This action arises from a claim for property damage brought by Plaintiff because of damage allegedly caused by a storm in May 2024.
Plaintiff retained Anna Kangas of Boulder Construction as its expert to support its claim for damages against Church Mutual.
Church Mutual filed a motion to exclude the testimony of Kangas because: (1) her cost estimate to repair the property is unreliable and speculative because it admittedly fails to consider the actual damage caused by the Storm and assumes the entire property must be repaired; and, (2) she used flawed and unreliable methodologies to calculate the repair estimate.
Architecture Expert Witness
Anna Kangas has a bachelor degree in architecture and a masters degree in public administration. She has been involved in architectural and construction work, including as a building and code enforcement manager, a construction project specialist, ADA Title II coordinator, and community development director.
Opinion 1 – The damage caused by the tree falling on the church building caused extensive damage to the building structure.
Opinion 2 – Being open to the elements and animals since the storm has caused additional damage.
Opinion 3 – The costs of repairing the building to its condition prior to the storm.
Analysis
Beginning with the first part of the Daubert test, the Court is persuaded that Kangas possesses specialized knowledge or skill in the areas of building structures and all aspects of repair and replacement and general commercial contracting work. She has fifteen years of experience in these areas including not only the architect and preconstruction aspect, but also in the building and code enforcement aspect. Plaintiff has shown that Kangas is sufficiently qualified to assess the alleged storm damage and aftermath, as well as to the estimate for the cost of repairs or replacement.
With respect to the second part of the test, the Court found that Kangas is qualified to assist the trier of fact. It is undisputed that Kangas personally inspected Plaintiff’s roof and building on two occasions, took photographs, and reviewed a “visual structural assessment” prepared by Ms. Alayna Nordstrom, PE, of Strickland Engineering and a report from the City of Dexter, Missouri. Kangas’ opinions are reflected preliminarily in her reports, but she also provided further explanations and clarifications for her opinions in her deposition testimony.
Finally, as for the third part of the test, the Court found that Kangas’ testimony is reliable or trustworthy in an evidentiary sense. While Church Mutual made numerous arguments alleging that Kangas’ opinions and estimates are not sufficiently reliable and lack foundation or support, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Church Mutual may cross-examine Kangas regarding her methodology and factual bases.
Held
The Court denied Church Mutual’s motion to exclude the testimony of Anna Kangas.
Key Takeaway
An expert need not have specialized education to qualify as an expert and may be qualified on experience alone. Very few jurors are architects, preconstruction managers, or construction estimators, so Kangas’ testimony on these matters will be useful in helping them judge the relevant facts.
Case Details:
Case Caption:
Dimension Church V. Church Mutual Insurance Company
This case arises from the preventable death of Dalton Milby, who died by suicide on February 12, 2022, while in the custody of the Larue County Detention Center (“LCDC”).
He was taken to LCDC, where he was put on suicide watch and issued an anti-suicide smock. Despite this, Milby managed to gain access to a standard jail jumpsuit, which he used to take his own life shortly before 4:00 p.m.
Plaintiffs offered the opinion of Timothy J. Murray to help the jury understand standards of care applicable to high-risk inmates like Milby and whether LCDC officers complied with those standards.
Corrections Expert Witness
Timothy J. Murray worked at various levels of the New York State Department of Correctional Services (“NYSDOCS”) for thirty-one years and has since served as a correctional consultant for nearly two decades.
Defendants contended that Murray lacked an understanding of the “qualifications required to serve as a jailer in Kentucky,”’ and that this makes him unqualified to offer testimony on whether Defendants complied with relevant standards.
Murray’s CV reveals that he worked in corrections in New York for over thirty years, serving at three separate correctional facilities.
Murray’s academic background supplements his lengthy career in corrections. He possesses a Bachelor of Science in Education, a Master of Science in Education, and a Certificate of Advanced Study in Educational Administration, as well as specialized training from the United States Department of Justice and the American Correctional Association.
2. Relevance
Defendants maintained that Murray did not review the LCDC policies and procedures or the Kentucky Jail Standards developed by the Kentucky Department of Corrections.
Notably, Murray’s report references both the Kentucky Administrative Regulations and the ACA standards of correctional operations.
The report explained that LCDC staff are bound by not only Kentucky legal standards, but also professional standards in the industry. Murray also opined as to what constitutes appropriate staff training for dealing with high-risk inmates and whether staff at LCDC were sufficiently trained and supervised.
Even if Murray did apply national standards, this does not automatically render his opinion unhelpful to the jury. Defendants did not point to any differences between the Kentucky standard of care and the national standard of care that would render testimony about the national standard of care entirely unhelpful to the jury. Furthermore, expert opinions that rely in part on national professional standards such as this are regularly found to be relevant.
3. Reliability
Defendants once again argued that Murray’s failure to apply Kentucky standards references his opinion unreliable. As the Court has already explained, however, Murray did reference the Kentucky standards in his report, and he testified that he reviewed the regulations in creating his report. Nor did Defendants explain why Murray’s reference to the ACA standards constitute an unreliable principle or method. They simply argued that Murray’s testimony amounts to “his belief as to what should have been done in an ACA accredited facility, not a Kentucky facility governed by the Kentucky Jail Standards and the Policies and Procedures of LCDC.”
Once again, Defendants pointed to no substantive differences between the ACA standard and the Kentucky standard such that the ACA standard would constitute an “unreliable” standard as applied to a Kentucky jail. Murray relied on the ACA, Kentucky regulations, and his own personal experience in corrections to provide an opinion on the appropriate standard of care. He compared the actions of Defendants against that standard using facts he ascertained from depositions and camera footage. He therefore explained the “how” and “why” he reached his conclusions.
Held
The Court denied Defendants’ motion to exclude the testimony of Timothy Murray.
Key Takeaway
The jury will be tasked with determining several key issues related to the applicable standard of care and whether Defendants complied with that standard of care. Understanding generally accepted correctional practices will help the trier of fact determine what constitutes reasonable conduct by jail workers dealing with a suicidal inmate.
The Federal Trade Commission (“FTC”) alleged that Defendant Doxo’s website and ads were confusing to some consumers and that Doxo committed certain technical disclosure violations.
David True is a consumer payments expert with over 35 years of experience working with card issuers, networks, merchants, processors, and financial technology firms. Over the course of his career, he has gained experience in payments strategy, marketing, new product development, operations, and finance.
Ann Schlosser, Ph.D., is a marketing professor whose research focuses on consumer behavior, Internet and digital marketing, and communication in technology-mediated environments.
Schlosser received her Ph.D. and M.A. in social psychology with a double minor in advertising and quantitative psychology.
Schlosser has over thirty publications in academic journals, conference proceedings, and book chapters.
Brian Sowers is a market research consultant. Over the course of his career, he has personally designed and conducted thousands of market research surveys across a broad range of modalities and a broad range of populations.
David True, a consumer payments expert, summarized his opinions as follows: (1) Defendant Doxo, Inc. (“Doxo”) allows consumers to choose from a wide variety of funding mechanisms for bill pay; (2) Doxo remits payments to billers either through direct deposit, the Mastercard Remote Payment and Presentment Service (“RPPS”), or check; (3) Doxo’s remittance methods are commonly used, including by bank bill pay services; (4) convenience fees are ubiquitous in bill pay and are routinely charged by billers and/or their preferred payment channels; (5) Doxo’s practices of disputing non-fraudulent chargebacks is normal and an expected part of being a merchant that accepts card payments; and (6) although a small number of billers have posted warnings about Doxo, the substance of those warnings is often questionable, potentially self-interested, or the product of misunderstanding.
(i) True’s Qualifications
The FTC did not appear to challenge True’s qualifications, noting only that, although True “has industry experience advising businesses about payments,” he has limited experience and “identifies no experience or expertise related to consumers’ perceptions of advertisements or businesses’ compliance with consumer protection law.”
The Court found that True is qualified, based on his knowledge and experience, to give relevant and reliable expert testimony. The FTC cited no cases in support of its proposal to define True’s prior experience in the payments industry so narrowly. True possesses “at least the minimal foundation of knowledge, skill, and experience required in order to give ‘expert’ testimony” on the consumer payments industry.
Whether True has the “knowledge and experience” to offer relevant reliable expert testimony is not, however, the end of the inquiry; the Court must further evaluate whether he is able to do so in this case.
(ii) The relevance of True’s proffered testimony
The FTC argued that True’s report consisted of irrelevant matters that have no bearing on whether Defendants violated the FTC Act, Gramm-Leach-Bliley Act, and the Restore Online Shoppers’ Confidence Act.
True’s testimony in his report concerning industry standards about the U.S. consumer bill pay market (Section VII) and bill pay methods (Section VIII) sets the foundation for his testimony. This testimony is relevant because it supported Defendants’ theory that Doxo’s business practices are normal and expected. True then applied these principles to his interpretation of Doxo’s operations (Section IX), discussing payment funding and remittance, payment validation processes, and biller directory quality assurance practices.
True’s recitation of Doxo’s business model and business case for a centralized bill pay platform are necessary to lay the factual foundation for this analysis and is therefore relevant. True’s explanation of Mastercard’s RPPS (Section X) is relevant to the FTC’s theories that Doxo collects money from consumers without paying the biller or pays the biller late, thereby causing consumers to incur late fees or other negative outcomes. Finally, True opined on the fees and costs associated with bill payments (Section XI), Doxo’s chargeback procedures and rates (Section XII), and biller warnings about Doxo (Section XIII). The FTC relied on Doxo’s practices in this area and external evidence to support its claims, thereby making these portions of True’s testimony relevant.
(iii) The reliability of True’s testimony
The FTC argued that True’s conclusions about Doxo’s practices (Sections IX—XII of True’s report) are improper as expert testimony because True identified no methodology or specialized knowledge or experience that explained how he reached them.
True opined that “Doxo has robust processes for minimizing chargebacks,” Doxo’s chargeback rate is “well below industry thresholds for fines or monitoring programs,” and Doxo’s “win rate of approximately 80% on bill payments and about 50% on its subscription (doxoPLUS) products” compares to “an industry average success rate of roughly 45%.” In discussing Doxo’s “multi-layered payment validation framework,” True stated that the validation criteria “are based on a combination of industry standards (e.g., financial institution formatting norms) and direct input from billers.”
The Court deems an expert’s testimony reliable where he identifies applicable industry standards in his report and contrasts them with an atypical case, like this one.
The FTC also argued that True’s conclusions about biller warnings concerning Doxo (Section XIII of True’s report) are not reliable because he offered a definitive conclusion that a “small minority” and “tiny portion” of billers have issued such warnings, despite not asking Doxo whether a spreadsheet upon which he based this conclusion was comprehensive. The FTC did not, however, point the Court to a more comprehensive list of billers who have issued warnings that would support a conclusion that True’s testimony on biller warnings is unreliable because he “failed to consider the relevant underlying facts necessary to support his opinions and conclusions.”
Dr. Ann Schlosser
In her report, Schlosser reached the following conclusions: (1) reasonable consumers would correctly interpret search engine results for Doxo and are not likely to be misled; (2) reasonable consumers would correctly interpret the website and accompanying disclosures to understand that Doxo is not the biller and does not have a formal affiliation with their biller; (3) reasonable consumers would understand that Doxo charges a fee for certain transactions; (4) the option to pay for free by using a linked bank account is stated clearly and repeatedly throughout the payment process; (5) reasonable consumers would understand that doxoPLUS is a subscription service; and (6) isolated consumer complaints do not alter the foregoing conclusions.
(i) The Relevance of Schlosser’s Proffered Testimony
The FTC also did not appear to challenge the relevance of Schlosser’s testimony, but instead questioned its helpfulness.
The topics about which Schlosser opined included the following: (1) how consumers navigate a purchase decision-making process, (2) application of the decision-making process to Doxo customers, and (3) whether a reasonable consumer would be confused or misled as to fees, affiliation, or the nature of Doxo’s bill pay or subscription services. All of these topics are clearly relevant to the issues in this case.
(ii) The Reliability of Schlosser’s testimony
Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable
The FTC contended that Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable.
Schlosser analyzes a consumer’s experience using Doxo’s service by walking through the process from encountering Doxo’s advertisements on Google through each step of Doxo’s bill payflow. Rather than simply regurgitating what she can read on each webpage, Schlosser pauses to explain why certain aspects of these webpages are not misleading or confusing, weaving in principles within her expertise and data not present on the face of any webpage. Although the FTC may disagree with Schlosser’s opinions or critique how she reached them, such arguments bear not on the admissibility of Schlosser’s testimony, but instead their weight, which can be appropriately addressed during cross-examination.
Schlosser’s methodology is unreliable because she failed to consider the actual facts at issue
The FTC also argued that Schlosser’s methodology is unreliable because “she failed to consider the actual facts at issue” and “due to her failure to account for the overwhelming evidence contrary to her opinion.” Almost invariably, Schlosser testified that she would need more information to determine whether any of the documents shown to her or information shared with her would be relevant to her opinions in this case.
Schlosser’s opinions are unhelpful
The FTC challenged three other broad categories of Schlosser’s opinions based on their alleged unreliability and unhelpfulness: (1) Doxo has “satisfied consumers and a loyal following,” (2) certain payment data indicates that consumers were not deceived; and (3) consumers do not care about the affiliation between Doxo and their billers.
The Court rejected all these challenges, because (1) Schlosser’s comment on Doxo consumer satisfaction is relevant to bridge the gap between her application of the consumer decision-making process and external data about Doxo’s consumers; (2) the FTC may cross-examine her about the strength of these opinions, which do not make them inadmissible on their face; and (3) Schlosser stated that “paying on time, without extra fees, is important to consumers,” but explained that “consumers are unlikely to know who is handling the payment or make decisions on whether to buy or not based on who is handling the payment.”
(iv) Ultimate Issue Testimony
The FTC argued that Schlosser’s opinion on deception is an impermissible legal conclusion. Schlosser concluded that “the evidence does not support the conclusion that Doxo’s practices are misleading, confusing, or deceiving a significant number of consumers acting reasonably.” She used the term “deception” or “deceived” a handful of times in the rest of her report.
The Court concluded that Schlosser has not offered an opinion on an ultimate issue of law.
Brian Sowers
(i)Relevance and reliability of Sowers’ opinions on Doxo’s internal surveys
The FTC argued that Sowers relies exclusively on guidance regarding the design of surveys conducted specifically for litigation and failed to explain why or how that literature applied to the Doxo internal surveys that Sowers analyzed.
Sowers testified that he reviewed about nineteen Doxo surveys and agreed that companies’ internal surveys are often not conducted according to the “Shari Diamond Chapter,” a reference guide on survey research, if they are never intended for use in litigation.
According to that reference guide, “the content and execution of a survey must be scrutinized whether or not the survey was designed to provide relevant data on the issue before the court.”
The FTC offered no authority to suggest, however, that an analysis of proper survey design and implementation varies based on the purpose for which the surveys are used. To the extent the FTC disagrees with Sowers’s methodology, the FTC is free to address such concerns during cross-examination.
The FTC also contended that Sowers’ conclusions are “pure ipse dixit.” Sowers identified from treatises and applied ten guidelines for reliable survey design throughout his analysis.
The Court concluded that Sowers’ testimony on Doxo’s internal surveys was relevant and reliable.
(ii) Relevance of the Awareness Survey
The FTC argued that Sowers’ Awareness Survey should be excluded under Rules 702 and 403 as unhelpful to the trier of fact for failing to advance any material issue in the case.
Sowers stated that the Awareness Survey results showed 13.3% of respondents indicated that they are aware they can pay a bill online through a third-party website not authorized by the biller.
The Awareness Survey did not survey Doxo consumers. With the relevant period of liability being February 2021 through October 2024, a survey conducted years later of general consumers’ preexisting beliefs on paying bills through a third-party is not relevant.
Defendants have made no showing, through Sowers or otherwise, about how results may differ (or not) over time and how the survey Sowers conducted could bear on perceived consumer confusion two to five years ago.
Held
The Court denied the motions to exclude expert witnesses David True and Ann Schlosser brought by the Federal Trade Commission.
The Court denied in part and granted in part the FTC’s motion to exclude expert witness Brian Sowers.
Key Takeaway
Trial judges are tasked with ensuring that an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. Generally, expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry and reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Expert testimony is inadmissible if it concerns factual issues within the knowledge and experience of ordinary lay people because it would not assist the trier of fact in analyzing the evidence. Nevertheless, expert testimony need only provide appreciable help to the jury to be admissible.
This matter arises from an allision on December 7, 2022, while the tug M/V BURRWOOD WISE was maneuvering a crane barge, the ALEX G, at a docking facility owned by Atalco. During this maneuver, the ALEX G made contact with a dock. An employee of Defendant, Gnots Reserve, Inc., was operating the tug. Atalco brought this action seeking recovery for the resulting property damage.
Gnots retained Captain Ronald L. Campana to offer opinions on (1) the structural condition of the dock and the absence of a functional fendering system; (2) the custom and practice of fendering marine docks on the lower Mississippi River; and (3) the applicability of the U.S. Inland Navigation Rules to the movement of the ALEX G. Atalco filed a motion to strike Campana’s report and testimony.
Marine Surveyor Expert Witness
Captain Ronald L. Campana is a graduate of the United States Merchant Marine Academy, Kings Point, N.Y. He has sailed in various capacities as an officer and master aboard US flagged vessels. Campana came ashore in 1981 and was trained by an existing marine surveying firm, as a Marine Surveyor, that is no longer in business.
Campana has 42 years of experience surveying vessels and marine terminals in the New Orleans area. Prior to his surveying career, and after graduating from the United States Merchant Marine Academy, he spent ten years as an officer aboard vessels mooring at comparable facilities.
His experience qualifies him to give opinions in this case. The challenges to his opinions in this judge-tried case are better directed to the weight of the evidence, not to exclusion of it.
Held
The Court denied Atalco’s motion in limine to strike and exclude the testimony of Ronald Campana.
Key Takeaway
Challenges to the factual bases of an expert’s opinion ordinarily go to weight, not admissibility, and are properly addressed through cross-examination.
Plaintiff, Mark McCown, a locomotive engineer, fell on his buttocks and immediately experienced pain upon his fall and developed a condition called Complex Regional Pain Syndrome (“CRPS”) due to the fall. McCown filed this suit against Defendant pursuant to the Federal Employers’ Liability Act (“FELA”) asserting that his fall and subsequent injury were due, at least in part, to Defendant’s negligence. While the parties did not dispute that a causal relationship existed between the Plaintiff’s fall and his CRPS diagnosis, they did dispute whether any negligent act or omission by Defendant contributed to Plaintiff’s fall.
Plaintiff sought compensatory damages for his injuries and retained Dr. Robert McLeod to calculate his past and future economic losses. McLeod prepared two reports: a Personal Injury Economic Damages Report (“Personal Injury Report”) and a Life Care Plan Economic Report (“Life Care Report”).
McLeod also prepared supplements that assumed Defendant was totally disabled and would have no future income as well as assumed Defendant is only partially disabled and will be able to engage in part-time work in the future.
Defendant did not argue that McLeod is unqualified, nor did they contest the relevancy of his testimony. However, Defendant did assert that McLeod’s testimony should be excluded in its entirety as unreliable.
Economics Expert Witness
Robert Wesley McLeod has been a financial economics consultant for over 40 years. He earned his doctorate degree in finance and economics from the University of Texas in 1977.
In attacking McLeod’s Personal Injury Report, Defendant first argued that the methodology used in calculating Plaintiff’s loss of fringe benefits was flawed.
Defendant also asserted that McLeod relied on anecdotal evidence from a “single-year snapshot of 2024 benefits cost data,” and that relying on “outlier” anecdotal information is improper.
Next, Defendant argued that McLeod’s methodology “lacked internal consistency.” Specifically, Defendant asserted that McLeod averaged multiple years of historic data in assessing Plaintiff’s future tax rate, but used a single, “cherry-picked” year in determining lost fringe benefits.
McLeod explained that benefits are a percentage of earnings, so calculating lost fringe benefits based on that percentage is “a fairly standard approach.” Defendant argued that “a far more reasonable approach is to tie any increase to the projected inflation rate or healthcare-related costs indices, not wage growth.”
McLeod is a well-qualified economist who provided detailed descriptions of his methods and reasoning in his reports, deposition, and declaration. The mere existence of another method of calculation did not make the method used by McLeod unreliable or not generally accepted among economists. As such, the Court is not persuaded by Defendant’s assertions that McLeod’s methodology is unreliable.
b. Life Care Plan Economic Damages Report
As to the portion of McLeod’s report that addressed pretrial expenses, Defendant argued that “the jury is fully capable of independently reviewing medical bills and adding up the medical expenses incurred by Plaintiff without the assistance of an economist.” While this may be true, the Court did not agree with Defendant’s argument that the inclusion of pretrial damages in McLeod’s report risked confusing the issues and misleading the jury so long as the pretrial damages are the sum of medical expenses Plaintiff has actually incurred to this point.
While any testimony that Plaintiff’s pretrial damages is based upon hypothetical pretrial treatment that Plaintiff did not receive will be excluded, even a treatment that was declined pretrial may still be a necessary treatment in the future based on Plaintiff’s changing needs and responses to other treatments. As such, it is permissible for McLeod’s Life Care Plan Report to include the cost for treatments Plaintiff has previously declined in his calculation of post-trial expenses unless it is a treatment that Plaintiff has stated he will not consider in the future.
Held
The Court denied Defendant’s motion to exclude certain calculations from Plaintiff’s economist, Dr. Robert McLeod.
Key Takeaway
The existence of other methodologies that McLeod chose not to apply was fodder for cross-examination, but it did not warrant the exclusion of his testimony.
This case arises out of Plaintiff Jane Doe’s claims for child sexual abuse against a well-known, Rhode Island-based boarding school, Portsmouth Abbey School, the institution that hired and retained Plaintiff’s abuser, Michael Bowen Smith (“Smith”). Plaintiff attended Portsmouth Abbey from September 2010 to May 2014. In December 2020, Plaintiff filed a complaint against Portsmouth Abbey in the United States District Court for the District of Rhode Island, alleging that the school administrators failed to report and prevent the abuse despite receiving warnings.
The District of Rhode Island ruled that Plaintiff’s claims against the school were procedurally barred by the statute of limitations. In December 2020, Plaintiff also filed this action for professional negligence, breach of contract, and breach of fiduciary duty against Defendant Lewis Roca, based on legal services Lewis Roca provided to Plaintiff in connection with her petition for an order of protection against Smith.
Plaintiff alleges that Lewis Roca attorneys knew or should have known Plaintiff had potential claims against Portsmouth Abbey arising from the abuse but never advised Plaintiff of these claims or the relevant statute of limitations. Plaintiff also alleges that Lewis Roca never disclosed that the law firm often defended the Catholic Church in claims brought by abuse survivors or explained that this presented a potential conflict of interest.
Dr. Charol Smith Shakeshaft is a professor in the Department of Educational Leadership at Virginia Commonwealth University. She has a Ph.D. in educational administration and has served as a professor in that capacity for over 45 years. Shakeshaft began “studying sexual abuse of students in schools in the 1980s,” has received three grants by the U.S. Department of Education, and has authored a Congressionally mandated report on educator sexual misconduct in the United States, published in 2004.
Laurie Fortin is a licensed clinical social worker who has over 30 years of experience conducting, supervising, and providing training for forensic interviews in the context of child abuse.
I. Defendant’s Motion to Exclude Charol Shakeshaft
Shakeshaft is expected to testify that Portsmouth Abbey failed to provide clear guidelines or training on how to respond to reports of inappropriate conduct; that Portsmouth Abbey did not have appropriate policies or adequate training to prevent Plaintiff from being sexually abused; that the policies that were in place were not communicated, followed, or enforced; and that the response to reports of abuse was insufficient.
a. Shakeshaft’s Qualifications
Defendant objected to Shakeshaft’s qualifications as “lacking on-the-ground knowledge and experience implementing and enforcing policies and procedures in a boarding school setting within a relevant time period.” Defendant also argued that she “conducted little to no investigation into the Portsmouth Abbey environment more specifically, including the size of the student body, its leadership, and/or the layout of the campus and locations where Plaintiff and Smith were purportedly seen to interact.”
Shakeshaft is offering opinions on a “systemic failure” in Portsmouth Abbey’s policies, training, and response to reports of sexual abuse, not testifying as a legal expert. The reference to “state and federal entities requiring that school employees are responsible for keeping children safe” is not disputed and did not, as Defendant suggested, form a predicate for Shakeshaft’s opinions.
In addition to her academic credentials and extensive research experience, she has been qualified to provide expert testimony on similar subject matter in other cases in this and other districts.
b. Reliability and Relevance of Shakeshaft’s Opinions
Shakeshaft’s opinions on school policies, grooming, and “conflicts of interest” lacked reliable methodology
First, Defendant challenged Shakeshaft’s opinions on school policies, grooming, and “conflicts of interest” as lacking reliable methodology.
The Court considered Shakeshaft’s significant experience and research in the field of educator sexual misconduct and her review of an extensive compilation of relevant school documents.
To the extent that Defendant objected to the use of the term “grooming” in Shakeshaft’s report, Plaintiff is not offering Shakeshaft as an expert on grooming. Moreover, Shakeshaft clarified in her deposition that she was “not looking for grooming” and that references to “grooming” reflected her notes on the records she reviewed.
Shakeshaft lacked familiarity with the Rhode Island mandatory reporting law
Second, Defendant objected that Shakeshaft lacked familiarity with the Rhode Island mandatory reporting law and other requirements that would have applied to Portsmouth Abbey during the time period Plaintiff was a student. This appears to refer to a table Shakeshaft created of “items that should be, but were not, included in a specific policy prohibiting and preventing educator sexual misconduct.”
To the extent that Defendant objected that this list of policies was not mandated by Rhode Island or federal law, the Court did not find that Shakeshaft is testifying that the absence of these policies violated state or federal law between 2010 and 2014.
Shakeshaft’s criticism of the external investigation of Portsmouth Abbey was speculative
Defendant also challenged Shakeshaft’s criticism of the external investigation of Portsmouth Abbey as “speculative,” where Shakeshaft’s own report and deposition testimony stated that she “speculates” that Plaintiff was not included in the investigation report as that likely would have been harmful to the school’s standing and reputation. These and similar objections either go to the weight of the testimony, which Defendant is free to address on cross examination, or attack conclusions that Shakeshaft did not offer.
Shakeshaft is a “school person” and should not be allowed to testify to the standard of care for non-school personnel
Lastly, Defendant asserted that Shakeshaft is a “school person” and should not be allowed to testify to the standard of care for non-school personnel. The Court agreed that Shakeshaft is not the appropriate witness to testify, for example, to the standard of care for Lewis Roca attorneys. However, by Defendant’s own account, Plaintiff stipulated that Shakeshaft is “not going to offer any opinions about anything having to do with Lewis Roca.”
II. Defendant’s Motion to Exclude Laurie Fortin
Fortin offered the following opinions in her report: (1) Smith’s behaviors were highly consistent with grooming techniques and strategies utilized by known child sexual offenders; (2) Smith’s behavior became increasingly characteristic of domestic violence perpetrators; (3) Smith endorsed and utilized cognitive distortions commonly used by known offenders; (4) the manipulative nature of Smith’s grooming process significantly contributed to silencing Plaintiff and delaying her disclosure; and (5) the Portsmouth Abbey school environment and culture facilitated Smith’s ability to use and abuse his power and authority as a staff member to groom and sexually abuse and exploit Plaintiff.
a. Fortin’s Qualifications
Defendant did not challenge Fortin’s qualifications to testify on grooming generally but argued that Fortin is not qualified to offer expert testimony regarding school rules, policies, or the boarding school environment.
However, the Court found that Fortin is qualified to testify regarding environmental or cultural factors that facilitate grooming as disclosed in her report. The record before the Court did not reflect that Fortin is opining on the adequacy of school policies or the standard of care applicable to schools like Portsmouth Abbey.
b. Reliability and Relevance of Fortin’s Opinions
Defendant next argued that Fortin did not possess sufficient facts to support her opinions, which must be excluded as speculative.
Again, the Court did not find that Fortin offered any opinions regarding the adequacy of school policies or the boarding school environment generally. And, as Fortin explained in her deposition, her understanding that Smith violated Portsmouth Abbey rules was based on deposition testimony from Portsmouth Abbey staff. Defendant did not point to any evidence contradicting Fortin’s understanding, but to the extent Defendant wished to show Fortin’s understanding relies on disputed facts, Defendant is free to do so on cross examination.
Finally, the Court rejected Defendant’s argument that Fortin’s opinions are irrelevant because Smith is not a party to this case. As Plaintiff pointed out, the relationship between Plaintiff and Smith is a key factor in damages. Because the average juror is not familiar with grooming behaviors or their impact on minor victims, the Court found that Fortin’s expertise will aid the jury in understanding the dynamics of that relationship.
Held
The Court denied Defendant’s Daubert motion to exclude the testimony of Charol Shakeshaft.
The Court denied Defendant’s Daubert motion to exclude the testimony of Laurie Fortin.
Key Takeaway
When ruling on motions to exclude or otherwise limit expert testimony, the Court is mindful that its role as gatekeeper is not intended to serve as a replacement for the adversary system. Ultimately, the rejection of expert testimony is the exception rather than the rule.
Plaintiff, a manufacturer of materials (e.g., nylon), contracted with Defendant to provide railcar switching services at Plaintiff’s Pensacola plant. On November 24, 2023, Defendant misidentified a railcar containing resin and delivered it to the phenol unloading area at Plaintiff’s plant.
The resin railcar was unloaded into Plaintiff’s phenol holding tank, and Plaintiff alleged that the resin then contaminated the reactor unit that normally draws phenol from the tank. Plaintiff further claimed that contamination permanently damaged the reactor’s catalyst and resulted in an extended shutdown of certain plant operations.
Defendant designated expert Bruce Williams to opine on the procedures that resulted in the phenol contamination and the subsequent damage to the reactor’s catalyst.
As to the contamination, Williams concluded it was caused by Plaintiff’s employees falsely claiming the resin railcar contained phenol and that it was on the approved unloading list. He also noted that Plaintiff should have been aware that resin had been unloaded into the tank based on the tank’s level data. Williams concluded that the damage to the catalyst was caused by Plaintiff overfeeding liquid into the reactor, not the resin contamination.
Plaintiff sought to exclude portions of Williams’ testimony as premised on unsupported statements and unreliable inputs.
Chemical Engineering Expert Witness
Bruce C. Williams has over 46 years of experience working for Dow Chemical, Novus International, and Covestro AG where he has designed, constructed, and operated chemical plants across a variety of technologies and countries.
A. Williams’ opinion on the length of time the pump operated should not be excluded
A key part of the Parties’ dispute involves whether Plaintiff should have been aware that resin had been unloaded into the phenol tank. Plaintiff contended that its operators “experienced unloading issues,” and required additional confirmation that resin was unloaded.
Williams opined that the Plaintiff should have realized resin had been unloaded from the railcar into the phenol tank because, he claimed, the unloading pump ran for over an hour, moving at least some resin into the phenol tank.
As demonstrated in his report and discussed during his deposition, Williams arrived at the conclusion that the pump operated for this amount of time by considering the operators’ statements in light of the pump’s technical features. He explained that although the meter indicating whether material was flowing through the pump may have shown there was no flow, the fact the pump continued to operate without triggering the automatic shutoff—which occurs when there is no flow, low flow, or high flow—demonstrated flow and that resin was being unloaded from the railcar. He further argued that no indicators of no flow, low flow, or high flow were present, and a reasonable operator would have recognized that material was flowing.
Analysis
Plaintiff made two arguments for exclusion of Williams’ opinion that the pump ran for over an hour. First, Plaintiff argued that the expert opinion should be excluded as not helpful to the jury because the jury can apply common sense and simple logic to determine whether the pump ran for an hour. Second, Plaintiff contended that any opinions based on the pump running for an hour must be excluded as not based on sufficient facts or data or as otherwise unreliable.
The Court found that the opinion is helpful to the jury because the Parties dispute how long the pump ran and Williams, who has technical knowledge of the pumps and unloading process, bases his opinion on statements by the witnesses. Technical knowledge of the pumps and how they operate is outside the realm of experience of a common juror and Williams’ technical explanation regarding the pump operation could assist the jury in determining whose version of events is correct.
Application of his technical knowledge to the operators’ statements is a reliable approach, particularly considering Plaintiff did not challenge Williams’ knowledge itself.
B. Williams’ opinion on the phenol tank levels should not be excluded
Williams also opined that Plaintiff should have been aware resin had been unloaded into the phenol tank based on the tank’s level data. The phenol tank is an active tank, meaning phenol is often being simultaneously added to the tank from railcars and removed from it into the reactor.
Using the level data itself, as well as the rates of change in the data occurring during the unloading of the railcar, Williams purports to have calculated accurate estimates of the amount of unloaded resin. According to Williams, if the Plaintiff had done the same, it would have noticed that during the unloading attempts, the rate at which the tank level dropped decreased, indicating that material was being pumped into the tank from the railcar, rather than solely being pulled from the tank into the reactor. Williams based his calculations on historical data provided by the Plaintiff and the one hour unloading period he previously determined.
Analysis
Plaintiff made three arguments for why Williams’ calculations are unreliable. First, the calculations assumed pump ran for one hour, as discussed above. Second, Williams used an estimated phenol flow rate (that is, how fast the phenol is being pumped into or out of the tank). Third, Williams did not account for the range of error, which Plaintiff claims is between plus/minus 0.5 to 1.0 percent, of the instrument that measures the level of the tank.
The Court will allow Williams to opine on how long the pump ran. Plaintiff has not explained why Williams’ use of an estimated flow rate, based on the historical data provided by Plaintiff, is unreliable.
Similarly, Williams’ claims failed to account for the tank level instrument’s tolerance because he did not know “the manufacturer and the model number.” Plaintiff failed to explain how this lack of information would make the calculations unreliable as opposed to inaccurate, particularly because the point of Williams’ opinion is not that he has precisely calculated the amount of resin, but that Ascend failed to “use readily available phenol storage tank level data to evaluate whether material had been off-load.”
C. Williams’ opinion on the cause of the catalyst damage based on his misreading of Plaintiff’s chart should be excluded
Williams offered the opinion that the damage to the catalyst was not caused by contamination from the resin, but rather from overfeeding phenol from the saturator into the reactor. His opinion was based on his reading of a graph displaying the saturator levels.
Plaintiff argued that Williams’ interpretation of the graph was facially incorrect. Specifically, Plaintiff claimed that Williams confused the “saturator level” and “output for feed control valve” trend lines, when forming the opinion that the saturator level was over 100 percent at certain times. In short, Williams was looking at and commenting on the wrong line in the graph.
Williams admitted his mistake during his deposition. Defendant did not deny that Williams erred in reading the graph but argued that corroborating evidence supported the causation opinion regarding the carryover theory of catalyst damage.
The Court can confirm Williams’ mistake by examining his report. Any opinion based on his reading of the graph must be excluded as unreliable and potentially confusing to the jury. Williams’ opinion derived from the incorrect reading of the graph are excluded, but those opinions that have some other basis of support are not.
D. Williams’ opinion on how the resin would have reacted in the phenol tank should not be excluded
Williams opined that the resin would have been soluble in the phenol which was already inside Plaintiff’s storage tank, and that it would have reacted in the storage tank rather than causing the damage to the catalyst.
He bases his opinion on an email from the resin manufacturer discussing the resin’s reactivity. The email purports to contain an opinion from the resin manufacturer’s Quality Manager, that based on the tank temperature, the resin would have reacted with the phenol in the tank and produced water.
There is no evidence that a statement from a chemical’s manufacturer about its properties is not the sort of information on which a chemical engineer would rely in these circumstances. Williams, an experienced chemical engineer, incorporated the information from the resin manufacture in his discussion.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude certain testimony of Bruce C. Williams.
Key Takeaways:
Reliable expert testimony often involves estimation and reasonable inferences from a sometimes incomplete record. Further, a few scattered errors in an expert report are not necessarily grounds for exclusion.
A lack of particularization or reliance on estimates goes to weight of the conclusion, not reliability of the methodology.
Please refer to the blog previously published about this case:
Plaintiff is a Delaware limited liability business suing multiple individuals and related trusts for securities fraud arising out of a transaction in which Defendants allegedly induced Plaintiff to purchase over $25 million of Devi Holdings stock through fraudulent misrepresentations about Devi’s financial condition and unpaid tax liabilities. Devi Holdings was a business engaged in engaged in cannabis cultivation and production.
Plaintiff offered the testimony of experts Dr. Zamir K. Punja and Alexander Cooley. Defendants filed a Daubert motion to exclude the testimony of Punja and a joint motion to exclude the testimony of Cooley while Plaintiff filed an omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.
Plant Pathology Expert Witness
Dr. Zamir K. Punja has been engaged in the study of plant pathology for over 40 years. He received his Bachelor of Science (Hons.) in Plant Science, Agriculture from the University of British Columbia, Vancouver, B.C., Canada, and earned a Master of Science (MSc) and a Doctorate (Ph.D.) in Plant Pathology from the University of California, Davis, California, USA.
Alexander Cooley has nearly twenty years of experience in the cannabis and hemp industries, including senior operational roles in cannabis companies, consulting work, and policy and regulatory engagement.
Beau Whitney is an economist and business operations and governmental affairs specialist with over 20 years of experience. In 2014, he founded Whitney Economics, a cannabis and hemp business consulting, data, and economic research firm based in Portland, Oregon.
Barbara Webb has a MAcc in Accounting from the University of Michigan. She is a Certified Public Accountant who specializes in providing complex tax advisory services and audit support for cannabis businesses.
A. Defendants’ Daubert Motion to Exclude the Expert Testimony of Zamir Punja
Through Punja’s testimony, Plaintiff sought to prove that Devi’s cannabis was already widely infected with HLVd by early 2021, Defendants knew or should have known it, and they fraudulently concealed this when inducing Plaintiff to buy $25 million in shares. Discovery revealed that by early 2022 Devi’s Arizona facility was experiencing a widespread outbreak of HLVd, a pathogen known to cause significant reductions in cannabis yield and quality. Punja opined that the level of HLVd infection documented in 2022 could only have resulted from repeated propagation cycles over multiple years, and therefore the viroid was present—and detectable—by early 2021, during the period in which Defendants were soliciting Plaintiff’s investment.
Defendants sought exclusion of Punja’s testimony on the grounds that it is unreliable, speculative, and irrelevant to the claims pled.
Defendants argued that Punja’s opinions are speculative because he lacked direct HLVd test results from 2021. But the absence of such data is itself a product of Devi’s failure to test. Therefore, Punja’s opinion is consistent with accepted scientific practice.
Defendants argued that HLVd is irrelevant because the Amended Complaint does not expressly reference it, but the Complaint alleged that Defendants concealed that “the vast majority” of Devi’s cannabis was unsellable—a fact directly tied to Devi’s financial condition and the value of the shares Plaintiff purchased.
As a result, Punja’s testimony is therefore relevant to whether Defendants misrepresented or concealed material facts about Devi’s operational viability and financial health.
B. Defendants’ Joint Motion to Exclude Opinion Testimony by Alex Cooley
Defendants argued that Cooley is unqualified because he is not a CPA and lacked formal accounting or tax credentials. But Plaintiff did not offer Cooley as a general accounting or tax expert. Rather, he is offered to explain cannabis-industry-specific accounting issues.
Defendants contended that Cooley used no methodology and that his opinions were speculative because he did not calculate Devi’s exact tax liability. However, Cooley did not purport to calculate Devi’s tax liability. Rather, Cooley’s opinions addressed whether Devi’s accounting practices—such as routing revenue through management companies, zeroing out subsidiary income, and classifying expenses as cost of goods sold—were inconsistent with representations that all taxes were paid, and no accounting issues existed.
Lastly, to the extent the Defendants argued that Cooley invaded the province of the factfinder, any concerns about overreach can be addressed through cross-examination.
C. Plaintiff’s Omnibus Motion to Exclude the Testimony of Defendants’ Proffered Experts
1. Beau Whitney
Whitney is an economist retained to offer opinions regarding cannabis-industry market conditions and to rebut the reports of Plaintiff’s experts, Alex Cooley and Zamir Punja. Plaintiff sought exclusion on the grounds that Whitney’s rebuttal opinions rested on mischaracterizations of Cooley’s report, that his cannabis-market analysis was generic and irrelevant to Plaintiff’s rescission-only claims, that he lacked the qualifications and methodology necessary to rebut Punja’s opinions, and that portions of his report improperly addressed the mental states or beliefs of the parties.
Whitney’s background in cannabis-industry economics, operations, and market analysis provided sufficient expertise to offer the opinions disclosed in his report. Moreover, his rebuttal of Cooley and Punja is grounded in his professional experience and review of the record. Plaintiff’s objections—whether directed at Whitney’s characterization of Cooley’s opinions, the breadth of his market analysis, or the depth of his engagement with HLVd-related materials—are better addressed through cross-examination and the Court’s own evaluation of the weight to be afforded his testimony.
2. Barbara Webb
Webb is a certified public accountant retained to rebut Cooley’s opinions concerning Devi’s accounting practices and tax-related communications. Plaintiff argued that Webb’s testimony should be excluded because it consists largely of narrative summaries and speculative interpretations of internal emails rather than the application of specialized accounting expertise. Webb is a CPA with specialized experience in cannabis-industry tax and accounting practices.
Her rebuttal opinions responded directly to Cooley’s analysis of Devi’s accounting records and tax-related communications. Plaintiff’s challenges largely concerned the inferences Webb drew from internal emails and the extent to which those inferences differ from Cooley’s.
In conclusion, the Court is well-positioned to distinguish between proper expert analysis and factual narrative, and to disregard any testimony that may stray beyond the permissible scope.
Held
1) The Court denied Defendants’ Daubert motion to exclude the testimony of Dr. Zamir Punja.
2) The Court denied Defendants’ joint motion to exclude the opinion testimony by Alex Cooley.
3) The Court denied Plaintiff’s omnibus motion to exclude the testimony of Defendants’ proffered experts, Beau Whitney and Barbara Webb.
Key Takeaway
An expert is not required to possess the ideal dataset; rather, the expert must employ a reliable methodology given the available evidence. Punja’s opinions are not speculative merely because he lacked direct HLVd test results from 2021, particularly where the absence of such data is itself a product of Devi’s failure to conduct testing.
Ascend’s claims arise from Rescar’s misidentification and delivery of a railcar containing resin to Ascend’s phenol unloading area at Ascend’s manufacturing facility located near Pensacola, Florida.
Ascend Performance Materials Operations LLC designated Aaron Imrie as a retained expert to opine on the misdelivery of the railcar and the impact of the mistake on Plaintiff’s equipment and plant operation. However, Defendant Rescar Companies filed a motion to strike Imrie from testifying.
Chemical Engineering Expert Witness
Aaron Imrie is a chemical engineer with over 30 years of technical and commercial experience working or consulting for petroleum and chemical processing businesses.
A. Imrie is qualified to opine on railcar switching or unloading
Defendant argued that Imrie’s testimony on railcar switching and unloading must be limited because, although otherwise credentialed, his “oral deposition testimony confirms he is unqualified to opine on railcar switching or unloading.”
Imrie has extensive experience designing and maintaining operating procedures and systems for chemical plants that utilize railcars to deliver raw materials, like the facility and system at issue in this case. Imrie’s knowledge and general experience working in this industry, specifically assisting with operating procedures and production flow at similar plants, qualifies him to testify as an expert, even though he has not unloaded or switched a railcar himself.
B. Imrie is qualified to give the limited opinions regarding YardMaster contained in his report
Defendant makes the same argument with respect to Imrie’s testimony regarding YardMaster, a computer program—that Imrie is unqualified because he has never personally used YardMaster. However, the Court rejected this argument for the same reasons identified above. Imrie’s discussion of YardMaster in his report is limited to (1) a belief that the Parties previously agreed to implement it at the railyard in question and (2) the intent behind the agreement to implement the electronic system was to improve on the existing handwritten method of tracking railcars.
Imrie has not offered any opinions regarding how YardMaster functions within the computer program itself. Moreover, Imrie’s experience qualifies him to testify about the opinions regarding YardMaster that are identified in his report.
Held
The Court denied Defendant’s motion to strike the testimony of Aaron Imrie.
Key Takeaway
An expert’s qualifications do not need to be as granularly specific as Defendant proposes. Rule 702 allows an expert to be qualified by means of knowledge, skill, experience, training or education. A lack of personal experience does not disqualify expert so long as there is another basis for his qualification.
Case Details:
Case Caption:
Ascend Performance Materials Operations LLC V. Rescar Companies
Plaintiff Douglas Looney, Evergreen’s employee, was standing behind a vacuum truck to wash its interior when a chunk of ash flew out, injuring him.
Defendant intended to present the expert testimony of Jason Henthorn at trial. Plaintiffs asked the Court to exclude Henthorn’s testimony pursuant to Federal Rule of Evidence 702.
Industrial Hygiene Expert Witness
Jason E. Henthorn has a bachelor’s degree in industrial hygiene. He also has experience creating and maintaining work safety programs, training employees on workplace safety, and investigating workplace accidents.
The first opinion that Plaintiffs attacked is that “Looney placed himself in an area of increased risk when he positioned himself in between the half door and the truck’s debris body.” Plaintiffs argued that this opinion should be excluded because it is not based on “any identifiable hazard analysis” and because Henthorn never explained his methodology in reaching this conclusion.
During his deposition, Henthorn testified he had experience with vacuum trucks similar to the one involved in Looney’s accident. Henthorn also suggested there were “materials in the operator’s manual of the truck” and “stickers or placards on the truck” alerting employees to the danger of standing behind the truck.
Because Henthorn’s experience is sufficient to render the opinion reliable and helpful to a jury, the Court will not exclude this opinion.
B. Opinion 2
Henthorn’s second opinion is that Defendant “possessed policies and procedures, including the Vacuum Truck Safety Program, which originated in 2019 and had been revised a number of times.” As Plaintiff’s pointed out, this is simply a factual statement.
Still, the Court decided that Henthorn’s perspective would be helpful to the jury; his experience will allow him to explain whether these policies and procedures apply to the work Looney was doing when he was injured.
C. Opinion 3
The third opinion at issue is that Defendant “did not possess knowledge of a dangerous condition or practice involving its vacuum trucks.” Plaintiffs argued that this opinion “is pure speculation.”
The Court agreed. As Plaintiffs pointed out, “in his deposition, Henthorn could not identify the field supervisor who ordered Looney and his crew to decontaminate the vacuum truck on the day in question.”
Further, Defendant’s own report on Looney’s accident contradicted Henthorn’s conclusion that Defendant lacked knowledge.
D. Opinion 4
Henthorn’s fourth opinion is that “the struck-by hazard of falling debris should have been obvious and apparent to Looney as he relocated himself during his work due to the ash not coming out of the truck as he had previously experienced.”
During his deposition, Henthorn acknowledged that he had no experience with the type of material in the truck Looney was cleaning. He testified that he did not know what type of ash was in the truck, nor how long the ash had been sitting in the truck before Looney began cleaning it, but he explained that both the type of ash and the amount of time it had been sitting would affect its density. Given Henthorn’s lack of knowledge about the material in the truck, the Court held that he cannot reliably testify whether the hazard of falling debris should have been obvious to Looney.
E. Opinion 5
Finally, Henthorn opined that Defendant “did not violate a specific industry standard which caused Looney’s incident.”
Henthorn’s experience in industrial hygiene made him qualified to explain which industry standards may or may not apply to a particular work activity and whether certain employer conduct violates an industry standard. In his deposition, he discussed specific industry standards and explained why, in his view, they did not apply on the day of the accident. As a result, the Court admitted this opinion.
Held
The Court granted in part and denied in part Plaintiffs’ motion to exclude the testimony of Jason Henthorn under Federal Rule of Evidence 702.
Key Takeaway
Some expert opinions are only reliable when supported by scientific testing. Henthorn’s conclusion that Looney placed himself in an area of increased risk is one such opinion.
Case Details:
Case Caption:
Looney V. North American Services Group, LLC
Docket Number:
3:24cv467
Court Name:
United States District Court, West Virginia Southern
