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  • The Insurance Expert’s Testimony on Claims Handling Contained Deficiencies

    The Insurance Expert’s Testimony on Claims Handling Contained Deficiencies

    This is an insurance coverage dispute arising from a car accident between Plaintiffs, in which Plaintiffs seek to enforce a liability insurance policy issued by Defendant to Plaintiff Anita Myers that was later assigned to Plaintiff Sarah Montalvan.

    Defendant sought to exclude the testimony of Peter Knowe, Plaintiffs’ designated insurance claims handling expert while Plaintiffs sought to exclude the opinions of GailAnn Stargardter, Defendants’ designated insurance claims-handling expert.

    Insurance Expert Witness

    Peter Knowe has specialized qualifications and experience in adjusting, investigating, and evaluating insurance claims. During his career in the insurance industry spanning 26 years, he was trained in evaluating and responding to policy limit demands and time-limited demands.

    Want to know more about the challenges Peter Knowe has faced? Get the full details with our Challenge Study report.

    Law And Legal Expert Witness

    GailAnn Y. Stargardter is a practicing attorney specializing in “insurance coverage and bad faith,” and has been practicing in Washington since 1988, and California since 2007.

    Stargardter’s practice is limited to insurance coverage and bad faith. Stargardter was previously employed as a claim attorney for an insurance company, where she reviewed files to “determine whether claims were being handled consistent with state and company requirements.” She also provides training to insurance clients regarding the California state settlement regulations, is a “co-author of California Insurance Law (The Recorder (2015)),” and previously testified as an expert witness.

    Discover more cases with GailAnn Stargardter as an expert witness by ordering her comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Defendant’s Motion to Exclude the Expert Testimony of Peter Knowe

    1. Qualifications

    Based on Knowe’s description of his experience and attached curriculum vitae, the Court found that Knowe is qualified to provide expert testimony in this case.

    Therefore, the Court denied the Knowe motion insofar as it sought to exclude, on the ground of Knowe’s lack of qualifications, his testimony regarding industry customs and practices in handling insurance claims.

    2. Reliability and Methodology

    Plaintiffs offered Knowe as an expert on the topic of whether Defendant “complied with the practices and standards of the insurance industry in its handling of the liability claim brought by Sarah Montalvan against Anita Myers.”

    Based on Knowe’s review of various materials, including Defendant’s claim file, the deposition transcript of Starla Tuck, Defendant’s claims adjuster, and other case specific documents, Knowe opined that Defendant’s claim handling “fell below the insurance industry standard of care” in twelve different ways.

    Based on the Court’s review of the Knowe Report, the Court agreed with Defendant that the Report (1) did not sufficiently articulate the bases for Knowe’s proffered “industry standards,” and (2) lacked a described nexus between the described industry standards and Knowe’s opinions.

    Analysis

    In his Report, Knowe listed sixteen standards “for claims handling,” which are “national in scope and apply in all states.” However, the Knowe Report did not identify the specific source for each standard.

    Other than to cite his training and experience, the Knowe Report did not explain how Knowe derived his sixteen standards from the above-referenced insurance industry texts and articles.

    In addition, as articulated by Defendant during the hearing on the motions, it is unclear whether each of the sixteen standards Knowe describes in his report were applicable when Defendant evaluated Plaintiffs’ claim in 2018. Further, even if the Knowe Report were to describe the basis for the standards described therein, it is unclear how Knowe “applied the principles and methods reliably to the facts of the case.”

    Nevertheless, the Court found that the above deficiencies may be curable. Based on Knowe’s described experience with insurance claims handling as a senior technical representative, manager of California-based field offices at a nationwide insurance company, and experience as an expert witness in other proceedings, the Court is inclined to give Knowe the opportunity to explain how he derived the 16 standards, whether those standards existed at the time of the claim, and how he applied the principles and methods reliably to the facts of this case.

    B. Plaintiffs’ Motion to Exclude GailAnn Stargardter

    1. Qualifications

    Plaintiffs presented no argument that Stargardter is unqualified. Based on Stargardter’s described experience, the Court found that she possesses sufficient “knowledge, skill, experience, training, or education” to provide expert testimony regarding insurance claim handling.

    2. Ultimate Issue Testimony

    Plaintiffs argued that “the Stargardter Report is a legal brief masquerading as expert testimony” in that the Stargardter’s opinions are no more that impermissible conclusions and are one-sided, incomplete, and unreliable.

    Based on the Court’s review of the Stargardter Report and Stargardter Rebuttal, the Court concluded that the Stargardter Report and Stargardter Rebuttal provided legal opinions on ultimate issues of law, and such opinions should be excluded.

    Anlaysis

    Stargardter opined that Defendant’s handling of Plaintiffs’ claims “was within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”

    In particular, according to Stargardter’s opinion, Defendant “conducted a full, fair, objective and timely investigation of Sarah Montalvan’s claim,” “fully, fairly, objectively, proactively, and timely evaluated Sarah Montalvan’s claim, and extended settlement offers commensurate with the claims as documented by her counsel.”

    This opinion, plainly, amounts to legal analysis. The Stargardter Report and Stargardter Rebuttal rely on legal authorities to assert that Defendant’s handling of Plaintiffs’ claims was “within the standard of care, consistent with the standards, customs, and practices in the insurance industry, compliant with the CUCPA and the Regulations, and compliant with National General’s own internal guidelines.”

    The only portion of Stargardter’s testimony that does not provide legal analysis is what Defendant characterize as “a detailed claim-file chronology tracking Defendant’s handling from the initial loss report on September 24, 2017, through the filing of the suit.”

    Based on the Court’s review of the Stargardter Report and the parties’ arguments at the hearing, both the Stargardter Report and Stargardter Rebuttal offered legal opinions that will not be helpful to the jury

    Held

    Having considered the parties’ submissions, oral arguments, the relevant law, and the record in this case, the Court ordered the parties’ respective experts to file supplemental expert reports that address the deficiencies and reserved ruling on the motions until after the supplemental reports are filed.

    Key Takeaway

    In describing the bases for her opinions, Stargardter does not reference her experience handling insurance claims or Defendant’s internal guidelines. Neither the Stargardter Report nor Stargardter Rebuttal describe whether Defendant’s conduct was reasonable based on industry practices and norms.

    Case Details:

    Case Caption: Montalvan V. National General Insurance Company
    Docket Number: 5:25cv441
    Court Name: United States District Court, California Central
    Order Date: July 07, 2026
  • Emergency Medicine Expert Not Allowed to Opine on Implicit Bias

    Emergency Medicine Expert Not Allowed to Opine on Implicit Bias

    Following her husband’s death from COVID-19 complications, Plaintiff I’Esha Short (I’Esha) brought this action seeking damages for the medical care he received at the St. Charles County Jail.

    Defendants sought to exclude the testimony of I’Esha’s lone expert, Joel Blackburn, a former medical director at a jail with extensive experience in emergency medicine.

    Emergency Medicine Expert Witness

    Joel M. Blackburn has practiced Emergency Medicine for over 24 years. He was the facility medical director for the emergency department at Capital Region Medical Center in Jefferson City for nearly 2 years during the COVID pandemic. Blackburn has treated hundreds of patients with COVID infection.

    Want to know more about the challenges Joel Blackburn has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    I. Motion to Exclude Blackburn

    a. Blackburn can testify as to medical causation.

    Defendants offered three main arguments for why Blackburn cannot provide testimony regarding causation. First, they contended that Blackburn lacked relevant expertise. Second, Defendants argued that Blackburn utilized unreliable principles and methods or that he unreliably applied his methodology to the facts. Third, Defendants suggested that Blackburn’s opinions provide little probative value.

    1. Blackburn lacked relevant expertise

    Defendants first argued that Blackburn lacked expertise to testify as to causation. In particular, they emphasize that he “did not practice medicine in a correctional setting during the COVID-19 pandemic,” specialize in various relevant fields, or conduct research into COVID.

    While the fact that he did not practice medicine in a correctional facility during the COVID pandemic may prove fertile ground for cross-examination, it does not override his relevant expertise. As such, Blackburn’s testimony is not excludable on that basis.

    2. Blackburn utilized unreliable principles and methods

    First, Defendants contended that Blackburn failed to consider alternative explanations for Timothy’s death, including his decision to “remain unvaccinated,” his “non compliance with his healthcare needs,” and the “substantial intervening medical care that [he] received at a hospital.”

    However, Blackburn did consider the bulk of the alternative causes that Defendants highlight.

    Second, Defendants contended that Blackburn “cannot reliably conclude under oath that any alleged delay in escalation of care . . . caused Short’s death” because he discounted the possibility that earlier administration of medication could have prevented that outcome.

    While Blackburn opined that earlier administration of the drug alone would not have changed the outcome, he indicated that Timothy needed a combination of interventions and that earlier admission to the hospital would have prevented his death.

    In any event, “an expert’s contradictions or concessions go toward the weight of the evidence put forth by the expert, not toward its admissibility.”

    Third, Defendants claimed that Blackburn offered only impermissible “sooner is better” testimony. In reality, he testified that earlier and more extensive intervention would “more likely than not” have prevented Timothy’s death.

    Finally, Defendants claimed that Blackburn’s testimony is not supported by medical literature. But “while published studies tending to support an expert’s opinion often are a hallmark of admissible testimony, . . . there is no requirement that a medical expert must always cite published studies on general causation.” Thus, Defendants failed to show why Blackburn should be excluded on the basis of unreliable methodology.

    3. Blackburn’s opinions provide little probative value

    Finally, Defendants contended that Blackburn’s testimony is more prejudicial than probative. The Court held that Blackburn’s testimony as to causation is admissible because he has relevant expertise, is sufficiently reliable, and will not create undue prejudice.

    b. Blackburn’s opinions as to implicit bias are excludable under Rule 702.

    Defendants also argued that Blackburn’s testimony regarding implicit bias should be excluded under Rule 702.

    Defendants are right that Blackburn cannot testify as to implicit bias. As an initial matter, it is far from clear how implicit bias testimony would be relevant to the key issues underlying a deliberate-indifference claim, which requires a conscious awareness of a serious medical need.

    More importantly, as the proponent of his opinion, I’Esha “must show by a preponderance of the evidence both that Blackburn is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.”

    But Blackburn’s own testimony reveals that, while he lectured in the area of cognitive bias in prison medicine, he is not otherwise qualified in this area.

    c. Blackburn cannot opine on credibility, legal conclusions, or medical bills.

    Defendants also noted that Blackburn impermissibly commented on witness credibility in his report and during his deposition, offered opinions as to legal conclusions, and commented on medical bills.

    I’Esha agreed that Blackburn cannot offer those kinds of opinions.

    II. Motion to Strike Blackburn’s Rebuttal Report

    Defendants asked the Court to strike portions of Blackburn’s rebuttal report addressing the Nurse Defendants, claiming that he should have included these opinions in his initial report.

    But as I’Esha noted, Blackburn added these opinions only after Defendants designated the four nurses as non-retained experts, which happened well after he issued his original report.

    She contended that the rebuttal report does not contain new opinions and, even if so, it would not be procedurally improper.

    Defendants’ arguments fall short for multiple reasons. First, given that they seek a discovery sanction under Rule 37(c), the operative case management order required them to first “file a memorandum requesting a video conference with the Court.” But no such request was made, and Defendants also failed to comply with the Court’s good-faith certification requirement.

    Nor have Defendants even attempted to show good cause for making this request after the discovery-motion deadline.

    The Court held that these procedural deficiencies alone are a sufficient basis for denying relief. But the motion also fails on the merits. After Defendants designated the nurses as experts, I’Esha was free to buttress Blackburn’s opinions to address the expanded categories on which the nurses could testify, and the challenged opinions were limited to the subjects outlined in the nurses’ disclosures.

    Thus, these opinions were timely under Rule 26(a)(2)(D)(ii), and even if they were not, any delay was substantially justified.

    Held

    The Court granted in part and denied in part Defendants’ joint motion to exclude Dr. Joel Blackburn’s testimony and denied Defendants’ joint motion to strike improper portions of Plaintiff’s expert’s rebuttal report.

    Key Takeaway

    There is no requirement for perfect symmetry between an expert’s experience and the precise subject matter of their testimony so long as the expert’s background equips him to help the jury understand the facts or issues in dispute. Blackburn is a board-certified physician with extensive experience treating COVID.

    While Blackburn may lack expertise in some relevant specialties, a doctor’s opinion should not be excluded merely because it involves a field of medicine that he does not specialize in.

    Case Details:

    Case Caption: Short V. St. Charles County
    Docket Number: 4:22cv1117
    Court Name: United States District Court, Missouri Eastern
    Order Date: July 09, 2026
  • Digital Forensics Expert Not Allowed to Opine on Driver Behavior

    Digital Forensics Expert Not Allowed to Opine on Driver Behavior

    This litigation arises from a motor vehicle accident that occurred during the early morning hours of May 10, 2023, on Interstate 20 in Bienville Parish, Louisiana. Ja’Vel Coleman alleged that she sustained injuries when her vehicle struck the rear of a tractor-trailer operated by Saint Fleur.

    According to Defendants, Saint Fleur experienced mechanical issues with his tractor-trailer and pulled onto the shoulder of Interstate 20 prior to the collision.

    During discovery, Defendants retained Dr. Douglas C. Brown and Josh Lorencz.

    Brown examined Coleman on January 15, 2026, and subsequently issued an expert report setting forth his findings and opinions while Lorencz reviewed AT&T Call Detail Records and identified calls and text messages associated with the phone number, the times of those communications, and the cell towers used during those communications.

    Coleman sought to exclude, or alternatively limit, the testimony of Dr. Douglas C. Brown and Josh Lorencz under Federal Rule of Evidence 702 and the Daubert standard.

    Orthopedic Surgery Expert Witness

    Dr. Douglas Coleman Brown has been in private practice in North Louisiana since 1977 and is certified by the American Board of Orthopaedic Surgery and the American Board of Independent Medical Examiners. He also is a member of the American Orthopaedic Foot and Ankle Society.

    Want to know more about the challenges Douglas Brown has faced? Get the full details with our Challenge Study report.

    Digital Forensics Expert Witness

    Josh Lorencz possesses substantial training and experience in the field of cell phone forensics. He spent approximately sixteen years with the Simi Valley Police Department working as a detective and police officer and then subsequently worked in digital forensics for Envista Forensics before joining Rimkus.

    Lorencz has several certifications in digital forensics and has performed numerous digital analyses of this kind. 

    Discover more cases with Josh Lorencz as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    I. Douglas Brown

    a. Future Medical Costs

    Coleman first sought exclusion of Brown’s opinions regarding future medical costs. In their opposition, Defendants expressly stipulate that Brown will not testify or offer opinions regarding Coleman’s future medical costs and represent that they have retained a separate expert to address those issues.

    b. Coleman’s Neurological Condition and the October 2023 EMG

    Coleman challenged Brown’s opinions regarding Coleman’s neurological condition, arguing that Brown failed to adequately account for an October 2023 EMG report showing radial neuropathy and performed an insufficient neurological examination.

    The Court found that these criticisms go to the weight of Brown’s testimony rather than its admissibility. Brown acknowledged the EMG findings during his deposition and provided an explanation for why the study did not alter his clinical conclusions during his January 2026 examination.

    Coleman has not demonstrated that Brown employed an unreliable methodology such that exclusion is warranted under Rule 702. Any alleged shortcomings in Brown’s review of the medical records, interpretation of the EMG, or physical examination may be explored through cross-examination.

    c. Return to Work

    Coleman also sought exclusion of Brown’s opinion that Coleman is capable of returning to her pre-injury sedentary occupation to the extent that opinion relies upon his neurological findings. Because the Court found that Coleman has not established a basis for excluding Brown’s neurological opinions, the Court likewise declined to exclude his opinions regarding Coleman’s functional capacity and work restrictions.

    d. Future Treatment

    Coleman next sought to exclude Brown’s opinions regarding future surgical treatment and the appropriate surgical approach to Coleman’s anticipated hip arthroplasty. Coleman emphasizes that Brown no longer performs orthopedic surgery and testified regarding certain physical limitations.

    The Court found no basis for exclusion of this testimony. The record reflects that Brown is a board-certified orthopedic surgeon who practiced orthopedic surgery for decades, performed the type of procedures at issue during his career, remains licensed, and continues to practice medicine and perform independent medical examinations.

    Any reduction in his surgical practice or disagreement regarding the appropriate surgical approach affects the weight of his testimony rather than its admissibility.

    II. Josh Lorencz

    a. Qualifications

    Based upon Lorencz’s education, training, and professional experience, the Court found that he possesses sufficient qualifications to testify regarding cell site location analysis. Accordingly, the Court found that Lorencz is qualified to offer expert testimony in this matter.

    b. Reliability of Methodology

    Coleman argued that Lorencz’s opinions should be excluded because his CellHawk training occurred in 2016, he has not attended refresher courses since that time, and he cannot explain the software’s internal processes.

    Notably, Coleman did not challenge the general reliability of cell site location analysis itself. Instead, Coleman argued that Lorencz lacked sufficient familiarity with the CellHawk software because he has not received recent training and cannot explain the software’s internal processes.

    Here, the record reflected that Lorencz has extensive experience utilizing CellHawk and performing cell site location analyses. The fact that he cannot explain the software’s back-end functionality did not render his methodology unreliable.

    Any alleged deficiencies in Lorencz’s familiarity with CellHawk’s internal workings can be scrutinized on cross-examination and affect the weight of his testimony rather than its admissibility. Accordingly, the Court rejected Coleman’s argument that Lorencz’s opinions should be excluded based upon his training history or inability to explain CellHawk’s internal processes.

    Coleman also argued that Lorencz failed to reliably apply his methodology because he did not independently verify cell tower locations. During his deposition, Lorencz acknowledged that he has independently verified tower locations in prior matters but did not do so in this case. Instead, he relied upon the AT&T records and CellHawk’s mapping functions.

    The Court found that this criticism goes to the weight of Lorencz’s testimony rather than its admissibility.

    Although Lorencz acknowledged that independent verification through tools like Google Earth may be used to ensure accuracy of the cell tower locations, Coleman has identified no authority finding that such verification is a prerequisite to admissibility under Rule 702.

    Likewise, the Court is aware of no authority suggesting that an expert’s failure to employ every available validation technique renders an otherwise reliable methodology inadmissible. The Court concluded that Lorencz’s decision not to independently verify the tower locations presents an issue appropriately explored through cross-examination.

    c. Scope of Permissible Testimony

    Lorencz was retained to analyze AT&T Call Detail Records associated with a particular telephone number. His report identifies calls and text messages, the timing of those communications, and the cell towers associated with those communications. The record further reflects that Lorencz reviewed the AT&T Call Detail Records and the Louisiana Uniform Crash Report but did not review GPS data, electronic logging device (“ELD”) data, or other location-specific information.

    Lorencz testified that cell site location analysis did not permit him to determine the precise GPS location of a device. Rather, he can only identify the tower and sector utilized during a communication.

    Thus, the fact that a communication utilized a specific tower only indicates that the device was within the serviceable range of that tower at that time; it does not establish the device’s precise location.

    Accordingly, Lorencz may testify regarding the contents of the AT&T Call Detail Records, the timing of the calls and text messages reflected therein, the cell towers and sectors associated with those communications, and the general principles underlying cell site location analysis. Such testimony may assist the jury in understanding the evidence.

    However, the Court finds that the methodology employed by Lorencz does not support testimony concerning the precise location of any vehicle or person, the precise time that Saint Fleur arrived at the accident location, the length of time that any vehicle remained at a particular location, or other conclusions that cannot be reliably derived from the Call Detail Records.

    Likewise, Lorencz may not offer opinions regarding user identity, driver behavior, distraction, causation, or matters beyond the scope of his report and expertise.

    Held

    The Court granted in part and denied in part Coleman’s Daubert motions to exclude and/or limit the testimony of Dr. Douglas Brown and Josh Lorencz.

    Key Takeaway

    Experts routinely rely upon specialized software tools without possessing detailed knowledge of the software’s source code or internal algorithms.

    However, Rule 702 requires not only that expert testimony be reliable, but also that it assist the trier of fact. Thus, even where an expert is qualified and employs a reliable methodology, the testimony must remain within the bounds of what that methodology can reasonably support.

    Case Details:

    Case Caption: Coleman v. Burlington Ins. Co.
    Docket Number: 5:24cv512
    Court Name: United States District Court, Louisiana Western
    Order Date: July 13, 2026
  • Economics Expert Not Allowed to Opine on Income Losses

    Economics Expert Not Allowed to Opine on Income Losses

    Plaintiffs Shazad Buksh (“Buksh”) and Krishna Gathani (“Gathani”) brought this case alleging, among other causes, discrimination and retaliation by Defendants William Sarchino, Southwestern Vermont Medical Center and Southwestern Vermont Health Care. To calculate their damages, both Plaintiffs disclosed the economic expert witness Stephanie Seguino, Ph.D.

    Economics Expert Witness

    Stephanie Seguino, Ph.D. is “Emerita Professor Economics at the University of Vermont (UVM) with expertise in quantitative data analysis as well as gender and racial inequality and labor market discrimination,” who held her position at UVM from 1995 to 2022, as well as the positions of Chair of the Economics Department and Associate Dean of the College of Arts and Sciences.

    She received a Ph.D. in Economics from American University in 1994. Seguino has also “published extensively in peer-reviewed journals,” has “two co-authored edited books,” serves “as associate editor of two economics journals,” and is on the editorial board of a third economics journal.

    Want to know more about the challenges Stephanie Seguino has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    I. Updated Buksh Report

    On December 10, 2024, Seguino signed a new expert report for Buksh. The purpose of this report was to “provide an estimate of the Plaintiff’s loss in earnings… and the present value of lifetime medical costs associated with bladder cancer treatment.” Seguino now estimates Buksh’s lost income at $1,844,549, and the “present value of projected medical costs for bladder cancer treatment” at $10,054,800.

    II. Updated Gathani Report

    On December 10, 2024, Seguino signed a new expert report for Gathani.The updated report calculates Gathani’s “lost income due to retaliation at SVMC” in the amount of $384,940.96.

    In her report, Seguino writes that “Gathani was delayed in attaining the qualifications for licensure as a surgical podiatrist by one year and three months due to the defendants’ alleged conduct, which required the plaintiff to pursue his residency in another program.” Seguino thus estimates his income losses “using information from his pay stubs and bonus payment from his first employment since completing his residency.” Accordingly, Seguino calculates Gathani’s “lost income” as “1.25 years of salary as a surgical podiatrist.”

    A. Motion to Exclude Seguino’s Opinion on Buksh

    Defendants sought to exclude Seguino’s expert testimony, arguing in part that Seguino’s opinion is not based upon reliable data and methodology. The Court agreed.

    In Parts I, II, and III of her opinion, Seguino used only two data points to calculate what Buksh’s salary would have been as a surgical podiatrist: the salaries she had access to, those of the other two Plaintiffs in this case (Gathani and Saman).

    If the two data points are considered a sample that is meant to represent surgical podiatrists, then the problem here is not necessarily the use of a small sample of data to estimate the salary of a group; the problem is that no explanation has been given about why the sample set of two could be representative of the entire group.

    Buksh argued that “there is government data on the earnings of podiatrists but not surgical podiatrists” and thus “the defense criticizes Seguino for not using a large sample of incomes from surgical podiatrists across the country but does not state that such a resource is available.” Yet Buksh has the burden to show at least that it is “more likely than not” that his expert’s testimony is based on sufficient facts or data, and is the product of reliable principles and methods.

    Buksh also argued that Seguino’s calculations are conservative and they favor the defense because she took the difference between the BLS data for nonsurgical income to calculate the difference between that and surgical income, rather than using Buksh’s actual income figures—if she had used his actual income, then “the loss in Part II would have been considerably higher.”

    But this argument echoes the problems the Defendants pointed out with Seguino’s methods—why is the BLS data for nonsurgical income “considerably” higher than Buksh’s actual income? And why didn’t Seguino consider that in her calculations—if there is a factor that is depressing Buksh’s salary as a non-surgical podiatrist below the average of what other non-surgical podiatrists make, might that same factor mean that he could make considerably less than the population of two she is comparing his salary to?

    B. Motion to Exclude Seguino’s Opinion on Gathani

    Seguino bases her estimate of Gathani’s lost income for his first year. She did not subtract his actual income in that year (earned in New York, at a new podiatry residency program) from the amount of “lost income.” Nor did she adjust the amount at all, for the reasons explained in footnote one of her report. Essentially, then, Seguino has copied the exact income that Gathani earned as a surgical podiatrist in his first year and estimated that this amount is his lost income in this case.

    There is not much analysis that Seguino adds, nor does she use much “methodology” for the Court to evaluate. In her report, she stated that: “I estimate Gathani’s income losses, using information from his pay stubs and bonus payment from his first employment since completing his residence.” As explained above, this means that Seguino copied the number from Gathani’s first year of practice.

    Held

    The Court granted both motions to exclude Stephanie Seguino’s testimony.

    Key Takeaway

    Here, the trier of fact is not helped by an expert explaining that Gathani could have earned the exact amount in his first year of practicing as a surgical podiatrist as what he did, in fact, earn in his first year of practicing as a surgical podiatrist.

    Case Details:

    Case Caption: Buksh V. Foot
    Docket Number: 2:21cv190
    Court Name: United States District Court for the District of Vermont
    Order Date: July 06, 2026
  • Watershed Expert Not Allowed to Opine on CRLF and TWG

    Watershed Expert Not Allowed to Opine on CRLF and TWG

    In this action, a group of environmental organizations seek to compel Defendant County of San Luis Obispo (“Defendant”) to make changes to how it operates a dam and related infrastructure in the Arroyo Grande Creek (“AG Creek”) watershed.

    Plaintiffs claimed that the County’s operations have caused significant harm to the South-Central California Coast Steelhead trout (the “Steelhead”).

    The Steelhead is a protected species under the Endangered Species Act (“ESA”). At least two other ESA-listed species inhabit the AG Creek: (1) the tidewater goby (“TWG”); and (2) the California red-legged frog (“CRLF”).

    Defendant has presented evidence that juvenile Steelhead are predators of the California red-legged frog (“CRLF”) larvae and the tidewater goby (“TWG”).

    Mark R. Jennings, a former USFWS biologist that Defendant has retained as an expert, therefore suggested that measures to increase the AG Creek’s Steelhead population may come at the expense of its CRLF and TWG populations.

    Tevin Schmitt, a Watershed Scientist that Plaintiffs offered as an expert acknowledged that the Steelhead is a meso-predator but contended there is no evidence that Steelhead predation is, or could become, a major factor affecting the AG Creek’s CRLF and TWG populations.

    Defendant filed a Daubert motion challenging the declaration of Tevin Schmitt. Plaintiffs have also filed objections to the declaration of Dr. Mark R. Jennings.

    Watershed Expert Witness

    Tevin Schmitt holds a Bachelor of Science in Environmental Science and Resource Management with a minor in Biology from California State University (“CSU”) Channel Islands. He conducted ecological research on Southern California coastal ecosystems, petroleum toxicology research, and water quality analysis projects in the Santa Clara River watershed during his time as a research assistant for CSU Channel Islands.

    Want to know more about the challenges Tevin Schmitt has faced? Get the full details with our Challenge Study report.

    Fisheries Expert Witness

    Mark Russell Jennings, Ph.D earned a Bachelors degree in Fisheries and a Masters in Natural Resources (with emphasis in Fisheries) from Cal Poly Humboldt, and a Ph.D. in Wildlife and Fisheries Science from the University of Arizona. He is a versatile ecologist, with specialties in both herpetology and fisheries biology. For the past 49 years, he has worked extensively with a wide variety of fishes.

    Discover more cases with Mark Jennings as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Tevin Schmitt

    In relevant part, Defendant argued that Schmitt lacked professional experience to qualify as an expert on the CRLF and TWG because he “only has an undergraduate minor in biology and no track record of research or publication on either species.”

    The Court agreed that Plaintiffs have not presented sufficient evidence to show Schmitt is qualified to opine on how Plaintiffs’ requested relief would impact the CRLF and TWG.

    Plaintiffs claimed that Schmitt is qualified to opine on the CRLF and TWG as an experiential expert. In support, Plaintiffs refer the Court to evidence that Schmitt has conducted nocturnal surveys, conducted habitat assessments, and collected acoustic monitoring data for the CRLF in the Santa Clara River Watershed. Plaintiffs also refer the Court to evidence that Schmitt has conducted water quality and habitat monitoring in the Santa Clara River Estuary and Ormond Lagoon to “assess habitat conditions for endangered species, like the TWG, that rely on these coastal lagoon habitats.”

    However, Plaintiffs have not directed the Court to evidence, or presented sufficient argument, to explain how this experience would qualify Schmitt to opine on, among other topics, (1) whether an increase to the Steelhead population would adversely affect the AG Creek’s CRLF and TWG populations; (2) the likelihood that increasing water flows could displace CRLF and TWG eggs; (3) how that displacement would impact the CRLF and TWG’s overall population stability; and/or (4) whether the cumulative benefits of an increase in water flows to the CRLF and TWG would outweigh the potential loss of CRLF and TWG eggs.

    Therefore, Plaintiffs have not met their burden to show, by a preponderance of the evidence, that Schmitt is qualified to address CRLF and TWG behavior, ecology, and population dynamics, and the Court will not consider Schmitt’s opinions on these topics.

    Mark Jennings

    Plaintiffs argued that Jennings has not sufficiently explained why the 2007 IDRS flow regime would be less detrimental to the CRLF and TWG than Plaintiffs’ proposed flow regime.

    Plaintiffs also argued that Jennings’ opinions are unreliable because he failed to consider certain statements in the County’s 2025 Draft Habitat Conservation Plan (“HCP”) that contradict his opinions.

    Based on the Court’s review of the Jennings Declaration, the Court is satisfied that Jennings has sufficiently explained why he believes Plaintiffs’ requested flow regime would harm the CRLF and the TWG. To the extent Jennings’ opinions are inconsistent with statements in the 2025 Draft HCP, Plaintiffs have not presented evidence sufficient for the Court to determine that the statements in the 2025 Draft HCP are accurate and the challenged testimony in the Jennings Declaration is inaccurate.

    Held

    • The Court granted the Defendant’s motion to exclude Tevin Schmitt’s proposed testimony.
    • The Court overruled Plaintiffs’ objections to the declaration of Dr. Mark Jennings.

    Key Takeaway

    Schmitt “claims to have field experience with CRLF and species like the TWG” but this experience is insufficient for Schmitt to qualify as an expert on either species because “he does not hold the certifications that are required for him to handle, collect, or otherwise engage with these species in the wild.”

    Case Details:

    Case Caption: San Luis Obispo Coastkeeper V. County Of San Luis Obispo
    Docket Number: 2:24cv6854
    Court Name: United States District Court, California Central
    Order Date: June 29, 2026
  • Biomechanics Expert Not Allowed to Opine on Railroad Rules

    Biomechanics Expert Not Allowed to Opine on Railroad Rules

    This is a case under the Federal Employers’ Liability Act (“FELA”) to recover damages for personal injuries Plaintiff Rachael Snider alleged that she sustained during the scope of her employment working as a conductor for the Defendant railroad.

    Union Pacific has offered the testimony of Dr. Jeffrey P. Broker. Snider sought to exclude Broker’s testimony on the basis that he is unqualified and utilized an unreliable methodology.

    Biomechanics Expert Witness

    Dr. Jeffrey Palmer Broker holds a Ph.D. from the University of California at Los Angeles in Biomechanics and Motor Control. He is an associate professor of biomechanics at the University of Colorado at Colorado Springs, the owner of the consulting firm Echelon Biomechanics, and an advisor in sport biomechanics to the United States Olympic Committee.

    He has published dozens of articles, books, chapters, and review articles, and testified as an expert witness in other FELA cases.

    Want to know more about the challenges Jeffrey Broker has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Qualifications

    The Court found that Broker is qualified to provide his biomechanical analysis. He has a Ph.D. in biomechanics and motor control and has extensive experience, including in publishing and testifying, on topics in that field. However, to the extent Broker attempts to offer expert testimony on medical topics, like the nature of Snider’s preexisting back injury and its likely role in her current pain, he is unqualified to do so.

    He has no medical expertise and may only opine on matters relating to biomechanics. Likewise, Broker is not qualified to opine on Snider’s credibility, such as implying she is exaggerating her symptoms or misrepresenting when they began.

    Lastly, Union Pacific agreed that Broker cannot opine on or analyze Union Pacific’s internal rules, such as regarding handholds on stairs. The Court agreed that Broker is not qualified as an expert in railroad rule interpretation and may discuss Union Pacific’s rules only as necessary to provide context to the biomechanical aspects of his analysis.

    B. Reliability

    Snider next argued that Broker’s opinions are unreliable because he based them on inaccurate photographs of the stairs in question, he did not conduct any biomechanical testing, and his method is not scientific.

    Snider’s critiques of Broker’s analysis are well-taken. Importantly, Broker himself admitted that in two of his three reports, he relied on inaccurate photographic depictions of the stairs in question that showed significantly more anti-slip material on the steps than existed at the time of the accident. However, he claimed that this error did not change his ultimate conclusion that Snider was responsible for the fall due to overstepping, not due to slipping on the step regardless of how much anti-slip material was worn away. Ultimately, Broker’s mistaken reliance on inaccurate photographs as well as Snider’s other critiques about the lack of hands-on testing Broker performed go to credibility, not admissibility.

    Broker adequately explained the scientific basis for his methods as being rooted in biomechanics such that the Court is convinced he employed a sufficiently reliable methodology.

    Snider will be free to criticize his methods and explore his purported mistakes on cross-examination, and her own expert will be able to explain why he believes the additional testing he conducted resulted in a better analysis that Broker’s. The Court declined to exclude Broker’s testimony in its entirety.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Jeffrey Broker.

    Key Takeaway

    When making the reliability inquiry, the Court should focus on principles and methodology, not on the conclusions that they generate. However, conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data.

    Case Details:

    Case Caption: Snider V. Union Pacific Railroad Company
    Docket Number: 8:24cv356
    Court Name: United States District Court, Nebraska
    Order Date: July 10, 2026
  • Cybersecurity Expert Not Allowed to Opine on ADA Compliance Requirements

    Cybersecurity Expert Not Allowed to Opine on ADA Compliance Requirements

    In May 2025, Plaintiff Richard Paul Merrell filed the operative putative class action complaint against Defendant Ralph Lauren Corporation. Plaintiff is visually impaired and legally blind, and he uses screen-reading software to read website content using his computer.

    Screen-reading software (or a “screen reader”) allows blind and visually impaired users to access websites using a combination of a keyboard and “software that vocalizes the visual information found on a computer screen.”

    Plaintiff alleged that Defendant’s website, including but not limited to https://www.ralphlauren.com/, “is not fully or equally accessible to blind and visually impaired consumers.”

    According to Plaintiff, “Defendant’s failure to properly code its website” to be accessible means that he and other class members “have been and are still being denied equal and full access to Defendant’s retail stores and the numerous goods, services, and benefits offered to the public through Defendant’s website in conjunction with Defendant’s brick-and-mortar retail store locations.”

    Defendant filed motions to exclude the testimony of Plaintiff’s experts, Dr. Jon A. Krosnick and Dr. William C. Easttom, II. Plaintiff filed a motion to exclude the testimony of Defendant’s expert, Aaron Cannon.

    Psychology Expert Witness

    Jon Alexander Krosnick is a Stanford professor and a research psychologist at the U.S. Census Bureau with a degree in psychology from Harvard University and an M.A. and Ph.D. in social psychology from the University of Michigan.

    He has taught classes and trainings on research methods, received awards for research and psychology, authored or co-authored hundreds of articles and presentations, and otherwise conducted extensive research on survey research methods.

    Want to know more about the challenges Jon Krosnick has faced? Get the full details with our Challenge Study report.

    Cybersecurity Expert Witness

    Dr. William Charles Easttom, II has Ph.Ds in technology and computer science, a Doctor of Science in cyber security, and multiple related master’s degrees. He has authored 44 computer science books and dozens of research papers and is an inventor of 27 computer science patents. He is as an adjunct lecturer at Georgetown University and Vanderbilt University. 

    Easttom has published three books specifically on JavaScript (a coding language for web development), holds a Certified Professional in Accessibility Core Competency certification, and has taken two accessibility courses.

    Get the full story on challenges to William Easttom’s expert opinions and testimony with an in-depth Challenge Study.

    Web Accessibility Expert Witness

    Aaron Cannon has “been working in the field of web and mobile app accessibility for over seventeen years and [has] been developing software for twenty-nine years.” He is a “Certified Professional in Web Accessibility” and holds multiple accessibility-related certificates.

    Cannon is totally blind and has been using screen readers since 1988, including JAWS for Windows, NVDA, TalkBack, VoiceOver, and the Orca screen reader. He also co-founded and served as chief accessibility officer for a company that provided accessibility auditing of websites and mobile apps. 

    Discover more cases with Aaron Cannon as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    A. Dr. Jon A. Krosnick

    Based on his review of the complaint, literature and documentation about methodologies employed in past surveys of blind people, past surveys of visually impaired people, studies of accessibility challenges faced by blind people when using computers, and other information, Krosnick conducted a survey and concluded that “the number of legally blind people living in California who used a screen reader and were prevented from doing business with a physical store due to problems related to accessibility with the Ralph Lauren webpage is 3,243.”

    Defendant argued that Krosnick’s testimony should be excluded in full because (1) his opinions are unreliable and not based on sufficient facts or data; (2) his survey results are inadmissible hearsay; and (3) his survey is irrelevant and will not help the trier of fact.

    Analysis

    First, Defendant argued that Krosnick’s survey did not use a random probability sample and instead “recruited non-representative survey respondents from Facebook groups for visually impaired people.” But Krosnick made clear that he combined a primarily randomized probability sample with some respondents from Facebook groups oriented toward visually impaired people, and that this kind of “blended” probability sample “is a widely accepted practice in contemporary survey science.”

    Defendant also contended that Krosnick’s survey had a low response rate, leading questions, self-interest bias, recall bias, and a lack of verification of unreliable answers.

    The Court also is not persuaded that the survey involved leading questions or self-interest bias just because it asked participants if they wanted to “help improve the experiences of blind people using the Internet,” and then listed potential problems the respondents may have experienced.

    Even if the survey’s wording did implicate some level of bias, this would not be so substantial as to render the survey unreliable.

    B. Dr. William C. Easttom, II

    Despite his extensive background, Defendant argued that “Easttom is not qualified to opine on website accessibility,” since general education in computer science is not interchangeable with competence in website accessibility. Even if Easttom has a relatively limited amount of experience with website accessibility, he plainly is an expert on website design and computer science, and the Court is not persuaded that his extensive background is insufficient to qualify him as an expert.

    Defendant also argued that Easttom’s testimony should be excluded in full because (1) his report relied on the wrong website; (2) his methodology is unreliable; and (3) he impermissibly offers legal conclusions.

    Analysis

    First, Defendant argued that Easttom failed to test a screen reader version of its website, “despite being prompted to enable accessibility features.”

    The fact that Easttom didn’t test an alternative, enhanced version of the website may undercut the weight of his methodology or Plaintiff’s claims against Defendant, but it did not render Easttom’s opinions completely irrelevant or unreliable.

    Methodology

    Second, Defendant raised various attacks on Easttom’s methodology, including that Easttom (1) did not use two tools he used in another case and (2) makes a “huge inferential leap” that Defendant denied access to its goods and services from the fact that the store locator wasn’t rendered as a clickable website attribute.

    First, any questions about the tools used go to weight, rather than admissibility. Second, the Court disagreed that Easttom’s conclusions are that large of an inferential leap, or that they are irrelevant to answering the question of whether Defendant’s website violated the ADA. And to the extent another expert said that visually impaired customers could locate Defendant’s brick-and-mortar stores through its website, that is a battle of the experts to be resolved by the trier of fact.

    Legal Conclusions

    Third, Defendant argued that Easttom improperly offered legal conclusions. In particular, Defendant took issue with Easttom’s statements suggesting that Ralph Lauren’s website is not ADA compliant.

    The Court agreed with Defendant: Easttom’s opinion and testimony that Defendant’s website did not meet ADA compliance requirements, is an improper legal conclusion, and the Court granted the motion as to these opinions.

    However, one of the purported “legal” conclusions is actually a conclusion about whether Defendant’s website complies with the Web Content Accessibility Guidelines (“WCAG”), which are “a set of international standards designed to make web content more accessible.” This is not a legal conclusion just because Easttom made reference to tools that are used for scanning ADA compliance.

    Fourth, Defendant argued that Easttom “conflates Ralph Lauren’s alleged non-compliance with WCAG 2.1 AA guidelines, and alleged non-compliance with the ADA,” and “there is no authority at all for the proposition that websites must comply with the WCAG guidelines.”

    Reliability

    Finally, Defendant argued that Easttom improperly used the Internet Wayback Machine to determine if historical versions of Defendant’s website were inaccessible because the Wayback Machine does not necessarily include full JavaScript functionality and may “not allow a user to evaluate [a website’s] full functionality.” These critiques—and critiques about the sample of Wayback Machine pages that were chosen—go to weight and do not fundamentally undermine the reliability of the opinion. This is especially true where, as here, Defendant has offered no reason to believe that these individual webpages had missing JavaScript functionality.

    C. Aaron Cannon

    Plaintiff first argued that portions of Cannon’s declaration should be excluded as untimely. Plaintiff sought exclusion under Federal Rules of Civil Procedure 26 and 37. 

    Rule 26

    Defendant argued that Cannon disclosed that he had new opinions in his deposition, yet Plaintiff “did not question him about those additional opinions.”

    The Court found that Defendant has not shown harmlessness. Defendant’s argument appears to be that Plaintiff’s counsel should have pushed harder at the deposition, ignoring the fact that Cannon evasively and vaguely mentioned he had some unspecified other opinions, but would not explain what they were. This is especially true where Defendant had already asserted that it would not disclose its rebuttal opinions to Easttom’s report, which it did not perceive to be related to class certification. As a result, the Court rejected Defendant’s suggestion that Plaintiff had the same “free rein” to get additional discovery on these untimely opinions as in Defendant’s cited cases.

    Defendant’s other arguments regarding a lack of prejudice or surprise are unpersuasive. Defendant summarily stated that Plaintiff only cites a “single distinguishable case” supporting his claims of prejudice, and “Plaintiff has also not identified any additional expenses caused by Defendant’s alleged failure to disclose, because there is none.” This flips the burdens: it is Defendant’s burden to demonstrate harmlessness or substantial justification, and it has not done so. Accordingly, the Court will strike the identified portions of Cannon’s declaration, though those portions would have been irrelevant to the remainder of the Court’s order here.

    Rule 702

    Plaintiff next argued that Cannon’s testimony should be excluded in full because (1) his opinions are not based on sufficient facts or data; (2) he did not apply a reliable, testable method to the case; (3) his class certification opinions are unhelpful; (4) his opinions offer impermissible legal conclusions; and (5) he is not qualified to offer “socioeconomic and population-level opinions or reliability engineering opinions.”

    In particular, Plaintiff first argued that Cannon’s opinion should be excluded because he did not “gather any site-specific facts about Ralph Lauren’s website” and instead “offered generalized assumptions based on experience, which Rule 702(b) does not permit.”

    The Court found that Cannon’s opinions about what individualized technical problems may impede a user with a screen reader from accessing a website are adequately based upon his extensive personal knowledge and experience. To the extent Plaintiff believes Cannon’s testing was flawed or didn’t consider enough data or site-specific information, those critiques go to weight, not admissibility.

    The same is true for Plaintiff’s arguments that Cannon did not deploy a reliable methodology.

    Cannon is applying his extensive experience with accessibility-related software and screen readers to make high-level observations about, for example, the differences in hardware, operating systems, and screen reader software, in order to explain why this Court would have to engage in individualized inquiries about each class members’ experience.

    The Court also disagreed that Cannon’s opinions “substitute legal judgment for technical analysis.” The fact that Cannon is identifying individualized issues in a user’s experience with accessibility features—a central part of the predominance inquiry—did not mean that he is impermissibly making legal conclusions.

    Held

    • The Court denied the motion to exclude the testimony of expert Dr. Jon A. Krosnick.
    • The Court granted in part and denied in part the motion to exclude the testimony of William C. Easttom.
    • The Court granted in part and denied in part the motion to exclude the testimony of Aaron Cannon.

    Key Takeaway

    When evaluating specialized or technical expert opinion testimony, the relevant reliability concerns may focus upon personal knowledge or experience.

    Case Details:

    Case Caption: Merrell V. Ralph Lauren Corporation
    Docket Number: 4:23cv6669
    Court Name: United States District Court, California Northern
    Order Date: July 09, 2026
  • Law and Legal Expert Allowed to Opine on Environmental Insurance Products

    Law and Legal Expert Allowed to Opine on Environmental Insurance Products

    ResinTech commenced this action against AIG and Odell arising from AIG’s denial of coverage for environmental liabilities asserted against ResinTech by the Camden County Municipal Utilities Authority (“CCMUA”) and the New Jersey Department of Environmental Protection (“NJDEP”).

    ResinTech asserted claims against AIG for breach of contract and declaratory judgment and, in the alternative, asserted claims against Odell arising from Odell’s alleged failure to procure appropriate insurance coverage and advise ResinTech concerning its pollution-liability risks.

    Odell sought to exclude the testimony of Plaintiff’s insurance-industry expert, Howard Tollin.

    Law And Legal Expert Witness

    Howard M. Tollin is an attorney, environmental risk consultant, and licensed property and casualty broker. Over the past 30 years, he has facilitated thousands of real estate, corporate M&A transactions and litigation and claims settlements.

    Want to know more about the challenges Howard Tollin has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Tollin is qualified to offer opinions concerning environmental insurance, pollution-liability coverage, insurance-broker practices, and industry customs. He has decades of experience as both an attorney and insurance broker specializing in environmental and pollution coverage. His report and deposition testimony demonstrate substantial experience placing pollution-liability policies, negotiating policy language, advising policyholders regarding environmental risks, and participating in the environmental-insurance marketplace. The Court is satisfied that his specialized knowledge will assist the trier of fact.

    Odell’s principal criticisms concerned the basis for Tollin’s opinions rather than his qualifications. Odell argued that Tollin relied primarily on his professional experience rather than identified treatises, regulations, or formal industry standards. That argument is unavailing. Tollin reviewed the record and applied his experience to the facts of this case. To the extent Odell disputes his assumptions, methodology, or conclusions, those objections go to the weight of the testimony and may be explored through cross-examination and the presentation of contrary evidence.

    The Court likewise rejected Odell’s contention that Tollin’s opinions are impermissibly speculative. Odell’s challenges largely concerned the factual premises underlying Tollin’s opinions and the conclusions he drew from the record.

    The Court agreed, however, that Tollin may not offer legal conclusions or instruct the jury on the governing law. Accordingly, Tollin may testify regarding insurance-industry customs and practices, the availability and characteristics of environmental insurance products, the role and responsibilities commonly undertaken by brokers and risk-management advisors, and whether the conduct alleged in this case was consistent with those customs and practices. He may not opine that Odell was negligent, breached a legal duty, violated New Jersey law, or otherwise offered legal conclusions reserved for the Court and jury.

    Held

    The Court denied Odell’s motion to exclude the testimony of Howard Tollin subject to certain limitations.

    Key Takeaway

    Rule 702 expressly permits expert testimony grounded in specialized experience, and the absence of a particular treatise or published methodology does not render such testimony inadmissible.

    Case Details:

    Case Caption: ResinTech, Inc. V. AIG Specialty Insurance Company
    Docket Number: 1:21cv19843
    Court Name: United States District Court for the District of New Jersey
    Order Date: June 30, 2026
  • Accounting Expert Allowed to Opine on Net Service Level Payments

    Accounting Expert Allowed to Opine on Net Service Level Payments

    Plaintiffs The Avon Company and LG H&H Company, Ltd. (“Avon,” or Plaintiffs) brought this suit against Fareva Morton Grove, Inc. and Fareva S.A. (collectively “Fareva,” or Defendants) for a breach of their long-term Manufacturing and Supply Agreement (the “MSA”).

    Fareva filed a motion to exclude the testimony of Avon’s two experts, Anthony J. Campanelli and Brent K. Bersin on the grounds that their testimony is based on unreliable data.

    Accounting Expert Witnesses

    Anthony J. Campanelli is a Certified Public Accountant with more than 25 years of experience at Deloitte, one of the world’s largest and most respected accounting and consulting firms.

    Want to know more about the challenges Anthony Campanelli has faced? Get the full details with our Challenge Study report.

    Brent Kevin Bersin is a Senior Managing Director at FTI Consulting with 30 years of experience as an expert witness and consultant on valuation, financial and forensic accounting, and economic damages.

    Get the full story on challenges to Brent Bersin’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Anthony Campanelli

    Campanelli will testify about the calculation of the Net Service Level Payments (“NSLPs”). The NSLPs are calculated based on Schedule D of the MSA, which sets out a formula that, put simply, considers when Fareva fulfilled Avon’s orders and when Avon placed those orders. The formula in Schedule D required a somewhat complex set of calculations, given the delivery and order timing inputs and different multipliers per product. In drafting his expert report and reaching his opinion, Campanelli relied on data provided by Avon regarding forecasts, orders, and delivery data from the relevant time period. Fareva argued that Campanelli’s opinion is not based on reliable data, that his calculations are inconsistent with the Schedule D formulas, and that the opinion improperly introduced contractual interpretations.

    Analysis

    First, the data relied upon by Campanelli are sufficiently reliable. The discrepancies that Fareva pointed to do not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” Further, it was permissible for Campanelli to rely on the data provided by Avon. Even if Fareva’s “claims as to factual inaccuracies” in the underlying data and assumptions used by Campanelli were assumed true, Campanelli “at most had a few faulty inputs to an otherwise topical opinion on [the NSLPs]—this is thus not a case in which ‘there is simply too great an analytical gap between the data and the opinion proffered.’”

    Second, Fareva argued that Campanelli’s calculations are inconsistent with the MSA because they differ from calculations performed by PwC, Avon’s former expert. The discrepancy is explained by a reasoned choice in how Campanelli calculated the NSLPs, a choice which conformed with Fareva’s position on calculations and resulted in a lower damages claim. This is not a basis for rejecting Campanelli’s opinion.

    Third, Campanelli did not rely on improper assumptions or legal interpretations of the MSA in his calculations. While Fareva is correct that an expert may not make legal determinations interpreting a contract, Campanelli’s assumptions regarding the completeness of the data did not rise to the level of an impermissible contract interpretation.

    As a result, the Court denied Fareva’s motion to exclude the expert testimony of Campanelli.

    Brent Bersin

    Bersin will testify about Avon’s lost profits attributable to the lost sales of products that Fareva failed to produce or timely deliver. Bersin’s opinion is based on comparisons between Avon’s performance before and after the breach and on a benchmark comparison of the performance of the broader industry. Bersin relied on a subset of Avon’s North American sales data that captured the products produced by Fareva. Fareva argued that Bersin relied on unreliable and inaccurate data in his calculations, that he failed to disaggregate compounding factors, and his basis of benchmark comparison was unreliable.

    Analysis

    First, Fareva argued that the sales data relied upon by Bersin included products that Fareva did not produce, that there were other indicia of unreliability, and that Bersin failed to independently verify the data. As with Campanelli, any inconsistencies, which Avon also disputes factually, did not rise to the level of being “speculative or conjectural or based on assumptions that are so unrealistic.” And Bersin permissibly relied on the data provided by Avon in the ordinary course of business.

    Second, Fareva argued that Bersin improperly attributed all of Avon’s losses to Fareva, without disaggregating alternative sources of harm. This is insufficient to bar Bersin’s testimony. Bersin’s report acknowledged alternatives, noting that Avon’s oversales were declining and distinguishing between sales data in different product categories.

    Third, Fareva argued that Bersin relied on an insufficiently comparable benchmark for its benchmark analysis. Bersin relied upon the Statista data for the “Beauty & Personal Care market” in making his comparison. Fareva contended that using this market, without further analysis of the comparison between the companies within it, was improper, and that the market selected did not compare to Avon because the companies within did not use the same sales model as Avon. The Court disagreed. Bersin acknowledged that he considered the brands within the personal care market to be comparable when deciding to use them. It is reasonable to conceive of Avon as a beauty and personal care brand selling similar products to those in the comparison group. Bersin was not required, as Fareva suggests, to draw a comparison to groups based solely on distribution model that offer entirely different products from Avon.

    Therefore, the Court denied Fareva’s motion to exclude the testimony of Bersin.

    Held

    The Court denied Fareva’s motion to exclude the testimony of Anthony Campanelli and Brent Bersin.

    Key Takeaway

    Disputes as to the strength of an expert’s credentials, faults in his use of a particular methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility of his testimony.

    Case Details:

    Case Caption: The Avon Company V. Fareva Morton Grove, Inc.
    Docket Number: 1:22cv4724
    Court Name: United States District Court, New York Southern
    Order Date: July 07, 2026
  • Civil Engineering Expert Not Allowed to Opine on the General Contractor’s Responsibilities

    Civil Engineering Expert Not Allowed to Opine on the General Contractor’s Responsibilities

    This case arises out of large solar projects at four sites in Georgia: Perry, Clay, Lumpkin, and Fort Valley. Plaintiff IEA Constructors, LLC was a general contractor for these projects. IEA Constructors hired Defendant Westwood Professional Services, Inc. to prepare plans for stormwater management and sediment control. IEA alleged that Westwood’s design plans were deficient and did not comply with their contract or the permit that governed the contract, resulting in uncontained soil erosion. The other Plaintiff, Infrastructure and Energy Alternatives, Inc., is a third-party beneficiary to the agreement between IEA Constructors and Westwood. The parties refer to the two Plaintiffs collectively as IEA, so the Court will do the same.

    Plaintiffs asserted claims for breach of contract, professional negligence, and indemnification. IEA sought damages for the costs of redesigning new plans and then implementing them, among other things.

    IEA filed motions in limine seeking to exclude the testimony of Westwood’s experts Jeremy McMillen and Jason K. Ball.

    Civil Engineering Expert Witnesses

    Jeremy McMillen has more than 20 years of civil engineering experience, including experience in “land development and stormwater design for residential, commercial, industrial, and military projects.”

    Want to know more about the challenges Jeremy McMillen has faced? Get the full details with our Challenge Study report.

    Jason Kenneth Ball received his Bachelor of Science in Civil Engineering from the Georgia Institute of Technology and a Master of Civil Engineering from Auburn University. Ball is certified by the Georgia Soil and Water Conservation Commission (GSWCC) as a Level 1B Certified Inspector and a Level II Certified Design Professional.

    Get the full story on challenges to Jason Ball’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    1. Motion to exclude Jeremy McMillen’s testimony

    a. Qualifications

    IEA contended that McMillen is not qualified to offer opinions about compliance with the permit and the Green Book for the following reasons:

    • The permit is governed by Georgia law, but McMillen got his Georgia certification four days before submitting his report.
      • He has not performed work on utility-scale solar projects before.
      • He has not performed engineering design work since 2013, instead focusing on forensic consulting.
      • He does not have the certifications necessary to design Erosion, Sedimentation and Pollution Control plans in Georgia.
      • He does not have experience applying the Georgia legal standards that are incorporated into the permit.

      These objections fall primarily into two categories: (1) McMillen does not specialize in some of the issues relevant to the case; and (2) McMillen is not expert in Georgia permit regulations. Neither objection is supported by the law.

      IEA identified no reason that McMillen’s lack of experience with solar projects or projects in Georgia matter. For example, IEA did not suggest that the relevant engineering principles are substantially different for solar projects or for projects in Georgia. IEA also cited no rule suggesting that an expert must have recent experience doing the thing the expert is testifying about. IEA identified no relevant engineering principles that have changed since 2013.

      As for McMillen’s lack of previous experience with Georgia permitting requirements, it is true that the contracts and permits in this case were based on Georgia regulations and standards. But IEA did not explain why that matters either. McMillen is an engineer, not an expert on regulations or permits. By IEA’s own assertion, questions about the meaning of the permit or regulations should be decided by the court, not an expert.

      The Court overruled IEA’s objection based on McMillen’s qualifications.

      b. Reliability

      IEA raised the following objections about the reliability of McMillen’s opinions:

      • He did not provide calculations or written analysis to support an opinion that the designs for the Clay and Lumpkin projects satisfied the sediment storage requirements.
      • With respect to the same opinion, McMillen’s calculation for the size of the disturbed area is different from Westwood’s design plans, but McMillen does not account for the difference in his report.
      • McMillen did not explain how he validated the inputs he used to determine the average slope for each drainage area.

      IEA’s first argument is about McMillen’s opinion that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.

      Westwood did not dispute that McMillen’s report does not provide a basis for that opinion, it is just a conclusion. In his deposition, McMillen acknowledged that Westwood’s plans do not provide for 67 cubic yards of storage in the form of basins, but he said that the storage requirement is “handled by the other BMPs [best management practices] that were designed to be installed on the site.”

      The Court excluded McMillen’s opinions that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.

      2. Motion to exclude McMillen’s testimony on legal issues

      IEA sought to exclude testimony on several of McMillen’s opinions that IEA characterizes as legal opinions or opinions based on an incorrect legal premise:

      • “The Green book states that ‘the total drainage of a temporary sediment trap is up to 5 acres.’ The Westwood plan statement on the plans that ‘temporary basins are required where anticipated disturbance which drains to a common point exceeds 5 acres’ is justified.”
        • “Based on the GA100001 permit and Greenbook, the interpretation of Westwood that 67 cubic yards of sediment storage is required per acre of disturbed area is reasonable.”
        • “The temporary sediment basins on the site are designed in accordance with the Greenbook.”
        • “It is the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference.”

        Analysis

        IEA’s motion rests on the view that experts may not testify on legal issues. In a case like this involving technical permitting standards, it is conceivable that an expert’s specialized knowledge could be useful in interpreting a permit. But that is not what McMillen is purporting to do in the quoted statements. Rather, the first two statements are simply assertions that Westwood’s interpretations of the Green Book and permit are “reasonable” and “justified.” He does not purport to be relying on engineering expertise to support his opinions. So the Court excluded those opinions.

        The third opinion is different. McMillen is offering the opinion that Westwood’s designs for sediment basins comply with the Green Book. There is no rule against an expert offering an opinion about whether a party complied with a legal standard.

        The fourth opinion—that it is “the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference”—is not identified on its face as an interpretation of a legal standard. McMillen does not explain how he determined what the general contractor’s responsibilities are. Regardless, it is not an engineering opinion, so it falls outside McMillen’s expertise. As a result, the Court excluded that opinion and any opinion that about what a party’s “responsibilities” were.

        3. Motion to exclude Jason Ball’s testimony as untimely

        Jason Ball is a civil engineer who offered opinions that IEA did not properly install, maintain, or inspect the erosion and sediment control measures that Westwood designed.

        IEA sought to exclude Ball’s testimony as untimely. IEA pointed to the court’s January 30, 2026 scheduling order, which imposed a February 27, 2026 deadline for “proponent expert reports” and a March 13, 2026 deadline for “respondent expert reports.” The Court previously explained that “the party bearing the burden of proof on an issue must disclose any expert opinion on that issue by the proponent deadline” and “the party not bearing the burden of proof on an issue must disclose any expert opinion on that issue by the respondent deadline.”

        Ball submitted his report on March 13. IEA said that was untimely because Ball’s opinions relate only to issues of contributory negligence or alternative causation, which are both affirmative defenses on which Westwood bears the burden of proof. IEA also said that the untimely report was prejudicial because the Court prohibited a third round of reports, so IEA cannot respond to Ball’s report.

        Westwood did not meaningfully respond to IEA’s argument that Ball’s opinion is solely about potential contributory negligence by IEA, so Westwood should have submitted Ball’s report on February 27.

        The Court concluded that Ball’s report was untimely. But the Court need not decide whether any prejudice could be cured because Ball’s report does not survive scrutiny under Rule 702, as the Court will discuss in the next section.

        4. Motion to exclude Jason Ball’s testimony as inadmissible

        IEA objected to the substance of Ball’s report on numerous grounds, including that it included no engineering analysis, did not explain how Ball reached his conclusions, and consisted mostly of a collection of photographs and quotations of other sources.

        IEA is correct that there is little analysis in Ball’s report. The report is 179 pages, but the first 162 pages are devoted to a summary of the historical facts and the documents governing the projects (such as the permit and the Green Book), along with descriptions of numerous photographs. None of that is expert testimony. Rather, fact witnesses with personal knowledge can provide that information, so it is not helpful.

        Ball also included observations about what some photographs show, but he did not accompany that observation with any expert opinion or explanation.

        Of the opinions that Ball did provide, some of them fall outside Ball’s engineering expertise. For example, Ball says that IEA should have flagged questions it had about the design for Westwood and should have notified Westwood about any problems IEA uncovered during inspections. But opinions about what IEA was “responsible” for or what IEA’s “obligations” were are not a matter of engineering expertise, so Ball may not offer those opinions.

        Held

        • The Court granted in part and denied in part IEA’s motion to exclude Jerry McMillen’s testimony.
        • The Court granted in part and denied in part the motion to exclude Jerry McMillen’s testimony on legal issues.
        • The Court granted the motion to exclude Jason Ball’s motion under Rule 702.

        Key Takeaway

        An expert must provide the foundation for his opinions in the report. He may not supplement his opinions in his deposition. But even McMillen’s deposition falls short. An expert may not rely on “calculations in his head” and “good engineering judgment” is not a method that survives scrutiny under Rule 702.

        Case Details:

        Case Caption: IEA Constructors, LLC Et Al V. Westwood Professional Services, Inc.
        Docket Number: 3:23cv588
        Court Name: United States District Court, Wisconsin Western
        Order Date: June 09, 2026