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  • California Court admits the testimony of film and television industry experts in copyright infringement action 

    California Court admits the testimony of film and television industry experts in copyright infringement action 

    This case involved claims of copyright infringement brought by WMTI Productions, WMTI Productions North, and The Next Season Company (Plaintiffs) against Kevin Healey, Propagate Content, and unnamed Does (Defendants). Plaintiffs alleged that certain episodes of Defendant’s shows Prank Encounters and Double Cross infringed on certain episodes of Plaintiff’s show Scare Tactics.

    Specifically, Plaintiffs alleged the following episodes infringed:

    • Prank Encounters “Camp Scarecrow” infringed Scare Tactics “Camp Kill”
    • Prank Encounters “Face Fears” infringed Scare Tactics “My Heart Belongs to Misery”
    • Prank Encounters “End of the Road” infringed Scare Tactics “Road Kill”
    • Prank Encounters “Split Party” infringed Scare Tactics “Send in the Clowns”
    • Prank Encounters “Graveyard Shift” infringed Scare Tactics “Bicentennialien”
    • Double Cross “Open House” infringed Scare Tactics “Room with a View”

    Defendants filed a motion for summary judgment arguing there was no genuine dispute of material fact on liability or damages. They also filed motions to exclude the testimony of Plaintiff’s proposed expert witnesses on liability (Paul Jackson) and damages (Tyler Massey).

    Film and Television Industry Experts

    Paul Jackson is a highly experienced film and television writer-producer, having worked in the industry since 1988. He has been a member of the Writers Guild of America since 1988, writing and producing numerous television series over his 30+ year career. His credits include serving as Executive Producer, Co-Executive Producer, Supervising Producer, and Consulting Producer on shows like Lois and Clark, Sliders, Charmed, She Spies, and When Calls the Heart. Since 1992, Jackson has arbitrated writing credits for the Writers Guild, which involves closely analyzing scripts and stories to determine the creative contributions of different writers. Through this work and his extensive experience as a “Writer-Staff” Producer, Jackson has developed expertise in comparing scripts and assessing similarities between stories, characters, sequencing, settings, and other elements. In this case, he was retained to analyze the alleged substantial similarities between Plaintiff’s Scare Tactics episodes and Defendant’s Prank Encounters and Double Cross episodes. Jackson provided detailed plot, character, sequence, setting, and mood comparisons between these works in his expert report, given his qualifications to conduct such analysis based on his 30+ years as a professional television writer and producer.

    Tyler Massey has over 20 years of experience in the film and television industry, including roles in international content distribution, acquisitions, licensing, and financial analysis. He has negotiated hundreds of deals for formats, finished productions, and media rights across broadcast, cable, SVOD, and AVOD platforms. Massey has extensive expertise in market valuation, revenue forecasting, and cost apportionment for television programming. He has worked for production companies, studios, and distribution firms, evaluating content sales strategies and revenue projections. In this case, Massey provided a damages analysis regarding lost revenues and brand value for Scott Hallock/WMTI based on alleged infringement and substitution of Defendant’s shows for a reboot of Scare Tactics. His industry experience qualifies him to opine on these matters.

    Discussions by the Court

    The Court denied Defendant’s motion for summary judgment on liability. The Court found there was a genuine dispute of material fact regarding substantial similarity under the extrinsic test, which looked at objective criteria like plot, themes, characters, etc. Plaintiff presented evidence about the selection and arrangement of unprotectable elements that could constitute an original work. The Court rejected Defendant’s argument that Plaintiff failed to properly invoke a selection and arrangement theory and found the allegations in the complaint gave adequate notice.

    The Court also denied summary judgment on damages. It found that Plaintiff presented evidence which supported at least some of their claimed damages categories tied to lost opportunities to monetize Scare Tactics due to the existence of Prank Encounters. For example, evidence indicated Netflix declined to exercise an option to produce new Scare Tactics episodes because its needs were satisfied after having acquired Prank Encounters around the same time.

    Defendant sought to exclude the expert opinions and testimony of Tyler Massey, Plaintiff’s proffered damages expert, on several grounds. First, Defendant asserted that Massey’s damages calculations had no relation to Plaintiff’s infringement allegations because he analyzed harm to the overall Scare Tactics format rather than damages resulting specifically from infringement of the six copyrighted segments at issue. However, the Court found that damages to the value of the broader Scare Tactics series were recoverable under 17 U.S. Code § 504, which allowed recovery for any harm caused by the infringement, not just harm to the intrinsic value of the copyrighted work. Second, Defendant argued that Massey’s testimony was unreliable because it relied on layers of speculation, including assuming Scare Tactics would have been rebooted if not for the existence of the show Prank Encounters. But the Court noted that assumptions are a necessary part of any damages calculation given the counterfactual nature of a world without infringement. As long as the assumptions were reasonable and grounded in evidence, any flaws went to the weight of Massey’s testimony rather than its admissibility. Third, Defendant sought to preclude Massey from opining on substantial similarity between the works accused of infringement and the asserted copyrighted works, an issue on which he lacked expertise. The Court agreed Massey could not offer his own opinion on similarity, but he could calculate damages based on the assumption that the works were substantially similar. Fourth, Defendant moved to exclude one category of Massey’s damages related to infringement of a wholly unrelated work, Joke’s On You, which seemed to stem from a settlement agreement rather than any copyright violation alleged in the case. Since this category did not arise from the claimed infringement, the Court excluded it. Aside from this one category, the Court otherwise denied exclusion of Massey’s damages calculations and held his assumptions and speculation permissible bases for expert testimony.

    Defendant separately sought to exclude the expert testimony of Paul Jackson, Plaintiff’s proposed witness on the similarities between the copyrighted Scare Tactics episodes and those of Defendant’s shows. Defendant argued Jackson failed to apply the extrinsic similarity test because he did not filter out non-expressive, unprotected elements before analyzing the works’ similarities. According to Defendant, this rendered Jackson’s opinion unreliable and unhelpful. However, the Court noted that wholesale filtering was not required under the selection-and-arrangement theory pursued by the Plaintiff, and in any event, Jackson’s similarity analysis methodology was valid and helpful to the factfinder. Which elements were protectable and which were unprotected scenes-a-faire was a factual issue for the jury to decide; Jackson could present his overall analysis, while Defendant could provide their own contradicting evidence on unprotected elements. Thus, Jackson’s failure to filter did not warrant exclusion but simply went to the weight the jury should accord his opinion. Defendant remained free to cross-examine Jackson and argue his testimony should receive little weight. But the Court denied exclusion of Jackson’s similarity analysis wholesale, finding his methodology sufficiently reliable despite the lack of filtering.

    Held

    The Court largely denied Defendant’s motion to exclude Plaintiff’s damages expert Tyler Massey, finding his assumptions and speculative damages calculations were permissible bases for expert testimony. The only exclusion was one category of damages unrelated to the asserted copyrights. Regarding Plaintiff’s liability expert Paul Jackson, the Court wholly denied Defendant’s motion to exclude his substantial similarity analysis. Despite Jackson’s failure to filter out unprotected elements, the court found his similarity analysis methodology was reliable and helpful to the factfinder. Any flaws in his approach went to the weight of Jackson’s testimony rather than its admissibility. Thus, aside from one minor carveout, the Court denied exclusion of the expert analyses of both Massey and Jackson. 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 motion to exclude the expert testimony of Paul Jackson in regards to substantial similarity was denied by the court as his methodology was reliable despite failing to differentiate the unprotected elements. The flaws in the methodology of Jackson raised issues for cross-examination and not for exclusion. 
    • The motion to exclude the expert testimony of Tyler Massey was partially denied. Massey was permitted to make assumptions in relation to the calculation of hypothetical damages. Massey was prohibited from providing opinions in relation to substantial similarity, as he lacked expertise. The damages unrelated to the asserted copyrights were excluded from the testimony of Massey. 
    • Disagreements or flaws regarding the expert testimony are often ruled to go to the weight of the testimony rather than admissibility. 

    In summary, the key takeaways are that  disagreements and questionable methodology choices generally should not be the grounds for the wholesale exclusion of the expert. In such scenarios, the court favors cross-examination and contrary evidence to address the flaws in the testimony of the expert.

  • Court admits royalty analysis on a convoyed sales approach, denied motion to exclude in Patent Infringement case

    Court admits royalty analysis on a convoyed sales approach, denied motion to exclude in Patent Infringement case

    This case arose from a patent infringement lawsuit filed by the Plaintiff, Daedalus Blue, LLC against the Defendant, MicroStrategy Incorporated. Daedalus alleged that MicroStrategy’s analytics software products infringed on two patents originally developed by IBM – the ‘172 patent related to data storage and retrieval techniques, and the ‘076 patent related to restricting user access. As the case proceeded to the damages phase, MicroStrategy filed a motion to exclude certain opinions of Daedalus’ damages expert Jim W. Bergman under Daubert and Federal Rule of Evidence 702. The expert analysis of Bergman stood amidst claims of unreliability.

    Damages Expert Witness 

    Bergman specializes in intellectual property, commercial and bankruptcy litigation.  He has served as a testifying or consulting expert in complex business litigation, patent and technology, trade secrets, trademarks, securities litigation, business valuation, bankruptcy reorganization, solvency and general damages related matters.  

    Discussion by the Court 

    MicroStrategy argued that Bergman improperly included non-infringing products and features in his royalty calculations, inflating the value attributed to the patented inventions. The Court appointed a Special Master to evaluate the motion. The Special Master issued a Report and Recommendation (R&R) where it denied the motion to exclude and found that Bergman reliably calculated and apportioned a royalty base and profit split. MicroStrategy filed an objection to the R&R and disputed the findings on the royalty base, apportionment related to the ‘076 patent, and Bergman’s alleged failure to account for MicroStrategy’s preexisting 7i product. 

    Bergman’s theory emphasized on a functional relationship between the accused products and the support and maintenance packages to prove his point that damages can be found where unpatented components “function together with the patented component in some manner as to produce a desired end product or result.”The Court first addressed Bergman’s inclusion of non-accused support and maintenance revenue in the royalty base. MicroStrategy characterized this as an improper “entire market value” analysis, but the Court found Bergman appropriately applied a “convoyed sales” analysis based on the functional relationship between the software and support packages. The Court explained convoyed sales principles allow including non-patented items functionally linked to the patented items, without the same stringent requirements as the entire market value rule, citing Rite-Hite Corporation v. Kelley Company. The Court agreed with the Special Master that Bergman reliably demonstrated the necessary functional relationship between the software and support, as the support maintains and extends the software’s usability. The Court agreed with Bergman’s theory which stressed on the existence of a functional relationship between between the accused products and the support and maintenance packages.

    Next, the Court examined the objection to Bergman’s 20% apportionment figure for the value attributable to the ‘076 patent. MicroStrategy argued this was an arbitrary “black box” analysis without sufficient methodological support. However, the Court found Bergman articulated a reliable step-by-step methodology tracing the security capabilities covered by the ‘076 patent through MicroStrategy’s products. Despite lack of mathematical weights for each factor, Bergman sufficiently explained his basis using documents produced by MicroStrategy and the opinion of Daedalus’ technical expert. The Court ruled Bergman’s analysis satisfied Rule 702 and overruled the objection. 

    The Court also rejected MicroStrategy’s argument that Bergman failed to apportion out value from non-patented features of its 7i product released prior to the patents. The Court held damages experts may appropriately rely on technical experts regarding product functionality, and Bergman was entitled to credit the opinion of Daedalus’ technical expert that no valid non-infringing alternatives existed. The Court emphasized MicroStrategy did not independently challenge the technical expert’s opinions. Bergman also reserved the ability to respond to any alternative damages calculations proposed by MicroStrategy’s experts at trial. 

    After the objections were reviewed, the Court overruled each one in turn and adopted the Special Master’s R&R denying the motion to exclude. The Court found Bergman’s royalty base analysis, apportionment approach, and reliance on the technical expert opinions were sufficiently reliable to satisfy Rule 702 standards. MicroStrategy’s specific criticisms did not require exclusion and were more properly addressed through cross-examination and presentation of contrary evidence at trial. 

    Held 

    In conclusion, the Court’s order provided guidance on several key principles for expert damages testimony in patent cases: 1) Convoyed sales treatment based on functional linkage did not require meeting the same stringent entire market value test; 2) Specific mathematical weights were not absolutely required for each apportionment factor if the overall methodology was sound; 3) Damages experts could appropriately rely on opinions of technical experts; 4) Criticisms of an expert’s methodology were often better addressed by cross-examination and contrary testimony rather than outright exclusion. The Court admitted the testimony of expert Bergman amidst claims of unreliability. By denying the motion to exclude, the Court ruled that despite MicroStrategy’s disputes, Bergman could testify at trial subject to being challenged on cross-examination. The outcome of the case remains to be seen since the remaining issues involved in this case are yet to be fully resolved. 

    Key Takeaways: 

    1. The Court upheld the expert’s use of a convoyed sales analysis to include non-patented items linked to the patented products in the royalty base. This does not require satisfying the same stringent standards as the entire market value rule. 
    1. The expert’s apportionment approach was deemed sufficiently reliable even without specific mathematical weights assigned to each factor. The overall methodology and explanation were sound. 
    1. The Court ruled damages experts can appropriately rely on technical experts regarding product functionality and non-infringing alternatives. 
    1. Challenges to an expert’s methodology are often better handled through cross-examination and contrary testimony rather than outright exclusion. 
    1. The expert’s royalty analysis, apportionment approach, and reliance on a technical expert were deemed sufficiently reliable under Daubert standards. 
    1. Criticisms of an expert’s methodology do not necessarily require exclusion of the testimony under Daubert. The Court emphasized addressing disputes through cross-examination. 
    1. By denying the motion to exclude, the Court ruled the damages expert could testify at trial, despite alleged shortcomings in his methodology raised by the Defendant. 

    In summary, the key takeaways focus on the Court affirming this damages expert’s methodology as sufficiently reliable under Daubert, enabling the testimony despite Defendant’s criticisms better addressed through cross-examination. The decision provides guidance on application of Daubert standards to expert methodology in patent cases. 

  • Colorado Court weighs reliable basis of Pathology Expert’s testimony over semantics in medical negligence suit 

    Colorado Court weighs reliable basis of Pathology Expert’s testimony over semantics in medical negligence suit 

    Plaintiff, Deborah Duran pursued claims of medical negligence and malpractice against the Defendants, Donald Corenman, M.D.; Sean Bryant, M.D.; Jack Anavian, M.D.; The Steadman Clinic, Professional LLC; And Trystain Johnson, M.D. arising from the untimely death of her husband, Gilbert Duran due to a rare melanic schwannoma. Plaintiff is not only Mr. Duran’s widow but also acted as the personal representative of her late husband’s estate. The core contention in this case was that the Defendants, purported medical professionals, had delayed in diagnosing Mr. Duran’s schwannoma upon its initial discovery in 2015. This alleged delay led to the tumor metastasizing, ultimately resulting in Mr. Duran’s demise in 2019. Plaintiff sought to preclude certain opinions of defense expert Dr. Gross regarding the tumor’s likely characteristics and poor prognosis in 2015, but the Court admitted it regardless because it weighed reliable basis over semantics dispute. 

    Anatomic Pathology Expert 

    John McMahon Gross, M.D., M.S. had been designated by the Defendants to provide expert testimony regarding the pathology issues in this case and offer an opinion on the likely characteristics of the tumor back in 2015. Following pathology residency, Dr. Gross pursued specialized fellowship training in bone and soft tissue at the University of Washington in Seattle, WA followed by additional fellowship training in surgical pathology at the Mayo Clinic in Rochester, MN. In 2020, Dr. Gross became an assistant professor in the Department of Pathology at Johns Hopkins where he specializes in bone and soft tissue and surgical pathology. Dr. Gross has an academic interest in bone and soft tissue tumors and has authored over a half dozen articles and chapters and given national and international presentations on sarcoma pathology. Dr. Gross’s stance was that the tumor had been malignant in 2015, carrying a grim prognosis even with early intervention. 

    The Plaintiff sought to exclude a specific facet of Dr. Gross’ expert opinion from consideration. 

    Discussions by the Court 

    Citing his March 30, 2022 expert report, the Plaintiff presented several arguments to strike Dr. Gross’ opinion that increased mitotic activity predicted malignancy. First, the Plaintiff contended that Dr. Gross had failed to provide supporting medical literature for this opinion which rendered it unsupported and undermined its credibility. Second, the Plaintiff argued that this opinion was irrelevant to the central issues of the case since it lacked empirical backing to contribute meaningfully to the understanding of Gilbert Duran’s circumstances. Third, even if considered relevant, the Plaintiff invoked Rule 403 of the Federal Rules of Evidence which suggested that any potential probative value of the unsupported opinion was outweighed by its potential for confusion or prejudice. 

    In response, the Defendants asserted that the Plaintiff’s contentions were mischaracterizations of Dr. Gross’ opinion and its underpinnings. They argued that the Plaintiff had introduced the term “predict” during the deposition, whereas Dr. Gross had framed his opinion as an association or correlation between mitotic activity and poor prognosis. The Defendants further maintained that Dr. Gross’ opinion was built upon sufficient facts and data and highlighted the Plaintiff’s own reference to the Torres-Mora study that supported his stance and was thoroughly discussed during Dr. Gross’ deposition. The Defendants contended that Dr. Gross’ opinion was reliable, relevant, and logically derived from existing scientific knowledge. 

    In conclusion, the Court faced the critical task of evaluating the admissibility of Dr. Gross’ opinion, specifically his opinion which suggested an association or correlation between high mitotic rates and poor prognosis. The outcome of this decision held significant weight, as Dr. Gross’ expert testimony had the potential to shape the Court’s understanding of the medical aspects of the claim. Balancing the arguments presented by both parties, the Court’s determination would impact the course of the case and potentially influence the attribution of liability and the assessment of damages. 

    Plaintiff’s central argument revolved around their assertion that Dr. Gross intended to provide testimony which suggested that increased mitotic activity in 2017/2018 predicted aggressive behavior of tumors and was predictive of the tumor in 2015. The Plaintiff equated this opinion with the notion that mitotic rate predicted malignancy. Additionally, the Plaintiff emphasized the viewpoint of Dr. Folpe, Dr. Gross’ mentor and a respected expert in the field, who disagreed with Dr. Gross’ opinion and did not subscribe to the belief that mitotic rate predicted metastasis. The Plaintiff fervently urged the Court to strike Dr. Gross’ opinion about increased mitotic activity being predictive of aggressive behavior. 

    The Plaintiff conflated the term “predicts” with “causation” in their argument which further intensified the matter. They illustrated this by drawing an analogy which asserted that just as a correlation between ice cream sales and shark attacks did not imply that consuming ice cream caused shark attacks, a similar principle applied to the correlation between increased mitotic activity and metastasis. The Plaintiff contended that association was never the same as prediction and exemplified this with the analogy of a person associating with a criminal not necessarily predicting that the individual will commit a crime themselves. 

    However, the Court concurred with the Defendants’ stance that the Plaintiff aimed to exclude an opinion that Dr. Gross did not actually present. After carefully examination of Dr. Gross’ written opinion and deposition testimony, it was apparent that the core of his written opinion centered on Mr. Duran’s tumor being an exceptionally rare type of sarcoma which possessed aggressive traits and a malignant histology. Dr. Gross maintained that the aggressive features noted in the tumor’s 2018 diagnosis were likely present in 2015 which indicated a bleak prognosis even if diagnosed earlier. He argued that the aggressive nature of the tumor would have made a significant impact even if treated in 2015. Dr. Gross concluded by stating that the tumor’s aggressive attributes and the presence of these traits in 2018 imply their existence in 2015, and that early diagnosis and treatment may not have prevented recurrence or metastasis. 

    Contrary to the Plaintiff’s assertions, nowhere in Dr. Gross’ report did he offer the specific opinion that a high mitotic rate predicted malignancy. Even during his deposition testimony, when asked about whether he believed that mitotic activity was predictive of malignant behavior, Dr. Gross responded by saying that it had been associated with a worse prognosis. Despite further pressing from the Plaintiff’s counsel, Dr. Gross consistently maintained that mitotic activity had been merely suggestive or associated with an unfavorable outcome. 

    In conclusion, the Plaintiff’s argument hinged on the interpretation that Dr. Gross asserted a predictive link between increased mitotic activity and aggressive behavior of tumors. However, the Defendants and the Court contended that Dr. Gross’ opinion did not explicitly express such a predictive relationship, but was suggestive of a relationship of association between a poor prognosis and high mitotic activity present in the subject tumor. This nuanced distinction became pivotal in determining the admissibility and weight of Dr. Gross’ expert testimony within the context of the case. 

    The crux of the dispute in this case appeared to center around a semantic distinction. The Plaintiff seemingly equated the phrase “predictive of” with terms like “caused” or “causation.” However, the Court did not find that Dr. Gross’ opinion, as articulated in both his written report and deposition testimony, could be interpreted as encompassing a notion of prediction. Furthermore, even if it were assumed to involve prediction, in the realm of medicine, “predictive” did not necessarily denote causation. The term “predictive value” in a medical context, as defined by Stedman’s Medical Dictionary, referred to the likelihood that a given test result correlates with the presence or absence of a disease. This definition aligned with Dr. Gross’ medical opinion and underscored the Court’s understanding that his opinion was grounded in a correlation, not a statement of causality. In other words, the court weighed the reliable basis over semantics. 

    The Plaintiff’s challenge to Dr. Gross’ qualifications or experience did not seem to hold weight in this argument. Dr. Gross evidently derived his opinions not solely from referenced medical literature and scientific sources, but also from his substantial education, training, and experience as a pathologist. Moreover, the Court deemed the Torres-Mora study and the World Health Organization Classification of Tumors – Soft Tissue and Bone Edition (5th Ed.), in conjunction with other factors referenced in Dr. Gross’ report, as sufficient support for his opinion. This collective foundation rendered his opinion adequately reliable. 

    Held 

    Dr. Gross’ opinion regarding any observed association, suggestion, or correlation between heightened mitotic activity and a poor prognosis in the specific tumor in question was indeed relevant to the Plaintiff’s claim of delayed diagnosis and the Defendants’ defenses. Considering all factors, the Court found no substantial basis under Fed. R. Evid. 403 to exclude Dr. Gross’ opinion from the proceedings. This ruling acknowledged the relevance, reliability, and context of Dr. Gross’ testimony within the broader framework of the case. 

    The Defendants have effectively fulfilled their obligation to demonstrate that Dr. Gross’ opinion met the criteria stipulated in Fed. R. Civ. P. 702. It is worth noting that the Plaintiff retained the prerogative to subject Dr. Gross to thorough and respectful cross-examination regarding the matters addressed in her motion and during Dr. Gross’ deposition. Consequently, the Court denied the motion and upheld the admissibility of Dr. Gross’ opinion as evidence in the case. Since the remaining issues are yet to be resolved, the Court has not reached a final outcome for this case as of now.

    Key Takeaways 

    1. The Court rejected the Plaintiff’s argument that the expert’s opinion lacks sufficient basis and should be excluded as irrelevant or prejudicial. 
    1. The Court found the defense expert does not actually opine that mitotic activity predicts tumor metastasis or malignancy, only that there is an association or correlation between high mitotic rates and poor prognosis. 
    1. The Court viewed the dispute over the language used by the expert as merely semantic in nature. The term “predictive” does not necessarily imply causation in a medical context. 
    1. The Court held the expert’s opinions are sufficiently reliable based on his qualifications/experience as a pathologist and the medical literature cited in his report. 
    1. The Court found the expert’s views relevant to the issues in the medical malpractice case regarding delayed diagnosis and defenses. 
    1. The Court ruled the defense satisfied its burden under Rule 702 to show the testimony is admissible expert opinion. 
    1. The Court emphasized the Plaintiff can vigorously cross-examine the expert about his opinions at trial. 
    1. The Court denied the motion to strike/preclude the expert’s testimony, allowing him to offer opinions at trial on the characteristics of the tumor and likely prognosis. 

    In summary, the key takeaways are that the Court allowed the defense expert to testify despite Plaintiff’s challenges, finding his opinions supported, relevant, and reliable based on the appropriate expert methodology and standards. The Court saw flaws only in the semantics used to describe the opinion, not the underlying basis. 

  • Eleventh Circuit clarifies the difference between the two types of expert witness disclosures under Rule 26

    Eleventh Circuit clarifies the difference between the two types of expert witness disclosures under Rule 26

    Holds why an expert was hired originally, and not the subject matter of their testimony determines which disclosure rule to apply.

    Federal Rule of Civil Procedure 26(a)(2) outlines two types of pretrial disclosures for expert witnesses— Federal Rule of Civil Procedure 26(a)(2)(B) and 26(a)(2)(C).

    Rule 26(a)(2)(B) applies to retained experts or those employed to regularly provide expert testimony and requires a written report prepared and signed by the expert witness containing 6 components: complete statement of opinions and basis; facts/data considered; exhibits to be used; qualifications and publications; list of other cases testified in past 4 years; and statement of compensation.

    Rule 26(a)(2)(C) applies to non-retained experts who do not regularly testify, such as treating physicians and requires a disclosure instead of a report which can be submitted by an attorney instead of the expert containing summary of opinions the expert will offer and summary of facts/qualifications underlying them. It is less detailed than a written report. 

    The Eleventh Circuit clarified the difference between two types of expert witness disclosures under Rule 26 in this personal injury and torts case.

    Cajule Cedant was involved in an accident with a U.S. Postal Service truck and sued the federal government under the Federal Tort Claims Act, alleging he suffered injuries in the crash and incurred medical expenses. The government disputed the accident caused Cedant’s injuries. A key issue in pretrial proceedings was causation – whether Cedant’s medical problems were caused by the accident, as the government claimed his injuries predated the crash.

    To meet his burden on causation, Cedant planned to offer expert testimony from several doctors who treated him after the accident. The court’s initial scheduling order required “treating physicians offering opinions beyond those arising from treatment” to file a detailed expert report under Federal Rule of Civil Procedure 26(a)(2)(B). Cedant submitted reports he called “Rule 26(a)(2)(B) Disclosures” for his experts. However, he claimed they were not truly “retained experts” needing to file such reports. The government argued the reports did not comply with Rule 26(a)(2)(B). Cedant then tried to get an extension of time for his experts to complete their reports. After various disputes over the reports, the court eventually excluded Cedant’s experts for noncompliance with Rule 26(a)(2)(B) and granted summary judgment to the government. 

    On appeal, the Eleventh Circuit held that the district court was wrong to categorically require Cedant’s treating physicians to submit Rule 26(a)(2)(B) reports just because they were testifying on causation. The Rule focuses on why an expert was hired, not the content of the testimony. Cedant’s doctors were initially hired to treat him, rather than to testify. Therefore, he only needed to file the less extensive Rule 26(a)(2)(C) disclosures for them. 

    However, the court said Rule 26(a)(2) also allows parties and courts discretion to modify the default disclosure rules when appropriate for a case. Here, the district court misunderstood that requiring Cedant’s witnesses to submit detailed reports was discretionary rather than mandatory. Because the court applied an incorrect legal standard in excluding the experts, the appeals court vacated the summary judgment order. But it affirmed denial of Cedant’s own summary judgment motion, since causation evidence was still required. 

    On remand, the district court can evaluate whether Cedant’s filings met Rule 26(a)(2)(C), or it can issue a new order invoking its discretion to require more detailed Rule 26(a)(2)(B) reports on causation. Overall, the appeals court clarified that the retained versus non-retained distinction in Rule 26(a)(2) depends on the original purpose behind hiring an expert. The district court has discretion to tailor requirements beyond the defaults but did not recognize its discretion here. By vacating summary judgment, the appeals court gave Cedant another chance to prove causation, either through Rule 26(a)(2)(C) disclosures or modified expert reports if the district court requires them. 

    Key Takeaways: 

    1. The default disclosure rules focus on why an expert was hired originally, not the subject matter of their testimony. Experts retained specifically for litigation must file detailed 26(a)(2)(B) reports. But experts like treating physicians who are involved first for other reasons only need to provide 26(a)(2)(C) disclosures. 
    1. Just because a non-retained expert like a treating doctor testifies on a particular topic, like causation, does not automatically require a 26(a)(2)(B) report. The district court wrongly imposed this categorical rule. 
    1. However, courts have discretion to order more detailed disclosures beyond the defaults if appropriate for a case. Here, the district court did not recognize its power to request causation experts file reports was discretionary. 
    1. On remand, the district court can evaluate whether Cedant’s filings met 26(a)(2)(C) requirements as written. Or it can issue a new order invoking discretion to require 26(a)(2)(B) reports on causation. 
    1. But imposing more stringent requirements than the defaults must be an exercise of reasoned discretion, not a perceived mandate from the Rules. 
    1. Overall, parties must understand what relationship triggers default disclosure duties for experts under 26(a)(2). But courts may tailor requirements beyond the defaults through orders invoking their case-specific discretion. 
  • Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Nebraska Court excludes Employment Law Expert’s testimony in Employment Discrimination suit 

    Employment Law expert's testimony excluded

    Plaintiff Amanda Benson, a female firefighter/EMT, has initiated legal proceedings alleging violations of her civil rights against multiple defendants, including the City of Lincoln, Nebraska, various city officials, and personnel from Lincoln Fire and Rescue (LFR). Benson was hired by LFR as a Firefighter/EMT on July 1, 2013, and was permanently assigned to Station 8 and the Engine 8 crew for C shift on October 15, 2014. Subsequently, she became Acting Captain on Engine 1 at Station 1 and later Acting Captain of Truck 1 at the same station. 

    Benson contends that she experienced sexual discrimination, harassment, and retaliation throughout her tenure with LFR. The alleged mistreatment were largely linked to conduct attributed to Captain Shawn Mahler, who was the leader of the Truck crew at Station 8. She formally lodged complaints with the Nebraska Equal Opportunity Commission (NEOC) on August 15, 2016, and with the federal Equal Employment Opportunity Commission (EEOC) on October 14, 2020. Notably, many of Benson’s claims regarding discrimination, harassment, and retaliation are tied to Captain Mahler’s actions. 

    A significant incident occurred on April 26, 2021, during which LFR responded to a warehouse fire involving both Benson’s crew in Truck 1 and Mahler’s crew in Truck 8. Benson asserts that Mahler abandoned her during this event, posing a potential threat to her and her crew’s safety. On May 5, 2021, Benson reported the incident and lodged a formal complaint with her superiors at LFR, contending that Mahler’s actions during the warehouse fire could have potentially killed or seriously injured her and her team. 

    Following an internal investigation, Fire Chief David Engler, who is not a party to this litigation, concluded that Benson’s allegations against Mahler were false and that her behavior amounted to obstructing LFR’s operations and casting discredit on the department. Consequently, Engler found “good cause” for her dismissal. 

    Benson disputed the findings of the internal investigation and commenced legal action by filing her original Complaint in Lancaster County, Nebraska’s District Court on July 6, 2018. The defendants opted to remove the case to federal court. However, her Fourth Amended Complaint, submitted on November 11, 2021, stands as her current operative pleading. 

    In her Fourth Amended Complaint, Benson asserts eight distinct causes of action. Her primary claims include allegations of a sexually hostile work environment, retaliatory harassment, sexual discrimination, and retaliation, with some claims brought under the Nebraska Fair Employment Practice Act (NFEPA) and others under Title VII of the Federal Civil Rights Act. Furthermore, she alleges violations of the Equal Protection Clause of the United States Constitution against both the City of Lincoln and individual defendants. 

    The Defendants countered by jointly filing an Answer on December 6, 2021, wherein they denied Benson’s claims and put forth various affirmative defenses. A subsequent court ruling addressed a Motion for Partial Summary Judgment by Benson and a Motion for Summary Judgment by the defendants. The court denied Benson’s motion concerning certain affirmative defenses and rejected the defendants’ motion for summary judgment regarding all claims detailed in Benson’s Fourth Amended Complaint. Benson offered the testimony of a forensic psychiatry expert and employment law expert to substantiate its claims of employment discrimination, harassment, and retaliation. As discussed below, the Court excluded the testimony of the employment law expert but admitted the testimony of the forensic psychiatry expert.

    Forensic Psychiatry and Employment Law Expert Witness

    Defendant filed successive Daubert motions to exclude the testimony of Benson’s experts Dr. Christiane Tellefsen, M.D. and Amy Johanna Oppenheimer J.D., B.A. 

    Dr. Christiane Tellefsen is a board-certified general and forensic psychiatrist, retained to provide opinions regarding Amanda’s medical diagnoses, causation, and damages. 

    Amy Oppenheimer is an attorney retained to offer expert opinions on the acceptable human resources practices of employers in response to complaints of workplace discrimination, harassment, and retaliation and whether Defendants’ actions with respect to Benson met the standard of care. 

    Discussion by the Court 

    Dr. Christiane Tellefsen

    Dr. Christiane Tellefsen was retained by Benson to opine on whether or not Benson had an disorder and if she did, Tellefsen was required to assess the possible effects it could have on Benson’s employment at the Lincoln Fire Department in Lincoln, Nebraska. Tellefsen was of the opinion that Benson had major depressive tendencies which exacerbated her PTSD symptoms resulting from her employment at the Lincoln Fire Department and that the nature of her condition was chronic which necessitated ongoing treatment. 

    Dr. Tellefsen reviewed the report of a neuropsychological evaluation conducted by Defendants’ expert Dr. Robert George Arias, Ph.D. and on her second report dated December 10, 2020 opined that Dr. Arias’ report was inconsistent with Benson’s history and treatment and the symptoms of personality disorder listed by him were either incorrect, such as pill abuse, or more fully consistent with her PTSD. Dr. Tellefsen opined that Benson relapsed into her depressive tendencies and anger issues stemming from her abusive childhood as a result of her situational stress at the Fire Department. She also attributed  Benson’s physical problems resulting from her work related injuries and her loss of relationships to situational work-related stress. 

    Defendants have not challenged the qualifications of Expert Tellefsen but have instead questioned the relevance of Tellefsen’s testimony contending it was of little assistance to the trier of fact. Expert Tellefsen has not elaborated which aspect of Benson’s employment exacerbated her mental health problems or how discrimination, retaliation or harassment worsened her mental health condition and not workplace stressors common to all firefighters.  

    But the Court however held that Tellefsen’s opinions were suggestive of Benson’s deteriorating mental health being linked to the discrimination, retaliation and harassment she was subjected to at her workplace instead of workplace stressors common to all firefighters because Tellefsen had acknowledged, especially in her deposition, that despite the existence of both sources of stress, Benson was able to cope successfully with the common stressors.  

    Defendants also contended that Tellefsen’s testimony lacked a reliable methodological basis considering her diagnosis of the sources of Benson’s mental health issues was not based on verifiable test results or scientific testing. For instance, Tellefsen by her own admission had ceased to use the Minnesota Multiphasic Personality Inventory (MMPI). 

    The Court noted that Tellefsen’s forensic methodology of conducting a psychiatric examination was universally recognized in the psychiatric community as a reliable method for differential diagnosis and causation analysis. Besides, the Court was of the opinion that the jury should take into account the sufficiency and validity of the reasons that Tellefsen stated for precluding the use of MMPI instead of rejecting her testimony for not using that one particular diagnostic tool. The Court admitted the testimony of Expert Tellefsen but nevertheless permitted the defense to pursue the issue through means of cross examination. 

     Amy Oppenheimer

    Oppenheimer is an attorney not licensed in Nebraska who was retained by Benson as a human resources expert to review the Defendant’s human resource practices with regard to allegations of discrimination, harassment and retaliation. Oppenheimer was tasked with opining on typical and acceptable human resource practice with regard to responding to and investigating complaints of employment discrimination.  

    Oppenheimer listed multiple flaws and deficiencies in the Defendant’s response to and investigation of Benson’s workplace discrimination, harassment and retaliation claims and concluded that Defendant’s termination of Benson was wrongful. 

    The Court held that Oppenheimer’s opinions were of no assistance to the trier of fact. The Court does not question the reliability of Oppenheimer’s testimony or her qualifications but held that Oppenheimer opined on matters of law which invaded the province of the Court such as her testimony on the acceptable human resource practices Defendant was supposed to follow to conduct its investigation of Benson’s claims seeks to define the “standard of care” followed by the Defendants by something other than this Court’s statement of the applicable law. Moreover, the testimony by Oppenheimer about reasonable investigation techniques that Defendants could have employed does not properly demonstrate the inadequacy of the investigation techniques Defendants did use. 

    Held 

    The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Tellefsen but granted the Defendants’ Daubert motion to exclude the Testimony of Plaintiff’s expert Oppenheimer. Since the issues involved in this case are yet to be resolved, the outcome of the case remains to be seen. 

    Key Takeaways: 

    1. Legal Conclusions: The expert is not allowed to invade the jury and the Court’s province by drawing conclusions as to matters of law. Oppenheimer in the instant case sought to define the “standard of care” by something other than the Court’s statement of the applicable law which served as basis to exclude her testimony. 
    1. Reliability of the testimony: Defendant sought to exclude the testimony of expert Tellefsen primarily because she precluded the usage of MMPI, a standardized diagnostic tool which did not warrant exclusion as was held by the Court because the Defendant was required to look into the sufficiency and validity of the reasons Tellefsen cited for excluding MMPI. 
  • Alaska District Court Limits Insurance Expert’s Testimony  

    Alaska District Court Limits Insurance Expert’s Testimony  

    In the spring of 2018, a building that Plaintiff, Tundra Mountain Holdings, LLC owned allegedly “suffered damages consisting of building roof failure due to snow load.” Plaintiff subsequently submitted a insurance claim to the Defendant, Markel Insurance Company. As per the report of Planning, Design & Compliance Engineers, it was recommended that snow guards be installed as a “life-safety concern” and that all 28 rafters be replaced with new beams but the recommendation of Planning, Design & Compliance Engineers did not state that replacing all 28 rafters was required by any law or ordinance nor was there any mention of replacing the metal roof on the building or anything about the water system or sprinkler system. 

    Rklawton, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

    Seim Construction’s proposal for estimate of repair based on the report submitted by Planning, Design & Compliance Engineers was for $687,500. Defendant only paid “$117,406.78” on Plaintiff’s claim because Defendant contended that the $687,500 repair estimate included upgrades that were not required by “ordinance or law.” Defendant subsequently sent Plaintiff a Reservation of Rights Letter stating that Plaintiff’s insurance policy excluded coverage for defective designs which in this case was the roof, the loss or failure of which was due to poor construction and not due to the alleged weight of ice and snow. 

    Plaintiff subsequently commenced this action on April 02, 2020 asserting a breach of contract claim, a tortious bad faith claims handling claim, and a breach of the covenant of good faith and fair dealing claim.  

    Insurance Claims and Accounting Expert Witness

    Plaintiff offered the testimony of Elliott S. Flood J.D., M.P.A to opine on insurance industry customs, practices, and standards. Elliott S. Flood  has over 30 years of experience in the insurance industry and has “worked as an investigator and defense attorney for major insurers, as well as insureds” and “as an executive for an insurance company” serving as “vice president of special investigations” and then as “senior vice president of internal audit.” 

    Defendant filed a motion to exclude some of his opinions. 

    Discussion by the Court 

    Flood opined that the amount of the bid from Seim Construction to repair to minimum code requirements was $687,500 and that Defendant’s payment of $117,406.78 did not meet the minimum code requirements to repair the losses. Flood also opined that Defendant lacked reasonable basis to exclude paying for the cost of repairs necessary to rebuild as per the minimum current building codes requirements as reflected in the Seim proposal.

    The Defendant called into question Flood’s expertise to render opinions related to Seim Construction’s bid, repair costs, building codes, and insurance contract interpretation because he is not a certified engineer or architect and he has no expertise in construction, renovation, or restoration of a commercial building. Flood also had no expertise in the application of the building codes or ordinances that applied at the relevant time. By Flood’s own admission, he lacked expertise in building codes and specifically only dealt with the general concepts of insurance and what they meant. 

    At his deposition, Flood testified that this case was a straightforward adjuster issue of building back to the code standards which involved meeting minimum requirements for repairing the loss that might imposed by the code. Defendant argued Flood’s lack of expertise in building codes made him unqualified to opine on whether Seim’s proposal adhered to legal requirements. His opinions on such issues therefore lacked a reliable basis. 

    Flood opined on the defective design exclusion. He contended that even if there was a flawed design, coverage wouldn’t be negated if a covered peril caused the loss, like collapse due to snow weight. Flood argued that Potter’s theories of the defective design exclusion were unsupported and criticized the Defendant’s decision to send a Reservation of Rights stating the loss or partial failure to the roof was due to poor construction and was not due to the weight of ice and snow letter based on it. Defendant asserted that Flood’s opinions amounted to legal conclusions and thus should be excluded. 

    Flood’s evaluation of the Defendant’s net worth was challenged by the Defendant on grounds of relevance but the Court held that the law found it relevant to a jury’s consideration of the amount of punitive damages citing Flood’s background as the former head auditor and Certified Public Accountant with special expertise in insurance accounting. 

    The Court granted the motion to exclude regarding the rest of Flood’s opinion, admitting Flood’s testimony only in part. 

    The Court also held that Flood opining on:

    • the amount of the bid from Seim Construction to repair to minimum code requirements or
    • the Defendant’s payment being short of the Seim Construction price, the lowest bid, to re-build back up to code or
    • the Defendant lacking reasonable basis to exclude paying for the cost of repairs necessary or
    • the defective design not defeating coverage or Potter’s theories being baseless or the Defendant’s lacking reasonable basis to send the Reservation of Rights letter

    encroached upon the province of the Court and the jury.  

    Held 

    The Court admitted Flood’s testimony in part.

    Key Takeaways: 

    1. Legal Conclusions: An expert witness is expected to examine and analyse the facts of the issues involved based on their training and expertise and opine on matters beyond the understanding of the lay person. Courts always reserve the authority to draw conclusions on matters involving questions of law and the expert is not permitted to breach the province of the Court or the jury. 
    2. Qualifications: The expert is not permitted to opine beyond the scope of their qualifications. Due to Flood’s lack of expertise in construction, renovation, or restoration of a commercial building or in the application of the building codes or ordinances applicable at the relevant time, the Court rejected Flood’s testimony regarding the Defendant’s payment being inadequate to cover the cost of repairs as per the minimum code requirements. 
  • Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Court Rules in Defendant’s Favor amidst Claims of Racial and Disability Discrimination 

    Legal Gavel and Scale - Symbol of Justice

    In this case, Plaintiff Jaketra Bryant is representing her minor son, C.B., who has Autism Spectrum Disorder (autism) and Attention Deficit Hyperactivity Disorder (ADHD). They are asserting claims of unlawful racial and disability-based discrimination against Calvary Christian School of Columbus, Georgia. The school is a private elementary school affiliated with Calvary Baptist Church, receiving state and federal funding. C.B. was enrolled in the Discovery School Program, a small instruction-based program for students with learning difficulties which had a 5:1 student-teacher ratio. To qualify, students needed an Individual Education Plan (IEP), a 504 Plan, or a psychological evaluation. C.B.’s evaluation diagnosed autism and ADHD, recommending specific accommodations. 

    At first, C.B. performed well academically. However, during his seventh year, he exhibited certain behavioral issues, including temper outbursts, class disruption, throwing objects and misusing his laptop. The school recommended Applied Behavioral Analysis (ABA) therapy and medication evaluation, which the Plaintiff did not pursue initially. C.B. and another student reported racial comments, but no action was taken. 

    After more such incidents, C.B. was suspended, and the school decided to shift him to virtual instruction due to his behavioral challenges. The school required completion of ABA therapy in a classroom setting for him to return to in-person classes. A therapy plan was devised by Kya Grier Williams involving in-person instruction and shadowing. The therapy plan included fifteen hours of in-person instruction at Calvary where an assistant would shadow C.B. during class to support implementation of the plan. Alternatively, Williams offered to train Calvary staff on ABA behavioral therapy techniques for free to help ensure that the therapy plan was implemented correctly. 

    Shortly after being briefed on the therapy plan, Headmaster Koan was reluctant to go through with the execution of the plan because it required C.B.’s return to campus in person without proof of his satisfactory progress. Since the headmaster was hesitant to implement it, it led to an impasse. The school eventually considered C.B. withdrawn as a student. 

    Overall, the case involves allegations of discrimination, inadequate support for C.B.’s special needs, racial comments, and disputes over the implementation of therapy and accommodations. 

    Behavioral Therapy Expert Witness

    Calvary School moved for summary judgment on all of Bryant’s claims under the 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

    Calvary also moved to exclude the expert testimony of Bryant’s expert Kya Grier Williams M.S., BCBA, LBA on individualized behavioral interventions alleging that her recommendations were wrong. 

    Williams is a licensed behavioral therapist, dedicated to and specializing in the treatment of behavioral issues in children and adolescent diagnosed with Autism and related Developmental Disorder, and Addiction and Compulsion in teens and adults.

    Discussion by the Court 

    The Court held that based on the facts of the case, though C.B did have a disability within the meaning of the Rehabilitation Act, Bryant does not seriously dispute that C.B. violated Calvary’s behavioral standards by throwing objects in class and misusing his laptop or contend that Calvary’s progressive disciplinary responses to each incident were atypical punishments when Bryant asserts that Calvary denied C.B. the following accommodations: enforcement of the positive reinforcement behavior plan in Ms. Cameron’s class, transferring C.B. to a teacher other than Ms. Cameron, and allowing C.B. to return to in-person classes at Calvary in the spring 2021 semester under the conditions of C.B.’s ABA behavioral therapy plan.

    The Court noted that Calvary incorporated sufficient adjustments such as:

    • Implementing all of C.B.’s psychologist’s recommendations, including his recommendation that C.B. be put on a behavior plan that incorporated positive rewards,
    • Adjusting the conditions of his dismissal to enable C.B. to return in person by fall 2021 without having to enroll in another school,
    • Allowing C.B. to continue attending Calvary through its virtual learning program for the rest of fall 2020 and
    • Even granted Bryant’s request to allow C.B. to continue learning virtually in spring 2021 in an effort to accommodate C.B.

    Based on the above, the Court granted Calvary’s summary judgment motion on Bryant’s Rehabilitation Act claims. 

    The Court also held that to establish a prima facie case of discrimination, Bryant must show that:

    1. C.B. is a member of a protected class
    2. He suffered an adverse action
    3. He was qualified to attend Calvary under Section 1981 of the U.S. Code and
    4. Calvary “treated ‘similarly situated’ [students] outside his class more favorably.”

    The parties do not dispute that C.B., a black male, is a member of a protected class, that he was qualified under Section 1981 of the U.S. Code or that he suffered an adverse action when Calvary dismissed him. The Court noted that to establish discrimination, Bryant must show that Calvary treated similarly situated individuals more favorably. A “similarly situated” comparator is typically someone who engaged in the same misconduct and had a similar disciplinary history as C.B.

    Bryant contended that the increasingly racially hostile environment at Calvary exacerbated C.B.’s disability manifestations, which led to his outbursts in class.The Court noted that this argument did not show that Calvary’s asserted reasons for dismissing C.B. were excessive or unjustified based on Calvary’s progressive discipline of C.B. after each behavioral incident (first checkmark, then suspension, then removal from in-person classes). 

    The Court also granted summary judgment on Bryant’s section 1981 claim. 

    Bryant further contends the following conduct is actionable racial harassment:

    1. Student comments in a virtual meeting about “God hating blacks and gays;”
    2. Director Jones’s comment to Bryant that C.B. needs to be careful or he “would end up with his hands behind his back;”
    3. Calvary’s repeated encouragement that Bryant have C.B. evaluated for medication; and
    4. Calvary forcing another black male student to withdraw from the school. 

    The Court found that this conduct did not rise to the level of actionable racial harassment. Although the comments made by the students were offensive and unacceptable and the Court understood how Director Jones’s comments could have been interpreted as insensitive, the Court found that these isolated comments were not sufficiently pervasive such that they effectively denied C.B. equal access to education. 

    Calvary School’s repeated insistence on evaluating C.B. could not be construed as objectively offensive or race-related conduct considering Calvary School wanted to effectively manage C.B.’s repeated classroom disruptions and also because Dr. Kevin Weis, C.B.’s treating doctor, had also recommended a physician’s evaluation for potential evaluation. 

    Moreover, when Bryant contended that Calvary forced another black male Discovery School student to withdraw from Calvary around the same time C.B. withdrew, she failed to back-up her claim with adequate evidence. Also, Bryant did not dispute that Calvary also expelled at least four white students and barred two others from in-person classes during C.B.’s time at the school. 

    The Court concluded that Calvary School was entitled to summary judgment on Bryant’s Title VI of the Civil Rights Act of 1964 claims. 

    Calvary School challenged the testimony of Plaintiff’s expert Kya Grier Williams arguing that Ms. Williams lacked adequate behavioral data to base her initial hypothesis on and to add to that she never tested her initial hypothesis. Moreover, Williams recommended that C.B. receive twenty hours of intensive, one-on-one behavioral services every week, for a six-month period. Essentially, she wanted CB to have a one-on-one shadow for half the school day in case he acted out again without taking into account the possibility that more intensive interventions can even have negative consequences as far as behavioral services or accommodations are concerned.  

    Held 

    The Court granted Calvary’s summary judgment motion on Bryant’s claims under Title VI of the Civil Rights Act of 1964, under Section 1981 of the U.S. Code and Section 504 of the Rehabilitation Act as a consequence of which it terminated Calvary’s motion to exclude Bryant’s expert Kya Grier Williams as moot. The Court entered the judgment in Defendant Calvary School’s favor stating that Plaintiff shall recover nothing of Defendant and Defendant shall also recover costs of this action. 

    Key Takeaway:

    In this case, the Court ruled in the Defendant’s favor and held that even though comments made by the students were offensive and the school’s conduct can possibly come across as insensitive in more than one instance, it does not constitute actionable harassment considering the school had made necessary adjustments in accordance with the psychological evaluation to accommodate C.B. and henceforth Williams’ testimony on individualized behavioral interventions submitted by the Plaintiff to substantiate its claims against the Defendant was no longer relevant for the Court to decide the issues involved in this case based on which the Court declared the Defendant’s motion to exclude Williams’ testimony moot. 

  • Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Kentucky Court excludes testimony of Gender Equity Expert on Title IX Violations Case 

    Image: Female Athletes Participating in Sports - Title IX Violations Case

    Title IX violations expert testimony

    Plaintiffs, Elizabeth Niblock and Meredith Newman filed this class action complaint against the University of Kentucky Director of Athletics, Mitch Barnhart, President, Eli Capilouto and Board of Trustees (collectively “UK”) alleging practices violative of the Title IX of the Education Amendments Act of 1972, an act prohibiting sex-based discrimination of any form in any school or any other education program that receives funding from the federal government. UK has refused to add any female sports to help bridge the participation gap between male and female student athletes. Due to lack of women’s opportunities, female student athletes are being deprived of the same scholarship opportunities as male student athletes. In other words UK is promoting men’s sports at the expense and detriment to women’s sports.  

    Gender Equity Expert

    Plaintiffs have offered the testimony of expert, Donna Lopiano, the president of Sports Management Resources, LLC, her own, single-member LLC through which she runs a consulting practice “that focuses on helping educational institutions and sport organizations solve sports program integrity, equity, growth, and management challenges.” Donna Lopiano has opined that UK was not accommodating the interests and abilities of female students under Prongs One, Two, or Three of Title IX’s participation options which emphasize on the number of male and female student-athletes being proportional to the overall male and female student enrolment in the institution, on the school in question demonstrating a history and continuing practice of expanding athletic opportunities for female students to align with their interests and on schools with disproportionate athletics programs not currently expanding, to comply with Title IX by demonstrating that their existing program adequately accommodates the interests of female students. Lopiano further testified that UK failed to regularly and properly assess the interests and abilities of the underrepresented sex for the purpose of identifying unmet interests and abilities.  

    Lopiano also concluded that UK had only considered adding the financially least expensive and alumni/audience appealing women’s sports, women’s sports that have never appeared on UK interest and ability surveys. 

    Lopiano stated that UK would be unable to count its current UK sideline cheerleading squad and the dance team as varsity sports and participants as varsity athletes, whether or not coaches, scholarships or other services were being provided to these programs and also added that UK’s proposed plan to add a women’s Stunt and women’s junior varsity soccer team did not achieve Prong One gender equity. UK demanded exclusion of the testimony of Plaintiff’s expert Donna Lopiano. 

    Discussion by the Court 

    Defendant contended that all of Lopiano’s proposed opinions should be excluded considering they constitute legal conclusions or are otherwise inadmissible for various reasons such as lack of required qualifications or lack of a reliable basis. 

    The Court admitted the Defendant’s argument that Lopiano crossed the line into impermissibility when Lopiano opined about UK’s current compliance with Title IX. Plaintiff replied that Lopiano merely wanted to establish industry standards for compliance yet in her report Lopiano “compares what UK has done on all elements—compares it to what Title IX requires” and stated that her report was “all about the University of Kentucky’s fact situation compared to the Title IX standards.” Moreover, Lopiano’s expert report does not consist of opinions about other universities’ compliance. The Court held that Lopiano’s opinions amounted to legal conclusions. 

    Defendant also alleged that Lopiano’s opinions on participation derived from the Equity in Athletics Disclosure Act (“EADA”) survey analysis are premised on the cursory analysis performed by Lopiano and hence are unreliable, irrelevant, and unhelpful to the trier of fact. Lopiano testified that she compared a University’s EADA submissions with website participant counting data and actual NCAA (National Collegiate Athletic Association) squad lists instead of performing the comparison and using only publicly available EADA data to form the basis of some of her conclusions. 

    The Court also found that Lopiano ceased to examine the specifics of UK’s Cheer or Dance teams in performing her analysis and though Plaintiff contends this argument should go to the weight of Lopiano’s testimony instead of its admissibility, the Court held that whether certain teams should be counted for the purposes of Title IX compliance fell under its domain instead of Lopiano’s and henceforth it could not be reasonably concluded if Lopiano’s testimony was relevant or helpful to the trier of fact. 

    When the Defendant testified that Lopiano’s opinions regarding the UK’s athletic interest surveys should be excluded considering she was unqualified to offer such opinions, the Court observed that despite Lopiano’s extensive history and involvement in women’s sports and the area of Title IX, she was not a survey design expert and by her own admission had relied on another survey design expert’s work to form her own conclusions and held that her opinions regarding athletic interest surveys were beyond her area of expertise. 

    Since the proceedings are ongoing, the outcome of the case remains to be seen. 

    Held 

    The Court excluded the opinions and testimony of Plaintiff’s expert Donna Lopiano because they consisted of legal conclusions, lacked a reliable basis and Lopiano opined on topics beyond her area of expertise. The outcome of the case is yet to be decided since the issued involved in the case still remain unresolved. 

    Key Takeaways:

    1. Legal Conclusions: The Court found that Lopiano compared the University of Kentucky’s fact situation with the standards and requirements of Title IX of the Education Amendments Act of 1972 without following it up with reports of other universities’ compliance as was required for objective assessment. The Court, henceforth, concluded that the testimony of Lopiano amounted to legal conclusions in this case. 
    1. Reliability: The Court held that Lopiano’s conclusions lacked a reliable premise on account of being based on publicly available Equity in Athletics Disclosure Act (“EADA”) data instead of her own comparisons or specifics of UK’s Cheer or Dance teams not being adequately examined by her in performing her analysis. 
    1. Qualification: Though recognized as one of the foremost national experts on gender equity in sport, Lopiano, unfortunately, by her own admission is not a survey design expert. Usually the Court deems an expert qualified to opine if the topic is sufficiently within the confines of the expert’s scope of expertise but athletic interest surveys were not within the confines of Lopiano’s expertise. 
  • Michigan Court excludes the misleading testimony of Mechanical Engineering Expert in Maritime Personal Injury Action

    Michigan Court excludes the misleading testimony of Mechanical Engineering Expert in Maritime Personal Injury Action

    Mechanical Engineering Expert Testifying in Court

    Plaintiff Hussein Al Qari was employed as a Steward’s Assistant aboard Defendant American Steamship Company’s vessel, the M/V H. Lee White. Plaintiff alleges that on November 5, 2020, he was climbing a flight of stairs from one level of the vessel to another, while carrying a box containing six jars of coffee grounds. He had one hand on the handrail and the other hand on the box. The box started to slip, and Plaintiff let go of the handrail to try to catch the box, lost his balance, and fell. Plaintiff claims he was seriously injured as a result of falling down the stairs. 

    On March 24, 2021, Plaintiff filed this lawsuit against Defendant based on his November 5, 2020, fall and injuries, asserting claims for (1) Jones Act Negligence, 46 U.S.C. § 30101, et seq. (2) Unseaworthiness under the general maritime law of the United States, and (3) Intentional/Negligent Failure to Provide Maintenance and Cure under general maritime law.  

    Facts of the case 

    In support of his claims, Plaintiff produced the expert report of Captain Daniel Franklin, a Licensed Master of Unlimited Tonnage on the Great Lakes and a Federal Seaway Pilot in District 2, and then supplemented with this expert — Dr. John Samuel Morse, Ph.D., P.E., a mechanical engineer with experience in teaching, research, and industrial applications, primarily in Occupational Safety and Health Administration (OSHA) cases. 

    Morse opined that Plaintiff removed his left hand from the handrail because the cardboard tray of coffee cans was slipping from his right hand and subsequently fell on the ships [sic] ladder when he lost his balance. Morse alleged that American Steamship Company violated the standard of care by ignoring the potentially dangerous condition since this incident could have been avoided if Morse had been equipped with an alternative means of carrying the cardboard tray of coffee cans, such as a backpack or supplied with an alternative means of moving the items to the main deck, such as a lifting system including a bucket and rope or mailbag and rope. 

    Defendant demanded exclusion of the testimony of Plaintiff’s expert Dr. John Samuel Morse. 

    Discussion by the Court 

    Morse cited four OSHA regulations pertaining to “Walking-Working Surfaces” generally. More specifically, these regulations pertain to ladders, stairways , and fall protection such as each ships [sic] ladder being equipped with handrails on both sides which applies regardless of how narrow the ships [sic] ladder is, or if one side or both is enclosed and each ship stairs and alternating treat type stairs being equipped with handrails on both sides. Morse added that it was the employer’s duty to ensure that no employee carried any object or load that could cause the employee to lose balance and fall while climbing up or down the ladder and that this regulation should be followed for loads carried on stairways. 

    Defendant’s motion to exclude the testimony of Morse rested primarily on the fact that OSHA regulations did not apply to U.S. Coast Guard inspected vessels, like the M/V H. Lee White which even the Plaintiff did not dispute but contended nevertheless that most of Morse’s opinions did not reference OSHA at all and were based on his remarkable experience of investigating over 575 ladder and climbing equipment accidents.  

    Defendant argued that Morse’s opinions were based on irrelevant OSHA regulations which if admitted would cause a significant risk of unfair prejudice and mislead the jury. 

    The Court agreed with the Defendant and held that OSHA regulations referenced by Dr. Morse were irrelevant to the claims and defenses in this case and confirmed their inadmissibility as non-binding evidence of the standard of care. 

    The Court also noted that any expert testimony Dr. Morse could provide regarding the physical structure or condition of the stairway was not at issue considering Plaintiff himself conceded in this case that there was nothing wrong with the stairway at the time of his accident. 

    Held  

    The Court declared the testimony of Plaintiff’s expert John Samuel Morse inadmissible since it was premised on irrelevant regulations. The outcome of the case is yet to be decided since the issues involved in this case still remain unresolved. 

    Key Takeaways: 

    1. Relevancy of Regulations: Before admitting the testimony of an expert, it is imperative for the Court to assess if the regulations based on which the expert is testifying have any significant bearing on the issues involved in this case. In this case, Morse based his testimony on OSHA  regulations which did not apply to U.S. Coast Guard inspected vessels and hence his testimony was found likely to confuse the jury. 

  • Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Nebraska Court Partly Admits Employment Attorney’s Expert Testimony  

    Legal case involving employment discrimination claims and expert testimony

    Plaintiff Terrence T. Batiste II has initiated legal action against Defendant Titan Medical Group LLC, asserting claims of wrongful termination and employment discrimination. These claims stem from allegations that Batiste, a homosexual black man who had explicitly communicated his identity during pre-employment interviews, experienced pay disparities and unequal treatment. He contends that his base salary was $15,000.00 lower than that of fellow managers and that he was excluded from receiving quarterly performance bonuses, resulting in a substantial income discrepancy. The case also revolves around a contentious exchange that transpired on July 17, 2020, involving Batiste and another corporate employee, Tammy Corwin, regarding the scheduling of a meeting with Titan Medical’s CEO. This exchange was documented through text messages and a recorded phone call. Subsequently, after an internal investigation, Titan Medical Group terminated Batiste’s employment on August 3, 2020. The lawsuit invokes Title VII of the Civil Rights Act of 1964 and the Nebraska Fair Employment Practices Act as legal bases for the allegations, asserting violations of these statutes in relation to employment discrimination based on race and sexual orientation. The action was removed from the District Court of Douglas County, Nebraska under 28 U.S.C. §1446 to the United States District Court for the District of Nebraska. 

    Equal Opportunity Expert Witness 

    Defendant, Titan Medical Group LLC offered the report and testimony of Timothy D. Loudon. Timothy D. Loudon is a retired attorney. Loudon spent the beginning of his career as a Nebraska Equal Opportunity Commission investigator, investigating charges of discrimination. He later represented employers and employees in private practice for 34 years. In that capacity, he advised and trained companies and management on employment practices and has drafted and reviewed personnel policies and employee handbooks, including policies addressing discrimination and harassment, affirmative action, performance evaluations, and progressive discipline. He has been identified as an expert to testify as an expert witness in human resources, performance management, performance management system and processes, employment law and policies, employment investigations, human resources training and expertise, workplace harassment/discrimination and workplace harassment/discrimination complaints. 

    Plaintiff has filed a motion to strike the testimony and report of Defendant’s expert Loudon. 

    Discussion by the Court 

    In his report, Timothy D. Loudon opined about Titan’s alleged failure to utilize progressive discipline or to conduct an annual performance evaluation for the plaintiff; the adequacy of the Titan’s investigation of the plaintiff’s complaint of racial discrimination; and Batiste’s allegation of retaliation, specifically, whether he engaged in protected activity. 

    He concluded that Titan might have failed to utilize progressive discipline but the purpose was served anyhow when Titan gave Batiste adequate notice of his performance deficiencies and that Plaintiff’s annual performance evaluation was overlooked due to rising COVID-19 cases and also financially benefited Batiste. Loudon opined that Batiste’s supervisors Jennifer Lyman, COO (hereinafter “Lyman”) as well as Carrie Miller, CFO (hereinafter “Miller”) had done an adequate job of conducting a full investigation when they ruled out the possibility of Batiste’s race being a possible factor in his altercation with Corwin. 

    Loudon further opined that Batiste must show that he engaged in “protected activity” (complained of discrimination); suffered an “adverse action” (termination); and prove a causal connection between his complaint and his subsequent termination. “Temporal proximity” (closeness in time) between the protected activity and the adverse action could be used to create an inference of retaliation and concluded that Batiste cannot meet the threshold showing that he engaged in protected activity based on these factors. 

    Batiste in turn alleged that since Loudon did not back up his claims with statistical analysis or other empirical testing or explanations of what comprises common practices in the industry without applying industry standards to the facts of the case, he had invaded the province of the Court since his opinions amounted to legal conclusions. 

    Batiste also stated that Loudon doesn’t demonstrate considerable experience when it comes to cases dealing with racism in the workplace which is crucial to evaluate the validity of Batiste’s discrimination and retaliation claims. 

    Loudon’s conclusions are not based on a reliable methodology because he has failed to cite common industry standards, customs, or practices in the report or any peer reviewed literature on the topics. 

    Batiste also argued that Loudon had given greater weight to irrelevant facts and mischaracterized testimony from witnesses in hopes of persuading the jury that the testimony meant something else than what it actually did. 

    The Court found Loudon qualified based on his education and experience but maintained that it would refrain from allowing Loudon to provide testimony regarding issues that invaded the province of the Court or the jury. The Court denied the Plaintiff’s motion to strike the testimony and report of Loudon, without prejudice to objections raised at trial contending that the Plaintiff’s objections concerned the weight instead of the admissibility of Loudon’s testimony. The Court was unable at that juncture to assess the expert’s testimony in the context of objections to be interposed at trial. The testimony might be subject to such objections as foundation, relevance, and unfair prejudice. 

    Since the proceedings are ongoing, the outcome of the case remains to be decided. 

    Held 

    The Court denied Batiste’s motion to strike the testimony and report of Defendant’s expert Loudon without prejudice to objections raised at trial. Since the issues remain unresolved, the outcome of the case is yet to be seen. 

    Key Takeaways:

    1.General vs. Specialized Expertise: The Plaintiff alleged that Loudon lacked the required experience to opine on wrongful termination cases involving racial discrimination claims but the Court admitted his testimony anyway since the topic was sufficiently within the confines of his expertise. 

    2.Weight vs. Admissibility: When the Plaintiff alleged that Loudon’s testimony was of little assistance to the trier of fact and was likely to confuse and mislead the jury because it was grounded on unreliable methodology, the Court held that these arguments called into question the weight instead of the admissibility of Loudon’s testimony. Since Plaintiff was yet to prove grounds warranting exclusion of expert Loudon, the Court found it more appropriate to assess the substance of Loudon’s testimony in light of objections raised at trial by the Plaintiff. 

    3.Experts cannot invade the province of the Court or the jury: In this case, Loudon breached the province of the Court and the jury and drew legal conclusions on their behalf when he opined that the Plaintiff cannot prove that he did engage in protected activity considering whether an activity is protected under the statute for purposes of a retaliation claim is a question of law as was held in Morris V. City of Chillicothe .