Benjamin Torres is a Captain with the Los Angeles County Sheriff’s Department. He claimed that he was retaliated against by the Department for having a station tattoo. Specifically, he alleged that he had been passed over for promotion because of a Department “policy” that prevents individuals with station tattoos from being promoted to Commander.
Defendants sought to exclude Plaintiff’s expert, David Reynoso, on the basis that he is unqualified to testify on First Amendment issues and Department policies, which are the subjects of the opinions disclosed in his Rule 26(a)(2)(B) report.
Law Enforcement Expert Witness
David R. Reynoso has more than 35 years of policing experience (beginning in 1990), including experience in gang and gang subculture investigations since 1992, with an “awareness and understanding” of tattoos in subcultures.
Reynoso disclosed seven topics he plans to opine on in his Rule 26(a)(2)(B) report. Opinions one, two, three, four, and five in his report deal with First Amendment issues and other issues of law.
Plaintiff has not proven that Reynoso is qualified to testify on such matters, as required by FRE 702. It is unclear how Reynoso is qualified to speak on such constitutional issues. Reynoso is not a lawyer, nor did his resume or report list experience related to First Amendment issues.
Furthermore, at Reynoso’s deposition, Reynoso failed to identify any relevant First Amendment experience. Because Reynoso has not identified any knowledge, skill, experience, training, or education that would qualify him to speak on such First Amendment and constitutional issues, the Court deemed him unqualified to speak on opinions one, two, three, four, five, and six.
Regarding opinion seven, which is Reynoso’s opinion that Plaintiff possesses the necessary qualifications to be promoted to Commander, the Court finds him unqualified to testify as to that opinion as well. Reynoso never worked for the Department and has not been involved with the Department’s policies and procedures.
Plaintiff argued that Reynoso should instead be allowed to testify on topics such as tattoo appearance policy standards in policing, the operational reality of “policy” vs “practice,” promotion process norms, and law-enforcement subculture context. Yet, these opinions were not disclosed in Reynoso’s Rule 26(a) Report. Although Rule 37(c)(1) allows the party bearing the sanctions to use information not properly disclosed if the party’s failure was substantially justified or harmless, Plaintiff made no attempt to justify why Reynoso’s additional opinions are substantially justified or harmless. As a result, the Court prohibited Reynoso from testifying on these opinions at trial.
Held
The Court granted the Defendants’ motion to exclude the testimony of Plaintiff’s expert David Reynoso.
Key Takeaway
It is unclear to the Court how Reynoso could competently opine on necessary qualifications for promotion in the Department since he has no experience related to the Department’s promotion procedures nor has he worked in the Department.
This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances known as “PFAS.”
In essence, Plaintiff Earl Parris, Jr., alleged that the Defendants have contaminated his city’s water supply and thus his household water with PFAS. Parris is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department.
The City of Summerville—which has intervened in this case—used Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. The Defendants are the following companies, which allegedly manufactured and supplied the PFAS discharged into Raccoon Creek: 3M Company (“3M”), Daikin America, Inc., E.I. du Pont de Nemours and Company, and The Chemours Company. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. PFAS can allegedly cause adverse health effects such as kidney and testicular cancer.
Marthinus Laurentius Marais is a consultant specializing in applied mathematical and statistical analysis. He holds graduate degrees in mathematics, statistics and business administration from Stanford University. At the Stanford Graduate School of Business he received a PhD degree for a dissertation on applications of computer-intensive statistical methods to quantitative analyses of topics in business. He has served on the faculties of the University of Chicago and Stanford University.
Marais’ expert report examined kidney and testicular cancer rates in counties with and without high PFAS levels in the water supply, including in Chattooga County, and concluded that there is “no statistically detectable, empirically significant indication of an association” between those cancer rates and PFAS exposure.
A. Relevance
The Plaintiffs contended that Marais’ conclusions regarding the lack of association between PFAS and cancer are irrelevant because this lawsuit is based on the city’s drinking water being out of compliance with the EPA’s PFAS limits, not based on personal injury damages from health costs.
However, the Court agreed with the Defendants that Marais’ opinions are relevant.
First, the Plaintiffs conceded that evidence regarding whether PFAS “can” cause cancer is relevant to this litigation, and Marais’s opinions may help a jury answer this question. Marais’ opinions compare cancer and PFAS statistics across counties in the United States, not just in Chattooga County. The Court is not persuaded by the Plaintiffs’ distinction between “general causation” evidence and “specific causation” evidence. That Marais’ opinions on PFAS and cancer included data from Chattooga County, where Summerville residents reside, is not grounds for excluding the opinions altogether.
Second, the Plaintiffs’ extensive allegations of PFAS’ health risks are material to the relevance question. The Plaintiffs explicitly relied on such allegations in their claims for negligence (Counts V, VII), wanton conduct and punitive damages (Count VIII), and public nuisance (Count IX). Evidence that health risk never materialized is therefore relevant to the Defendants’ liability on those claims. For example, weighing testimony about the nonexistent association between PFAS and cancer in the Plaintiffs’ geographic area may help a jury evaluate whether the Defendants were negligent for manufacturing or failing to warn about PFAS in the first place.
B. Reliability
The Plaintiffs took issue with four aspects of Marais’ testimony: (1) it misinterpreted the underlying data, which Plaintiffs argue shows above-average testicular cancer rates despite below-average rates for all other types of cancer; (2) it compared county-level cancer data with city-level PFAS exposure data, which weakens the PFAS–cancer association in the case of Summerville because Chattooga County receives only about 20% of its drinking water from Summerville; (3) it is underinclusive because it did not account for latency effects, such as when a Summerville resident moves to a different county and develops cancer decades later; and (4) it is underinclusive because it did not include data from neighboring states where Summerville residents may have sought cancer treatment (e.g., at a Tennessee cancer center less than one hour’s drive away).
Analysis
The Court held that the methodology underlying Marais’ testimony was reliable. To begin with, any issues with the content of Marais’ conclusions in interpreting his own data are improper considerations at the admissibility stage. The focus of the reliability inquiry is on the expert’s “principles and methodology,” rather than his or her ultimate conclusions.
Second, the county-city mismatch argument that the Plaintiffs identify is better suited for cross-examination than an admissibility challenge. The datasets on which Marais relies are produced by reputable organizations. The cancer data is produced at a county level from the National Center Institute, National Institute of Health, and Centers for Disease Control, and the PFAS data is produced at the public water district level by the EPA.
Lastly, regarding the possibility that Marais’ dataset is underinclusive due to latency and residency problems, this argument too is more appropriate for cross-examination. Other than attempting to identify hypotheticals, the Plaintiffs have not pointed to any evidence that suggests Marais’ datasets depart from standard industry practice.
For these reasons, the Court declined to exclude Marais’ testimony as unreliable. Marais has shown his methodology is sufficiently sound and that it is “properly grounded, well-reasoned, and not speculative.”
C. Prejudice
The Plaintiffs contended that Marais’ testimony will confuse the jury because it would question “(1) where his testimony fits into the City’s case, and (2) why the City has not offered any rebuttal evidence.”
Any jury would understand the importance of introducing evidence on the health consequences of an alleged pollutant in a water pollution case, and the lack of rebuttal evidence is plainly not grounds for exclusion under Rule 403.
Held
The Court denied Plaintiff Earl Parris, Jr., and Intervenor-Plaintiff City of Summerville’s motion to exclude the testimony of Laurentius Marais.
Key Takeaway
Datasets may be imperfect at times, but that is not grounds to render an entire analysis unreliable. The purpose of Daubert is to ensure that an expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Please refer to the blogs previously published about this case:
In this civil action, the Plaintiffs—Jacob Yoder, Shawn Yoder, and Natasha Yoder—brought various state-law claims against Conaway Racing & Trucking, LLC (“Conaway”); Aaron J. Pacheco; Builders FirstSource, Inc., Builders FirstSource-Atlantic Group, and Probuild Company, LLC (collectively, the “BFS Defendants”); and D.R. Horton, Inc., along with an unnamed John Doe Defendant, arising from a motor-vehicle accident between Jacob Yoder’s 1994 Ford Bronco and Conaway’s tractor-trailer that occurred on October 2, 2020.
The BFS Defendants filed a motion to exclude and/or strike the Plaintiffs’ liability expert Rose A. McMurray.
Traffic Safety Expert Witness
Rose Ann Ferrelli McMurray is a motor carrier safety expert providing advice and counsel to attorneys involved in motor carrier injury and death cases, as well as general consultant services. She is a former federal safety official with extensive knowledge of regulations and policies, and a lead official on traffic safety initiatives, including impaired driving occupant protection and speed management. She has held various volunteer leadership positions within the National Safety Council.
In her expert report, McMurray described the regulatory framework for operating as a motor carrier in the United States and she addresses the specific facts of this case. In this regard, McMurray explained that she reviewed documents regarding the facts of this case, road safety reports, motor carrier policies and practices and that she applied her skills acquired during her tenure as a Chief Safety Officer for the FMCSA in reaching the expert opinions contained in her report.
Moreover, the Court found McMurray’s expert opinions relevant to the Plaintiffs’ negligent hiring and negligent entrustment claims in this case.
McMurray testified that the BFS Defendants failed to exercise due diligence in ensuring that they entrusted goods to a competent motor carrier and should be held responsible for their decision to do business with a ‘high-risk motor carrier.’
While the BFS Defendants understandably disagreed with McMurray’s expert opinions, they have not shown that her opinions are unreliable and should be excluded.
The BFS Defendants argue that McMurray’s expert report is unreliable and irrelevant, because: (1) the alleged Conaway speeding violations on the FMCSA website are not relevant to the October 2, 2020, Accident; (2) the expert report lacked details about the alleged insufficient Conaway driver credentials; (3) the report did not explain why Pacheco’s CDL license is insufficient to satisfy industry safety standards; (4) Conaway had insurance coverage at the time of the October 2, 2020, Accident; and (4) the term “high risk” carrier is not defined in the expert report. But these concerns largely reflect disagreements about the evidence in this case and the weight that should be given to McMurray’s opinions by the trier-in-fact.
As a result, the Court is satisfied that McMurray’s expert report met the above standards of reliability and relevance.
Held
The Court denied the BFS Defendants’ motion to exclude and/or strike the testimony of Rose McMurray.
Key Takeaway
A careful reading of the expert report of McMurray showed that the report and the opinions contained therein are based upon the factual evidence in this case, and the applicable motor carrier safety regulations and industry standards, and that McMurray has significant experience working in the area of motor carrier safety. And so, the Court declined to strike and/or exclude McMurray as an expert witness in this case.
This case arises out of the contamination of surface waters and drinking water in Chattooga County, Georgia, with per- and polyfluoroalkyl substances known as “PFAS.”
In essence, Plaintiff Earl Parris, Jr., alleged that the Defendants have contaminated his city’s water supply and thus his household water with PFAS. Parris is a resident of Summerville, Georgia, who receives running, potable water to his home from the Summerville Public Works and Utilities Department.
The City of Summerville—which has intervened in this case—used Raccoon Creek, a tributary of the Chattooga River, as the main source of its municipal water supply. The Defendants are the following companies, which allegedly manufactured and supplied the PFAS discharged into Raccoon Creek: 3M Company (“3M”), Daikin America, Inc., E.I. du Pont de Nemours and Company, and The Chemours Company. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. The Plaintiffs jointly filed a motion to exclude the testimony of 3M’s expert witness Andy Davis.
Geology Expert Witness
Andrew Owen Davis is a hydrogeologist who holds a Ph.D. in geology and has been involved in investigating a wide range of environmentally contaminated sites for over 40 years.
Davis concluded that no more than 0.2% of total PFAS load (or 2.9% of perfluorooctane sulfonate (PFOS) load) in the Raccoon Creek watershed originated from 3M’s products.
This data is extrapolated from sampling data collected downstream of a farm where biosolids traceable to 3M were applied. Using data on the amount of biosolids applied and farm acreage, he calculated that 3M products could contribute approximately 0.052 mg/ton/day of PFOS. He then determined that biosolids traceable to 3M were deposited on two farms in the Raccoon Creek watershed, multiplied the total tons of biosolids applied to those farms by 0.052 mg/ton/day (with some adjustments), and concluded that 3M contributed “at most” 148 mg/day of 5,1000 mg/day (or 2.9%) of PFOS that made its way to Summerville’s water treatment plant.
Factoring other types of PFAS, Davis found that 3M contributed 0.2% of total PFAS load. To account for the remaining PFAS concentration, Davis pointed to other potential sources of PFAS using existing PFAS literature and additional sampling data. According to Davis, these potential sources include the application of biosolids to farmland post-2000, poultry farms, cotton farms, septic systems, a fish hatchery, lumbar operations, fire retardant from a mill fire, and the household use of certain commercial products.
Davis’ opinions regarding other ‘potential sources’ of PFAS in Raccoon Creek are speculative and unsupported by data
Plaintiffs argued that Davis’ methodology amounts to speculation because (a) he relied on studies identifying PFAS in certain products but failed to verify whether those products were actually used in the Raccoon Creek watershed and (b) his sampling data does not adequately support ruling out 3M products as PFAS sources.
The Plaintiffs advanced a variety of explanations for why Davis failed to prove that some of the potential alternative sources were at work or why they could not account for PFAS concentrations in the Raccoon Creek watershed. But these arguments spoke to the weight rather than admissibility of the evidence.
For example, with regard to poultry farms, Davis found that several poultry farms in the Raccoon Creek watershed may contribute to PFAS levels because (1) there are several poultry farms in the area, (2) sampling data downstream of one of the farms revealed PFAS concentrations that did not contain the electrochemical fluorination signature of 3M’s products, and (3) studies have found PFAS in “[p]oultry farm bedding materials (litter)” made from recyclable materials and manure. The Plaintiffs did not challenge the sampling data results or the reputability of the studies.
Instead, they argued that the sampling data and studies are not conclusive, as the PFAS concentrations may be caused by 3M-polluted water purchased by the farms from Summerville and the farms may not even use PFAS-based litter or manure.
Here, the Court held that Davis’ methodology is adequately reliable for admissibility purposes. First, Davis’ report is not based on bare speculation regarding the potential non-3M PFAS sources. Davis takes his analysis one step further in identifying potential other sources of PFAS, but he is careful throughout his report to refer to these other sources as “potential” sources based on the available PFAS literature and his sampling data.
Davis did not cherry-pick or conduct impermissible “results-based reasoning”
The Plaintiffs took issue with Davis’ decision to base his calculation of the 3M-attributable PFOS load on only two farms where biosolids were applied, citing 3M’s and EPA’s supposed statements to the contrary.
While the Plaintiffs may disagree with Davis’s decision to limit his 3M PFAS calculations to only two farms and may believe it contradicts 3M’s and the EPA’s statements, the Court found that Davis has provided a sufficient basis for his methodological choice.
According to Davis, he limited his 3M PFAS calculations to two farms because he determined that those farms were the only two where biosolids were applied prior to 2001.
Regarding cherry-picking certain reports, the Court agreed with the Defendants that Davis is free to rely on facts presented in published reports as well as his own experience and knowledge in forming his opinions where he does not agree with other facts presented in those reports.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Andy Davis.
Key Takeaway
An expert report is not automatically unreliable merely because it agrees with some aspects of an existing report and not others. Therefore, Davis has shown his methodology is sufficiently sound and that it is “properly grounded, well-reasoned, and not speculative.”
Please refer to the blog previously published about this case:
State of Connecticut and Federal Trade Commission, sued Chase Nissan LLC, d/b/a Manchester City Nissan (“MCN) and multiple individuals, alleging that MCN, along with others, acted together to defraud thousands of consumers. The Plaintiffs alleged that the Defendants charged consumers for additional products or services (“addons”) that consumers never agreed to purchase. The Plaintiffs claimed that the Defendants effected unauthorized charges in multiple ways, including add-ons inserted into unaware consumers’ closing documents or charging consumers for add-ons that MCN told consumers were free.
Plaintiffs’ expert, Dr. Jessica Broome, conducted a customer experience survey about add-on products or services offered at MCN (the “Broome Survey”).
The Defendants argued that the methodology Broome applied to her survey was significantly flawed, and therefore, the results and conclusions were insufficiently probative.
Survey Research Expert Witness
Dr. Jessica Broome received a PhD in Survey Methodology from the University of Michigan, an MS in Applied Social Research from Hunter College of the City University of New York, and a BA in Sociology from Connecticut College. She has worked as a primary researcher for the past 24 years, designing and conducting quantitative (survey) and qualitative (focus groups, ethnographies, interviews) research for clients in a range of sectors.
Specifically, the Defendants argued that (1) the Broome Survey included misleading questions; (2) the Survey disclosed the FTC as the sponsor and the purpose of the survey; (3) that respondents were able to change their previous answers; and (4) that the population selected was underinclusive.
A. Question A1 is Clear and Unambiguous
Question A1 stated: “Did you agree to pay extra for any of the following add-on products or services when purchasing this vehicle?” Respondents were then presented with a list of eleven possible add-on products and services and, for each, asked to answer “Yes,” “No,” or “Not Sure.”
Based upon the responses received to Question A1, Broome concluded that “Manchester City Nissan charged the vast majority of customers surveyed (88%) for at least one add-on that they did not agree to pay extra for or led customers to believe that the add-on was required rather than optional.”
Broome further concluded, based upon respondents’ answers to Question A1, that “Manchester City charged a substantial percentage of customers surveyed (42%) for multiple add-ons that they did not agree to pay extra for or led customers to believe that the add-ons were required rather than optional.”
The Defendants asserted that this is an ambiguous question and unclear about the very thing that the survey was trying to measure: whether consumers paid for an add-on product or service without agreeing to do so.
When an unclear question is included in a survey, it may threaten the validity of the survey by distorting the responses or by error if the respondents do not understand. However, there is no indication that the questions were misleading or that the respondents did not understand the question.
As explained by Broome, her team conducted two rounds of cognitive interviews to check the understanding of the questions. After a pretest respondent completed each survey question online or over the phone, the interviewer posed a series of follow-up questions, called “probes”, aimed at determining whether the survey questions were understood by respondents as intended.
Additionally, small ambiguities in surveys go to the weight of the survey as evidence, not to its admissibility.
B. Disclosure of the FTC as Sponsor is Consistent with Reliable Survey Methodology
Second, the Defendants argued that the survey disclosed the FTC as the sponsor and thus is unreliable. The Defendants asserted that all the individuals who made up Broome’s survey population knew that the FTC sought the information regarding car purchases. The Defendants claimed that identifying the FTC as a sponsor injects potential bias into the survey by suggesting certain preferred responses.
Courts from across the country have repeatedly accepted as reliable consumer surveys that disclose the FTC as a sponsor where the surveyor has taken steps to hide the purpose of the survey. Broome asserted that she took steps to hide the purpose of the survey. The invitation included no references to litigation against MCN and stated that the purpose was to learn about general car purchases over the past five years.
The survey did not focus on MCN but showed a randomized list of four local dealerships. Additionally, the FTC may bring litigation before a consumer survey is published.
C. Backwards Navigation is Consistent with Reliable Survey Methodology
Third, the Defendants argued that the backward navigation allowed consumers to change their answers and thus is unreliable. The Defendants claimed that later questions could suggest certain conclusions regarding whether the consumer agreed to pay extra for the add-ons. Because the consumers had the ability to navigate backwards on the survey, the responses potentially could be skewed.
The defense, however, presented no evidence that the backward navigation is a design flaw. The defense retained a survey expert to prepare a rebuttal of Broome’s work, yet they did not use their expert’s opinion in their motion. Plaintiffs argued that Broome utilized standardized and approved methodology.
The Court held that Broome’s work is consistent with reliable methodology. Further, issues raised by the Defendant would go to weight rather than admissibility.
D. The Survey Population Selected is Consistent with Reliable Survey Methodology
Fourth, the Defendants argued that the consumer population was underinclusive; thus, the survey is unreliable.
The Defendants asserted that the target population was adults who purchased a vehicle from MCN between January 2019 and December 2023 and were charged for at least one add-on. The defense claimed that Broome pulled potential participants from lists provided to her by the FTC for all add-on transactions at MCN, and this population excludes all customers who purchased a vehicle and did not purchase an add-on. They asserted that this population, by design, intentionally excluded customers who, if included, would have greatly decreased Broome’s numbers.
Broome’s survey was not intended to represent consumers who were not charged for add-ons so there is no reason to include such consumers in the target population. Even if Plaintiffs were to expand the target population as suggested the methodology would find similar results. The Defendants’ argument that Broome should have surveyed all consumers is, therefore, without basis.
The Court held that Broome’s survey is designed with methodology consistent with the Reference Guide on Survey Research and legal precedent regarding FTC surveys. In other words, Broome’s technique used reliable survey methodology.
Held
The Court denied the Defendants’ motion to preclude the testimony of Jessica Broome.
Key Takeaway
Broome’s survey followed correct methodology and legal best practices. Sponsorship by a governmental third party may not automatically suggest a certain kind of preferred response. Moreover, courts have repeatedly accepted consumer surveys that disclose the FTC as the sponsor.
Plaintiff Trenton Smith brought claims against Defendant Nelk, Inc. doing business as Nelk or Full Send, Defendant Nelk USA, Inc., Defendant Metacard LLC, Defendant Kyle Forgeard (“Kyle”), and Defendant John Shahidi (“John”) (collectively, “Defendants”) related to Plaintiff’s Metacard purchases.
Smith alleged that Defendants made promises regarding the benefits of owning a the Metacard NFT (“Metacard”) that Defendants had no intention of delivering. These benefits were included both long-term investment value and ongoing “perks.”
The ongoing perks described by Defendants included gym memberships, exclusive events and first access to new projects launched by Defendants. Defendants made these promises to induce individuals, particularly Defendants’ fan base, to purchase the Metacard, all while knowing they would not fulfill those promises and fully intending to enrich themselves. Plaintiff and the Class Members relied on Defendants’ representations in purchasing the Metacard, earning Defendants approximately $23 million in initial sales plus another approximately $4.3 million in royalties on re-sales.
Jeremy Clark is an associate professor at the Concordia Institute for Information Systems Engineering at Concordia University in Montreal, Canada. From 2019 to 2025, Clark held the National Sciences and Engineering Research Council of Canada/Raymond Chabot Grant Thornton/Catallaxy Industrial Research Chair in Blockchain Technologies.
Clark holds a Ph.D. in Computer Science from the University of Waterloo, awarded in 2011, and he is a professional engineer with the Professional Engineers of Ontario. He has a decade of research expertise in digital assets (e.g., Bitcoin and Ethereum), blockchain, and related areas of cryptography, and 20 peer-reviewed papers on Bitcoin, Ethereum, digital assets, and blockchain technology.
Clark has also testified on digital assets to the Standing Senate Committee on Banking, Commerce and Economy of the Senate of Canada, and to the Standing Committee on Finance of the House of Commons of Canada. Additionally, Clark has given over 50 presentations on digital assets to companies, government agencies, law enforcement, pension plans, and academic groups.
Defendants argued (1) that Clark failed to articulate a reliable methodology, and (2) that he is unqualified.
First, the parties dispute whether Clark’s methodology is vague and underdeveloped. The Court found that Clark’s testimony was the product of sufficiently reliable principles because he explained the Mint process, how the Metacards were created and assigned to the original owners, and the unique addresses that purchased the Metacards.
Clark began his review of the blockchain activity associated with the Metacard by examining “archives of websites affiliated with the NFT with the Internet Archive.” Clark relied on datasets curated and offered through the Dune Analytics tool, finding data about Metacard’s minting activity.
According to Clark, “minting is the Ethereum-based activity of creating the new token ID and assigning it to the owner’s address,” and the “address of the entity that created the NFT collection [here] is 0x9E . . . C731” (the “Metacard treasury”).
And using this information, Clark can estimate the number of Metacard purchasers based on the number of unique Ethereum addresses that held a Metacard at some point, can trace the flow of funds between addresses related to these transactions, can separate out secondary sales following the Mint, and can trace royalties earned from Metacard transfers. For example, Clark described the transfer history of the Metacard treasury which deployed the NFT collection, the Ethereum flowing out of this address, and its eventual depletion.
Second, Defendants argued that Clark lacked the qualifications to opine on class-wide damages. However, the Court found that Clark had sufficient experience with digital assets to offer his opinions.
Held
The Court denied Defendants’ motion to exclude the opinions of Jeremy Clark.
Key Takeaway
Clark’s explanation of the steps in his methodology, breakdown of his analysis, and description of the data he relies on provided sufficient assurance to the Court in its gatekeeping capacity that exclusion is not necessary on the basis of unreliable methods.
Case Details:
Case Caption:
Trenton Smith V. John Shahidi
Docket Number:
8:25cv161
Court Name:
United States District Court for the Central District of California
Zailey Hess sued former Hammond police officer Jamie Garcia, alleging that he sexually assaulted and harassed her during a ride-along for her criminal justice class in violation of the Fourteenth Amendment’s Equal Protection and Due Process Clauses.
Garcia filed a motion to exclude the testimony of Hess’ expert witness, Dan Kender.
Law Enforcement Expert Witness
Daniel R. Kender worked as a Hammond police officer for 28 years, including as a patrol officer, evidence technician, traffic crash investigator, accident reconstructionist, field training officer (including educating ride-along participants), law enforcement instructor, and police sergeant.
Over that time, he participated in various law enforcement training. He holds a bachelor’s degree in computer information systems and a master’s degree in cybersecurity and digital forensics. Kender is an assistant professor of computer science, though he has worked privately in crash reconstruction since 2000—first for another business, and for himself since 2008.
Garcia asked the Court to exclude all of Kender’s prospective testimony, arguing that he (1) may not testify to a witness’ credibility, (2) isn’t needed or qualified to testify on whether Garcia’s ride-along conduct was inappropriate based on Hammond’s policies or a seatbelt’s functionality, and (3) isn’t qualified to testify on sexual grooming or the behavior of a victim of sexual assault or harassment.
A. Opinion on the Believability of Hess’ Accusations
Kender reviewed Hess’ recollections of their ride-alongs with Garcia and opined that her accusations appeared genuine because fabricated accounts tend to be more exaggerated, while Garcia’s recollections struck him as inconsistent.
Garcia said that Kender lacked the requisite qualifications in psychology or human behavior to reach this opinion and added that his credibility opinion cannot help the jury.
The latter is what prevents him from being an expert here. Qualifications aside, and those remain in doubt, an opinion witness cannot sift through the testimony of others, tell the jury whom to believe, or otherwise argue the implication of seeming inconsistencies. The jury alone performs the job of assessing the credibility of witnesses, and it needs no help. Kender acknowledged that this takes no expertise beyond the common sense of each juror.
B. Opinions on the Propriety of Garcia’s Conduct under Hammond Police Department Ride-Along Policies and Training
Kender’s report described the purposes and procedures of a ride-along with the Hammond Police Department. He described the ride-along program as fostering positive police-community relations and educating the public on police functions.
Based on his prior work as a field training officer and experience leading educational ride-alongs, he opined about the training Hammond law enforcement officers receive and the objectives they acknowledge to guide their ride-alongs with members of the public.
Jurors may have early impressions about ride-alongs, or either heard of them or even participated in one, and perhaps have early impressions about their goals for both the public and police agency; but Kender would offer something specialized to understand their dynamics, objectives, and the training that goes into making sure that police officers handle them safely. He has the credentials to speak to these issues, and his method of offering these opinions grows out of his training, his training of others, and the policies in place at the Hammond Police Department.
Beyond this scope of testimony and the context it provides the jury, the jury truly needs no help. Nor is there anything particularly expert about anything else.
C. Opinions on the Behavior of a Victim of Sexual Misconduct and on Sexual Grooming Behavior
Kender sought to opine that Hess’ account of Garcia’s ride-along conduct was consistent with sexual grooming by predatory child molesters. He stated that he based this opinion on his training and experience as a police officer, his review of the record, and a 2017 article about grooming behaviors by predatory child molesters.
Garcia argued that Kender lacked the necessary qualifications to testify about grooming behavior or a victim’s common reactions to sexual assault. He said that Kender merely read transcripts rather than interviewing or observing any witnesses, and that his opinion lacked a scientific method.
Analysis
Kender worked as a police officer for 28 years. His curriculum vitae reflects fairly standard training at the Indiana Law Enforcement Academy and at the Northwest Indiana Law Enforcement Training Center, and it seems over the years he developed particular focuses in crash investigation, forensics (including computer forensics), and training of officers. None of this screams out expertise in sexual grooming. That said, he testified that he worked traffic part of the time, but also worked patrol involving cases of child molesting, sexual battery, and rape. He received some training on sexual grooming at the academy, and he later served as a field training officer and evidence technician when he “handled a lot more of [these] cases then.”
While Kender hasn’t specialized professionally in sex crimes or psychology, the Court held that he may speak to patterns of sexual grooming insofar as his training and experience take him.
Garcia also criticized Kender’s method, except that Kender outlines specific signs or dynamics of sexual grooming (something well beyond his say-so); and he thereby provided a roadmap for his application of these and his decision-making toward an opinion, and decision-making not unlike what law enforcement officers often would make in the field.
Aspects of grooming may be intuitive to some jurors, and jurors will need no help understanding that much of the alleged behavior would be not just unprofessional but unreasonable by a police officer to commit; but other aspects about grooming or a victim’s sometimes-less-than-intuitive reactions to sexual assault will be invariably foreign to them, so this opinion about grooming will aid in their understanding of its markers and the constitutional impropriety of such behavior during a ride-along.
Held
The Court granted in part and denied in part Jamie Garcia’s motion to exclude Daniel Kender’s opinions.
Key Takeaway
Kender offered something by way of specialized knowledge to understand the objectives and training associated specifically with ride-alongs. The jury gets to decide whether Garcia’s conduct violated the Constitution with the aid of that context, but without need of more.
For instance, jurors understand driving safety and the importance of having two hands on a steering wheel (or not). Jurors can assess whether physical contact or sexualized conversations between an officer and minor passenger (or with a sex worker) are discriminatory rather than serve any legitimate government objective.
Danesh Noshirvan, an online entertainer and journalist, filed a civil action against Jennifer Couture alleging conspiracy and agency liability, as well as claims for defamation, tortious interference, misappropriation of likeness, and intentional infliction of emotional distress.
Noshirvan alleged that Couture, Dr. Ralph Garramone, M.D. and OMG Realty, LLC , along with the other named Co-Defendants, conspired with a non-party, Joseph Camp (“Camp”) to tortiously interfere with Plaintiff’s business relationship with his former attorney, defame Plaintiff and intentionally inflict emotional distress upon Plaintiff.
Garramone Plastic Surgery, Jennifer Couture, Ralph Garramone, and OMG Realty, LLC challenged the testimony of Robert M. Gordon, Ph.D., ABPP.
Gordon diagnosed Noshirvan with Complex Post-Traumatic Stress Disorder “due to the cyberbullying and damage to his reputation by Joey Camp.” He further opined that Noshirvan would “need many years of intensive psychotherapy to help deal with his CPTSD.”
Psychology Expert Witness
Robert M. Gordon, Ph.D., ABPP has practiced forensic psychology for nearly five decades (since 1976) in both civil and criminal arenas. He is board-certified in Clinical Psychology and in Psychoanalysis, and earned his doctorate from Temple University.
He has authored over 100 publications in areas directly relevant to this case. For example, he co-published research on using the MMPI-2 to detect individuals “faking PTSD” after traumatic events.
Gordon has taught forensic psychology at the Ph.D. level and given international workshops on psychological assessment and trauma.
Defendants argued that Gordon’s use of the Clinician Administered PTSD Assessment Questionnaire for DSM-5 (“CAPS-5”) is unreliable.
Specifically, Defendants pointed out that the DSM-5 requires “exposure to actual or threatened death, serious injury, or sexual violence” and the “presence of one or more of certain symptoms associated with the traumatic events, beginning after the traumatic events occurred.”
Yet Gordon, according to Defendants, bases his diagnosis on the assertion of “cyberbullying and destruction of reputation.” Since Gordon, according to Defendants, failed to strictly adhere to the diagnostic criteria in the DSM-5, the Defendants contended that Gordon’s testimony must be unreliable.
First, Defendants argued that Gordon lacked any evidence of exposure to actual or threatened death, serious injury, or sexual violence, because he conducted no independent investigation on Noshirvan’s allegations in the Second Amended Complaint and interview. Any quarrel with not independently verifying any of the allegations that Noshirvan presented to Gordon can be appropriately dealt with on cross-examination.
Defendants next argued that Gordon failed to follow DSM-5 diagnostic criteria because he did not observe at least one month’s worth of PTSD symptoms before diagnosing a patient with PTSD and relied almost exclusively on Plaintiff’s self-reporting. While Defendants contended that the rationale for using these specific tests was not definitively explained, such concern can be considered through cross-examination and is not a reason to exclude Gordon’s testimony.
Further, Defendants also pointed the Court to the Georgetown Guidelines for Forensic Assessment of PTSD. However, it too is not enough to show the methodology is unreliable since those guidelines were published before the DSM-5 and did not outline any specific examinations that must be given. Accordingly, the Defendants have not shown that Gordon’s methodology was unreliable as it relates to his diagnosis of PTSD.
(2) Complex Post-Traumatic Stress Disorder
Defendants also argued that Gordon’s failure to adhere to the diagnostic criteria of Complex Post-Traumatic Stress Disorder (“CPTSD”) in the ICD-11 as well as his diagnosis being made solely for the purpose of litigation rendered his methodology unreliable.
Gordon relied on more than mere allegations presented by Plaintiff. Gordon utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis. To the extent Defendants disagreed with the diagnosis, they were free to challenge Gordon on cross-examination.
Defendants next argued that Gordon failed to explain the results of the International Trauma Questionnaire (ITQ) or how he reached the diagnosis of CPTSD.
However, Defendants failed to show how that the ITQ itself is unreliable, and though how Gordon exactly utilized the ITQ is unknown, it is clear that he still relied upon the underlying PTSD diagnosis in reaching his conclusion.
Finally, Defendants argued that Gordon’s CPTSD diagnosis was made solely for purposes of this litigation. Defendants contended that while it is not dispositive, it further weighs against the reliability of Gordon’s testimony since Noshirvan only met with Gordon for about an hour via Zoom and was not re-examined in the future. While it is true Gordon only met with Noshirvan for about an hour, this argument went to the credibility of Gordon, not the reliability of his methodology.
B. Helpfulness
It is undisputed that Gordon utilized the CAPS-5, ITQ, Brief Psychiatric Rating Scale, Beck Depression Inventory-II, Beck Anxiety Inventory, and Miller Forensic Assessment of Symptoms Test. Although Defendants took issue with the conclusions reached by Gordon as well as the methods utilized, the conclusions went to a crucial issue in this case—whether Noshirvan suffered emotional distress.
Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person. Defendants were able to cross-examine Gordon regarding why he utilized the specific tests in lieu of other examinations they contended are better suited for such diagnosis. These quarrels, however, are not sufficient to exclude the evidence.
Ultimately, the Court found that Gordon satisfied all three prongs of Daubert, and the Court found that no undue prejudice from the anticipated testimony.
Held
The Court denied as moot Defendant Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP.
Jennifer Couture, Ralph Garramone, and OMG Realty, LLC’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
Garramone Plastic Surgery’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
Patrick Trainor, Central Park of Southwest Florida, LLC, and Anti-Doxing League, Inc.’s motion to exclude the testimony of Robert M. Gordon, Ph.D., ABPP was denied.
Key Takeaway
Gordon satisfied all three prongs of Daubert because he utilized an array of psychological assessments to determine the presence and severity of the symptoms before making any diagnosis.
Further, Defendants acknowledged that the diagnostic criteria of PTSD and CPTSD is beyond the understanding of the average lay person.
In 2018, Rock Fuel Media pitched its concept for a sports-gaming platform called “VSports Live” to Resorts World Las Vegas LLC during the development stage of Resorts World’s casino and resort on the Las Vegas Strip. Resorts World did not end up contracting with Rock Fuel, and Rock Fuel never built the VSports Live platform. When Resorts World opened its doors several years later, it instead partnered with third parties to create two apps from which visitors could engage in sports betting, connect to the casino’s loyalty program, make dining reservations, engage in cashless gambling, and more.
Rock Fuel, believing that Resorts World cribbed its app ideas from the 2018 presentation, alleged trade-secret misappropriation, breach of the nondisclosure agreement (NDA) the parties signed before the 2018 presentation, and unjust enrichment.
Resorts World filed a motion to exclude the opinions of Rock Fuel’s purported expert witness, James Martin.
Intellectual Property Expert Witness
James Patrick Martin has more than 25 years of experience representing high-tech companies and their employees in intellectual property matters and technology-based transactions.
He earned his Juris Doctor degree, cum laude, from the University of Michigan Law School.
Martin reviewed Rock Fuel’s presentation materials concerning its app concept and “extracted” an eight-element set of features that Rock Fuel now presents as its trade secret. He opined that the combination of features he identified is protectable and was misappropriated by Resorts World.
Resorts World challenged Martin’s qualifications and accused him of conjuring up this trade secret only after examining Resorts World’s app and highlighting elements that overlap while ignoring those that don’t.
It also moved to exclude Martin’s misappropriation opinion because it isn’t based on any specialized knowledge that would be helpful to a jury.
Rock Fuel relied on Martin’s opinion to contend that the similarities between Rock Fuel’s eight elements and Resorts World’s apps at launch are sufficient circumstantial evidence from which a jury could conclude that Resorts World used Rock Fuel’s presentation materials to create its mobile products.
However, Rock Fuel has not established that he has specialized expertise or knowledge in app development, casino or hotel management software, sports gaming software, or any other field that would give him the specialized knowledge to compare app functionalities. He merely downloaded the Resorts World apps, compared what he saw to the 2018 presentation materials, and concluded that they have some overlap.
Even if Martin’s qualifications sufficed, his opinions are excludable because they do not rely on any specialized knowledge or expertise. He merely reviewed Resorts World’s products, compared them to the combination of elements he identified as Rock Fuel’s trade secret, and concluded that Resorts World “has a system that looks a lot like” Rock Fuel’s concept.
As a result, the Court held that Martin’s opinion on whether Resorts World misappropriated Rock Fuel’s trade secret is not admissible.
Held
The Court granted in part Resorts World’s motion to exclude James Martin’s expert testimony.
Key Takeaway
While experts are generally allowed to opine on whether a product has been misappropriated, Martin lacks specialized experience that would permit him to glean anything more than a layperson could.
Case Details:
Case Caption:
Resorts World Las Vegas LLC V. Rock Fuel Media, Inc.
The Plaintiffs in this putative national class action are insureds who filed “total loss” claims for the actual cash value (“ACV”) of their totaled vehicles under their automobile insurance policies sold by State Farm Mutual Automobile Insurance Company or State Farm Fire and Casualty Company (collectively, “Defendants” or “State Farm”). Plaintiffs challenged State Farm’s application of a “typical-negotiation adjustment” (“TNA”) in the calculation of the ACV of Plaintiffs’ vehicles, which reduced Plaintiffs’ total loss payments based on the average difference between the list price and a lower price that a dealer would theoretically accept.
Alleging that this methodology resulted in undervalued payments, Plaintiffs brought various claims, including breach of contract, breach of the covenant of good faith and fair dealing, fraudulent concealment, fraudulent inducement, unjust enrichment, and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) and various other state consumer protection statutes.
Defendants filed a motion to exclude the testimony of Kirk Felix, Plaintiffs’ expert on used car pricing trends.
Automotive Industry Expert Witness
Kirk Felix spent the first 13 years of his career managing the service and parts departments of Honda, Acura, and Toyota dealerships; from 1999 until his 2022 retirement, Felix served as a moderator and consultant at NCM Associates, Inc., where he facilitated meetings—called 20 Groups—for cohorts of non-competing dealerships to “discuss industry trends and best practices for operating efficient, profitable dealerships.”
Over the course of those two decades, those discussions included over 300 dealerships across 45 states, including Chevrolet, Chrysler, Ford, Nissan, and Honda dealers, two fixed operations director groups, and an Independent Auto Auction group.
State Farm first argued that Felix is unqualified to “opine on the pricing and selling of used vehicles, including topics like dealerships’ pricing strategies, consumers’ negotiating behavior, and the Autosource methodology at issue in this case.”
Felix has never sold a used car, and he admitted that he has never been involved in the used car business. Though Felix occasionally gave information about a car’s reconditioning costs to those individuals at dealerships in charge of used car pricing (during his work from 1986 to 1999), he has never been involved in pricing used vehicles for sale, nor has he managed those who do.
Here, Felix’s experience comes from the conversations he facilitated at NCM. Yet Felix’s experience with NCM involved meetings only three times a year. Felix’s involvement included putting together the agenda for the meeting after consulting with the group’s executive committee, and then running the meetings alongside the chairman, but he did not take notes at the meetings. It is hard to square this experience with the scope of Plaintiffs’ proposed testimony, which seeks to authoritatively describe the process for pricing and selling used automobiles.
Basically, Felix admitted to not knowing the number of car dealerships in any state, what percentage of used car dealerships in any state market themselves as no haggle dealerships, what percentage of dealerships in any state will negotiate on the price of a used car, or how many car dealerships have eliminated negotiation.
Felix never conducted a survey of dealers regarding their pricing practices ahead of this litigation, though he says a survey probably happened during his time at NCM, even if he cannot recall when or what the results were.
Upon a review of the full record, the Court agreed that Felix has not demonstrated the requisite qualifications.
B. Reliability of Felix’s Testimony
Here, Felix has freely admitted that his methodology for opining on the used car pricing and sales market consists of reflecting upon memories of his experiences with NCM.
Yet NCM’s moderation topics were not even specific to used cars. Rather, the business model involved gathering approximately 20 dealers representing the same manufacturer (i.e. Toyota), compiling 5-7-page financial statements from each of them, and then consolidating the information into a 30-plus page financial comparison document to then discuss in a meeting.
Even if used cars were discussed at every meeting as a “critical part” of the car business, as Felix testifies, general reference to thrice-annual meetings does not demonstrate the “soundness and care” expected of experts on the facts of the case at hand.
Felix’s planned testimony is that “vehicles are priced to market and used car dealers do not deviate down from the advertised cash price with limited exceptions.” In depositions, he has estimated that this is the case around 90 percent of the time. This, however, is not a view he can back up by data but rather, it is a product of the information he heard “over 23 years with NCM clients.”
While it is true, as Plaintiffs contended, that Felix need not commission a study himself to testify to how often vehicles are sold for less than listed price, Felix must still explain how he reaches his conclusions.
The same goes for Felix’s assertion that Autosource and used car dealers use the same methods to assess the value of used automobiles other than State Farm’s use of the TNA. The fact that these inputs share labels, however, does not necessarily equate to the inputs themselves mirroring one another.
With an eye for sufficiency and application of methodology, the Court found that Felix’s testimony misses the mark.
Held
The Court granted Defendants’ motion to exclude the testimony of Kirk Felix.
Key Takeaway
Plaintiffs have not shown by a preponderance of the evidence that Felix’s testimony is “based on sufficient facts or data” and “the product of reliable principles and methods.” In other words, the Court found that Felix’s application of his methodology to the circumstances of the case have not met the Rule 702 threshold, in accordance with the 2023 amendments.
Please refer to the blog previously published about this case:
