This litigation arises from Plaintiff Raymond Flanks’ (“Plaintiff”) wrongful conviction for first-degree murder in 1985. In particular, Plaintiff alleged that the Orleans Parish District Attorney’s Office (“OPDA”) secured his wrongful conviction in violation of his constitutional rights by withholding material exculpatory evidence.
Laurie Levenson is a law professor who was retained by Plaintiff to testify about her evaluation of OPDA’s Brady policies, practices, and customs.
However, Defendant Jason Williams, in his official capacity as Orleans Parish District Attorney, contended that Levenson provided an untimely supplemental report on December 17, 2025, and Levenson’s testimony should be limited to her original report.
Law And Legal Expert Witness
Laurie L. Levenson joined the Loyola faculty in 1989 and served as Loyola’s Associate Dean for Academic Affairs from 1996 to 1999. In addition, she has been a visiting professor at UCLA School of Law and USC Law School, and a D&L Straus distinguished visiting professor at Pepperdine School of Law. Moreover, in 2019, she co-founded (with Judge Sandra Klein) Girl Scout Troop 1085, a troop for girls experiencing homelessness. At Loyola, Professor Levenson is the Founding Director of the Loyola Project for the Innocent, the Loyola Center for Ethical Advocacy, and the Fidler Institute on Criminal Justice, and Senior Faculty for Loyola’s Journalist Law School.
While in law school, Laurie Levenson was chief articles editor of the UCLA Law Review. After graduation, she served as law clerk to the Honorable James Hunter III of the United States Court of Appeals for the Third Circuit. In 1981, she joined the United States Attorney’s Office for the Central District of California in Los Angeles, where she practiced as a trial and appellate lawyer and served as Assistant Chief of the Criminal Division.
Rule 26(e)(2) permits supplementation of an expert report, but “any additions or changes to [the] information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Under Rule 26(a)(3), “when the Scheduling Order is silent, supplemental reports are generally due 30-days pretrial.” The scheduling order in this case did not provide a deadline for supplemental reports.
Review of the updated expert report of Levenson confirms that this report is a true supplement. Levenson reviewed recent deposition testimony and discusses how that testimony impacts her prior opinions.
Specifically, Levenson cited testimony supporting the opinion in her original report that OPDA’s practices and customs lead to Brady violations because OPDA: (1) failed to disclose grand jury transcripts with impeaching and exculpatory information; (2) did not have a written Brady policy; (3) had insufficient training on Brady compliance for prosecutors; (4) created a prosecutorial culture that discounted the importance of complying with Brady; and (5) failed to acknowledge its problems with Brady violations.
Analysis
All of these opinions were found in Levenson’s original expert report, and the supplemental report merely cites deposition testimony that supports these opinions. Nevertheless, even though the report is a true supplement, it is still untimely because it was disclosed 26 days before trial, four days after the deadline set in Rule 26.
Nevertheless, the Court found that the late disclosure is harmless. Since Levenson will be permitted to remain in the courtroom to observe the trial testimony and offer an opinion based on the testimony as it evolves before the jury, the Court found that the four day delay in the supplemental disclosure, which merely supplements her opinion based on recent deposition testimony, is harmless.
Held
The Court denied Williams’ motion to strike the supplemental expert report of Laurie Levenson.
Key Takeaway
In the supplemental report, Levenson merely reviewed recent deposition testimony and discusses portions of the testimony that relate to the opinions set forth in her original report. This is similar to the role an expert plays at trial.
Please refer to the blog previously published about this case:
The Plaintiff, Christopher Ayash, is a named beneficiary of the Patricia Louise Ayash Living Trust (“Trust”), created by his late mother (“Grantor”) in 2002. The Trust also named two of the Grantor’s other sons as beneficiaries. The Defendants, David Barnette and Karl Hamm, serve as Trustees.
The Trustees are directed to divide and hold the Trust property for the benefit of the Grantor’s sons, including the Plaintiff, and their descendants. Because the Plaintiff was not fifty-five at the time of the Grantor’s death, the Trustees placed his share in a Non-GST-Exempt Trust. This case is at least the third lawsuit between the parties.
The central question in this lawsuit is simple: Does the First Amendment and Restatement of the Patricia Louise Ayash Living Trust 2002 (u/a/d May 16, 2007) (the “Trust”) require the Defendants, as trustees, to distribute trust shares to a beneficiary when he turns fifty-five?
Christopher Ayash filed a motion to strike the expert opinions of Christopher J. Winton, a lawyer, because “those opinions are legal conclusions that attempt to usurp the Court’s role in construing the trust.”
Law And Legal Expert Witness
Christopher J. Winton has built a highly regarded career in estate planning, business planning, taxation, real estate, and civil litigation.
Winton began his education at the University of Virginia, where he graduated with high distinction in 1982 and was inducted into Phi Beta Kappa. He then continued at the University of Virginia School of Law, completing his J.D. in 1985.
Winton is licensed in both the West Virginia State Bar and the Virginia State Bar. His active involvement includes membership in the Real Property, Probate and Trust Law Section of the American Bar Association, the National Academy of Elder Law Attorneys, and the Charleston Estate Planning Council. He has also long served on the West Virginia State Bar Probate Committee and became its Chair in 2019, contributing to legislative initiatives in estate and trust law.
The Plaintiff argued that the opinions are inappropriate because Winton interpreted the meaning and purpose of the Trust Agreement and applied that interpretation to the facts of this case.
Although the Defendants argued that Winton merely applied his specialized knowledge of trust administration, based on his experience as a trust and estate attorney, Winton began both his initial opinion and rebuttal opinion by interpreting the Patricia Louise Ayash Living Trust (“Trust”).
He concluded that “the Non-GST Exempt Trust for the benefit of Christopher Mark Ayash did not terminate when the beneficiary attained the age of 55 but continued under the terms and provisions of the Trust Agreement.”
Applying the West Virginia case law and the West Virginia Uniform Trust Code (UTC), to the facts, he concluded that the Defendants exercised their discretion in good faith, and further concluded in his rebuttal opinion that the Defendants did not breach any of their duties. Winton also concluded that the Defendants were entitled to reasonable commissions and fees for their services as Trustees.
The Court found that Winton’s opinions should be excluded as inadmissible legal conclusions.
Held
The Court granted the Plaintiff’s motion to strike the testimony of Defendants’ expert Christopher Winton.
Key Takeaway
Winton went far beyond providing specialized knowledge in trust administration by interpreting the Trust and applying that interpretation, as well as West Virginia case law and the UTC, to the facts in this case.
Case Details:
Case Caption:
Ayash V. Barnette
Docket Number:
2:24cv720
Court Name:
United States District Court for the Southern District of West Virginia, Charleston Division
Ibrahim Qasim bought a sixty-four ounce container of EcoLogic Bed Bug Killer 2 (“Product”) from Home Depot on August 26, 2019. On September 2, 2019, at 9:00 a.m., Ibrahim sprayed all sixty-four ounces of the product into the living room of the apartment he and Nouh Qasim shared. At 5:00 p.m., as Nouh turned on the gas stove in the kitchen to make coffee, a fireball erupted, severely burning both Plaintiffs. The Newark Fire Department found sodium azide in the bathtub drain, a highly toxic chemical compound “used to make explosives and methamphetamine.” First responders also found a gasoline can in the apartment.
Plaintiffs sued Defendants Spectrum Brands Holdings, Inc. (“Spectrum”), United Industries Corporation (“United”) and Liquid Fence Company for strict products liability and violations of the Consumer Fraud Act.
Plaintiffs retained Dr. James W. Pugh, Ph.D. as an expert, who summarized his analysis in a two-page report (“Pugh Report”). Pugh concluded, to a reasonable degree of scientific, engineering, ergonomic, and human factors certainty, that the defective labeling of the product was the proximate cause of the accident.
Defendants argued that Pugh’s expert report should be excluded because it concluded the warning label on the product caused the fire without “any mention of scientific methodologies, mathematical calculations, or independent testing and analysis.”
Materials Science Expert Witness
Dr. James Whitworth Pugh, Ph.D. earned an undergraduate degree in metallurgy and materials science and a Ph.D. in biomedical engineering from the Massachusetts Institute of Technology (“MIT”).
While a graduate student at MIT, Pugh worked at the U.S. Army Materials and Mechanics Research Lab. After graduating, Pugh taught biomechanics, engineering, and materials sciences at several institutions, including New York University.
Pugh opined about the Product’s warning label and the cause of the fire. Pugh has extensive experience analyzing “products, warnings, and instructions.” So, he has more knowledge than the average layperson about the adequacy of warnings. Pugh, therefore, is qualified to opine about the Product’s warning label.
Pugh, however, is not qualified to testify about the cause of the fire. To be sure, Pugh testified he had “done a lot of thermal injuries analysis” and was “exposed to a large amount of fire and thermal events” in his work at MIT. But analyzing burns on the human body or seeing fires in a ballistics laboratory are fundamentally different than investigating the origin of a fire.
Pugh has never been a fire investigator, been a member of a professional fire investigation organization, or published an article on the causes of fires. Pugh has no training in recognizing burn patterns. And the record did not reflect that he has any practical experience investigating the origin of a fire. Instead, Pugh’s sole experience with fire causation comes from owning a sailboat with an isopropyl alcohol stove, and taking courses at MIT covering isopropyl alcohol fires. But the fact that Pugh knows what an alcohol fire looks like in a stove on a boat does not qualify him to give an expert opinion that this fire was an alcohol fire, or the Product caused it.
While Pugh is qualified to testify about warning labels, the Court held that he is not qualified to testify about the cause of the fire.
B. Reliability
i. Fire Causation
Pugh’s opinion about the cause of the fire lacked good grounds because it is based entirely on comparing pictures of the apartment to his experience using an alcohol stove on a boat.
Pugh did not test the Product or account for the distance between where Ibrahim sprayed the Product and the site of the fire, the time between when Ibrahim sprayed the Product and the fire, or the presence of other flammable substances in the apartment. He “used little, if any, methodology beyond his own intuition.”
The Court concluded that Pugh had no reliable basis to conclude the Product’s isopropyl alcohol content caused the fire.
ii. Failure to Warn
Pugh’s conclusions about the product’s warning label lacked signs of reliability. Here, the product had a flammability warning. Examining a fourteen-ounce spray can of the product, Pugh concluded the text was too small. However, it did not appear that he examined the warning on the much larger sixty-four-ounce container of the product Ibrahim used on the day of the accident.
Pugh did not consider federal pesticide labeling standards, industry practice, the Product’s accident history, scientific testing, whether his proposed open flame pictogram was feasible, or whether it would have prevented the accident. Nor did he provide any visual aids to explain his conclusion that the Product had an inadequate warning and that his proposed warning was adequate. At most, Pugh asserted that the product’s warning did not comply with two standards from the American National Standards Institute (“ANSI”) and a warning handbook from 2006.
According to the Court, neither Pugh’s opinion that the product caused the fire, nor his opinion that the flammability warning on the product was inadequate, are reliable.
C. Fit
At the Daubert hearing, Pugh testified that it was “unlikely” the Product caused the fire if Ibrahim’s timeline were true. Pugh added he “disagreed with the characterization of the time that Ibrahim applied it in view of what [Nouh] said.” But Pugh did not explain why he disagreed with Ibrahim’s account and believed Nouh’s. Nor did he address the issue in his report. Instead, he simply concluded the fire started when Nouh said it did. That is of no assistance to the factfinder.
Likewise, although Ibrahim testified “he never read the warnings or instructions on the product” before using it, Pugh concluded that an open flame pictogram would have prevented the fire. Pugh entirely failed to explain why a Plaintiff who did not read any of the warnings on the product would nonetheless read a different warning on the product. Here, too, the lack of a why or wherefore did not assist the factfinder. The Court held that Pugh’s opinions, accordingly, did not fit the proceedings.
Held
The Court granted the Defendants’ motion to exclude the testimony of Plaintiffs’ expert Dr. James Pugh.
Key Takeaway
An expert’s testimony ‘fits’ the proceedings, if it will help the trier of fact to understand the evidence or to determine a fact in issue. Pugh’s analysis is bereft of a why or wherefore.
Because Pugh is not qualified to render expert opinions on fire causation, his conclusions on fire causation and adequate warnings are unreliable, and his analysis does not fit the proceedings, the Court excluded his testimony.
This case involves allegations of underpayment and nonpayment under an insurance policy.
Ategrity Specialty Insurance Company issued Policy No. 01-C-PK-P20064154-0 to 707 FWY Investments, LLC with effective dates of September 12, 2022, to September 12, 2023. Plaintiff leased out this structure to commercial tenants.
The roof collapsed and then several severe rain and windstorms allowed water infiltration to the roof surfacing and sub-surfacing and the interior of the building. Plaintiff subsequently filed a claim under the policy.
Defendant filed a motion to strike Plaintiff’s expert, Monty Stone, a public adjuster designated to testify on causation.
Insurance Expert Witness
Monty B. Stone has had many years of experience in the construction and roofing industry starting from July 2005 to January 2020 where he owned and operated his own construction company and installed all types of roofing systems, including the one at issue in this case.
Stone has been a licensed Public Insurance Adjuster since 2018.
Plaintiff designated Stone to testify as an expert in damages and causation. Defendant filed a motion to strike Stone’s opinions on causation—but not damages—arguing 1) he is not qualified, and 2) his testimony is not based on a reliable methodology.
Defendant’s argument that Stone is unqualified rests on the fact that he is not an engineer—he is a public adjuster—and “working closely” with engineers is an insufficient basis to make one an expert in engineering. Defendant also pointed to the fact that Stone was not certified as a roof consultant or a roof observer at the time of the loss. Plaintiff responded that 1) Stone has been upheld has an expert in the face of nearly identical challenges, and 2) Defendant’s quibble is better suited for cross-examination.
While he is not currently licensed, he has been in the past and has extensive work experience and training with identifying damage causation, reasonable repairs, and reasonable costs. Stone was also formerly a HAAG Certified Roof Inspector—the same company for which Defendant’s causation expert works. Because Stone is not required to be an engineer to testify as to causation, Defendant’s arguments regarding Stone’s experience are better suited for cross-examination, rather than a challenge based on qualification.
Defendant also objected to the reliability of Stone’s testimony, arguing that he provides only “general statements without concrete examples” which amounts to “ipse dixit.”
Plaintiff argued that “Defendant offered no comparison to other methodologies” and that Defendant’s own engineer relied on the same methodology—visual inspection—and performed no testing.
Defendant presented no other reason for the Court to believe Stone’s physical inspection is not a proper methodology. In light of this, the Court found no reason to think Stone’s methodology was unreliable.
Held
The Court denied Defendant’s motion to strike the testimony of Plaintiff’s expert Monty Stone.
Key Takeaway
Although Defendant makes an argument based on Stone’s lack of schooling, that is only one among many ways to be qualified. Under Federal Rule of Civil Procedure 702, a witness may be qualified as an expert by “knowledge, skill, experience, training, or education.”
Case Details:
Case Caption:
707 FWY Investments LLC V. Ategrity Specialty Insurance Company
This matter arises out of a slip and fall incident that occurred in the restroom at the Waffle House restaurant in Dillon, South Carolina. On January 3, 2020, Plaintiff Loretta Diaz entered the ladies’ restroom at the Defendants’ Waffle House location and traversed the restroom floor, when she slipped and fell on a foreign substance that had accumulated on the floor.
Plaintiff alleged in her complaint that the Defendants failed to maintain its property in a reasonably safe manner.
Plaintiff retained Dr. Bryan Durig to render an expert opinion as to the engineering of and the slip-resistance of the restroom floor. Defendants argued that Durig’s opinions in this case must be excluded because Durig performed a wet test of randomly selected tiles—rather than reading Plaintiff’s testimony about her slip and fall—and did not use the actual substance Plaintiff fell on for the test.
Mechanical Engineering Expert Witness
Dr. Bryan R. Durig is a registered professional engineer in the states of South Carolina and North Carolina, holds a Ph.D. in mechanical engineering, and is certified as a forensic slip expert by the National Institute of Forensic Studies.
In his report, Durig explained that he examined and tested the tile flooring in the ladies’ restroom of the Dillon Waffle House and that it failed to meet the minimum wet dynamic coefficient of friction required by industry standards to be considered slip resistant; thus, he opined that the flooring did not meet building codes or industry standards for a slip-resistant walking surface.
Defendants did not challenge Durig’s qualifications as an expert witness. Instead, Defendants contended that Durig’s testimony is irrelevant, immaterial, and unreliable under controlling South Carolina law because he tested the coefficient of friction of the restroom tiles only when they were wet rather than both when they were wet and when they were dry. They also argued that Durig’s opinion is unreliable because he was unfamiliar with Plaintiff’s deposition testimony, believed that the foreign substance Plaintiff slipped on was Coke rather than water, and did not know where in the ladies’ restroom Plaintiff slipped and fell.
Finally, Defendants asserted that Durig’s testing used a soap solution rather than water, that he presented no evidence to establish that the methodology used was peer-reviewed and scientifically approved, that he showed a lack of understanding regarding the tests and significance of the result numbers, and that he used a standard promulgated in 2022 for an accident that occurred in January 2020.
Analysis
The National Floor Safety Institute (“NFSI”) was designated as the standards developer for the ANSI in June 2006 to develop standards for safety requirements for slip, trip, and fall prevention, and ANSI approved the first NFSI standard in October 2009.
Durig tested for the wet dynamic coefficient of friction of three flooring tiles in the ladies’ restroom of the Dillon Waffle House in accordance with the ANSI/NFSI B101.3 industry standard. Durig testified that he tested the wet dynamic coefficient of friction and did not test the floor in a dry condition because Plaintiff had stated she slipped on a liquid foreign substance.
As a result, the Court concluded that Durig’s opinion is based on a reliable methodology. Indeed, most of the issues Defendants raised to challenge Durig’s opinion and testimony are fodder for cross examination and did not render Durig’s opinion unreliable.
Held
The Court denied the Defendants’ motion to exclude the testimony of Bryan Durig.
Key Takeaway
The interests of justice favor leaving the difficult issues in the hands of the jury and relying on the safeguards of the adversary system—Durig’s testimony should be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.
On October 27, 2022, a three-vehicle collision occurred on Interstate-10 in Phoenix, Arizona. Defendant Eduardo Serrato was operating a tractor trailer when he struck the rear of a Dodge Dart, killing a non-party individual inside the vehicle. The Dodge Dart was pushed across two lanes, and it impacted the tractor trailer containing Plaintiffs Robert Hanifon and Edelmira Encarnacion. Serrato had “nodded off” before the collision, although he had not fallen asleep.
Serrato, a Class-A Commercial Vehicle licensed driver, was employed by Defendant J.B. Hunt, and the tractor trailer he was driving was owned by J.B. Hunt. In addition to Serrato’s involvement in the collisions prior to his employment with J.B. Hunt, Serrato’s employee file noted several incidents that took place leading up to the October 27, 2022, collision.
Plaintiffs intended to have two life care planning experts testify about Plaintiffs’ future medical care—Dr. Caitlin Civiello would testify on Ms. Encarnacion’s and Dr. Pallavi R. Cherukupally on Mr. Hanifon’s.
J.B. Hunt filed motions to strike and exclude portions of the report and proposed testimony of both experts on substantially identical bases.
Life Care Planning Expert Witnesses
Caitlin E.A. Civiello is an emergency room physician and a certified life care planner. Civiello received her M.D. from the Tufts University School of Medicine. She has extensive experience in life care planning and emergency treatment and pain management, including steroid injections and trigger point injections.
She authored a life care plan that purports to identify the care that Encarnacion will need in the future and the price for that care.
Pallavi R. Cherukupally is a board-certified physician in Physical Medicine and Rehabilitation. She is a nationally recognized leader in Regenerative and Interventional Spine Medicine and a certified life care planner.
Plaintiff Edelmira Encarnacion has identified Dr. Caitlin Civiello of the expert witness firm, LCPpro LLC, as the life care planning expert that plans to testify as to her future medical care.
1.Medical Foundation
J.B. Hunt contended that Civiello’s life care plan lacked medical foundation because Civiello did not have the requisite expertise and did not consider comprehensive enough evidence. The Court disagreed.
J.B. Hunt pointed out that Civiello’s opinions did not conform to recommendations made by Encarnacion’s treating providers.
There is no requirement that an expert’s opinions agree with the recommendations of a treating physician. That is why it is common to have competing testimony between a treating physician and medical expert.
To the extent Civiello’s opinions diverge from specific recommendations, the Court concluded that those opinions may nonetheless stand on her independent review of the medical records and literature, and her experience as a licensed physician and certified life care planner.
J.B. Hunt argued that her opinions are inadmissible because she lacked credentials in orthopedics, neurology, and psychology. She also lacked experience providing non-emergency treatment and pain management care.
The Court, however, will not exclude Civiello’s testimony by virtue of the fact that she is not a specialist in all areas of care outlined in her report. The jury may weigh her testimony accordingly.
2. The LCPPro Database
In addition to identifying future care, Civiello also estimated the “usual, customary, and reasonable” (“UCR”) cost of that care using the LCPPro Median Cost Research Database.
The data consists of only medical bills from cases where an LCPpro expert was retained to author a life care plan. In other words, the care LCPpro references in the data is care provided almost exclusively to Personal Injury Plaintiffs. An LCPpro employee, Shelene Giles, maintains the database.
The Northern District of Georgia recently found that an LCPpro expert could not offer opinions based on the LCPpro Database because it was confidential, so the jury could not “probe its functioning or accuracy.”
The LCPpro Database is based on a limited sample of data, despite being relied upon for conclusions about a broader population. The Court found that Civiello’s expert testimony must be excluded under Rule 702 to the extent that it relied upon the LCPpro Database.
Still, Plaintiffs made it “excruciatingly clear” that the LCPpro Database is not a methodology, but merely facts relied upon. But even assuming this is true, an admissible expert opinion is based on reliable methodologies and sufficient facts.
Pallavi Cherukupally
Like Civiello, Cherukupally is a life care planning expert employed by the expert witness firm, LCPpro. Plaintiffs authored a life care plan for Hanifon, and Plaintiffs planned to offer his testimony on Hanifon’s future medical care needs. Defendants filed a motion to exclude much of Cherukupally’s testimony.
Defendants argued that Cherukupally’s opinion lacked medical foundation because Cherukupally is not a certified specialist concerning every treatment she includes in her plan. They also argued that her opinions diverge from the recommendations made by Hanifon’s treating physician. Again, there is no requirement that an expert’s opinions agree with the recommendations of a treating physician. As with Civiello, Cherukupally possesses experience and qualifications as a physician and life care planner. Her opinions align, at least in part, with the recommendations of Hanifon’s treating physicians.
The Court will not exclude Cherukupally’s opinions in their entirety. The Court, however, will exclude Cherukupally’s opinions based on the LCPpro Database for the same reasons that it is excluding those of Civiello. Unlike Civiello, Cherukupally relied on her team to calculate averages and medians of data in the LCPpro Database. Although the parties make much of this fact, it does not alter the Court’s analysis.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the testimony of Caitlin E.A. Civiello and Pallavi R. Cherukupally.
Key Takeaway
Although the fact that a physician may be a board-certified specialist may warrant giving greater weight to that physician’s opinion on an issue in his or her area of expertise, there is no requirement that a physician be actively practicing, or practicing in a particular area of, medicine in order to qualify as a medical expert.
Plaintiffs cannot sidestep Rule 702 by rebranding the output of their opaque data selection process as “facts.”
This action arises from a dispute about the payment of service fees by Bulldog National Risk Retention Group (“Bulldog”) to Plaintiff GB Group. Specifically, the dispute centers on a Service Agreement between GB Group and Bulldog, as well as an Addendum thereto entered into in July 2018 and August 2020.
To begin with, GB Group is a claims and risk management company that specializes in providing third-party administration services in property and casualty insurance. By contrast, Bulldog is a North Carolina risk retention group that was established in 2018 and provides insurance to small, independent, and intermediate and long-haul trucker clients.
In addition, Defendant Michael Hunter is the current president of Bulldog, and Defendant Matthew Holycross is Bulldog’s treasurer. Importantly, all of Bulldog’s services are provided by third-party vendors. Defendant Holycross owns Defendant Palmetto Consulting of Columbia (“Palmetto”), and notably, Palmetto is Bulldog’s current captive manager.
On July 2, 2018, GB Group entered into a Service Agreement with Bulldog to provide policy service, risk, and claims management for Bulldog. GB Group would be paid as a percentage of the gross written premium (GWP) of policies written by Bulldog in accordance with an attached fee schedule. Subsequently, on April 14, 2020, Bulldog and GB Group entered into an Addendum to the Service Agreement. However, neither Hunter, Holycross, nor Palmetto are signatories to the Addendum.
At the time the Service Agreement was executed, Bulldog was under the control of MVT Insurance Services, Inc., the then Managing General Agent (“MGA”).
Ultimately, as a result of ongoing regulatory issues with the North Carolina Department of Insurance (“NCDOI”), Bulldog terminated MVT for cause.
Defendants filed a motion to exclude the testimony of GB Group, LLC’s expert Mr. Konstantin Sakherzon pursuant to Rule 702 and the Daubert standard.
Actuarial Science Expert Witness
Konstantin Sakherzon, ACAS, MAAA is a Member of the American Academy of Actuaries, Associate of the Casualty Actuarial Society and is a Managing Member of Ark-tuary, LLC. Sakherzon has expertise in loss and premium valuations for various purposes including insurance unpaid liability calculations and economic damages calculations.
He has had an extensive career in the insurance industry, including working for Managing General Agents (MGAs) and carriers where he was responsible for developing pricing valuations and guidelines for clients and submitting and defending rate filings to state insurance departments.
To begin with, the Defendants argued that Sakherzon’s opinion as to the liability of Hunter, Holycross, and Palmetto has no basis in law or fact. Moreover, the Defendants argued that Sakherzon’s opinion as to damages is speculative, untrustworthy, and failed to rest on sufficient data or facts. Finally, the Defendants argued that Sakherzon’s opinions as to the calculations related to the frequency and minimum premium conditions should be excluded as these opinions are based on Sakherzon’s own interpretation of the Service Agreement and Addendum.
However, the Court rejected Defendants’ argument that Sakherzon has attempted to offer an expert opinion as to the liability of Hunter, Holycross, or Palmetto.
Also, the Court rejected Defendants’ arguments as to the reliability of Sakherzon’s opinions, both as to damages calculations and opinions as to calculations related to the frequency and minimum premium conditions.
Analysis
GB Group’s fees were determined by calculating a percentage of all GWP written by Bulldog in accordance with the fee schedule attached to the Service Agreement. Later, the Addendum changed how GB Group’s fees were calculated. This should be a simple issue, but the premium data generated while MVT was managing Bulldog was unreliable. Specifically, prior to its termination, MVT oversaw Bulldog’s policy database, Quickbase, which was used to identify and calculate GB Group’s fees. However, later audits determined that the premium records in Quickbase were inadequate and inaccurate.
Accordingly, Sakherzon performed three damages calculations for his report. The first is based on the “raw” data which Sakherzon assumes for the purposes of that calculation is accurate. The second and third calculations attempted to remedy and account for the inaccuracies in Defendants’ raw data. The Court determined that such an approach did not render Sakherzon’s calculations as unreliable so as to render them inadmissible under Rule 702. In circumstances where actual data is missing or unreliable, courts permit parties to “rely on reliable estimates.”
Here, Sakherzon does not attempt to opine as to the proper interpretation of the Service Agreement or the Addendum. Moreover, the Court agreed with GB Group that where Sakherzon’s report presumes that the Service Agreement and Addendum are interpreted in a certain way, his opinion as to the resulting damage is limited to that interpretation of the agreements. In other words, GB Group’s expert report did not attempt to “draw a legal conclusion by applying law to the facts which would render his opinion inadmissible.
Held
The Court denied Defendants’ motion to exclude the expert opinion of Konstantin Sakherzon.
Key Takeaway
Exclusion of Sakherzon’s opinion is further not warranted based on the inclusion of any legal opinions. Damages experts are entitled to assume liability when rendering their opinions.
Case Details:
Case Caption:
GB Group, LLC V. Bulldog National Risk Retention Group, Inc.
Docket Number:
5:23cv29
Court Name:
United States District Court, North Carolina Eastern
The Defendants are Pennsylvania State Police Troopers accused of using excessive force when they served a 302 warrant on Plaintiff Carl Giuli based on his wife’s reports that Giuli was experiencing a mental health crisis. While serving the warrant, an altercation occurred in Giuli’s house involving Giuli and Pennsylvania State Police Troopers Joseph Montagna and Christopher Teetsel. Giuli sustained injuries in the course of the altercation which he alleges are due to the use of excessive force by Troopers Montagna and Teetsel.
The Defendants sought to preclude Thomas Shea, the Plaintiff’s proffered use of force expert, on several grounds. In their motion, Defendants stated that Shea’s expert report is not appropriately considered by the jury on several grounds: 1) he was a municipal officer rather than a state police trooper as are Defendants in this case; 2) he uses “amorphous methodologies with no reliability”; 3) he “invades the province of the jury by declaring that excessive force was used and the testimony of the troopers is not credible”; and 4) his opinions about trooper training are not supported.
Law Enforcement Expert Witness
Thomas A. Shea III, D.Sc., CPP is a nationally recognized Law Enforcement and Security expert in policing best practices, security standards, and emergency preparedness, specializing in police operations, use of force, premises liability, negligent security, and related civil litigation issues.
He started his career with the Long Branch Police Department in 1998 after serving honorably in the United States Marine Corps during Operation Desert Storm. During his career, Shea served as an agency police commander and on the Monmouth County Emergency Response Team (SWAT).
After completing his police career in February 2017, Shea entered academia. Shea recently served as the director and founder of the Law Enforcement Executive Leadership program at Seton Hall University.
He has published numerous academic and professional articles and a police practice book, created a law enforcement and security leadership higher education curriculum, and presented nationwide at professional conferences on security and policing topics.
The Defendants first asserted that Shea’s report consisted of inaccuracies and factual errors that cast serious doubt on the reliability of his opinion.
The Defendants maintained that Shea’s reliability is doubtful because Shea did not use the New Jersey Law Enforcement Handbook in making his determinations despite his report saying that he did. Critically, Shea’s report stated that it was Defendant Montagna who pushed Plaintiff Giuli up against the refrigerator in the course of this incident; there is no allegation of this in the record, and Shea offered inconsistent explanations for why this factual averment appears in his report.
The Court found that the inconsistencies found in his report and other matters that relate to the reliability of his opinions are properly the subject of cross-examination to the extent he is allowed to testify on those matters at trial.
B. Credibility Determinations
The Defendants next argued that Shea’s opinions regarding credibility are inappropriate. The jury has the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in evidence, and reaching ultimate conclusions of fact.
The Court agreed with the Defendants that “the case presented to the Court is one of credibility—ultimately the jury will have to determine if Defendants maliciously assaulted Plaintiff or if they used appropriate force after he attacked them.” Regarding the different versions of events offered by the Plaintiff and Defendants, Shea confirmed at the Daubert Hearing that the parties’ “stories differ in some aspects” and that he “intended to offer an opinion to the jury as to who they should believe or find credible.”
Shea also acknowledged that he made other credibility determinations in the course of his report, including those related to the cause of Plaintiff’s injuries, and he believed that was “a typical purview of a use of force expert.” As a result, Shea was precluded from offering any opinions on credibility at trial.
C. Specific Opinions
1. Compliance with Non-Relevant Standards
Defendants asserted that the Plaintiff sought to admit Shea’s opinion regarding Defendants’ compliance with non-relevant standards. The Court found that Plaintiff has not shown that “prevailing national standards in the use of force” are relevant in this case or that the specifically identified President’s Task Force on 21st Century Policing Final Report and Law Enforcement Best Practices: Lessons from the Field are relevant.
Therefore, Shea was precluded from relying on these publications and testifying about standards promulgated therein, i.e., the goal of “avoiding the use of force if at all possible, even when it is allowed by law and policy” identified in The President’s Task Force on 21st Century Policing and the “principles of de-escalation” identified in Law Enforcement Best Practices.
Similarly, the Court precluded Shea from testifying about Plaintiff’s generically identified intent to elicit an opinion on “prevailing national standards in the field of use of force.”
2. Pennsylvania Mental Health Procedures Act
Plaintiff has not shown the relevance of the Pennsylvania Mental Health Procedures Act to the charge against the Pennsylvania State Troopers executing the warrant and has not shown how testimony about provisions in the Act would assist the trier of fact as required under Daubert.
The Court held that Shea’s testimony about the Act at the Daubert Hearing made no direct connection between the Act and the facts of this case, opining generally that “what he took” from the Act is that “you have to take extra, extra precautions to communicate more thoroughly. You have to be more patient than you normally would during a call because lots of people going through these crisis events aren’t aware . . . of their actions and decisions.”
This is not a State Police policy, it is not presented as a policy statement found in the Act or one that is applicable to officers issuing a 302 warrant. Therefore, the Court found that reference to the Act is properly precluded based on relevance and fit grounds.
3. Compliance with Pennsylvania State Police Policy
Defendants next took issue with Plaintiff’s proposed opinion as to whether Defendants were compliant with Pennsylvania State Police policy.
Defendants specifically asserted that Shea “should be prevented from testifying as to whether or not Defendants complied with the PSP policy, as he has not established his opinion is any more reliable than a lay witness simply reading the Pennsylvania State Police policies and opining on whether or not they were followed in this case.”
The Court found that Shea has a breadth of knowledge and experience in police practices and use of force which render him qualified to testify as an expert as limited herein. Further, Pennsylvania State Police policies are relevant for purposes of this case and an expert’s review of pertinent policies will assist the trier of fact.
4. Compliance with De-escalation Policy
Defendants relatedly contended that it did not appear that Shea based his opinion regarding de-escalation on Pennsylvania State Police policy; “rather he based his opinion on ‘Law Enforcement Best Practices: Lessons from the Field . . . [and] only on Plaintiff’s version of events as he made a credibility determination regarding the Defendants’ narrative.”
It should be noted that an opinion based on Law Enforcement Best Practices is precluded and an opinion based on a credibility determination is also precluded.
5. Use of Excessive Force Language
Finally, Defendants objected to the Plaintiff’s intention to elicit Shea’s opinion on whether the force used was “reasonable and necessary, with no mention of the word, excessive, no mention of the case law, no mention of factors.”
The Court concluded that Shea is appropriately precluded from use of the words “reasonable” or “unreasonable” in rendering his opinion regarding excessive force. Testimony by Shea regarding reasonableness “would usurp the District Courts’ pivotal role in explaining the law to the jury.”
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the testimony of the Plaintiff’s use of force expert, Thomas Shea.
Key Takeaway
The Court acknowledged that Shea’s report is problematic for multiple reasons, including those cited. However, focusing on Shea’s knowledge and experience summarized at the Daubert Hearing and set out in his Curriculum Vitae, the Court found that Shea has a breadth of knowledge and experience in police practices and use of force which render him qualified to testify as an expert.
Case Details:
Case Caption:
Giuli V. Montagna
Docket Number:
3:23cv1785
Court Name:
United States District Court for the Middle District of Pennsylvania
In this insurance bad faith case, Plaintiff James Won alleged that State Farm unreasonably denied his claim for business property damage and lost profits resulting from a fire that occurred at Won’s Tapioca Express store in Edmonds, Washington on September 11, 2021.
Won disclosed Michael Jack of Soundpoint as a financial expert but the Defendant sought to exclude Jack’s testimony, alleging that the opinions of Jack that the Plaintiff disclosed before the discovery cutoff on October 5, 2025 “are irrelevant and unhelpful to the jury in this case.”
Valuation Expert Witness
Michael Jack is a Certified Valuation Analyst (CVA). He has an Honors BS in Finance from Indiana University, an MBA from the University of North Carolina and is a graduate of General Electric’s Financial Management Program.
He has held leadership roles in finance, operations, technology, program management and product management in start-ups, mid-size fintechs and large financial services firms.
Initially, Defendant contested only the helpfulness of the opinions of Jack that were disclosed before the discovery cutoff on October 5, 2025.
On August 06, 2025, Plaintiff disclosed Jack as a financial expert and shared a report from Jack dated July 29, 2025. That report expressed Jack’s opinion concerning the fair market value of Plaintiff’s business as of the date of the fire that precipitated the insurance claim that is at issue in this action. Jack’s report presented the fair market valuation—$501,000—as being offered “for the purposes of a calculation of economic damages.” However, the report did not directly calculate economic damages.
However, on October 08, three days after the discovery cutoff, Plaintiff produced a second report from Jack. Conceding that the first report “is not a direct calculation of economic damages,” the second report offered a net economic damages calculation of $434,700. A third report from Jack, dated October 20, 2025, offered a calculation of “the total annual lost income to Won incurred from the closure of Northwest Tea Station . . . due to a fire in September 2021.”
Defendant added that these post-discovery-cutoff opinions should be stricken and are essentially an effort by the Plaintiff to “change the heart of his case without giving State Farm an opportunity to fairly respond.”
Analysis
Given the totality of the circumstances, the Court allowed the reports from Jack that were disclosed after the discovery cutoff. Having allowed those reports from Jack, the Court has no doubt that Jack’s analyses, taken together, are helpful. Thus, the Court will deny Defendant’s Daubert motion and Defendant’s motion to strike. However, the Court did not accept Plaintiff’s argument that his post-discovery-cutoff disclosures were timely supplements under Fed. R. Civ. P. 26(e) given that Plaintiff has been aware since at least March 2025 that Defendant had requested a specific, itemized list of Plaintiff’s damages.
Nor did the Court accept Plaintiff’s argument that his post-discovery-cutoff disclosures were “substantially justified” and “harmless” under Fed. R. Civ. P. 37(c)(1). Therefore, the Court is willing to consider a motion by Defendant for reasonable expenses, including attorney fees, caused by Plaintiff’s failure to timely disclose a damages calculation.
Held
The Court denied Defendants’ Daubert motion to exclude the testimony of Michael Jack and strike his untimelyexpert report.
Key Takeaway
While Jack’s analyses are helpful, Plaintiff’s initial disclosures did not provide a “computation of each category of damages” as required by Fed. R. Civ. P. 26(a)(1)(A)(iii), nor did Plaintiff provide the “itemized list of damages” requested by Defendant in Defendant’s discovery requests.
Case Details:
Case Caption:
Won V. State Farm Fire And Casualty Company
Docket Number:
2:24cv507
Court Name:
United States District Court for the Western District of Washington
The Volga German people are individuals of German origin who moved to the Volga region of Russia in the eighteenth century. Many of the descendants of the Volga German people have moved to other parts of the world after persecution of Germans in Russia. There is a sizable Volga German diaspora in the American Midwest. Plaintiff Margreatha Hein and Defendant Dr. Brent Mai are both genealogy researchers on the Volga German people. Their research is the subject of this lawsuit.
This case centers on whether Mai committed copyright infringement on Hein’s alleged work and whether there are damages due to the alleged infringement.
Defendant filed a motion to exclude the testimony of Plaintiffs’ expert, Dr. Kenneth D. Crews.
Intellectual Property Expert Witness
Kenneth Donald Crews is a law professor with substantial professional expertise in copyright law. Crews has been a scholar of intellectual property law since at least 2000. He possesses a PhD in Library and Information Science; he published his dissertation on copyright law and policy.
He has published five books on copyright and a great number of other publications.
Crews’ report contended that Hein’s photographs and textual compilations are the proper subject of copyright and have been infringed upon by Mai. His report compared Mai’s reproductions of Hein’s textual compilations to the originals. Crews also opined that Plaintiffs have had their Lanham Act and unfair competition rights violated by Mai’s listing of Hein as a “researcher” or “contributor.” Crews also provided background on the Copyright Act, the process of registering copyrights, and the remedies that are available to injured holders of copyrighted material. Finally, Crews provided a supplemental declaration expressing his opinion that none of Mai’s usage of Hein’s work is protected by the defense of “fair use.”
Mai sought to exclude Crews’ testimony for several reasons including: (1) that Crews did not have the necessary genealogy experience to qualify as an expert; (2) that Crews’ testimony failed all of the Daubert factors; (3) Crews’ testimony offers improper legal conclusions and legal interpretations and thus intrudes on the province of the Court and the jury; and (4) that part of Crews’ testimony was not timely disclosed.
Analysis
Defendant first argued that Crews is not trained as a genealogist and therefore lacked the expertise necessary for him to testify in this matter. However, copyright law is what Crews sought to testify about, not the specifics of genealogy research, which are not at issue in this case.
At the very beginning of the report Crews informed the reader that his work will “follow the basic structure of a copyright infringement case.” His report’s methodology is apparently just the three elements of copyright infringement. It is hard to see how this is not “discoursing broadly over the entire range of applicable law.”
While the Court does not doubt Crews’ familiarity with copyright law, ultimate issues of law are for the judge to instruct on and the jury to decide upon. An expert witness, even a law professor, cannot be a substitute teacher for the Court.
Crews did not aid the Court in understanding a disputed question of fact but instead his report indicates he “states legal conclusions drawn by applying the law to the facts.” That said, some of Crews’ report is helpful background on the process of obtaining and defending a copyright.
Finally, Defendant contended that Crews’ opinion on “fair use,” added through his supplemental declaration, was not timely disclosed. The prejudice was largely self-curing as Defendant has been in possession of Crews’ fair use opinion several months before trial and there was no evidence the delayed disclosure will disrupt the trial. As a result, the Court found it unlikely that Defendant was prejudiced by the late disclosure of Crews’ fair use opinion.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Kenneth Crews.
Key Takeaway
The Court will permit Crews to testify at trial but noted that he will not be allowed to testify on matters relating to ultimate legal issues in the case. Defendant may raise objections at trial to testimony he believes strays into legal conclusions. This balance cautiously tracks the line of Rule 702(a), that expert testimony is primarily intended to “help the trier of fact to understand the evidence or to determine a fact in issue.”
