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  • Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    This case involved a putative class action lawsuit filed by four Plaintiffs – Nicole Krause-Pettai, Christy Stevens, Kevin Bolden, and Errol Carreon – against Defendant Unilever United States, Inc. The Plaintiffs claimed that they were deceived into buying Unilever’s deodorant and antiperspirant products because the oversized packaging created the illusion that the products contained more than competitors’ same-weight items.  

    The Plaintiffs brought claims under California’s consumer protection laws – the Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL). They alleged that much of the volume in Unilever’s products was nonfunctional slack fill. The Plaintiffs sought class certification on the basis that Unilever engaged in unfair and deceptive trade practices.   

    Unilever moved for summary judgment and also filed motions to exclude the testimony of the Plaintiffs’ two expert witnesses, Dr. Sher Paul Singh and Dr. Forrest Morgeson III. Unilever argued that federal law preempted the Plaintiffs’ state law claims regarding slack fill in drugs and cosmetics. This was an issue of first impression in the Ninth Circuit.   

    Packaging Expert Witness  

    Sher Paul Singh, Ph.D. is a highly qualified packaging expert with over 26 years of faculty service at the School of Packaging, Michigan State University. He has been widely published on packaging topics, has testified on these subjects, and provided consulting services to companies on a wide range of packaging issues, including those related to slack-fill.

    Marketing Expert Witness 

    Forrest V. Morgeson, III, PhD. is Associate Professor in the Department of Marketing, Eli Broad College of Business, Michigan State University. He also serves as the Co-Director of the Doctoral Program in Marketing. Morgeson teaches marketing management, marketing strategy, and marketing research courses to graduate students. Morgeson’s research focuses on customer satisfaction and customer experience measurement and management. He completed his Ph.D. in 2005 from the University of Pittsburgh.

    Discussions by the Court 

    The Court first addressed the issue of federal preemption. It held that while California’s specific slack fill regulations were preempted by the federal Food, Drug, and Cosmetic Act (FDCA), the Plaintiffs could still bring state claims alleging that the degree of slack fill rendered Unilever’s products misleading under the general federal prohibitions against misleading containers. 

    The Court then turned to Unilever’s motions to exclude the opinions of both of the Plaintiffs’ expert witnesses – Sher Paul Singh and Forrest Morgeson III. 

    Singh, serving as an expert witness, asserted that the accused products contained roughly 20% to 25% less product compared to their available capacity, and he categorized this reduction as entirely nonfunctional in nature. 

    For Singh, the Court found several problems with the facts and data underlying his opinions. First, Singh’s opinions about the “accused products” only seemed to be based on testing two of the three product designs at issue. The data for the third design was omitted due to an alleged “minor copying error.” Second, among the designs Singh did examine, he only looked at two samples of each kind of deodorant or antiperspirant stick. The Court stated that a sample size of two was a statistically weak basis to support such broad conclusions.  

    Defendant also questioned the the lack of clarity regarding the precise number and types of products that Singh had tested and examined. His testimony on this matter was inconsistent, as he alternately mentioned having sampled “ten sticks total” or conducting tests at two different times with “ten sticks” once and “eight sticks” another time. Additionally, he mentioned having analyzed around “20, 25” sticks, but this data was not documented in his report. The tables he used to summarize his “weight” and “volume” calculations did not provide much insight into the underlying data, and it remained unclear whether his findings were based solely on the five sticks identified in the first table or if there was overlapping data between the two tables. Furthermore, the mention of five brand names suggested the potential inclusion of various products with differing formulations, sizes, and scents. Singh’s testimony regarding the number of product containers he “examined” was similarly inconsistent, with estimates ranging from 30 to 60. He meant for his product photographs next to tape measures to constitute “visible data,” but could not recreate the complete dataset during his deposition.  

    The Court also found problems with Singh’s testing methodology and application. His report detailed how he determined the “percentage of slack fill” by measuring the relative heights of product containers and their enclosed products. He also mentioned using an “electronic balance” to weigh the deodorant after extracting it from the container. However, it was only during his deposition that he shed light on the process he followed to extract the product from the casings, which yielded unpredictable results. Before extraction, he mentioned placing the deodorant in the freezer for about ten minutes, followed by a refrigerator set to approximately 35 to 45 degrees for an unspecified duration. Some samples did not come out as expected, and some even broke. Additionally, there were instances where the product was left in the bottom of the container, making it impossible to extract. The number of deodorant sticks affected by these procedures remained unknown, and Singh did not clarify how he overcame these practical challenges or ensured a complete specimen for measurement.

    Unilever raised concerns, particularly regarding the volume test. They argued that Singh inexplicably removed the twist-bottom dispensing “platform and internal components” before calculating a deodorant container’s space, thereby inflating his “maximum capacity measurements” and failing to account for the volume or space occupied by the removed components. The Plaintiffs did not provide a direct response to this accusation. Instead, they pointed out that both sides’ experts found roughly the same amount of total empty space in their analyses. However, the crucial distinction in the case was nonfunctional empty space, and here, the calculations sharply diverged: Unilever’s expert contended it was 0%, while Singh asserted it was 100%.

    In any event, it is unclear which brands and stick designs Singh subjected to this debatable measurement program. 

    Overall, the Court held that Singh’s opinions failed to meet the reliability requirements of Federal Rule of Evidence 702. His opinions were not based on sufficient facts or data. Nor were his principles and methods reliable or reliably applied. Thus, the Court excluded Singh’s testimony. 

    Morgeson provided expert opinions regarding consumer behavior, including the following assertions: Firstly, consumers were inclined to spend limited time scrutinizing package labeling information and typically assumed that larger packages contained more product; Secondly, consumers seldom examined or comprehended net weight labeling on product packages; Thirdly, owing to these consumer tendencies and their limited familiarity with slack fill, Morgeson suggested that the features of Unilever product packaging implied that Unilever customers received less product than they had expected.

    For Morgeson, the Court questioned whether his general expertise in consumer behavior could be reliably applied to opinions about Unilever’s specific consumers. Morgeson did not gather any facts or data related to the products at issue . He referenced no studies concerning the deodorant and antiperspirant market. The Court held that without a foundation explaining why research on food consumers could be extrapolated to this market, there was too great an analytical gap between Morgeson’s data and opinions.  

    The Court found that Morgeson applied no discernible scientific methodology. He merely reviewed general materials and prior research. But he did not analyze any specific data related to Unilever’s products or consumers. As such, the Court held that Morgeson’s testimony was not based on sufficient facts or reliable methods, and excluded his opinions. 

    The Court also granted summary judgment to Unilever on the Plaintiffs’ negligent misrepresentation and fraudulent and unfair prongs claims, because the Plaintiff not only failed to show that general consuming public and targeted consumers would be misled but the Court also could not find any predicate violation of law despite the Plaintiffs’ allegations and the Plaintiffs were also unable to prove the labeling or packaging was false.

    Held  

    In conclusion, the Court granted Unilever’s motions for summary judgment and to exclude expert testimony. It denied the Plaintiffs’ motion for class certification as moot in light of the summary judgment ruling. The Court entered judgment in favor of Unilever on all claims and closed the case on September 30, 2023. 

    Key Takeaways 

    – The Court applied the Federal Rules of Evidence 702 analysis to assess whether the expert opinions were admissible. It looked at whether the testimony would help the fact-finder, was based on sufficient data, and applied reliable principles and methods. 

    – The Court found major deficiencies with the facts, data, methodology, and application used by both of the Plaintiffs’ proposed experts, Singh and Morgeson.  

    – For Singh, the Court found his testing sample size was too small, his dataset was ambiguous and not properly documented, and his testing methodology yielded unpredictable results.  

    – For Morgeson, the Court found his general consumer research couldn’t be reliably applied to this specific product market. He had no data points related to deodorant and antiperspirant consumers. 

    – The Court held that neither expert satisfied the reliability and relevance requirements for expert testimony under Rule 702. 

    The key takeaway is that Courts will rigorously examine the basis, methods, and fit of proposed expert opinions. Deficiencies in facts, unreliable methodologies, or lack of applicability to the specific issues can warrant exclusion. 

  • Disagreement among experts regarding methodology does not necessitate exclusion under Daubert; Nursing expert witness testimony on adequate staffing levels survives challenge

    Disagreement among experts regarding methodology does not necessitate exclusion under Daubert; Nursing expert witness testimony on adequate staffing levels survives challenge

    This case involved a putative class action lawsuit brought by Plaintiff Gail Parrish against Defendant Gordon Lane Healthcare, LLC (Gordon Lane), which operated a long-term skilled nursing facility where Parrish resided. Parrish, by and through his daughter and successor in interest, Monica Parrish, alleged that Gordon Lane failed to adequately staff the facility in violation of California law. Specifically, Parrish claimed that Gordon Lane gave residents an admission agreement stating it would provide adequate staffing, but concealed the fact that staffing was inadequate.  

    Parrish filed this action in the Superior Court of the State of California on August 17, 2022. On September 29, 2022, Gordon Lane removed the action to federal court. On November 15, 2022, Parrish filed the complaint against Gordon Lane and several other Defendants, requesting injunctive and monetary relief. Defendants moved to dismiss the Complaint. The Court dismissed the claims as to all Defendants except Gordon Lane, and it struck Parrish’s prayer for injunctive relief. The claims for monetary relief against Gordon Lane remain.

    Parrish asserted two claims against Gordon Lane: (1) violation of California’s Consumer Legal Remedies Act (CLRA) by making misrepresentations in the admission agreement and concealing inadequate staffing levels; and (2) violation of California Health and Safety Code Section 1430(b) for violating residents’ rights through inadequate staffing.

    Parrish moved to certify three classes under Federal Rule of Civil Procedure 23(a) and 23(b)(3) and one of the classes, alternatively, under Rule 23(b)(2), consisting of Gordon Lane residents within the three years prior to the filing of the complaint. In support, Parrish offered expert testimony from Dr. Charlene Ann Harrington on determining adequate staffing levels. Gordon Lane moved to exclude Harrington’s testimony and opposed class certification, arguing Parrish lacked Article III standing and most potential class members, including Parrish, signed arbitration agreements waiving participation in class actions.  

    Nursing Expert Witness 

    Charlene Ann Harrington is a Professor Emerita of Sociology and Nursing, Department of Social & Behavioral Sciences, School of Nursing at the University of California, San Francisco (“UCSF”). She earned her Bachelor of Science in Nursing from the University of Kansas, her Master’s degree in Community Health Nursing from the University of Washington, and her joint Ph.D. in Sociology and Higher Education from the University of California, Berkeley. She has been a Registered Nurse in California since 1970. She has held several positions relevant to nursing home care over the course of her career.

    Discussions by the Court 

    Gordon Lane moved to exclude the expert opinion of Charlene Harrington, who proposed to analyze the adequacy of staffing levels at Gordon Lane’s facility. In her declaration, Dr. Harrington outlined her method for evaluating the sufficiency of staffing levels at the Gordon Lane facility. Her approach involved four steps: first, determining the collective acuity level of residents at the facility; second, evaluating the actual staffing levels per resident per day of the facility; third, comparing these levels with recognized staffing requirements and standards; and finally, determining the overall adequacy of facility nurse staffing levels. Dr. Harrington’s analysis relied on data from the Centers for Medicare and Medicaid Services (CMS), Gordon Lane’s staffing reports, federal and state regulations, and her extensive experience. Notably, she used “Resource Utilization Group” (RUG) scores which is a facility-wide measure of acuity, derived from data submitted using the Minimum Data Set (MDS) form to CMS. Her method involved converting Gordon Lane’s RUG scores into expected staffing hours and comparing them to actual staffing hours to ascertain if the facility met adequacy standards.

    The Court explained that the standard for evaluating expert testimony in support of class certification under Daubert and Ninth Circuit precedent do not require the Courts to conduct a thorough analysis of admissibility. Rather, the testimony must be sufficiently reliable and relevant such that it can help in developing a sound opinion on the class certification requirements. To sum it up, Daubert stresses on the basis of what the experts have to say instead of what they actually say.

    Gordon Lane insisted on a different acuity scoring system—the “Patient Driven Payment Model” or “PPDM”— which was used “for all but two weeks of the proposed class period.” Dr. Harrington, however, contended that she could convert PDPM scores to RUG scores using a “crosswalk” published by CMS, and derive the number of necessary staffing hours from there. 

    Gordon Lane first argued Harrington’s method of converting RUG scores into time measurements should be excluded because it was not mandated by federal or state governments to calculate required staffing levels. The Court found this unpersuasive. The CMS State Operations Manual did not consist of an objective formula for determining adequate staffing levels. The lack of a governmental mandate did not make Harrington’s methodology unreliable. 

    Next, Gordon Lane contended there are various methods for measuring acuity and experts sincerely disagree on the best approach. The Court stated that disagreement among experts regarding methodology does not necessitate exclusion under Daubert. The Court must analyze the basis for the expert’s opinion, not simply differing expert views.  

    Gordon Lane also asserted Harrington impermissibly relied on her subjective judgment and experience. However, the Court found reliance on personal knowledge and experience is permissible for specialized testimony under Ninth Circuit precedent. Harrington’s extensive, relevant experience lent reliability to her conclusions. 

    Ultimately, the Court was satisfied that Harrington employed a reliable methodology incorporating government data, facility records, regulations, and her expertise. Her opinion was relevant since the claims relied on Gordon Lane’s alleged understaffing. Though not applying Daubert’s admissibility requirements strictly, the Court found Harrington’s testimony sufficiently reliable and relevant to the issues at hand. Therefore, the Court denied Gordon Lane’s motion to exclude. 

    Held 

    The Court denied Gordon Lane’s motion to exclude, finding Harrington’s methodology reliable and relevant. The Court also found Parrish had Article III standing. However, the Court denied class certification because Gordon Lane correctly pointed out that proposed class definitions were impermissible because certification would require this Court to conduct an individual assessment of every potential class member to determine 1) whether they executed the arbitration agreement, and 2) whether the arbitration agreement was valid and binding as to that individual class member. Not only would such a determination defeat the superiority of proceeding as a class action, but it would also exceed the Court’s authority. 

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

    Key Takeaways 

    This case demonstrates important points about using expert witness testimony in support of a class certification motion. First, lack of a governmental mandate for an expert’s methodology need not necessarily render it unreliable as long as the expert can point to appropriate data sources, regulations, and experience reliably incorporated in the methodology. Second, disagreement among experts did not automatically warrant exclusion. The judge must evaluate the basis for the expert’s particular methodology. Third, an expert can rely on judgment and experience, especially for specialized testimony, if they have relevant background. Finally, while class certification should entail rigorous analysis, poking holes in the merits of an expert’s underlying conclusions sometimes goes beyond the appropriate level of inquiry.

  • Expert Fire Investigator’s testimony determining the point of origin and cause of the fire found reliable

    Expert Fire Investigator’s testimony determining the point of origin and cause of the fire found reliable

    This case involved a dispute between Republic Services of Indiana Limited Partnership (Republic) and Coe Heating & Air Conditioning, Inc. (Coe). Republic sued Coe alleging that Coe’s installation of Space-Ray heaters caused a fire that completely destroyed one of Republic’s structures. 

    Republic owned and operated a waste management facility in Fort Wayne, Indiana. The Operations Building at the Facility is divided into four section—one for office spaces and three for maintenance operations. The section where Republic alleges the fire started is known as “Building 1.” Building 1 was referred to as the “Paint Bay” or “Paint Room” as 17-19 containers were painted daily using Sheboygan Blue Enamel Paint. Over time, blue paint dust accumulated inside and covered Building 1. The building’s old heaters would clog and malfunction due to the paint dust. 

    In early 2019, Republic contacted HVAC companies, including Coe, for quotes on new heaters. A Coe salesman inspected the facility and recommended Republic purchase three Space-Ray infrared gas tube heaters. Coe provided a quote, Republic accepted, and Coe installed the new heaters in January 2019. Shortly after, paint operations resumed and the heaters began accumulating blue paint dust.

    In March 2019, just six weeks after installation, flames broke out in Building 1. The entire operations building was at a total loss. The next day, certified fire investigator James Foster was hired to investigate. Foster interviewed witnesses who said all work in Building 1 ended by 4pm the day of the fire, and the only things left on were the heaters which were set to run overnight—likely at 70 degrees (F)—as the overnight low was 28 degrees (F) on the night of the fire.

    Foster collected debris samples from inside the Space-Ray heaters. Testing by forensic scientist Sharee Wells found the samples tested positive for xylene, a flammable solvent also found in the Sheboygan Paint. Foster conducted multiple inspections, both individually and jointly with Coe’s expert. Foster took over 1,000 photos and considered burn patterns, interviews, lab results and expert opinions in developing his origin and cause analysis. 

    Foster concluded the cause and origin of the fire was a direct result of the open infrared tube heaters in the area where painting and other procedures were performed.

    Coe filed a Daubert motion seeking to exclude the testimony of Republic’s expert fire investigator, James Foster. Coe argued Foster was unqualified and presented unreliable testimony. 

    Fire Investigation Expert Witness

    James P. Foster is a Certified Fire Investigator (“CFI”), a Certified Fire and Explosion Investigator (“CFEI”), and a Certified Vehicle Fire Investigator (“CVFI”). Foster holds certifications from several governing associations in fire investigation and has been involved in over 2000 fire investigations, authoring more than 1400 cause and origin reports. He was the chief investigator with the Madison County Indiana Fire Investigation task force.

    As a prior State of Indiana certified fire instructor, he has instructed courses throughout the state related to fire service topics and certification courses related to fire, investigations, firefighter, EMS, and hazardous materials. Foster has performed fire origin and cause investigations, interviews, and interrogations of suspects and witnesses and has testified in criminal cases involving law enforcement activities. He has given depositions and court testimony in findings and technical related issues as an expert witness.

    Discussions by the Court

    First, Coe contended Foster lacked qualifications to rule out electrical causes since he was not an electrical engineer. The Court found this argument unpersuasive. It stated experts can qualify through skill and experience, not just academic credentials. The Court detailed Foster’s extensive credentials, including forty-four years as a fire investigator, over 2000 fire investigations conducted, authorship of over 1400 cause and origin reports, and decades as an instructor teaching fire investigation courses. Foster also completed training on electrical systems to help determine fire origins. The Court held Foster’s long experience as an investigator qualified him to determine the origin and cause of the fire, even if electrical components were involved. An expert need not have a narrow specialization like electrical engineering to offer admissible opinions.

    Second, Coe challenged the reliability of Foster’s methods for determining the fire’s origin and cause. But the Court found Foster complied with National Fire Protection Association’s Guide for Fire and Explosion Investigations (“NFPA 921”) standards, which courts have recognized as a reliable methodology. Foster used a systematic investigative approach, interviewing witnesses, examining the scene multiple times, collecting over thousand photos, obtaining debris samples, and shipping them for laboratory testing. He analyzed burn patterns and considered electrical causes before ruling them out. Foster evaluated other expert opinions and developed, tested, and eliminated various hypothesis before reaching final conclusions. This process reliably linked the data Foster collected to his opinions. 

    Coe argued Foster’s conclusions contradicted other experts, including Laurel V. Mason, who disputed the fire could originate with the heaters or involve ignition of the paint. But the Court stated the fact that just because Foster reached different conclusions, it did not make his methods unreliable. Competing expert opinions go to the weight of the evidence, not admissibility. As long as an expert reliably applies a valid methodology to the facts, as Foster did, disagreements over the conclusions affect credibility, not admissibility.

    The Court recognized Coe pointed out potential flaws in Foster’s analysis, such as questionable reliance on burn patterns in a destroyed building and dismissing electrical causes without electrical expertise. But the Court stated its role as gatekeeper was not to decide which expert was more correct. The jury would hear competing expert opinions at trial and assess their weight and credibility. The purpose of the Daubert inquiry was to vet the methodology, not judge the soundness of conclusions. Since Foster used reliable principles and methods, weaknesses in his opinions properly went to weight, not admissibility. 

    Held

    The Court denied Coe’s motion because Foster was qualified and reliably applied an accepted investigative methodology. The Court emphasized Coe could challenge Foster’s conclusions through cross-examination at trial. But alleged flaws in his opinions did not warrant exclusion, given his compliance with NFPA 921 standards and extensive factual data supporting his analysis.

    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 principles regarding expert witness testimony under Daubert:

    • Experts can qualify through practical skill and experience, not just academic credentials. Foster’s decades of fire investigation experience sufficed, despite lack of electrical engineering degrees.
    • The purpose of Daubert is to vet methodology, not judge the soundness of expert conclusions. Disagreements over an expert’s opinions generally go to credibility and weight, not admissibility. 
    • Courts should not determine which expert is “more correct” at the Daubert stage. The jury assesses competing expert testimony at trial. 
    • Minor flaws or inconsistencies in an expert’s analysis, such as typos in a report, affect weight not admissibility. These are fodder for cross-examination.
    • Applying a reliable methodology like NFPA 921 shows adequate expert methodology under Daubert, even if parties dispute the conclusions.
    • Experts can form opinions based on observations, experience and inferential reasoning. Testing and peer-reviewed publication is not necessary in all fields.
    • Opposing experts critiquing an expert’s opinions does not alone render the testimony unreliable under Daubert. Competing views create issues of credibility and weight for the jury to resolve.

    Overall, this case shows courts should focus on an expert’s methodology, qualifications and factual basis at the Daubert phase, not resolving battles between experts with competing conclusions. The jury’s role is to weigh expert opinions at trial.

  • Court limits expert testimony on crash reconstruction and its contributing factors

    Court limits expert testimony on crash reconstruction and its contributing factors

    This case arises from a car accident that occurred on October 8, 2021 in San Antonio, Texas. Plaintiff Lesley Aguilar was a passenger in a vehicle driven by Defendant Hector Collazo-Diaz. Collazo-Diaz worked as a delivery driver for Defendant DoorDash at the time. He was traveling westbound on Rittiman Road and approached an intersection with IH 35 N Access Road. At the same time, a third party driver David Hidalgo was traveling northbound on the access road. Hidalgo had the right of way to proceed through the intersection. As Hidalgo entered the intersection, Collazo-Diaz failed to yield the right of way and collided with Hidalgo’s vehicle, causing injuries to Aguilar.  

    Aguilar filed a negligence lawsuit against Collazo-Diaz and DoorDash in June 2022. She alleged that DoorDash was vicariously liable for Collazo-Diaz’s negligence either as his employer or as a joint venture partner. Aguilar also brought direct negligence claims against DoorDash for negligent hiring, training, and supervision of Collazo-Diaz. 

    Aguilar designated Leonard Vaughan as an expert witness to reconstruct the accident and opine on factors that contributed to it, including alleged traffic violations by Collazo-Diaz. Vaughan had over 50 years of experience in accident reconstruction. He reviewed the accident scene, crash photographs, deposition testimony, and the police report.  

    After inspecting the accident scene, analyzing crash photographs, reviewing applicable deposition testimony, and evaluating the San Antonio Police Department crash file, Vaughan produced a report expressing the following opinions:

    1. David Hidalgo was driving his 2014 Chevrolet Equinox on the northbound access round of IH-35 as he approached the site of the incident.
    2. According to the police report, Hidalgo stopped at the intersection before crossing Rittman Road.
    3. Hector Collazo-Diaz was driving his 2020 Mitsubishi Eclipse on [sic] westbound Rittman Road as he approached the site of the incident.
    4. Collazo-Diaz slowed down but did not stop at the intersection.
    5. Collazo-Diaz stated in his interrogatory response that there was a power outage at the time of the incident.
    6. Collazo-Diaz testified that he was traveling at the speed limit of 35 approaching the intersection.
    7. As Collazo-Diaz approached the intersection, the headlights of the Chevy Equinox would have been visible entering the intersection to Collazo-Diaz’ [sic] left.
    8. Collazo-Diaz stated that after slowing to 25-30, he proceeded forward without stopping because he didn’t see a reason to stop.
    9. Collazo-Diaz stated that he knows that when traffic lights are not operational, a motorist is supposed to treat the intersection like a 4-way stop.
    10. Collazo-Diaz stated that he did not see the traffic lights because they were obscured by the overpass behind the traffic lights.
    11. Collazo-Diaz also stated that he did not know he was approaching a major intersection, thinking instead that it looked like an exit from the overpass.
    12. Collazo-Diaz should have stopped his vehicle enough to accurately assess the safety of moving through [sic] intersection.
    13. DoorDash, through their driver Hector Collazo-Diaz, violated Texas Transportation Code when Collazo-Diaz failed to appropriately reduce his speed as he approached this collision.

    DoorDash argued that several of Vaughan’s Opinions 1-6 and 8-11 were essentially restatements of uncontested facts, contending that these should have been presented to the jury through fact witnesses rather than expert testimony. Furthermore, DoorDash claimed that Opinions 7, 12, and 13 which were related to visibility, duty, and liability, lacked a solid factual foundation and were speculative. They also asserted that Vaughan’s opinions failed to meet the requirements of Rule 403, potentially causing confusion or prejudice that outweighed their value. Lastly, DoorDash objected to Vaughan’s opinion on vicarious liability, asserting that it went beyond his expertise.

    DoorDash moved to exclude Vaughan’s testimony in full. It argued the factual recitations were not expert opinions and invaded the jury’s role. It also contended Opinions 7, 12 and 13 were unreliable speculation, impermissible legal conclusions, and should be excluded under Rule 403. 

    Accident Reconstruction Expert Witness 

    Leonard D. Vaughan has a Bachelor of Science degree in Law Enforcement and attended the Texas Department of Public Safety Training Academy. Vaughan was an instructor of accident investigation and reconstruction and advanced accident reconstruction at the Middle Rio Grande Law Enforcement Training Academy from 1979 through 1986. He was also an instructor of accident reconstruction from 1979 through 1986 at the Texas Department of Public Safety Training Academy and advanced accident investigation and reconstruction from 1983 through 2004 with the Texas Department of Public Safety. In 1993, Leonard Vaughan received the Director’s Award from the Texas Department of Public Safety. Vaughan has been a charter member of the International Association of Accident Reconstruction Specialists.

     

    Discussions by the Court 

    The Court first discussed Leonard Vaughan’s qualifications as an accident reconstruction expert. It noted that under Rule 702 and Fifth Circuit precedent, the key factors for determining expert qualifications include professional rank, teaching courses taught by the proposed expert, degrees/certificates, certification by professional associations, whether the proposed expert has been excluded by other courts, conducting studies, taking measurements and collecting data, relying solely on public data, and maintaining expertise. The Court found that Vaughan’s long career, accident reconstruction certificates, teaching experience, and membership in a professional association satisfied these requirements. Thus, the Court was assured Vaughan was qualified as an expert.  

    Next, the Court addressed DoorDash’s argument that Vaughan’s factual recitations were not true expert opinions and invaded the jury’s role. The Court recognized the risk of an expert merely summarizing facts the jury could understand itself. However, it noted experts were permitted to make assumptions based on facts in the record. Vaughan drew selectively on the record when making assumptions underlying his opinions. As long as the facts were the type accident reconstruction experts rely on, Vaughan could base opinions on them. His recitation of facts did not constitute a credibility determination. Any disputes about his factual assumptions could be addressed through cross-examination and contrary evidence at trial. Thus, the Court found the factual opinions admissible. 

    The Court then turned to the reliability of Vaughan’s opinions on the visibility of Hidalgo’s headlights and Collazo-Diaz’s duty to fully stop at the intersection. DoorDash argued these lacked scientific methodology because Vaughan did not take measurements, analyze vehicle data, interview the drivers, etc. It claimed his analysis was similar to the excluded expert in another case who relied solely on photos and “common sense.” The Court found Vaughan’s review of photos, the scene, maps, and depositions was sufficiently reliable methodology given his experience  for the purpose of admitting his opinion as to the visibility of Hidalgo’s headlights (Opinion 7). The facts relied upon went to the weight, not admissibility, of his testimony. The visibility opinion was also relevant and not unduly prejudicial under Rule 403. 

    However, the Court agreed with DoorDash that Vaughan’s opinions on Collazo-Diaz’s duty to stop and DoorDash’s vicarious liability were impermissible legal conclusions. Vaughan lacked expertise to opine on vicarious liability based on the employment relationship considering that whether a worker is an employee or an independent contractor depended on “whether the employer has the right to control the progress, details, and methods of operations of the work” as was held in Painter v. Amerimex Drilling I, Ltd. More importantly, his conclusions on the proper standard of care, breach, and vicarious liability invaded the Court’s and jury’s roles. Experts cannot offer legal opinions or instruct on applying law to facts. Thus, the Court granted the motion to exclude the legal conclusions, while denying it as to the rest of Vaughan’s opinions. 

    Held 

    In conclusion, the Court granted DoorDash’s motion as to the legal conclusions in Opinions 12-13. It otherwise denied the motion without prejudice to DoorDash raising objections at trial. Vaughan may testify, but certain aspects of his opinions were questionable. His testimony could be excluded or discounted as unreliable depending on the trial 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 illustrates the importance of scrutinizing expert qualifications and preventing experts from offering legal conclusions. The Court demonstrated its gatekeeping role under Daubert by thoroughly assessing accident reconstructionist Leonard Vaughan’s credentials before allowing his testimony. His extensive experience satisfied the key qualification factors.  

    The Court also emphasized that experts may make assumptions based on facts in the record, but those assumptions must have evidentiary support. Critically examining an expert’s factual basis is key.  

    However, the Court enforced the principle that experts cannot provide legal conclusions. Vaughan’s opinions on the proper standard of care and vicarious liability were impermissible legal conclusions that usurped the Court and jury’s authority. Although experts can opine on ultimate issues, they cannot instruct on how the law applies or offer opinions on legal questions. 

    In summary, this case highlights the need to qualify experts, vet their methodologies and assumptions, and preclude legal opinions. Vigorous cross-examination at trial can address shaky expert opinions, but courts must act as gatekeepers and exclude testimony invading the legal province. Careful scrutiny of expert foundations, reasoning and conclusions is crucial. 

  • Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    Expert testimony regarding marketing practices of electronic cigarette and vape products passes the Daubert test

    This case involved the City of Chicago bringing an enforcement action against two Minnesota corporations, Equte LLC and Juishy LLC, as well as Jeffrey Evenmo. The City alleged that the Defendants violated several sections of the Municipal Code of Chicago related to the sale of tobacco and electronic cigarette products.  

    The City conducted an investigation which revealed that the corporate Defendants made 600 sales of electronic cigarette products and 100 sales of flavored liquid nicotine products to minors under the age of 21 in Chicago, in violation of city ordinances. The City then referred the case to the Corporation Counsel, which filed the enforcement action.  This enforcement action consisted of motions for partial summary judgment filed by both the City and the Defendant as well as the Defendants’ motion to exclude the testimony of City’s expert Sherry Emery about unfair marketing practices the Defendants engaged in by marketing tobacco products and accessories to minors in Chicago.

    Equte and Juishy were both Minnesota corporations with their principal places of business in Minnesota. Equte, which Evenmo created between 2013 and 2014, sold e-cigarettes, vaping products, and other nicotine products on a website with the domain name vapes.com. Equte had its own bank accounts, filed corporate tax returns between 2016 and 2018, and issued profit and loss statements between 2017 and 2019. Evenmo could not recall when he founded Juishy, which marketed and sold flavored liquid nicotine products on vapes.com and Juishy.com. Although Juishy also operated social media pages, it did not generate as many sales as Equte. Juishy never had its own bank account, owned any domain names, or employed anyone. Although Evenmo was the final decisionmaker for the Corporate Defendants, he did not oversee day-to-day operations at their warehouse. On February 17, 2021, before the City served Defendants with process, Evenmo, the Corporate Defendants’ sole owner and CEO, administratively terminated Juishy. Then on May 11, 2021, also before the City served Defendants, Equte sold its domain page vapes.com to an unrelated party.

    Public Health Expert Witness 

    Sherry L. Emery serves as a Senior Fellow in the Public Health Group and Director of the Health Media Collaboratory at NORC at the University of Chicago. She obtained her undergraduate degree in Political Economy from John Hopkins University. Dr. Emery went on to earn an MBA with a concentration in Business Economics from Columbia University. She later completed her PhD in City and Regional Planning at the University of North Carolina at Chapel Hill. With well over 100 articles published in peer-reviewed journals, Dr. Emery has established herself as a nationally recognized expert in tobacco control, media, and public health policy research.

    Discussions by the Court 

    The Defendants moved to dismiss the case, arguing the Court lacked jurisdiction and that the claims were barred by the statute of limitations. The Court denied the motion, finding jurisdiction was proper based on diversity of citizenship and the amount in controversy, and that the statute of limitations did not apply due to the City’s immunity when asserting public rights. 

    After the parties completed fact discovery, both sides moved for partial summary judgment. The Defendants argued the Court should reconsider its rulings on jurisdiction with the benefit of a full factual record. The Court declined to reexamine its initial decisions. Defendants also raised a challenge related to the statute of limitations, claiming that the City’s allegations were time-barred. The Court determined that though the Municipal Code of Chicago allowed for the imposition of a fine, the City’s claims were not time barred. The Court also agreed that though Evenmo was properly subject to its jurisdiction, he could not be held personally liable for any fines assessed against the Corporate Defendants under the theory that he was their alter ego or the Corporate Defendant’s violations of the Municipal Code of Chicago. 

    The City conceded, and the Court agreed, that the undisputed facts showed the Corporate Defendants violated the ordinances prohibiting sales of tobacco and flavored nicotine products to minors. Thus, the Court entered judgment for the City on those claims. The City also moved for summary judgment on its unfair business practices claim, arguing the corporate Defendants’ use of automatic age verification systems allowing sales to under 21 year olds violated the ordinance. The Court, however, found that the Corporate Defendants’ use of automatic age-verification systems cannot constitute an unfair business practice under the Illinois Consumer Fraud and Deceptive Business Practices Act and denied the City’s motion on that theory. 

    The Defendants filed a motion to exclude the testimony of Sherry Emery, an expert retained by the City to opine on the Corporate Defendants’ marketing of electronic cigarettes and vaping products to youth online and on social media. The Defendants argued that Emery’s report and testimony were irrelevant to any material issue in the case.  

    The Court explained that under the Federal Rules of Evidence and Daubert, an expert’s testimony is admissible if the expert is qualified, the methodology is reliable, and the testimony is relevant in that it will help the trier of fact understand the evidence or determine a fact at issue. The party seeking to admit the testimony must show it meets these requirements by a preponderance of the evidence. The Court noted that Daubert‘s specific factors for assessing reliability do not necessarily apply in every case, and that courts have wide latitude in performing the gatekeeping function for expert testimony. 

    The Defendants claimed Emery’s opinions were irrelevant because the City’s unfair business practices claim under the ordinance was limited to the code violations and failure to implement adequate age verification. The Court found this “misread” the City’s claims, as the City never acknowledged such a limitation and explicitly reserved the issue of whether the marketing violated the Municipal Code of Chicago for trial. 

    The Court explained that Emery’s report and opinions would help the jury determine whether the Corporate Defendants improperly marketed their products to minors under 21. The report extensively discussed the history of e-cigarette use, how companies leveraged social media to promote their products to youth, the use of flavors and themes that appeal to adolescents, and provided opinions that the Defendants’ social media marketing was potent with a youth audience. This would assist the jury in determining if the marketing efforts constituted an unfair business practice.  

    The Defendants pointed to Emery’s admission that she did not review sales or age data. The Court found she did not need such data to opine on the nature of the advertisements and social media marketing. The Defendants could challenge the conclusions on cross-examination, which is the appropriate means to attack admissible but shaky evidence. 

    Held 

    In conclusion, because Emery’s report and testimony were relevant assess whether or not Defendants engaged in unfair marketing practices by marketing tobacco products and accessories to minors in Chicago, the Court denied the motion to exclude her as an expert witness under Daubert and the Federal Rules of Evidence 702. The Court declined to reexamine its initial decisions but held that that Evenmo cannot be held personally liable for any fines assessed against the Corporate Defendants. The Court granted in part and denied in part the City’s motion for summary judgment stating that Corporate Defendants’ use of automatic age-verification systems did not violate the City’s ordinances.

    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 Federal Rules of Evidence 702 and Daubert standard to determine the admissibility of Emery’s expert testimony. Under this standard, the proponent of the expert evidence must show the expert is qualified, the methodology is reliable, and the testimony is relevant to issues in the case. 

    • Emery’s testimony was deemed relevant because her opinions on the Defendants’ social media marketing efforts which targeted the youth would help the jury evaluate whether the marketing practices in question constituted an unfair business practice that violated the city ordinance. 
    • The Defendants argued Emery’s opinions were irrelevant because of perceived limitations on the claim for violations of Municipal Code of Chicago. But the Court found the City did not actually place such limitations on the claim. 
    • The fact that Emery did not review sales or age data did not render her opinions irrelevant, as she opined on different issues regarding the nature of the marketing. Any limitations could be addressed on cross-examination. 

    Because relevance was established, the Court denied the motion to exclude Emery as an expert witness. Her opinions were found admissible under the Rules of Evidence and Daubert standards. 

  • Court admits image valuation and consumer perception theories with regard to the model and talent industry provided by the Plaintiff’s experts in copyright infringement suit

    Court admits image valuation and consumer perception theories with regard to the model and talent industry provided by the Plaintiff’s experts in copyright infringement suit

    Lopez v. Meyers’ G.M. Enters., Inc. was a copyright infringement case decided in the United States District Court for the Western District of Wisconsin on September 12, 2023. The Plaintiffs were models whose photographs were used without authorization in promotional materials by the Defendants, two businesses operating as Cajun Club. The Plaintiffs filed a motion to allow certain witnesses to testify via video conference at the upcoming trial. The Defendant filed two Daubert motions in limine seeking to exclude the expert testimony of the Plaintiffs’ witnesses, Stephen Chamberlin and Thomas Maronick. 

    Regarding the Plaintiffs’ motion for remote testimony, the Court reserved ruling pending more information from the parties. The Court acknowledged the general rule requiring in-person testimony under Rule 43(a), but also noted possible unique circumstances of this case where the Defendants’ unauthorized use of the Plaintiffs’ images may call for allowing remote testimony. However, the Court required the Plaintiffs to provide more details on which Plaintiffs intended to testify, the necessity of their testimony, and additional legal authority supporting remote testimony.

    Image Valuation Expert Witness

    Stephen Chamberlin holds a Bachelor of Laws and Economics degree from the University of New South Wales, which he completed in 1984. He has over 30 years of experience working full-time in the model and talent industry. Chamberlin is currently associated with Premier International Model Management as an international agent and negotiation director. He previously served in leadership roles at prominent talent agencies including LA Models Management, Warning Management Inc., and Michele Pommier Models. Chamberlin has also represented high-profile celebrity models and talent including Tyra Banks, Claudia Schiffer, and Paris Hilton.

    Marketing Expert Witness

    Thomas Joseph Maronick holds a Juris Doctor degree from the University of Baltimore School of Law, with an emphasis on corporate, business and consumer law. He is a member of the Maryland Bar. He also earned a Doctor of Business Administration degree from the University of Kentucky, as well as a Master of Science in Business Administration from the University of Denver, having majored in marketing.

    Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics, where he taught marketing, strategy, and research courses from 1987 to 2017. He previously held faculty positions teaching marketing at the University of Baltimore School of Business and Virginia Commonwealth University.  Additionally, Maronick worked as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, Maronick has worked as a marketing consultant and expert witness. He has provided expert services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.

    Discussions by the Court

    The Court then analyzed the Defendant’s motions in limine in sufficient detail under the Daubert standard and Rule 702.

    For Stephen Chamberlin, the Defendant argued he was unqualified to provide an objective estimate of the value of the photographs because as the Plaintiffs’ agent, his role was to secure the highest possible price. The Defendant also asserted Chamberlin lacked experience pricing specific images in the adult entertainment industry and did not have a marketing degree. Additionally, the Defendant contended Chamberlin improperly inflated his calculations by using Plaintiffs’ highest paying previous jobs with organizations offering significantly more public exposure than Cajun Club. Defendant also appeared to argue Chamberlin improperly multiplied the damages as well. 

    In response, the Plaintiffs stated Chamberlin’s extensive experience as a models’ agent qualified him to testify on the value of the photographs. They contended he reliably applied industry principles to the Plaintiffs’ situation. The Plaintiffs argued Chamberlin’s testimony would help determine fair market value because negotiating modeling jobs requires specialized skills.

    The Court found Chamberlin passed the Daubert test, except for the multiplier issue. Chamberlin’s 30 years of experience representing over 3000 models established he was qualified to testify on image value. The Court stated Chamberlin’s role negotiating for models demonstrated his industry knowledge, making him qualified despite the Defendant’s bias argument. The Court noted Chamberlin’s valuation methodology was well-explained. He based the hypothetical day rate on factors like Plaintiff models’ desirability, work history and the nature of the business seeking her services to calculate the day rate. However, some of the sample contracts used by Chamberlin, presumably as a basis for calculating a day rate, involved photoshoots that lasted longer than one day which, in turn, could lead to an overestimation of the Plaintiffs’ payment history for one-day photoshoots, though the Defendant could address the same through cross-examination. 

    The Court explained Chamberlin reliably identified four categories of “use” including advertising, social media, branding and coupon/third party that influenced costs beyond the day rate. While the Defendant cited cases excluding Chamberlin, the Court found them factually distinct. Chamberlin’s methodology here was laid out sufficiently to be admissible, though the Defendant could still challenge it on cross-examination. The Court denied excluding Chamberlin overall but reserved in part judgment as to Chamberlin’s use of a multiplier pending further explanation.

    For Thomas Maronick, the Defendant argued his survey had flawed methodology because it did not use the actual promotional materials, omitted Plaintiff Brenda Geiger, and lacked respondent recruitment details. The Defendant asserted the survey was further flawed because respondents could not identify the models and ambiguous terms like “events” and “ads” were used. 

    The Plaintiffs responded that the survey did use Cajun Club’s actual materials and pictures of Geiger. They stated Maronick described the internet panel recruitment method. The Plaintiffs argued any lack of an open-ended name identification question only went to the weight of the survey rather than its admissibility. They contended the terms “events” and “ads” were accurate.

    The Court found Maronick qualified as a marketing expert and professor. It determined he reliably applied this experience in designing the survey, which included Defendant’s materials and Geiger. The Court stated Maronick’s description of using an internet panel for recruitment was sufficient, with the details only going to weight not admissibility. Similarly, the Court found the lack of an open-ended identification and term choices were issues of weight for the jury to consider, not grounds for exclusion. Finally, the Court concluded the survey would assist the jury in determining whether Cajun Club used the pictures in a manner that is likely to cause confusion. For these reasons, the Court denied the motion to exclude Maronick.

    Held

    The Court reserved ruling on remote witness testimony, denied the motion to exclude Chamberlin but reserved in part its ruling on the multiplier issue, and denied the motion to exclude Maronick’s survey methodology.

    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 courts serve a gatekeeping function in screening expert witness testimony for relevance and reliability under Rule 702 and Daubert. Experts must be qualified, use reliable principles and methods, and provide testimony that assists the trier of fact. However, the admissibility threshold is meant to be liberal, with rigorous cross-examination as the appropriate tool for scrutinizing “shaky but admissible evidence.” 

    For expert Chamberlin, the takeaway is that extensive industry experience may establish qualifications to opine on specialized practices like image valuation. His method of calculating a hypothetical negotiation value based on prior work was deemed sufficiently reliable here considering the hypothetical was only necessary because of Defendant’s violation of copyright law.

    For expert Maronick, the takeaway is that reasonable survey methodology focused on consumer perceptions can assist the trier of fact despite its shortcomings. Specific critiques often go to the weight of survey evidence rather than preclusion.

    Overall, this case illustrates courts’ role in filtering unreliable principles and methods, but permitting testimony where an expert meets basic reliability and assists the trier of fact. Rigorous cross-examination is still vital for scrutinizing weaknesses.

  • Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    Court confirms the admissibility of the testimony of occupational medicine expert in employment discrimination case  

    This case involved a lawsuit filed by David Meza against his former employer, Union Pacific Railroad Co., alleging discrimination in violation of the Americans with Disabilities Act (ADA). Meza worked as a carman for Union Pacific until his employment was suspended after a fitness-for-duty exam.  

    Meza retained Kevin Trangle as an expert witness to support his ADA discrimination claim. Trangle intended to testify that the Federal Motor Carrier Safety Administration (FMCSA) Medical Examiner Handbook relied on by Union Pacific in evaluating Meza’s fitness for duty contained outdated medical information and was removed from the FMCSA website for that reason.  

    Union Pacific filed a Daubert motion to exclude parts of the occupational medicine expert witness’ proposed expert testimony. Specifically, Union Pacific argued Trangle should not be permitted to: 

    • Craft a factual narrative about the FMCSA’s decision to remove the 2014 Medical Examiner Handbook from its website. 
    • Opine or infer why the FMCSA removed the Handbook, including claiming its removal signaled the guidelines were outdated or unreliable.  

    Union Pacific insisted on the scientific validity of the Handbook and contended that Trangle’s testimony to the contrary was unsupported and inadmissible. Union Pacific asserted that testimony from its own experts Brian Morris, M.D., J.D., M.B.A., M.P.H. and Joel T. Cotton established the reliability of the Handbook. 

    Occupational Medicine Expert Witness 

    Dr. Kevin Trangle has over 40 years of experience as a board-certified physician in internal medicine, occupational medicine, and preventive medicine. He obtained his medical degree from the University of Minnesota Medical School in 1978 and also holds an MBA in healthcare management from Case Western Reserve University. He has served as a medical director for numerous corporations and organizations. His experience encompasses all aspects of occupational medicine including diagnosis and treatment of work-related injuries, disability evaluations, return to work assessments, corporate wellness programs, and substance abuse programs. Trangle has provided expert consultation services for attorneys, government agencies, and insurers. He has given dozens of presentations to professional organizations on occupational health topics and has published extensively in medical journals. Trangle has particular expertise regarding workplace chemical exposures, having worked extensively with the chemical industry and conducted research on industrial solvents and chemical sensitivity issues. He has also managed corporate drug testing and substance abuse programs. In summary, Trangle has comprehensive credentials and experience at the highest level in occupational and environmental medicine. 

    Discussions by the Court 

    The Court began by explaining that the admissibility of expert testimony in federal court is governed by Federal Rule of Evidence 702. Under this rule, expert opinion testimony is admissible if the expert’s knowledge will help the jury understand the evidence, the testimony is based on sufficient facts, it is the product of reliable methods, and the methods were reliably applied to the case facts. The Court acts as a gatekeeper, ensuring only relevant and reliable scientific evidence is admitted. However, the Court must not invade the role of the jury in weighing evidence and resolving credibility issues. Rule 702 favors admissibility, and expert testimony should only be excluded if it is so unsupported it cannot assist the factfinder.   

    Union Pacific sought to bar occupational medicine expert witness Trangle from opining that the Handbook was unreliable and was removed from the FMCSA website for containing outdated information. Union Pacific argued Trangle had no basis to testify the information was outdated and his opinions were unsupported. It asserted testimony from its own experts establishes the Handbook remains current and reliable. 

    Meza responded that the 2014 Handbook’s current validity was relevant evidence, Trangle was qualified to opine on the medical science being outdated, and his opinion was reliable. Meza pointed to indications the Handbook was no longer in use and was removed for containing obsolete information. Meza contended competing expert views on the Handbook should be resolved through advocacy and jury findings rather than exclusion. 

    In support of their argument, Meza cited two key pieces of evidence. Firstly, they pointed to a watermark prominently displayed on the front of the Handbook, which unequivocally stated that it was “No longer in use.” This watermark served as a clear indicator that the handbook had been rendered obsolete and was no longer considered a reliable or current source of information.

    Secondly, Meza referenced a notice of proposed regulatory guidance published in the Federal Register. This notice provided crucial context by explaining that the Federal Motor Carrier Safety Administration (FMCSA) withdrew the Handbook in 2015. The reason behind this withdrawal, as stated in the notice, was that certain information contained within the handbook had become outdated or was overly prescriptive in nature.

    The Court found Trangle’s opinions on Union Pacific’s reliance on the Handbook were not so unsupported as to be completely unhelpful to the jury. While not indisputable, his testimony could assist the jury to some degree and should be tested by the adversary process rather than excluded outright.  

    The Court stated Union Pacific’s proposed exclusions were too restrictive. Trangle should be able to explain why he believes Union Pacific should not have relied on the Handbook, even if Union Pacific disagrees. His opinions were not speculative or unsupported enough to be inadmissible. Union Pacific was permitted to challenge Trangle through its own experts and cross-examination rather than exclusion. 

    Union Pacific argued the FMCSA never found the Handbook guidelines unreliable. But the Court found Trangle should be able to tell the jury why he believes Union Pacific should not have relied on the Handbook. The Court preferred to let the adversary process test Trangle’s opinion rather than the Court excluding it upfront.  

    The Court explained it was not proper for the Court to weigh competing expert opinions or determine their correctness. Issues with Trangle’s testimony were better addressed by the adversary process with competing expert testimony and cross-examination. Where an expert opinion had sufficient grounds to assist the jury, it should be tested by competing evidence rather than be excluded outright. 

    Held  

    The Court denied Union Pacific’s motion to limit Trangle’s testimony about the Handbook being outdated and unreliable. The Court ruled that he could generally opine that the Handbook was outdated and unreliable, though more specific objections may be raised at trial. The validity of the Handbook would be resolved through competing expert views rather than the Court prohibiting testimony at the outset. The adversarial process is the appropriate means of attacking shaky but admissible 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 demonstrates several important principles regarding expert witness testimony.

    • The Court emphasized its role as a gatekeeper in evaluating reliability under Daubert, but cautioned against invading the province of the jury to weigh competing expert opinions.
    • The standard for admissibility is fairly low – expert testimony should be admitted unless it is so unsupported it cannot help the factfinder at all.
    • Doubts about usefulness should be resolved in favor of admission rather than exclusion. Fourth, weaknesses in expert opinions are better addressed through cross-examination and contrary evidence rather than outright exclusion.
    • Disagreements between experts on key facts illustrate the need to let the adversarial process test competing views.
    • The Court should not determine which expert is correct on disputed factual issues.
    • While specific objections may arise, experts should generally be permitted to offer opinions within their expertise that have potential to assist the jury. 
  • Court excludes unreliable pharmacology and neurology expert opinions in product liability case; grants summary judgment

    Court excludes unreliable pharmacology and neurology expert opinions in product liability case; grants summary judgment

    This case involved a product liability lawsuit filed by Harvey Mahler against The Vitamin Shoppe Industries, Inc. in the United States District Court for the Northern District of Illinois. Mahler alleged that he developed peripheral neuropathy after taking a multivitamin manufactured by The Vitamin Shoppe that contained arsenic and lead.  

    Mahler purchased two bottles of The Vitamin Shoppe’s One Daily Men’s 50+ vitamin supplement on June 25, 2017. He took one tablet per day from June 25 to August 16, 2017, for a total of 51 days. In mid-August 2017, Mahler began experiencing symptoms including peripheral and ulnar neuropathy, bilateral foot numbness, hypertension and renal artery thrombosis. He saw several physicians, including his primary care doctor, a nephrologist and a hematologist. None of them diagnosed Mahler with heavy metal poisoning or ordered tests to screen for heavy metals. 

    Nonetheless, Mahler sent the vitamin supplement to an independent laboratory, Eurofins, which detected arsenic and lead in the product. Eurofins sent back a report that showed the Vitamin Supplement contained a detectable amount of arsenic and lead—two types of heavy metals. Although his physicians did not link his symptoms to the vitamins, Mahler believed based on his own research that the arsenic and lead caused his health issues.  

    On June 5, 2018, Mahler visited Octavia Kincaid, a neurologist. He reported neuropathy in his feet and left hand fingers. Kincaid reviewed prior electromyography (EMG) tests and examined Mahler. She diagnosed him with peripheral neuropathy. Mahler told Kincaid about the vitamins containing heavy metals and gave her the Eurofins report. Kincaid said arsenic and lead could cause his symptoms. Her blood tests for other potential causes came back normal. She clinically diagnosed Mahler with peripheral neuropathy likely from heavy metal toxicity. 

    In his lawsuit, Mahler alleged that the arsenic and lead in the vitamin supplement caused his peripheral neuropathy. He asserted claims for strict liability, negligence, breach of warranty, negligent misrepresentation, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”)

    The Vitamin Shoppe moved for summary judgment, arguing that Mahler lacked evidence that the small amounts of arsenic and lead in its product could have caused his alleged injury. Mahler relied on neurologist Octavia Kincaid and pharmacist James O’Donnell to provide pharmacology and neurology expert opinions on causation. The Vitamin Shoppe moved to exclude them under Daubert, asserting their opinions were unreliable. Defendant also filed a Daubert motion to exclude the testimony of Plaintiff’s other two experts- Jon Edward Clark and Stanley Vladimir “Stan” Smith.

    Causation and Damages Expert Witnesses 

    James Thomas O’Donnell, PharmD, M.S., F.C.P., is highly qualified as an expert in pharmacology, toxicology, and pharmacy. He has over 30 years of experience in teaching, research, and consulting in these fields. O’Donnell holds a Doctor of Pharmacy degree from the University of Michigan and a Master of Science in Clinical Nutrition from Rush University. He is an Associate Professor of Pharmacology at Rush University Medical Center.

    O’Donnell has authored numerous books related to pharmacology, toxicology, and pharmacy law. He has also published articles in peer-reviewed journals and consulted with pharmaceutical companies. 

    His qualifications include being board certified as a Diplomate in the American Board of Clinical Pharmacology. He is a Fellow of the American College of Clinical Pharmacology and the American College of Nutrition.

    In summary, O’Donnell’s extensive education, teaching and research experience, publications, and board certifications in pharmacology, toxicology, and pharmacy make him highly qualified to provide expert testimony on the topics relevant to this case. 

    Octavia B. Kincaid, M.D. is a Neurologist who provided medical care to Harvey Mahler from June 5, 2018 to the present. She  is an adult neurologist who specializes in neuromuscular neurology. She holds board certification in adult neurology, clinical neurophysiology, and neuromuscular medicine through the American Board of Psychiatry and Neurology. She received her medical degree from The University of Texas Health Science Center at San Antonio and has been in practice for more than 20 years. 

    Octavia Kincaid is currently working as a Neurologist at NorthShore University HealthSystem. Before her current position, she served as the Assistant Dean for Curriculum in the College of Medicine at the University of Illinois, Chicago. Additionally, she held a previous role as a Neurologist at the University of Illinois Hospital & Health Sciences System.System.  

    Jon Edward Clark, M.S., has over 35 years of experience in the pharmaceutical industry, including extensive expertise with FDA regulations and practices. He holds Bachelor’s and Master’s degrees in Chemistry. He worked for 21 years at the FDA, serving in leadership roles developing and implementing policy. After the FDA, he served as an executive in the U.S. Pharmacopeia, involved with setting standards for medicines and dietary supplements. He now runs an independent consulting firm focused on FDA regulatory requirements and compliance.  

    Stanley Vladimir Smith, Ph.D. is a nationally renowned economist who received his Ph.D. from the University of Chicago. 

    Discussions by the Court  

    The Vitamin Shoppe moved to exclude the causation opinions of Kincaid and O’Donnell under Daubert and Rule 702. The Court granted both motions, finding their methodologies unreliable. 

    Plaintiff relied upon Octavia Kincaid to establish both general and specific causation—that is, that the lead and arsenic contained in the Vitamin Supplement Plaintiff took could and did cause his peripheral neuropathy. 

    However, the Court first found Mahler failed to properly disclose Kincaid as a non-retained expert under Rule 26(a)(2)(C). He did not provide a summary of the facts and opinions to which she would testify on causation. However, the Court excluded Kincaid based on unreliability even if she had been properly disclosed.  

    Kincaid testified there were likely thousands of potential causes of peripheral neuropathy, with heavy metal exposure being rare. She said Mahler told her he took vitamins containing heavy metals and provided the Eurofins report. Although Kincaid ordered blood tests for more common neuropathies, they came back normal. With no other apparent cause, she clinically diagnosed Mahler with heavy metal induced peripheral neuropathy.  

    The Court found this process unreliable under Daubert. Kincaid agreed dose and duration of exposure were relevant to causation. But she could not recall investigating the levels of arsenic/lead in the vitamins or how long Mahler took them. She speculated she probably looked up reference levels but had no notes documenting so. The Court also did not express an opinion on Kincaid’s clinical or treatment methods. Kincaid herself clarified that her conclusion was a “clinical diagnosis” made based on the available information at the time. It’s important to note that her intent was not to establish “proof” of causation in a legal sense.

    The Court cited cases requiring experts to consider dose-response in toxic tort cases. As Kincaid failed to evaluate dosage, the Court deemed her opinions inadmissible. 

    The Defendant made three main arguments for excluding O’Donnell’s expert testimony. First, it contended he lacked qualifications for some opinions. Second, it argued his opinions about raw ingredients were irrelevant. Third, it asserted O’Donnell did not use a reliable methodology for his general causation conclusions, as he failed to analyze the dose-response relationship between the levels of arsenic and lead in the Vitamin Supplement and the onset of peripheral neuropathy. Defendant argued that the factual assumptions made by O’Donnell did not support the record.

    The Court found multiple reliability issues rendering O’Donnell’s opinions inadmissible. First, O’Donnell incorrectly assumed Mahler took the vitamins for four years rather than the 51 days supported by the record. He speculated all of Mahler’s vitamins contained arsenic/lead based merely on other products from China having contamination, not evidence specific to The Vitamin Shoppe’s products. The Court held this undue speculation did not satisfy Daubert. 

    Additionally, like Kincaid, O’Donnell failed to reliably consider dosage. He agreed dose response was relevant to toxicity. He knew there were acceptable daily intake levels of arsenic/lead under which toxicity would not be expected. Yet he conducted no analysis of the dose levels in the vitamins Mahler took or whether they exceeded acceptable thresholds. Instead, he reasoned that because Mahler developed neuropathy and his vitamins contained some level of arsenic/lead, they must have contained enough toxins to cause the neuropathy. The Court found this circular reasoning evidenced no reliable methodology under Daubert which rendered his opinions both unreliable and irrelevant.

    Held 

    In sum, the Court held that neither Kincaid nor O’Donnell employed reliable methods in reaching their causation opinions. Their failures to account for dosage of toxins in the vitamins rendered their testimony inadmissible under Rule 702. With no other evidence of causation, Mahler could not withstand summary judgment. Thus, the Court granted The Vitamin Shoppe’s motions to exclude Octavia Kincaid and James T. O’Donnell, and its motion for summary judgment. The Court denied as moot the motions to exclude Mahler’s other experts, Jon Clark and Stan Smith and subsequently terminated the case.

    Key Takeaways

    This product liability case illustrates the importance of ensuring expert witnesses employ reliable principles and methods under Daubert and Rule 702. The Court excluded both of Plaintiff Mahler’s causation experts because their opinions lacked sound methodology.

    • In toxic tort cases, experts must carefully consider dose and duration of exposure when rendering an opinion on causation. Both Kincaid and O’Donnell acknowledged this principle, yet failed to analyze or account for the levels of toxins in the vitamins Mahler consumed, it rendered their testimony unreliable.
    • Experts should not rely on unfounded assumptions or speculation. For example, O’Donnell unreasonably assumed that because Plaintiff was diagnosed with heavy metal-induced neuropathy and because the Vitamin Supplement that Plaintiff took contained lead and arsenic, it meant the Vitamin Supplement must have contained enough lead and/or arsenic to cause neuropathy. Expert opinions must be grounded in the facts of the specific case.
    • Additionally, Experts should avoid circular reasoning that uses the injury itself as proof of causation. The Court found O’Donnell employed this flawed logic.

    In excluding the experts, the Court demonstrated its critical gatekeeping role in vetting unreliable expert opinions before admission. Attorneys offering expert testimony must ensure their experts adhere to sound scientific principles and methods that can withstand Daubert scrutiny.

  • Court admitted the valuation expert reports presented by both parties in this case involving the termination of a wine distributorship agreement 

    Court admitted the valuation expert reports presented by both parties in this case involving the termination of a wine distributorship agreement 

    This case involved a dispute between Ste. Michelle Wine Estates, LLC (Plaintiff) and Tri County Wholesale Distributors, Inc. (Defendant) over the value of brands that Defendant had previously distributed for Plaintiff. The parties had a distribution agreement that was governed by the Ohio Alcoholic Beverages Franchise Act. This Act allowed a manufacturer like Plaintiff to terminate a distribution agreement upon a “change in control” over the manufacturer, but required the manufacturer to compensate the distributor for the diminished value from the loss of brands. 

    A change in control occurred with Plaintiff, and Plaintiff terminated the agreement with Defendant on December 28, 2021. The parties attempted to negotiate the diminished value but were unsuccessful. Plaintiff then filed this lawsuit seeking a judicial determination of the diminished value. The Court entered an interim order requiring Plaintiff to pay Defendant $112,500 based on Plaintiff’s last good faith offer.  That Order is subject to a final determination by Court, which will be made following a bench trial.

    Both parties retained experts to assess the diminished value. Plaintiff moved to exclude the report and testimony of Defendant’s business valuation expert witness, Edward “Ted” B. Wardell, while Defendant in turn moved to exclude certain opinions of Plaintiff’s business valuation expert witness, Justin L. Cherfoli. The Court denied both motions.

    Business Valuation Expert Witnesses

    Justin Cherfoli is a Managing Director in the valuation disputes practice and serves as the national practice leader for the firm’s Valuation Disputes/Family Law group. He has extensive experience as an expert witness and consultant in various financial matters, including business valuation, economic damages, and forensic accounting. His work has covered a wide range of purposes, including marital dissolutions, shareholder disputes, commercial litigation, estate and gift taxation, financing, purchase and sale advisement, intellectual property valuations, reasonable compensation, and other tax, corporate, and litigation-related matters. Additionally, he serves as a court-appointed or mutually agreed-upon financial expert in shareholder disputes and divorce matters. Prior to his current role at Stout Risius Ross, a leading global advisory firm, Justin worked with Ernst & Young, LLP, in its Assurance and Advisory Business Services Group in Detroit.

    Ted Wardell is a Certified Valuation Analyst (CVA), awarded by the National Association of Certified Valuation Analysts (NACVA). Wardell also brings 27 years of beverage industry experience to Ippolito Christon as the former owner operator of Point Pleasant Distributors, a 2.6mm case SABMiller/HUSA/Diageo distributor on the coast of central New Jersey. Through operating Point Pleasant Distributors, Wardell gained experience with business planning, improving operations, increasing cash flow and ROI, integrating merged distributors, and ultimately selling a distributorship. He has specific expertise in the financial and operational aspects of running a beverage distribution company. Wardell complemented his industry experience with formal education, including an Executive MBA in Finance from Rutgers University and a BA in Economics from the University of Pennsylvania.

    Discussions by the Court

    The Court first discussed Plaintiff’s motion to exclude the expert report and testimony of Ted Wardell. Plaintiff argued that Wardell’s valuation improperly included 2022 profits, violating Sixth Circuit precedent that a distributor cannot retain profits for a year if the valuation also includes lost profits for that same year. Wardell’s December 2021 valuation did not account for profits Defendant earned in 2022 from distributing Plaintiff’s brands after termination was announced. Plaintiff argued the Court could not simply deduct the 2022 profits, as the deduction would need to be adjusted to present value.

    Defendant countered that excluding 2022 profits was a legal issue, not a valuation issue, so it was not Wardell’s role to decide. Defendant argued that if the Court determined 2022 profits should be excluded, the Court could readily perform that calculation. Plaintiff asserted Wardell should not be permitted to alter his valuation methodology at this late stage of the litigation.

    Regarding Wardell’s inclusion of 2022 profits in his 2021 valuation, the Court found wholesale exclusion was not required. The Court was aware of the Sixth Circuit precedent barring inclusion of post-termination profits when valuation included projected lost profits as was established in Tri County Wholesale Distributors, Inc. v. Labatt USA Operating Co. Moreover, the Court found these issues went to the weight, not admissibility, of Wardell’s opinions, especially in a bench trial. The Court could properly weigh Wardell’s opinions with full knowledge of the relevant case law. If the Court found Wardell’s opinions inconsistent with the law, it could assign little or no weight. 

    Plaintiff argued that Wardell ignored the Sixth Circuit precedent which required using the average industry capital structure in the valuation, citing the Tri County case. Defendant countered that Tri County is not controlling and had no collateral estoppel effect as it was based on specific facts and did not mandate using the industry average capital structure.

    The Court agreed with Defendant’s position on this issue. The Court found that Tri County did not require using the average industry capital structure, since that case involved the beer industry and made a fact-specific determination of capital structure. The Sixth Circuit simply held that the district court did not “clearly err” in how it determined capital structure in that particular case. The Court rejected any argument of collateral estoppel that would bind Defendant to use the industry average capital structure based on Tri County.

    Excluding Defendant’s expert entirely for not using the industry average capital structure would essentially decide the case in Plaintiff’s favor. The Court found this drastic outcome is not warranted under Tri County. Ultimately, the capital structure issue represents a battle of the experts that the Court as trier of fact is equipped to resolve at trial. The Court declined to impose an industry average requirement based on Tri County, finding Defendant is not bound to use that capital structure method.

    The Court then discussed Plaintiff’s argument that Wardell just adopted marginal cost data from Defendant’s counsel. Marginal costs represent the “avoided costs” that a distributor would not incur without distributing certain brands. The lower the avoided costs, the higher the diminished value. Plaintiff argued Wardell should be precluded from testifying because he relied on marginal cost data provided by Defendant’s counsel rather than verifying the data himself. Wardell acknowledged the cost information from counsel seemed higher than expected. Plaintiff asserted an expert cannot simply offer counsel’s opinion as his own, so Wardell’s testimony should be excluded. Defendant noted that by relying on the data it provided, Wardell used higher avoided costs, resulting in a lower diminished value valuation that benefits plaintiff.

    The Court again found wholesale exclusion was not required, as diminished value involved several calculations. Even if the Court found Wardell’s report unreliable on avoided costs, it need not reject the whole report. The Court would be better positioned at trial to assess the reliability of the avoided costs analysis.

    Plaintiff argued that Wardell failed to comply with Rule 26(a)(2)(B) since a list of all of the cases in which he testified in the prior four years was not provided to the Court, nor was the compensation he was being paid for this case articulated. Defendant held it to be a moot point considering the relevant information regarding Wardell had been disclosed to the Plaintiff since then. The Court held that exclusion was not warranted on that basis.

    As for the Defendant’s motion to exclude certain opinions of the Justin Cherfoli, Defendant contended that Cherfoli’s analysis relied on what they described as “made up” data when assessing avoided costs and asserted that Cherfoli improperly incorporated fixed costs into his calculations. In response, Plaintiff stated that the data provided by the Defendant was insufficient and incomplete for conducting a proper evaluation of avoided costs. Plaintiff argued that Cherfoli’s expert opinion was grounded in his extensive experience.

    The Court first addressed the argument that Cherfoli relied on “made up” avoided costs data. The Court again found it could properly assess the reliability of the data at trial, so exclusion was not required. The Court also found it could determine if Cherfoli improperly included fixed costs, and reject that testimony after trial if needed. The Court observed that Defendant’s arguments went to weight rather than admissibility.

    Held

    In conclusion, the Court denied both motions to exclude expert testimony, finding the most of the issues identified went to the weight of the testimony rather than admissibility. With a bench trial, the Court was confident it could properly evaluate the expert opinions. The Court’s stance on the bench trial remains to be seen.

    Key takeaways: 

    The key takeaways with respect to expert witness testimony were:

    • The Court found most of the challenged aspects of the expert reports and testimony went to the weight of the evidence rather than admissibility. The Court was confident it could properly weigh the expert opinions at trial.
    • Issues like reliance on potentially unreliable data, failure to comply with disclosure requirements, and methodological deficiencies were found to impact weight rather than require outright exclusion in the instant case.
    • The Court was unwilling to exclude expert testimony entirely based on isolated deficiencies in the analysis. Only if the core of the expert’s opinion was deemed unreliable would exclusion be warranted.
    • The Court deferred some of the key challenges to expert methodology until trial, finding the context of the trial testimony would allow the Court to better evaluate reliability.

    In summary, the Court emphasized its role as the trier of fact in a bench trial and expressed confidence in its ability to properly weigh even questionable expert opinions based on the trial evidence. Daubert was deemed to be less of a concern when the trial judge was the trier of fact.

  • Court partly admits the consumer survey research and damages findings presented by the defense experts in trademark infringement suit

    Court partly admits the consumer survey research and damages findings presented by the defense experts in trademark infringement suit

    This case involved a trademark infringement lawsuit filed by Solid 21, Inc. against Richemont North America, Inc., Richemont International S.A., and Montblanc-Simplo GmbH (collectively “Defendants”). Solid 21 alleged that Defendants infringed on their RED GOLD trademark through Defendants’ use of “red gold” in advertisements for luxury watches.

    The Court previously dismissed Solid 21’s Lanham Act claims regarding one specific advertisement (“Exhibit 17”) on fair use grounds, finding that the usage of the term “red gold” in the advertisement clearly constituted fair use as a matter of law. 

    In this order, the Court ruled on Solid 21’s motions to exclude expert testimony from two of Defendants’ experts, Mark T. Keegan and Patrick F. Kennedy.

    Consumer Research and Damages Expert Witness

    Mark Keegan, has extensive experience in consumer research and survey design. He is a partner at Keegan & Donato Consulting, LLC, where he works as a litigation consultant focusing on trademark and marketing research. Over his two-decade career, Keegan has designed and executed over 700 consumer research studies involving more than 250,000 respondents on behalf of corporate and litigation clients. His research focuses on areas including consumer confusion, secondary meaning, genericness, and other consumer perception issues central to trademark disputes. Keegan has served as a survey expert in federal court litigations, submitting expert reports and providing testimony on consumer behavior and survey methodology.

    Patrick Kennedy is a Managing Director at Torrey Partners with over 20 years of experience providing analysis, consultation, and expert testimony in business and legal disputes. He has testified extensively as an expert in various courts and arbitrations across the country. Kennedy has analyzed economic damages and valuation issues in cases involving intellectual property, breach of contract, antitrust, false advertising, product liability, professional malpractice, and other claims. His intellectual property case experience includes patents, trademarks, copyrights, and trade secrets in fields such as medical devices, software, consumer products, and more. Kennedy has an economics doctorate from Stanford University and previously worked as an economist at the Federal Reserve. He has experience spanning a diverse range of industries and technologies.

    Discussions by the Court

    The Court first discussed Solid 21’s motion to exclude the expert testimony of Mark Keegan. Solid 21 argued Keegan was unqualified, his survey was irrelevant, and his findings were unreliable. The Court denied the motion. On qualifications, while Keegan lacked a specific degree relating to consumer surveys, the Court found his decades of consumer survey experience satisfied Rule 702’s threshold, distinguishing cases excluding Keegan based on insufficient indications of qualifications. On relevance, the Court found Keegan’s survey assessing whether consumers recognized “red gold” as a brand could be relevant to the descriptive use and good faith elements of fair use. Solid 21 failed to explain why the survey was irrelevant to fair use. The Court stated it would not exclude evidence potentially relevant on any ground. On reliability, the Court found Solid 21’s criticisms about the income level for Keegan’s universe, cell phone administration, and failure to filter some results went to weight not admissibility. The Court stated only substantial flaws warrant exclusion, and Solid 21 failed to demonstrate Keegan’s flaws met that standard.

    The Court then discussed Solid 21’s motion to exclude portions of Patrick Kennedy’s testimony. Solid 21 argued Kennedy improperly relied on Keegan’s survey and improperly opined on fair use. The Court granted the motion in part. It found Kennedy could not rely on Keegan’s brand awareness survey to estimate consumer preferences driving purchases for Kennedy’s apportionment analysis. The Court explained there was a fundamental mismatch between what Keegan’s survey measured (brand awareness) and how Kennedy used it (as a proxy for consumer motivations). The Court rejected Defendants’ argument that Keegan’s brand awareness findings could serve as a conservative estimate of consumer motivations. It found Kennedy conflated liability and the apportionment of profits by using Keegan’s brand awareness survey to apportion profits.

    The Court also granted Solid 21’s motion to exclude Kennedy from summarizing the Court’s prior fair use rulings or opining on what constitutes fair use, finding this would be an inadmissible legal conclusion. However, the Court denied Solid 21’s motion to exclude Kennedy from categorizing advertisements based on “red gold” usage, finding this permissible to synthesize voluminous evidence for the jury. In sum, the Court prevented Kennedy from relying on Keegan’s survey for apportionment purposes due to a mismatch with what the survey actually measured. The Court also prevented Kennedy from offering legal opinions about the Court’s prior fair use rulings, while allowing him to categorize evidence for the jury.

    Held

    In summary, the Court denied Solid 21’s motion to exclude Keegan’s survey findings entirely, finding them potentially relevant to Defendants’ fair use defense. However, the Court granted in part Solid 21’s motion to exclude Kennedy’s testimony, preventing him from relying on Keegan’s survey to estimate purchasing motivations and from opining on the Court’s prior fair use rulings. The Court found Kennedy had fundamentally misused Keegan’s brand awareness survey as a basis for apportioning profits and could not offer legal conclusions about fair use.

    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 witness testimony is relevant and reliably applies the expert’s methodology. The Court excluded portions of Kennedy’s testimony because he fundamentally misused survey data provided by another expert, Keegan. Kennedy sought to rely on Keegan’s survey results measuring consumer brand awareness as a basis for estimating what drove consumer purchasing decisions and apportioning profits. However, the Court found brand awareness relates to liability, while apportionment assumes liability is established and looks at what factors motivated sales. Since Keegan’s survey did not measure purchasing motivations, Kennedy could not reliably use it for apportionment purposes. This case underscores that experts must apply methodologies in a way that reliably fits the purpose for which the expert evidence is proffered. Experts also cannot offer legal opinions or summarize court rulings, as the Court barred Kennedy from opining on the legal standards for fair use. However, experts may synthesize evidence to streamline complex information for the jury. Overall, this case illustrates the need for expert opinions to be relevant, reliably applied, and avoid legal conclusions. Careful scrutiny of expert methodology and purpose is crucial.