This is an insurance coverage and bad faith action involving a water loss under a homeowners policy. Safeco issued a homeowners policy to Plaintiffs Tessa and Tyrell Bradley for the policy period from September 24, 2022, to September 24, 2023 (the “Policy”). The claim arose in December 2022, when the Bradleys reported that a hot water line had burst in a bathroom, causing water damage throughout the home.
Rule 26(a)(2)(B) requires that all retained experts produce a report containing a “complete statement” of all opinions the witness will express as well as: (i) “the basis and reasons for them”; (ii) “the facts or data considered by the witness in forming them”; (iii) “any exhibits that will be used”; (v) a “list of all other cases in which, during the previous 4 years, the witness testified as an expert”; and (vi) “a statement of the compensation to be paid for the study and testimony in the case.”
Defendant argued that “the report produced by Plaintiff’s claims handling expert, Jack Thomas, contains none of this information.” The Court found that Thomas’ report is replete with conclusory statements.
However, the report did broadly state that in Thomas’ opinion, based on his experience as a professional adjuster and the facts of this case, Defendant violated unspecified provisions of WAC 284-30-330. Thomas’ report also appeared to provide some reasons for this opinion. For example, his report states: “When the insureds submitted their claim with Proof of Loss many months after the event, Safeco essentially ignored the submission. Safeco’s regulatory obligation was to provide a response to the claim.”
Analysis
Initially, the Court agreed with Defendant that Thomas’ report lacked exhibits that will be used to summarize or support his opinions; a list of all publications authored by Thomas in the previous 10 years; a list of all other cases in which, during the previous four years, Thomas testified as an expert; and a statement of the compensation that Thomas is to be paid for his study and testimony. However, the “Declaration of Jack Thomas” that was filed with Plaintiffs’ response on Nov. 17, 2025, brought his report into sufficient (though hardly exemplary) compliance with Fed. R. Civ. P. 26(a)(2)(B). Moreover, the Court has already forgiven the untimeliness of Plaintiffs’ response.
Held
The Court denied the Defendant’s motion to exclude Plaintiff’s claims handling expert, Jack Thomas.
Key Takeaway
While Plaintiffs’ actions here are unimpressive, the Court found that they are harmless with regard to the Defendant, and thus the automatic exclusion of Thomas’ report was not warranted under Fed. R. Civ. P. 37(c).
In 2017, twin brothers Michael and David Postar split their interests in Affordable Storage, a self-storage business that they jointly owned and operated for many years. As part of the split, the brothers assigned certain registered trademarks associated with the business to a holding company in which they both own a 50% stake. Michael has exclusive rights to use those marks in Lubbock County, whereas David has exclusive rights to use them in Tom Green and Midland Counties.
Years after the split, David, through his company Gargoyle Management, Inc., licensed a derivative of one of the marks to the brothers’ former employee, Gavin Hyland. Hyland and his wife operate their own self-storage business, Slaton Affordable Storage, Inc. Their two locations—one of which is in Lubbock County—are also named Affordable Storage.
Michael sued the Hylands, David, and their companies for, among other things, trademark infringement, unfair competition, common-law misappropriation, and civil conspiracy. Generally, Michael alleges that the Defendants are violating federal and state law by using unauthorized derivatives of the Affordable Storage IP to compete against Michael in Lubbock County.
Michael identified John M. Cone as his expert witness to testify about (1) whether Michael has protectable rights in various marks; (2) whether those rights have priority over the Hylands’ use of certain marks; and (3) whether the Hylands’ use of those marks is likely to cause confusion.
In response, the Hyland Defendants filed a motion to exclude the expert testimony of Cone, an attorney who specializes in trademark law.
Trademarks Expert Witness
John M. Cone worked as an agent and attorney in intellectual property matters, first in England and subsequently in the United States, since before 1970, concentrating on trademark law.
In England, he was a Chartered Patent Agent and a Member of the Institute of Trademark Agents. Cone was responsible for the worldwide trademark practice of the firm of patent and trademark agents of which he was a partner. In 1980, he moved to the United States, and in 1983 received a Doctor of Jurisprudence degree from Southern Methodist University, graduating cum laude. Cone had obtained a B.A.(Hons.) from the University of Oxford, England in 1968.
1.According to the Defendants, Cone’s opinions in his expert report are impermissible legal conclusions
At the outset, the Defendants did not challenge Cone’s qualifications as an expert. Nor did they challenge the reliability of the methodology underlying Cone’s expert report. Instead, they argued that the opinions in his report are impermissible legal conclusions that invade the province of the Court and merely tell the jury what result to reach.
In their motion, the Defendants objected to 30 statements or opinions contained in Cone’s report. Each objection features the same stock argument: “This is an improper legal conclusion, seeking to tell the jury what law governs an issue and what the law means. It is not an opinion to help the factfinder understand the evidence or an issue in question.” Taken together, these objections effectively sought a blanket prohibition on Cone’s testimony.
In response, Michael assured the Court that “Cone’s ‘legal conclusions’ will not be presented to the jury.” Moreover, he argued that there is no way to know at this point whether these purported “legal opinions” will “actually be offered at trial.” Besides, he said, nothing prevented experts from relying on legal authority in forming their opinions.
In response to the Defendants’ 30 objections, Michael offered his own stock response: “This is not a legal conclusion because it does not omit the supporting facts; it is based on Cone’s analysis of the relevant sources as applied to his independent and objective review of the pleadings and other documents identified in his report.”
ii. It is premature to exclude Cone’s expert testimony
The Court denied the Defendants’ motion to exclude Cone’s expert testimony as premature.
Cone was expected to testify that the Hylands’ use of certain marks is likely to cause confusion with marks owned by Postar IP. His opinions could be inadmissible to the extent they articulate a legal standard or tell the jury what result to reach.
The Court required additional context to determine whether Cone’s opinions, if offered, would take the form of impermissible legal conclusions. The Defendants are effectively asking for a blanket ban on Cone’s testimony, yet his report offers potentially permissible opinions that do not necessarily constitute improper statements of law.
Held
The Court denied the Hyland Defendants’ motion to exclude the expert testimony of John M. Cone
Key Takeaway
Courts have found that the presence of impermissible legal conclusions in an expert’s report is not a sufficient basis to strike the entirety of his testimony, particularly where, as here, the report provides additional, potentially admissible opinions.
Plaintiff, Greenwich Insurance Company, is a Delaware-based insurance carrier that issued two excess coverage insurance policies to Mirador Master Association, Inc. (“Mirador Master”), a Miami Beach-based condominium association. The first excess policy was in effect between July 17, 2020, and January 4, 2021, and the second covered the period from February 2, 2021, to July 17, 2021.
In November 2020, four months after the first excess policy took effect, a construction company sued Mirador Master in Florida state court, later amending its complaint to add Mirador Master’s sub-associations, Mirador 1000 Condominium Association, Inc. and Mirador 1200 Condominium Association, Inc. (“Mirador 1000 and 1200”) as Defendants.
In July 2021, Mirador 1000 and 1200 filed crossclaims and a third-party complaint against Mirador Master and its officers and directors—including Bernardo Sandoval and Humberto Fernandez (collectively, the “D&Os”)—alleging that the D&Os mismanaged and misappropriated funds and breached fiduciary duties owed to Mirador 1000 and 1200.
Mirador 1000 and 1200 also moved for appointment of a receiver for Mirador Master; and the state court granted the motion, appointing the Receiver in February 2023.
When Plaintiff continued to deny coverage for Mirador Master, the D&Os, and Mirador 1000 and 1200, the Receiver, the D&Os, and Mirador 1000 and 1200 executed a Coblentz agreement (the “Assignment Agreement” or “Agreement”) alongside several related settlement agreements. In the Assignment Agreement, the parties to the state-court action agreed not to seek recovery from each other and to assign their rights to assert claims against Plaintiff.
Plaintiff sought declarations that it has no duty to defend or indemnify Mirador Master, the Receiver, Fernandez, Sandoval, Frohlich, and Herman.
The Court concluded that the Assignment Agreement is unenforceable against Plaintiff because the underlying insurance policy was not exhausted until after the Assignment Agreement was executed.
The Experts and Motions
The Receiver, Mirador 1000 and 1200, and Plaintiff retained experts who prepared reports addressing the enforceability of the Assignment Agreement, including its reasonableness; the scope of any coverage owed by Plaintiff; and whether Plaintiff received timely notice of the state-court litigation.
Mirador 1000 and 1200’s proposed expert is R. Hugh Lumpkin, an attorney specializing in insurance who opined that Plaintiff received timely notice. Plaintiff’s proposed expert is Barry L. Davis, an attorney focusing on insurance law who rebuts Kammer’s conclusion that the Agreement is reasonable and Lumpkin’s opinion that Plaintiff received timely notice.
The Receiver challenged the admissibility of Davis’ testimony, while Plaintiff challenged the admissibility of Lumpkin’s testimony.
The Receiver argued that Davis offered impermissible legal conclusions regarding insurance-policy interpretation and relied on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Plaintiff asserted that Lumpkin offered improper legal conclusions concerning timely notice under the excess policies and the reasonableness of the Assignment Agreement, and Lumpkin’s reliance on industry standards was irrelevant and unhelpful to the factfinder.
Law And Legal Expert Witnesses
Barry L. Davis has served as lead trial counsel to both Plaintiffs and Defendants in hundreds of complex construction and commercial disputes, insurance coverage and bad faith cases, and high-profile personal injury and wrongful death matters.
Davis has been a Florida Bar Board Certified Civil Trial lawyer since 1989, was elected by his peers as a Super Lawyer and holds a Martindale-Hubbell AV Preeminent rating. As an adjunct professor of law for several years, Davis taught classes in settlement negotiation and was trial team coach.
R. Hugh Lumpkin has acted as the lead counsel in hundreds of insurance disputes, having taken an uncounted number of depositions of insurer corporate representatives, adjusters, managers and executives, underwriters, actuaries and marketing people, as well as those hired by insurers to act as experts on claim handling standards and practices and underwriting over the course of the last 35 years in his insurance practice.
He attended the University of Miami School of Law, graduating in 1980 and becoming a member of the Florida Bar that same year.
The Receiver argued that Davis should be precluded from testifying because he offered legal conclusions regarding insurance coverage under the excess policies that are disguised as expert opinions.
Since Davis attempted to define the scope of coverage under the excess policies, the Court granted receiver’s motion to the extent that Plaintiff may seek to have Davis “state legal conclusions drawn by applying the law to the facts.” Certainly, Davis’ “legal analysis of the facts” is inadmissible.
The Court did not address the Receiver’s argument that Davis relies on a flawed methodology in assessing the reasonableness of the Assignment Agreement. Because expert testimony on reasonableness is directed only to the enforceability of the Agreement — and enforceability has already been resolved — the Court did not reach the Daubert challenge to that testimony.
Plaintiff’s Motion
Plaintiff challenged Lumpkin’s proposed testimony on two grounds. First, Plaintiff objected to Lumpkin’s opinions on what is required by the notice provisions of the excess policies and whether Plaintiff breached the policies by denying coverage, contending these opinions amount to impermissible legal conclusions based on interpretations of the insurance contracts. Second, Plaintiff objected to Lumpkin’s opinions on “industry standards” as unhelpful.
As Plaintiff noted, Lumpkin’s proposed testimony included legal analysis of the facts. As a result, the Court granted Plaintiff’s motion to the extent the Receiver sought to have Lumpkin opine on insurance-policy interpretation or the legal consequences of the parties’ conduct.
However, Plaintiff’s arguments regarding Lumpkin’s “industry standards” opinions failed to persuade the Court. Expert testimony as to standard practices in an industry is admissible when it is relevant and the expert has demonstrated a basis for the opinion.
In this case, Lumpkin offered “industry standards” opinions that are relevant. For example, Lumpkin asserted that the industry standard for when an excess insurer should receive notice is “as soon as practicable after it is believed by the policyholder that the claim involved may exceed the limits of the primary insurance policy.” Such testimony could assist the trier of fact in deciding a genuine dispute of material fact: whether Plaintiff received timely notice of a claim as required by the excess policies.
While Plaintiff insisted Lumpkin’s testimony is not relevant, Plaintiff neither provided authority stating that industry standards are irrelevant to breach-of-contract actions, nor explained why industry standards could not be relevant to the claims and defenses asserted in this case.
Held
The Court granted in denied in part the Defendant/Counter-Plaintiff, the court-appointed Receiver for Defendant, Mirador Master Association, Inc.’s Daubert motion to exclude the testimony of Barry L. Davis.
The Court granted in denied in part the Plaintiff, Greenwich Insurance Company’s Daubert motion to exclude the testimony of R. Hugh Lumpkin.
Key Takeaway
While an expert may provide an opinion on an ultimate issue of fact, testimony regarding the legal implications of conduct is impermissible. To protect the Court’s exclusive prerogative to charge the jury regarding the applicable law, the Court must remain vigilant against the admission of legal conclusions.
This action arises from allegations that Fluor Corporation, Inc., and Fluor Intercontinental, Inc. (collectively, “Fluor”), submitted false or misleading information to the United States Government in connection with performance and award-fee determinations under the Logistics Civil Augmentation Program IV (“LOGCAP IV”). Specifically, LOGCAP IV was a multiple-award, indefinite-delivery/indefinite-quantity contract administered by the United States Army to provide logistics and life-support services to U.S. and coalition forces in contingency environments, including Afghanistan.
Within this contractual framework, Fluor was awarded Task Order 0005 (“TO5”), a cost-plus-award-fee contract governing the provision of base operations and support services at numerous sites in Afghanistan. Under TO5, Fluor was required to provide a broad range of services, including food services, billeting, laundry, transportation, power generation, maintenance, and supply and property management, all in an austere and dynamic operational environment.
Importantly, as a cost-plus-award-fee contract, TO5 permitted Fluor to recover allowable costs and to earn an additional fee based on performance exceeding contractual requirements. Accordingly, award-fee determinations were made periodically and were intended to incentivize superior performance rather than mere compliance with minimum contractual standards.
To that end, award-fee determinations under TO5 were governed by an Award Fee Plan, which established evaluation criteria, performance periods, and scoring methodologies. Pursuant to this plan, performance was assessed by an Award Fee Evaluation Board (“AFEB”), composed of Government officials who reviewed Fluor’s performance across multiple functional areas, including cost control, technical performance, schedule, and program management.
Relators retained Colonel (Ret.) John Lyle to offer expert testimony concerning the LOGCAP IV award-fee process and Fluor’s performance under TO5.
Fluor Corporation, Inc., and Fluor Intercontinental, Inc. filed a motion to exclude the testimony of Relators’ expert John Lyle pursuant to Federal Rule of Evidence 702 and the Daubert standard.
Public Contracts Expert Witness
Colonel John Lyle retired from Government service after more than four decades in military and civilian contracting and acquisition roles, including senior leadership positions within the Air Force, the Army, and the Defense Contract Management Agency. His experience includes participation in, oversight of, and decision-making authority related to award fee contracts and award fee evaluation boards.
Lyle has substantial experience in government contracting and acquisition.
Fluor filed a motion to exclude Lyle’s testimony in whole or in part, arguing that portions of his proposed testimony exceeded the scope of his expertise, are not based on reliable principles or methods, or improperly speculate about Government decision-making, intent, or hypothetical award-fee outcomes, including opinions regarding award-fee denial or other contractual consequences.
A. Qualifications
Fluor first argued that Lyle is not qualified to offer several opinions contained in his expert report. Fluor did not dispute that Lyle has substantial experience in government contracting and acquisition. Instead, Fluor contended that his background did not qualify him to testify on certain specialized subject areas addressed in the report—particularly opinions concerning property and materials management, service order response and repair practices, and suspension or debarment consequences.
Lyle retired from Government service after more than forty years in military and civilian acquisition and contracting roles, including service as a warranted contracting officer, senior executive within the Defense Contract Management Agency, and participant in—and, at times, decision-maker for—award fee contracts and award fee boards. His experience included drafting award fee plans, serving on award fee evaluation boards, advising fee determining officials, and acting as a fee determining official himself. He has also worked with LOGCAP contracts in multiple capacities during his career. Based on this record, the Court found that Lyle is qualified to offer testimony explaining the structure and purpose of award-fee contracts, the mechanics of the award-fee process, and the general types of information that are ordinarily relevant to award-fee evaluations.
However, qualification under Rule 702 is not unlimited. Fluor’s challenges to Lyle’s qualifications concerned particular subject-matter opinions beyond the general award-fee framework—most notably opinions concerning property management, service order practices, and suspension/debarment—as well as opinions framed in terms of Fluor’s intent, honesty, or corporate culture.
Accordingly, the Court concluded that Lyle is qualified under Rule 702 to offer expert testimony on the structure and operation of award-fee contracts and the award-fee evaluation process, subject to limitations.
B. Scope of Permissible Expert Testimony
Although the Court has determined that Lyle is generally qualified to testify regarding award fee contracts and the award fee evaluation process, that determination does not resolve the admissibility of all opinions contained in his report.
Fluor argued that substantial portions of Lyle’s testimony exceeded the permissible scope of expert opinion. In particular, Fluor challenged opinions that: (1) address Fluor’s intent, honesty, or corporate culture; (2) speculate about how members of the Award Fee Evaluation Board (“AFEB”) or other Government officials would have acted had they been presented with different information; and (3) assert that Fluor would have received lower award fee scores or no award fee at all under hypothetical circumstances.
While the Court agreed that expert testimony explaining the structure and operation of award fee contracts, the role of award fee evaluation boards, and the general types of information ordinarily considered in award fee determinations may assist the jury, the Court also agreed with Fluor that Lyle’s testimony must be carefully circumscribed.
Accordingly, Lyle may not offer opinions that purport to determine Fluor’s intent, honesty, or state of mind, or that characterize Fluor’s conduct as fraudulent, deceptive, or unethical. Nor may he testify that particular AFEB members—or a hypothetical “prudent” or “reasonable” AFEB member—would have altered their scores, recommendations, or fee determinations had they been provided with additional or different information. Likewise, opinions asserting that Fluor “would have” lost award fees or received lower award fee ratings under hypothetical scenarios lack a sufficient factual foundation and reliable methodology and therefore exceeded the permissible scope of expert testimony under Rule 702.
C. Reliability and Methodology
Fluor argued that Lyle’s opinions are not grounded in any identifiable methodology beyond his personal views and hindsight assessment of the record. Fluor contended that Lyle did not rely on evidence from the actual award-fee decisionmakers or any materials reflecting how individual board members weighed or evaluated information, and instead reconstructed the award-fee process retrospectively based on his own assessment of the record.
The Court agreed that experience-based testimony may satisfy Rule 702 where the expert explains how that experience informs the analysis. Lyle reviewed the LOGCAP IV contract, the TO5 Award Fee Plan, award fee materials, and other contemporaneous records, and he drew upon his experience serving on award fee boards and acting as a fee determining official.
However, the Court also found that portions of Lyle’s analysis lacked the methodological rigor required by Rule 702. In several instances, Lyle moved from identifying information he believes to be significant to asserting conclusions about its impact on award fee determinations without articulating a reliable analytical bridge between the two.
This methodological deficiency is reinforced by Lyle’s own testimony acknowledging that award-fee determinations are inherently subjective and that, even after reviewing the record, he could only “guess” as to why individual board members assigned the scores they did.
The Court is mindful that the award fee process itself involves discretion and judgment. But Rule 702 does not permit an expert to replace that discretion with his own, particularly where the expert’s conclusions depend on speculation about hypothetical decision-making by others. Where Lyle’s opinions rest on generalized assertions untethered from a consistent application of the Award Fee Plan’s criteria, they do not reflect a reliable application of principles to the facts.
D. Summary of Excluded Opinion Testimony (Trial Limitations)
The following categories of opinion testimony by Lyle are excluded under Rule 702 based on the Court’s analysis above.
1. Opinions on Intent, Honesty, or State of Mind
Lyle may not offer opinions regarding Fluor’s intent, honesty, motive, credibility, or state of mind. This prohibition applies whether such opinions are stated expressly or implied through characterizations, narrative framing, or evaluative language describing Fluor’s conduct or alleged motivations. Testimony characterizing Fluor’s conduct as deceptive, misleading, unethical, or undertaken with an improper motive is not a proper subject of expert testimony and would invade the province of the jury.
2. Opinions Predicting Government or AFEB Decision-Making
Lyle may not offer opinions speculating about how specific Government officials, exercising discretionary authority, or members of the AFEB would have acted had they been presented with different or additional information. This prohibition includes testimony predicting how particular AFEB members, a hypothetical “prudent” or “reasonable” AFEB member, the Fee Determining Official, or other reviewing authorities would have exercised their discretion under hypothetical circumstances. Such opinions are inherently speculative and lack a reliable methodological foundation.
3. Opinions Predicting Award-Fee Outcomes Under Hypothetical Scenarios
Lyle may not testify that Fluor would have received lower award fee scores, forfeited award fees, or otherwise suffered adverse award fee outcomes under counterfactual scenarios. Because award fee determinations are the product of discretionary judgments by Government decisionmakers, opinions predicting altered outcomes necessarily depend on impermissible speculation about how those officials would have acted. While Lyle may explain the types of information that are generally relevant to award fee evaluations, he may not opine on the ultimate effect of such information on specific award fee determinations.
4. Legal Conclusions and Opinions Applying Legal Standards
Lyle may not offer legal conclusions or opinions concerning whether Fluor violated contractual, regulatory, or statutory obligations, including whether Fluor engaged in fraud, submitted false claims, or failed to comply with disclosure or reporting requirements. This prohibition applies both to explicit legal conclusions and to opinions that effectively instruct the jury how to apply legal standards to the facts. Such determinations are reserved for the jury and the Court and are not appropriate subjects for expert testimony.
5. Opinions Outside Lyle’s Qualifications -Property Management and Service Orders
Lyle may not offer opinions concerning the adequacy of Fluor’s property or materials management practices, service order response or repair time compliance, or the operation of specialized systems governing those functions. As explained above, Colonel Lyle lacks the specialized training or experience necessary to render expert opinions on these technical subject areas, and such testimony therefore falls outside the scope of his qualifications under Rule 702.
6. Opinions Predicting Collateral Administrative or Contractual Consequences
Lyle may not offer opinions predicting collateral consequences of Fluor’s alleged conduct, including suspension, debarment, or other administrative or contractual remedies. Such opinions are speculative, irrelevant to the issues the jury must decide, and fall outside the scope of permissible expert testimony under Rule 702.
Held
The Court granted in part and denied part the Defendants Fluor Corporation, Inc., and Fluor Intercontinental, Inc.’s motion to exclude the testimony of John Lyle.
Key Takeaway
As a threshold matter, expert testimony may not speculate about a party’s intent or credibility, nor may it opine on how particular decisionmakers would have acted under counterfactual circumstances. Accordingly, Lyle’s testimony is admissible only to the extent it provides general, experience-based explanatory context regarding the award-fee process and the relevance of performance information within that process. Conversely, testimony that crosses the line into speculation about intent, credibility, or hypothetical government decision-making is not permitted.
Please refer to the blogs previously published about this case:
This case arises from an employment dispute involving Defendant Gannett Co., Inc., doing business as USA Today. Plaintiff Taylor Bailey, a former Gannett employee, asserted claims against Gannett for breach of contract and sex discrimination under Title VII.
Bailey retained Chris S. Thrutchley provide expert opinions and testify regarding Plaintiff’s allegations and Defendant’s alleged conduct in this action.
Chris S. Thrutchley is an attorney with over thirty years experience in employment and labor law. His experience includes serving as the Director of Human Resources for one of Oklahoma’s largest employers, in which capacity he ensured employment policies, processes, and practices were legally compliant.
Additionally, from 2014 to 2016, Thrutchley served as Chief of the Oklahoma Attorney General’s Office of Civil Rights Enforcements, in which capacity he led a team of agents and attorneys in enforcing the Oklahoma Anti-Discrimination Act. Thrutchley currently serves as the employment law practice group leader for a large Oklahoma law firm, as well as an arbitrator for the American Arbitration Association for employment disputes arising in Oklahoma. Finally, Thrutchley has been certified by the HR Certification Institute as a “Senior Professional in Human Resources,” and by the Society for Human Resources Management as a “Senior Certified Professional.”
Gannett primarily contended that Thrutchley’s opinions constituted impermissible legal conclusions.
Legal Conclusions
First, in the “Legal Standards” section, Thrutchley purported to summarize the applicable “legal standards” and, in doing so, impermissibly sought to “define the law of the case.”
Further, throughout the report, Thrutchley applied the “legal and policy standards to the facts” in order to opine that certain conduct constituted, or raised an inference of, “sex-based harassment.” Likewise, Thrutchley opined that certain actions by Gannett interfered with Bailey’s employment and “would amount to a materially adverse employment action, an element of unlawful retaliation” or that “an inference of retaliatory motive” arises “capable of surviving summary judgment.” Thrutchley also opined that Gannett created a “hostile” or “toxic” work environment satisfying “the essential elements of a hostile work environment harassment claim.”
The Court held that Thrutchley’s opinions in this regard impermissibly stated a legal conclusion by applying the laws to the facts.
Thrutchley also opined that Gannett’s responses to the Texas Workforce Commission’s investigation into Bailey’s unemployment benefits claim were “demonstrably false.” An expert may not offer testimony regarding credibility. Given that it is the jury’s role to determine credibility, the minimal probative value of Thrutchley’s opinions in this regard is substantially outweighed by the danger of unfair prejudice. Thus, the opinions are also excluded pursuant to Federal Rule of Evidence 403.
Finally, Thrutchley offered opinions regarding Gannett’s internal policies and Defendant’s compliance with same. However, Gannett’s policies are not so complicated to require expert testimony.
Thrutchley also opined as to best practices upon receipt of a harassment, discrimination, or retaliation complaint, and that Gannett failed to follow same.
Such opinions are not prohibited legal conclusions and, further, may be helpful to the jury. Thus, the Court declined to exclude the opinions as impermissibly usurping this Court’s role to articulate the law and the jury’s duty to apply same.
Reliability
Gannett argued that Thrutchley’s opinions on best practices upon receipt of a harassment, discrimination, or retaliation complaint must nevertheless be excluded as the product of an unreliable methodology.
Having reviewed Thrutchley’s opinions, the Court concluded that it is more likely than not that his opinions in this regard reflect a reliable application of his knowledge and experience to the facts of the case.
Gannett next criticized Thrutchley’s opinions as lacking a sufficient foundation due to his reliance on hearsay and his alleged “adopting both the allegations of Plaintiff and her legal positions.”
First, with respect to Gannett’s criticism of Thrutchley’s reliance on hearsay, “Rule 703 allows an expert witness to base his testimony upon facts or data that are hearsay, provided that those facts or data are ‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’”
The Court observed that Thrutchley did not merely parrot the out-of-court statements but, instead, utilized the statements to form his own independent opinions. Accordingly, Thrutchley’s reliance on hearsay is not improper.
Insofar as Gannett criticized Thrutchley as effectively adopting Bailey’s version of events, Thrutchley stated that he reviewed the Texas Workforce Commission Hearing Transcripts, the Amended Complaint and the EEOC Charge as well as various documents produced in discovery.
Based on the foregoing, the Court concluded that it is more likely than not that Thrutchley’s opinions are based on sufficient facts and data and the opinions are the product of a reliable application of principles and methods to the facts of the case.
Held
The Court granted in part and denied in part Gannett’s motion to exclude the testimony of Chris Thrutchley
Key Takeaway
An expert may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility. Moreover, Gannett’s policies are not so complicated to require expert testimony. Rather, a lay juror with “normal experiences and qualifications” can review Gannett’s policies and determine whether Gannett complied with, or violated, those policies in response to Bailey’s complaint.
Eric Kelley contended that he was wrongfully incarcerated for a 1993 murder and robbery for 24 years until DNA testing provided a basis for the trial court to vacate his convictions, and the State declined to retry him, Kelley then sued several members of the Paterson Police Department (“PPD”) who allegedly violated his constitutional rights and the City of Paterson (“Paterson”).
To testify at trial, Paterson retained Ronald Hampton, a twenty-five-year veteran of the New Jersey State Police, as an expert witness on the policies and procedures of the PPD during the relevant time. Plaintiff, however, filed a motion to exclude the testimony of Defendant’s expert, Hampton.
Law Enforcement Expert Witness
Ronald Hampton, M.A., CFE served for twenty-five (25) years with the New Jersey State Police in various assignments and capacities before retiring on September 1, 2019.
He graduated from Fairleigh Dickinson University, Rutherford, New Jersey, with a Bachelor’s Degree in Political Science in 1992 and Rutgers University, Newark, New Jersey, with a Master’s Degree in Criminal Justice in 2003. Hampton also attended and graduated from American Military University with a Master’s Degree in Management in 2014. He is a graduate of the 241st session of the FBI National Academy (2010). He is also a Certified Fraud Examiner (CFE), having received certification in 2018.
The parties dispute Hampton’s social psychology qualifications, the reliability of Hampton’s methodology, and the fit between his proffered testimony and the issues in this case.
1. Rebuttal Report
The Court excluded Hampton’s entire proffered rebuttal testimony because his rebuttal report intrudes on the province of the jury by making credibility determinations, opining on legal issues, and regurgitating fact witness testimony.
First, Hampton inappropriately commented on witnesses’ knowledge or understanding. Second, Hampton improperly opined about legal requirements. Lastly, Hampton unacceptably weighed conflicting evidence and witnesses’ credibility.
Additionally, Hampton threatened to waste trial time by regurgitating deposition testimony with minimal to no analysis. Basically, Hampton’s summaries of witness testimony “are matters that would be within the common understanding of regular citizens and do not require—and are not benefited by—the opinions of a police practices expert.”
Finally, Hampton is not a social psychologist, yet he discusses psychological concepts such as tunnel vision, contamination, and psychological factors relating to Kelley’s confession.
In sum, the Court excluded Hampton’s rebuttal report for invading the jury’s province, and for offering new opinions improperly raised on rebuttal.
2. Opening Report
To begin with, Hampton’s opening report generally marched through the background of the PPD’s policies and procedures in effect in 1993, how those policies compared to those in place at other law enforcement agencies, and how they evolved over time.
Although Plaintiff conceded that such testimony could assist “in determining whether the [police] practices differed from standard law enforcement practices,” the Court nonetheless had to address Plaintiff’s objections to Hampton’s methodology.
Hampton’s “application of extensive experience to analyze” the PPD’s policies and procedures is a reliable methodology based on his 25 years with the New Jersey State Police.
Nevertheless, the Court excluded several lines of testimony within the opening report. First, Hampton may not testify about irrelevant matters, such as, inter alia, the rules governing officer appearance. Second, Hampton may not reference the testimony of fact witnesses in this case, as he does with Lieutenant Spagnola and Chief Munsey. Third, Hampton may not speculate. Finally, Hampton may not utilize materials prepared after 1993 to support opinions regarding policies or procedures in place in 1993.
Held
The Court granted in part and denied in part the Plaintiff Eric Kelley’s motion in limine to exclude the testimony Defendants’ expert Ronald Hampton.
Key Takeaway
Police experts regularly testify about non-scientific topics based on their own training and experience. Hampton made several assertions about the PPD’s policies and procedures, which he attempted to prove based on his own extensive training and experience.
This case arises from Fluor’s performance under LOGCAP IV, Task Order 0005 (“TO5”), under which Fluor provided logistics and support services to U.S. military operations in Afghanistan. As a cost-reimbursable contract, TO5 was subject to oversight by multiple Government entities, including the Defense Contract Management Agency (“DCMA”) and the Defense Contract Audit Agency (“DCAA”).
As part of that oversight, DCMA conducted periodic Property Management System Analyses, or Property Management System Analysis (“PMSAs”), to assess whether Fluor’s property management system complied with applicable contractual and regulatory requirements. PMSAs evaluate the design and operation of a contractor’s system and may result in findings, corrective action requests, or system approval determinations. PMSAs do not evaluate individual claims for payment and are not designed to function as fraud-detection mechanisms.
In addition to Government oversight, Fluor conducted internal audits and assessments related to its property and materials management practices and communicated with Government officials regarding performance issues during TO5.
Relators alleged that Fluor failed to disclose material deficiencies in its property and materials management practices, misrepresented the adequacy of its systems, and improperly billed the Government under TO5.
Relators retained Dr. Dov S. Zakheim to offer expert testimony regarding Department of Defense financial oversight, acquisition practices, and the operation and limitations of Government review mechanisms in contingency environments.
Finance Expert Witness
Dr. Dov S. Zakheim has extensive experience with defense acquisition, financial management, and wartime contracting oversight.
Zakheim served as Under Secretary of Defense (Comptroller) and Chief Financial Officer from 2001 to 2004 and later served as the Department of Defense’s Civilian Coordinator for Afghanistan and as a commissioner on the Congressionally mandated Commission on Wartime Contracting in Iraq and Afghanistan.
The parties’ dispute concerns not Zakheim’s senior government service, but the extent to which that experience supplies specialized expertise for the particular subjects addressed in his proffered opinions.
Fluor argued that Zakheim lacked specialized knowledge and experience in the day-to-day administration of Government property requirements, including the conduct of PMSAs and DCMA property administration.
For purposes of Rule 702(a), the Court found that Zakheim’s education and experience at senior levels of the Department of Defense qualify him to provide experience-based testimony regarding (1) the structure and objectives of DoD oversight mechanisms in contingency environments, (2) the general roles of oversight entities within DoD, and (3) the practical constraints such entities may face in wartime settings. Zakheim also stated that he reviewed a substantial body of case materials, including DCMA PMSA reports, internal audits, corrective action plans, and contemporaneous correspondence.
Accordingly, the Court concluded that Zakheim satisfied Rule 702’s threshold “qualification” requirement for the limited purpose of offering experience-based testimony within the foregoing bounds.
B. Scope, Reliability, and Fit
1. Permissible Experience-Based Testimony
Fluor argued that Zakheim’s report is largely an advocacy narrative that does not employ a reliable methodology and did not assist the jury because jurors are capable of reading the documents for themselves.
The Court agreed that certain general, experience-based testimony is both reliable and helpful. Zakheim may testify, in general terms, regarding the purpose and practical limitations of Government oversight mechanisms in contingency environments—including that PMSAs are system-level reviews, may rely on sampling, are affected by resource and operational constraints, and are not designed as fraud-detection tools—and why the existence of PMSAs finding a system “adequate” does not, standing alone, foreclose factual disputes about what was occurring internally or what information was (or was not) disclosed.
At the same time, the Court emphasized the limits of this ruling. To the extent Zakheim’s testimony becomes a document-by-document narrative offered to argue what happened or to urge the jury to adopt Relators’ factual inferences, it is not considered admissible expert testimony.
2. Impermissible opinions regarding intent, credibility, and concealment
Fluor argued that Zakheim’s report and testimony go beyond permissible expert context and instead offer conclusions that, in substance, attribute dishonest intent, concealment, or deception to Fluor based on his interpretation of internal documents.
The Court agreed with Fluor and held that Zakheim may not testify that Fluor acted dishonestly or deceptively, engaged in a cover-up, concealed information, lacked integrity, or intentionally misled Government officials. Nor may he offer expert opinions framed as conclusions about Fluor’s motive, intent, credibility, or corporate ethics.
However, this limitation does not preclude Zakheim from identifying categories of information reflected in the record that, if credited by the jury, would have placed a contractor on notice of operational or compliance issues, or from explaining why such information would be significant to senior Department of Defense officials. The line is crossed, however, where the testimony moves from describing the existence or significance of information to directing the jury to draw conclusions about Fluor’s honesty, intent, or credibility.
3. Counterfactual Predictions of Government Action and Legal Conclusions
Fluor also challenged Zakheim’s opinions regarding what DCMA, DCAA, an Award Fee Evaluation Board, an Inspector General, or suspension and debarment officials would have done had they possessed additional information, including assertions that the Government would have disapproved Fluor’s business systems, imposed financial penalties, denied or clawed back award fees, or pursued suspension or debarment.
The Court found that Zakheim may, at a general level, describe the existence and purpose of Government oversight and response mechanisms, including that contractors are subject to system reviews and that corrective-action and enforcement processes exist. He may also explain why integrity, candor, and accurate reporting can matter to senior Government officials.
However, Zakheim may not opine that particular Government actors would have reached different outcomes in this case, exercised their discretion in a specific manner, or imposed particular contractual, regulatory, or financial consequences had they known additional information. Such testimony consists of speculative counterfactual predictions that depend on discretionary, multi-factor decision-making and is not supported by an articulated, reliable method for forecasting how the Government would have acted on this record.
For the same reasons, Zakheim may not offer legal conclusions regarding what the contract or regulations require or instruct the jury on what legal or contractual consequences should follow from a given set of facts. He may describe processes in general terms, but he may not apply those processes to declare the proper outcome in this case. This limitation applies regardless of whether such opinions are framed as what the Government “would have done,” “likely would have done,” or “typically does.” Testimony describing the existence of oversight mechanisms or the factors such mechanisms may consider is permissible; testimony that applies those processes to declare the proper or expected outcome in this case is not.
C. Rule 403
Fluor separately sought to exclude, under Rule 403, narrative testimony concerning violent incidents in Afghanistan, including references to a suicide bombing and related loss of life. Fluor argued that such testimony had minimal probative value to the claims and defenses being tried, would invite a collateral mini-trial over a tragic event, and created a substantial risk of unfair prejudice and jury distraction.
The Court agreed that detailed testimony about violent events—particularly where the proffer would invite the jury to attribute casualties to Fluor or to litigate the causes and responsibility for the attack—poses a substantial risk of inflaming the jury and diverting attention from the elements the jury must decide in this False Claims Act case.
Accordingly, Zakheim may testify in general terms regarding the operational challenges of contingency environments to the extent that such context informs the limitations of oversight mechanisms. But he may not offer detailed or emotionally charged accounts of violent incidents, and he may not opine—directly or by implication—that Fluor’s alleged property-management practices “caused” such incidents or “cost lives.”
D. Summary of Rulings and Trial Limitations
The Court summarizes its rulings regarding Zakheim’s testimony as follows:
1.Permitted Testimony
Zakheim may offer experience-based testimony, grounded in his senior Department of Defense service, concerning:
the structure, purpose, and general limitations of Government oversight mechanisms in contingency environments, including PMSAs;
the effect of wartime conditions, resource constraints, and sampling practices on what such oversight mechanisms are likely to detect; and
why the existence of PMSAs or other Government reviews finding a system “adequate” does not, standing alone, resolve factual disputes concerning internal deficiencies or disclosures.
2. Excluded testimony—intent, credibility, and ethics
Zakheim may not testify that Fluor acted dishonestly, deceptively, or with intent to mislead; that it “hid” or “covered up” information; that it lacked integrity; or that it engaged in fraud. He may not offer expert opinions regarding Fluor’s state of mind, motive, credibility, or corporate ethics, whether explicitly or through loaded characterizations or rhetorical framing.
3.Excluded testimony—counterfactual Government action and consequences
Zakheim may not state that DCMA, DCAA, an Award Fee Evaluation Board, an Inspector General, or suspension/debarment officials would have taken specific actions had they known additional information, including that they would have altered PMSA results, disapproved Fluor’s systems, imposed particular financial consequences, denied or clawed back award fees, or suspended or debarred Fluor. Such counterfactual predictions and legal conclusions are speculative and impermissible. These exclusions apply to the substance of the opinions, not merely their phrasing. Testimony that, in effect, predicts or declares Government decision-making outcomes is inadmissible regardless of whether it is presented as a general tendency, hypothetical scenario, or illustrative example.
4. Limit on narrative fact summaries
Zakheim may not present a document-by-document factual narrative or select and characterize record evidence in a manner that effectively argues Relators’ version of events under the guise of expert testimony. To the extent the underlying documents are relevant, they may be presented through fact witnesses or admitted into evidence directly. Expert testimony must add specialized context rather than merely repackage facts for advocacy.
5.Rule 403 Limitations
Zakheim may testify generally about the challenges of operating in contingency environments, so far as that context bears on oversight limitations. He may not offer detailed, graphic, or emotionally charged testimony regarding violent incidents, including suicide bombings, nor may he state that Fluor’s alleged conduct caused such incidents or resulted in loss of life.
6.Preservation of Objections and Trial Management
The Court will not permit excluded opinions to be introduced through incremental questioning or cumulative context. That said, these rulings do not foreclose contemporaneous objections at trial where testimony exceeds the bounds set forth above. The Court will address any close questions outside the presence of the jury as necessary to ensure compliance with Rules 702 and 403.
Held
The Court granted in part and denied in part the Defendants Fluor Corporation, Inc., and Fluor Intercontinental, Inc.’s motion to exclude the testimony of Relators’ expert Dov S. Zakheim .
Key Takeaway
Rule 702 does not permit expert testimony that directly, or in practical effect, instructs the jury to conclude that a party acted dishonestly, deceptively, or with intent to mislead, or that it concealed information from the Government.
Such determinations depend on credibility and intent assessments reserved for the jury and are not the product of a reliable expert application of specialized knowledge.
Please refer to the blog previously published about this case:
Stadium Capital (“Stadium”), the Lead Plaintiff in this class action lawsuit, has sued Co-Diagnostics (“CoDx”), its CEO Dwight Egan, and its CFO Brian Brown, for allegedly making false or misleading statements in violation of the Securities Exchange Act of 1934.
Defendants filed a motion to exclude the testimony of Stadium’s expert witness, Chad W. Coffman under Rule 702 and Daubert standards.
Finance Expert Witness
Chad William Coffman is the President of Peregrine Economics, a Chicago based firm that specializes in the application of economics, finance, statistics, and valuation principles to questions that arise in a variety of contexts, including, as here, litigation.
He holds a Bachelor’s Degree in Economics with Honors from Knox College and a Master’s of Public Policy from the University of Chicago. He is also a CFA charter-holder.
Defendants filed a motion to exclude Coffman’s testimony because he allegedly failed to analyze and account for confounding factors essential to determining loss causation.
Defendants argued that Coffman’s expert opinion is inadmissible because it fails to account for the “axiomatic” requirement of “adequately accounting for obvious alternative explanations.” They then argued that expert testimony on loss causation requires an accounting of confounding factors that Coffman did not provide.
They pointed to three confounding issues that Coffman allegedly failed to disaggregate in his testimony on loss causation: (1) the financial results for the second half of the second quarter of 2022, (2) forward-looking statements about uncertain future sales and demand, and (3) the announcement of delays for the initial clinical trial of an at-home, point-of-care PCR test.
Analysis
The Court held that Coffman’s testimony is reliable and thus admissible. First, he used the common and accepted method of an event study, which determined that the corrective disclosure caused a “statistically significant negative price movement in [CoDx’s] Common Stock beyond the 95% confidence level (as well as beyond the 99% confidence level).” That was after “controlling for market and industry factors,” as required. Second, Coffman stated in his report that he “also considered and analyzed the degree to which information arguably unrelated to the corrective information (i.e., confounding information) potentially impacted the stock price over the two-day trading period.” He noted that he “did not identify any confounding information.” Indeed, the most obvious cause of the over-30% price drop was the news about substantially decreased Logix Test sales and what that fact implied about future sales, not information about those low sales remaining stable for the second half of the quarter, another announcement about continued uncertainty surrounding future demand, or another announcement that the at-home PCR test wasn’t quite ready yet.
Coffman testified at his deposition that the “confounding” information was either already baked into the market (or would have been if defendants had told the truth on their May call), or it was immaterial. So there wouldn’t be any material “confounding” information to consider.
Held
The Court denied Defendants’ motion to exclude Chad Coffman’s expert testimony.
Key Takeaway
The Defendants can try to rebut Coffman’s testimony or otherwise mitigate potential damages by showing that their “confounding” information contributed materially to the price drop. But the Court determined that Coffman’s testimony “can be helpful to the jury” as it evaluates those arguments. It is not required that an expert categorically exclude each and every possible alternative cause in order to render the proffered testimony admissible.
The instant matter arises out of a power catamaran scenic and snorkel tour that Plaintiffs Candice Myhre and Norman Davidson, IV boarded on May 14, 2021 from Kikiaola Small Boat Harbor.
As the vessel began to exit the harbor, it encountered large waves, and Myhre stated that she flew out of her seat, hit her face on the vessel’s railings, and slammed down onto metal seats. As a result, she was transported to Kauai Medical Clinic for medical care and received treatment for physical injuries to her face, knee, and lower leg.
On June 24, 2025, Plaintiffs disclosed Dr. Derek S. Johnson, D.O. as “Plaintiffs’ medical expert who will testify, including but not limited, to Plaintiff Candice Myhre’s injuries and damages issues.”
Defendants contended that Johnson’s disclosure was untimely because Plaintiffs failed to disclose him properly as a medical expert.
Orthopedic Surgery Expert Witness
Dr. Derek S. Johnson, D.O. is a graduate of the Doctor of Osteopathic Medicine Program at Midwestern University-Glendale Medical School and completed his Orthopaedic Surgery residency at Pinnacle Health System in Harrisburg, PA. He currently serves as the Department Chair of Orthopedic Surgery at Wilcox Medical Center.
Defendants argued that they would be plainly prejudiced should Johnson be permitted to testify as a retained expert or as a treating physician at trial because the trial is scheduled to commence in less than sixty days and the discovery deadline has expired.
Plaintiffs, however, contended that Johnson was disclosed on June 24, 2025 as a non-treating medical expert, and his opinions were disclosed on October 9, 2025. There was no failure to identify Johnson as a retained non-treating physician, they argued, because they stated in the initial disclosure that “‘Plaintiffs reserve the right to supplement and/or amend [their] disclosure as necessary and as additional information becomes available through discovery and other means.’” Plaintiffs argued that if there was a failure to disclose, that failure was merely harmless under Rule 37(c)(1).
The key question is: does Rule 26(a)(2)(B)’s written report requirement apply to Johnson’s disclosure as an expert witness? Johnson is not identified as a treating physician; the opinions expressed do not indicate that they were formed during Plaintiff’s treatment; and Plaintiffs state that he was not a treating physician for Myhre. Therefore, Rule 26(a)(2)(B) applies. Plaintiffs thus were required to disclose Johnson as an expert witness and provide an accompanying written report by the expert witness disclosure deadline of June 30, 2025.
The expert report was not provided by that deadline and, to the extent that Plaintiffs contended that their submission of his report on October 9, 2025 was a supplemental disclosure, this contention fell short of the mark because of Rule 26(a)(2)(B)’s directive that the written report must accompany the expert witness disclosure.
Analysis
The Court concluded that the failure to disclose was not harmless and that lesser sanctions are not reasonably available.
Plaintiffs have not carried their burden of proving harmlessness. Trial is scheduled to be held in two months and discovery has been completed. Johnson’s opinion report is not dated but the request for his opinions is dated February 21, 2025, which is seven months before it was disclosed to Defendants and four months before the expert witness disclosure deadline.
A lesser sanction could be to require Plaintiffs to pay the costs and attorney’s fees to allow Defendants to take Johnson’s deposition. However, taking Johnson’s deposition and possibly retaining a defense medical expert with sufficient time to allow that expert to review medical records and Johnson’s testimony and having the defense expert prepare a report and have his or her deposition taken takes time; most likely four to six months, which is much more time than the two months before this matter is scheduled for trial.
While Johnson’s testimony does bear upon Myhre’s claims of physical injuries (more specifically, the cause of her sepsis), there is no indication that her treating physicians are unable to testify regarding the nature and extent of her injuries for which she was treated and that they observed.
Since Johnson’s opinion testimony has no bearing on liability issues, the Court cannot conclude that excluding Johnson will deal a fatal blow to Plaintiffs’ claims. The Court also cannot conclude that Plaintiffs had an excuse for the late disclosure, such as needing additional time for the expert disclosure, because they did not seek an extension of the deadline from the magistrate judge nor explain the reason for their failure to comply with the Rule 16 deadline.
Held
The Court granted Defendants’ motion to strike Derek Johnson, D.O. as an expert witness.
Key Takeaway
It should be noted that no explanation is offered as to why it took from February to October to obtain and disclose Johnson’s written opinion report. There is no indication that his report could not have been disclosed by the June 30, 2025 expert disclosure deadline.
The Court concluded that the non-compliance was not harmless; that there are no lesser sanctions available given the short time before trial; and that the exclusion sanction is warranted and will not result in a fatal blow to Plaintiffs’ claim.
This is a False Claims Act action arising from Defendants Fluor Corporation, Inc. and Fluor Intercontinental, Inc.’s (“Fluor”) performance of logistics and life-support services for the United States military in Afghanistan under the Logistics Civil Augmentation Program IV (“LOGCAP IV”) contract and Task Order 0005 (“TO5”). Relators alleged, among other things, that Fluor knowingly submitted false claims and false statements to the Government in connection with award fee determinations and property-management obligations, and that Fluor retaliated against certain employees who raised concerns regarding those practices.
In support of their claims, Relators designated Dr. Gary M. Gaukler as an expert witness. According to his report, Dr. Gaukler analyzed data extracted from Fluor’s Maximo property-management system and related materials to identify patterns reflected in recorded response times, repair times, and other system entries. Relators contended that this analysis will assist the jury in evaluating Fluor’s representations regarding its performance and internal controls.
Fluor filed a motion to exclude or limit discrete portions of Gaukler’s proposed testimony. Specifically, Fluor challenged opinions and characterizations that it contended exceeded Gaukler’s expertise, lacked a reliable methodological foundation, or impermissibly opined on contractual compliance, fraudulent intent, and the interpretation of documents and communications.
Logistics Expert Witness
Dr. Gary Michael Gaukler is a tenured Full Professor at the Drucker School of Management, Claremont Graduate University, located in Claremont, California. He was previously a Professor in the Department of Industrial and Systems Engineering at TexasA&M University. His academic work—both in research and teaching—centers on the application of analytics to logistics, supply chain management, and inventory management, including optimal inventory control policies, quality assurance and inspection strategies, and logistics. He regularly teaches courses in operations management, supply chain management, logistics, procurement, statistics, business analytics, and predictive analytics.
Fluor did not meaningfully dispute that Gaukler is qualified to analyze large datasets, apply statistical and analytical techniques, and identify patterns within structured data such as Fluor’s Maximo system.
However, certain opinions offered by Gaukler venture into areas—such as government-contract compliance, fraud, and intent—for which he lacks relevant expertise. Gaukler’s training and experience are in data analytics and quantitative analysis, not in interpreting government contracts, assessing contractual compliance, or evaluating fraudulent intent. Accordingly, the Court held that any testimony that crosses into those subjects would exceed the scope of his qualifications.
B. Maximo Queries andDescriptive Analytics
Although Fluor stated that it did not challenge the admissibility of Gaukler’s underlying Maximo queries, data extraction, or descriptive statistics, its motion advances a narrower conception of permissible expert testimony—one under which Gaukler would be limited to presenting raw query outputs while being precluded from identifying or highlighting patterns, trends, or anomalies reflected in the data. In Fluor’s view, any step beyond tabulation risks impermissible inference or speculation.
It is the Court’s duty to distinguish between reliable expert assistance and testimony that risks misleading the jury.
Identifying what the data show reflects technical expertise in analytics, while offering explanations for why the data look as they do or what they ultimately signify in operational or legal terms may require additional subject-matter expertise or rest on assumptions not grounded in a reliable methodology.
As a result, the Court decided that Gaukler may testify regarding his Maximo queries, data extraction, descriptive statistics, and the identification of objectively observable patterns reflected in the data- but he may not offer explanations for the causes or implications of those patterns beyond what can be reliably inferred from his analytical methods.
C. Use of “Compliance” Terminology
Fluor challenged Gaukler’s repeated use of terms such as “compliance” or “non-compliance,” arguing that such language constitutes an impermissible contractual or legal conclusion.
The Court held that characterizing Fluor’s performance as “contractually compliant” or “non-compliant” risks conveying an authoritative conclusion about contractual obligations—particularly in the context of a government contract and False Claims Act claims—where the determination of compliance turns on contract interpretation and legal standards beyond Gaukler’s expertise.
At the same time, the underlying data and analytical results can be presented without using legally freighted labels. Doing so preserves the testimony’s probative value while avoiding the risk of misleading the jury.
Therefore, Gaukler may describe what the Maximo data reflect in factual and analytical terms, including measured response times and recorded intervals—but he may not characterize those results as establishing contractual compliance or non-compliance.
D. Speculative Inferences and Fraud-Related Opinions
Fluor next sought to exclude opinions that went beyond describing data patterns and instead speculate about why those patterns exist, particularly where such explanations imply misconduct or fraud. Fluor pointed to deposition testimony in which Gaukler disclaims expertise in fraud investigation, operational feasibility, and the real-world execution of logistics operations.
Gaukler is qualified to identify patterns reflected in the Maximo data. But where he offered explanations that imply fraud or misconduct, he simultaneously disclaims the expertise necessary to assess whether those explanations are feasible or supported by operational realities. In those circumstances, the proffered opinions rest not on reliable methodology, but on speculation. Allowing such testimony would risk presenting conjecture under the imprimatur of expertise and would not assist the jury within the meaning of Rule 702(a).
The Court decided that Gaukler may testify to inferences that are analytically supported by his data analysis, but he may not offer speculative explanations, insinuations of fraud or misconduct, or opinions regarding intent or wrongdoing.
E. Document and Email Narration
Fluor challenged portions of Gaukler’s proposed testimony in which he summarized or interpreted documents, emails, or communications, contending that such testimony amounts to narrative advocacy and places an expert gloss on materials the jury can read and evaluate for itself.
Fluor’s objection is directed not at Gaukler’s reliance on such materials as inputs to his analysis, but at testimony—reflected in his report and deposition—in which he recounts or interprets those materials without applying specialized expertise.
Rule 703 permits experts to base opinions on facts or data that may themselves be inadmissible if experts in the field would reasonably rely on them. It does not authorize an expert to disclose, narrate, or interpret those materials to the jury where doing so does not depend on specialized knowledge and merely places the expert’s subjective gloss on evidence the jury is equally capable of evaluating.
Nor may an expert serve as a conduit for hearsay or advocacy; the probative value of expert testimony must derive from the application of specialized expertise, not from summarizing or characterizing documents or communications.
Accordingly, while Gaukler may identify categories of materials he reviewed and explain how those materials informed his methodological decisions, he may not narrate, interpret, or opine on the meaning of documents or communications where such testimony does not depend on specialized expertise and would not assist the jury within the meaning of Rule 702(a).
The Court decided that Gaukler may identify the types of materials he reviewed and explain their relevance to his analytical methodology- but he may not narrate, interpret, or opine on the meaning of documents or communications where such interpretation does not require specialized expertise.
F. Summary of Rulings
In sum, the Court held that Gaukler’s testimony is admissible to the extent it is confined to data analytics and methodologically grounded inferences, and excluded to the extent it ventures into contractual conclusions, fraud-related speculation, or narrative interpretation of documents.
Held
The Court granted in part and denied in part the Defendants Fluor Corporation, Inc. and Fluor Intercontinental, Inc.’s motion to exclude certain opinions of Relators’ expert, Dr. Gary Gaukler.
Key Takeaway
Expert testimony explaining how data were selected, queried, summarized, and analyzed—and identifying objectively observable patterns reflected in those data—rests on specialized knowledge and reliable analytical methods. Such testimony assists the jury in understanding large and complex datasets generated by Fluor’s own systems and satisfies Rule 702(a)’s helpfulness requirement.
At the same time, Rule 702 draws a clear distinction between identifying what the data show and offering explanations for why the data look as they do or what they ultimately signify in operational or legal terms. The former reflects technical expertise in analytics; the latter may require additional subject-matter expertise or rest on assumptions not grounded in a reliable methodology.
Case Details:
Case Caption:
United States ex rel. Charles R. Shepherd & Danny V. Rude
Docket Number:
6:13cv2428
Court Name:
United States District Court for the District of South Carolina, Greenville Division
