Plaintiff, Robert Rone (“Rone”) asserted claims against Kiesha Pettway, RN, and Felicia Crawford, CRNP, for alleged violations of the Fourteenth Amendment of the United States Constitution pursuant to 42 USC § 1983 relating to Rone’s incarceration at the Mobile County Metro Jail on May 7, 2021.
Crawford and Pettway filed a motion to exclude the testimony of Robert’s purported expert, Ramzy Rimawi, M.D., pursuant to Fed. R. Evid. 702.
Internal Medicine Expert Witness
Ramzy Husam Rimawi, M.D. received his M.D. from Ross University School of Medicine, after which he completed his Internal Medicine internship and residency training at NYU Lutheran Medical Center, followed by two clinical fellowships in Critical Care Medicine and Infectious Diseases.
He is triple American Board certified in Internal Medicine, Infectious Diseases and Critical Care Medicine.
Crawford and Pettway argued that Rimawi’s opinions did not assist the Court with the decision as to whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need. Crawford and Pettway argued that Rimawi did not know the actions or inactions that were taken by either of them and he did not analyze the medical care and treatment they provided to Rone.
Indeed, in Robert’s response to the motion to exclude, he acknowledged that Rimawi “does not know what the nurse Defendants did, what the jail or NaphCare policies are, or even what deliberate indifference is” and he is solely a causation expert in this matter, who opined the stress that Robert experienced from his arrest and surrounding events caused him to develop shingles and chronic postherpetic neuralgia, as well as suffer symptoms consistent with post-traumatic stress disorder. These may be effects, but this opinion is not relevant to the claims.
Since Rimawi’s expert opinions are limited to medical effects and do not address whether Crawford and Pettway were deliberately indifferent to Robert’s serious medical need, they are not relevant to the claims. Rather, they would only be relevant as to any damages. Since the Court determined summary judgment is granted on the claims for deliberate indifference to a serious medical need, the motion to exclude was denied.
Held
The Court denied Kiesha Pettway and Felicia Crawford’s rule 702 motion to exclude the testimony from Plaintiff’s purported expert Ramzy Rimawi, M.D.
Key Takeaway
The district court’s objective is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
In this landlord-tenant dispute, Defendant Gator Flower Mound, LLC (“Gator”) asked the Court to exclude the damages testimony of Alan Someck, the expert witness designated by Plaintiff Arch & Eng, LLC (“Z Grill” or “Plaintiff”), as irrelevant and unreliable.
Z Grill alleged economic injury due to problems with the premises it leased from Gator, the landlord. In December 2003, Plaintiff’s and Gator’s predecessors entered into a lease for a commercial premises located at the Marketplace at Flower Mound shopping center (the “2003 Lease” for the “Premises”). On March 02, 2016, Gator and Plaintiff executed an Assignment and Assumption of Lease, through which Plaintiff became the tenant at, and occupied, the Premises (the “2016 Assignment”).
In 2019, despite Plaintiff having complained of problems with the Premises since 2016, Plaintiff elected to enter into a Third Amendment to Lease, extending the 2003 Lease through January 31, 2025. Plaintiff abandoned the Premises in or around January 2024, and brought suit that same month, alleging that roof leaks and an odor had persisted through the entirety of its tenancy, and had caused Plaintiff to suffer economic harm.
Hospitality Expert Witness
Alan Someck has decades of experience in the hospitality industry as an owner, operator, consultant, and teacher. He has also served as a full-time Management Instructor at the Institute of Culinary Education in New York City and previously served as an Adjunct Professor of Hospitality Management at the New York Institute of Technology.
In his expert report, Someck posits that the presence of bad odors in and around Defendant’s leased property contributed significantly to Plaintiff’s purported loss of profits and investment capital.
I. Lost Profits
Defendant raised two arguments against Someck’s interpretation of Plaintiff’s proposed lost profits damages. First, Defendant averred that the leasing agreement between the parties prohibited recovery of consequential lost profits, rendering Someck’s opinion on the subject irrelevant. Second, Defendant claimed that Someck failed to deduct actual profits from claimed lost profits, rendering his opinion unreliable.
The Court previously held that Plaintiff may potentially recover its lost profits under the Contract if it proves those profits are a “direct,” as opposed to a “consequential,” result of Defendant’s wrongful acts. The Court also held that Plaintiff may potentially recover its lost profits under certain tort causes of action. Thus, Someck’s opinion is not irrelevant on these grounds. On the contrary, Someck’s opinion will likely be crucial in helping Plaintiff carry its burden at trial.
Defendant’s second argument is unpersuasive, as its claim that “Someck fails to deduct actual profits from claimed lost profits” is directly countered by the fact that Someck has since revised and reduced the applicable projected profits by $150,730.00 “based on the correct assumption . . . that actual profits needed to be subtracted from projected profits to get the corrected lost profits.” Because Someck has fixed the alleged “foundational flaw” in his methodology, the Court found that Someck’s testimony on Plaintiff’s recovery for lost profits is not unreliable.
II. Lost Investments
Defendant argued that Someck’s proposed testimony on Plaintiff’s “lost investments” should be excluded because of its irrelevance and unreliability.
Defendant argued that Someck has failed to connect any damage amount to any act or omission taken by Defendant and has instead merely combined all of Plaintiff’s business expenses over the years and offered it as proof of “lost investments.” The Court agreed, and found that Someck’s opinion on “lost investments” is impermissibly general under the facts of this case.
Someck did not offer any reasoning or methodology to explain how his definition of lost investments constitutes a compensable injury as opposed to an unrelated expense. Nor did Someck offer insight as to the source of these expenses. For instance, he did not identify which portions of the “lost investments” arose as a pecuniary loss from Defendant’s alleged negligent misrepresentation as opposed to Defendant’s alleged fraudulent inducement.
Second, Someck’s opinion is unreliable. Defendant has argued and provided sufficient evidence that Plaintiff’s “lost investment” damages constitute an impermissible attempt to recover for expenses borne by third parties. Someck’s testimony simply does not permit the Court to accurately distinguish between injuries incurred by Plaintiff and the injuries incurred by illusory “plaintiffs.” Neither Someck nor Plaintiff have clarified their interpretation of “lost investment” damages on this issue.
The Court excluded Someck’s expert opinion testimony as to Plaintiff’s lost investments.
Held
The Court granted in part and denied in part Defendant Gator Flower Mound, LLC’s motion to exclude the testimony of Alan Someck.
Key Takeaway
Relevance depends upon whether the expert’s reasoning or methodology properly can be applied to the facts in issue. The Court does not need help to add up numbers on a page. As a result, Someck’s bare assumption, combined with a receipt of gross expenses, is not sufficiently relevant to render his opinion admissible at trial.
Plaintiffs Robert and Jill Motto brought this action to recover for property damage to their home arising from a fire allegedly caused by a defective candle manufactured and sold by Defendants Newell Brands and The Yankee Candle Company.
During the litigation, Plaintiffs retained two experts, Roger Spadt and Dr. John Golder, to investigate the origin and cause of the fire. These experts concluded that the candle was the cause of the fire. Defendants disagreed and have moved to preclude both experts’ testimony, arguing that their opinions do not satisfy the minimum reliability requirements set forth in Federal Rule of Evidence 702.
Fire Investigation Expert Witnesses
Roger A. Spadt has over forty years of public and private experience investigating fires. He has worked as Assistant to the State Police Fire Marshal, was a Fire Marshal himself in a Lehigh Township fire company, and has been a private fire investigator since 2015.
John J. Golder is a former ATF officer and current forensic fire investigator with a Ph.D. in forensic sciences and over a decade of experience investigating product defects, including candles.
Based on his investigation, Spadt concluded that the fire was caused by the candle, which he deemed “the only competent ignition source within the area of the fire’s origin.”
Defendants argued that Spadt’s testimony is not reliable because he failed to follow industry guidelines for methodology in fire investigations. Specifically, Defendants argued that he failed to properly analyze the origin of the fire according to the scientific standards set forth in NFPA 921.
1. Industry Guidelines for Fire Investigations
The National Fire Protection Association published an industry guide for investigations into the origin and cause of fires, “NFPA 921.” NFPA 921 sets forth the scientific methods the Association recommends investigators use to determine the cause of a fire. This scientific method generally requires an investigator to “define the problem, collect data, analyze data, develop hypotheses, test the hypotheses, and select a final hypothesis.”
The parties disagreed about the degree to which an investigator must follow every provision of NFPA 921.
Defendants characterize NFPA 921 as “the universally accepted peer-reviewed comprehensive guide to procedures and techniques for fire investigations in the United States.” Plaintiffs have the better argument. The plain text of NFPA 921 makes clear that it is not an exacting set of rules. Section 1.3 states that “deviations from these procedures . . . are not necessarily wrong or inferior.” It explains that “every fire and explosion incident is in some way unique and different from any other,” therefore the guidelines are “not designed to encompass all of the necessary components of a complete investigation or analysis of any one case.”
2. Application of Industry Guidelines by Spadt
It is clear from Spadt’s report that he employed a scientific method that generally comports with the approach outlined in NFPA 921. Spadt collected data by examining the fire scene, taking photographs of the damage, creating a field diagram, and conducting witness interviews.
Spadt also considered alternative causes of the fire, including by examining the home’s branch circuit electric conductors and a ceiling fan as potential induction sources, but ruled out these options because they were inconsistent with the physical evidence and witness interviews.
Finally, even if Spadt’s processes did not adhere to NFPA 921 standards, they independently satisfy Rule 702 and Daubert. Spadt applied the “methods and procedures of science” (in this case, electrical engineering and fire science) to the physical evidence and witness interviews he reviewed in this case, so his opinion rests on “good grounds.”
At bottom, the various issues Defendants raised with Spadt’s testimony are probative of the weight his testimony should be afforded, not the reliability of his methodology. Accordingly, the Court denied Defendants’ motion to preclude Spadt’s testimony.
B. John J. Golder
To begin with, Golder reviewed photographs of the fire scene and witness interviews and conducted a burn test on the same type of Yankee candle. He also determined that the fire was caused by the candle, “which had been burning for an extended period, causing the candle to reach flashover conditions due to the inability of the metal container allowing the heat to dissipate.”
Defendants argued that Golder’s testimony is unreliable because it is not based on sufficient facts or data, not the product of reliable principles and methods, and his conclusions are based solely on unfounded speculation.
1. Insufficient Facts/Data
Defendants argued that Golder’s opinion that the candle reached flashover conditions that resulted in an explosion igniting the materials on the dining room table was reached “without evidence.”
However, Golder based his report on a variety of evidence. He examined the candle’s remains, reviewed photographs and x-rays of the damage to the house, reviewed deposition testimony of witnesses in this case, and conducted a burn test on an identical Yankee candle. Golder also consulted candle safety standards and peer-reviewed literature and employed his knowledge of forensic science, fire dynamics, chemistry, physics, and origin and cause investigations. All of these inputs constitute “good grounds” for Golder’s opinion.
2. Unreliable Methods & Application of Methods
Next, Defendants argued that Golder’s opinion is not based on any scientific method but on mere speculation and his own ipse dixit.
However, Golder relied on his expertise in fire dynamics, fire science, physics, and chemistry, and used that background to examine the candle’s remains, review photographs, x-rays, and deposition testimony, and conduct a burn test of an exemplar Yankee candle. He also consulted relevant literature on fire causation from candles.
In the conclusions section of his report, Golder articulated how his scientific analysis informed his opinion. For instance, he explained that when a glass container is placed into a metal container, it is harder for radiant heat to dissipate away from the glass, meaning the container acts as a heat sink to re-radiate energy back into the glass and cause a flashover. A flashover can cause the flame height to increase, which can break the glass and cause the fire to spread to nearby surfaces. These explanations bridge the gap between Golder’s conclusions and his data and methods.
3. Defendants’ Remaining Arguments
Defendants raised several additional issues with Golder’s report. Namely, that (1) he failed to consider alternative causes of the fire; (2) the burn test he conducted on an exemplar candle and metal holder was not adequately explained and/or sufficiently similar to the circumstances of the fire; and (3) Golder failed to consider the role that Plaintiffs played in causing the fire.
Since these arguments are more probative of the weight to be afforded to Golder’s testimony than the reliability of his methods or conclusions, the Court held that Golder’s conclusions met the minimum reliability requirements of Rule 702.
Held
The Court denied the Defendants’ motion to preclude the testimony of Plaintiffs’ experts Roger Spadt and Dr. John Golder.
Key Takeaway
Courts considering Daubert motions in fire damage cases have found that similar investigatory processes satisfied NFPA 921. Thus, Defendants are wrong that any minor deviation from the guidelines renders Spadt’s investigation unreliable.
Case Details:
Case Caption:
Motto V. Newell Brands Inc.
Docket Number:
2:24cv1338
Court Name:
United States District Court, Pennsylvania Eastern
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 underestimated the cost of repairs. The five (5) buildings considered “Covered Property” at issue in this litigation are identified as: (1) the Sanctuary, (2) the Activity Center, (3) the Sunday School/Fellowship Hall, (4) the Mobile Home, and (5) the 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 has retained Louis G. Fey, Jr. as their expert on insurance claims handling, underwriting, and bad faith.
Church Mutual filed a motion to preclude Fey from testifying as to any legal conclusion, including using terms or phrases such as “arbitrary,” “capricious,” “without probable cause,” “misrepresented”, “vexatious”, or “untimely” as these are legal terms of art.
Insurance Expert Witness
Louis G. Fey, Jr has over 43 years of practical experience handling complex property casualty claims and related litigation, directing, and overseeing insurance company defense counsel, managing, and directing claim, underwriting, and agency operations.
To begin with, Church Mutual maintained that Fey’s report and opinions contained therein, misstate alleged facts, made irrelevant assumptions and conclusions, made legal conclusions about coverage of TPCD’s claims and Church Mutual’s alleged bad faith, and contains unsupported opinions concerning whether Church Mutual and TPCD complied with certain policy provisions.
Church Mutual moved to preclude Fey from testifying as to any legal conclusion, including using terms or phrases such as “arbitrary,” “capricious,” “without probable cause,” “misrepresented”, “vexatious”, or “untimely” as these are legal terms of art.
However, TPCD informed the Court that Fey will not be testifying or providing legal conclusions at the trial of the matter and reminds the Court that it has permitted Fey in past trials to testify as to “the facts with regard to Defendants’ handling of the claim, the general nature of the claims handling process, and the applicable industry standards in handling property damage claims.”
Moreover, the Court in several of the cases citied herein has denied Daubert motions finding the Fey has a vast amount of experience and will be permitted to testify about insurance claims handling practices, insurance industry standards, customs, and practices applicable to handling insurance claims. However, this Court has never allowed Fey to provide legal opinions.
Held
As a result, the Court granted in part and denied in part Church Mutual’s motion in limine to exclude or limit the testimony of Louis G. Fey, Jr.
Key Takeaway
In conclusion, Fey was prohibited from testifying regarding any legal opinion or legal conclusion including testimony as to Church Mutual’s alleged “bad faith” or use terms or phrases that purport to draw a legal conclusion.
Please refer to the blog previously published about this case:
This case features a collapsed Ponzi scheme, more than 200 investor-victims, and a federal equity Receiver. The Receiver sued Baker Donelson law firm and two of its former employees— individuals now with federal criminal convictions—for aiding and abetting, civil conspiracy, and other claims under Mississippi law. She seeks to hold them accountable for “the unsustainable liabilities inflicted by the Ponzi scheme” that harmed Madison Timber Properties’ “ability to repay [its] investors.”
The Receiver hired Marta-Ann Schnabel to provide expert opinion on law practice management. Baker Donelson moved to exclude Schnabel’s opinion.
Law And Legal Expert Witness
Marta-Ann Schnabel is the managing director of O’Bryon & Schnabel, PLC, a firm established 25 years ago at the turn of the millennium.
Over the last ten years, she has focused on defending professional (primarily legal) malpractice matters and assisting lawyers and judges with legal ethics issues. She is a 1978 graduate of Memorial University of Newfoundland, Canada, with a B.A. Honours in History. She received her Juris Doctorate from Loyola University College of Law in 1981, where she served as a member of Law Review and of the National Moot Court Team.
Schnabel served as President of the Louisiana State Bar Association and of the New Orleans Bar Association. She has been a member of the LSBA’s Rules of Professional Conduct Committee for 20 years, and she was a member of the LSBA’s Ethics Advisory Service Committee for 15 years.
The Receiver hired Schnabel to offer expert opinion on law firm management. Schnabel provided the following opinions: (1) Baker Donelson’s managerial and supervisory controls did not match the standards set by Baker Donelson’s Employee Handbook/Code of Business Conduct, By-laws, or good practice. The firm took no steps to enforce its own rules to supervise or limit the work of Jon Seawright and Brent Alexander.
(2) Rule of Professional Conduct 1.8 prohibits lawyers from entering into business transactions with clients, but Baker Donelson did not inquire about potential conflicts of interest based on the open and obvious way Seawright and Alexander conducted their timber business at the Baker Donelson Jackson office. Baker Donelson had a duty pursuant to Rules of Professional Conduct 5.1 and 5.3 to know about and supervise Alexander’s business activities, and there should have been concern that the relationship between Seawright and Alexander brushed up against Rule 5.4(b). Baker Donelson’s managerial and supervisory controls did not match the standards intended by the Rules of Professional Conduct.
(3) Baker Donelson should have known that Alexander and Seawright were operating this investment enterprise out of the Baker Donelson Jackson office. Baker Donelson did not take any adverse action, which demonstrates a lack of management and supervisory controls and falls below the standard of care required by Baker Donelson’s internal policies, the Rules of Professional Conduct, and the standard of care for law firms.
Analysis
Qualification
The firm argued that Schnabel is not an expert on Baker Donelson policy, that argument misapprehends her proffered area of expertise. She is offered as an expert in firm management. As part of developing her opinions, she reviewed Baker Donelson’s internal policies, to develop an opinion on firm management practices at Baker Donelson with respect to its internal procedures. Upon review, the Court is satisfied that Schnabel is qualified to offer expert opinion on law firm management.
Relevance
Baker Donelson challenged Schnabel’s proffered opinions of grounds of relevance and reliability. The Court first dispenses with the issue of relevance. Schnabel’s opinions are relevant to matters in this case.
Issues before the jury include whether Baker Donelson impliedly or otherwise authorized Seawright’s and Alexander’s timber business and whether, after the fact, Baker Donelson ratified that business by failing to take any adverse action. Whether, for instance, Baker Donelson followed its own internal procedures, including supervisory and disciplinary procedures, with respect to Alexander and Seawright could tend to show failure to supervise, authorization, and/or ratification of their actions. The Court found that these opinions satisfy the relevance requirement imposed by Daubert.
Reliability
As for reliability, Schnabel testified that the majority of her knowledge comes from a variety of professional experiences. She may draw on those experiences to inform the standard of care about which she intends to testify.
Baker Donelson also attacked Schnabel’s opinion as lacking a basis with respect to the firm’s failure to take action against Seawright and/or Alexander. There appears to be a basis for this opinion in, for example, admissions and interrogatory responses given by Seawright and Alexander. Likewise, Baker Donelson raised other attacks on Schnabel’s proffered opinions, but none rise to the level of defeating the presence of relevance or reliability. Testimony offered by Schnabel must still comport with the rules of evidence and may not veer outside the proper scope of expert testimony, but the Court is satisfied that her proffered opinions comply with the rules and guidelines set forth by the Supreme Court in Daubert such that exclusion is not required.
Held
The Court denied Baker Donelson’s motion to exclude the testimony of Marta-Ann Schnabel.
Key Takeaway
No one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience. A witness’ experience, studies and education, combined with a review of the relevant materials can provide a reliable basis for expert testimony.
Please refer to the blog previously published about this case:
Plaintiff Barrett Business Services, Inc. (“BBSI”) is a human resources management company that contracts with small and medium-sized businesses to provide human resource management solutions, including temporary staffing and professional services. It provided these services to employers throughout the Yakima area and particularly to fruit growers and other agricultural companies.
On April 23, 2014, BBSI hired Defendant Charles Colmenero (“Colmenero”) as an area manager to start on May 12, 2014. Colmenero quit BBSI on July 12, 2022. On July 17, 2015, BBSI hired Defendant Santiago Alejo (“Alejo”) as a Recruitment Specialist to start on July 27, 2015. Alejo quit BBSI on July 8, 2022. Colmenero and Alejo set up their own business, Repsel Associates, Inc., d/b/a/ Personna Employment Solutions (Personna).
Plaintiff brought this suit against Defendants alleging various claims including violation of the Washington Uniform Trade Secrets Act (“UTSA”) and the Federal Defend Trade Secrets Act (“DTSA”) through misappropriation of trade secrets. Defendants also asserted several counterclaims against Plaintiff.
Plaintiff has submitted an expert report and declaration by William E. Partin (“Partin”) pertaining to Plaintiff’s alleged damages. Defendants have filed a Daubert motion to exclude Partin’s testimony.
Accounting Expert Witness
William E. Partin is the President of the accounting firm of Mueller & Partin Forensic Accountants and Forensic Economists where his practice is the economic analysis of damage claims in disputes involving personal injury, wrongful death, business income losses and business valuations. He is a member of the American Institute of Certified Public Accountants, the National Association of Forensic Economists, the Washington Society of Certified Public Accountants and the American Society of Appraisers.
Partin has been qualified as an expert witness in the fields of economics, business valuation and accounting. He has testified in numerous states regarding damage measurement issues. Partin has provided seminars to the insurance industry on measurement of economic damages as well as published articles concerning the framework for the measurement of business income losses. He received his Bachelor’s Degree in Business Administration. from Washington State University and has been practicing since 1976.
Defendants did not challenge Partin’s qualifications as an accountant but rather contended Partin’s testimony is unreliable because it is based on false assumptions and conclusory methods.
To begin with, Partin summarized all of Personna’s invoices issued to its clients from July 2022 through August 2023. He then identified nine of those clients invoiced as having been clients of BBSI within one year prior to Defendants’ end of employment with BBSI and that were directly managed by Colmenero and Alejo while they were employed by BBSI.
Partin also compared BBSI’s contribution margins realized for its Yakima, Moses Lake, and Hermiston branches from January 1, 2021 through July 31, 2022, prior to Defendants leaving BBSI, to those contribution margins realized for the same branches August 1, 2022 through September 30, 2023, after Defendants left BBSI. Partin found that BBSI incurred a decline in gross revenue and contribution margins for the year after Defendants left BBSI and attributed the total lost contribution margin to Defendants’ misappropriation which totaled $1,254,960.
Finally, Partin calculated the total estimated lost contribution to BBSI’s profit and overhead for the next ten years, based on anticipated BBSI testimony that the average customer retention is approximately ten years, by combining the $801,840 allegedly already realized the first year with the $1,254,960 that BBSI would have realized each year for the next nine years but for Defendants’ misappropriation.
Analysis
To the extent Partin’s testimony contains legal conclusions, those must be excluded. However, the Court found that Partin’s methodology behind his first calculation of BBSI’s estimated damages from the actual revenue realized by Personna over the fourteen-month period from nine previous clients of BBSI that were directly managed by Defendants to be sufficiently reliable to avoid exclusion.
Partin’s testimony as to calculated future loss profits based on the decline in revenue across BBSI’s geographically adjacent branches in the year after Defendants’ departure from BBSI is however too speculative. Partin was told by BBSI to assume that the decline in revenue across all branches was a result of Defendants’ misappropriation of trade secrets. Now that the Court has dismissed Plaintiff’s trade secret claim as to its temporary-employee list, BBSI’s list of its clients’ pricing and needs is the only remaining possible trade secret misappropriation claim that is at issue in this case. As such, Partin’s damages calculations stemming from BBSI’s lost revenue is overly broad.
First, Partin’s calculations of lost revenue from 2022 to 2023 include many customers that contributed no revenue to BBSI from August 2022 through September 2023 but nor were they invoiced by Personna between July 2022 and August 2023. Partin’s damages calculation based on an assumption that all of BBSI’s loss in revenue across all three branches between 2022 and 2023, a total of $1,254,960, was attributed to Defendants’ misappropriation of BBSI’s clients’ pricing and needs is not calculated with reasonable certainty.
Therefore, by extension, Partin’s assumption that that $1,254,960 loss in revenue would have been realized each year for nine years thereafter if not for Defendants’ misappropriation was also not calculated with reasonable certainty and was excluded by the Court.
Held
The Court granted in part Defendants’ motion to exclude the testimony of William Partin.
Key Takeaway
While an expert cannot testify to a matter of law amounting to a legal conclusion, the Court found that Partin’s report sufficiently raises an issue of fact as to the damages element of Plaintiff’s misappropriation claim. It should be noted that Partin’s testimony was not fully excluded by the Court.
Defendants Brandon Washington and Maria Georgianna Palm are charged with various crimes arising out of their scheme to recruit, entice, harbor, transport, provide, obtain, and maintain vulnerable women, and to perform commercial sex acts for their financial benefit via threats of force, fraud, and coercion.
The United States of America filed a motion in limine to exclude the testimony of Defendant Brandon Washington’s expert, Dr. Justin J. Lehmiller.
The Government asked the Court to exclude the testimony of Lehmiller as an expert for several reasons: First, he is not qualified to educate the jury on the topic of sex trafficking, or commercial sex work. Second, he failed to comply with Rule 16(b)(1)(C)(iii) by failing to identify the opinions he will offer. Third, his proposed testimony will attempt to define the law, or it is irrelevant and not likely to assist the jury in deciding the facts in this case. And fourth, it violated Rule 403 because his proposed testimony is substantially outweighed by the danger it would confuse and mislead the jury.
Psychology Expert Witness
Dr. Justin J. Lehmiller is a social psychologist, author, and senior research fellow at the Kinsey Institute at Indiana University. Lehmiller received his Ph.D. in Social Psychology from Purdue University. He has authored books such as Tell Me What You Want: The Science of Sexual Desire and How It Can Help You Improve Your Sex Life and The Psychology of Human Sexuality (third edition published in 2023). The Psychology of Human Sexuality is a textbook that is used in college classrooms around the world. He has also published extensively in peer-reviewed journals on sexual behavior, marginalized and stigmatized relationships, casual sex, and consensual non-monogamy.
While Lehmiller’s disclosure suffered from some deficiencies, primarily the lack of specific opinions, the Court did not find them so limiting as to warrant exclusion. The fact remains that he did identify the subject-matter topics he proposed to testify about. In essence, he provided notice of his expert opinions in summary fashion via general categorizations.
Next, the Government suggested that Lehmiller’s testimony will impermissibly attempt to define the law and usurp the role of the Court by defining coercion or sex trafficking concepts. The Court will not tolerate this practice from any expert or the Government’s expert. Lehmiller will be permitted to provide testimony about the voluntary adult sex-worker subculture. He will not be permitted to define legal terms or attempt to tell the jury what the law is. Nor will he be allowed to opine on what he believes constitutes illegal coercion, or define what situations constitute “voluntary” sex work from “exploitation” or “trafficking” or attempt to redefine statutory terms.
It appeared to the Court that Lehmiller’s expert disclosure was timely, and the Government has been provided with adequate notice and is not claiming surprise. Moreover, there are no allegations that the defense seeks to introduce undisclosed areas of his testimony.
Moreover, the Government is free to attack Lehmiller’s qualifications or the lack thereof. It will be up to the jury to determine how much weight should be accorded to his opinions, but the remedy of outright exclusion is not warranted.
Finally, the Court did not find that Rule 403 would be violated by allowing this testimony. Providing testimony to provide background, contextual testimony to assist the jury in understanding subject matter outside common experience is relevant and not prejudicial to justify exclusion.
Held
The Court denied the Government’s motion to exclude the testimony of Dr. Justin Lehmiller.
Key Takeaway
While Lehmiller’s background may be deficient in having exhaustive knowledge of the sex trafficking industry, that is not the standard for Rule 702 admissibility. The Court finds that while not overwhelming, when considering the totality of his education, research and training, Lehmiller’s proposed testimony meets the thresholds of relevance and reliability.
Please refer to the blog previously published about this case:
This case features a collapsed Ponzi scheme, more than 200 investor-victims, and a federal equity Receiver. The Receiver sued Baker Donelson law firm and two of its former employees— individuals now with federal criminal convictions—for aiding and abetting, civil conspiracy, and other claims under Mississippi law. She seeks to hold them accountable for “the unsustainable liabilities inflicted by the Ponzi scheme” that harmed Madison Timber Properties’ “ability to repay [its] investors.”
Baker Donelson hired Robert L. Gibbs to provide expert opinion on notaries in the State of Mississippi. The Receiver filed a motion to exclude Gibbs’s opinion.
Law And Legal Expert Witness
Robert Gibbs is a licensed Mississippi attorney with over 40 years of experience, including time serving as a state Circuit Judge.
To begin with, the Court is not convinced that Gibbs is qualified to offer expert testimony in the proffered field. The Court is not convinced there even is such a field of specialized expertise “on the use of notarial officers (‘notaries’) in the State of Mississippi.”
And, assuming there is, Gibbs’ experience, though impressive, does not demonstrate how he would have any special insight into the notarial process that was unavailable to anyone with a general legal background, or even any person who has had occasion to have documents notarized.
Finally, Gibbs answers certain questions largely by quoting a Mississippi Supreme Court case and the Mississippi Administrative Code. Also, Gibbs opined that the notaries breached their professional obligations and deviated from the standard of care for notarial practice in Mississippi. However, these are mere summaries of the law. To sum up, the purpose of expert testimony is not to render legal conclusions.
Held
The Court granted Receiver’s motion to exclude the testimony of Robert Gibbs.
Key Takeaway
Since there is no indication that Gibbs’ opinion would provide any special insight that would not already be known to a lay person who has had occasion to interact with a notary, the Court held that his opinions venture outside the proper scope of expert testimony, are unhelpful to the jury, and must be excluded.
Case Details:
Case Caption:
Mills V. Baker
Docket Number:
3:18cv866
Court Name:
United States District Court for the Southern District of Mississippi, Northern Division
This matter involves an insurance claim for damages associated with hurricane Laura. On or about September 16, 2020, Plaintiff, The Pentecostal Church Of Dequincy (“TPCD”) retained a public adjuster, Chris Tremaine. Tremaine worked with Church Mutual’s field adjuster, Trey Johnson, to schedule a joint inspection of TPCD’s campus on September 30 and October 1, 2020. Tremaine worked with Kelly Spence, a specialist for the estimating program, Xactimate. However, due to the volume of cases Tremaine and Spence were undertaking, they retained Joe Taylor to perform the preliminary task of taking measurements and developing rough Xactimate estimates for TPCD’s campus buildings.
Taylor produced rough estimates for five (5) structures dated November 25, 2020. Kelly Spence then reviewed these rough estimates and made necessary corrections to measurements and building finishes for the three larger structures, the Sanctuary, Sunday School, and Activity Center. These three (3) corrected Xactimate estimates were completed on or about December 9 and December 10, 2020.
Joe Taylor’s November 25, 2020 rough estimates for the Sanctuary, Sunday School and Activity Center were never produced to Church Mutual Insurance (“CMI”) as part of the claim adjustment process. They were produced by TPCD’s counsel to CMI’s counsel only two (2) years after the loss.
Motion to Exclude
CMI’s Neil Wright, a construction consultant, produced an expert report evaluating the differences between Taylor’s November 25, 2020 Xactimate rough estimates for the Sanctuary, Sunday School and Activity Center and Kelly Spence’s corrected estimates for the December 8, 2020 Activity Center estimate and the December 10, 2020 corrected estimates for the Sanctuary and Sunday School.
To simplify, Wright compared three (3) rough estimates that were never produced to CMI for claim purposes with three (3) corrected versions that were presented to CMI.
TPCD filed a motion to exclude Wright’s expert testimony because this simple task does not involve any specialized knowledge (only a calculator) and clearly will not provide any assistance to the trier of fact.
Construction Expert Witness
Fred Cornelius (Neil) Wright III is a senior forensic building consultant whose experience includes conducting thousands of building inspections and more than 2,000 post-catastrophe inspections following major hurricanes. He regularly prepares and analyzes repair estimates.
Church Mutual remarked that Wright inspected the TPCD properties on March 27, 2024, and reviewed an exhaustive list of estimates, photographs, and documents associates with this litigation. He then authored a detailed expert report which included an analysis of the November 25, 2020, and December 8-10, 2020, Exact Estimates produced by Plaintiff.
Wright testified that his role included the following: “analyze the data that’s provided, do a comparative analysis of photographs, create an estimate using Xactimate and RSMeans to further the process, and put a price on the recommended scope of repairs. . .”
Church Mutual contended that the two estimates reflect a change in scope, quantities or materials because they both utilized the same October 2020 price list. Thus, Church Mutual posits that Wright’s testimony is necessary and helpful to understand where the increases originated and what they represent.
TPCD moved to exclude the first Exact Estimate because it was not the estimate that it submitted to Church Mutual for its claim of damages. Church Mutual argues that its expert should have the opportunity to explain to the jury, line-item-by-line-item, each change which resulted in an increase of $274,707.83 in estimated damages from its initial estimate. Church Mutual also contended that its experts should be allowed to analyze materials produced in discovery to show the existence of materially different estimates prepared by Plaintiff’s representative, which goes to TPCD’s credibility, consistency, and intent. The Court agreed with Church Mutual that this evidence is relevant and admissible.
Held
The Court denied The Pentecostal Church of DeQuincy’s motion to exclude the testimony of Neil Wright.
Key Takeaway
Wright’s testimony will assist the trier of fact because he conducted a line-by-line comparative analysis of complex estimates to identify changes in quantities, materials, scope, and pricing which requires specialized knowledge of estimating methodology and construction practices.
Case Details:
Case Caption:
Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
Defendants Brandon Washington and Maria Georgianna Palm are charged with various crimes arising out of their scheme to recruit, entice, harbor, transport, provide, obtain, and maintain vulnerable women, and to perform commercial sex acts for their financial benefit via threats of force, fraud, and coercion.
The government retained FBI Supervisory Special Agent Steven Vienneau to testify at trial about the commercial sex industry and the commercialized sexual exploitation of victims by individuals who manipulate, coerce, entice, persuade, and control individuals to participate in prostitution.
The Defendants contended that the agent is unqualified to opine on adult consensual sex work dynamics in cases involving adult women. They argued that his professional background is “overwhelmingly” rooted in child exploitation and juvenile sex trafficking. Defendants also contended that his proposed testimony fails Fed. R. Evid. 702 reliability requirements. And last, Defendants asked the Court to exclude the testimony under Fed. R. Evid. 403 suggesting the risk of unfair prejudice given the testimony invokes emotionally charged concepts.
Law Enforcement Expert Witness
Steven Vienneau has been a Special Agent with the FBI since 2003. He supervised the squad responsible for investigating crimes against children and human trafficking including abductions homicides sexual abuse sex trafficking labor trafficking enticement child pornography and online sexual exploitation of children. He also provided training to local state federal and international law enforcement partners in conducting investigation into these matters.
The essence of the testimony of Vienneau is to provide expert testimony about the pimp-prostitute relationship and subculture. According to the Court, such evidence will assist the jury in assessing the veracity of witness testimony who may be testifying about relationships between pimps and prostitutes. It will also assist the jury in understanding the subculture of the sex trafficking industry.
The Defendant’s allegation that the agent lacks qualifications to provide expert testimony on adult sex trafficking fails to consider the extent and depth of his experience. His experience is not limited to only minors. As explained in his disclosure, since 2004 his experience has been involved in human trafficking involving both adults and minors. His qualifications involve interviewing over 200 females involved in commercial sex, including approximately 125 adults and 75 minors. Based upon the Government submissions, Vienneau is qualified to testify as an expert on the topic of sex trafficking subculture of adults due to his knowledge, experience, training and education.
The Defendants contended that Vienneau did not meet the reliability requirement of Rule 702. The Government disclosures belie the Defendant’s assertions. The disclosures demonstrate the agent has gained his expertise through 20 years as an FBI Special Agent specializing in sex trafficking crimes. He also has honed this expertise through hundreds of hours of training and participated in over 100 investigations of sex trafficking offenses, personal interviews with over 200 victims and potential victims of sex trafficking regarding their experience with prostitution and conducted personal interviews with approximately 20 suspected traffickers.
Held
The Court denied the Defendant’s motion to exclude the testimony of Government’s expert Steven Vienneau.
Key Takeaway
Expert testimony on “the relationship between prostitutes and pimps” is relevant in a sex trafficking case as it can assist the jury in understanding a relationship which is not the subject of common knowledge of jurors.
The probative value of the agent’s testimony is great, and it goes to assisting the jury in understanding the witness’s testimony and help assess the credibility of the victims and witnesses in this case. Any risk of unfair prejudice is greatly outweighed by the probative value of the proposed evidence.
