Plaintiff Kai Evers commenced this diversity action against Defendants Bella Logistics, Inc. and Bradley Hoffman (collectively, “Defendants”) alleging that Hoffman, while acting in the scope of his employment for Bella Logistics, Inc., negligently operated a commercial tractor-trailer and caused the parties’ motor vehicles to collide.
Plaintiff filed a motion in limine seeking to preclude Defendants from calling Kevin K. Toosi, M.D., Ph.D. as an expert witness.
Bioengineering Expert Witness
Kevin Khashayar Toosi, M.D., Ph.D. is a biomechanical forensic engineer and consultant, with a bachelor’s degree in engineering and master’s and doctoral degrees in bioengineering from the University of Pittsburgh.
Toosi also has post-doctoral fellowships in physical medicine and rehabilitation as well as urology from the University of Pittsburgh. Toosi received his medical degree in 1994 from Mashhad University of Medical Sciences in Iran and “went on to practice medicine as a Primary Care Physician for more than five years” prior to attending the University of Pittsburgh.
Toosi has more than thirty years of experience in the areas of clinical medicine, injury biomechanics and injury causation.
Plaintiff sought to preclude Toosi from testifying as to whether the accident at issue “caused or contributed” to Plaintiff’s injuries because “(1) he lacked the qualifications to render the medical causation opinions contained in his report, and (2) his opinions are not based on sufficient facts or data and therefore fail the reliability requirements of Federal Rule of Evidence 702.”
Toosi’s Qualifications to Opine about Medical Causation
The Court found that Toosi is qualified to testify about medical causation because he does indeed have medical training. Moreover, there is no basis to, as Plaintiff suggests, order the blanket preclusion of Toosi’s testimony.
Plaintiff also overlooked the multiple New York state court decisions finding Toosi qualified to opine about medical causation.
Accordingly, as the rejection of expert testimony is the exception rather than the rule, “vigorous cross-examination” and “the presentation of contrary evidence” are the appropriate remedies for Plaintiff’s objections to Toosi’s qualifications, rather than preclusion.
The Reliability of Toosi’s Opinion
Plaintiff argued that “Toosi lacked critical factual information when forming his conclusions” because “he did not inspect either vehicle, visit the accident scene, review repair records, or examine photographs of the damaged side of Defendants’ vehicle.”
The fact that Toosi did not visit the accident location did not render his opinion unreliable. At bottom, Plaintiff’s contentions go to the weight of the evidence and are a subject for cross-examination, not admissibility. The Court held that Toosi’s opinion therefore rests on reliable principles and methods and reliable application of those principles and methods for purposes of his expert testimony.
Toosi’s Opinion Is Relevant to the Case and Will Assist the Trier of Fact
Toosi’s opinion is certainly relevant to the issues in this case. His specialized expertise in biomechanics, an issue that is complex and technical, is one that will also assist the jury in understanding causation of injury. The parties may disagree as to the conclusions reached by Toosi, “but ultimately the jury will be the judge of whether Plaintiff’s alleged injuries were caused by the accident, and it is the jury’s responsibility to assess what weight to give the proffered testimony as it attempts to answer this question.”
Held
The Court denied Plaintiff’s motion in limine to preclude Defendants from calling Kevin K. Toosi, M.D., Ph.D. as an expert witness.
Key Takeaway
Expert engineering testimony may rest on scientific foundations, the examination of which invokes the Daubert factors directly, but may also rest on the personal knowledge or experience of the engineer.
This case arises from the fatal shooting of Caleb Slay by federal Drug Enforcement Administration (“DEA”) Agent Anthony Gasperoni. On November 2, 2020, Slay encountered DEA Agent Gasperoni and DEA Agent John Stuart. During the ensuing interaction, DEA Agent Gasperoni discharged his firearm, fatally shooting Slay. Slay’s mother, Tina Richardson, filed this case asserting numerous claims under federal and state law against the United States and DEA Agent Gasperoni for wrongful death. The parties timely designated expert witnesses in this case and now move to exclude the evidence and testimony of the other party’s expert.
United States filed a motion to exclude the testimony of Robert W. Johnson while Plaintiff Richardson filed a motion to exclude the expert testimony of Craig Allen.
Economics Expert Witness
Robert Walton Johnson has more than 30 years of experience as a court-qualified economic expert and over 40 years of experience in financial and economic analysis. He has been qualified as an economic expert in both state and federal courts across more than 30 states. Johnson holds a Master of Business Administration from Stanford University and a Bachelor of Business Administration in Economics from Baruch College.
He has directed and provided testimony on economic analyses for both plaintiff and defense clients in matters involving personal injury, wrongful death, wrongful termination, lost business profits, and antitrust cases. His professional background also includes Wall Street and corporate finance experience, including mergers and acquisitions, as well as roles as a securities analyst and portfolio manager.
Craig Allen is currently employed as the Director of Training and Senior Instructor with the Force Science Institute. He been a Police Officer for 30 years.
He has held positions within the Hillsboro Police Department ranging from Patrol Officer, Field Training Officer, SWAT, Undercover Narcotics Investigator, Detective, Patrol Sergeant, Training Sergeant, Lieutenant of Internal Affairs, Training Lieutenant, and Patrol Lieutenant.
I.Defendant United States’ Motion to Exclude Expert Testimony of Robert Johnson
Johnson, a forensic economist, opined that the value of decedent Caleb Slay’s life is between $5,500,000 and $16,900,000, based on a “willingness-to-pay” methodology.
As Johnson explained in his expert report, the willingness-to-pay methodology values human life based on “how much people are willing to pay (or willing to give up in dollars) to avoid an increase in the risk of death,” rather than taking into account any information specific to the decedent (such as physical health, history of mental illness, drug use, familial relationships, education, etc.).
The willingness-to-pay model provided a value range for some general, average human life, rather than a value specific to a particular decedent. In addition to finding the willingness-to-pay methodology generally unreliable, the Court noted that Johnson’s report in particular has issues which cause his expert testimony to fall short of theDaubert standard.
Johnson relied on two studies that are both now over 20 years old. Johnson did not explain why these studies were chosen, whether newer studies exist, or whether other studies exist with further variations in estimates of the value of human life.
As a result, the Court found that Johnson’s expert testimony did not meet the standard under Rule 702 as amended and is inadmissible.
II.Plaintiff Richardson’s Motion to Exclude Expert Testimony of Craig Allen
A. “Force Science” Opinions
Plaintiff Richardson sought to exclude Allen’s opinions that rely on “force science,” arguing that “force science” is not a generally accepted theory in the relevant scientific community and Allen is not qualified as an expert in a recognized scientific field such as cognitive psychology or behavioral science. Allen offered an opinion regarding the perception or reaction time of an officer responding to a threat, without opining about cognitive processes.
Upon review, Allen’s opinion regarding reaction time did not appear to cross the line into cognitive psychology, physiology, behavioral science, or any other purely scientific field. Moreover, Allen’s opinion did not merely rely on his experiences at the Force Science Institute but also on his 30 years of experience as a police officer, over 25 formal certifications, relevant organization memberships, and review of publications on the issue of police perception and reaction times. Thus, it appeared to the Court that Allen’s area of expertise included police reaction times based on his experience as a police officer, his training, and his research.
Plaintiff alternatively argued that Allen’s opinions relating to “force science” should be excluded under Rule 403 as unduly prejudicial. Plaintiff argued that the jury “may give force science too much weight over whether the DEA Agents Gasperoni and Stuart could have exercised other options, such as obtaining an arrest warrant based on probable cause.” First, the Court noted that this argument has little bearing on the specific opinion identified in the briefing—that is, Allen’s opinion that officer reaction time is longer when the officer must engage in decision-making. Second, the quoted language above is the entirety of Plaintiff’s argument that the Court should exclude this evidence under Rule 403. The Court is not persuaded that the value of the evidence is outweighed by any undue prejudice.
B. Eyewitness Testimony Opinion
Second, Plaintiff Richardson sought to exclude Allen’s opinions on eyewitness testimony, particularly his opinion elicited by Plaintiff Counsel in his deposition that “police officers involved in shootings can have specific, more precise memories of how the event unfurls as opposed to a lay witness watching the incident.” Plaintiff argued that Allen has no supporting education, credentials, or background in the field of memory and eyewitness testimony.
Here, Allen did not include any “eyewitness testimony” opinions in his report, and defense counsel states that they do not anticipate eliciting any such opinions from him at trial. Instead, the only reason Allen has opined on eyewitness testimony during the course of this litigation is because Plaintiff Counsel asked Allen in his deposition, “do you have some reason to believe that police officers who are active participants in a shooting incident would have better memories of the shooting incident than nonactive participants?” The Court is persuaded by Defendant United States’ argument that Allen should be able to respond to such questioning at trial, including providing his opinion, should Plaintiff Counsel again open that door.
As set forth above, the Court found Richardson’s motion to exclude eyewitness testimony opinion premature, as Allen has not included any such opinions in his report and defense counsel did not intend to elicit any such opinions on direct examination.
Held
The Court granted Defendant United States’ motion to exclude the expert testimony of Robert Johnson.
The Court denied Plaintiff Richardson’s motion to exclude the expert testimony of Craig Allen.
Key Takeaway
The Court joined the growing consensus among federal courts and concludes that the willingness-to-pay methodology generally is an unreliable way to measure the value of human life and did not satisfy the Daubert standard. Moreover, Johnson’s report in particular lacks sufficient explanation and support for his conclusions. The reasonable value of Slay’s life is within the purview and experience of the factfinder.
This case concerns alleged personal injuries suffered by Misty Adkins in a motor vehicle accident on August 22, 2023.
Adkins alleged that she was traveling southbound in Pike County, Kentucky, when Hacker pulled out in front of her, causing her to strike the rear of his vehicle. It is also alleged that Clemon Hacker was driving a truck on behalf of his employer, Gateway Tire Company, Inc., at the time of the accident and was acting within the scope of his employment.
Rick Lyon‘s report thoroughly outlines Adkins’ medical records on which he relies in crafting his expert report. The Defendants filed a motion to strike Lyon’s testimony and also sought to exclude any evidence or medical expenses related to Adkins’s alleged temporomandibular joint disorder (TMJ) injury, arguing that Lyon is not qualified to offer opinions relating to TMJ injuries because they are outside the scope of his expertise.
Orthopedic Surgery Expert Witness
John Richard Lyon (“Rick”), M.D., is a board-certified orthopedic surgeon and specializes in general orthopedics. He brings over 30 years of experience in orthopedics and sports medicine and has performed medical-legal evaluations for over 10 years.
Rule 26(a)(2) also mandates additional reporting requirements depending on the type of expert. Where the expert is “retained or specially employed to provide expert testimony,” as is the case with Lyon, the disclosure must include a written report containing facts or data considered by the witness in forming their opinion and exhibits that will be used to summarize or support them.
Because Lyon’s March 25, 2025 evidentiary deposition was tantamount to his taking the stand live at trial, Adkins’ introduction of this itemization at the evidentiary deposition without having previously disclosed it was improper. And to the extent it was intended to supplement Lyon’s original report, it was untimely.
Adkins argued that her untimely supplement was harmless. But this itemization document was a surprise to the Defendants, and since it was used to support Lyon’s trial deposition testimony which will be presented at trial, there is no genuine ability for that surprise to be cured. Moreover, her explanation for the failure to timely disclose this information was insufficient.
Accordingly, the Court granted Defendants’ motion to strike Lyon’s testimony, to the extent it concerns Adkins’ damages based on the untimely disclosure of her medical bills.
Motion in Limine to Exclude Evidence of Medical Expenses Relating to TMJ Injury
Lyon is not qualified to offer opinions relating to TMJ injuries because they are outside the scope of his expertise.
Adkins argued that Lyon is a board-certified orthopedic surgeon who has more than 30 years’ experience, and that he has treated “thousands of patients” during his career. Lyon often treats and diagnoses patients with conditions outside the scope of his specialty, makes referrals, and follows up with them about their overall health. He often performs IMEs as a retained medical expert, and in that role he is frequently asked to review medical records, perform examinations, author expert reports, and provide testimony outside the scope of his specialty.
Moreover, Lyon testified that, while he does not usually treat TMJ, he has treated patients with TMJ in the past, made the diagnosis, and referred them out to other doctors who specialize in handling the disorder.
Based on the foregoing, the Court found that Lyon is qualified to offer expert testimony on TMJ based on his knowledge, skill, and experience.
Held
The Court granted the Defendants’ motion to strike the testimony of Dr. John Richard Lyon, to the extent it concerns Adkins’ damages based on the untimely disclosure of her medical bills.
The Court denied the Defendants’ motion to exclude the testimony of John Richard Lyon relating to Adkins’ alleged TMJ injury.
Key Takeaway
It is undisputed that TMJ injuries are outside the scope of Lyon’s practice. However, a witness can be qualified as an expert based on their “knowledge, skill, experience, training, or education.”
Thus, where the proponent meets their burden, the Court has found that physicians or other medical professionals are qualified to offer expert testimony on subjects outside the scope of their practice based on their “knowledge, skill, experience, training, or education.”
Kelly Usanovic brought this class action suit for injunctive relief and an award of statutory damages in response to real estate brokerage firm EXP’s alleged violation of the Telephone Consumer Protection Act (“TCPA”).
Usanovic alleged that EXP directed its agents to place unsolicited calls to consumers’ telephone numbers who are registered on the National Do Not Call Registry (“NDNCR”), “including those consumers who requested for the calls to stop.”
Usanovic also submitted the expert report of Anya Verkhovskaya, who contended that there is a reliable method to identify residential telephone numbers that were on the NDNCR for 32 or more days and received two or more connected calls from or on behalf of an EXP agent within a 12-month period between May 10, 2019, through the class certification period.
However, EXP filed a motion to exclude Verkhovskaya’s expert testimony on the bases that her proposed methodology did not reliably identify (1) residential numbers on the NDNCR and (2) calls that violate the TCPA.
Class Action Expert Witness
Anya Verkhovskaya has more than two decades of experience serving as an expert witness or court-approved administrator in various class action matters, including hundreds of TCPA cases and consumer protection, employment, antitrust, securities fraud, ERISA, human and civil rights, and other class action claims.
To begin with, EXP’s concerns about Verkhovskaya’s particular methodology are not relevant grounds on which to challenge the admissibility of her opinions.
Moreover, courts across the country have concluded that Verkhovskaya’s methodology is reliable and sufficiently capable of identifying putative class members. It is widely used in TCPA class actions, including in multiple cases against real estate brokerages arising from calls by their affiliated agents.
Finally, that Verkhovskaya’s methodology potentially resulted in errors in the proposed class list, such that some of the members of the proposed class list did not meet the class definition or are associated with the incorrect phone number, did not warrant exclusion of her testimony.
Thus, in keeping with sister courts across dozens of districts, the Court declined to exclude Verkhovskaya’s opinions on the grounds that her methodology is unreliable.
Held
The Court denied the motion to exclude the opinions of expert witness Anya Verkhovskaya.
Key Takeaway
The focus in a Daubert challenge is not primarily concerned with a proposed expert’s conclusions but with making a preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.
Natasha Shea was involved in a slip and fall accident at Kalahari Resort in the Pennsylvania Pocono Mountains on March 11, 2023. Defendants sought to preclude Plaintiff Natasha Walkowicz Shea from offering any testimony from her economic loss experts John W. Dieckman, MS, CRC, CDMC and Andrew C. Verzilli, MBA.
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.
A. Reliability of Plaintiff’s Economic Loss Experts
The Court found that the opinions of Dieckman, as limited herein, and Verzilli are reliable based on the preponderance of the evidence presented at the Dauberthearings. Both relied on generally accepted principles in their respective fields.
For Dieckman, the Court found his methodology to be reliable and based upon “good grounds” because he used his standard and customary methods that he used in other cases. Dieckman reviewed several medical and related reports, including emergency room records and Shea’s CV and tax returns from 2022-23.
Dieckman also testified that the opinions he intended to offer are generally accepted in his field and are based on a reasonable degree of professional certainty.
For Verzilli, the Court found that his methodology is reliable and generally accepted within the economics community and his testimony is supported by “good grounds.” He applied reliable methods standardly used by economists in calculating future lost earnings potential.
B. Whether the Proposed Expert’s Testimony Fits the Case
Specific Opinions Offered by Dieckman
Dieckman intended to testify regarding the future economic losses suffered by Plaintiff as a result of her fall. He relied on his interview with Plaintiff, who informed him that her contract was not renewed because of the fall.
Defendants’ principal issue with Dieckman’s testimony is that he relied upon his interview of Plaintiff in order to opine that Plaintiff’s contract was not renewed because of the accident. Whether Plaintiff’s contract was or was not renewed, and whether that renewal (or lack thereof) was caused by Plaintiff’s injuries due to the slip and fall are disputed facts.
In sum, the Court permitted Dieckman to offer his opinions regarding Plaintiff’s future lost earnings capacity (i.e., shortened “economic horizons”) because he is qualified to offer those opinions, those opinions are reliable, and they fit with this case.
Dieckman, however, was precluded from testifying as to any statements made to him by the Plaintiff wherein she informed him that the non-renewal of her contract of employment with the Port Jervis City School District was caused by, or the result of, injuries sustained by Plaintiff as a result of a slip and fall on the premises of the Defendants. The introduction of any such statements through Dieckman presented inadmissible hearsay and their probative value did not substantially outweigh their prejudicial effect.
Specific Opinions Offered by Verzilli
The methodology used by Verzilli in calculating Plaintiff’s future lost earning capacity is a well-accepted methodology in the fields of economics, which Defendants did not dispute. Therefore, Verzilli will be permitted to testify at trial. Like Dieckman, many of Defendants’ issues with his testimony go to weight, not admissibility.
Held
The Court granted in part and denied in part Defendants’ motion in limine to preclude Shea from offering any testimony from her economic loss experts John Dieckman, MS, CRC, CDMC and Andrew Verzilli, MBA.
Key Takeaway
An expert is, nonetheless, permitted to base his opinions on a particular version of disputed facts and the weight to be accorded to that opinion is for the jury. It is also a proper subject of cross-examination at trial.
On June 3, 2020, Matthew Vomero was driving a tractor trailer when his vehicle crashed into a building insured by Travelers Home and Marine Insurance Company (“Travelers”). At the time of the accident, Vomero was acting in the course and scope of his employment with U.S. Xpress.
The parties dispute whether Defendants have presented admissible evidence supporting their assertion that Vomero had such a medical incident, and Travelers asserts that Vomero merely fell asleep while driving.
Defendants’ expert, Dr. Adam C. Sobel, a physician, offered an expert opinion that prior to crashing his tractor trailer, Vomero suffered a “syncopal episode” as a result of laughing, causing him to lose consciousness and the ability to steer his vehicle. Travelers filed a motion to exclude Sobel’s testimony under Rule 702.
Travelers did not challenge Sobel’s qualifications but sought to have Sobel’s testimony excluded as unreliable and unhelpful to the jury because 1) his testimony was not supported by evidence in the record, 2) Sobel did not review enough of the record to come to a reliable conclusion, 3) Sobel did not cite to any scholarly materials supporting his diagnosis, and 4) Sobel failed to testify that he came to his conclusions with a reasonable degree of medical certainty.
Internal Medicine Expert Witness
Adam C. Sobel, M.D. is a board-certified internist with more than three decades of clinical, academic, and forensic medical experience. He earned his B.S. through Pennsylvania State University’s six-year pre-medicine/medical program and his M.D. from Jefferson Medical College, followed by an internal medicine internship, residency, and service as Chief Medical Resident at Thomas Jefferson University Hospital. Dr. Sobel is certified by the American Board of Internal Medicine and is licensed to practice medicine in Pennsylvania and New Jersey. He has served as a Clinical Assistant Professor of Medicine and as an attending physician at multiple major hospital systems, including Penn Medicine and Main Line HealthCare.
His testimony was not supported by evidence in the record
The Court found Travelers’ argument that Sobel’s testimony is unreliable to be contradicted by evidence in the record. According to Travelers, because Vomero was not laughing prior to the crash, Sobel’s conclusion that Vomero suffered a laughter-induced syncopal episode is frivolous. However, Defendants presented the testimony of Nicholas Rice (“Rice”), a fellow truck driver, who stated that he was speaking with Vomero on the phone prior to and during the crash. Rice testified that during his phone call with Vomero, he heard Vomero laughing, heard Vomero go silent for fifteen to twenty seconds, and then heard a crash.
Sobel did not review enough of the record to come to a reliable conclusion
The Court further rejected Travelers’ assertion that Sobel did not review sufficient evidence to come to a reliable medical conclusion. According to Sobel’s report, Sobel reviewed Vomero’s medical records, lab tests, and various other parts of the record such as a police report and Vomero’s deposition transcript.
Sobel did not cite to any scholarly materials supporting his diagnosis
The Court similarly rejected Travelers’ contention that Sobel’s conclusions regarding a laughter-induced syncopal episode are unreliable because Sobel did not cite to any scholarly articles regarding such a condition.
Sobel failed to testify that he came to his conclusions with a reasonable degree of medical certainty
Finally, the Court did not accept Travelers’ conclusion that Sobel’s testimony is neither reliable nor helpful to the jury because he did not testify that he reached his conclusions to a reasonable degree of medical certainty. The Court acknowledged that Sobel’s report contains statements such as “it is more probable than not that a person laughing does not simply fall asleep and it is more likely than not that Vomero had a syncopal episode.”
While such language would indicate that Sobel did not reach his conclusions to the degree of medical certainty required by Pennsylvania law, during his deposition, Sobel testified that there was close to a one hundred percent chance that Vomero did not fall asleep prior to the accident and confirmed that he reached his opinions to a reasonable degree of medical certainty.
While a reasonable jury could choose to discredit Sobel’s testimony due to perceived inconsistencies, Sobel’s testimony is sufficient for purposes of the instant motion and such inconsistencies are proper topics for cross examination.
Held
The Court denied Traveler’s motion to exclude the testimony of Adam Sobel.
Key Takeaway
A medical expert is not required to cite to scholarly or peer reviewed articles in order to provide a reliable opinion.
Case Details:
Case Caption:
The Travelers Home And Marine Insurance Company V. U.S. Xpress, Inc.
This dispute stems from a February 08, 2017 incident in which MSG security guards and New York City Police Department officers forcibly removed Charles Oakley from a New York Knicks basketball game at Madison Square Garden.
Defendants MSG Networks, Inc., Madison Square Garden Sports Corp., and Sphere Entertainment Group, LLC (collectively, “MSG”) filed a motion to preclude Plaintiff Charles Oakley’s proffered expert witness, Larry B. Perkins.
Perkins primarily contended that MSG’s security personnel should have given Oakley the chance to cure his behavior before ejecting him and that they should have encouraged Oakley to leave by using verbal de-escalation techniques instead of force. He also asserted that MSG failed to adequately train its employees and that with more robust training “security personnel would have known how to handle situations like these.”
Perkins’ proffered testimony falls into two main categories: testimony regarding MSG employees’ use of force against Oakley and their training in that field; and (2) testimony regarding MSG’s failure to give Oakley a chance to correct his behavior before ejecting him. Neither category of testimony can survive scrutiny under Rule 702.
Event Management Expert Witness
Larry B. Perkins is a professional event planning consultant with expertise in event planning, crowd management, crowd control, crowd flow, and venue security.
He is a 46-year veteran with executive leadership in public assembly, sports, and entertainment management. Perkins served as the 80th President of the International Association of Venue Managers (IAVM) from 2006 to 2007. During his 35+ years as an associate and member, he served on numerous Boards and Committees.
A. Testimony Regarding the Use of Force and MSG Employees’ Training
1.Perkins’ Lack of Expertise
Perkins is not an expert on the use of force. In his deposition, Perkins admitted that he has never received “any formal training from law enforcement in the use of force,” “training on whether force can be used,” or “training on how to assess the level of force that is reasonable.”
He further explained that his purported area of expertise — the “public event management industry” — is “not really focused, necessarily, on the use of force,” but rather “on crowd management, subliminal messaging,” and “techniques” that help “create a positive fan experience,” not “on crowd law enforcement.”
Because any analysis or opinions unrelated to the use of force are irrelevant, the Court held that Perkins clearly is not “qualified as an expert in the reasonable use of force by knowledge, skill, experience, training, or education.”
2.Perkins’ Lack of a Reliable Methodology
Throughout his deposition, Perkins refused to commit to any particular methodology for assessing the use of force, emphasizing instead that everything “depends on what MSG security guards were doing with Oakley.” But that truism — that analyzing the reasonableness of the use of force depends on looking at the force used — is hardly the kind of precise expert methodology that would enable the Court “to determine whether Perkins had good grounds for his conclusions.”
Oakley attempted to sidestep this problem by arguing that Perkins is merely “applying his experience of crowd-management practice in a simple way to the evidence in this case.”
But while a methodology may be simple, it must also be clear. Perkins’ it-all-depends methodology has only vaguely discernible contours, and it boils down to exactly the kind of “intuitive and subjective” approach based on “logic” and “commonsense” that failed Rule 702’s requirement of “objective and testable principles and methods.”
3.Perkins’s Unreliable Application of His Methodology
Finally, even if Perkins could clear the first two prongs for expert testimony — i.e., the reliability of his expertise and methodology — Rule 702 would still bar his testimony because he “failed to apply his own methodology reliably.”
Here, Oakley characterized Perkins’ purported methodology as an analysis of “all surrounding facts and circumstances.” But Perkins failed to acknowledge facts that would undercut Oakley’s arguments, such as the physical contact that Oakley made with MSG security personnel Thomas Redmond and Jayson Jacknow.
And Perkins seemed to invent another fact that appears nowhere in the record: that Kori Keaton “threw a right-hand closed fist punch” at Oakley. Indeed, Perkins himself admitted that the screenshot on which he principally relies “did not show the closed fist itself.”
B. Testimony Regarding MSG’s Failure to Give Oakley a Chance to Correct His Behavior Before Ejecting Him
In his report, Perkins also criticized MSG’s decision to eject Oakley, explaining that an ejection for a “minor offense” is “highly unusual” and “certainly falls outside the norms of industry best practices.”
According to Perkins (and Oakley), MSG (1) should have objected to Oakley’s behavior when he first entered the seating area, (2) “passed along encouraging words to bring about a peaceful solution,” and (3) given him a chance to “correct any misbehavior” before removing him from the area.
But the question of whether Oakley had the “chance to correct any misbehavior” so that he could stay in the Garden is not at issue in this case. MSG indisputably had the right to eject Oakley for any reason. Instead, the only remaining material disputes relate to “(1) the amount of force used to remove Oakley from the Garden and (2) whether that force was objectively reasonable under the circumstances.”
Perkins’s opinion on whether MSG complied with industry standards when it decided to eject Oakley has no bearing on those questions.
C. Rule 403
Even if Perkins’ testimony regarding the events before Oakley’s ejection were relevant, the Court would still exclude that testimony under Federal Rule of Evidence 403.
Perkins’ testimony here — even if it were relevant and based on a solid foundation — would risk unfairly prejudicing MSG, confusing the issues to be resolved at trial, and misleading the jury. In a case where the only remaining issues relate to the amount of force actually used to remove Oakley, and where that removal was recorded on several different cameras from several different angles, a third party’s vague evaluation of training policies and tangential events did not pass muster under Rule 403.
Held
The Court granted Defendants’ motion to preclude the testimony of Larry B. Perkins.
Key Takeaway
Even if it could be said that Perkins is an expert in crowd management, and that methods of crowd management are somehow tangentially relevant to the reasonableness of the force used against Oakley, his testimony on the subject would still be inadmissible because he did not employ a sound methodology — or even a clearly identifiable one. An expert opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.
Case Details:
Case Caption:
Oakley V. MSG Networks, Inc.
Docket Number:
1:17cv6903
Court Name:
United States District Court for the Southern District of New York
This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.
Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.
Amazon filed a motion to exclude the testimony of Plaintiffs’ expert, David Hoffman. Defendants sought to exclude Hoffman’s testimony regarding the sufficiency of Amazon’s disclosures in its privacy policies, terms of use, and marketing materials as improper legal conclusion and/or an invasion of the province of the jury.
Privacy Expert Witness
David Alfred Hoffman is the Steed Family Professor of the Practice of Cybersecurity Policy at the Sanford School of Public Policy at Duke University. Hoffman has advised employers and other organizations regarding the use of consumer data, cybersecurity, privacy, and data governance. While employed by Intel Corporation, Hoffman was the Director of Privacy, overseeing privacy issues related to the data Intel collected, processed, and used and Intel’s products.
He has authored internet privacy policies and terms of use documents for corporations and served on governmental advisory boards tasked with considering issues related to the effective provision of information about the collection of personal data by devices. In addition, Hoffman oversaw industry efforts to create a certification process for companies with responsible data management practices, including efforts to adequately disclose data collection and use practices through privacy policies.
The Court found that Hoffman has the necessary experience to opine regarding industry standards and best practices for providing notice to consumers or users that data is being collected and how it will be used. He also has the expertise to compare Amazon’s policies, practices, and disclosures to the industry standards, to identify in what way Amazon’s practices are deficient, and explain how the deficiency or deficiencies would impact a reasonable consumer’s understanding of how Alexa works.
In two important respects, however, Hoffman’s opinions are not supported by any knowledge, skill, experience, training, or education he may have.
Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice
First, with regards to his opinion that Amazon’s marketing materials are inconsistent with and countermand the disclosures made in the privacy policy, Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice. Thus, his area of expertise did not inform this opinion. Nor is there any reason to suspect that his opinion regarding the interactions between documents would be helpful to the trier of fact.
There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa usersactually knew
Second, Hoffman’s conclusion that a user or group of users did not, in fact, understand how Alexa works or did not consent to the recording of their voice data is not supported by any surveys, interviews, research, or studies. There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa users, individually or collectively, actually knew given the disparate sources of information regarding the Alexa device.
Finally, Hoffman will not be permitted to testify regarding opinions that were not included in his report, such as that Amazon shares Alexa data with third-parties or that Amazon created its disclosures with the intent to mislead consumers. He may, however, opine on facts that may be relevant to the jury’s understanding of Amazon’s practices and intentions.
Held
The Court granted in part and denied in part the Defendants’ Daubert motion regarding Professor David Hoffman.
Key Takeaway
While Hoffman’s experiences in evaluating privacy policies and establishing best practices for alerting consumers when and why their personal data is being collected necessarily involves an understanding of how the typical or reasonable consumer would react to and understand different practices, that is not the same as opining what a particular person or group of persons actually knew or understood.
Please refer to the blog previously published about this case:
This lawsuit arises out of the death of Timothy L. Stringer (“Stringer”) resulting from a May 15, 2021, explosion on an offshore oil and gas production platform owned by Fieldwood Energy LLC (“Fieldwood”).
At the time of the accident, Stringer was working on the platform and, along with another employee, was performing a pressure integrity test on a well. To perform this test, Stringer was provided with a Crystal XP2i Digital Test Gauge (“Crystal Gauge”) to monitor the internal pressure on the pipe casing. Ametek, Inc. is the manufacturer of the Crystal Gauge, and Robin Instrument & Specialty, LLC (“Robin”) distributed it to Stringer’s employer.
Stringer’s spouse and children alleged that Ametek and Robin failed to warn users like Stringer of the foreseeable misuse that the Crystal Gauge could be set to read in either PSI or Bar and of the dangers associated with misinterpreting or mixing up the units of pressure.
Ametek, joined by Robin, argued that Plaintiffs’ expert, Glenn Gleason (“Gleason”), is unqualified and that his report and testimony are speculative and unreliable.
Mechanical Engineering Expert Witness
Glenn H. Gleason is a licensed Professional Engineer with a Ph.D., Master of Science, and Bachelor of Science in Mechanical Engineering. During his academic career, Gleason claims that he became proficient with different types of physical mechanisms and instruments commonly used to measure pressure.
Gleason also served as a consultant at an engineering firm where he conducted “mechanical system and equipment failure analysis” and tested mechanical relief valves, pressure vessels, and the use of pneumatic and hydraulic equipment requiring the monitoring of pressure gauges.
The Court found that Gleason is qualified to serve as an expert in this matter due to his educational and professional experience. Any doubts as to Gleason’s qualifications are suitable for cross-examination, but these doubts do not warrant exclusion.
The Court next turned to Gleason’s methodology in reaching his proffered opinion. In his report, Gleason opined that Ametek could and should have: (i) presented clear warnings accompanying pressure units so consumers can disable unused unit systems on the gauges; and (ii) limited available unit systems through factory default settings on gauges that would be used in industries that only use PSI.
Gleason based his opinion on investigations of the incident conducted by other engineering firms, the market in which the Crystal Gauge was sold (where PSI was the sole unit of measure), deposition testimony stating that Ametek disabled all other units besides Bar in the Chinese market, the Crystal Gauge’s operation manual, and a physical inspection of the Crystal Gauge itself. All told, these factual bases are sufficient for this Court to find that Gleason’s report is not so speculative as to warrant exclusion.
Doubts about an expert’s qualifications or the factual basis for their testimony generally concerns the weight of the evidence, not its admissibility. As a result, doubts regarding Gleason’s qualifications or the factual basis for his opinions are best left to a jury, not this Court.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Glenn Gleason.
Key Takeaway
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
Case Details:
Case Caption:
Stringer V. Robin Instrument & Specialty, LLC
Docket Number:
6:23cv415
Court Name:
United States District Court for the Western District of Louisiana, Lafayette Division
Plaintiff Andrew Brown alleged that CSX Transportation, Inc. violated his rights under the Family and Medical Leave Act (FMLA) by subjecting him to CSX’s attendance policy and by suspending and ultimately terminating him for taking FMLA leave.
Brown hired Beth De Lima, a “Human Resource / Vocational Rehabilitation consultant,” to offer an expert opinion on whether CSX “met Human Resources Industry Standards of Care regarding the implementation of FMLA.” CSX filed a motion to exclude the testimony of De Lima.
Human Resources Expert Witness
Beth B. De Lima is an expert in the HR aspects of employment regulation compliance, litigation, and vocational rehabilitation.
She is nationally certified as a Senior Professional in Human Resources with a state-specific certification in California (SPHR-CA) by the Society for Human Resource Management (SHRM), a SHRM Senior Certified Professional (SHRM- SCP) and has been appointed to sit on the Employee Health, Safety, and Security Special Expertise Panel.
De Lima opined that CSX’s directive to curb and discourage and interfere with an employee’s usage of FMLA led to mass layoffs of seasoned, tenured, decade long employees as a result of the organization’s failure to ensure they implement HR Industry Standards of Care for a federally protected employee leave benefit known as the FMLA.
A. Opinions Unrelated to Whether CSX Had a Good Faith Belief that Brown Dishonestly Used FMLA Leave During the 2017-2018 Holidays
To begin with, the Court noted that De Lima’s report included opinions on matters that were never at issue or are no longer at issue in this case, including CSX’s attendance policy and the American with Disabilities Act (ADA). CSX argued that these opinions should be excluded as the Court has “dismissed the attendance policy claims” and as “there is no ADA claim in this case.”
CSX also argued that De Lima’s testimony on the “implications of CSX’s policies regarding misuse of FMLA leave on weekends and to extend time off” should be excluded as they are irrelevant to the issue in this case — whether CSX had a good-faith belief that Brown dishonestly used FMLA leave over Christmas 2017 and New Year’s 2018.
The Court agreed that De Lima’s opinions regarding the attendance policy and the ADA should be excluded.
However, the Court did not agree that De Lima’s testimony about CSX’s policies regarding FMLA leave on weekends and to extend time off are irrelevant. Although Brown was terminated because of FMLA misuse over the 2017-2018 end-of-year holidays, CSX’s decision to charge Brown with FMLA misuse during that period was partially based on the fact that CSX previously had warned Brown that he was improperly using FMLA leave either before or after his rest days and on weekends. Under the circumstances, it cannot be said that De Lima’s testimony about the implications of CSX’s policies regarding FMLA use on weekends and to extend time off would not logically advance a material aspect of Brown’s case. Indeed, this evidence is probative of whether CSX had a good faith belief that Brown dishonestly used FMLA leave over the 2017-2018 holidays.
B. Reliability
CSX argued that De Lima’s opinions and testimony are not reliable because: (1) De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply, (2) her testimony is not based on sufficient facts or data, (3) she made broad conclusions from unrepresentative samples, and (4) her report contains many errors and mischaracterized the record.
De Lima did not cite specific sources of the “HR Industry Standards” she purports to apply
Contrary to CSX’s contention, De Lima identified the standards set forth by Society for Human Resource Management (SHRM) as the source of the “HR Industry Standards” on which she relies.
CSX further argued that to the extent De Lima “claimed that she relied on her experience to develop these supposed standards, her testimony and opinions are unreliable because she failed to 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.’”
De Lima explained in her report that she applied generally accepted HR standards as set forth by SHRM, “an organization founded in 1948” that “has over 285,000 members across more than 165 countries and more than 575 chapters in the United States.”
De Lima’s testimony is not based on sufficient facts or data
CSX noted that De Lima asserted there was a clear management directive to curb, discourage, and interfere with employees’ use of FMLA, but he did not cite anything specific.
However, CSX did not claim that this portion of the report is an impermissible characterization of the evidence.
CSX also argued that De Lima made other unsupported assertions that certain documents implicitly or explicitly embody nefarious principles, which they plainly do not. Although CSX may disagree with De Lima’s interpretation of the letter and the disciplinary policy, CSX has not demonstrated that it is unreliable.
CSX further argued that De Lima’s testimony is unreliable as “there is simply too great an analytical gap between the data and the opinion proffered.” Although De Lima references CSX’s handling of discipline of two other employees, a review of De Lima’s report demonstrated that she did not base her opinions on CSX’s handling of the other cases.
Therefore, CSX has not demonstrated that there “is too great an analytical gap between the data and the opinion proffered.”
De Lima’s testimony is unreliable because her report is replete with errors and mischaracterizes the record
CSX claimed that the report inaccurately stated that “CSX’s FMLA policy says that ‘if FMLA is utilized in a manner [CSX] deems to impact the staffing of the organization’ then the ‘approved use of FMLA leave will be documented as negative attendance’” under CSX’s attendance policy.
CSX identified three other mischaracterizations in De Lima’s report. First, CSX stated that De Lima grossly mischaracterized the record by asserting that, “in 2016, CSX’s HR Department informed employees that ‘utilizing FMLA leave would be reported as misuse,’” when the letter actually stated that “using FMLA leave to avoid certain work assignments, to extend time off . . ., to be off on a holiday, the weekend, or to avoid working overtime is considered not only misuse, but fraudulent use of this federally required benefit.”
Second, CSX contended that De Lima’s statement that “CSX made no effort to determine if the FMLA use was consistent with the already approved medical certificates for the impacted employees” and never requested documentation from employees “to clarify the validity of the FMLA usage” conflicts with the testimony of Jolanda Johnson, Manager, Benefits–FMLA, who testified that, before charging employees, she reviewed the medical reasons for leave to determine whether they clearly explained a need for leave over the holidays.
Third, CSX challenged De Lima’s statement that “‘as an alternative to complying with the FMLA process for curing, CSX is simply ignoring the need to determine if the need for FMLA leave can be confirmed by curing the medical certificate and just moves on with the termination.’”
None of the alleged factual discrepancies or mischaracterizations warrant excluding De Lima’s opinions and testimony. The Court found De Lima’s methodology sufficiently reliable. The alleged flaws in De Lima’s methodology raised by CSX would be addressed during cross-examination.
C. Assistance to the Trier of Fact
Next, CSX argued that De Lima’s opinions—off-base critiques of whether CSX engaged in a “curing process,” adequately trained its managers, and abided by “HR industry standards”—are not relevant to the question of whether Brown was subjected to unlawful retaliation.
From De Lima’s testimony that CSX’s investigation fell below HR industry standards, a jury could infer that CSX did not have a good faith belief that Brown dishonestly took FMLA leave over the 2017-2018 end-of-year holidays and that CSX terminated Brown in retaliation for taking FMLA leave during that period. Accordingly, De Lima’s opinion on whether CSX complied with industry standards in investigating suspected FMLA misuse would be helpful to the jury.
However, De Lima’s report consisted of many legal conclusions. De Lima frequently opined or implied that CSX’s policies and procedures regarding suspected FMLA misuse violate the FMLA. De Lima also offered her interpretation of an employer’s obligations under the FMLA.
The Court agreed with CSX that it would be improper to allow De Lima to testify about these issues at trial as they are legal conclusions. However, De Lima may still opine that CSX did not comply with industry standards in investigating suspected FMLA misuse as that is not a legal conclusion.
CSX also challenged De Lima’s statement that the “focus in the Investigations seems to be the impact of the employee’s FMLA leave on the operations of the railroad’s workforce availability when employees are utilizing FMLA.” The Court is not persuaded.
The challenged portions of De Lima’s report may factor into the jury’s determination on whether CSX had a good faith belief that Brown misused FMLA leave, but they do not merely tell the jury what result to reach. Accordingly, this is not a basis for excluding De Lima’s opinions and testimony.
D. Rule 403
In the alternative, CSX argued that De Lima’s testimony should be excluded pursuant to Rule 403 because it is unfairly prejudicial, confuses the issues, and would mislead the jury. CSX contended that De Lima’s report contains language that is “inflammatory” and “over-the-top.” CSX further argued that De Lima’s “confused report” is not relevant as it “misunderstands both the applicable regulation and the issues in this case.” However, as De Lima is expected to testify at trial, the Court held that her “opinions will be presented via her sworn testimony, and her report may be used to refresh her recollection or for impeachment, but the report itself is hearsay and is not admissible.”
Held
The Court granted in part and denied in part Defendant CSX Transportation, Inc.’s motion to exclude the testimony of Beth De Lima.
Key Takeaway
As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.
Case Details:
Case Caption:
Brown V. CSX Transportation,, Inc.
Docket Number:
8:24cv2777
Court Name:
United States District Court for the Middle District of Florida, Tampa Division
