiana Attorney General Jeff Landry (collectively, “Movants”) of having violated Section 2 of the Voting Rights Act of 1965. Section 2 requires the redistricting body to ensure that voters of color have an equal opportunity “to participate in the political process and to elect candidates of their choice.” The core contention revolved around the assertion that the implemented maps resulted in an unjust denial of a meaningful opportunity for Black voters in Louisiana to elect candidates of their choice to both the State Senate and House of Representatives.

    The argument was underpinned by the application of the Gingles test, a legal framework established by the Supreme Court. According to this test, the State Legislative Maps were deemed dilutive based on three critical factors:

    Firstly, it was argued that the Black population in Louisiana was sufficiently large and geographically compact to potentially constitute a majority in six to nine additional single-majority House districts and three more single-member Senate districts. Secondly, the lawsuit contended that voting patterns in Louisiana were characterized by high racial polarization, indicating that voters tended to align along racial lines. Lastly, the Plaintiffs argued that, under the State Legislative Maps, racially polarized voting would typically lead to the defeat of Black Louisianans’ preferred candidates in majority-white districts. The lawsuit stressed upon the cohesive political alignment of Black voters in Louisiana, which faced a serious setback with the white majority’s consistent bloc voting, which routinely worked against the candidates preferred by Black voters.

    Movants demanded the exclusion of the testimony one of Plaintiff’s experts, Dr. Lisa R. Handley, under Federal Rules of Evidence 702 and 703, as well as Daubert and its progeny. The Movants did not contest Handley’s credentials as an expert in racially polarized voting. Instead, their challenge focused on the assertion that the methodologies employed by Handley were both unreliable and not entirely relevant to the case.

    Voting Expert Witness

    With over twenty-five years of experience in redistricting and voting rights, Lisa R. Handley is recognized nationally and internationally as an expert in these fields. She has served as a practitioner and academician, advising numerous jurisdictions, including the U.S. Department of Justice, and clients on redistricting. Handley’s expertise extends to her role as an expert in dozens of redistricting and voting rights court cases, working with state and local jurisdictions, redistricting commissions, and civil rights organizations.

    Discussions by the Court

    The Court was required to apply the familiar FRE 702 and Daubert analysis. It’s worth noting that a revision to Federal Rules of Evidence 702 was slated to become effective on December 1, 2023. The anticipated change clarified that expert testimony might not be admitted “unless the proponent demonstrated to the court that it was more likely than not that the proffered testimony met the admissibility requirements set forth in the rule.” Section 702(d) was amended to include language stating that the “expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” The intent of the proposed rule change was to focus and direct district courts to conduct the gate-keeping inquiry enunciated in Daubert and refrain from bypassing the admissibility determination in favor of a question of weight to be decided by a fact finder.

    Handley had been engaged by the Plaintiffs with the specific task of analyzing “voting patterns by race” to establish the foundation for two of the three elements of the ‘results test’ outlined in Thornburg v. Gingles. These elements included conducting a racial bloc voting analysis to ascertain the political cohesion of the minority group and determining if whites were consistently voting as a bloc to typically thwart the candidates preferred by minority voters.

    Handley relied primarily on the ecological inference RxC statistical technique to analyze voting patterns by race, using voter data at the precinct level to estimate such patterns. To accomplish this, she aggregated a substantial amount of election precinct data to form a comprehensive database for her statistical analyses. Movants contested Handley’s methodology, asserting that she utilized undisclosed sources for compiling her database, specifically the Voting and Elections Science Team for shapefiles and the ACLU for data aggregation.

    Movants conceded that experts might seek assistance in gathering underlying data, acknowledging that such reliance is not inherently flawed. However, they argued that relying on “undisclosed persons with unknown credentials to process data is unreliable.”

    The Court, in its findings, determined that the compilation of data by others, as relied upon by Handley, was simply that—a compilation of data. While others may have participated in gathering the data, the Court emphasized that this did not render the data insufficient. Handley testified that she directed the data gathering and its compilation, with no evidence indicating that others conducted the analysis. There was no evidence that Handley relied on the opinions or expertise of undisclosed experts beyond her own scope of expertise.

    Upon reviewing Handley’s reports, the Court found that she performed the data analysis to arrive at her conclusions, and there was no challenge to her expertise in analyzing voting patterns by race. Additionally, the Court clarified that the Plaintiffs were not obligated to disclose the underlying data sources and gatherers under Rule 26(a)(B)(2) of the Federal Rules of Civil Procedure or the Court’s scheduling order.

    In Louisiana, around 30% of voters consistently participated in early and absentee voting in statewide elections from 2012 onwards. Notably, during the November 2020 elections, 45.6% of the total votes cast were early or absentee. Similar trends were observed in the November 2019 and November 2022 elections, with 33.7% and 26.9% of overall votes cast being early and absentee, respectively. However, the Louisiana Secretary of State website only reported candidate-specific early and absentee votes at the parish-wide level, prompting Handley to disaggregate the data down to the precinct level for her racially polarized voting (RPV) analysis.

    To achieve this, Handley employed a non-peer-reviewed allocation method, distributing early and absentee votes to specific precincts within a parish proportionally based on the votes received by each candidate on Election Day in the studied areas. The Defendant contested Handley’s allocation method, asserting that it failed to cap the number of early or absentee votes assigned to each precinct based on the actual voter turnout, leading to unreliable results. The Defendant argued that this lack of capping resulted in overestimation in some precincts and underestimation in others.

    Handley justified her allocation method by emphasizing the statistically significant percentage of the total vote represented by early voting in Louisiana. She explained that, lacking specific early voting data by precinct, she assumed the same allocation of election day votes per candidate per precinct to distribute early votes. Movants and the Defendant’s expert, Dr. Tumulesh Solanky, argued that Handley’s allocation method introduced bias, resulting in over and underestimation of votes in some precincts. Movants did not argue that ecological inference (EI) was an inappropriate analysis for evaluating racially polarized voting (RPV). They acknowledged the necessity of precinct-level data for conducting the EI analysis. The crux of the dispute centered on the optimal method for de-aggregating or allocating parish-wide data to obtain usable precinct-level data.The Court recognized that certain challenges to expert testimony might pertain more to the weight of the evidence than to its admissibility. The Court, henceforth, disagreed, deeming the slight over and underestimate resulting from the subject allocation method statistically insignificant and not rendering Handley’s conclusions unreliable. The Court found that Handley’s data sets remained consistent, debunking the argument that she assumed homogeneity in voting across precincts. Contrary to this claim, day-of-voting data was accessible at the precinct level, providing a direct measure of votes cast and reflecting diverse voting patterns among precincts. Handley justified the logical proportionate allocation of early votes among precincts, emphasizing that she tested for the confidence of the data.In addressing Solanky’s criticism of the allocation method, Handley conducted tests for bias and found none, further reinforcing the reliability of her approach.

    Movants further challenged the early vote allocation method, contending that it lacked peer review. Handley countered by testifying that other experts utilized the same methodology, and Solanky, despite disagreeing with Handley’s approach, used her database for his EI analysis. Handley also submitted a rebuttal report, conducting additional analyses consistent with and supporting her RPV conclusions. The Court concluded that Handley’s allocation method wasn’t biased, cited a lack of evidence to render the analysis infirm, and deemed the allocation assumptions challengeable through cross-examination.

    Movants contended that Handley’s opinions lacked relevance and failed to aid the trier of fact because she did not conduct a district-specific racially polarized voting (RPV) analysis but focused only on seven “areas of interest.” The argument asserted that the ecological inference (EI) analysis should have been performed statewide. Movants specifically claimed that Handley’s classification of districts as “effective” or not lacked specificity regarding the required Black Voting Age Population (BVAP) threshold for effectiveness.

    The contention further emphasized that Handley’s opinion was irrelevant as it did not express the “threshold level of BVAP” necessary to afford black voters a realistic opportunity to elect their preferred candidate. Plaintiffs asserted that the State Legislative Maps were dilutive, claiming that the Black Population in Louisiana was “sufficiently large and geographically compact to constitute a majority” in six to nine additional single-majority House districts and three additional single-member Senate districts. The contention highlighted that vote dilution claims were district-specific.

    Vote dilution claims, according to Movants, required a RPV analysis specific to the areas of the state where the vote dilution is alleged to occur, as relying on statewide voting statistics to establish legally significant white bloc voting was deemed erroneous by the Fifth Circuit. Handley’s methodology involved using election results from 16 different statewide elections but confined her EI analysis to the specific election data for the voters who live within each of the seven areas of interest.

    The Court, in its findings, determined that Handley conducted a sufficiently localized analysis of the challenged districts. It concluded that Plaintiffs had demonstrated by a preponderance that Handley’s opinion testimony would assist the Court as the trier of fact. The Court found that her opinions were based on sufficient facts and data, derived from reliable principles and methods, and that she reliably applied these principles and methods to the facts of the case.

    Held

    The Court denied the motion to exclude the testimony of Plaintiff’s expert Lisa Handley. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. 

    Key Takeaways

    The Court applied the familiar Rule 702 and Daubert analysis for determining admissibility of expert testimony. The Court noted that proposed amendments to Rule 702 clarify that the proponent of the testimony must demonstrate its admissibility. The Court found that the voting expert witness’ methodology and data sources were sufficiently reliable. The fact that assistants helped compile data did not render the data or analysis unreliable. The Court found the expert’s method of allocating the parish-wide early voter data proportionally to the precincts was reasonable and did not induce bias. The Court found that Handley performed a sufficiently local analysis of the challenged districts. The Court ruled that the slight imprecision resulting from the allocation methodology was insignificant and could be addressed on cross-examination. The Court found the expert’s opinions would assist the trier of fact.

  • Court upholds the reliance of Biomedical Engineering Expert Witness on MAUDE data but rejects his opinions on medical causation 

    Court upholds the reliance of Biomedical Engineering Expert Witness on MAUDE data but rejects his opinions on medical causation 

    Plaintiff Terry Jennings-Moline filed this lawsuit against Defendants DePuy Orthopaedics, Inc. and related Johnson & Johnson entities. The case stems from hip replacement surgery Jennings-Moline underwent in January 2016, when her surgeon, Dr. Douglas McInnis, implanted a Pinnacle hip implant containing an AltrX polyethene acetabular liner (AltrX liner) made by Defendants. In February 2018, McInnis performed revision surgery on Jennings-Moline after determining the AltrX liner had dissociated, meaning it had detached from the hip implant. McInnis replaced the liner but kept the existing hip implant hardware.  

    In April 2019, Jennings-Moline filed a lawsuit against Defendants in state court, alleging various claims based on the dissociation of the AltrX liner and her resulting revision surgery. Defendants removed the case to federal court. In August 2019, Jennings-Moline underwent a second revision surgery in which the AltrX liner was replaced with a liner made by another manufacturer.  

    In February 2020, the Judicial Panel on Multidistrict Litigation transferred Jennings-Moline’s case to the Northern District of Texas for coordinated pretrial proceedings with other lawsuits concerning Defendants’ Pinnacle hip implants. In January 2023, the case was remanded back to the District of Idaho.  

    Prior to the remand, Jennings-Moline disclosed Nathaniel P. Young as an expert witness on medical device defects. In January 2022, Young provided an expert report after reviewing data on the AltrX liner from the FDA’s Manufacturer and User Facility Device Experience (MAUDE) database. Young noted 129 reports of liner dissociation with the AltrX liner prior to Jennings-Moline’s first hip surgery. Young opined the data showed the dissociation problem was specific to the AltrX liner and suggested a design defect.  

    Young also conducted a literature review using Google Scholar search engine, searching for “liner dissociation.” He reviewed 18 articles on the topic. Based on the MAUDE data and literature review, Young offered opinions about what the data showed regarding the AltrX liner, the absence of alternative causes for its failure, Jennings-Moline’s resulting physical issues, Defendants’ negligence, and that the data suggested a design defect.  

    Defendants moved to exclude Young’s expert opinions as unreliable under Rule 702 of the Federal Rules of Evidence. Defendants argued the MAUDE data was unreliable and Young’s literature review was incomplete.  

    Biomedical Engineering Expert Witness 

    Nathaniel P. Young is a biomedical and mechanical engineer with at least eighteen years of experience and expertise in medical device development, design, and testing. He did his post graduation in Mechanical Engineering from the University of Utah and holds a Bachelor of Science degree in Biomedical Engineering from the Johns Hopkins University.

    Discussions by the Court  

    The Court began by stating the legal standard that governs the admissibility of expert testimony under Rule 702 of the Federal Rules of Evidence. Rule 702 imposes certain limitations on the admission of expert testimony, emphasizing the need for the testimony to be based on specialized knowledge and to be relevant and reliable in helping the trier of fact understand the evidence or determine a fact in issue. The district court plays a critical role as the gatekeeper of the admissibility of expert testimony. This gatekeeping function requires the Court to assess both the relevance and reliability of the proffered evidence. Expert opinion testimony is deemed relevant if it has a valid connection to the pertinent inquiry, while reliability hinges on whether the knowledge underlying the testimony is based on reliable principles and methods with a solid foundation in the relevant discipline. The emphasis is on the basis for the expert’s opinion, not just their qualifications. This role of the district court was affirmed in Daubert v. Merrell Dow Pharms., Inc. 

    Notably, as of December 1, 2023, Rule 702 has been amended to clarify that the proponent of expert testimony must establish, by a preponderance of the evidence, compliance with all of Rule 702’s substantive standards for admissibility. This change aims to rectify prior instances of courts misapplying Rule 702 and failing to apply the reliability requirements correctly, considering many courts had held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, were questions of weight and not admissibility. The Rule’s amendment also emphasizes that each expert opinion must stay within the bounds of what can be reliably concluded from the expert’s basis and methodology, ensuring that expert opinions remain within the scope of a reliable application of principles and methods to the facts of the case. 

    Turning to the specific challenges raised by the Defendants regarding the expert testimony of Young, they primarily revolved around Young’s use of the MAUDE database, his literature review, and his medical causation opinions. 

    First, the Defendants argued that Young’s reliance on the MAUDE database was flawed and unreliable. They cited cases where courts have excluded expert testimony based on adverse event report data, like the MAUDE database, deeming it an unreliable source of information for proving causation. However, it’s important to note that these cases do not universally reject the use of MAUDE data for all purposes. Some courts have allowed experts to rely on the data for issues other than causation. In the case at hand, Young acknowledged the limitations of the MAUDE data and did not solely rely on it for causation opinions. Many of his opinions such as were observations of what the data showed, which could be considered a reliable application of his methodology. For instance, Young had observed from the MAUDE data that the AltrX liner had a documented history of liner dissociation; liner dissociation was rarely seen in other products; a significant number of failures occurred before Jennings-Moline’s surgery; and the failure occurred throughout the product’s history. From these observations of the MAUDE data, Young opined, for example, that the dissociation problem was specific to the AltrX liner; Defendants had significant time to address the issue; a manufacturing defect was unlikely; and the AltrX liner’s design caused its dissociation. Therefore, the Court found Young’s methodology regarding the MAUDE data to be reliable and within the bounds of a permissible application of Rule 702. 

    Additionally, the Defendants challenged Young’s literature review, criticizing the extent of his review and his reliance on abstracts and case reports. The Court noted that such challenges went to the weight, not the admissibility of the testimony. The Court found that Young’s review was likely sufficient to support his design defect opinion, and therefore, it did not render his opinions unreliable. 

    However, the Court identified two instances where Young ventured into the realm of medical causation opinions, which he was not qualified to make. The first opinion that the absence of failures with other companies’ products strongly suggested that the failure of the AltrX liner was not due to physician placement or technique or due to patient movement or misuse was Young’s statement about the absence of alternative causes for the AltrX liner’s failure, which was specific to the surgeries of Jennings-Moline and not reliably based on Young’s review of the MAUDE data or a literature review. The second consisted of Young’s assertion that Jennings-Moline’s additional procedures have resulted in physical issues associated with multiple orthopedic procedures, is a medical opinion that Young is not qualified to make. The Court concurred with these objections and ruled that Young may not testify about the absence of alternative causes or Jennings-Moline’s physical issues. 

    At oral argument, Defendants had characterized Young’s statement that the design of the AltrX liner in the Pinnacle cup resulted in the disassembly of Jennings-Moline’s two hip replacements necessitating revision surgeries as an improper medical causation opinion. However, the Court found that the liners’ disassembly and Jennings-Moline’s resulting surgeries were undisputed facts testified to by her surgeon, McInnis. Because McInnis had testified that the liner failed and Jennings-Moline underwent surgeries as a result, and Defendants did not dispute those facts, the Court found Young’s statement about the liner’s disassembly and resulting surgeries was not an improper medical causation opinion. Young could rely on those undisputed facts.

    Furthermore, the Defendants argued that Young failed to account for the number of liner sales when calculating and comparing ‘failure rates’. Young countered that he did not have an opinion on failure rates, a fact that the Defendants acknowledge. As a result, the Court determined that Young’s failure to consider the number of liner sales did not render his opinions unreliable, as he is not making claims related to failure rates.  

    Finally, Defendants argued that Young should not be allowed to express his opinion that Defendants were negligent. In Young’s expert report, he asserted, “Due to DePuy Orthopaedics’ negligence and their failure to rectify the faulty liner design, Ms. Jennings-Moline had to endure two corrective surgeries within a two-year span to address liner dissociation.” Jennings-Moline concurred with the request to remove this statement from Young’s report and testimony. The Court excluded Young’s negligence opinion, since Jennings-Moline agreed it should be struck. 

    Held 

    The Court ruled that Young was barred from testifying about Defendants’ negligence, the absence of alternative causes for the AltrX liner’s dissociation in Jennings-Moline’s hip replacement, or her physical issues associated with multiple orthopedic procedures. However, Young could testify about what the MAUDE data and literature showed and opine on whether or not the data suggested a design defect. 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 illustrates the importance of ensuring expert witness opinions are relevant and reliable under Rule 702 of the Federal Rules of Evidence. The Court excluded portions of the Plaintiff’s expert’s opinions after finding they were unsupported medical causation opinions beyond his expertise. This demonstrates experts should not testify on matters outside their specialized knowledge.

    However, the Court found that Young could reliably use the FDA’s MAUDE database for its adverse events reports, despite its limitations, as long as Young’s methodology in searching the MAUDE’s database was reliable.

  • Credentials and subjective opinion alone found insufficient for admitting expert testimony; Court rejects the testimony of transportation safety expert witness in personal injury suit 

    Credentials and subjective opinion alone found insufficient for admitting expert testimony; Court rejects the testimony of transportation safety expert witness in personal injury suit 

    In a recent update, the Court has vindicated James E. Lewis by noting that it did not doubt Lewis’ experience and insights into the trucking industry. Read our updated coverage here:

    https://expertwitnessprofiler.com/james-e-lewis-transportation-safety-expert-witness-stands-vindicated-judge-confirms-exclusion-was-procedural-and-unfortunate

    In response to our coverage of this court opinion, we received the following response from James Lewis, the expert witness referenced in this case. Given the unusual circumstances of this challenge, we believe it is important to put forth the expert’s perspective.

    The motion was filed after Plaintiff’s counsel had withdrawn from the case. James Lewis was unaware of the motion and it therefore went unchallenged. The disqualification was not on the merits, it was simply unopposed and he is working to have it reconsidered. When the judge was contacted about this matter, he specifically responded that “The Court does not doubt Lewis’ expertise and insight into the trucking industry.”

    This case arises from a tractor-trailer truck accident in which the Plaintiff Rodney Bibbs, an independent contractor truck driver, was injured when the load in his trailer allegedly shifted, causing him to lose control and overturn his truck. Bibbs was hired to transport a pre-loaded trailer of packaged beer from the defendant Molson Coors’ brewery in Virginia to Ohio. While passing through West Virginia, Bibbs claims the load suddenly shifted, causing the accident and his injuries. After initially failing to timely disclose any liability expert to support his claims, the Court allowed the Plaintiff to disclose a single liability expert, James E. Lewis, under Federal Rules of Civil Procedure 26(a)2.  

    Bibbs sued Molson Coors for negligence in packing and loading the beer pallets onto the trailer, alleging this caused the load shift and subsequent accident. Molson Coors filed a motion for summary judgment. 

    In the legal matter at hand, the Plaintiff is a commercial truck driver who worked as an independent contractor for a trucking company named High Horse Logistics. High Horse Logistics was hired by J.B. Hunt, a well-known freight and logistics company, to transport a pre-loaded trailer of packaged beer. The journey began at Molson Coors’ Shenandoah Brewery, which is located in Elkton, Virginia, with the destination being a beer distributor located north of Columbus, Ohio. The date of the incident was May 19, 2020. The truck driver in question, Bibbs, had embarked on this particular transportation task. 

    While in transit, and specifically while passing through Ritchie County, West Virginia, on a four-lane divided highway, an unfortunate event occurred. The trailer’s beer load, which Bibbs was responsible for transporting, allegedly shifted spontaneously. This shift in the load led to Bibbs losing control of the truck and trailer, ultimately resulting in the truck and trailer overturning in the highway’s median. Consequently, this accident led to Bibbs claiming that he sustained multiple injuries as a result of the incident and the record does not indicate the number of libations tragically lost. 

    Defendant, Molson Coors, filed a motion to exclude the testimony of the Plaintiff’s liability expert witness, James E. Lewis. Molson Coors raised objections to Lewis’ qualifications, methodology, and the reliability of his opinions. Molson Coors argued that Lewis was not sufficiently qualified to offer expert opinions in the relevant fields. 

    Transportation Safety Expert Witness 

    James E. Lewis holds a Masters of Education degree with a specialty in Curriculum Development from the University of Maryland as well as a Bachelors of Applied Science in Criminal Justice and a Bachelors of Applied Medical Science in Psychology/Sociology, also from the University of Maryland. He is currently employed as a Transportation Safety Expert for Evidence Solutions, Inc. He also works as the owner of Total Transportation Training, providing training and consulting services related to Department of Transportation (DOT) compliance and safety standards in the trucking and towing industries.  

    Discussions by the Court 

    The Court first set forth the legal standard for admitting expert testimony under Federal Rule of Evidence 702. Experts may testify if their knowledge will help the trier of fact, the testimony is based on sufficient facts, it is the product of reliable methods, and those methods were reliably applied to the facts. Proffered expert opinions that fail to meet this standard are inadmissible under Daubert. Courts have broad discretion to determine if the facts relied upon by an expert are sufficient to support their opinion. While experts have latitude, the existence of sufficient facts and a reliable methodology are mandatory for admissibility. A key factor in assessing reliability is whether the methodology can be tested or subjected to peer review. But credentials and subjective opinion alone, without more, are insufficient for admissibility, as was held in Viterbo v. Dow Chemical Company. 

    Turning to Lewis’ testimony, the Court noted his conclusion that Molson Coors was negligent in packing the pallets, causing the load shift and Bibbs’ accident. To support this, Lewis cited an interview with Bibbs, impressions from Molson Coors’ counsel, personal anecdote, and his review of some photos. 

    Molson Coors argued that Lewis was not sufficiently qualified to offer expert opinions in the relevant fields. Despite Lewis’ self-identification as a “Transportation Safety Expert,” Molson Coors contended that his educational and professional background did not align with the specific subject matter of the case. Lewis held degrees in psychology/sociology, criminal justice, and a Master of Education with a specialty in curriculum development. Importantly, Lewis had no experience teaching courses or holding professorial positions in cargo loading, accident reconstruction, or related fields. He is also not an accident reconstructionist and had no engineering or similar background. 

    Molson Coors highlighted that Lewis had never worked for a brewer, had no experience loading or securing products at a brewery, and had no relevant degrees or certifications. Additionally, Lewis had never testified as a packaging, cargo loading, or accident reconstruction expert in any prior case. Molson Coors emphasized that the case in question was concerned with Lewis’ first-hand involvement, or lack thereof, of offering expert opinions related to load securement, loading methodology, and the role of cargo in a tractor-trailer accident. All of these factors called into question Lewis’s qualifications to provide expert testimony in this case. 

    The Court inferred that Lewis’ expert report can be characterized as no more than a highly informed opinion. While Lewis’ industry experience makes him an “expert” in the colloquial sense, he did not demonstrate the reliable methodology required to be considered an expert under Rule 702. Without evidence that Lewis used a reliable methodology, rather than just his credentials and subjective opinion, he could not be qualified as an expert witness. 

    Bibbs’ liability expert, James E. Lewis, had opined that Molson Coors poorly wrapped and secured the beer load without pallets and had prohibited Bibbs from checking the load securement on the loaded trailer, which he believed caused Bibbs’ accident. He did not deny that pallets were wrapped but contended that they were wrapped improperly and failed to provide any specific criteria for adequate pallet wrapping. Additionally, he lacked knowledge about the type of wrap Molson used or their typical pallet-wrapping methods for this case. 

    Regarding the absence of pallets, Lewis had surmised, based on a single photograph, that Molson did not use pallets, without having any context or details about the photograph. This opinion contradicted the information on the bill of lading, which had indicated that the beer was loaded on pallets. 

    Lewis’ opinion about Molson prohibiting Bibbs from checking the load was also noted. However, he did not provide any details about what Bibbs would have done differently or whether such an action would have made any difference in preventing the accident. 

    Lewis conducted an interview with the Plaintiff, Bibbs, during which he did not record notes or create a verifiable record. This interview forms a significant basis for his opinions. However, Lewis was unaware of Bibbs’ contradictory deposition testimony, and his failure to consider this sworn testimony raises questions about the reliability of his methodology. 

    During the Defendant’s deposition, Lewis revealed several key points about his involvement in the case. First, he acknowledged that he was unaware of any formal standards that could guide shippers in selecting suitable pallet wrapping and had not assessed whether such standards existed. Additionally, he stated that he did not physically inspect the vehicle or the crash site related to the accident. Lewis also emphasized that the only photos he analyzed were those provided to him, and he did not conduct any independent investigation or testing of items relevant to the case, including the tractor-trailer involved in the accident. Furthermore, he confirmed that he had never conducted any form of accident reconstruction to identify potential causes of the accident. His conclusion that the wrapping was faulty was solely based on examining the pallets after the accident and reviewing the photos provided to him. 

    The Defendant argued that Lewis’ opinions have not been subjected to any independent testing or validation. Without conducting any accident reconstruction, testing, or analysis in this case, Lewis’ conclusions are deemed to be unsupported speculation. His opinions are not grounded in the scientific or analytical rigor that characterizes expert testimony in relevant fields. 

    Because  Lewis could not be qualified as an expert witness, his testimony—insofar as it is offered as expert testimony—was held to be inadmissible by the Court. 
     

    Held 

    The Court granted Molson Coors’ motion to strike Lewis as an expert witness. Without the necessary expert testimony, Bibbs could not maintain his negligence claim, entitling Molson Coors to summary judgment as a matter of law. The Court granted Molson Coors’ motion for summary judgment and subsequently dismissed the case with prejudice. 

    Key Takeaways 

    This case illustrates several important requirements for expert witness testimony to be admissible under Rule 702 and Daubert. First, extensive credentials and subjective opinion alone are insufficient – the expert must employ a reliable, testable methodology applied to the facts of the case. Second, the expert cannot simply rely on limited facts like interviews and documents provided by counsel. Independent testing, investigation, and evaluation of the evidence is required. Third, the expert must actually inspect and analyze the physical evidence firsthand if possible, rather than just reviewing photos and summaries. Fourth, the expert must rule out alternative causes and engage in some accident reconstruction or testing of their theories – speculative subjective opinions are inadequate. Finally, the expert must be able to identify standards or research in their field supporting their conclusions. In summary, admissibility requires the expert use an objective, verifiable methodology on sufficient facts, not merely credentials and subjective impressions. 

  • Court admits the testimony of Toxicology Expert Witness on account of basing her conclusions regarding the Decedent’s Comparative Fault and Intoxication on a reliable premise in Wrongful Death Suit

    Court admits the testimony of Toxicology Expert Witness on account of basing her conclusions regarding the Decedent’s Comparative Fault and Intoxication on a reliable premise in Wrongful Death Suit

    The Plaintiff, Herbert Johnson, as the Personal Representative of the Estate of Herbert Johnson III, had brought this action pursuant to the Section 768.21, Florida Statutes (the Florida Wrongful Death Act), alleging that East Coast Waffles d/b/a Waffle House (hereafter, “Waffle House”) negligently owned, controlled, managed, or maintained the premises where his son, Herbert Johnson III was shot and killed. 

    On or about January 15, 2018, Herbert Johnson III was shot to death at the Waffle House on 11749 East Colonial Drive, Orlando, Orange County, Florida. At the time of the incident, Plaintiff Herbert Johnson III was picking up takeout food from Waffle House with his friends, Rickie Calderon and Calvin Savage. During the time they were waiting for their to-go food, the Waffle House had “loud and belligerent” people inside, with one person telling another person to “come outside.” This rambunctious behavior inside the Waffle House, as described by Rickie Calderon, was confirmed by Waffle House Employees Stephen Heidenreich, Robin Marcus, and Viera Allian. After Herbert Johnson III and his friend exited the Waffle House and got into a black Camaro, Herbert Johnson III was shot and killed by Al-Jalil Byrd in the parking lot. 

    Herbert Johnson III’s body had been taken to the District Nine Medical Examiner’s Office. The medical examiner, Jennifer Park, had examined the body and determined that Herbert Johnson III’s cause of death was homicide by multiple gunshot wounds. In the toxicology report from Jennifer Park, the peripheral sample had shown .115 g/dL (grams per deciliter) of ethanol, and the vitreous blood sample had shown .102 g/dL of ethanol. Two of the Defendant’s affirmative defenses were (1) that Herbert was “comparatively at fault” for his own death because he “was under the influence of… alcohol at the time” and (2) that he was “more than [fifty] percent at fault for his… own harm” because he “was under the influence… to the extent that [his] normal faculties were impaired and/or [he] had a blood or breath alcohol level of 0.08 percent or higher.” 

    Dr. Janci Lindsay had been retained by Waffle House in her capacity as a biochemist to assess the toxicology report authored by the medical examiner and to opine whether Herbert Johnson III’s alcohol level had contributed to him being shot and killed by Al-Jalil Byrd. The Plaintiff had moved to exclude Lindsay’s opinions under Daubert, challenging her qualifications, the scientific reliability of her methodology, and the helpfulness of her opinions to the jury. 

    Toxicology Expert Witness 

    Janci Chunn Lindsay is a consulting toxicologist and full member of the Society of Toxicology. She obtained a doctoral degree in Biochemistry and Molecular Biology from the University of Texas. She has advised clients about exposure to pharmaceutical and alcohol exposure for over 17 years. Since 2006, she has been an expert witness in numerous civil and criminal cases. 

    Discussions by the Court 

    The Plaintiff had conclusorily claimed that Lindsay did not have the requisite knowledge to form an opinion regarding the role, if any, alcohol played in Herbert’s death. However, to the extent that the Plaintiff had challenged Lindsay’s qualifications as a toxicologist, the Court found that the Defendant had established that her experience as a Director of Toxicology and Molecular Biology specializing in forensic toxicology involving drug and alcohol-related incidents for 13 years in addition to her practical experience consisting of regularly performing retrograde and anterograde extrapolations to approximate drug and alcohol levels at the time of an incident using accepted scientific formulas and techniques qualified her to provide her opinions in this case. 

    The Plaintiff had also made the unsupported assertion that Lindsay’s opinions were “more likely to confuse or mislead” than to help the jury. However, Lindsay’s opinions could have assisted the jury in determining whether the comparative-fault affirmative defenses applied, as well as related issues. Notably, Florida Statutes Section 768.36(2), stated that in any civil action, a Plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The Plaintiff was under the influence of any alcoholic beverage or drug to the extent that the Plaintiff’s normal faculties were impaired or the Plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug, the Plaintiff was more than [fifty] percent at fault for his or her own harm.” 

    The Plaintiff had primarily challenged Lindsay’s opinions on reliability grounds. The Plaintiff had criticized the bases of some of her opinions and had pointed to supposed contradictions involving others. Under the Defendant’s theory of Herbert’s death, Herbert had acted aggressively toward his shooter before he was shot, possibly hitting the man. The Plaintiff had argued that Lindsay’s opinions should be excluded because she had based them on the Defendant’s theory, which, according to the Plaintiff, was not supported by the police report. The Plaintiff had also faulted Lindsay for providing the “fully speculative and unsupported” opinion that “when any individual has alcohol in their system, alcohol influences all of that person’s decisions.” The Plaintiff had further contended that Lindsay contradicted herself by opining both that an individual’s level of intoxication “is subjective” and that “all people are affected by alcohol in the same way.” The Plaintiff had also asserted that, although Lindsay admitted that “she had not been retained as a [human-factors] expert,” she had opined that “human factors may have caused the alleged aggression that could have occurred due to alcohol.”  

    The Court had found that the Plaintiff had correctly identified the factors for determining a methodology’s reliability, which involved ascertaining (1) whether the expert’s theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. However, the Court had noted that the Plaintiff had disregarded these factors. He did not discuss the methodology’s error rate or whether the methodology has been tested, subjected to peer review and publication, or generally accepted in the scientific community.  However, the Defendant established that Lindsay had looked to data and facts in this case. Specifically, the District Nine Medical Examiner’s Office had performed the blood testing of Johnson on January 15, 2018, which had shown positive results for alcohol in Johnson’s system. According to the Examiner’s Office, Johnson’s vitreal fluid BAC was 0.102%, which was lower than Johnson’s peripheral blood BAC of 0.115%. According to Lindsay’s experience and education, the level of alcohol found in Johnson’s vitreal fluid had been representative of his intoxication at the time of his death. 

    After evaluating the Examiner’s Office’s conclusion, Lindsay had applied those conclusions to established publications, particularly referencing board-certified Forensic Toxicologist, Dr. Kurt Dubowski’s “table of Stages of Alcoholic Influence,” which was used by peers to approximate various psychomotor effects at varying alcohol levels. Hence, Johnson’s blood test results had supported a scientific finding that a sufficient amount of alcohol was found in his body for an expert to opine to impairment of judgment and concentration, distorted perception and reasoning, loss of coordination, and emotional or behavioral control, which resulted in risk-taking behavior. The methodology that Lindsay had used to form her opinions had been based on testing that was generally accepted in the field of toxicology and reliable. Lindsay’s opinions had been based upon the data from the Examiner’s Office, as well as generally accepted and peer-reviewed research, and her training and experience. 

    Additionally, the Defendant had highlighted a crucial missing fact from the Plaintiff’s Motion: Johnson had exited the vehicle he was in to engage with the shooter. This had been one of the key actions by Johnson that had contributed to his death and had supported Lindsay’s conclusion that his alcohol-related impairments would most likely have influenced Johnson’s decision to get out of the vehicle he was in and confront the three individuals, rather than leave the scene. 

    Held 

    The Court denied the Plaintiff’s Daubert motion to exclude Janci Chunn Lindsay’s expert opinions. 
     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 illustrates the importance of establishing an expert’s qualifications, methodology, and helpfulness to the jury when offering expert opinions. The party offering the expert bears the burden of proof on these issues. Strong qualifications based on education, training, and experience are key. The expert’s methodology must be reliable under the Daubert factors – testability, known error rate, peer review/publication, and general acceptance. The opinions must also help the jury determine facts at issue in the case.  

    Critiquing an expert’s application of methodology is generally better suited for cross-examination rather than exclusion. Minor contradictions or flaws in how an expert applied a reliable methodology typically go to weight rather than admissibility.  

    The Court’s gatekeeping role under Daubert seeks to admit quality expert testimony that will properly assist the jury. This role is not served by excluding testimony merely because some critique can be made regarding the expert’s application of an otherwise reliable methodology. Such critiques are for the jury to consider in weighing the expert opinions. As long as qualifications, methodology and helpfulness are reasonably established, exclusion is inappropriate. 

  • Evidentiary Standard of Reliability is lower than the merits standard of correctness;Court admits the testimony of Human Factors Expert Witness regarding the adequacy of the product’s warning labels in this failure-to-warn suit

    Evidentiary Standard of Reliability is lower than the merits standard of correctness;Court admits the testimony of Human Factors Expert Witness regarding the adequacy of the product’s warning labels in this failure-to-warn suit

    In a products liability action, Plaintiffs Timothy and Jean Moore filed a failure-to-warn lawsuit against Defendant Combe Inc., the manufacturer of the Just For Men brand of hair dye products. The Moores alleged that Combe knew or should have known that their products could cause vitiligo and/or skin depigmentation but failed to adequately warn users about this risk. They specifically pointed out that Just For Men Control GX Grey Reducing Shampoo (“Control GX”) contains a chemical known as p-Phenylenediamine (“PPD”), which can pose health risks when it comes into contact with the skin, one of these risks being vitiligo. 

    Timothy Moore had been using Control GX since 2017, and in the subsequent years, he developed vitiligo. He claimed that he only became aware of the connection between PPD and vitiligo in 2020 and argued that Combe’s product packaging, inserts, and marketing materials did not adequately convey the risk associated with their products. 

    During the discovery process, the Moores presented Lila Fitzgerald Laux, Ph.D., as an expert witness in the field of human factors engineering. In her report, Laux asserted that Just For Men products failed to provide sufficient warning about the risk of vitiligo. She explained that an effective safety warning should be explicit, legible, prominently located, and conspicuous enough to capture the potential user’s attention. Laux went on to state that the warning label on the Control GX product did not meet these criteria. She further opined that had Combe made a warning about the potential for vitiligo and other skin conditions more prominent and conspicuous on the packaging, Moore would not have purchased and, consequently, not used the product. 

    Combe challenged both the relevance and reliability of Laux’s testimony under Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., and its progeny. Combe argued that Laux’s opinions regarding the adequacy of the Control GX warning labels and their impact on Moore’s purchasing decision were not relevant to the facts of the case. They also questioned the reliability of her methods, contending that she had not provided a discernible methodology for reaching the conclusion that the Control GX warning labels were inadequate or that differently designed warnings would have influenced Moore’s decision to purchase the product. 

    Human Factors Expert Witness 

    Dr. Lila Fitzgerald Laux has extensive experience in the field of human factors engineering. She pursued her Bachelor of Arts degree from Rice University and a Master of Science degree in Applied Psychology from the University of Southwest Louisiana. Furthering her education, Laux went on to earn a Doctor of Philosophy degree in Industrial Psychology/ Human Factors Engineering from Rice University. She served as the Principal Human Engineer in the Alion Science & Technology, HSI & Decision Support Operation till 2020 and also as a Lead Human Factors Engineer in US West Technologies/Qwest Communications before that. In addition to her work experience, Laux has published research studies in her field of expertise and established herself as a knowledgeable authority in human factors engineering.  

    Discussions by the Court 

    Combe had argued that Timothy Moore’s acknowledgment during his deposition that he never read the existing warnings on Control GX’s packaging, label, or insert rendered Laux’s opinions on the adequacy of those warnings irrelevant and should be excluded. However, the Moores pointed out that Combe had previously made a similar argument in its motion for summary judgment, which was rejected. 

    The Court’s order on the summary judgment motion noted that Moore did not simply admit to failing to read the warning label but described it as nearly illegible. He explained that the text was so small that he couldn’t read it without two pairs of glasses, and it was only legible during the deposition when it was enlarged on a screen. This led to the identification of a genuine issue of material fact regarding the adequacy of the Control GX warning label. Laux’s expert testimony addressed this factual dispute, as she emphasized that effective warning labels should be explicit, legible, prominently located, and conspicuous, and she opined that Combe’s labels did not meet these criteria. 

    In response, Combe cited two non-precedential cases as precedent, which rejected expert testimony in failure-to-warn cases when the Plaintiff admitted to not reading the warning labels. However, these cases were deemed inapplicable. In the first case, Gebhardt v. Mentor Corp., the Plaintiff was a physician who did not read the warning label because he was knowledgeable about the device’s risks and benefits based on personal experience, medical literature, and interviews with the device’s inventor. In contrast, Timothy Moore was not a “learned intermediary” regarding the risks of the product and expressed surprise at the severity of the warnings on a shampoo product. 

    The second case, Atanassova v. Gen. Motors LLC, appeared more similar on the surface as it excluded the testimony of two expert witnesses, including Laux, on the adequacy of a warning in a car’s owner manual. However, the Court in that case had granted summary judgment on the failure-to-warn claim, reasoning that a different warning label would not have made a difference. In the current case, a genuine issue of material fact existed on this point, making Laux’s testimony highly relevant. 

    Combe had argued that Laux’s conclusions regarding the inadequacy of the Control GX warning labels and the potential impact of differently designed warnings on Moore’s purchase decisions lacked a factual basis and amounted to unsupported assertions (ipse dixit). However, contrary to Combe’s characterization of her testimony, Laux did provide a foundation for her expert opinions. 

    In her report and deposition, Laux outlined her extensive career in the field of human factors engineering, spanning more than 30 years. During this time, she had engaged in research, reviewed pertinent literature, consulted with corporate clients, and assessed the adequacy of various warning labels. Drawing on her specialized experience, she detailed a three-step process for “developing and evaluating optimal warnings and instructions,” which included: 

    1. Evaluating the user population and identifying potential difficulties or errors in consumer decision-making resulting from human limitations in assessing the risks and consequences associated with product use. 
    1. Assessing product-related factors that influence or shape a consumer’s ability to make informed decisions. 
    1. Evaluating the interaction between the consumer and the product interface, identifying where consumers must make decisions and how the interplay between consumer characteristics and the product interface affects consumer safety behavior. 

    After evaluating the Control GX warning label in accordance with the outlined process, Laux arrived at the conclusion that the label was “inadequate to provide the user population with the information they need.” It is important to note that the ultimate determination of the credibility of this testimony and the persuasiveness of her opinion falls to a jury. The Court recognized that the evidentiary standard of reliability is lower than the merits standard of correctness, citing In re Paoli R.R. Yard PCB Litigation. 

    Combe made several other arguments in an attempt to discredit Laux’s testimony. Firstly, they contended that Laux had not examined an actual Control GX box, tube, or insert, but had based her opinions on “blurred photographs” of the product’s warning labels. However, Combe did not claim that these photographs, which were included in the expert report, misrepresented the Control GX warning labels. The Court’s own examination confirmed that the photographs were legible. The issue of whether Laux’s examination of the actual product might have led to a more informed opinion concerned the credibility of her testimony rather than its reliability. 

    Secondly, Combe argued that Laux had not compared the Control GX warning labels to those used on other hair dye products, suggesting that this omission rendered her methodology inherently questionable and unreliable. The Court, however, held that such a comparison was inconsistent with the appropriate level of flexibility required by Rule 702. 

    Lastly, Combe objected to Laux’s repeated references to the American National Standards Institute (ANSI) standard Z535.4, a voluntary standard that provides guidance to manufacturers on the design of product safety labels. The Court noted that the question under Daubert was not whether an expert’s opinions were correct, but whether they were reliable. Combe did not offer any explanation for why the relevant ANSI standard, even if voluntary, should be considered an unreliable factor when evaluating the adequacy of warning labels. Laux’s testimony clarified that her opinion was not solely based on Control GX’s compliance with ANSI Z535.4 and that her analysis took various factors into account. The accuracy of her analysis was ultimately a matter for the jury to determine. The consideration of a relevant industry standard need not be binding to be reliable, and Combe provided no alternative explanation for why Laux’s reference to it was inappropriate. 

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Lila Fitzgerald Laux. 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 expert witness testimony can be deemed sufficiently reliable under Daubert even if the expert appropriately relies on their experience rather than a rigid comparative methodology. The Court emphasized that the Daubert bar for reliability is flexible and lower than the ultimate correctness standard. Additionally, the case shows that expert testimony can be relevant and helpful to the jury even when factual disputes exist regarding the underlying basis for the opinions. Finally, the Court afforded deference to the jury’s role in determining the credibility and persuasiveness of expert opinions, rather than acting as a “replacement” for the fact finder. So long as reliability and relevance thresholds are met, Courts will likely allow experts to present opinions even if questions exist that go to the weight of the testimony.