This case arises out of excessive force and retaliation that Plaintiff allegedly suffered while incarcerated at Dixon Correctional Institute.
Plaintiff requested the Court to exclude the testimony of Kerry Najolia, Defendants’ expert on “police practice, procedure, training, officer survival/defensive tactics, officer use of force and police canines.”
Law Enforcement Expert Witness
Kerry J. Najolia has 42 years of law enforcement experience, including patrol work, investigations, SWAT, and law enforcement consulting. His academic instructional background spans the last 28 years, including roles as POST Academy Staff Instructor, Assistant Training Director, and Training Director for the Jefferson Parish Sheriffs Office Training Academy.
First, Plaintiff argued that Najolia has no expertise in penological practices and procedures because he has never worked in a prison setting.
The Court found Najolia to be unquestionably a qualified expert in the area of law enforcement, training and use-of-force. Although Najolia’s experience in prison settings, or lack thereof, is a topic that Plaintiff may explore on cross-examination, it did not form a basis for the wholesale exclusion of Najolia’s testimony.
B. Whether Najolia’s Testimony Will Assist the Trier of Fact
Second, Plaintiff argued that Najolia’s expert report did what the jury alone is allowed to do: weigh evidence and make credibility determinations. Plaintiff contended that there is no role for an expert such as Najolia in this case, which asks the jury to believe certain facts and disbelieve or ignore others.
Defendants argued that the purpose of Najolia’s testimony is to provide the jury with guidelines of customary and proper procedures by which to judge the Defendants’ actions for reasonableness.
According to the Court, Najolia may testify generally about the appropriate use of force in the prison setting. Once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts. Najolia may not, without more, offer the following opinions, which simply accept Defendants’ version of events and reject Plaintiffs version of events.
C. Whether Najolia May Offer Legal Conclusions
Third, Plaintiff argued that the question of whether Defendant was justified in his use of force “imposed legal questions that Najolia cannot testify to without invading the province of both the jury and the Court.”
In accord with other courts that have considered this issue, the Court found that Najolia may not opine on the ultimate issue of whether Montgomery’s actions were “reasonable” under the applicable legal standard.
D. Whether Najolia May Rely on Medical Summary
Finally, Plaintiff argued that Najolia improperly relied on a medical summary in forming his opinions, which constituted hearsay.
Najolia’s reliance on a medical summary did not support exclusion of Najolia’s opinion at this time. Instead, once the facts necessary for Najolia to render an opinion are in evidence, he may assume those facts as a hypothetical and give opinion testimony based on the assumption of those facts.
Held
The Court granted in part and denied in part Plaintiffs’ motion in limine to exclude the testimony of Kerry Najolia.
Key Takeaway
Whether the officers’ actions were reasonable or they used excessive force is an ultimate question for the jury to decide after they have heard the evidence and this Court has instructed them on the law at the conclusion of the case. Testimony that tells the jury what conclusion to reach or merely states a legal conclusion is not helpful to the jury.
On August 20, 2019, Plaintiff Martin J. Benzing visited a construction site on the Bruckner Expressway. During the visit, he climbed down a ladder and suffered a head injury. This case concerns the cause of Benzing’s injury and which entities bear responsibility for any damages Benzing suffered. Benzing and his wife, Annastacia Benzing, alleged that Defendants and Third-Party Plaintiffs Tully-Posillico JV, Tully Construction Co., Inc., and Posillico Civil, Inc. (together the “JV Defendants”) violated three provisions of the New York Labor Law (“NYLL”) as the contractors, the owners, or their agents, of the construction site where the incident took place.
Jason Randle is a civil engineer who specializes in technical investigations and analysis for commercial claims and litigation involving construction site safety practice, including how industry standards apply to a particular incident.
He also has professional experience in construction site safety, construction industry regulations, and ladder accidents.
William J. Meyer holds a Bachelor of Science degree in Mechanical Engineering from Rutgers University, the College of Engineering, New Brunswick, NJ and a Master of Science in Engineering Science from New Jersey Institute of Technology, Newark, New Jersey. He is a licensed Professional Engineer in New Jersey and New York.
Meyer is a member of the American Society of Mechanical Engineers (ASME), the Society of Automotive Engineers (SAE), New Jersey Association of Accident Reconstructionist (NJAAR) and National Association of Fire Investigators (NAFI).
Robert S. Cargill II is a bioengineer who specializes in biomechanical engineering. His formal education includes a Bachelor of Science in biomedical engineering from Rensselaer Polytechnic Institute (1989) with minor in biology, and a Master of Science (1991) and Ph.D. (1994) in bioengineering from the University of Pennsylvania.
The JV Defendants sought to preclude Randle’s testimony on three grounds: (1) he is unqualified, (2) his conclusions relied upon evidence that is inadmissible or lacks probative value, and (3) he impermissibly offered legal conclusions.
First, while Randle is qualified to offer opinions on safety issues concerning the ladder and construction site, his opinions on the cause of Benzing’s fall exceed the bounds of his expertise. Courts have found biomechanical engineers “qualified to offer testimony regarding the forces generated by certain accidents and the likely effects of such forces on the human body.”
However, Randle does not purport to have training or expertise in the field of biomechanics and Plaintiffs described his testimony concerning causation as “only incidental to his report.”
Second, portions of Randle’s testimony impermissibly offered legal conclusions. For example, Randle provided opinions on Tully’s duties. These opinions offer legal conclusions because “the existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court.”
The JV Defendants’ other contentions concerning Randle’s testimony are either unavailing or go to the weight rather than admissibility of his testimony. First, Randle’s reliance on evidence that the JV Defendants allege is inadmissible did not preclude his opinion. An expert may rely on inadmissible facts or data in reaching his opinion but may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
His opinions, as set forth in the report, address central issues in this case, based on the evidence in the record and his expertise as a civil engineer. The proposed testimony is sufficiently reliable and relevant.
B. William J. Meyer
Meyer provided testimony concerning the safety of the ladder and the causes of Benzing’s fall. Plaintiffs sought to preclude his testimony on largely the same grounds as the JV Defendants sought to preclude Randle’s testimony. First, like Randle, Meyer did not purport to be a biomechanical engineer or medical expert and is thus not qualified to offer testimony concerning the causes of Benzing’s fall or injury.
Accordingly, the sections of his report and proposed testimony addressing the cause of Benzing’s fall and injury are impermissible. Second, Meyer also offered impermissible legal conclusions that must be excluded. Plaintiffs’ remaining contentions concerning Meyer’s testimony go to the weight not admissibility of his testimony and can be addressed “through vigorous cross-examination and presentation of contrary evidence.”
C. Robert S. Cargill II
The JV Defendants proffered Cargill’s testimony as a biomechanical perspective on the causes of Benzing’s accident. Plaintiffs sought to preclude his opinions on the grounds that they are “not grounded on sufficient facts or data, are speculative, and/or are not the product of reliable principles and methods.”
The Court disagreed. As laid out in the report, Cargill reviewed evidence in the record and set forth his perspective on the incident based on his expertise as a biomechanical engineer. These opinions are within the scope of his expertise and are permissible.
Held
The Court granted in part and denied in part Plaintiffs’ motion to preclude the testimony of William J. Meyer.
The Court denied Plaintiffs’ motion to preclude the testimony of Robert S. Cargill II.
The Court granted in part and denied in part Defendants’ motion to preclude the testimony of Jason Randle.
Key Takeaway
In the context of litigation, biomechanical engineers typically are found to be qualified to render an opinion as to the forces generated in a particular accident and the general types of injuries those forces may generate.
Following a traffic stop, Plaintiff Emily Sizemore was arrested and tased several times by a City of Montgomery police officer. Sizemore asserted claims for excessive force, assault and battery, and negligence against the arresting police officer Richard Dorman.
Defendant Dorman filed a motion seeking to exclude Sizemore’s proposed expert witness, Nathaniel Allen.
Law Enforcement Expert Witness
Nathaniel Allen is a retired police chief with 36 years of law enforcement experience.
Allen sought to testify about whether Dorman used excessive force during his arrest of Sizemore. Whether the force that an officer used was excessive is a pure question of law. Accordingly, Allen’s opinion about whether Dorman used excessive force is not a matter subject to expert testimony.
The Court provisionally denied Dorman’s motion in all other respects until it hears Allen’s proposed testimony outside the presence of the jury.
Held
The Court granted in part and denied in part Defendant Richard Dorman’s motion to exclude the testimony of Plaintiff Sizemore’s expert Nathaniel Allen.
Key Takeaway
In an excessive force case a qualified expert can testify about matters like the prevailing standards in the field of law enforcement, but not about whether an officer used excessive force.
Plaintiff Sergio Romero was hired by Defendant Tribune Media Company (“Tribune”), a national media company that owns and operates various news outlets and television stations, as an Account Executive.
On or around June 21, 2023, Plaintiff was diagnosed with gastric adenocarcinoma, also known as stomach cancer. To accommodate Plaintiff’s cancer diagnosis, Defendant authorized a medical leave of absence for Plaintiff on October 23, 2023. By February 28, 2024, Plaintiff’s approved FMLA/CFRA leave had been fully exhausted.
After accommodating Plaintiff’s absence since October 2023, Defendant notified Plaintiff by letter on June 14, 2024 that his employment would be terminated on July 1, 2024 for failure to return from exhausted leave, resulting in Plaintiff filing a wrongful termination suit.
Defendant filed a motion to exclude the testimony of Plaintiff’s expert witness George A. Jouganatos, Ph.D. while Plaintiff filed a motion to strike or exclude the testimony of Defendant’s expert June Hagen, Ph.D.
Economics Expert Witness
George A. Jouganatos, Ph.D. has been a college lecturer for more than 35 years. He has taught economics, finance, management, ethics, and quantitative analysis at University of California, Davis, University of California, Santa Cruz, California State University, Sacramento, and University of San Francisco.
June Hagen is a vocational expert and Certified Disability Management Specialist with decades of experience in vocational assessments, labor market research, and disability evaluations. Hagen holds a Ph.D. in Clinical Psychology from the California Graduate Institute, an M.A. in Community/Clinical Psychology from Pepperdine University, and a B.A. in Psychology from Pepperdine University. She is certified by the American Board of Vocational Experts and has extensive experience in vocational rehabilitation and disability management.
A. Defendant’s Motion to Exclude Plaintiff’s Expert
Defendant argued that Jouganatos failed to submit a detailed and complete written expert report as required by Federal Rule of Civil Procedure 26 as his report failed to contain the facts or data considered by Jouganatos in forming his opinions.
To begin with, Jouganatos submitted a declaration in which he described his background and qualifications. In relevant part, he stated that his “assignment was to analyze the historic (‘back pay’) economic loss and the present value of future (‘front pay’) economic loss for Sergio Romero.” Moreover, he stated that he “employed a standard forensic economic methodology consisting of: (1) establishing a baseline earnings stream, (2) projecting earnings over worklife expectancy, (3) accounting for benefits, (4) applying wage growth, and (5) discounting to present value using a risk-free rate.”
The following relevant documents were among those reviewed: Complaint, Romero’s employment record at Tribune, pay advices 2020-2024, resume, and responses to economist’s questionnaire and follow-up questions. Jouganatos calculated back pay as extending from July 1, 2024 to June 1, 2026, and front pay from June 1, 2026 going forward 3.58 years, the remainder of Plaintiff’s projected “worklife.”
Having reviewed Jouganatos’s report, the Court found it sufficient for the purposes of Fed. R. Civ. P. 26(a)(2)(B)(ii). The report did not reproduce the questionnaire or responses and follow-up questions upon which the expert expressly relied. However, the scope of what Jouganatos testified to is limited and is adequately supported by documents in Defendants’ possession or that were obtainable by Defendant.
B.Plaintiff’s Motion to Exclude Defendant’s Expert
Plaintiff moved to exclude the statement of Defendant’s expert witness, vocational rehabilitation expert June Hagen, Ph.D., that Plaintiff could have found work within 23 weeks of his termination. Plaintiff asserted that this testimony should not be permitted because Hagen’s expert witness report failed to identify any substantially comparable positions that were available in December 2024; (2) Hagen’s reliance on Bureau of Labor Statistics to determine Plaintiff could have found comparable employment within 23 weeks from his termination is not based on any facts or evidence of substantially comparable positions in the Sacramento area; and (3) none of the open positions identified in Hagen’s expert witness report met the standard for “substantially similar employment.”
Hagan’s report identified the documents she reviewed, which included deposition transcripts, court filings, and discovery responses. The report included a summary of Plaintiff’s personal, medical, educational, and work history, as well as his employment skills and history of compensation. The report included a timeline of Romero’s job search, which Hagen stated that she sourced from Plaintiff’s deposition.
As a result, Plaintiff did not identify any procedural defect in the disclosure of Hagen under Rule 26.
Held
The Court denied Plaintiff’s motion to exclude the testimony of Defendant’s expert, June Hagen, without prejudice to a motion in limine to be scheduled at the Final Pre-Trial Conference.
The Court denied Defendant’s motion to exclude the testimony of Plaintiff’s expert, George Jouganatos, without prejudice to a motion in limine to be scheduled at the Final Pre-Trial Conference.
Key Takeaway
The expert report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.
The Burlington School District (“BSD” or “Plaintiff”) commenced this action after discovering polychlorinated biphenyls (“PCBs”) at Burlington High School (“BHS”). Defendants Monsanto Co., Solutia, Inc., and Pharmacia LLC (collectively “Monsanto” or “Defendants”) are allegedly successors to the old Monsanto company, which was the primary manufacturer of PCBs in the United States for several decades. BHS was constructed in the 1960s, and testing recently revealed the presence of PCBs in its buildings. The BSD concluded that because of PCB contamination, BHS had to be demolished.
Wendy N. Pearson is a licensed engineer who has worked at Matson & Associates for over 25 years.
Pearson has bachelor’s and master’s degrees in civil engineering and environmental science and engineering. She has also conducted peer-reviewed research relating to environmental contamination, chemical manufacturing industry standards and practices, and chemical releases from manufacturing and industrial facilities.
Dr. Robert Adam Wanat holds an M.S. and a Ph.D. in chemistry from Cornell University. He has more than 30 years’ experience working for major chemical companies overseeing research and development of various chemical products. Since 2018, he has owned his own consulting company which specializes in the development, manufacture, and application of polymers, plastics, materials, and adhesives.
Defendants first argued that opinions about what Monsanto should have known should be excluded. Their contention is that these witnesses’ testimonies about the environmental impacts of PCBs — based in part on information from Monsanto’s own archives — are “mere pronouncements” based on “subjective or speculative opinions” and would constitute a subjective interpretation “based on nothing more than a review of decades-old documents.”
Pearson reviewed the state of the science related to PCBs over several decades, beginning in the 1930s. Pearson also explained the chemical nature of PCBs and what was known about their dangers. She did offer opinions about what Monsanto could have done to expand its knowledge. Those opinions are based on studies that were known in the scientific community and, in certain instances, by Monsanto itself.
As a result, the Court found that Pearson’s testimony is not based on speculation. Nor did it constitute merely subjective narrations. Instead, they appeared to be supported by a substantial documentary record that provided a foundation for their opinions.
Wanat’s report is similarly supported. He will testify about chemical evaporation generally, and with respect to PCBs specifically. He will also reference Monsanto’s documents, including patents and technical bulletins.
II. Standard of Care
Defendants next argued that Pearson’s and Wanat’s opinions regarding industry standards cannot be admitted because they are not supported by sufficient facts, are not based on any methodology, and constitute improper legal conclusions.
Pearson intended to testify that Monsanto defined its own standard of care and failed to live up to that standard. Wanat’s report is more limited, citing Monsanto’s adherence to American Conference of Government Hygienists thresholds.
The Court questioned whether the materials in question establish a standard of care, or whether they instead constitute general statements of corporate responsibility. Regardless of the distinction, the Court found no reason to exclude the testimony of either Pearson or Wanat, insofar as their testimony is based on Monsanto’s own statements about its responsibilities.
Defendants’ final argument is that testimony about the standard of care consisted of improper legal conclusions and stood in the shoes of the jury.
Here, Plaintiff submitted that Wanat will use the term “reasonable” in its “ordinary, non-legal sense.” Defendants have not identified an element of a pending cause of action that would render the term “reasonable” an impermissible legal conclusion. Consequently, the Court declined to bar such testimony.
Held
The Court denied Defendants’ motion to exclude the expert testimony of Wendy Pearson and Robert Wanat.
Key Takeaway
To determine when a question posed to an expert witness calls for an improper legal conclusion, the district court should consider first whether the question tracks the language of the legal principle at issue or of the applicable statute, and second, whether any terms employed have specialized legal meaning.
In this certified class action, the Plaintiffs-Christopher Degroot, Steven Showalter, and all others similarly situated-alleged that their former employer violated the federal Worker Adjustment and Retraining Notification Act (“WARN Act”) and the Nebraska Wage Payment and Collection Act (“NWPCA”) when it terminated them without notice and without paying accrued but unused paid time off.
The Defendants are the Plaintiffs’ former employer, Nebraska Book Company, Inc., and Nebraska Book’s parent company, Nebraska Book Holdings, Inc. (collectively, “Nebraska Book”). The Plaintiffs also asserted that two other companies, AB Lending SPV I d/b/a Mountain Ridge Capital (“Mountain Ridge”) and Concise Capital Management (“Concise”), are liable based on their financial relationships with Nebraska Book.
Concise acquired 100 percent of the equity in Nebraska Book by 2021, becoming the company’s “accidental owner.” After 2018, Concise did not take “a penny” from Nebraska Book to pay its investors. As owner, Concise had the power to appoint all of the directors on Nebraska Book’s board. During the relevant time, there were three board members, all appointed by Concise. They were Grossman; Gary Shapiro, Nebraska Book’s CEO; and Thomas Krasner, a principal, cofounder, and minority owner of Concise.
The Plaintiffs filed a motion to exclude Concise’s expert, Daniel Dooley, under the Daubertstandard.
Crisis Management Expert Witness
Daniel F. Dooley has a strong national reputation in crisis management, operational improvement, debt refinancing & restructuring, and C-level positions. He is a frequent speaker at industry conferences and a regular author for industry periodicals. Dooley has served on the Board of Directors of both the American Bankruptcy Institute (ABI) and the Turnaround Management Association (TMA).
Dooley holds a Bachelor’s degree in Business Administration and a Master’s degree in Business Administration with a focus on Finance from the Carlson School of Management at the University of Minnesota in Minneapolis.
The Plaintiffs argued that Dooley’s opinions would not be helpful to a factfinder, and that some of his opinions are inadmissible legal conclusions or factual narratives.
The Plaintiffs also argued that Dooley’s testimony failed to account for contrary evidence. Concise conceded that Dooley’s opinion—that Concise was not a “joint employer”—is an inadmissible legal conclusion.
But Dooley’s opinions about whether Krasner’s conduct was “appropriate”-that is, whether his behavior was “perfectly consistent with the norms of corporate behavior”-is a key issue in this case, if not dispositive. While the Plaintiffs complained that Dooley testified as to what is “appropriate” or “proper” without articulating precise definitions or standards, Dooley’s opinions lie in his professional experience, which is a proper foundation.
The Plaintiffs’ next argument is that Dooley’s testimony, after “stripping away his ‘appropriateness’ opinions and legal conclusions left only his recitation of the facts and his inferences from them.”
Because the Court is not “stripping away” the “appropriateness” opinions, this argument appears to be moot. But nothing in this order precluded the Plaintiffs from objecting to the extent Dooley’s testimony at trial becomes a factual narrative, rather than an explanation of his expert opinion.
Finally, the Plaintiffs asserted that exclusion is proper because Dooley failed to account for contrary evidence. But such a failure is not a basis to exclude. Rather, these arguments go to weight, not admissibility.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to exclude the testimony of Daniel Dooley.
Key Takeaway
An expert may, and often must, assume that the party for which he is testifying can prove the facts upon which he relies. The method for testing those assumptions lies in “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”
Plaintiff Emily LaPrade has paraplegia with limited sensation in her lower body due to a spinal cord injury in 2014. While returning from a camping trip in September 2023, LaPrade rode in the front passenger seat of her family’s 2023 Volkswagen Tiguan. She claimed that she received second-degree burns after she used the vehicle’s seat heater for 20-30 minutes on the highest setting, and one hour on the heater’s middle setting.
In 2024, LaPrade and Jonathan LaPrade (together, “Plaintiffs”) sued Defendant Volkswagen Group of America, Inc. (“Volkswagen” or “Defendant”) arguing that the seat heater in their car was defective.
Defendant filed a Daubert motion to exclude the testimony of Plaintiffs’ expert, Roger Smedsrud.
Accident Reconstruction Expert Witness
Roger W. Smedsrud is a forensic mechanic specializing in accident reconstruction. With 32 years of experience as a mechanic and over 3,000 mechanical inspections of vehicles involved in traffic collisions, equipment accidents, or fraud, he has significant formal training on a variety of vehicles.
1. The Court will permit testimony regarding Smedsrud’s test results
Smedsrud is qualified to testify about the seat heater temperatures he observed via infrared thermometer and diagnostic data from Plaintiffs’ Tiguan. Smedsrud’s significant experience in vehicle repairs, diagnostic systems, and accident reconstruction qualifies him to testify about the tools he used, tests he performed, and data he collected during his examination of Plaintiffs’ vehicle.
Defendant contended that Smedsrud’s testimony in this area is unreliable or irrelevant because “he did not design or conduct his testing in accordance with any Society of Automotive Engineers (SAE) or International Organization for Standardization (ISO) guidelines.”
The Court concluded that Smedsrud’s background and experience are sufficient for him to testify about the data he gathered. That he did not refer to a specific standard does not necessarily invalidate the temperature readouts themselves.
2. The Court will exclude testimony regarding the design or safety of the seat heater
Defendant asked the Court to exclude Smedsrud’s testimony about the design of the Tiguan’s seat heater—namely, his conclusion “that the temperatures set in this vehicle heated seat system are set too high from the factory.”
Smedsrud is not qualified to offer opinions about the design or safety of the Tiguan’s seat heater. Smedsrud’s opinion did not discuss any standard by which he judged the temperature of the seat heater to be “too high.” He testified that he did not rely upon SAE or ISO standards, and that that he was unaware of “any publication that sets the maximum reasonable temperature for a seat heater.” Instead, he formed his conclusion upon the fact that he had “never seen one this high before.” But as Defendant noted, Smedsrud has never investigated an incident where someone was injured from a seat heater. He has only ever repaired a seat heater once—in his own Toyota, after the seat heater stopped working entirely.
Plaintiffs argued that, even if Smedsrud did not rely on any standard, the SAE and ISO standards supported his conclusion that the temperatures of the seat heater were indeed “too high.” But this is irrelevant to the Rule 702 inquiry, which focuses “solely on principles and methodology, not on the conclusions that they generate.”
Held
The Court granted in part and denied in part Defendant’s Daubert motion to exclude the testimony of Roger Smedsrud.
Key Takeaway
The dispositive question is “whether an expert’s methodology can be ‘challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability.’” Smedsrud’s methodology is the latter.
Plaintiff Jonathan Conner is a Jones Act seaman who worked for REC Marine aboard the M/V GOL Warrior. While working aboard the vessel, he suffered what was later diagnosed as a heart attack at some point in the day on January 27, 2024.
Conner alleged that REC Marine was negligent in its handling of his medical emergency and that the vessel was unseaworthy because the crew lacked the training and preparation required to respond appropriately to the medical emergency.
REC Marine filed motions to exclude and/or limit the testimony of two of Plaintiff’s designated experts—Captain Christine Hafen, Plaintiff’s marine liability expert, and Dr. Xianfeng Wen, one of Plaintiff’s treating physicians who is presently designated as a non-retained medical expert pursuant to Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure.
Maritime Expert Witness
Captain Christine Hafen possesses over 25 years of experience in maritime and offshore drilling, including roles as a ballast control operator, dynamic positioning operator, captain and chief mate.
Xianfeng Wen earned his medical degree from Shanghai Medical College of Fudan University in Shanghai, China. To begin with, he completed his residency in internal medicine and fellowship in cardiovascular disease at the University of Texas Medical Branch at Galveston where he served as chief fellow.
Board certified in cardiovascular disease and comprehensive echocardiography, Wen has practiced medicine since 2007. Moreover, he has extensive training in different aspects of cardiovascular care including non-invasive and invasive cardiovascular evaluation, advanced cardiovascular imaging and peripheral arterial and venous diseases.
REC Marine wished to exclude Hafen’s expert report and untimely report supplement. Defendant’s principal argument is that the first two sections of Hafen’s report are inadmissible because she based those opinions on REC Marine’s alleged lack of compliance with the International Safety Management Code (“ISM Code”), a set of regulations that arguably does not apply as a matter of law to the vessel Conner worked on.
Because the M/V GOL Warrior did not fall into the category of vessels that are required to be in compliance with the ISM Code, REC Marine argued that the ISM Code is wholly inapplicable to this matter and thus rendered Hafen’s opinions unreliable since they rested on irrelevant safety standards as applied to this vessel. Additionally, REC Marine wished to exclude the third section of Hafen’s report because it inappropriately provided legal opinions on the Receipt & Release Agreement, which REC Marine argued went outside of the bounds of appropriate testimony for a marine liability expert. It also sought exclusion of her supplemental report that was untimely submitted on March 31, 2026—just over two months after the deadline for Plaintiff to produce his expert reports.
Analysis
1. Opinions Based on the ISM Code Are Permissible.
The Court found that her expert testimony, reliant upon a seemingly widely accepted set of safety standards, provided the kind of specialized analysis that will assist the trier of fact in understanding the evidence in this case. REC Marine may challenge Hafen’s reliance on the ISM Code in cross-examination. And of course, the Court retained the ability to limit or control the scope of her testimony at trial. Overall, the Court will not limit or exclude Hafen’s testimony insofar as she pointed to the ISM Code in support of her conclusions.
2. Opinions About the Receipt & Release Are Inadmissible
REC Marine presses that the third section of Hafen’s expert report, which addressed the Jones Act, should be excluded both because it impermissibly reaches conclusions of law and because it goes beyond the scope of her expertise as a marine liability expert. The Court agreed. Moreover, Plaintiff “did not contest REC Marine’s motion to the extent it sought to prevent Hafen from opining concerning whether Conner’s release was consistent with the Jones Act.”
3. The Supplemental Report Is Excluded, Unless Used for Rebuttal
REC Marine asked the Court to exclude Hafen’s supplemental report because it is not a true supplement and instead contained new opinions and analyzed new data; thus, it should be excluded because it was disclosed over two months after Plaintiff’s deadline to provide his reports.
The Court reviewed the report and found that it went beyond the scope of Hafen’s initial report and is not a mere supplementation to her timely-disclosed expert report. Importantly, the data analyzed in the supplemental report is publicly available and thus was not “unavailable to” Plaintiff nor Hafen at the time of her initial report.
However, the Court noted that Hafen’s supplemental report was issued on March 31, 2026—within the 30-day rebuttal report deadline provided for in Rule 26(a)(2)(D)(ii). That rule provided that an expert disclosure must be made “within 30 days after the other party’s disclosure” so long as “the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C).” To the extent Hafen’s report operates as a rebuttal report to Defendant’s marine liability expert’s report concerning the interpretation of AIS data, the Court will exercise its discretion at trial to allow Hafen to testify as to her supplemental report in this limited way, i.e., as a rebuttal report, if Defendant’s expert’s testimony addresses these issues.
B. Wen’s Testimony Will Be Limited
Wen is properly designated as a non-retained expert and therefore falls within the parameters of Rule 26(a)(2)(C), absolving him of the written report requirement of Rule 26(a)(2)(B). The only question this Court considers is the appropriate scope of his testimony.
1. Compliance With Rule 26(a)(2)(C)
While the disclosed topics are the sorts of subject matters district courts tend to allow treating physicians to testify about, the disclosure is completely silent as to the facts relied upon by Wen in forming his opinions, except for reference to his records.
The Court agreed that mere reference to the medical records, without more, is insufficient to satisfy Rule 26(a)(2)(C)’s disclosure requirement because “ the question is not the level of specificity required in the summary, because Plaintiff has failed to produce any summary of the facts and opinions to which Wen is expected to testify.”
Testimony from a treating physician is certainly important evidence. However, considering that Plaintiff has a retained medical expert who has seemingly issued a timely report that touches on causation and future treatment, it is less important for Plaintiff’s treating physician to testify about causation and future treatment. Prejudice to REC Marine is most likely minimal, and REC Marine raised no prejudice arguments in its briefing. Furthermore, Defendant had the opportunity to take Wen’s deposition and, if it did, glean his perspective on causation and future medicals from his vantage point as a treating physician.
Overall, the Court will not exclude the defect in Plaintiff’s Rule 26 disclosures for Wen because such defect is most likely harmless to REC Marine.
2. Duplicative Expert Testimony Under Rule 403
Defendant cited no case wherein a district court has excluded a second medical causation or future medical treatment opinion as cumulative pursuant to Rule 403. As such, the Court will not, at this time, restrict Plaintiff from calling both a retained expert who specifically produced a report on causation and a non-retained expert who may be able to testify as to causation if his opinions are based on his personal treatment of Conner and nothing more.
Held
The Court granted in part and denied in part the motions to exclude and/or limit the testimony of Captain Christine Hafen and Dr. Xianfeng Wen.
Basically, the motions were granted to the extent that Hafen (1) may only testify as to her supplemental report if it can be properly considered a rebuttal report under Rule 26(e), and (2) may not testify as to the Receipt & Release Agreement. The motions were denied with prejudice as to Hafen’s opinions based upon the ISM Code.
Also, the motions were denied without prejudice as to Xianfeng Wen’s testimony as a non-retained expert.
Key Takeaway
Rule 26(e) allowed the supplementation of a disclosure, such as an expert report, “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.” But supplementation is not limitless; courts have found that “expert reports may only be supplemented in limited circumstances, specifically where supplementation ‘means correcting inaccuracies, or filling the interstices of an incomplete report based on information that was not available at the time of the initial disclosure.’”
Terri Beth Mays died on November 4, 2021, while she was an inmate at the Whitley County Detention Center. Her Estate (“Mays’ Estate”) alleged that Jail personnel, nurses, and medical providers were responsible for ensuring her health and safety while she was in their custody, yet they failed to address her obviously serious medical needs and acted with deliberate indifference to those needs.
Mays’ Estate named as Defendants Whitley County; Jailer Brian Lawson; Sergeants Austin Caldwell and Joseph Cureton; Deputy Jailers Sula Bowman, Kaytee George, Zach Hughes, and Nick Huddleston; Southern Health Partners, Inc.
Defendants filed three motions to exclude the testimony of Plaintiff’s expert witnesses: Anthony Callisto as well as Doctors Terren Trott, MD and Lori Roscoe.
Corrections Expert Witness
Anthony Callisto, Jr. has over 40 years of experience in the correctional system. His experience is vast, ranging from correctional officer, Chief Deputy, Chief Law Enforcement Officer, American Jail Association President, and criminal justice professor.
Lori E. Roscoe is an Advanced Practice Registered Nurse, certified through the National Commission on Correctional Health Care as a Certified Correctional Health Professional Registered Nurse (CCHP-RN).
She has a Doctor of Nursing Practice degree from the University of Alabama, and a PhD in Healthcare Administration. Roscoe has a Master of Science degree in Nursing and a Master’s degree in Public Administration with a Healthcare Concentration. Roscoe began working in Corrections in 1995 as the Health Service Administrator for a female prison in the Northeastern United States. She has worked as an Associate Program Director and as a Regional Administrator on the statewide level. She has correctional business expertise in healthcare operations, policy and procedure development, project management, Continuous Quality Improvement, human resources, staff orientation and development, finance and contract auditing. Roscoe has worked with staff to achieve successful facility accreditation from both the National Commission on Correctional Health Care and the American Correctional Association.
A. Motion to Exclude the Testimony of Corrections Expert Anthony Castillo
The Defendants argued that Castillo is unqualified and that his methodologies are unreliable. Further, the Defendants argued that his opinions are too general to be prescribed to any one Defendant.
However, Castillo’s past background provided extensive technical and specialized knowledge that will help the jury understand the evidence on this case.
The Defendants took issue with the fact that Castillo has never worked in Kentucky nor had he been in a small rural jail prior to his visit to the Whitley County Jail. The issue with the Defendants’ contention here is that it calls into question Castillo’s credibility, not admissibility.
The Defendants accused Castillo of basing his opinions on “broad correctional standards rather than specific Kentucky statutes.” His report explicitly disproved this. Exhibit A of his report lists the “Sources Reflecting and Informing the Standard of Care.” Named among these standards are the Whitley County Detention Center Policies and Procedures, as well as multiple statutes and regulations. Likewise, Castillo’s report indicated that he reviewed all relevant pleadings, reports, depositions, and policies.
Castillo’s ninety-nine page report is a comprehensive analysis of the Defendants’ roles and how their actions relate to the applicable standard of care. To the extent that the Defendants contested his opinion for being too generalized, they are disputing his conclusions, not his methodology.
B. Motion to Exclude the Testimony of Dr. Terren Trott, MD and Dr. Lori Roscoe
The Defendants’ motion as to Terren Trott and Lori Roscoe was simple. They argued that “neither witness is qualified to render opinions regarding Whitley County jail policies or practices.” Because of this, they objected to any testimony by either of these witnesses that non-medical personnel actions were negligent or reckless. The Plaintiff did not contest this motion.
The Plaintiff agreed that neither of these experts will give opinions on Kentucky Jail standards, Whitley County Jail policies or procedures or that any non-medical Defendants’ actions violated the law. Finding no disagreement here, the Court concluded that Doctors Trott and Roscoe are barred from giving opinions regarding the non-medical Defendants’ culpability.
Held
The Court denied Defendants’ motions to exclude the testimony of Anthony Castillo.
The Court granted Defendants’ motion to exclude the testimony of Doctors Terren Trott and Lori Roscoe.
Key Takeaway
Castillo’s lack of experience in an identical facility goes to the weight of his testimony, which is a matter properly left to the jury. Rule 702 does not require an expert to have identical background experience.
This action arises out of Plaintiff Jon Evans’ employment with Defendant Critter Control Operations, Inc.
During this employment, Plaintiff brought multiple concerns to Defendants’ Human Resources (HR) staff Ms. Rebecca Dye regarding “unfair treatment, safety concerns, and potentially fraudulent activity.” After eight and a half months of employment, Defendants terminated Plaintiff on October 18, 2021. Since then, Plaintiff has become employed elsewhere.
Michael J. Stokes earned an MBA from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He has 8 years of experience in providing expert analysis and testimony related to forensic economics, accounting, finance and statistics.
In preparation of her report, Ingegneri reviewed the operative pleading, deposition transcripts of Ms. Dye and other employees of Critter Control, and over two dozen documents that were referenced during those depositions. She concluded that Plaintiff’s allegations of serious misconduct are required to be “investigated promptly and thoroughly,” but “this did not appear to occur.”
Analysis
First, Defendants argued that Ingegneri’s testimony will not help the trier of fact to understand the evidence or to determine a fact at issue because she did not use any specialized knowledge. Whether Defendants—specifically, their HR staff—faithfully applied those policies and practices is not as intuitive as Defendants contend, as it would require some baseline knowledge of the HR industry.
Second, Defendants argued that Ingegneri failed to “identify any specific principles or methods,” failed to “apply any specific principles and methods to the facts,” and made speculative conclusions. The content of the report showed otherwise. Ingegneri expressly stated the standards of internal investigations and handling employee complaints established by publications, reviewed Defendants’ own policies, and applied those standards and policies to specific facts she derived from a list of documents and party testimony.
Third, Defendants argued that Ingegneri’s testimony is unreliable because she based her report on incomplete information or false assumptions. According to Defendants, at Ingegneri incorrectly assumed that Defendants never investigated Plaintiff’s allegations. The Court did not adopt Defendants’ interpretation. Ingegneri concluded that a prompt and thorough investigation “did not appear to occur,” not that no investigation occurred at all.
Fourth, Defendants argued that Ingegneri’s conclusions pertaining to Defendants’ investigation are not relevant to Plaintiff’s wrongful termination claim. According to Defendants, Ingegneri analyzed and opined “on allegations unrelated to the live claims” by listing the various categories of complaints made by Plaintiff before his termination that include, for example, wage and hour issues. But several of these complaints relate to the alleged “unlawful business practices” in which Plaintiff refused to participate, and those complaints are relevant to Plaintiff’s wrongful termination claim.
Michael Stokes
In preparing his report, Stokes reviewed three “alternative” pre-termination annual salaries ($100,000; $130,000; and $165,000), Plaintiff’s work life expectancy based on his age at the time of termination, and an allocation of fringe benefits. Based on this information, Stokes concluded that the present value of loss of Plaintiff’s earnings and benefits ranged from $442,661 to $1,206,330.
Analysis
Defendants argued that the three base earnings Stokes used to calculate damages are improper because they are “aspirational” and higher than Plaintiff’s actual earnings in the eight months he was employed by Defendants ($51,589) or that he could have earned over the entire year ($72,703). But they did not argue that Stokes’ methods and application of those methods to those numbers, aspirational as they might be, were unreliable. Plaintiff contended, and the Court agreed, that the use of hypothetical base earnings goes to the testimony’s weight, not admissibility
Defendants further took issue that the salary hypotheticals are borne only from Plaintiff’s counsel’s assumptions, so Stokes’ report violated Federal Rule of Civil Procedure 26(a)(2)(B). Here, Stokes’ report openly recited what base earnings he relies upon for his calculations and explains that the source of those earnings was Plaintiff’s counsel. The Court found that this disclosure sufficient for the purposes of Rule 26.
Defendants’ concern that there is no evidence Plaintiff ever made, or was on track to make, $100,000, $130,000, or $165,000 while in Defendants’ employ is well-taken, however. In response, Plaintiff alludes to evidence that supports these numbers but has not yet made a specific showing of it apart from stating that a co-worker made “nearly $120,000.” The Court will entertain Defendants’ objection if that foundational evidence is not admitted before Stokes testifies.
Moreover, the fact that Stokes did not account for Plaintiff’s supposed mitigation of damages is another example of a point Defendants may test before the jury.
Finally, Defendants argued that Stokes’ declaration is an improper supplement to his report. It is not. Stokes’ declaration is only used to support Plaintiff’s responsive brief to Defendants’ motion, and the Court reviews it as such.
Held
The Court denied Defendants’ Daubert motions to exclude the testimony of Plaintiff’s experts Laura Ingegneri and Michael J. Stokes.
Key Takeaway
The use of hypotheticals, on its own, does not render an expert’s testimony unreliable. Rather, the proper vehicle through which the hypotheticals can be tested is cross-examination and introduction of contrary evidence.
