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  • Economics Expert Was Allowed to Opine on Kidney Transplant Allocations

    Economics Expert Was Allowed to Opine on Kidney Transplant Allocations

    Plaintiff Anthony Randall (“Randall”) is an individual residing in Los Angeles, California. Randall identifies as Black. As of the time of the filing of his complaint, he was on the waiting list for a kidney transplant.

    Defendant United Network for Organ Sharing (“UNOS”) is a private nonprofit organization that manages the national organ transplant waiting list. UNOS coordinates with transplant hospitals that refer patients seeking placement on the list. Defendant Cedars-Sinai Medical Center (“Cedars-Sinai”) is one of those hospitals.

    Randall has designated Professor David M. Cutler as an expert witness and submitted Cutler’s expert report. Randall retained Cutler to evaluate the following questions:

    “(1) Do you find to a reasonable degree of professional and scientific certainty in the field of health economics that there is a well-accepted methodology to determine how class members’ wait times, and thus changes to be offered acceptable kidneys, were impacted by Defendants’ use of the race-based coefficient? (2) If yes, what are the methodologies and what is the impact?”

    However, Defendants filed a motion to exclude the expert opinions of Cutler under Rules 401, 403, and 702.

    Economics Expert Witness

    David Matthew Cutler is the Otto Eckstein Professor of Applied Economics at Harvard University. He has earned a Ph.D. in Economics from the Massachusetts Institute of Technology in 1991 and an A.B. from Harvard University in 1987.

    Cutler has been on the faculty at Harvard for over 30 years. Moreover, Cutler’s work in health economics and public economics has earned him significant academic and public acclaim. Professor Cutler served on the Council of Economic Advisers and the National Economic Council during the Clinton Administration and has advised the Presidential campaigns of Bill Bradley, John Kerry, and Barack Obama as well as being Senior Health Care Advisor for the Obama Presidential Campaign.

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

    Discussion by the Court

    a. Under Rule 402, Randall has sufficiently shown that Cutler’s opinions are relevant and will help the trier of fact

    Defendants suggested that the evidence would be irrelevant to the trier of fact because “Cutler fails to identify a single definitive measure the trier of fact should use to identify specific violations of the Unruh Civil Rights Act.” They also reasserted the argument that Cutler’s model cannot distinguish harm caused by Defendants from harm caused by a third-party actor. Even accepting those arguments as true, however, they do not establish that the evidence is irrelevant. To the extent Defendants’ arguments diminish the relevance of Cutler’s opinions, they go to the weight of the evidence—not its threshold admissibility.

    b. Under Rule 702(c), Randall has sufficiently shown that Cutler’s methodology is scientifically reliable

    Randall has offered, and Defendants did not seem to meaningfully dispute, that Cutler’s use of simulation modeling and partial equilibrium analyses have appeared in peer-reviewed literature and amassed acceptance among peer-reviewed economics articles and researchers in the medical industry.

    Instead, Defendants argued that Cutler’s methodology is unreliable because it has “never been tested by anyone” or “admitted into evidence.” But the standard that Defendants suggested—that studies adopting a similar methodology to Cutler’s in the same field as Cutler did not support Randall’s argument because they did not “address the impact of the race-based coefficient on an offer and/or acceptance of a kidney transplant” or “apply Cutler’s unique modeling” as constructed for this case—appeared to reach beyond what Rule 702 requires. In other words, the Court need not find that someone in Cutler’s position has used this specific combination of models to resolve an identical factual question to Cutler to find that Cutler’s opinions are reliable.

    c. Under Rule 702(d), Randall has sufficiently shown that Cutler’s methodology was applied reliably to the facts of this case

    Defendants argued that Cutler’s methodology is premised on factually inaccurate assumptions that invalidate his approach and lead to incorrect and unreliable conclusions.

    The sole premise that Defendants attacked on this basis is “the premise that a patient qualifies to be registered on the national kidney list and otherwise begins to accrue wait time as soon as he or she has an eGFR score of 20 mL/min or less.”

    It did appear that Defendants have submitted some evidence that the 20 mL/min threshold did not govern every patient’s eligibility for transplant. At the hearing, Defendants argued that Randall has not actually shown that this fact is in dispute—that is, that 20 mL/min is actually the threshold at which a patient qualifies to be registered on the national kidney transplant list and otherwise begins to accrue wait time.

    It appeared to the Court that Randall has failed to establish that the 20 mL/min threshold is dispositive. But this is of no moment, as it appeared that even if not dispositive, if it is significant at all—and Randall has presented evidence that it is—this would be a useful assumption for Cutler to use in his model. The fact that his model did not attempt to—and therefore cannot—account for other factors did not make his conclusions unreliable.

    Held

    The Court denied Defendants’ motion to exclude the expert opinions of David Cutler.

    Key Takeaway

    The Court’s role is to “determine the scientific validity of an expert’s principles and methodology, not to determine whether their hypothesis is correct, or to evaluate whether it is corroborated by other evidence on the record.”

    So, to the extent that the parties dispute the significance of the 20 mL/min threshold, Defendants can cross-examine the witness on the reliance on what they see as a disputed or false assertion. An expert need not align with every aspect of Defendants’ interpretation of the evidentiary record to meet the Rule 702(c) threshold. To that end, the fact that Cutler’s assumptions rely upon disputed facts is a matter best resolved through cross-examination, not exclusion altogether.

    Case Details:

    Case Caption: Anthony Randall V. United Network For Organ Sharing
    Docket Number: 2:23cv2576
    Court Name: United States District Court, California Central
    Order Date: February 12, 2026
  • Insurance Expert’s Breach-of-Duty Testimony Admitted

    Insurance Expert’s Breach-of-Duty Testimony Admitted

    On May 19, 2023, Plaintiff John Gianacopoulos filed this action against Defendants Acuity, a mutual insurance company (“Acuity”), and Joyce Jackman & Bell, LLC (“JJB”), concerning a fire that occurred on September 12, 2022, at 1124 Saint Ann Street in Scranton, Pennsylvania (the “Scranton Property”).

    According to Plaintiff’s expert witness, James Stevenson, JJB breached its professional duty of care by failing to procure the correct policy for John Gianacopoulos and by failing to explain the differences in coverage between a homeowners’ insurance policy and a dwelling fire insurance policy.

    JJB has moved to exclude Stevenson’s expert report and testimony, arguing that they are inadmissible because it lacked the requisite reliability and application to the specific facts of this case in violation of Rule 702.

    Insurance Expert Witness

    James W. Stevenson is an underwriter, consultant, and broker with over thirty years of experience in the insurance field.

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

    Discussion by the Court

    Stevenson’s opinion is supported by his “education, training, experience and expertise in the property and liability insurance industry over the past [thirty-seven] years,” and, moreover, his opinion concerned facts pertinent to this case. He stated in his report that JJB should have been aware of the Plaintiff’s changed residence and that “once [JJB] was made aware that John Gianacopoulos had purchased a new home and was making it his residence, [JJB] was or should have been aware that the [Scranton Property] was no longer [his] residence.” As a result, the Court found that Stevenson has satisfied both contested prongs of Rule 702.

    He further opined that JJB breached its duty by failing to procure the correct policy for the Plaintiff’s Scranton Property—a dwelling fire insurance policy—that would have provided property coverage for the fire loss at the property. Stevenson also explained in his deposition that “it’s up to the agent, being the trained expert they are in the insurance industry, to recommend or explain the coverages available and the policies available to the insured/prospect,” and that JJB had an obligation to advise the Plaintiff in this action because “[y]ou can’t have two homeowners’ policies with primary residences.”

    Held

    The Court denied JJB’s motion to exclude the testimony of James Stevenson.

    Key Takeaway

    The expert’s testimony must be relevant to the purpose of the case and must assist the trier of fact. Stevenson’s opinion, as expressed in his report and at his deposition, created a genuine dispute of material fact as to the duty that JJB owed the Plaintiff, which must be determined by the factfinder.

    Case Details:

    Case Caption: Gianacopoulos V. Joyce Jackman & Bell, LLC
    Docket Number: 3:23cv992
    Court Name: United States District Court, Pennsylvania Middle
    Order Date: February 13, 2026
  • Economics Expert Allowed to Opine on Pass-Through Damages Estimates

    Economics Expert Allowed to Opine on Pass-Through Damages Estimates

    In this action, the Plaintiffs, the Attorneys General of most of the States and several U.S. territories (“the States”), alleged that twenty-six pharmaceutical companies (“the Defendants”) participated in an overarching conspiracy to fix prices, allocate markets, and rig bids in the sale of generic drugs for skin ailments, and are thus jointly and severally liable for violations of federal and state antitrust and unfair and deceptive practices laws.

    The States claimed damages on behalf of various downstream entities that allegedly purchased these drugs: state agencies and insurance plans, and also consumers and businesses within the applicable States. The States retained economist Hal Singer to calculate putative damages based on the theory that alleged overcharges were passed through numerous intermediaries and re-sellers, from drug manufacturers to these end purchasers. Defendants filed a motion to exclude certain opinions of Singer.

    Economics Expert Witness

    Hal J. Singer has researched, published, and testified on competition-related issues in a wide variety of industries, including media, pharmaceuticals, sports, and finance. He has extensive experience providing expert economic and policy advice to regulatory agencies in the United States and Canada, as well as before congressional committees.

    He has also served as expert for the Federal Trade Commission in a merger challenge and for several U.S. states in monopoly cases. The American Antitrust Institute honored Singer with an antitrust enforcement award for his work in Lidoderm Antitrust in 2018 and for his work in Cung Le, et al. v. Zuffa LLC, d/b/a Ultimate Fighting Championship in 2023. He received his M.A. and Ph.D. in Economics from The John Hopkins University.

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

    Discussion by the Court

    The Defendants filed a motion to exclude Singer’s opinion related to his pass-through damages estimates. To begin with, the Defendants argued that Singer’s analysis failed to differentiate between increases caused by an alleged overcharge and those caused by intermediaries’ independent pricing decisions.

    The Court disagreed. Singer relied on sales and cost data produced by various third parties to calculate pass-through at each stage of the generic pharmaceutical supply chain.

    The States need not isolate all possible causes of cost increases at each step in the distribution chain or show that the Defendants’ unlawful conduct was the sole cause of their injuries (or those of the consumers they represent). It is enough for them to show that the Defendants’ conduct was a substantial or materially contributing factor in producing their injuries.

    The Defendants filed a motion to exclude Singer’s opinion concerning deadweight loss. In the summary judgment ruling, the Court concluded that damages for deadweight loss (and consumer surplus as it relates to “general economy” damages) are not available. Based on that ruling, the Court held that Singer will not be allowed to opine on these issues, and thus the Defendants’ motion to exclude his opinions in this respect was denied as moot.

    Third, the Defendants filed a motion to exclude Singer’s opinion related to the putative premium increases that Managed Care Organizations (“MCOs”) charged to certain States.

    Here, too, the Defendants’ motion to exclude Singer’s opinion on this issue was denied as moot based on the summary judgment ruling.

    Held

    The Court denied the Defendants’ motion to exclude certain opinions of Hal Singer.

    Key Takeaway

    Congress’s 2023 amendment to Rule 702 made clear that: (1) a preponderance of the evidence standard applies to questions of admissibility under Rule 702; and (2) expert testimony “must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

    Singer’s report will assist the jury in deciding whether they have met that standard, and it is based on adequate data that he reliably applies. The Court found Singer’s opinion on pass-through damages estimates to be reliable and based on sufficient data.

    Case Details:

    Case Caption: Connecticut V. Sandoz, Inc.
    Docket Number: 3:20cv802
    Court Name: United States District Court, Connecticut
    Order Date: February 12, 2026
  • Forensic Engineering Expert Allowed to Opine on Tree Impact Damage

    Forensic Engineering Expert Allowed to Opine on Tree Impact Damage

    This matter arises out of an insurance claim filed by Plaintiffs, Grayson Smith
    and Savannah Smith, related to a tree impact that caused damage to their property located at 2811 Pebblewood Drive, Valdosta, Georgia 31602 on August 30, 2023.

    Auto-Owners retained expert Brent Boyd, a forensic engineer, to analyze the damage to the property. Plaintiffs’ arguments largely center on reliability. They argued that Boyd spent too little time conducting his inspection, employed a flawed and haphazard methodology, and did not adequately consider the findings of other engineers.

    Forensic Engineering Expert Witness

    Brent A. Boyd is a licensed engineer who received his engineering degree from the University of Alabama in 2010. He has inspected numerous properties affected by tree impacts and conducted evaluations of the damage thereto, including whether the structure had laterally shifted.

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

    Discussion by the Court

    Boyd determined that there was tree impact damage to the rear and left elevations of the property, specifically the rear sunroom and adjacent living room, which included shifting isolated portions of framing elements in that area.

    i. Experience and Qualifications

    Plaintiffs took issue with the fact Boyd had been licensed for less than four years at the time of the inspection at issue. They also stated that nearly all of his professional time is spent “looking at damaged roofs for insurance companies” and he was retained by Defendant 918 times.

    The Plaintiffs argued that Boyd lacked the necessary qualifications, noting that he did not hold a graduate degree, has never presented outside his own company, and has not published any work in the field of engineering.

    Firstly, the Court was unpersuaded that four years is too short a time to be qualified. Boyd’s degree and licensure indicated sufficient qualifications. If, as Plaintiffs maintained, their experts are better experienced than Boyd, that information is properly put before the jury at trial, not the Court in a motion to exclude. Secondly, Boyd has experience conducting evaluations of properties affected by tree impacts, like the instant case, including assessing whether the structure had laterally shifted, meaning a foundational issue related to racking. Third, and finally, the fact Boyd has worked for Defendant 918 times cuts against Plaintiffs’ arguments. 918 claim evaluations are a significant amount of experience. If even a minority of those claims considered the issue of racking, Boyd would still be qualified to testify.

    ii. Reliability

    Plaintiffs stated that Boyd was present at their property for about ninety minutes and never agreed to return for a more detailed inspection. Defendant noted that Boyd’s time spent at Plaintiffs’ property allowed him to inspect “all walls under the main area of impact” and publish a 73-page, peer-reviewed engineering report.

    Plaintiffs also argued that choosing which studs to measure by conducting a visual inspection is a “haphazard sampling” and “not a thorough, scientific approach,” which left “the vast majority of walls unmeasured and uninspected in any meaningful way.” This argument goes to the comprehensiveness of Boyd’s inspection, not its reliability.

    Plaintiffs’ critique of Boyd’s methodology focuses on his use of his bubble level. They argued that using a one-foot bubble level on a nine-foot wall, not insisting the bubble be centered between the level’s marked lines to declare a stud to be plumb, and his own data rendered his expert opinion unreliable.

    Defendants responded that it is not about the length of the level, but rather ensuring “the engineer uses it in accordance with proper scientific procedures.” The Court declared that Boyd’s choice of level is not disqualifying, particularly given his assertion he used it in compliance with proper scientific procedures.

    Plaintiffs argued that Boyd did not adequately consider the findings of other engineers because his findings disagreed with the reports of Plaintiffs’ experts and he did not re-evaluate Plaintiffs’ property after reading the disagreeing reports.

    At trial over a contested matter such as this one, experts are bound to disagree. Existence of disagreement neither disqualifies an expert nor renders him unreliable. And a refusal to change his findings or return to the property following the receipt of a disagreeing report did not render Boyd’s original findings unreliable.

    Held

    The Court denied Plaintiffs’ motion to exclude the testimony of Brent A. Boyd. 

    Key Takeaway

    An expert’s method need not be perfect, nor must he apply it perfectly. That is, a minor flaw in an expert’s reasoning or slight modification of an otherwise reliable method will not render an expert’s opinion per se inadmissible.

    Case Details:

    Case Caption: Smith V. Auto-Owners Insurance Company
    Docket Number: 7:24cv83
    Court Name: United States District Court, Georgia Middle
    Order Date: February 13, 2026
  • Emergency Medicine Expert Was Allowed to Opine on Medical Management

    Emergency Medicine Expert Was Allowed to Opine on Medical Management

    On September 27, 2022, Plaintiffs Aislyn Batista Acevedo, Ina Ruth Kessler Krugman, and minor A.D.S.B. (collectively, “Plaintiffs”) filed the instant suit on behalf of the late David Suárez (“Suárez”) against Ashford Presbyterian Hospital (“Presby”) and various other Defendants (collectively, “Defendants”).

    From September 29, 2021, until his death on October 23, 2021, Suárez was hospitalized at Presby and Doctors’ Center Hospital Bayamón (“Doctors’”). Plaintiffs alleged that, during the time that Suárez was hospitalized, Defendants failed to properly screen and treat Suárez in violation of the Emergency Medical Treatment and Labor Act (“EMTALA”).

    Plaintiffs also alleged that all Defendants are liable under Puerto Rico law for negligence and medical malpractice. To prove their claims, Plaintiffs intended to introduce at trial the expert testimony of Dr. Dainius A. Drukteinis regarding medical management. Defendants moved the Court to rule the proffered testimony of Drukteinis inadmissible.

    Emergency Medicine Expert Witness

    Dr. Dainius Albertas Drukteinis has been practicing emergency medicine for over twenty years.

    He graduated from Cornell Medical School in 2004. Drukteinis completed his emergency medicine training at NYU/Bellevue Hospital in New York City, finishing a four-year residency in 2008. He has served as an attending emergency medicine physician since 2008. He has previously served as an Assistant Professor of Emergency Medicine with the University of South Florida.

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

    Discussion by the Court

    Drukteinis provides a detailed account of his medical opinion that the physicians and staff at both Presby and Doctors’ breached the prevailing standard of care by failing to perform an MRCP or ERCP procedure, conducting poor transitions of care between medical providers during the time that Suárez was hospitalized, and transferring Suárez to another hospital facility when there was no valid reason to do so.

    A. The expert report of Drukteinis reliably identifies a standard of care applicable to Defendants

    Defendants argued that the expert witness opinion of Drukteinis is lacking in relevance and reliability because it assigned the same standards of care as to all seventeen medical practitioners sued by Plaintiffs: “notwithstanding the gamut of specialties involved in this case,” Defendants argued, “Drukteinis’ report did not identify the specific standard of care applicable to each physician, specialist, nurse practitioner, professional service corporation, or hospital.”

    Defendants’ argument is belied by the content of the report, which expressly sets forth three standards of care broadly applicable to all physicians who were responsible for the care of Suárez.

    It is therefore unclear why Defendants would argue that the expert report is deficient; indeed, the report specifically identified each Defendant physician in an account of the “chain of responsibility,” and identified three specific standards of care applicable to all of them.

    Moreover, Defendants identified no legal authority holding that, in multi-defendant medical malpractice cases, an expert report must set forth its conclusions regarding the standard of care with particularity as to each respective Defendant. Nor did Defendants explain why the fact that the conclusions adopted by Drukteinis are broadly applicable to various Defendants would render those opinions any less reliable or relevant under Rule 702.

    B. Defendants failed to identify any additional legal grounds for the exclusion of the proffered testimony of Drukteinis

    Next, Defendants moved the Court to exclude Drukteinis as a witness for “failing to provide opinions regarding causation vis-à-vis each Physician Defendant.”

    Defendants were incorrect when they claimed that an expert witness in a medical malpractice case “must” articulate an opinion regarding causation in order to testify.

    Drukteinis is not a party to this case and did not bear the burden to prove anything; instead, in civil litigation it is the Plaintiff who bears the burden to prove all three elements of a negligence claim. Accordingly, the Court declined to exclude the testimony of Drukteinis from evidence.

    Held

    The Court denied Defendants’ motion in limine seeking a ruling that the proffered testimony of Dr. Dainius Drukteinis was inadmissible.

    Key Takeaway

    Defendants fundamentally misapprehended the purpose of Rule 702 and the role of expert witnesses in federal court.

    Even assuming for the sake of argument that Defendants are correct that Drukteinis provided no opinion regarding causation in his expert witness report — a conclusion that the Court did not adopt — Defendants failed to explain why that would render his proffered testimony relating to the duty and breach elements of Plaintiffs’ negligence claim unreliable. The Court found that it would not.

    Case Details:

    Case Caption: Batista-Acevedo V. Presbyterian Community Hospital, Inc.
    Docket Number: 3:22cv1468
    Court Name: United States District Court, Puerto Rico
    Order Date: February 10, 2026
  • Construction Expert Was Not Allowed to Opine on Repair Costs

    Construction Expert Was Not Allowed to Opine on Repair Costs

    On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.

    The Church reported its claimed loss on September 1, 2020. TPCD retained Robin D’Aunoy to produce fixed-price bids that reflected the rebuild costs utilizing August, 2020 pricing.

    Church Mutual filed a motion to exclude or limit the testimony of D’Aunoy.

    Construction Expert Witness

    Robin M. D’Aunoy has decades of relevant experience as an estimator. Twenty-five years ago, he started his own construction estimating, consulting, and project coordination company, working for subcontractors and general contractors, architects, engineers, developers, mediators, and attorneys. Since 2005, he has provided expert witness services in court cases as an estimator and has worked with and for mediators, construction experts, and consultants.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Robin D’Aunoy’s expert testimony.

    Discussion by the Court

    D’Aunoy explained that he prepared the spreadsheet estimate based on what he would charge to do the work. To obtain his pricing, D’Aunoy called certain vendors in each area of skill or trade (“trade partners”), such as for the steeple, carpentry, floors, electrical, plumbing, HVAC, etc. and came up with a “conservative” number. Specifically, he testified that he “did a base price on an average cost,” using “a few estimates that I did during that year, and looked at some of the pricing that pertained to the project, with similar type projects.”

    Church Mutual argued that D’Aunoy’s methodology is unreliable, unrepeatable and unfounded because D’Aunoy has never been to TPCD site, either before or after Hurricane Laura.

    Church Mutual complained that D’Aunoy’s bid did not specify the type of flooring in specific rooms, the type of roof, and is generally not specific as to pricing.

    The Court found that D’Aunoy’s fixed-price bid did not meet the requirements of Rule 702 of the Federal Rules of Civil Procedure and Daubert. D’Aunoy’s fixed-price bid cannot be repeated; it cannot be tested. His methodology is flawed, and the fixed-price bid is unreliable, therefore, inadmissible.

    Held

    The Court granted Church Mutual’s motion in limine to exclude or limit the testimony of Robert D’Aunoy.

    Key Takeaway

    A key inquiry illuminating whether a methodology is reliable is whether it can be tested (and repeated) or subjected to peer review or publication.

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026
  • Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Accident Reconstruction Expert Was Not Allowed to Opine on the Maintenance of Gravel Roads

    Plaintiff Brooke Mann suffered serious injuries at a music festival in September 2021 when a shuttle tram on which she was riding tipped over on a sloped roadway.

    The Lost Lands Music Festival takes place each September at Legend Valley, a large outdoor venue near Buckeye Lake and Thornville, Ohio. The multi-day festival is dinosaur-themed and features electronic dance music. About 30,000 people attended the festival in 2021.

    Defendant Apex Event Management LLC is a Delaware company with its principle place of business in California. It promoted the festival in 2021, as it had previously. To present the festival, Apex contracted with other entities and individuals to acquire the necessary rights, to book talent, to market and sell tickets, and to obtain the goods and services needed for putting on the festival.

    Apex acquired the right to use Legend Valley through Defendant Trickle Productions LLC, an Ohio business.

    Plaintiff sued Apex Event Management, LLC and Trickle Productions, LLC whom she alleges are responsible for the accident under Ohio’s legal standards governing negligence.

    Plaintiff’s expert, James Crawford, has issued three separate reports. Apex and Trickle moved to strike the third report, dated December 12, 2024.

    Accident Reconstruction Expert Witness

    James B. Crawford is a forensic engineer and accident reconstructionist. He provides vehicular accident reconstruction services and has reconstructed over 750 accidents. He has provided expert testimony in Federal, State, and Municipal Courts.

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

    Discussion by the Court

    Defendants contended that Plaintiff improperly produced the third report after the Court’s August 26, 2024 deadline for the production of primary expert reports and even after the October 26, 2024 deadline for fact discovery.

    Whether the Third Report Qualifies as a Supplemental Disclosure

    Crawford’s third report is presented as a complete, stand-alone report. Even so, Plaintiff characterizes it as a supplemental disclosure under Rule 26(e)(2). She argued that disclosure of the third report was required because of new information she learned after Crawford prepared his second report.

    Zemba’s corporate representative, Bryan Paisley’s deposition did reveal a new fact – that in the course of creating the reconfigured section, Zemba placed dirt on top of the section of the road where the accident occurred. Had Crawford’s third report incorporated additional material to address that possibly new fact, then the Court would be inclined to agree with Plaintiff’s characterization of the third report as a supplemental disclosure. However, the third report did not even acknowledge, let alone discuss, the fact that dirt had been placed on top of the section of road where the accident occurred.

    The new “fact” which the third report instead addresses does not relate to the physical changes to the road but rather to Zemba’s motive in creating the new section of road. Paisley testified that Zemba built the new section – straighter and not as steep as the old section – because it would be easier for its dump trucks to use.

    The third report treated Paisley’s testimony as an admission that the old road was “unsafe.” Not only has Crawford mischaracterized Paisley’s testimony – insofar as Paisley testified that the new section was safer, not that the old section was unsafe – but the third report did not include any reconsideration of the conditions of the accident-scene road in light of Paisley’s testimony about dirt being placed on top of it during the 2022 reconfiguration. The Court thus found that the third report is not responsive to “information that was not available at the time” of the second report.

    Whether the Untimely Disclosure is Substantially Justified or Harmless

    The third report was indeed a surprise. Following the grant of prior extensions, the Court set a strict deadline of August 26, 2024 for the production of primary expert reports. It also set a dispositive motion deadline of December 20, 2024, and advised the parties that no further extensions would be granted. Plaintiff waited until after these deadlines to disclose the third report, and she did so only once Defendants’ motions for summary judgment were filed.

    The Court noted that the additional scope of Crawford’s third report (as compared to the second report) went beyond addressing Paisley’s purported admission that the accident-scene road was unsafe. Crawford added content discussing the Federal Highway Administration’s standards for the design and maintenance of gravel roads, the classification of the tram as a “commercial vehicle,” and the resulting implications under federal and state law.

    Because all of this additional material was first disclosed in the third report, Defendants did not have notice of Crawford’s new opinions until after the close of expert and fact discovery and after Defendants had moved for summary judgment.

    Held

    The Court granted the Defendants’ motion to strike the third report of Plaintiff’s expert James Crawford.

    Key Takeaway:

    While Defendants acknowledged that the new matters addressed in the third report have importance, Plaintiff has not provided a satisfactory explanation for the late disclosure of the third report. The reconfiguration of the accident road was known to Plaintiff several months in advance of the deadline for primary expert reports. To the extent Paisley’s deposition revealed a new fact (the placing of dirt on the old section of road) the third report does not address that fact.

    Case Details:

    Case Caption: Mann V. Lnkbox Group, Inc.
    Docket Number: 2:22cv2553
    Court Name: United States District Court, Ohio Southern
    Order Date: February 12, 2026
  • Insurance Expert Was Allowed to Opine on Property Coverage Claims

    Insurance Expert Was Allowed to Opine on Property Coverage Claims

    Church Mutual renewed an insurance policy issued to Chabad of New Mexico on June 2, 2022, which covered certain real property owned by Chabad in Rio Rancho, New Mexico. The policy includes a vacancy condition providing that if a building has been vacant for more than 60 consecutive days before a loss, coverage is limited. The policy eliminates coverage entirely for losses caused by vandalism, even though vandalism would otherwise be a covered cause of loss, and any otherwise covered loss is subject to a 15% reduction. A building is considered vacant when it lacks sufficient personal property to conduct customary operations.

    On December 28, 2022, there was an act of arson committed on a building covered by the Policy. On March 5, 2023, there was a second act of arson committed on the same building. Chabad submitted claims under the Policy to Church Mutual for both fires.

    On January 29, 2024, Church Mutual instituted this diversity action, seeking a declaratory judgment that it owes no duty to cover Chabad’s claims because the property was “vacant” for more than sixty consecutive days before the acts of arson, and therefore no coverage is owed pursuant to the Policy’s “Vacancy” loss condition.

    Chabad sought to introduce expert testimony “regarding insurance industry standards, customs and practices and about how Church Mutual Insurance Company deviated from those standards in its handling of the property damage claims.”

    In this regard, Chabad has hired Stuart Setcavage who purports to be “an expert in the field of insurance industry claim handling, policy interpretation and coverage analysis.” Church Mutual filed a motion to exclude Setcavage’s testimony.

    Insurance Expert Witness

    Stuart S. Setcavage has considerable experience in the handling and management of third-party, contractual and extracontractual lawsuits. He has learned industry claim handling standards based on personal learning, training, research, and industry experience for over three decades. His adjuster’s licenses in Texas, Florida, and West Virginia enjoy reciprocal agreements with most every state that requires licensing.

    He is a past president of the Pennsylvania Defense Institute and also served as chairman of its Coverage and Claims Practices committee. Throughout his career he has attended professional seminars and continuing legal education seminars related to insurance industry claims practices and procedure, auto law, policy, and coverage bad faith. He has given many presentations to both claims and law groups on insurance and claims-related topics, and served as faculty for the Pennsylvania Association for Justice, the Pennsylvania Bar Institute, the West Virginia Association for Justice, the Florida Justice Association, and the Kentucky Justice Association.

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

    Discussion by the Court

    a) Qualification

    Church Mutual initially argued that Setcavage is unqualified to offer expert opinions in this case because he lacks sufficient knowledge of property insurance policy language and property insurance adjusting to offer reliable opinions regarding the subject property.

    Church Mutual noted that Setcavage’s background is primarily in handling and supervising automobile insurance claims and most of the cases for which he has provided expert testimony involved automobile insurance claims.

    But Church Mutual did not articulate any difference between industry standards applying to claims handling under automobile insurance policies and property insurance policies that would render Setcavage’s knowledge, experience, education, and training as to the former irrelevant to the latter.

    As a result, the Court found that Setcavage is qualified by knowledge, skill, experience, training, and/or education to render an opinion on insurance practices and standards and whether Church Mutual deviated from those standards in its handling of Chabad’s claims and in renewing Chabad’s Policy in 2022 with the “Vacancy” loss provision.

    b) Usurping the role of the Court

    Church Mutual next argued that Setcavage’s interpretation of the Policy’s terms are legal conclusions that usurp the role of the Court. The Court agreed with Church Mutual that the interpretation and construction of an insurance policy is a question of law for the Court.

    The motion did not specify which of Setcavage’s opinions Church Mutual believes are legal conclusions. However, it appeared to object to Setcavage’s opinion that the plain language of the Policy’s “Vacancy” provision applies, rather than Church Mutual’s position that “vacancy” means “unused.”

    c) Reliability

    Church Mutual next argued that Setcavage’s opinion is unreliable because “no discernible methodology exists to guide Setcavage’s interpretation of the Policy.”

    The Court first found that Church Mutual’s argument is largely moot because it takes issue primarily with Setcavage’s interpretation of the Policy’s “Vacancy” loss condition, and the Court has already interpreted that provision and found that it does not preclude coverage. Thus, Setcavage’s interpretation of the Policy’s “Vacancy” loss condition will be relevant only to whether Church Mutual’s interpretation of the Policy’s “Vacancy” loss condition was frivolous, unfounded, or otherwise violative of the duty of good faith and fair dealing.

    He further stated that “claim professionals are trained to know that the plain meaning of an insurance policy will prevail unless its terms somehow violate public policy” and that “Church Mutual is attempting to redefine ‘vacancy’ to include factors not set forth in the policy it had underwritten and sold to this policyholder.”

    As to valuation, Setcavage stated that “claims professionals are trained to know that the plain meaning of an insurance policy will prevail unless its terms somehow violate public policy. Like ignoring policy definitions relative to coverage, calculating the loss differently than what the policy promises to pay violates industry standards.”

    It is unclear what more of an explanation Church Mutual believes is necessary in this context.

    d) Assist the jury

    Finally, Church Mutual argued that Setcavage’s testimony will not assist the jury because there is nothing about Church Mutual’s claim handling procedures or the principles of bad faith that would require any real expert opinion.

    Here, Setcavage has offered opinions that may assist the jury in deciding whether Church Mutual has engaged in bad faith insurance conduct. For example, he opines that Church Mutual’s handling of Chabad’s claims was “unfair” and “falls well below industry standards.” He further stated that “the purported investigation in this matter was woefully inadequate as is evidenced by the claim notes. In fact, the claim handling or investigation is indicia of a pre-determination to deny payment for these claims.”

    These opinions (and others) may assist the jury in determining whether Church Mutual engaged in bad faith insurance conduct under New Mexico law.

    Held

    The Court denied Church Mutual Insurance Company’s motion to exclude the testimony of Stuart S. Setcavage

    Key Takeaway

    District courts evaluating the reliability of non-scientific expert testimony do not have to focus on whether the expert employed an objective standard or methodology and can instead focus on the reliability of the expert’s personal knowledge or experience.

    Setcavage’s personal knowledge and experience permits him to offer an expert opinion regarding insurance industry standards, customs and practices and about how Church Mutual deviated from those standards in its handling of Chabad’s claims.

    Case Details:

    Case Caption: Church Mutual Insurance Company, S.I. V. Chabad Of New Mexico
    Docket Number: 1:24cv90
    Court Name: United States District Court, New Mexico
    Order Date: February 10, 2026
  • Economics Expert Was Allowed to Opine on the Cut-Off Date for Damages

    Economics Expert Was Allowed to Opine on the Cut-Off Date for Damages

    This is an employment lawsuit brought by Stephen (Rex) Sanders and Terri Levels, who both worked at the Bay Area Air Quality Management District. Sanders served as the Chief Administrative Officer, and Levels served as the Human Resources Officer. In 2023, the District terminated the employment of both Sanders and Levels.

    Sanders and Levels claimed that they were fired in retaliation for complaining about workplace discrimination. Plaintiff’s motion in limine sought to exclude Defendant’s highly credentialed economic expert Kaycea Campbell, Ph.D. from testifying altogether because a portion of her opinion asserted what Plaintiffs contended is a legal conclusion (i.e., that damages should be cut off on the date that Plaintiffs voluntarily withdrew from Defendant’s internal grievance process).

    Economics Expert Witness

    Kaycea Campbell holds a master’s degree and Ph.D. in economics, and has worked, consulted, taught, and published in this field for over two decades.

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

    Discussion by the Court

    Plaintiffs did not challenge Campbell’s qualifications or the reliability of her testimony under Rule 702, but instead challenged her use of the date of Plaintiffs’ withdrawal from the internal grievance appeals process as a cut-off for damages on the basis that this is a legal conclusion.

    However, Campbell may properly testify that, in her opinion, the Employment Development Department (EDD) requirements for unemployment claims are relevant in order to assess whether damages had been mitigated, and that those requirements involve pursuit of the appeals.

    Campbell need not be an HR expert to state that, from an economic perspective, the EDD’s guidance is probative of the industry standard, and may then provide the jury with a damages calculation based on applying the EDD’s standard.

    Held

    The Court denied Plaintiffs’ motion to exclude the testimony of Defendant’s economic expert Kaycea Campbell.

    Key Takeaway

    Campbell’s limited opinion about Plaintiffs’ claimed damages is admissible because she properly makes an expert assessment as to the relevant damages cut-off dates.

    Case Details:

    Case Caption: Sanders V. Bay Area Air Quality Management District
    Docket Number: 3:23cv4416
    Court Name: United States District Court, California Northern
    Order Date: February 03, 2026
  • Engineering Expert was Allowed to Opine on Hurricane Damage

    Engineering Expert was Allowed to Opine on Hurricane Damage

    On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.

    The Church reported its claimed loss on September 1, 2020. TPCD filed a motion to exclude the opinions of Lori Cox. TPCD maintained that Cox’s opinions will not assist the trier of fact, and they are unreliable and redundant.

    To begin with, TPCD argued that Cox’s testimony did not rely on any recognized engineering methodology or engineering analysis, and that she ignored a plethora of evidence.

    Engineering Expert Witness

    Lori Lynn Cox is a licensed Professional Engineer with over 25 years of experience in forensic engineering, specializing in structural failures, construction defects, premises liability, and construction-related injury investigations. She is currently Regional Manager for Engineering Design & Testing Corp. She is also licensed in 35 states and has served as a Regional Director with ProNet Group, where she led complex investigations involving property loss, liability disputes, and building performance issues.

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

    Discussion by the Court

    TPCD complained that Cox’s evaluation of the Sanctuary and Sunday School buildings was limited to a review of photographs and other engineers’ reports.

    However, the Court has reviewed Cox’s expert report to address TPCD’s complaints and finds that they are unfounded. The Court noted that Cox performed a site inspection of the TPCD buildings/structures, but the Sanctuary and Sunday School had already been demolished and rebuilt.

    Next, TPCD criticized Cox’s report because she allegedly did not give adequate evaluation of the pre-existing conditions of the buildings, referring to TPCD’s previous insurance claim as a result of the 2017 tornado. Again, the Court is confused as to what TPCD is complaining about.

    After all, Cox acknowledged that there was a “fractured and bowed roof framing of the Sunday School [that] was documented following the 2017 tornado effect…. This was documented in the estimate provided by Risk Management Services.”

    TPCD complained that Cox did not perform “any mathematical equations to determine the lateral loads that were presented to the building as a result of the hurricane.”

    Again, TPCD did not explain how her methodology is inappropriate because she did not perform any engineering calculations.

    TPCD also argued that Cox’s testimony and opinions are duplicative of Church Mutual’s principal expert. Church Mutual informed the Court that their expert’s work in this matter was to perform a limited visual inspection of the sanctuary, Sunday School and multipurpose building and recommend repairs/remediation of damages, whereas Cox was supposed to inspect the structures at issue and document their conditions with regards to improvements made following Hurricane Laura and/or Hurricane Delta. Church Mutual instructed Cox to provide an opinion as to the damage that was the result of Hurricane Laura.

    Held

    The Court denied TPCD’s motion to exclude the testimony of Lori Cox.

    Key Takeaway

    Rejection of expert testimony is the exception rather than the rule, and the court’s role as gatekeeper does not replace the traditional adversary system and the place of the jury within the system. Instead, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

    Please refer to the blogs previously published about this case:

    Insurance Expert’s Legal Opinions Excluded

    Construction Expert Allowed to Opine on Repair Estimates

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026