In this litigation, Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner (collectively, “Plaintiffs”) alleged that Decedent Michael P. Dandry, Jr. (“Decedent”), while an employee for Defendant Huntington Ingalls Incorporated (“Avondale”), was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Avondale filed a Daubert motion to exclude the testimony of Plaintiff’s expert in industrial hygiene, Gerard Baril.
Baril offered opinions that these exposures sustained by Dandry at Avondale significantly increased his risk for mesothelioma, that these exposures exceeded current and historical exposure limits, and that Avondale failed to implement appropriate industrial hygiene safeguards to protect workers from asbestos.
Industrial Hygiene Expert Witness
Gerard L. Baril has worked in the field of occupational safety, industrial hygiene, and environmental health since 1978. Baril has practiced industrial hygiene (starting as an industrial hygiene technician) since 1982.
Over the decades, he has conducted hundreds of industrial hygiene surveys qualifying and quantifying workers’ exposures to a wide array of airborne contaminants including asbestos.
Avondale argued that Baril’s opinions are inadmissible because they rest entirely on counsel-supplied, Avondale-only materials and ignore critical alternative exposures. Avondale has not demonstrated that Baril’s methodology was unreliable. The alleged alternative exposures are part of Avondale’s defense. Avondale is free to cross-examine Baril about these exposures and whether they impact his conclusions.
The Court held that outright exclusion of Baril’s testimony is not warranted.
Held
The Court denied Avondale’s Daubert motion to exclude the testimony of Gerard Baril.
Key Takeaway
As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
Please refer to the blog previously published about this case:
Plaintiff Vicious Brands, Inc., doing business as Saints & Sinners, brought this action against Defendants Face Co., LLC, Skin Saint, LLC, and Holly Cutler, alleging that Defendants infringed Plaintiff’s trademark and falsely advertised Defendants’ skincare products.
Plaintiff relied in part on an expert declaration of Karen Young, a beauty industry consultant. Defendants challenged the declaration of Young.
According to Young, there is a current trend towards the “skinnification of hair,” with haircare products and routines increasingly focusing on scalp care. Industry reports and commentary confirm consumer-facing manifestations of that trend, including that “major brands well known for skincare” have begun to offer haircare products.
Young also reports that “industry studies and market research confirm that platforms such as TikTok and Instagram have materially increased impulse buying among beauty consumers.”
Beauty Industry Expert Witness
Karen Young is a beauty industry consultant specializing in market strategy and consumer behavior across skincare, haircare, and adjacent personal care categories with over 25 years of experience advising global beauty brands on product category trends, consumer perception, and ecommerce buying behavior.
Young has also been an adjunct professor at The Fashion Institute of Technology (FIT) in NYC for 21 years, teaching product development [and brand differentiation] in their graduate program.
To begin with, Defendants argued that Young’s opinions regarding “skinnification”—a purportedly increasing crossover between the haircare and skincare markets—are not sufficiently reliable because “they are based simply on internet articles.”
But Defendants offered no competing evidence as to what constitutes generally accepted standards for expertise in beauty industry. Young stated that she has “advised global and emerging beauty brands for over 25 years on portfolio architecture, brand positioning, and go-to-market channels, including digital commerce and social media ecosystems,” and that she bases her opinions on that experience in addition to trade publications. Young asserted that her methodology and sources “are standard in the beauty market research field” and “routinely relied upon by industry professionals and experts to evaluate market trends, consumer confusion, and brand relationships.”
In the absence of competing evidence, the Court was willing to infer that Young’s experience and review of trade materials—in conjunction with the specific articles she cited—were sufficient to qualify her as an expert in her field capable of testifying about market trends.
Impulse Buying
Defendants also challenged Young’s opinions regarding a rise in impulse buying. They asserted that the sources on which she relied did not say that consumers “are prone to mistaking what they are buying or who they are buying from,” as opposed to merely describing a rise in use of social media when shopping for beauty products.
But Young relied on her own extensive experience as a brand consultant in addition to the sources she attached to her declaration. In the absence of evidence to the contrary regarding consumer behavior, evidence that Young’s qualifications are not generally accepted in her field to address such matters, or cross-examination of Young revealing defects in her analysis, the Court is not prepared to exclude her opinions on consumer behavior. Defendants also contended that those opinions are inapplicable when they do not sell their products directly through social media.
Young appeared to be describing a broader trend in the market that derives in part from social media, rather than specific behavior consumers exhibit only when shopping on social media.
In a footnote, Defendants asserted that Young lacked a sufficient basis for her opinion that the term “medical grade” has no recognized definition in the skincare industry.
Defendants offered no evidence to the contrary, instead vaguely referencing “the SKIN SAINT website” as showing that “medical grade products contain acids, bleaches, sulfur, retinols, and other chemicals.”
A footnote is not the place for a substantive argument, and the Court is willing to accept that Young’s experience as a consultant qualifies her to address generally accepted definitions (or lack thereof) in her field.
Consumer Confusion
The Court did not rely here on Young’s ultimate opinions on likelihood of confusion. The Court instead credited only her opinions regarding the nature of the relevant markets, trends in consumer behavior, and other issues that may bear on the ultimate question of likely confusion without purporting to resolve it.
Held
The Court is satisfied that Young’s experience is sufficient to qualify her as an expert in her field capable of testifying about market trends and consumer behavior. However, the Court reserved the contours of what “ultimate issue” opinions Young may be able to offer at trial for resolution on motions in limine.
Key Takeaway
Not all expert testimony requires adherence to a strict methodology. Daubert makes it clear that the factors it mentions”—testing, peer review, known error rates, and the like—”do not constitute a ‘definitive checklist or test.” The factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.
This case involves alleged damage to a plasma cutter that was to be used for a welding business. Plaintiff Giger Welding and Fabrication, LLC (“Giger”), purchased a plasma cutter from an auction in Texas to assist with its welding business in Missouri. To get the plasma cutter to Missouri, Giger contracted with Defendants DFW Movers & Erectors, Inc. (“DFW”), and AFC Transportation, Inc. (“AFC”), to load and transport it on a semitruck. The plasma cutter was allegedly damaged during shipment.
Giger then sued DFW to recoup damages for the repair of the plasma cutter as well as lost profits.
Giger’s expert, Dr. William Rogers, has submitted a report on economic damages. DFW sought to exclude Giger’s testimony that potential customers did not accept his bids because of the lead time and cost required due to Giger not having use of the damaged plasma cutter.
Economics Expert Witness
Dr. William Harris Rogers is an economist and owner of John Ward Economics focused on providing economic testimony in the Kansas City and St. Louis metro areas and beyond. He is a former associate professor of economics at the University of Missouri-Saint Louis (2004-2016) with a Ph.D. in Economics. Rogers has worked as a forensic economic consultant and expert witness estimating financial losses for litigation purposes since 2015.
Rogers is an economist whose expertise is limited, in this litigation, to calculations of damages based on information provided to him by Giger. To begin with, the Court did not allow Giger to introduce otherwise inadmissible hearsay through its expert, when that expert’s expertise is unrelated to the welding trade or the reliability of the alleged statements of potential customers.
Also, Rogers may not opine, as he does in his report, that he “believes it is appropriate to identify Giger’s losses through the lens of lost productivity while awaiting the plasma cutter’s replacement or repair.” This is, after all, an ultimate question of fact for the jury. Once Rogers explains how lost productivity and profits are calculated, the jury will be in a position to assess the appropriateness of lost profits as a measure of damages and apply Roger’s testimony to Giger’s claims.
Giger testified under oath that he gave bids to multiple potential customers in response to requests from those customers. While Giger and its expert witness shall not testify about the reasons purportedly given by potential customers for their denials of Plaintiff’s work bids, the Court held that Giger and its expert may offer evidence of the bids themselves.
Held
The Court limited the testimony of Giger’s expert, Dr. William Rogers.
Key Takeaway
Expert witnesses are not allowed to to give an opinion on an ultimate question of fact. The experts are only permitted to explain the criteria by which they would form such an opinion.
Case Details:
Case Caption:
Giger Welding And Fabrication, LLC V. Tranzact Technologies, Inc.
In this litigation, Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner (collectively, “Plaintiffs”) alleged that Decedent Michael P. Dandry, Jr. (“Decedent”), while an employee for Defendant Huntington Ingalls Incorporated (“Avondale”), was exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or handled by Avondale and other parties.
Dr. Stephen Terry Kraus is a medical doctor who received his medical degree from the University of Cincinnati College of Medicine in 1970. He is board certified in radiation oncology, and he has treated patients with mesothelioma and other forms of cancer in Louisiana since 1982.
Avondale contended that Kraus is not qualified to testify regarding industrial hygiene topics, including: (1) sources of Decedent’s asbestos exposure; (2) the standard of care for shipyard worker protection; (3) government standards applicable to the Avondale shipyard; (4) industry standards applicable to the Avondale shipyard; (5) permissible exposure limits for asbestos; and (6) state of the art knowledge of Avondale regarding the health hazards of asbestos.
Avondale argued that this testimony should be excluded because Kraus is a medical doctor, rather than an industrial hygiene expert.
Kraus reviewed deposition testimony regarding Decedent’s exposures, Decedent’s medical records, and the report of industrial hygienist Gerard Baril.
Based on Baril’s report and Kraus’ review of the scientific and medical literature, Kraus opined that Decedent would have sustained exposures to asbestos during his work at Avondale Shipyards that exceeded the current and historical permissible exposure limits. Kraus also opined that Decedent’s mesothelioma and death were caused by this occupational exposure to asbestos at Avondale. To the extent Avondale argued that Kraus is not qualified to offer this opinion, the Court found this argument unpersuasive. Kraus’ proposed testimony is based on scientific knowledge of the harmful level of exposure to asbestos and Baril’s opinion that Decedent was exposed to such harmful levels.
Avondale also took issue with references to the 1942 Walsh Healey Public Contracts Act, the 1943 Sanitary Code, and the 1951 Walsh Healey Public Contracts Act contained in Kraus’ report.
Avondale argued that Kraus should not be allowed to give “state of the art” opinions because he is a medical doctor. However, the Court noted that Avondale did not cite any authority for the proposition that only an industrial hygiene expert can give “state of the art” opinions.
Held
The Court denied Avondale’s Daubert motion to exclude certain testimony of Dr. Stephen Terry Kraus.
Key Takeaway
An expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight.
Plaintiffs Keith Fischer, Michael O’Sullivan, John Moeser, Louis Pia, Thomas Barden, Constance Mangan, and Charise Jones, (collectively “Plaintiffs”), sought class action certification for their claims against Government Employees Insurance Company (“GEICO”) for failing to pay overtime wages in violation of the New York Labor Law (“NYLL”).
Plaintiffs and the Class Members are current and former non-exempt employees of GEICO in the Special Investigations Unit (“SIU”). Plaintiffs relied exclusively on a damages model developed by their proposed expert, Dr. Catherine O’Neil, to show that damages are capable of class-wide determination.
O’Neil described a model to measure lost wages by assigning an amount of time to each type of case-related activity (through a regression analysis of the Plaintiffs’ self-reported hours compared to case-related activities tracked in the GEICO SICM database), and then applying the assigned time-per-activity amounts to the case-related activity data for each Investigator to determine “actual” time worked by each.
O’Neil contended that she would then subtract a putative class member’s reported hours from the hours derived from the regression model to determine the unreported and uncompensated hours for each month.
Data Science Expert Witness
Dr. Catherine H. O’Neil earned a Ph.D. in math from Harvard and previously taught Mathematics at the Massachusetts Institute of Technology and Columbia College. She is a data scientist who founded an algorithmic auditing company.
In 2016 she wrote the book Weapons of Math Destruction: how big data increases inequality and threatens democracy. and in 2022 the book The Shame Machine: who profits in the new age of humiliation.
Here, O’Neil contended that she can create a linear regression model to estimate the time investigators spent performing certain activities. But this model is nothing more, as she concedes, than a “thought experiment.” She has neither built the model nor applied it to the data available.
As GEICO pointed out, O’Neil had access to seven months’ worth of SICM data for 34 Plaintiffs and putative class members and Plaintiffs’ testimony as to their estimated hours.
By limiting her model to a “thought experiment” and failing to show the applicability of this model to even a subset of available data, the very data O’Neil contended she would use to build her model, O’Neil’s report has failed to show that her opinion is rooted in actual facts or data to properly assess class-wide damages; it amounts to a kind of “trust the expert” methodology. But such “ipse dixit” cannot satisfyDaubert.
Contrary to Plaintiffs’ presentation, this is not a kind of “plug and play” expert analysis, where simple math—here a basic linear regression model—is the core of the model. The inputs into that model, including the allocation of time for a task, are based on a series of assumptions, which O’Neil has not tested or explored in any meaningful way, even if it was not necessary to build the final complete version of her model.
For example, O’Neil assumed that certain investigator tasks will take a standard amount of time. However, the Court held that O’Neil has no known expertise or experience in doing the kind of investigations conducted by these kinds of employees, making merely accepting Plaintiffs’ accounts or her own uncredentialed assumptions problematic.
Held
The Court found Dr. Catherine O’Neil’s opinion unreliable for determining whether Plaintiffs have satisfied the requirements of Rule 23. As a result, the motion to certify a class was denied.
Key Takeaway
Plaintiffs have failed to show that O’Neil’s opinion “is the product of reliable principles and methods.” Rule 702‘s focus is “the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”
Unsupported assertions “made without explanation or elaboration that would allow a fact finder to follow his reasoning and come to the same conclusion” are inadmissible expert opinions.
On April 22, 2023, Maxfer Palma was arrested with a man named Keith Tyler-Parker. Tyler-Parker was holding a backpack and satchel that contained drugs, including methamphetamine and fentanyl, drug paraphernalia, and a gun. He made statements to police that supposedly connected Palma to the bags.
The government intended to call Special Agent Hakeem Oduniyi to testify regarding methamphetamine and fentanyl distribution, and the possession and use of firearms by narcotics traffickers. Defendant Maxfer Palma filed a motion to exclude certain of Oduniyi’s expert opinions as irrelevant.
Narcotics Expert Witness
Special Agent Hakeem Oduniyi received formal training at the DEA Basic Agent training Academy in Quantico, Virginia. The 14-week Basic Agent Academy included comprehensive, formalized instruction in, among other things: drug investigations, drug identification and detection, interdiction, familiarization with United States drug laws, financial investigations and money laundering, identification and seizure of drug-related assets, organized crime investigations, physical and electronic surveillance, and undercover operations.
Oduniyi has participated in ongoing education, including a 50-hour undercover drug enforcement techniques course and 16-hour money service business: roundtable training. He has also served as a panelist at a fentanyl symposium.
The Court excluded Oduniyi’s opinion on the practice of “cutting” drugs by mixing or diluting them with other substances.
However, testimony that narcotics are often diluted before sale helps explain why the drugs in this case are not 100 percent pure. Testimony that fentanyl is dangerous in small doses supports the government’s allegation that the quantity possessed by Defendant would not have been possessed for personal use. There is no undue prejudice to the Defendant from admission of these opinions offered by Oduniyi.
Held
The Court granted in part and denied in part Palma’s motion to exclude certain opinions of Hakeem Oduniyi.
Key Takeaway
Oduniyi’s testimony has sufficient probative value in explaining the general process of drug distribution.
From approximately January 1995 through 1997, Plaintiff Robert Wheeler was in the band “Throwin Stones.” In January 1995, Throwin Stones recorded the songs for its only studio album. One of those songs was called Coffee.
He alleged that John Mellencamp’s song Key West Intermezzo (I Saw You First) (“Key West”) copied the song Coffee.
Plaintiff retained Dr. Pablo D. Herrera Veitia as an expert musicologist to provide an analysis of the musical compositions Coffee and Key West Intermezzo (I Saw You First).
He purported to be an expert in “music theory, melodic analysis, sound design, and digital audio evaluation.” Based on his analysis, he posited that there were “clear and verifiable correspondences between” Coffee and Key West. According to him, the “alignment in lyrical placement and musical structure reinforced the impression of deliberate creative correspondence rather than coincidence.”
Herrera Veitia is an accomplished sound designer andcmusic producer, with extensive experience in critical listening, sample creation, and detailed sonic analysis.
To begin with, Plaintiff only offered to produce Herrera for a single hour, even though the Federal Rules permit depositions to last up to seven hours absent leave of the Court. It should be noted that Herrera is the only expert musicologist for whom Plaintiff produced a Rule 26(a)(2)(B) report, he is the only expert witness who could be permitted to testify for Plaintiff at trial. His opinions and testimony are therefore critical to Plaintiff’s case. Despite his importance, Plaintiff unilaterally refused to make him available for more than one hour.
Moreover, the record did not demonstrate that Plaintiff used his best efforts to ensure that Herrera would be able to meaningfully participate in the one hour for which he was made available considering Plaintiff knew in advance that Herrera was located in Cuba and had a poor internet connection. Despite this advance knowledge, it does not appear that Plaintiff took any steps to help mitigate these connectivity issues.
Additionally, after Herrera disconnected several times and gave incomprehensible responses due to his poor connection, Plaintiff offered to meet and confer with defense counsel to reschedule the deposition. Yet, not only did he refuse to reschedule the deposition, he did not even attempt to meet and confer with defense counsel to identify alternative dates. Under these circumstances, Plaintiff did not use his best efforts to produce Herrera for a rescheduled deposition after what was effectively a useless hour.
Based on all of this, the Court concluded that Plaintiff’s failure to produce Herrera for a meaningful deposition was not harmless.
Moreover, Defendants and their expert have non-frivolous criticisms and questions about Herrera’s background, methodology, and conclusions.
Held
The Court granted Defendants’ motion to exclude the testimony of Dr. Pablo Demetrio Herrera Veitia.
Key Takeaway
Allowing Plaintiff to rely on Herrera’s reports and opinions when Defendants have been deprived of an opportunity to meaningfully depose him would be highly prejudicial. The Court concurred with Defendants that the appropriate sanction for the violation was exclusion. Defendants were not able to subject Herrera’s opinions to the adversary process, and there was no cure once discovery had closed and trial was set to begin in a matter of weeks.
Rebel, a cheerleading apparel brand based in Texas, sells, among other products, a backpack called the “Rebel Dream Bag.” Plaintiff holds a trademark in the Dream Bag’s “two-dimensional hourglass shaped enclosed curved figure double outline design, with an outlined straight rectangular shaped top line and an outlined curved three-fourth rectangular shaped line underneath, both inside the curved figure outline design,” as pictured.
Jim Lundberg, under the business name CheerStix, operated an interactive internet store which sells cheerleading apparel, including cheerleading backpacks. In August 2021, Lundberg engaged designer Fernando Robert to develop a cheerleading backpack. Lundberg sent Robert examples of his desired design, including images of the Rebel Dream Bag and Nfinity Bag. Lundberg said he wanted his “own version” of a bag, though Robert noted that his mock-up possessed many similarities to the Rebel bag.
After Defendant’s bag—the “It Bag” or “CS Athletic Bag”—entered the market, Rebel sued Lundberg for trademark infringement.
Defendant filed a Daubert motion to exclude the expert report of Rob Wallace, who opined, based upon survey evidence, that the Dream Bag has acquired secondary meaning. Plaintiff separately moved to exclude the expert report of Hrag Nassanian, who opined upon the functionality of the Dream Bag’s trade dress.
Branding Expert Witness
Rob Wallace has extensive experience in brand identity strategy and design as the former managing partner of Wallace Church, Inc., one of the most recognized and accomplished brand identity strategy and design consultancies.
Hrag Nassanian worked for over 20 years as a product designer and developer of bags, including backpacks, duffel bags, gym sacks, shoulder bags, luggage, roller bags, totes, and messenger bags. Nassanian built the product line of basketball bags at Nike and led the company’s global bag product design and development for several kinds of athletic bags. Nassanian previously taught a college course on principles of bag design and currently consults on product design and development.
Plaintiff retained Rob Wallace to testify regarding whether the Rebel Dream Bag’s trade dress has acquired secondary meaning among the consuming public. Wallace’s survey included a population of respondents who purchased cheerleading backpacks within the last twelve months and planned to do so again in the next twelve months.
Defendant argued that the Court should exclude Wallace’s expert testimony and expert report based upon the survey’s use of an unreliable methodology.
1.Universe
Lundberg argued that the survey consisted of an underinclusive universe, as it excluded those consumers who have not purchased cheerleading equipment in the last 12 months but plan to do so in the next 12 months.
However, Lundberg has not shown that excluded consumers from the survey universe represent a “sizeable portion” of the market. Consequently, Lundberg’s criticisms related to the sampling universe go to the weight of the evidence, not the survey’s admissibility.
2. Whether Survey Questions Were Clear, Precise, and Nonleading
Here, Defendant contended that the following question was flawed: “From the design of this product, do you believe that this backpack comes from one source/ manufacturer or is it a generic design that is used by many different backpack manufacturers?”
A critique of whether the survey question focused on the correct issue did not affect admissibility, but rather, “goes to how much weight the Court should give the survey results.” Accordingly, Lundberg’s argument regarding this survey question goes to the survey’s weight, not admissibility.
Defendant additionally argued that the lack of a survey pre-test warrants exclusion. On the contrary, pre-tests “are not required” and do not justify the exclusion of that expert’s testimony.
Therefore, the Court held that Wallace Survey’s lack of a pre-test did not render the survey inadmissible.
3. Other Concerns
Defendant argued that the Wallace Survey warrants exclusion, in part, because it lacked a sufficient control group. Because courts have admitted surveys with no control group at all, criticisms of the Wallace survey’s control group here go to its weight, not admissibility.
Likewise, the failure to remove Rebel’s star-shaped “R” design logo goes to the weight of the survey, not admissibility. Since the images of the Rebel Dream Bag presented to Wallace Survey respondents included this indicium of origin, Lundberg argued the Wallace Survey “simply measures how many respondents recognize the backpack as coming from one company because it contains a brand logo on it.”
The presence of source-identifying indicia, however, does not necessarily make a survey inadmissible. Here, the star “R” logo appeared only on Rebel’s backpack, not on Lundberg’s. As a result, there exists little risk of respondents mistaking the Rebel and Lundberg backpacks as deriving from the same source on the basis of the logo.
In summary, for the reasons described above, the Court found the Wallace survey admissible.
Hrag Nassanian
Nassanian opined on the functionality of the Rebel Dream Bag design, evaluating the functionality of the bag’s individual components and the overall bag in the context of its use generally and its unique role in cheerleading.
Nassanian concluded that Rebel Dream Bag’s trade dress overall remains functional, as do the following components on the bag: contrasting color zipper pocket outlines; front pocket style and placement; side mesh and placement; auxiliary side pocket style and placement; glitter fabric; interior-fabric monogramming patterns; shoe compartment style and placement; and clip placement.
Rebel argued that Nassanian’s lack of knowledge regarding cheerleading renders him ineligible to opine on the Dream Bag, designed for cheerleaders. While Nassanian’s report touches upon the bag’s use in cheerleading, his opinion also encompasses manufacturing details, design choices common to bags generally, and non-cheerleading-specific use of the bag. These opinions derive from Nassanian’s uncontested expertise in bag product design and development, which does not require specific cheerleading knowledge or expertise.
Methodology
Rebel argued that Nassanian’s methodology remains unreliable because he only evaluated the backpack’s functionality based upon its components, not in totality; Nassanian failed to consider alternative designs; and Nassanian only looked at the backpack and cheerleading in preparation for this lawsuit.
Rebel’s challenges lacked merit. First, Nassanian stated that he did evaluate the backpack’s functionality in totality, as well as the bag’s individual components, and the report confirms his assertion. Likewise, Nassanian’s report clearly included consideration of alternative designs, including a lack of contrasting colored zippers, a different radius for front pocket styles, and alternative locations for a side mesh pocket. Nassanian also considered other backpack designs. Finally, the fact that Nassanian’s testimony was expressly developed for the purpose of testifying is not unusual; that is undoubtedly the case for most, if not all, retained expert witnesses.
Though Nassanian had not previously worked with competitive cheerleading, he nonetheless possesses extensive experience with bag design and development, and with specialty athletic bags in particular.
The the Court found that Nassanian’s methodology met the minimum requirements under Daubert.
Held
The Court denied Defendant’s Daubert motion to exclude the expert report of Rob Wallace.
The Court denied Plaintiff’s motion to exclude to the testimony of Hrag Nassanian.
Key Takeaway
Nassanian’s methodology extensively considered his observations of the Rebel Dream Bag and other athletic bags, and Nassanian’s extensive experience and knowledge within the field of bag design and development. This methodology creates no issues for reliability under Daubert.
An expert might draw a conclusion from a set of observations based on extensive and specialized experience.
Plaintiff April McElroy (“McElroy” or “Plaintiff”) was injured while attempting to open a bottle Mumm Napa Valley Brut Rose, a sparkling wine. The bottle broke causing lacerations to her left hand. McElroy has filed claims for her injuries against Defendants Pernod Ricard USA, Inc. (“Pernod”), Southern Glazer’s Wine and Spirits LLC, (“Glazer”) and Garfield Beach CVS LLC (“CVS”).
McElroy’s negligence claim alleged that the Defendants failed to adhere to industry standards and best practices for storage and retention of the product to ensure the safety and integrity of the product. Consequently, she asserted that the Defendants violated their duty of care to consumers by improperly storing and distributing a product in a manner that proximately caused Plaintiff’s injury.
Plaintiff offered the opinion of her expert Jim Goldman regarding how non-vintage sparkling wines should properly be stored and distributed at the wholesale and retail levels. Both Pernod and CVS moved to exclude the testimony of Goldman.
Packaging Expert Witness
Jim Goldman is a certified packaging expert with a consistent history of achievement developing packaging, supply chain, and production equipment for the Food and Beverage industry.
To begin with, Goldman cited no authority, regulation, actual industry guidelines or any evidence of any manufacturers, wholesalers or retailers adopting or adhering to his proposed “industry standards.”
He asserted for safety reasons the following steps are required in the distribution of non-vintage sparkling wines: 1) at all times the bottles are to be stored horizontally, 2) the bottles are to be stored in environments of controlled temperature and humidity, 3) the age of such products requires monitoring, and 4) that any non-vintage sparkling wine product has a maximum shelf life of 6 months after which it should be destroyed. Failure to adhere to this “standard” he opined is negligence and a cause of Plaintiff’s injury.
However, there is no evidence whatsoever that his proposed guidelines are a standard by which the industry operates. A jury could not reasonably conclude that failure to meet one or more of Goldman’s self-created storage steps violated a duty of care.
Also, Goldman did opine that his proffered “industry standard” for wholesale and retail storage of non-vintage wines is supported by a website directed to “storing champagne at home” for best quality.
However, the Court held that this reference did not support his opinion that there is an industry wide standard for the shipment, storage and distribution of non-vintage sparkling wines that Defendants violated.
Held
The Court granted the the motions to exclude the testimony of Jim Goldman.
Key Takeaway
Goldman has not demonstrated a duty of care that any Defendant violated in the storage or retention of the wine at issue, and his testimony is wholly insufficient to create a material factual dispute.
On the morning of November 21, 2023, Plaintiff Marie Iddriss (“Plaintiff”) fell down a flight of stairs in a building located at 123 West 20th Street in Manhattan after she exited the elevator on the second floor. Hong Diep Realty Incorporated (“Hong Diep”) was the landlord of the building with contractual responsibility for repairs in common areas and Kids At Work (“KAW”) was a tenant of space on the second floor. Plaintiff claimed that Hong Diep and KAW are responsible in negligence for her injuries. In particular, she claimed that Defendants failed to maintain handrails on the stairs which could have broken, and thereby prevented, her fall.
Plaintiff expected to call Douglas W. Peden as an expert at trial. Peden is a registered architect. Hong Diep filed a motion to preclude Plaintiff from offering Peden’s testimony “about the mechanism of Plaintiff’s fall and whether a handrail would have prevented it.”
Architecture Expert Witness
Douglas W. Peden provides expert analysis of construction and construction material defects, walkway construction, vertical misalignments, maintenance and safety, identification and delineation of hazards in stairs, ramps, corridors, platforms and level changes both outdoors and inside buildings and other structures.
Among other things, he has training and experience in the analysis and testimony for failure analysis and towards the resolution of personal injury litigation involving trip and fall injuries and code compliance issues.
According to Peden, the unprotected stair landing was unreasonably dangerous and that the failure to provide required handrails on the stair violated the standard of care and applicable building codes.
Hong Diep claimed that these opinions implicate issues of biomechanics and causation, outside of Peden’s expertise, are not supported by a reliable methodology, and would mislead the jury and therefore not be helpful to it.
Plaintiff admitted that Peden cannot offer evidence regarding “the force of Plaintiff’s fall, her body position at the time of her fall, or the impact the absence of handrails had on Plaintiff’s body or injuries.” Plaintiff further offered no evidence of Peden’s qualifications to opine on the mechanism of injury in this case.
Peden will be able to testify regarding the function of handrails along stairs in preventing people from falling off elevated surfaces, preventing people from falling over the edge of a landing, and providing a point of anchorage. Those opinions fall within Peden’s area of expertise. He can also testify that a handrail would provide a person who was falling off the second floor landing and into the stair case “with an opportunity to arrest her fall and injury.” That general testimony too falls within Peden’s expertise and is supported by a reliable methodology.
However, because he lacked the expertise to opine on what caused Plaintiff’s injury or what would have prevented it, and because he identified no methodology supporting such opinions, he may not testify regarding Plaintiff’s particular mechanism of injury.
Held
The Court granted Hong Diep’s motion to exclude the testimony of Douglas Peden.
Key Takeaway
The district court must ensure that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of experts in the relevant field.
Peden lacked the qualifications to opine on the mechanism of injury in this case and failed to identify any methodology supporting such opinions.
