This case involves alleged violations of the Fair Credit Reporting Act. Plaintiff Ronald Alexander Garcia Delgado claimed that Defendant Experian Information Solutions failed to use reasonable procedures when preparing consumer reports—mixing Plaintiff’s information with his son’s.
Plaintiff hired an expert, Douglas Hollon, to help prove his case. Defendant Experian Information Solution, Inc. filed a motion to strike or limit the testimony of Hollon.
Consumer Credit Expert Witness
Douglas A. Hollon holds a Bachelor of Science in Business Finance. He has received FCRA certifications from the Consumer Data Industry Association, and he has earned additional certifications.
He has worked in the consumer finance reporting industry since 2005, when he began working for Experian. His work for Experian spanned 14 years from 2005 through 2019 in the National Consumer Assistance Center—Experian’s main dispute processing center—where he helped consumers “resolve their issues” and “[p]rovid[ed] leadership advice to current supervisors.”
He handled “escalated credit report disputes” submitted on consumers’ behalf by attorneys and government entities. He has also received “specialized training involving fraud (identity theft) disputes” and testified on Experian’s behalf as a Rule 30(b)(6) witness. In addition to his experience at Experian, he has studied “regulatory agency publications, case law, deposition transcripts, company manuals or publications, and other related documents,” contributing to his “extensive knowledge of other Consumer Reporting Agencies’ (CRAs) and Data Furnishers’ credit dispute operations.” Since 2020, Hollon has been the owner of Credit Experts of North Texas, LLC. Over the course of his career, he has “assisted tens of thousands of customers.”
The Defendant challenged Hollon’s testimony on three grounds. First, Defendant challenged Hollon’s qualifications. Second, Defendant argued that Hollon’s opinions included legal conclusions. And third, Defendant challenged the reliability of Hollon’s methods.
I. Qualifications
Defendant’s qualification challenge targets Hollon’s ability to testify about Plaintiff’s economic and emotional damages.
Plaintiff denied that Hollon offered testimony about the emotional distress Plaintiff allegedly experienced. The Court saw no reason to exclude testimony that Plaintiff did not intend to offer.
As to non-economic damages, Hollon cannot testify about Plaintiff’s specific damages or their cause but may testify about the types of types of damages typically caused by errors on credit reports.
II. Improper Legal Conclusions
Defendant argued that some of Hollon’s opinions are improper legal conclusions.
Plaintiff responded that Hollon will not use language such as “unreasonable, unreliable, inadequate, negligent, willful” or definitively state that particular conduct violated the FCRA. Instead, Plaintiff represents, Hollon will testify about “consumer reporting industry standards,” and “how a Defendant’s conduct or procedures comport with those standards.”
Based on Plaintiff’s representations, the Court will not exclude Hollon’s testimony. If, at trial, Hollon offers legal opinions that contradict Plaintiff’s representations to the Court, the Court will take appropriate action upon objection.
III. Reliability
Defendant argued that Hollon’s opinions are unreliable because he has no methodology and his opinions are full of serious errors. Plaintiff responded that Hollon’s method is sufficiently reliable and that any alleged errors would be better explored through cross-examination.
The Court agreed with Plaintiff. It is true that Hollon does not name a specific method. Here, Hollon’s testimony rests primarily on his 19 years of experience, which is permissible. Hollon’s experience and expertise led him to conclude that alternatives to Defendant’s procedures would prevent mixed files, and it is for the jury to decide whether his opinion is credible.
Although Defendant identified deficiencies in Hollon’s testimony, the Court is unconvinced that exclusion is required.
Held
The Court granted in part and denied in part Defendant Experian Information Solution, Inc.’s motion to strike or limit the testimony of Plaintiff’s expert Douglas Hollon.
Key Takeaway
If the expert witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Case Details:
Case Caption:
Garcia Delgado V. Experian Information Solutions, 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 proposed testimony of Jason Merritt, Plaintiffs’ expert on personal property appraisal.
Appraisal Expert Witness
Jason W. Merritt has appraised over a thousand vehicles to determine their fair market, or actual cash, value. He is certified through the Bureau of Certified Auto Appraisers to appraise vehicles, including total losses.
Plaintiffs retained Merritt to testify about “what an appraisal is,” “how to use the comparable methodology to appraise a vehicle’s [ACV],” and whether State Farm’s (via the company Audatex) application of a TNA in the calculation of the ACV of Plaintiffs’ vehicles is “appropriate when appraising a vehicle using a comparable [“comp”] methodology.”
A. Merritt’s Qualifications
State Farm did not challenge Merritt’s experience with appraisals. Rather, State Farm suggested that Merritt is unqualified to opine on Audatex’s methodology for lack of knowledge about the technical inputs on which the Autosource valuation actually runs.
Merritt’s extensive background in ACV appraisals made him appropriately qualified to opine on how Audatex’s methodology compares to other industry practice even without first-hand experience in the Defendants’ technical systems. State Farm’s grievances with how Merritt applies his experience to the facts of this case are better suited for cross-examination.
The same cannot be said for State Farm’s arguments about any opinions Merritt may attempt to offer regarding State Farm’s alleged deceptiveness or deceitfulness in this case. Experts generally cannot offer legal opinions or conclusions, and the exceptions to that rule are not applicable here.
Merritt is free to testify to his view that there must be a specific evidence-based reason for making value deductions in a proper comp appraisal, and that Audatex’s TNA deviates from that standard.
The same goes for his emphasis on the TNA being “baked in” rather than “explicitly applied to the valuation of the insured vehicle” in a visible way, which may make it hard for a consumer to identify the use of the TNA on their vehicle’s ACV determination. That, however, must be the end of the road for his testimony.
Merritt cannot veer into legal conclusions, including but not limited to observations about deception. Any opinions that do so should be excluded under Rule 702. The Court thus granted State Farm’s motion to exclude Merritt’s testimony to the extent that it speaks to legal conclusions such as deception.
B. Reliability of Merritt’s Testimony and Methodology
i. Merritt’s First Opinion
Defendants argued that Merritt’s opinion that Audatex’s typical negotiation adjustment conflicts with typical appraisal standards is unreliable for three reasons: that Merritt 1) compares Audatex’s work to general principles and not specific appraisal standards, 2) has insufficient knowledge about how Audatex calculates its TNAs, and 3) operates from the false premise that a used vehicle’s advertised cash price always equals its ACV.
State Farm’s second contention amounts to a recycled version of its arguments about Merritt’s qualifications, addressed above, and can be disposed of accordingly. Further, State Farm did not suggest that Merritt’s actual report—which thoroughly addresses all aspects of the Audatex methodology it intended to dispute—actually gets anything wrong about how Audatex operates, instead primarily taking issue with his lack of internal company knowledge about how the TNA “was developed or is calculated.”
State Farm’s third contention also missed the mark: nowhere did Merritt’s report indicate that he believes “a used vehicle’s advertised price always equals its actual cash value,” as State Farm puts it. Merritt espouses advertised internet prices as “an objective criterion for determining what the comparable vehicle would sell for on a particular day to a buyer purchasing a vehicle outright, without providing a trade in, financing the purchase through the dealership, or buying optional warranties or service plans.”
That leaves State Farm’s first argument: that Merritt should be excluded because he compared Audatex’s work to general principles and not specific appraisal standards. Merritt, however, clearly outlined the comp appraisal methodology against which he is comparing Audatex’s methodology—moreover, he found that Audatex is “consistent with” his general methodology aside from the application of the TNA.
ii. Merritt’s Second Opinion
Defendants also argued that Merritt’s opinion that Audatex’s methodology, absent the TNA, produces a sound estimate of a vehicle’s ACV is unreliable for three reasons: Merritt 1) once again operated from the false premise that a used vehicle’s advertised cash price always equals its ACV, 2) utilized insufficient intellectual rigor because he is litigation-driven, and 3) incorrectly assumed that he can remove the TNAs without impacting other variables in the Audatex Reports.
The first of these contentions was addressed and disposed of in this Court’s earlier analysis. The second argument incorrectly aims to merge two distinct practices of Merritt’s: his work as an individual appraiser, and his testimony as to how insurance companies will often appraise cars. In his individual practice, Merritt has been called upon to perform vehicle-specific appraisal verification after an insurance company uses third-party software to determine ACV.
The lack of individualized inquiry in his report does not derive from that methodology’s likeliness to “sound a death knell to certification,” but rather the fact that insurance companies themselves do not utilize it, presumably believing it would be a death knell to their own bottom lines. It is not impermissibly “litigation-driven” for Merritt to compare and contrast his individualized inquiry approach with the standardized algorithmic approach common to insurance companies.
Finally, State Farm’s argument that Merritt incorrectly assumed that he can remove the TNAs without impacting other variables in the Audatex Reports is best suited for cross-examination. Merritt permissibly made reasonable inferences to reach his conclusions and ultimately “stayed within reliable . . . bounds” in so doing. The Court has found that Merritt’s application of his methodology to the circumstances of the case have met that threshold, in accordance with the 2023 amendments.
Held
The Court granted in part and denied in part Defendants’ motion to exclude the testimony of Jason Merritt.
Key Takeaway
From the outset, it is clear that Merritt familiarized himself with—and relied upon—the relevant facts of this case. Among other things, he highlighted the way Audatex comes to its ACV calculations and compares that to the “take-price” adjustment that some appraisers utilize, ultimately finding that Audatex’s approach is insufficiently specific compared to that approach. His explanation about a generally accepted vehicle valuation methodology will help a trier of fact decide a central issue in this case—whether it is appropriate to apply a TNA while appraising a used vehicle.
Case Details:
Case Caption:
Williams V. State Farm Mutual Automobile Insurance Company
Oriental Trading Company, Inc. (“OTC”) is a retailer of novelties and gifts. Plaintiff Keith Kirksey is an African American male who began his employment with OTC on or about June 1, 2017.
According to Kirksey, during his employment, he experienced a series of racially targeted incidents including the placing of a noose in his workspace and the placing of a clown head with, what he perceived as, a noose around its neck where Kirksey would see it. He reported these incidents to OTC who indicated it would investigate. Kirksey was dissatisfied with OTC’s investigation, and its outcome, and thereafter felt unfairly targeted by OTC in retaliation for his reporting.
Kirksey filed a complaint against OTC stemming from his employment alleging claims of race discrimination, retaliation, and harassment/hostile work environment as well as negligent infliction of emotional distress.
In an effort to establish his claims, Kirksey engaged Jerry Authier, Ph.D. as an expert. Authier is clinical psychologist licensed in Nebraska who was retained to conduct a psychological evaluation of Kirksey. In an effort to rebuke Kirksey’s claims, OTC designated Timothy D. Loudon as an expert in the field of human resources and workplace investigations.
OTC filed a motion in limine to exclude the testimony of Plaintiff’s expert witness Authier and Kirksey filed a motion to exclude the testimony of Loudon.
Psychology Expert Witness
Jerry L. Authier, Ph.D. is a clinical psychologist licensed in Nebraska. He has been practicing psychology in Omaha since 1973.
He obtained his bachelor’s degree in psychology and doctorate in clinical psychology. Throughout his 50-year career, Authier was the director of behavioral science at the University of Nebraska and Clarkson Family Medicine and saw patients in private practice. Authier has authored various articles and books and presented at a range of conferences, primarily during his years as an educator.
Timothy D. Loudon has a juris doctor degree, is licensed to practice law in multiple states, and has practiced labor and employment law in various capacities since 1981.
OTC did not move to preclude Authier from testifying altogether but sought to limit his testimony to that of a treating provider. OTC primarily argued that Authier’s opinions should be excluded because the foundation of Authier’s opinions rest solely on information Kirksey (and perhaps his counsel) conveyed to him.
Authier opined that Kirksey suffers from post-traumatic stress disorder, persistent depressive disorder with paranoid ideation, and generalized anxiety disorder. He further concluded that Kirksey’s negative psychological and psychiatric symptoms are attributable to Kirksey’s time working at OTC. In reaching these conclusions, Authier used a diagnostic interview, Minnesota Multiphasic Personality Inventory, 2nd Edition (“MMPI-2”) and the Sachs Sentence Completion Test. Authier further opined that Kirksey would need weekly psychotherapy sessions for an indeterminate amount of time but “at least a year if not longer and possibly the rest of his life.”
During his deposition, taken almost a year after his diagnostic interview, Authier testified that Kirksey did not participate in weekly therapy sessions with him. Authier stated that at the time he wrote his opinion he believed weekly therapy sessions would be the best way for Kirksey to recover from his symptoms.
Authier further testified that he is not an expert in EMDR therapy but stated it might be of help to Kirksey, when done with a specialized provider, to work through some of the symptoms of trauma. Similarly, Authier testified that he is not licensed to prescribe medication but that “the research shows that [psychotherapy along with medication] is the best way to help people that are struggling with psychiatric and psychological symptoms.
Analysis
First, OTC argued that Authier’s opinions are irrelevant because the June 18, 2020, incident (of which Authier’s opinion relies) is outside the applicable statute of limitations for Plaintiff’s claims in this lawsuit.
However, the Court found that Authier’s opinions regarding Kirksey’s conditions and the source of those conditions is wholly relevant to the ultimate issues in this case and his testimony would be useful to the finder in fact when deciding those issues.
OTC sought to exclude Authier’s opinions as to EMDR therapy and psychotropic medications based on his qualifications. While Authier testified that he is not an expert in EMDR nor a medical doctor, his limited opinions on these two topics fall within his purview of a clinical psychologist.
Authier did consider whether Kirksey’s symptoms could be attributable to other causes – such as childhood trauma. He determined based on his testing and clinical experience that this was unlikely. Moreover, when presented with records from a prior provider, Authier did not change his opinion.
The Defendant did not identify any plausible alternative cause of Kirksey’s conditions, thus strengthening the Court’s conclusion that the methodology employed by Authier is reliable. In addition to the diagnostic interview, Authier had approximately 16 sessions with Kirksey which confirmed Authier’s impressions and diagnosis of Kirksey.
Authier’s clinical impressions, based on his standardized diagnostic tools and his diagnostic evaluation, is that Kirksey is experiencing symptoms and those symptoms are tied to his time at OTC.
Moreover, OTC sought to exclude Authier’s opinion relating to his original recommendation that Kirksey participate in weekly psychotherapy sessions, arguing it is speculative and unsupported by the facts. The Court found that this information may provide context to the testimony at trial.
Loudon
Loudon opined about OTC’s handling of each of Kirksey’s complaints. To sustain a claim against OTC for a racially hostile work environment, Kirksey must show (1) he is a member of a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based upon race, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the racially discriminatory harassment and failed to take prompt and effective remedial measures to end the harassment.
At the time of trial, the “promptness” and “effectiveness” of an employer’s response is a question of fact for the jury to resolve and a matter for the Court to instruct.
Allowing Loudon to testify as an expert to the “adequacy” and “reasonableness” of OTC’s investigation would invade the province of the jury.
Held
The Court denied Defendant Oriental Trading Company’s motion in limine to exclude the testimony of Plaintiff’s expert witness Jerry Authier.
The Court granted Plaintiff Keith Kirksey’s motion to exclude the testimony of Timothy Loudon.
Key Takeaway
With respect to differential diagnosis, opinion testimony is unreliable “only when an opponent points to a plausible alternative cause of the injury and the doctor offers no explanation for concluding that it was not the sole cause.”
OTC’s attacks regarding the completeness of Authier’s methodology go to the weight and not the admissibility of his testimony.
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 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. Parris alleged that Raccoon Creek and—consequently, his household water—have been contaminated with PFAS by the Defendants. At present, Parris and Summerville jointly moved to exclude the opinion testimony of Defendant 3M’s expert, Maureen Reitman.
Polymers Expert Witness
Maureen Theresa Fahey Reitman, Sc.D. has been practicing in the field of polymer science and engineering for more than 30 years.
She has a Doctor of Science in Materials Science and Engineering, with a thesis in the field of polymers, from MIT. She is also a licensed Professional Engineer in the state of Maryland and a Fellow of the Society of Plastics Engineers.
Plaintiffs asserted that Reitman failed to identify any perfluorooctane sulfonate (PFOS)-containing products at the Mount Vernon Mill or the Trion Water Pollution Control Plant (“Trion Plant”) other than 3M’s product.
The Court agreed with 3M that Reitman’s opinions as to other possible sources of PFAS and PFOS in the Raccoon Creek watershed are relevant to the issue of causation. Although it is 3M’s burden to establish the relevance and reliability of their expert’s opinions, it is ultimately the Plaintiffs’ burden at trial to prove the causal connection between their alleged injuries and the Defendants’ alleged actions.
Here, 3M sought to introduce evidence undermining the Plaintiffs’ causation evidence by showing that there were other possible causes of the Plaintiffs’ injuries. Thus, the Plaintiffs’ argument that Reitman cannot determine “to what extent, if any, a participant in the global supply and use network for PFAS released a particular substance into the environment at issue” entirely missed the mark—the fact that Reitman is testifying she cannot make this determination is the whole point of introducing her testimony.
3M intended to rely on this testimony to argue that the Plaintiffs cannot prove its product is the cause of the alleged PFAS contamination in the Raccoon Creek watershed.
The Plaintiffs also sought to exclude Reitman’s opinions under Federal Rule of Evidence 403, arguing that her testimony about PFOS sources manufactured abroad will confuse the jury because such sources are irrelevant to their claims. Because Reitman’s testimony is relevant and will be helpful for the jury, the extraordinary remedy of exclusion under Rule 403 is unwarranted here.
Reliability
Plaintiffs asserted that Reitman admitted she does not have any data indicating PFOS sources besides 3M’s product are present in the Raccoon Creek watershed, yet she seeks to testify that other possible sources exist.
However, Reitman’s report explains the reasons why the identification of PFOS and PFAS “in an environmental sample is not sufficient to identify the original source of production.” Further, she explains why this is true regardless of the characteristics in a sample associated with electrochemical fluorination (ECF), a process that 3M is known to have utilized in processing PFOS.
And she provided testimony critical to 3M’s causation defense that the Plaintiffs have not provided an appropriate scientific basis for excluding other possible suppliers of the specific PFAS at issue due to the potential contributions of products associated with global supply chains.
The fact that Reitman’s opinions may undermine the causation evidence the Plaintiffs intend to present does not make them unreliable; instead, the Plaintiffs’ concern goes to the weight and credibility of the evidence. The Plaintiffs will have the opportunity to cross-examine Reitman at trial, where their concerns will be more appropriately addressed.
Held
The Court denied the Plaintiff and Intervenor-Plaintiff’s joint motion to exclude the opinions of Maureen Reitman.
Key Takeaway
In the Court’s view, the Plaintiffs did not truly challenge the reliability of Reitman’s opinions, but instead challenged the content of her opinions. But the Court’s inquiry at this stage “must be solely on principles and methodology, not on the conclusions that they generate.”
This is a trademark infringement and unfair competition action arising from the parties’ respective uses of the word “IMPOSSIBLE.” Impossible Foods is the widely known creator of the Impossible Burger and other plant-based meat products. Defendants/Counter-Plaintiffs Joel Runyon and Impossible X LLC (collectively, “Impossible LLC”) are an individual and his corporate entity who, over the past decade, have been involved in a variety of ventures—including search engine optimization, social media influencing, and fitness and dieting advice—all loosely affiliated with the word Impossible.
Impossible Foods filed two motions in limine to exclude the testimony of Dr. Jennifer Vanderhart and Dr. Robert Palmatier, while Impossible LLC sought to exclude portions of John Plumpe’s rebuttal testimony.
Economics Expert Witness
Dr. Jennifer Vanderhart is an economist and the managing director of a consulting firm providing services in connection with litigation, regulatory proceedings, and valuation analyses. She holds a Ph.D. in economics from Texas A&M University, where she previously taught in the Department of Economics and the Department of Management in industrial organization, public economics, and econometrics.
Dr. Robert W. Palmatier is a Professor of Marketing at the University of Washington’s Foster School of Business, where he has taught since 2007. He holds a Ph.D. in marketing from the University of Missouri and has held a variety of academic and industrial positions, with a focus on marketing strategy, consumer loyalty and decisionmaking., and methodological approaches for analyzing marketing data.
John G. Plumpe is the managing director of an economic consulting firm and holds a Master of Science in Mechanical Engineering from the University of Illinois and an M.B.A. from the University of Chicago Booth School of Business. Plumpe’s practice focuses on the analysis of damages, monetary relief, and valuation issues in intellectual property litigation.
Vanderhart is Impossible LLC’s damages expert and has prepared a report in which she opined that Impossible LLC is entitled to corrective advertising damages for Impossible Foods’ use of its IMPOSSIBLE-formative marks in connection with its swag and cookbook.
In her report, Vanderhart opined that corrective advertising damages may be calculated by multiplying Impossible Foods’ swag and cookbook-related expenses by three to five, based on Palmatier’s opinion that “Impossible LLC would likely have to spend 3 to 5 times as much to correct false or unwanted brand associations as was originally spent by Impossible Foods to create these associations.”
During the relevant time period, she calculated that “Impossible Foods has spent an estimated $623,280 in ‘swag’-related expenses” and “has spent an estimated $194,722 in cookbook-related expenses,” opining that “total corrective advertising damages are in the range of $2,454,006 to $4,090,010.”
Impossible Foods filed a motion to exclude Vanderhart’s opinions on three grounds. To begin with, Impossible Foods argued that she failed to assess any actual harm to the value of Impossible LLC’s asserted marks and has “made no attempt to calculate lost sales caused by the alleged infringement.” Second, Impossible Foods argued that she did not properly measure advertising costs because her calculations are based on production costs rather than advertising expenditures and include the cost of producing items that are not accused of infringing Impossible LLC’s marks. Finally, Impossible Foods argued that Vanderhart improperly relied on Palmatier’s three-to-five multiplier, which itself is “derived from a single, irrelevant study.”
Analysis
The Court agreed with Impossible Foods that Vanderhart neglects to quantify the harm to Impossible LLC’s asserted trademarks by Impossible Foods’ alleged infringement or to even estimate their value in the first instance. However, this does not require that her testimony be excluded at theDaubertstage, where the focus is on her qualifications and the reliability of her methodology.
Impossible Foods also argued that Vanderhart’s testimony is unreliable because her calculations include expenses by Impossible Foods that are unrelated to advertising expenditures for allegedly infringing products.
The Court explained that the touchstone of corrective advertising damages is to restore the harm to the value of the asserted trademark which includes, among other things, marketing and advertising costs.
As to Impossible Foods’ swag-related costs, Vanderhart was not required to separate marketing and advertising expenses from production costs because she explained that the swag items were themselves the advertising. Because the swag items were not offered for sale and were produced solely for promotional purposes, it would be reasonable to infer that the items themselves were the advertisements. That said, because Impossible LLC has not accused all swag items (e.g., water bottles, stickers, etc.) of infringement—and does not and cannot contend that the asserted trademarks even include those items—the Court agreed with Impossible Foods that her calculations are overinclusive.
While the Court will not exclude Vanderhart’s testimony in this respect, Impossible Foods will be permitted to impeach the correctness of her valuations through cross-examination and other evidence.
As to Impossible Foods’ cookbook-related costs, Vanderhart’s testimony is excluded, since she relies exclusively on the cost of producing the cookbooks and does not include any expenses at all for marketing and advertising.
Robert Palmatier
Impossible Foods sought to only preclude Palmatier from testifying that corrective advertising damages may be calculated by applying a three-to-five multiplier to Impossible Foods’ marketing expenditures on the ground that this opinion is based “on a single academic paper,” namely, “a decades old study involving college students and radio advertising for mouthwash finding that three corrective impressions were required to correct one misimpression.”
According to Impossible Foods, there is just “too great an analytical gap” between Palmatier’s multiplier opinion and the data upon which he relies.
The Court did not read Palmatier’s multiplier opinion as narrowly as Impossible Foods did. Far from relying on a single outdated study, Palmatier explained why any harms to Impossible LLC’s brand equity caused by Impossible Foods’ alleged infringement would be “magnified” due to the “similarity of wordmarks due to other points of similarity,” “high level of marketing spend,” and “increased use of broadly-focused marketing.”
Palmatier explained that linkages to unwanted and negative associations are more impactful and difficult to eliminate than positive associations and that these negative associations are particularly strong “due to the synergistic interaction” of multiple “magnifying factors” identifying industry practices of responding to such associations with targeted rehabilitative advertising.
In articulating his reasoning, Palmatier relied on a variety of case studies and analyses and particularly pointed out how his multiplier opinion is based on the application of fundamental, well-accepted marketing principles. The Court accordingly agreed with Impossible LLC that Palmatier’s multiplier opinion is sufficiently supported to survive Impossible Foods’ Daubert challenge.
John Plumpe
Plumpe is Impossible Foods’ damages expert and has prepared a rebuttal report in which he argued that Vanderhart’s calculations are not a reliable estimate of corrective advertising damages.
Plumpe asserted that Vanderhart’s damages calculation is speculative, unsupported, and would result in a windfall to Impossible LLC due to her failure to analyze the value of Impossible LLC’s marks, failure to account for Impossible LLC’s low revenues and marketing expenses, and “the lack of evidence of actual financial harm to [Impossible LLC] in the range contemplated by the prospective correcting advertising damages award.”
Impossible LLC challenged Plumpe’s testimony on two primary grounds. First, Impossible LLC argued that several of his opinions (specifically, as to consumer confusion, corrective advertising, and search rankings) fell outside of the scope of his expertise as an economist and professional damages expert and are either irrelevant or unhelpful to the jury. Second, Impossible LLC argued that portions of Plumpe’s expert report included improper legal opinions that are not proper subjects of expert testimony.
Despite Impossible LLC’s attempts to cast Plumpe’s testimony as venturing outside of his area of expertise (e.g., by improperly opining on “causation” and other “noneconomic” issues), the Court found that his opinions are properly limited to evaluating whether the damages claimed by Impossible LLC can be economically attributed to Impossible Foods’ alleged infringement. Specifically, Plumpe’s rebuttal report sets forth his economic reasoning and analysis for his conclusion that Vanderhart’s opinions failed to capture injuries plausibly attributable to Impossible Foods’ swag and cookbook by failing to account for external market forces.
Regarding Impossible LLC’s argument that Plumpe improperly offered legal conclusions, the Court disagreed. It is permissible for Plumpe to explain the framework and underlying principles to orient the jury.
Held
The Court granted in part and denied in part Impossible Foods’ motion in limine to exclude the testimony of Dr. Jennifer Vanderhart.
The Court denied Impossible Foods’ motion in limine to exclude the testimony of Dr. Robert Palmatier.
The Court denied Impossible LLC’s motion in limine to exclude the testimony of John Plumpe.
Key Takeaway
While it is true that Impossible LLC will not be able to recover corrective advertising damages without showing harm to its allegedly infringed marks, the Court is not aware of any authority suggesting that a damages expert must provide all the evidence required to support a damages award for their testimony to be admissible.
Nor is the Court persuaded by Impossible Foods’ suggestion that Vanderhart’s testimony is “unreliable and unhelpful” absent a valuation of Impossible LLC’s asserted marks, since the jury is permitted to consider her testimony together with any other evidence presented at trial in considering the ultimate issue whether Impossible LLC’s marks have been harmed by Impossible Foods’ alleged infringement.
This case arises from Pierce County’s failure to protect Nathaniel Woods from an assault by another inmate at the Pierce County Jail.
The jail acknowledged that “individuals who commit sex offenses against children get assaulted in jail.” The Plaintiff asserted that Pierce County was negligent because it failed to place Woods in protective custody, even though he was a convicted sex offender.
Defendants filed a motion to strike the declaration of Plaintiff’s expert, Robert Ayers.
Corrections Expert Witness
Robert L. Ayers, Jr. has over 50 years of experience in the corrections environment. He was employed as a correctional officer for San Quentin California State Prison for 18 years, working a variety of assignments through the rank of Lieutenant.
For eight additional years, Ayers worked in a women’s prison and in departmental headquarters, where his responsibilities included budget and fiscal oversight. In 1994, Ayers was appointed as the Chief Deputy Warden at Pelican Bay State Prison. Ayers retired from California State service in 2000 but continued to be involved in administrative oversight of the California prison system. In 2005, Ayers was appointed Warden of the San Quentin prison. Ayers retired in 2008 but has remained active as a corrections consultant in a variety of forums.
Ayers opined that “it is common knowledge throughout law enforcement and corrections that sex offenders, especially those involving children, are universally subjected to predation by other inmates.” It also is commonly known that inmates demand to see other inmates’ court documents “to identify inmates who, because of their charges, are either unwelcome or will be assaulted.” Ayers also took issue with the jail’s failure to offer protective custody.
Defendants did not challenge Ayers’ qualifications to offer opinions on the standard of care nor do they assert Ayers has failed to reliably apply any principles or methods to the fact of the case. They asserted only that Ayers was offering impermissible legal conclusions.
In general, expert testimony is required when an essential element in the case is best established by an opinion beyond the expertise of a lay person. Here, the Court found that Ayers offered appropriate standard of care opinions and that such opinions did not amount to impermissible legal conclusions.
Held
The Court denied Defendants’ motion to strike the testimony of Robert L. Ayers, Jr.
Key Takeaway
The question of whether prison officials acted reasonably to secure the safety of an inmate is not one within the realm of the everyday experiences of a lay person.
Thus, expert testimony or supporting evidence is necessary to establish whether reasonable care was exercised.
In this defamation action, Plaintiffs Techtronic Industries Company Limited and Techtronic Industries Factory Outlets, Inc. (“Plaintiffs” or “TTI”) sued Defendant Victor Bonilla (“Defendant” or “Bonilla”) for statements made about TTI and its business practices by Bonilla in two reports he authored and published on his website Jehoshaphat Research in February and June 2023.
Bonilla filed a motion to exclude TTI’s expert Jeffrey W. Kopa, CFA under Fed. R. Evid. 702, arguing that Kopa’s qualifications and opinions failed to meet the standards required by Daubert and the Federal Rules of Evidence.
Valuation Expert Witness
Jeffrey William Kopa, CFA is a partner and managing director at AlixPartners in the Investigations, Disputes and Risk practice. He holds a Bachelor of Business Administration degree with an emphasis on finance and accounting from the University of Michigan and a Master of Business Administration degree and Master of Science degree in Finance from Indiana University School of Business. Kopa has developed an extensive litigation-consulting, financial, valuation, and investing practice over his past 20 years of professional experience.
He has analyzed damages through his litigation-consultant services in a variety of areas including antitrust, audit malpractice, breach of contract, false advertising, intellectual property litigation, purchase price and transaction disputes, shareholder disputes, fraudulent conveyance, and preference actions. Kopa has experience examining damages and lost profits caused by alleged wrongful acts and has been qualified as an expert to present damages opinions and statistical analyses in state, federal, and bankruptcy courts. In addition to performing damages analyses, he has performed accounting investigations, assessed credit worthiness, advised creditors and board members, participated in capital raising efforts and worked to restructure and refinance companies.
In his initial report, Kopa offered the following opinions:
The market for the common stock of TTI was open, developed, and efficient before and around the time of the Jehoshaphat Reports (“JR”) were publicly issued based on the results of standard market efficiency tests.
The share price of TTI’s common stock declined in February 23, 2023 and June 6, 2023, following the First Report and Second Report, respectively, and the negative abnormal return following the First Report’s publication was highly statistically significant.
Defendant profited from trading activity associated with the JR Reports.
TTI incurred approximately US$152 thousand in incremental professional fees to address the JR Reports.
TTI’s incremental compensation plans have a total attributable value to the JR Reports of approximately US$23.6 million.
Defendant challenged Kopa’s second, fourth, and fifth opinions referenced above. Defendant noted that, with respect to the third opinion, Bonilla’s profits are not an item of damages that Plaintiffs may claim, but he did not otherwise challenge Kopa’s analysis or conclusion that Bonilla profited from trading activity associated with the reports.
Qualifications
Bonilla contended that Kopa offered no testimony on the salient issues that would be helpful to the jury, such as identifying which damages resulted from the alleged false and defamatory statements and whether the LTIP executive compensation program was necessary. This argument appeared to go to the last prong of the Daubert analysis and not to Kopa’s qualifications to offer a damages opinion in this case. As courts in this Circuit have noted, “the qualification standard for expert testimony is ‘not stringent’ and ‘so long as the expert is minimally qualified, objections to the level of the expert’s expertise go to credibility and weight, not admissibility.’”
Given Kopa’s education, experience, and credentials, the Court found that Kopa is at least minimally qualified to offer damages opinions in this case.
Methodology
In formulating his opinions, Kopa utilized the methodology of an “event study” to analyze the impact of Bonilla’s reports on TTI’s stock. An event study is a statistical regression analysis that examines the effect of an event—such as the release of information—on a dependent variable, such as a corporation’s stock price. Kopa testified that he combined a quantitative analysis of the change in TTI’s stock with a qualitative loss causation analysis of TTI-focused news.
Bonilla argued that although Kopa purports to conduct an event study to show the connection between the First and Second Reports and the stock drop, he did not use any methodology to determine if the stock drops were due to the alleged false and defamatory statements, as opposed to being due to true statements or opinions in the reports.
As event studies are a “common method” of establishing loss causation, the Court found Kopa’s methodology to be generally accepted in the scientific community and therefore reliable.
Kopa also used the net present value technique, a commonly accepted methodology, to calculate TTI’s damages. Bonilla argued that Kopa’s analysis of the legal and accounting bills did not use an accepted methodology at all; rather, he just added them up. Bonilla complained that Kopa did not analyze whether the legal and accounting work performed was necessary.
For the same reason, he challenged Kopa’s testimony about the executive compensation issue contending Kopa merely asserts a but-for test that is unscientific and unreliable. Whether or not the services were needed does not appear to be an opinion that Kopa is offering.
Net present value analyses are an acceptable and common methodology used by financial experts. Basically, the Court found that Kopa’s causation assumption did not render his damages opinion inadmissible.
Helpfulness to the Jury
TTI contended that Kopa did not simply look at a stock market drop as Bonilla suggests. TTI represented that Kopa’s opinions are formed based upon a statistical causal analysis utilizing an event study. Bonilla’s arguments to the contrary in an effort to exclude the opinions go more to the weight the jury should give the opinions and not to their admissibility. Finally, Bonilla complained that some of the calculations are simple math calculations for which an expert is not needed. However, this is not a basis to exclude the expert.
Held
The Court denied Defendant Bonilla’s Daubert motion with respect to Jeffrey W. Kopa’s damages opinions.
Key Takeaway
Relevant expert testimony logically advances a material aspect of the proposing party’s case and fits the disputed facts.
While performing simple mathematical calculations or conversion of money from Hong Kong to U.S. dollars may not necessarily require expert testimony, to the extent that Kopa is permitted to testify, his performance of these calculations and conversions will be helpful to the jury.
Plaintiff Azzine Kali alleged that while driving for Lyft on February 17, 2023, he was seriously injured in an automobile accident caused by the negligence of Defendant Erasmo Lopez, who at the time was operating his vehicle on behalf of Defendant J Bermudez Trucking, Inc.
Plaintiff produced the report of vocational rehabilitation expert John Dieckman, an assistant vocational services director at Proto-Worx, Inc. Defendants filed a motion to exclude Dieckman’s testimony.
Vocational Rehabilitation Expert Witness
John W. Dieckman, MS, CRC, CDMC has been a licensed vocationalist since 1983. He has been qualified as an expert vocationalist numerous times in both state and federal courts.
Defendants asserted that Dieckman’s opinion on Plaintiff’s future lost earnings should be excluded because it is speculative, subjective and unsupported by any published or unpublished sources.
Highlighting that Plaintiff cited no authority for his contention that vocational experts “routinely” employ BLS data, Defendants specify that in any event the issue here is that Dieckman did not apply a reliable methodology when he replaced Plaintiff’s actual job earnings as a rideshare driver with the government figure even though at his deposition he was unable to identify any literature or studies supporting this decision and admitted that “[t]here’s no particular way to confirm” that the selected Bureau of Labor Statistics (BLS) classification applies to Plaintiff.
The Court agreed with Defendants that Dieckman’s methodology in reaching his opinion regarding Plaintiff’s future lost wages was unreliable. Although Plaintiff’s earnings for his years as a rideshare driver for which Dieckman had complete information at the time of his report (2020 to 2023) ranged within a reasonably narrow band of a few thousand dollars each year, Dieckman jettisoned this data based on actual income in favor of the much higher (approximately 73 percent more than Plaintiff’s best year) BLS figure, despite the fact that he admittedly lacked key information regarding the applicability of the relevant BLS occupational classification, including what constituted “full-time” under it, the average number of days and hours worked, and whether the classification even covered rideshare drivers like Plaintiff.
B. “Fit”
Defendants asserted that Dieckman’s opinion that Plaintiff is limited to 50 percent of a normal workload (and thus 50 percent of his earning capacity) did not fit the facts of this case because his post-injury 2023 and 2024 tax records showed no diminution in his income.
The Court again agreed with Defendants. Dieckman’s findings are predicated upon the notion that Plaintiff will permanently remain able to work only half of a full workload, with an attendant 50 percent cut in earnings. However, after being injured in February 2023, Plaintiff went on to earn more as a rideshare driver that year than he did the year before and only $1,284 less than his all-time high from the year before that. Indeed, in 2024 (the most recent year for which there appears to be earning information), Plaintiff earned approximately 69 percent more than in 2022, the last full year before his injury. Yet Plaintiff asked the Court to permit Dieckman to testify that Plaintiff will never again reach more than 50 percent of his former earning capacity.
Held
The Court granted Defendants’ motion to exclude the testimony of Plaintiff’s expert, John Dieckman.
Key Takeaway
It is doubtful that Dieckman’s hypothesized final calculation is “testable” as to accuracy given that his choice of the BLS figure reflects a lack of “the existence and maintenance of standards controlling the technique’s operation.”
Case Details:
Case Caption:
Kali V. Lopez Et Al
Docket Number:
2:24cv4197
Court Name:
United States District Court, Pennsylvania Eastern
This action arises out of a franchise relationship between the Plaintiffs Glenn Misiph and AASK Services, LLC, (together “Plaintiffs”), and the Franchisor Defendants, 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick (together “Defendants”).
Plaintiffs alleged that Defendants engaged in fraudulent misrepresentation through marketing materials and Franchise Disclosure Documents (“FDD”).
To support their claims, Plaintiffs retained Elisabeth O. da Silva, a forensic accountant and damages expert, to calculate, among other things, their damages claims.
In her report, Da Silva addressed Plaintiffs’ lost opportunity costs, actual and expected profits, and efforts to mitigate damages. The report also evaluated the accuracy of the financial figures disclosed by 360° Painting in its 2017 FDD.
In response, Defendants engaged Edward J. Herbst, a CPA and CFF with professional experience in both the private sector and federal law enforcement.
Herbst provided a rebuttal to da Silva’s report assessing her premises, methodology and approach, and rationale. His report concluded that da Silva’s analysis relied on inaccurate assumptions and failed to account for the specific financial and operational realities of the franchise.
Plaintiffs Glenn Misiph and AASK Services, LLC, and Defendants 360° Painting, LLC, Premium Service Brands, LLC, and Paul Flick filed cross motions in limine to exclude expert testimony.
Accounting Expert Witnesses
Elisabeth O’Toole da Silva is a certified public accountant (“CPA”) and is certified in financial forensics (“CFF”) with over 25 years of experience in forensic accounting, auditing, and economic damage calculations.
Her professional history includes investigating complex financial disclosures and serving as an expert witness for private litigants and the Securities and Exchange Commission. Da Silva also served as a neutral arbitrator in accounting and contract disputes.
Edward J. Herbst previously served as a managing director in the forensics practice of a private accounting firm and held a senior executive service position within the Federal Bureau of Investigation. His experience includes calculating economic losses in financial crime investigations and providing testimony in federal court regarding fraud and money laundering schemes.
Defendants sought to exclude all of da Silva’s testimony due to: (1) lack of “fit” between da Silva’s calculations and Plaintiffs’ claimed damages; (2) unreliable methodology; and (3) improper legal or narrative conclusions.
1. The “Fit” Of Damages
Defendants argued that da Silva’s “but-for” damages testimony did not “fit” the case because Plaintiffs sought rescission damages, and da Silva’s report calculated expectation damages (lost profits).
In her report, da Silva provided two damages methods. The first method provided a damages calculation that would restore Plaintiffs to the economic position they would have occupied absent Defendants’ representations, the so-called unwind damages theory. The second method accounts for Plaintiffs’ investment in the franchise and provided a damages calculation that would put Plaintiffs in the position they would have been in had 360° Painting fulfilled its obligations, the so-called but-for damages theory.
Under da Silva’s but-for damages theory, she calculated the difference between Plaintiffs’ actual profit and losses and Defendants’ financial projections for gross revenue and expenses. Testimony regarding this theory is integral to proving Plaintiffs’ damages on their fraud and breach of contract claims.
Under Massachusetts law, Plaintiffs who have proved negligent misrepresentation are entitled to recover damages including the pecuniary loss caused by their reliance on the false information.
Defendants argued that da Silva included no evidence regarding the worth of the franchise when Misiph purchased it.
However, even if Defendants believe da Silva’s testimony is insufficient to prove one specific metric of loss, that does not invalidate her entire testimony, particularly where that testimony is relevant to other categories of damages. Because Plaintiffs bear the burden of proving each of their requested damages, da Silva’s calculations are relevant to their various theories of recovery.
2. Methodology
Defendants argued that da Silva’s testimony should be excluded because her methodology does not include actual performance data and the data on which she relied is too narrow in scope.
Specifically, Defendants criticized: her reliance on an assumption that had Misiph continued as a franchisee, he would have operated his franchise for 10 years; her failure to clarify or quantify how franchisor support figured in her calculation; her failure to account for variables like COVID-19 or market conditions; and her failure to use internal tracking metrics in her calculations, among other criticisms. This Court found that these challenges go to the weight of the evidence, not its admissibility.
Here, da Silva clearly described the economic damages model she used, stating that she used a “widely accepted damages methodology.” Defendants have provided no evidence to the contrary. Indeed, Plaintiffs represent that at his deposition, Herbst did not take any issue with da Silva’s methodology. Further, the ten-year term used in the report is not unsupported speculation; rather, it is rooted in the initial term of the Franchise Agreement itself. The other variables da Silva used are clearly described and supported by a detailed economic model within her report.
3. Legal Or Narrative Conclusions
Finally, Defendants argued that da Silva’s opinions on the consistency of the FDD and Misiph’s mitigation efforts are improper narrative or legal argument. Specifically, Defendants contended that: (1) da Silva’s opinion that the FDD provided to Misiph is inconsistent with the financial information supplied during discovery is jury argument; and (2) her use of the word “materially” and her opinions regarding Misiph’s duty to mitigate damages constituted legal argument.
Here, da Silva’s analysis involves a mathematical reconciliation of disparate financial data sets. This Court found that an accounting of how these figures are derived and reconciled provides a technical framework that exceeds the common knowledge of a lay juror. Da Silva’s opinion would help the trier of fact to understand the evidence and/or to determine a fact in issue. It is therefore admissible.
In her testimony, da Silva did not purport to render an opinion that Defendants knowingly made a false representation of material fact to induce Misiph to enter the franchise agreement. Rather, she sought to opine that her calculations differed significantly from the figures stated in the FDD.
This Court did, however, find that da Silva’s opinion that “Misiph has a duty to mitigate damages and did, in fact, take reasonable, non-burdensome steps to avoid losses” must be excluded. While accountants may calculate any offset of earned income against claimed losses, they are not qualified to offer a legal conclusion regarding what the law requires of a Plaintiff’s mitigation efforts. Similarly, an expert accountant may not opine on the reasonableness of a Plaintiff’s mitigation efforts as this is a quintessential jury question. Rather, these facts may be offered to the jury, but not by da Silva in the form of expert opinion. The jury may then reach its own conclusion.
Edward J. Herbst
Plaintiffs sought to exclude Herbst’s testimony, alleging that he is unqualified to offer damages opinions, his methodology is unreliable, and his analysis rests on inaccurate factual data.
1. Qualifications
Plaintiffs argued that Herbst is unqualified because he has never testified as an expert and has admitted to lacking the competence to perform an independent damages model or business valuation.
As described above, Herbst, a CPA and CFF, has extensive experience in financial investigations. His lack of history as a testifying expert or prior experience in franchise disputes and business valuation does not disqualify him from serving as a rebuttal expert. An expert’s training in a general field, in this case forensic accounting, is often sufficient to permit testimony on specialized sub-topics within that field.
2. Methodology
Plaintiffs further challenged Herbst’s methodology, characterizing it as a subjective “armchair” critique that lacked an independent analytical framework.
Along with analyzing da Silva’s report and its accompanying premises, methodology, and findings, Herbst’s methodology consisted of reviewing documents such as the complaint, Defendants’ amended counterclaims, portions of deposition transcripts, and copies of Misiph’s 2019-2023 tax returns. Then, Herbst applied his forensic accounting background to identify what he characterized as incorrect or unstandardized variables in da Silva’s calculations.
His report indicated that he was looking for foundational support for da Silva’s opinion within the bounds of accounting principles. The fact that he did not perform independent calculations to show exactly how a change in variables would move the final damages number may diminish the weight of his testimony, but it does not make his methodology inherently unreliable. Accordingly, the Court held that Herbst’s testimony is not excludable on this basis.
3. Data Accuracy
Finally, Plaintiffs argued that Herbst’s analysis is based on incomplete information. Specifically, Plaintiffs alleged that Herbst reviewed only portions of Misiph’s and Flick’s depositions, which led Herbst to make incorrect assumptions and effected his analysis.
In a deposition, Herbst acknowledged certain errors, such as his misclassification of commissions which were actually fixed franchise fees. These admissions and other alleged inaccuracies go to the weight and credibility of his testimony.
A jury is capable of determining whether Herbst’s critique remains valid despite these errors or if his misunderstanding of the underlying data renders his conclusions unpersuasive.
Held
The Court granted in part and denied in part Defendants’ motion to exclude all of Elisabeth O. da Silva’s testimony.
The Court denied Plaintiffs’ motion to exclude Edward Herbst’s testimony.
Key Takeaway
The reliability of an expert’s methodology “is a flexible inquiry, allowing for consideration of factors like whether the expert’s methodology has been objectively tested; whether it has been subjected to peer review and publication; the technique’s known or potential error rate; and whether the expert’s technique has been generally accepted within the relevant industry.”
An expert’s failure to include specific variables in a complex financial model does not render the testimony inadmissible so long as the underlying assumptions are those that experts make with some frequency.
Plaintiff Ashley Adams, the widow of Lonnie Adams filed suit against E-Z Mart, a gas station and convenience store, after Mr. Adams died while working in an underground tank sump on E-Z Mart’s property.
Defendant and Third-Party Plaintiff, Yates Group, Inc. f/k/a E-Z Mart Stores, Inc. filed a Rule 702 motion to limit Dr. Ian McIntyre‘s testimony pursuant to Daubert.
Toxicology Expert Witness
Ian Matthew McIntyre is a forensic toxicologist. His professional experience encompasses over 34 years of work in the specific scientific field of forensic toxicology, with particular emphasis on postmortem analysis.
E-Z Mart argued that McIntyre’s opinion that gasoline may leach methamphetamine from tissue, resulting in higher concentrations being detected in the bloodstream, is ipse dixit, not supported by scientific literature, and too large an inferential leap to be admissible.
In the present case, the relevance of McIntyre’s opinion is undisputed. The only question the Court must resolve is whether it is sufficiently reliable pursuant to 702 and Daubert. The Court found that it is. McIntyre elaborated on how he reached his conclusion in his deposition, and the Court finds that his stated rationale, viewed in light of his education and experience, made the challenged opinion reliable under Daubert and 702. Additionally, McIntyre cited to published literature he referenced in forming this opinion. The simple fact that the Defendant’s experts disagreed with McIntyre’s findings did not render them inadmissible.
Held
The Court denied Defendant and Third Party Plaintiff’s motion to limit Dr. Ian McIntyre’s testimony.
Key Takeaway
Establishing reliability does not require showing that the expert’s testimony is “indisputably correct.”
To the extent McIntyre’s opinions are insufficiently explained or contradicted by other studies or experts, the Plaintiff should raise these challenges through cross examination and the testimony of their own experts.
