The instant matter is a personal injury action arising out of an incident on March 14, 2021 where Plaintiff, Jaliska Marte claims that she tripped and fell on an orange safety cone at the Howell, NJ Walmart store.
Defendant argued that the liability report from Plaintiff’s retail expert, Daniel Schroeder, CSM, is an inadmissible net opinion because the expert’s conclusions lack factual basis.
Retail Operations Expert Witness
Daniel Schroeder has nearly two decades of store leadership experience in Big Box, Home Improvement, Grocery, and Specialty Retail areas. He can provide crucial analysis into the inner workings of retail establishments as they inform employee training and inspection protocols which impact the likelihood of slip, trip, and fall accidents.
Here, the Court found Schroeder’s expert opinion riddled with inadmissible net opinions. For example, Schroeder opined that, by allowing the cone to remain tipped over, Defendant violated its own policy and procedures based upon Schroeder’s experience in the retail industry. This assertion lacked factual foundation because Schroeder neither cites Defendant’s policies and procedures in his report nor lists Defendant’s policies and procedures in the “Works Cited” section of the report. Moreover, there is no discussion in the report as to what Defendant’s policies and procedures are and how Defendant violated them.
Additionally, there is no discussion in the report as to what Defendant’s policies and procedures are and how Defendant violated them. Moreover, there is no information regarding Schroeder’s experience contained within the report—such as a curriculum vitae or publications—or discussion about such experience that would lend support for this opinion. This conclusion therefore lacked the “why and wherefore” required by an expert report.
Schroeder additionally concluded that the person wearing an apron could have eliminated the hazard posed by the tipped-over cone because “it is the responsibility of the store leadership and staff to actively look for hazards during their work shifts in order to maintain a safe shopping environment.” This contention similarly lacked the “why and wherefore” necessary for expert reports because Schroeder offered no explanation or discussion for his finding that the person wearing an apron was Defendant’s employee.
Analysis
Connecting his two assertions, Schroeder ultimately concluded that Defendant was responsible for Plaintiff’s fall and resulting injuries because: (1) “there was a specific opportunity for the hazard to be observed, identified, and eliminated before the incident by the employee walking past the safety cone less than 1 minute before the incident”; (2) “had the area been adequately inspected, monitored, and maintained reasonably safe and in compliance with the subject documentation, the subject condition would have been corrected”; and (3) Defendant’s “responsibility comes in the form of training and procedures to ensure that store leadership, as well as their employees recognize, mitigate, and eliminate potential risks in a reasonable manner.” Without any discussion of Defendant’s policies and procedures or deposition testimony by Defendant’s corporate representative to support Schroeder’s conclusion of liability, his report constitutes nothing more than bare conclusions in Plaintiff’s favor.
Held
The Court, accordingly, found that Daniel Schroeder’s report is a net opinion.
Key Takeaway
An expert’s bare conclusions, unsupported by factual evidence are an inadmissible net opinion. The net opinion rule requires the expert to give the why and wherefore of the opinion, rather than a mere conclusion.
United Coal Company, LLC (“United Coal”) brought this action against Xcoal Energy and Resources (“Xcoal”), alleging that Xcoal failed to accept delivery of coal under two separate purchase orders.
Emily Medine is United Coal’s expert witness on damages. Medine produced an expert report providing initial damages calculations, a rebuttal report responding to Xcoal’s expert, Fran Taglia, and three supplements to her initial report.
United Coal argued that the Court should prohibit Taglia from offering opinions at trial concerning his interpretation of the Purchase Orders and the resultant obligations on Xcoal and United Coal, as they are legal opinions.
Xcoal argued that the Court should strike Medine’s expert opinions regarding United Coal’s alleged damages because: (1) both Purchase Orders expressly prohibit the recovery of lost profits, and (2) Medine’s damages opinions are “irrelevant” as they only consider damages in the form of lost profits.
Coal Industry Expert Witnesses
Fran X. Taglia III has over 22 years of technical, operational and business management experience and expertise in the mining industry, including engineering, financial, operational, and marketing assessments. His experience includes feasibility studies, reasonableness reviews, due diligence, and operational assessments for surface and underground mining operations in the United States, Canada, South America, and Australia.
Emily S. Medine developed an expertise in the coal industry, coal markets, and coal procurement. Medine has performed over 60 management/ performance audits of utility coal procurement practices, largely on behalf of state regulatory commissions.
United Coal took issue with several opinions which Taglia shared in his expert reports and his deposition, which included: the legal effect and meaning of the “tentative” delivery schedule in the Purchase Orders; the date that the Purchase Orders became effective; the contractual rights established by the Purchase Orders; and which party ultimately breached the Purchase Orders.
Xcoal did not deny that Taglia offered legal opinions in his expert reports or his deposition but instead stated that it will not offer Taglia’s opinions as to the meaning of terms or legal effect of the parties’ conduct.
Xcoal planned to offer Taglia’s expert opinion to establish: background on the coal industry including the relationship between producers and brokers, the scheduling and performance of coal supply contracts, and the coal market in the years at issue; the parties’ course of conduct in relation to industry standards; the amount of damages suffered by Xcoal due to United Coal’s alleged breach; and critiques of Medine’s opinions on damage calculations. In United Coal’s reply brief, it took no issue with Xcoal’s response.
Xcoal acknowledged that its expert could not offer legal opinions or interpretations of the contracts at issue. United Coal accepted that concession.
Therefore, the Court prohibited Taglia from offering interpretations of the Purchase Orders and the obligations and rights resultant from the Purchase Orders. As identified in Xcoal’s brief, Taglia will be permitted to testify to background issue of the coal industry, the parties’ course of conduct in relation to industry standards, damages suffered by Xcoal due to United Coal’s alleged breach, and critiques of Medine’s damage opinions.
B. Motion to Strike United Coal’s Expert, Emily Medine
Xcoal argued that the Court should strike Medine’s expert opinions regarding United Coal’s alleged damages because: (1) both Purchase Orders expressly prohibit the recovery of lost profits, and (2) Medine’s damages opinions are “irrelevant” as they only consider damages in the form of lost profits.
To begin with, with respect to resale damages, the Court found that Medine sufficiently provided evidence of resale damages to prevent her testimony on the matter from being precluded.
Xcoal argued that Medine cannot provide testimony on resale damages, as she explicitly stated in her deposition that she did not offer an opinion on them. While it is true that when asked, Medine stated that resale damages were not “particularly applicable in this setting” and that she was not offering an opinion on them, Medine’s expert reports did show resale damage calculations. Further, Xcoal appeared to acknowledge that Medine’s reports contained resale figures, as in that same deposition, Xcoal questioned her about the data underlying her resale calculations.
With respect to lost profits, Xcoal argued that the Purchase Orders prohibit the recovery of lost profit damages, and as such, Medine’s damage opinions on lost profits should be struck. United Coal did not contest that the Purchase Orders limit lost profit damages, but rather argued that lost profits, as defined by New York law, are limited to damages based on collateral agreements, which United Coal does not seek. Though the parties have argued the issue, the Court defers on this decision at this time because it has already ruled that Medine’s resale damage opinions will not be struck, and because it would benefit from additional briefing.
As a result, the Court will permit Medine to testify at trial as to both lost profit damages and resale damages.
Held
The Court granted United Coal’s motion to strike Xcoal’s expert, Fran Taglia.
The Court denied Xcoal’s motion to strike United Coal’s expert, Emily Medine.
Key Takeaway
While an opinion is not objectionable just because it embraces an ultimate issue, the Second Circuit is in accord with other circuits in requiring exclusion of expert testimony that expresses a legal conclusion.
Case Details:
Case Caption:
United Coal Company, LLC V. Xcoal Energy And Resources
Manichanh Sitivong sued the United States under the Federal Tort Claims Act (FTCA) for injuries she sustained when her car collided with a car driven by a Federal Bureau of Investigation agent.
Sitivong sought to exclude the government’s biomechanical engineering expert, Keith Stolworthy, Ph.D, P.E. Sitivong argued that Stolworthy’s report (1) incorrectly assumed that Sitivong experienced only frontal forces and not lateral or rotational forces, (2) was insufficiently based on photographs and repair bills for Sitivong’s vehicle, (3) improperly opined on the medical causes of Sitivong’s injuries, (4) relied on volunteer crash safety tests that are disconnected from the conditions of Sitivong’s collision, and (5) relied on a misleading daily activities chart.
Mechanical Engineering Expert Witness
Dean Keith Stolworthy, Ph.D, P.E. understands the mechanical performance of biological tissue (e.g., how the body moves and breaks) and applies this in the analysis of injury-causing events and the design of biomechanical devices. He has served as an expert witness on hundreds of cases involving vehicle accidents (including front, rear, and side-collisions; roll-overs, occupant ejections; and motorcycle crashes); slips, trips, and falls; projectiles and falling objects; workplace accidents; medical devices and consumer product failures; and other injury-causing events.
Stolworthy received bachelor’s, master’s, and doctorate degrees in Mechanical Engineering from Brigham Young University and was a postdoctoral researcher at Vanderbilt University.
Sitivong contended that Stolworthy’s report “never explains” why he concluded that her vehicle “experienced virtually no left-right or clockwise rotation during the impact.”
Stolworthy performed a crush-based analysis to determine the vehicle dynamics of the collision, specifically the “rearward-directed change in speed (delta-V)” of Sitivong’s vehicle. After estimating the size of the damage to Sitivong’s vehicle, he “appl[ied] well-accepted formulas in the field of vehicle accident reconstruction” to determine that the delta-V of Sitivong’s vehicle was “less than 7.5 mph.”
Stolworthy did not state what formulas he applied, how he applied them, or what the potential error rate was for this calculation. He claimed the formulas are “well-accepted” in the field of vehicle accident reconstruction, but he did not cite tests, studies, or peer-reviewed publications. As it stands, Stolworthy’s delta-V calculation using the crush analysis is a black box that does not allow for determination of whether it falls within the range of accepted standards governing how scientists reach their conclusions.
Stolworthy used other methods to calculate delta-V, including National Automotive Sampling System-Crashworthiness Data System, Crash Investigation Sampling System, and Insurance Institute for Highway Safety analyses. However, these analyses provided only an upper limit or approximation of delta-V. The only other method Stolworthy used to calculate a specific delta-V value is a kinematics analysis.
Stolworthy relied on his delta-V calculation throughout the rest of his report. Because the Court cannot determine how Stolworthy calculated delta-V, his report is unreliable. However, the problems appear curable, so the Court gave the government an opportunity to supplement Stolworthy’s report if he can provide the basis for his delta-V calculation.
Held
The Court granted in part Plaintiff’s motion to exclude the testimony of Keith Stolworthy, Ph.D
Key Takeaway
The Rule 702 factors are not exhaustive, vary in applicability depending on the case, and are meant to determine whether the expert’s analysis “falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions.”
Plaintiffs are alleged owners of real property containing natural gas who have no leases with EQT covering their interests. Claiming that EQT has produced gas from Plaintiffs’ properties but not paid them for it, Plaintiffs brought this putative class action seeking to recover the alleged non-payment on behalf of all allegedly unpaid tenants-in-common who presently own property with a co-tenant who has a lease with EQT. Their complaint sought damages for the alleged non-payment on the non-contractual causes of action one might expect from those who are not parties to leases—quantum meruit, conversion, and unjust enrichment—and tacks on a purported claim under Pennsylvania’s Guaranteed Minimum Royalty Act (“GMRA”).
EQT filed motions to exclude and strike the opinions of two of Plaintiffs’ experts, Cara Davis and Christopher L. Haney.
Law And Legal Expert Witness
Cara C. Davis has had 15 years of experience, devoted entirely to the oil and gas title industry and has personally prepared and reviewed hundreds of title abstracts and rendered numerous certified title opinions based on both [her] own work and that of others.
Additionally, Davis is licensed to practice law in Pennsylvania and Ohio and her experience includes evaluating title defects, identifying and assisting with unknown heirs, and tracing mineral ownership, all of which are directly relevant to the identification and location of unleased co-tenants.
Christopher L. Haney is a certified public accountant (“CPA”), a certified fraud examiner (“CFE”) and certified in healthcare compliance (“CHC”).
Haney is regularly retained as an expert and has testified in a variety of venues on topics including financial damages, data analysis, statistical sampling, and regulatory compliance.
EQT asserted that Davis did not adequately review and tailor [her opinions] to the record facts of the case, her opinions are not grounded in the facts, her opinions are unhelpful to the trier of fact on class certification and her opinions were offered in relation to a prior class certification definition that Plaintiffs have now abandoned.
Analysis
Based on Davis’ experience in the industry, along with the additional expert reports in the record, the Court found that Davis’ opinion is reliable. The methodology Davis described, both in her report and throughout her testimony, is a practice which she has employed throughout her career and is “generally accepted” in the industry. Davis also relied on several relevant sources in preparing her report.
There is a clear connection between Davis’ opinion and the facts at issue. Davis formed her opinion based on the facts provided in the record. She used testimony that led her to believe that EQT employs “standard title practices” and applied relevant data she obtained from excel sheets. She determined, in her “professional experience,” that the identities of the unleased co-tenants and their locations are ascertainable through “diligent title search,” which is an accepted method used throughout the industry.
EQT additionally challenged Davis’ opinions that EQT is obligated “to identify and locate unleased co-tenants in accordance with the requirements of the Pennsylvania Minimum Royalty Act, 58 P.S. § 33.3.” The Court agreed with EQT that Davis’ opinions, particularly regarding obligations stemming from § 33.3, shall be excluded.
Davis states in her deposition that she only “vaguely” remembers when the language of the 58 P.S. § 33.3 came out, she does not remember why the statute was passed, she has not read the legislative history, and she did not read the legislative intent behind the statute. As a result, Davis’ testimony that § 33.3 “imposes an obligation on EQT to identify unleased co-tenants” is inadmissible.
Christopher Haney
EQT filed a motion to exclude Haney’s expert opinions, asserting “they are unreliable, irrelevant, and misleading.”
Plaintiffs retained Haney, requesting that he (1) “organize and compile EQT’s data into a structured data set that can be efficiently queried based on select criteria,” (2) use that structured data set to evaluate whether select identifying information for Plaintiffs and other unleased owners (i.e., potential class members for this litigation) can be identified (3) “evaluate acceptable damages methodologies for this matter,” (4) “evaluate the methodology employed by EQT for calculating natural gas royalty payments,” and (5) “determine whether the data available in documents produced by EQT would enable the calculation of natural gas payments or royalties using EQT’s methodology.”
Analysis
Haney explained his process and conclusions throughout his report. He also identified an itemized list of sources and information that he relied upon in support of his methodology. Though Haney testified “that he was unable ‘to incorporate all of the data into the database’ from EQT’s records,” Haney was able to compile most of the data apart from the tax parcel identification numbers that were contained in EQT’s Setup Files.
Haney emphasized that he used “widely accepted statistical procedures and equations” when designing and executing his Statistically Valid Random Sampling method.
The Court found that Haney had good grounds to rely on the data and information provided by counsel when forming his opinions.
Haney used a reliable methodology. He used EQT’s established uniform method for calculating royalties owed to all owners regardless of whether they are parties to a lease.
Held
The Court granted in part and denied in part Defendant EQT’s motion to exclude the expert opinions of Cara Davis.
The Court denied Defendant EQT’s motion to exclude the expert opinions of Christopher Haney.
Key Takeaway
When an expert relies solely or primarily on experience, he must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Case Details:
Case Caption:
Ross V. EQT Corporation
Docket Number:
2:21cv1585
Court Name:
United States District Court, Pennsylvania Western
In December 2020, Diana Dyer “was surgically implanted with an Aris™ Trans-Obturator Sling System (hereinafter the ‘Aris’), a pelvic mesh product and medical device designed, manufactured, and marketed by Defendants,” which “was intended to treat pelvic organ prolapse and stress urinary incontinence.”
Dyer claimed that she “has suffered, and continues to suffer, debilitating injuries” “as a result of being surgically implanted with Defendants’ unreasonably dangerous defective pelvic mesh device.”
Dyer retained as an expert Dr. Jimmy W. Mays, a “Professor Emeritus in the Department of Chemistry at the University of Tennessee.” Mays opined that the Aris is not suitable to serve as a permanent implant.
Coloplast sought to exclude the opinions of Mays.
Polymers Expert Witness
Jimmy Wayne Mays has a Ph.D. in polymer science and has worked extensively in the area of polymeric biomaterials.
Mays opined that polypropylene mesh undergoes oxidative degradation in the human body, which causes the mechanical properties of the mesh to break down.
1. Relevance and Helpfulness to Jury
Coloplast argued that Mays’ opinions are “irrelevant and unhelpful because there is no evidence that [Dyer’s] Aris implant degraded or that any purported degradation caused her alleged injuries.”
Dyer asserted that there is evidence in the record that the Aris’ mesh “was defective and that safer alternatives would have mitigated the complications of the ‘excessive and unpredictable’ foreign body response experienced by Dyer.” The Court agreed with Dyer and found Mays’ testimony relevant and helpful to the jury.
2. Reliability
Coloplast argued that Mays lacked a reliable basis to opine that Coloplast’s polypropylene mesh implants degrade in the body. Mays cited many scientific studies to support his opinion that the addition of antioxidants may delay but cannot prevent the oxidative degradation of polypropylene mesh.
Coloplast has not demonstrated that there is too great an analytical gap between the studies Mays cited and his opinion regarding the Aris’ polypropylene mesh.
B. Clinical Complications
Coloplast argued that Mays “lacks the necessary qualifications to offer opinions concerning potential clinical complications resulting from the purported degradation because he is not a medical doctor and has no medical training.” In response, Dyer represented that Mays will not opine on the medical complications associated with polypropylene mesh.
C. Reduction of Mechanical Properties
Mays stated that the degradation of polypropylene in vivo is “accompanied by a decrease in mechanical properties (embrittlement, loss of mass, decreased melting temperature, reduced compliance) of the polypropylene.”
Coloplast noted that Mays admittedly “is not qualified to quantify the degree of stiffness purportedly resulting from oxidative degradation in vivo or the degree of stiffness necessary to produce clinical symptoms in a patient, and he is unaware of any scientific literature attempting to do so.”
Dyer represented that Mays will not offer opinions regarding clinical complications associated with polypropylene mesh. However, Mays, an expert in polymer science and biomaterials, cited multiple scientific articles in support of his opinions regarding the reduction of the mesh’s mechanical properties. The Court found that Mays’ opinions on this issue are reliable.
D. Toxicology Opinions
Coloplast argued that Mays “is unqualified to opine on the alleged toxicity or irritability of polypropylene resin or antioxidants.”
In response, Dyer represented that “Mays will not opine as to the toxicity of polypropylene resin or antioxidants.” Accordingly, the issues of whether Mays is qualified to offer opinions on toxicity and whether his opinions are reliable and helpful to the jury are moot.
However, Dyer did not address the issue of whether Mays is qualified to testify as to the alleged irritability of polypropylene resin or antioxidants. Accordingly, the Court treats this portion of the motion as unopposed.
E. SaferAlternatives
Coloplast argued that Mays “lacks both the qualifications and the necessary data to opine that polyethylene, poly(vinylidene fluoride) (PVDF), and P4HB meshes” are safer alternatives to polypropylene mesh.
In response, Dyer represented that Mays will not opine as to whether PVDF or P4HB is “safer” than polypropylene mesh.
Accordingly, Coloplast’s argument regarding PVDF and P4HB mesh is moot. As Dyer did not address Coloplast’s contention that Mays is not qualified to opine that polyethylene mesh is a safer alternative to polypropylene mesh, the Court treated this portion of the motion as unopposed.
The Court granted the motion to the extent of excluding Mays’ opinion that polyethylene mesh is a safer alternative to polypropylene mesh.
F. Legal Conclusions, Contents of Internal Documents, and Opinions on Coloplast’s State of Mind and Conduct
Finally, Coloplast asked the Court to exclude Mays’ legal conclusions, summaries of internal documents, and opinions on Coloplast’s state of mind or corporate conduct.
The Court denied the motion as moot to the extent Coloplast sought to preclude Mays from offering legal conclusions or opining on Coloplast’s state of mind or corporate conduct. Mays is not precluded from offering testimony that uses terms that do not have a separate, distinct, and specialized meaning in the law.
The Court granted the motion to the extent Coloplast asked the Court to “preclude Mays from testifying as to the content of Coloplast’s internal documents.” However, Mays “may testify as to a review of internal corporate documents solely for the purpose of explaining the basis for his or her opinions — assuming the opinions are otherwise admissible.”
Held
The Court granted in part and denied in part Defendant Coloplast Corp.’s motion to exclude the testimony of Jimmy Mays, Ph.D.
Key Takeaway
Simply parroting documents or other testimony does nothing to assist the trier of fact. Mays also may not summarize Coloplast’s internal documents.
Please refer to the blog previously published about this case:
Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for damages stemming from a motor vehicle accident that occurred in April 2022.
Specifically, Plaintiffs alleged that at approximately 12:21 a.m. on April 1, 2022, Plaintiff Zhu was traveling westbound on a two-lane section of Interstate 70 in Bond County, Illinois, as part of his employment. The right lane of the highway contained markings for ongoing construction, but no construction work was being performed at that time.
At or near milepost 37.6 westbound, there was a manmade pothole (i.e., a cutout) that was only marked by cones in the right lane. According to Plaintiff, however, the pothole protruded into the left lane without any signs or cones signifying the full length of the protrusion. As a result, Plaintiff Zhu’s vehicle crashed into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff Zhu to suffer severe injury and expense.
Michelle J. Albers has a Master of Science degree in rehabilitation psychology from the University of Wisconsin and has obtained numerous licenses and certifications related to rehabilitation counseling and life care planning. In addition, she has practiced vocational rehabilitation counseling for over 27 years, has worked as a vocational and life care planner for over 17 years, and has served as a social security vocational expert since 2004. Albers has also served as an expert witness in numerous cases across various state and federal courts.
Physical Medicine and Rehabilitation Expert Witness
Dr. Richard Graham Bowman earned his M.D. from West Virginia University, and he specializes in physiatry (physical medicine and rehabilitation). In addition, Bowman has been certified by the World Institute of Pain as a Fellow of Interventional Pain Practice and he has been certified by Capital University School of Law as a Certified Life Care Planner. He has also served on the International Commission on Health Care Certification’s Certified Life Care Planner Board of Commissioners.
Dr. Helena K. Breuer obtained a master’s degree and a bachelor’s degree in civil engineering, both of which included a focus in transportation engineering. In addition, she obtained a Ph.D. in civil engineering with a specialization in transportation engineering.
Breuer also completed 280 hours of accident reconstruction-related training approved by the Accreditation Commission for Traffic Accident Reconstruction.
Defendant Keeley challenged the sufficiency of the facts and data underlying Albers’ opinions, as well as the methodology and reliability of those opinions.
However, Albers’ opinions about Plaintiff Zhu’s inability to work and lost earning potential were based on sufficient facts and data. Her expert report considered hundreds of documents including dozens of medical and billing records, depositions, tax returns, photographs and videos, and numerous other discovery documents from this case.
Defendant Keeley next contended that Albers failed to rely on personal observations of Plaintiff to reach her opinions. Albers conducted a clinical interview of Plaintiff Zhu, relied on the depositions of Plaintiff Zhu and his family, and also relied on the medical records and findings of Plaintiff Zhu’s doctors.
Next, Defendant Keeley argued that Albers’ testimony should be excluded because she did not follow a reliable methodology, and thus “the opinions included in her report are unreliable because they amount to mere speculation or conjecture.”
While Defendant Keeley contended that Albers merely explained what those methods entail, without also explaining how they were applied in this case, the Court does not believe that to be true. Rather, Albers’ report demonstrates how she applied those accepted methodologies to the facts of Plaintiff Zhu’s case.
Finally, Defendant Keeley argued that Albers’ testimony and report should be excluded because her opinions would not assist the trier of fact due to the lack of data underlying her opinions and errors or inconsistencies in her methodology. The Court has already rejected Defendant Keeley’s data and methodology arguments above.
Thus, all that is left is to determine whether Albers’ opinions may be helpful to the jury. Suffice to say, the Court believes Albers’ expert opinion as to lost earning capacity would be relevant and helpful to the trier of fact in determining damages, if applicable.
II. Dr. Richard Bowman’s Expert Opinions
Defendant Keeley first argued that Bowman’s evaluation is not supported by sufficient facts or data. In this regard, Defendant Keeley emphasizes that Bowman “did not perform any physical tests or any kind of investigation” into Plaintiff Zhu’s capabilities and instead relied on Plaintiff Zhu’s subjective self-reporting. However, as shown in Bowman’s report, he relied on extensive medical records from Plaintiff Zhu’s providers and also evaluated Plaintiff Zhu over Zoom.
Defendant Keeley argued that Bowman relied exclusively on the conclusions of other medical providers, rather than the underlying data generated by them.
The Court rejected Keeley’s argument that Bowman’s opinion could only rely on the “data generated” by Plaintiff Zhu’s medical providers and not their overall conclusions. To the contrary, had Bowman relied solely on the data Plaintiff Zhu’s doctors generated, that would have raised much greater concerns as to Bowman’s qualifications and methodology, absent a showing that he was qualified to interpret underlying data from every type of medical field at issue in this case.
Defendant Keeley’s challenge related to whether Plaintiff Zhu has and will continue to avail himself of the treatment Bowman accounted for in his reports is also a question of weight, not admissibility. Admittedly, evidence that Plaintiff Zhu has not, or will not, avail himself of treatment that Bowman anticipated in his life care plan is something that goes to the weight of Bowman’s plan and cost estimates.
However, Plaintiff Zhu’s alleged treatment noncompliance does not impact the reliability of Bowman’s methodology. And, in regard to methodology, Bowman reasonably relied upon medical opinions as to the care Plaintiff Zhu will need and then expanded upon that information by using his expertise to estimate future costs. That is an appropriate methodology for determining Plaintiff’s care costs.
III. Helena Breuer’s Expert Opinions
a. Breuer’s Qualifications as an Expert
As Plaintiffs admit, this is Breuer’s “first case as an expert.” Obviously, however, the Court’s inquiry focuses on Breuer’s qualifications and not her experience or lack thereof as an expert witness.
Breuer did not dispute the fact that she is not a licensed engineer, has not designed a traffic control plan, has not assisted or evaluated the setup of an active traffic control plan, and has no prior work experience related to commercial truck drivers in construction zones.
Here the purpose of Breuer’s investigation and report was “to determine if the temporary traffic controls (TTC) at the time of the incident (1) met the requirements outlined in the approved TTC plans, (2) adequately warned road users of hazards created by work activities, and (3) provided adequate positive guidance for drivers to safely navigate the work zone.” Accordingly, given Breuer’s extensive education in civil engineering with a focus in transportation engineering along with her accident reconstruction training, the Court found that she is qualified and has an adequate foundation to answer the above questions.
Defendant Keeley has also argued that, even if Breuer is qualified to provide expert opinions on certain transportation related topics, such as passenger vehicles and commercial vehicles at rest, she is not qualified to provide expert opinions for situations involving “extensive interstate construction and commercial vehicles traveling on a busy interstate.”
Thus, to the extent Breuer has greater specialized experience in passenger vehicles or commercial vehicles at rest, as opposed to “commercial vehicles traveling on a busy interstate,” that distinction goes to the weight of her expert opinions, not their admissibility.
b. Sufficient Facts and Data
Defendant contended that Breuer’s report is lacking facts and data because: (1) she never visited the crash site or performed any sort of scene examination; (2) she has no knowledge of how traffic control measures were placed at the end of the construction day; (3) she lacks knowledge as to the reasons for the cutout extension; and (4) her opinions rely on unsupported assumptions. Again, the Court is not persuaded.
Analysis
For one, even if the Court assumes that there was value in Breuer visiting the crash site several years after the incident in question, Defendant Keeley’s argument improperly presumes that the failure to personally visit the site renders an expert’s opinions unreliable. This is an argument that has already been rejected in this circuit on multiple occasions.
Turning to Defendant Keeley’s next contention—that Breuer has no knowledge of how traffic controls were placed at the end of the workday—the Court again found that this challenge would, at most, go to the weight of Breuer’s opinions. For one, Breuer’s report demonstrates that several individuals associated with Defendant Keeley have claimed that their placement of safety barrels was permissible at the time of the accident. Put simply, Breuer’s expert opinion on the placement of safety barrels at the time of the accident is not impacted by the separate question of whether those safety barrels were initially placed in different, suitable locations.
Defendant Keeley also argued that Breuer’s opinions should be excluded because she lacks knowledge as to the underlying cause for the cutout extension (i.e., the manmade pothole referenced in the Complaint). The Court questions how Breuer’s alleged lack of knowledge as to the underlying reasoning for the extension of the cutout impacts her opinions and testimony related to traffic safety.
For similar reasons, the Court rejected Defendant Keeley’s argument that Breuer lacked knowledge to provide expert opinion as to the failure to inform the Illinois Department of Transportation about the cutout extension. Undoubtedly, if Defendant Keeley possesses evidence tending to demonstrate that the engineer in question was informed of the extension, they are free to use that evidence to challenge Breuer’s opinion that there is no evidence the engineer was informed.
c. Methodology
Defendant Keeley challenged: (1) Breuer’s use of photogrammetry to form her opinion as to the extension of the cutout; and (2) her failure to look at other factors that may have contributed to the incident.
Breuer’s report first describes the site and the accident. It then lays out the purpose and utility of temporary traffic control measures before discussing the hazard created by the extension of the cutout. Breuer references numerous resources and evidence discussing/specifying what temporary traffic control occurred in this case and what was required under the applicable plans and standards. Her report then outlines the responsibilities the Defendants failed to follow for proper temporary traffic control. Finally, her report lists seven findings related to the traffic hazard at issue and the failure to take appropriate actions to protect drivers from it.
To the extent Defendant Keeley has even challenged Breuer’s overall methodology, the Court is not persuaded. Breuer’s report provides sufficient context, explains and relies on applicable standards and plans, and analyzes Defendant Keeley’s alleged deviation from those requirements to reach her opinions. In other words, Breuer arrived at her opinions with appropriate soundness and care.
Moreover, regarding the specific photogrammetry challenge Defendant Keeley has raised, the Court found that such an approach was permissible because it satisfies the reliability requirements specified in Daubert.
Additionally, the Court is not persuaded by Defendant Keeley’s argument that Breuer’s methodology was inadequate because she failed to use the same methodology to “determine Plaintiff’s lane positioning” or “the width of other cutouts in the construction zone.” If Defendant Keeley wanted an expert to opine on Plaintiff’s lane positioning or the adequacy of temporary traffic controls for other cutouts in the area, it should have retained its own expert to conduct that analysis.
d. Breuer’s Report is Relevant and Will Assist the Trier of Fact
Defendant avers that Breuer’s report and opinions are unreliable, provide little to no independent investigation, and can readily be observed through evidence in the record (and underlying standards and specifications cited therein). The Court did not find any of these arguments convincing.
The Court need not rehash its prior finding that Breuer’s methodology was reliable. It was. Likewise, that methodology demonstrates that Breuer provided ample independent investigation. In fact, the Court found it curious that Defendant Keeley challenged Breuer’s use of, among other things, photogrammetry, while also claiming that she provided no useful independent analysis. Regardless, the Court found that Breuer’s report relied upon useful, independent analysis of temporary traffic control standards and compliance. Moreover, contrary to Defendant Keeley’s argument, the Court did not believe that the pictures and other evidence in the record adequately establish whether traffic control measures were appropriately followed. In addition, contrary to Defendant’s assertions, such a topic is not within the purview of the average juror.
Held
The Court denied Defendant Keeley & Sons, Inc.’s Daubert motions seeking to exclude the testimony of Michelle Albers, Dr. Richard Bowman, and Dr. Helena Breuer.
Key Takeaway
Medical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions. This is particularly true in the area of life care planning because it would be virtually impossible to find an expert life care planner who was qualified to opine on every distinct type of underlying injury.
In this water contamination case, Plaintiff Suffolk County Water Authority (“Suffolk”) brought suit against manufacturers Dow Chemical Company (“Dow”) and Vibrantz Corporation (“Ferro”).
Suffolk contended that dioxane-stabilized TCA is the source of dioxane contamination in the TCA Claim Wells and offered the opinions of its expert witnesses in support. Dow rebuts this proof through the opinions of its own expert, Steve L. McGinnis. Suffolk sought to exclude a narrow subset of McGinnis’ opinions.
Environmental Engineering Expert Witness
Steve Lee McGinnis received a B.S. in Biological and Agricultural Engineering with a secondary major in Natural Resources and Environmental Science from Kansas State University. He received a Masters of Engineering degree in Civil and Environmental Engineering from the Massachusetts Institute of Technology. He is also certified as a Professional Engineer in fifteen states, a Certified Groundwater Professional, a Board-Certified Environmental Engineer, and a Petroleum Release Remediator in South Dakota.
McGinnis has over twenty years of engineering experience “in the fields of environmental engineering, contaminated site investigation and remediation, contaminant fate and transport, and environmental forensics.” Moreover, he has consulted for numerous sites and facilities regarding contaminant releases, including in Suffolk County. In his consulting experience, McGinnis has overseen site investigation and remediation efforts, including specific experience treating 1,4-dioxane and 1,1,1-TCA.
According to McGinnis, Suffolk’s experts “failed to consider fully the implications of Suffolk County’s unique and long-standing reliance on an archaic network of hundreds of thousands of cesspools and septic systems to discharge sanitary wastewater in the subsurface of Suffolk County on the loading of 1,4-dioxane to the SCWA claim wells from the everyday use of common consumer products, which have long contained 1,4-dioxane.”
Suffolk sought to exclude McGinnis’ opinion that the use and discharge of consumer products in residential areas likely constitutes a primary source of 1,4-dioxane, as well as his opinion that 1,4-dioxane trends are more closely linked to consumer products rather than 1,1,1-TCA.
After walking through the historical implications of Long Island’s lack of sewering and longstanding reliance on a dense system of cesspools and septic systems, McGinnis explained that “residentially recharged contribution areas are known to consist of 1,4-dioxane sources due to everyday use of common, everyday consumer products.” He then stated that his “review of historical land use data confirms that the vast majority of claim wells (238 of 286) capture water from predominantly suburban residential areas” and opined that “the abundant suburban residential land uses in the contribution areas for these claim wells likely constitute a primary source of 1,4-dioxane due to the use and discharge of common, everyday consumer products containing 1,4-dioxane.”
McGinnis summarized this opinion as follows: “it is my opinion that 1,4-dioxane trends are more closely linked to the historical and ongoing use of consumer products containing 1,4-dioxane, rather than 1,1,1-TCA use.”
Analysis
The Court agreed with Suffolk that McGinnis’ challenged opinions must be excluded for several reasons. First, it would mislead and confuse the jury to permit McGinnis to simultaneously opine that 1) a well-by-well analysis is required for a true source identification and 2) that consumer products are a “primary source” of dioxane in 238 wells without performing such a well-by-well analysis himself. It is permissible for McGinnis to opine that Suffolk’s experts failed to properly account for the impact of Suffolk County’s lack of sewering and the Claim Wells’ location on predominantly residential land. However, McGinnis cannot take the additional step of opining that consumer products are “likely” to be a “primary source” of dioxane in 238 wells while disavowing that he undertook a well-by-well analysis, which he opined was necessary to determine the source of dioxane in each well.
McGinnis’ land use analysis must also be excluded for another reason: he did not identify in his report what analysis he used to classify each Claim Well’s contribution area or whatever judgment he may have used to reach his conclusions.
Finally, McGinnis’ opinion that “1,4-dioxane trends are more closely linked to the historical and ongoing use of consumer products containing 1,4-dioxane, rather than 1,1,1-TCA use,” must be excluded for yet another, independent reason. Namely, McGinnis never analyzes TCA as a source of the dioxane in the Claim Wells at all.
Held
The Court granted Defendants’ motion to exclude the opinions of Steve McGinnis.
Key Takeaway
Exclusion is required because the link, if any, between the data McGinnis analyzed and his final land use conclusions is written in invisible ink.
Please refer to the blog previously published about this case:
Plaintiff Kim Gentry trains riders and horses in dressage. This professional negligence case concerns the untimely death of Gentry’s beloved horse, Dantique, and Gentry’s dashed hopes to perpetuate Dantique’s bloodline.
Plaintiff retained an equine appraiser, Tanja Schnuderl, as well as a veterinary expert, Robert Boswell. Defendants sought to exclude the testimony of both experts.
Equine Appraisal Expert Witness
Tanja Schnuderl is a certified appraiser with the American Society of Equine Appraisers and has established her own equine appraisal business.
She is also the Director of International Services at The Equine Expert LLC and serves as consultant and expert witness with specialties in barn management, horse behavior and appraising.
Robert P. Boswell is a 1985 graduate of the University of Florida College of Veterinary Medicine and has devoted the entirety of his career to the practice of equine medicine and surgery with an emphasis on equine sports medicine.
Schnuderl calculated the value of the oocytes by taking the average price of five embryos (which are fertilized oocytes), multiplying that cost by twenty, which was the number of oocytes removed from Dantique’s ovaries, and then applying a twenty percent reduction “to accommodate for the 80% success rate of embryo transfers and end up at the fair market value per oocyte.”
Defendants’ beef is with the twenty percent reduction. They argued that this adjustment “is not based upon facts or data, and therefore not reliable.”
Here, Defendants are not attacking the methodology Schnuderl used—in fact, they concede that “her calculation of the ‘comparable’ figures appears reasonable”—but rather the source of her twenty percent reduction.
Because attacks on the source of an expert’s opinion go to weight and not admissibility, Defendants have not established a basis to exclude Schnuderl’s opinions as unreliable.
Robert Boswell
Boswell’s report stated that because “the ovary acts as an impenetrable ’tissue container’ for the oocytes,” contamination could only have occurred at the Hospital, not when the ovaries were removed. He said that contamination could result from improper cleaning and rinsing of the ovaries, and that the oocytes should have been placed in separate vials of separation media so that if one oocyte was contaminated, it would not contaminate the others.
At Boswell’s deposition on January 16, 2026, when asked whether he could “identify a breach of the standard of care,” Boswell responded that a breach occurred at some point during the oocyte removal process. More specifically, Boswell pointed to combining all of the oocytes into one vial of separation media and a lack of proper aseptic technique as breaches of that standard. Boswell did not include this ultimate conclusion in his report because he “thought it was self-evident.”
Analysis
Defendants first took issue with Boswell’s testimony that Defendants breached the standard of care, arguing that this is a new opinion that was not timely disclosed in Boswell’s report. True, Boswell did not use the words “standard of care” in his report except to describe his view of the Hospital’s failure to investigate the contamination. But he did explain that contamination must have occurred at the Hospital; improper cleaning and rinsing of the ovaries could have caused it, and that the oocytes should have been placed in different maturation media. So Boswell’s deposition testimony is not a new opinion—rather, it is the same opinion reworded in response to questioning from Defendants’ counsel.
Defendants next argue that Boswell is unqualified because he has never practiced equine reproductive medicine, nor has he fertilized embryos using these procedures. But Boswell is not testifying about the specifics of equine reproductive medicine or embryo fertilization. His opinions relate to proper aseptic technique and sources of contamination—broad principles of veterinary medicine that a veterinarian with forty years of experience is certainly qualified to testify to, even if he has not performed the specific procedure at issue.
Defendants finally argued that Boswell’s methodology is unreliable because his opinions are based on “his own assumptions, conclusions, and anecdotes” instead of data and studies.
Here, Boswell reaches his conclusions—on the timing of contamination, causes of contamination, and breaches of the standard of care—through his personal experience as a veterinarian combined with a review of the medical records and relevant depositions, which are reliable bases for his non-scientific opinions.
As a result, the Court allowed both experts, Schnuderl and Boswell, to testify.
Held
The Court denied Defendants’ motions to strike Plaintiffs’ experts, Tanja Schnuderl and Robert P. Boswell.
Key Takeaway
An expert may use their experience to reach non-scientific testimony. In this case, Boswell reaches his conclusions—on the timing of contamination, causes of contamination, and breaches of the standard of care—through his personal experience as a veterinarian combined with a review of the medical records and relevant depositions.
In December 2020, Diana Dyer “was surgically implanted with an Aris™ Trans-Obturator Sling System (hereinafter the ‘Aris’), a pelvic mesh product and medical device designed, manufactured, and marketed by Defendants,” which “was intended to treat pelvic organ prolapse and stress urinary incontinence.”
Dyer claimed that she “has suffered, and continues to suffer, debilitating injuries” “as a result of being surgically implanted with Defendants’ unreasonably dangerous defective pelvic mesh device.”
Dyer retained as a general and specific causation expert Dr. Neeraj Kohli, “an active surgeon, teacher, entrepreneur, inventor, lecturer, and researcher.” Coloplast sought to exclude the opinions of Kohli.
Gynecology Expert Witness
Dr. Neeraj Kohli is a board certified Ob/Gyn and fellowship trained urogynecologist practicing strictly in the field of Urogynecology and Reconstructive Pelvic Surgery since 1997.
Kohli has extensive experience with pelvic repair surgery of all types with and without biologic or synthetic materials.
Kohli offered the following general causation opinions: (1) the “inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space,” (2) the Aris is “defective in its technique and [its] material design,” (3) the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications,” (4) the Aris’s IFU “and brochure warnings were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent,” (5) Coloplast did not perform adequate safety testing on the Aris and failed to warn about known “complications related to transobturator mesh placement,” (6) there “are safer alternatives that are equally or more effective” than the Aris, and (7) the risks of the Aris outweigh its benefits.
As to specific causation, Kohli opined that the “vaginal/groin pain and persistent [overactive bladder]/incontinence suffered by Dyer is the direct result of the defects described throughout this report.”
Analysis
Coloplast challenged the reliability of Kohli’s specific causation opinions. Coloplast also argued that many of Kohli’s general causation opinions are unreliable, unhelpful, or irrelevant. Finally, Coloplast contended that the Court should exclude Kohli’s opinions “stating legal standards, conclusions, and terms of art, as well as opinions about Coloplast’s knowledge, state of mind, or conduct.”
A. Kohli’s Case-Specific Opinions
Coloplast argued that Kohli’s case-specific opinions are not reliable because he based his differential diagnosis on a cherry-picked selection of medical records and did not adequately rule out alternative possible causes of Dyer’s injuries. The Court is not persuaded.
Coloplast argued that Kohli’s specific causation opinions are unreliable because he: (1) failed to adequately consider medical records that did not support his opinion, (2) only reviewed the medical records provided to him by Dyer’s counsel, and (3) did not conduct a pelvic exam of Dyer. None of the alleged factual discrepancies or mischaracterizations warrant excluding Kohli’s opinions.
Coloplast also argued that Kohli’s differential diagnosis is unreliable because he did not adequately rule out alternative possible causes of Dyer’s injuries. The Court disagreed.
Kohli “ruled in the mesh as a primary cause because Dyer’s pelvic pain symptoms began . . .immediately after mesh implantation and are unique to mesh placement in the vagina and particularly the Aris” transobturator sling.” Kohli also noted that Dyer “has no significant medical, surgical, or social history or risk factors contributing to her present mesh complication symptoms or current pelvic floor complaints.”
Coloplast argued that Kohli failed to adequately rule out lumbar disc and sacroiliac joint issues, sciatica, and surgical positioning as being sources of Dyer’s pelvic pain. However, Kohli explained that he ruled out lumbar disc involvement as it typically would not cause the symptoms experienced by Dyer immediately following mesh implantation and as post-surgical therapies to the lumbar area were not effective. With respect to sacroiliac joint issues and sciatica, Coloplast did not challenge Kohli’s assertion that Dyer denied suffering from such problems prior to the mesh implantation.
As a result, the Court found Kohli’s methodology regarding the cause of Dyer’s pelvic pain sufficiently reliable.
B. Kohli’s General Causation Opinions
1. Surgical Technique
Kohli opined that the Aris “was defective in its technique and it[s] material design. This includes blind insertion of a permanent device through the transobturator space, through and in close proximity to vital anatomic structures including muscles and nerves.”
Coloplast argued that “Kohli’s criticisms about the Aris’ transobturator approach amount to no more than personal opinions on a particular surgical technique, which does not speak to a ‘defect’ in the Aris that resulted in injury,” and, therefore, are irrelevant. The Court disagreed.
A comparison of the risks associated with implanting in the transobturator region as opposed to the retropubic region is relevant to the defect analysis because the location of the device within the body and the method of insertion are inherent attributes of the device’s design. Accordingly, the Court held that Kohli’s opinions regarding the transobturator approach are not irrelevant.
Coloplast further argued that “Kohli’s blind placement opinion is also divorced from any scientifically reliable methodology.” The Court is not persuaded. Here, Coloplast has not demonstrated that there is too great an analytical gap between the studies Kohli cited and his opinion.
2. Defective Design
Kohli opined that “the inherent properties of polypropylene mesh make it an unsuitable material for placement in the transobturator space. . . . This is especially true of the Coloplast mesh given its increased weight and stiffness.”
Coloplast argued that the Court should exclude Kohli’s opinion that the Aris is defectively designed because “Kohli does not provide support for his opinions on Aris’ design properties or that the Aris is unsuitable for use in the transobturator space.” However, Kohli cited multiple scientific articles to support his opinions regarding the properties of polypropylene mesh and its unsuitability for use in the transobturator space. Accordingly, Coloplast has not demonstrated that Kohli’s opinions are unreliable.
Coloplast further argued that Kohli’s opinions are unhelpful to the jury because Kohli “fails to provide a measuring stick for assessing the propriety of Aris’s specifications, and instead advances a ‘trust me, I’m a doctor’ approach.”
To succeed on any of her claims, Dyer must prove that the Aris “is defective or unreasonably dangerous.” Kohli explained the basis for his opinion that the properties of polypropylene mesh make it unsuitable for use in the transobturator space and cites to multiple scientific studies.
Kohli’s opinion logically advances a material aspect of Dyer’s case: whether the Aris is defective or unreasonably dangerous. This information is “beyond the understanding of the average lay person.”
3. Unacceptably High Rate of Complications
Kohli opined that the Aris “has an unacceptably high rate of mesh exposure/erosion, dyspareunia, and chronic pain complications.”
Coloplast argued that Kohli’s opinion is unreliable because “Kohli identified no methodology (much less a reliable one) for determining what constitutes an acceptable versus ‘unacceptably high’ rate of complications.”
Kohli did not identify the alleged complication rate of the Aris or explain the scientific basis for his opinion that the Aris’ rate is “unacceptably high.” Accordingly, the Court found that Kohli’s opinion on this issue is unreliable and is excluded.
4. Safer Alternatives
Kohli opined that “the Burch procedure, autologous fascial slings, and appropriate retropubic slings are safer than the Aris.”
Coloplast argued that Kohli’s opinions regarding the Burch procedure and autologous fascial slings are irrelevant as they are not safer alternative product designs for a transobturator sling but are “entirely different surgeries.” The Court disagreed. Kohli’s opinions regarding safer alternative procedures are relevant to the question of whether the risks of the Aris outweigh the benefits.
Alternatively, Coloplast argued that Kohli’s opinions are unreliable. The Court is not persuaded.
Coloplast further argued that “Kohli’s ‘safer alternative’ opinions about polypropylene retropubic slings and PVDF mid-urethral slings are unreliable.” The Court disagreed.
Coloplast’s challenge to “the sufficiency of scientific literature on which” Kohli relies “is a matter that more properly goes to the weight of the evidence and can be probed during cross-examination.”
Coloplast also argued that Kohli’s opinions regarding PVDF mesh mid-urethral slings should be excluded because such slings are not available in the United States. Under Florida law, “a Plaintiff need not demonstrate the existence of a reasonable alternative design for a strict liability design defect claim.” Accordingly, the fact that PVDF mid-urethral slings were not available in the United States at the time of Dyer’s surgery did not render Kohli’s opinion irrelevant in this case.
The Court found that Kohli’s opinions on PVDF mid-urethral slings are relevant to the issue of whether “alternative safer designs exist.”
5. Inadequate Safety Testing
Kohli opined that Coloplast failed to perform adequate safety testing on the Aris. Coloplast argued that Kohli is unqualified to opine on the matter and, alternatively, that his opinion is unreliable.
Although Kohli is the chief medical officer of a medical device company, there is no indication that he has experience in testing medical devices. Accordingly, the Court found that Kohli is not qualified to testify as to the adequacy of Coloplast’s safety testing.
In any event, even if Kohli were qualified to opine on the adequacy of the safety testing, Kohli has not offered any support for his conclusory opinion that Coloplast “rushed to market with Aris to avoid loss of market share without adequate safety testing.”
6. Deficient IFU
Kohli opined that the Aris’ Instructions for Use (“IFU”) “were inadequate to allow physicians to make responsible treatment choices and allow patients to give proper informed consent.”
Coloplast argued that Kohli is not qualified to render an opinion on the IFU and, in any event, that Kohli has not provided any “basis for reaching the conclusion that the purported inadequacy of Aris’s IFU renders the device ‘not reasonably safe’ or makes it ‘impossible’ for implanting physicians to obtain informed consent.”
The Court found Kohli qualified to opine on the adequacy of the Aris’ IFU as, in addition to his surgical experience, Kohli “assists in the drafting and editing of IFUs” at a medical device company.
However, Kohli did not provide an adequate basis for, or a reliable methodology used, in reaching his conclusions that the inadequacy of the instructions and warnings renders Aris ‘not reasonably safe’ and made it ‘impossible’ to obtain informed consent.
7. Legal Conclusions, Summaries, and Opinions on Coloplast’s Knowledge, Intent, or State of Mind
Finally, Coloplast asked the Court to exclude Kohli’s opinions to the extent they contain impermissible legal conclusions, summaries, and speculation on Coloplast’s corporate intent, knowledge, or state of mind.
The Court held that Kohli will not be permitted to testify as to the knowledge, state of mind, or corporate intent of [Coloplast] or summarize corporate documents but will be allowed to testify as to his review of the corporate documents solely for the purpose of explaining the basis of his opinions. Kohli was also not precluded from offering testimony that uses terms that do not have a separate, distinct, and specialized meaning in the law.
Held
The Court granted in part and denied in part Defendant Coloplast Corp.’s motion to exclude the testimony of Neeraj Kohli, M.D.
Key Takeaway
Experience as a surgeon alone does not translate into experience with or knowledge about the appropriate testing a medical device manufacturer should undertake when preparing a product for the market.
Plaintiffs Melissa Pitkin and Dan Grout own a home together in Healdsburg, California. They hold a homeowner’s insurance policy from State Farm, policy number 57-C4-6752-1 (the “Policy”), which covered certain losses to their home and all of its contents. The Policy included the “main policy form” (FP-7955, CA) as well as a “homeowners endorsement form” (FE-3422). Subject to the Policy’s terms, conditions, and exclusions, the Policy included “Coverage B – Personal Property” limits of $506,574, and other various special limits. Regarding settlement of Coverage B claims, the Policy provides for settlement of damaged personal property in several ways, including actual cash value (“ACV”), market value, and replacement cost (“RC”).
On August 20, 2020, the Walbridge Fire burned down the Plaintiffs’ home. Having lost their home and personal possessions, the Plaintiffs tendered a claim to State Farm for their losses under the Policy. State Farm accepted the claim and adjusted their losses pursuant to the Policy’s terms, which stated that the plaintiffs are entitled to recover ACV for their personal property losses. On December 16, 2022, and January 24, 2023, the Plaintiffs received partial payments from State Farm for their personal property contents losses. State Farm also sent the Plaintiffs “loss payment worksheets” that showed their ACV benefits for their personal property.
For all items of property where sales tax was applicable, State Farm depreciated sales tax in calculating ACV.
The Plaintiffs filed this class action, alleging that State Farm violates California law by depreciating sales tax as a component of RC when calculating ACV.
State Farm sought to exclude the opinions of Plaintiffs’ experts, Greg J. Regan, David Melzer and Eugene Peterson while Plaintiffs filed a motion to exclude the testimony of State Farm’s primary expert witness, Dr. Duane L. Steffey.
Accounting Expert Witness
Greg Joseph Regan is a partner in the Forensic Consulting Services Group of Hemming Morse, LLC, and is a licensed CPA in California.
David Melzer has worked in the insurance industry since 2011 in various specialist capacities. He worked for Travelers Insurance from 2013 to 2020, where he held positions including adjuster, technical specialist, and claims manager.
After that, he started his own public adjusting firm, called Property Claims Consultant, Inc., where he handles first and third-party property claims, including personal property claims.
He has held the position of President of Property Claims Consultant, Inc. since he started the firm in November 2020. He has “significant experience in processing and analyzing personal property insurance claims” and “experience working with industry-standard software used to process and track personal property claims, including Xactimate or XactContents.”
Eugene Peterson built his first home in 1974 – and has been a home builder, remodeler, and restoration contractor for over 35 years. He is a Past President of the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., an expert witness & consultant for restoration, personal property & construction related matters in the United States and Canada. Peterson has facilitated peer group meetings for Business Networks, Inc., and was an advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software) for several years. He also actively performs insurance appraisals as an umpire or appraiser.
Dr. Duane Leon Steffey holds a Bachelor of Science in history and mathematics, a masters in statistics, and a Ph.D. in statistics from Carnegie Mellon University. He has served as a consulting statistician for over thirty years, with a “breadth of applications in engineering, health, environmental science, and civil justice.”
He is an elected Fellow of the American Statistical Association since 2009, as well as an Elected Member of the International Statistical Institute since 2015.
Regan indicated that he was “asked to provide a methodology to calculate available classwide damages.” State Farm produced an Excel file known as the “Combined Pitkin Dataset.”
If a claim “involves more than a few items or is not settled during a first contact” the claims personnel may “utilize the XactContents® tool to assist in valuing lost property for claim settlement purposes.” Third party entity Verisk owns the XactContents® tool.
To create the Combined Pitkin Dataset for this litigation, third-party Verisk first created a report containing data regarding personal property claims during the class period with an XactContents® actual cash value estimate.
Regan clarified that while his “methodology to calculate damages” was laid out in his initial report, the supplemental report was meant to apply the methodology to the Combined Pitkin Dataset. Regan then proposed two alternative “scenarios” for calculating damages. Under the first scenario, damages would equal the amount of Sales Tax Depreciation applied to a claim, capped by any RC benefits available under the policy. Under the second scenario, Regan allocated Sales Tax Depreciation proportionally by comparing the claimant’s remaining RC benefits to the total recoverable depreciation and then applying that percentage to the amount of Sales Tax Depreciation.
The crux of State Farm’s motion to exclude concerns the reliability of Regan’s opinions. Specifically, State Farm claimed Regan’s opinion hinges on (1) unreliable data, (2) unreliable identification of class members, and (3) incompatible and unreliable damages “scenarios.”
a. Reliability
State Farm first argued that Regan’s reliance on the Combined Pitkin Dataset lacked the “foundation” necessary to survive a Daubert motion.
State Farm’s challenge is best understood as an attack on the assumptions underlying Regan’s analysis—mainly, that XactContents® is an accurate tool for measuring damages in this case.
Regan indicated that he relied on State Farm’s own records, testimony from State Farm employees, “validation exercises,” “extensive testing,” and “adopting the more conservative input for purposes of measuring damages” when a disagreement in the data arose.
The Court concluded that Regan has established by a preponderance of the evidence that his opinion is reliable and admissible, subject to cross-examination and presentation of contrary expert testimony.
According to State Farm, Regan’s “three new groupings of purported class members (not reflected in the class definition or his prior opinions) produce unreliable and patently incorrect results.”
However, Regan “organized his damage calculations in three groups to reflect the different circumstances of those groups.” While each group may present different factual circumstances, Regan “applied the same methodology to calculate damages across all groups.”
State Farm finally challenged Regan’s two damages scenarios as unreliable and invalid. Regan sufficiently explained in his Report and Supplemental Report the reason for having two damages “scenarios,” how he reached those scenarios, and the methodological basis for each.
b. Untimely Opinions
State Farm argued in the alternative that Regan’s opinions in the Supplemental Report should be excluded as untimely and improper new opinions.
Regan’s Supplemental Report was disclosed two months after the Rule 26 disclosure deadline and less than one month before the rebuttal deadline. Because its own expert, Steffey, opined that the Supplemental Report “substantially revised Regan’s opinions,” State Farm urged that the Court find his “new” opinions as untimely under Rule 702. Plaintiffs responded by pointing out that the parties jointly agreed to extend fact discovery and adjust the pretrial schedule to allow for State Farm to produce the Combined Pitkin Dataset. As a result, Regan produced his Supplemental Report on September 25, 2025—a date agreed upon by the parties in their joint request to adjust the pretrial schedule.
2. David Melzer
a. Methodology
Melzer indicated that he was “hired to provide opinions on . . . the frequency of personal property claims with State Farm, the ascertainability of these claims through available databases, and whether the claims of Plaintiffs Pitkin and Grout fall within the proposed class.”
Melzer’s proposed methodology to estimate the total number of potential class members is as follows. To estimate the total volume of personal property replacement claims for State Farm in California from 2015 to the present, he analyzed the number of claims in a submarket: San Diego. He chose San Diego as a representative example because claims throughout California would “typically be consistent with personal property claims made in San Diego.”
Using that data, Melzer estimated the total number of insurance claims in San Diego across all insurers by dividing the number of Travelers’ claims by its 3.68% market share (a percentage market share that is available on the California Property and Casualty Market Share Report published by the California Department of Insurance).
He then consulted the California Property and Casualty Market Share Report (the “Market Report”) issued by the California Department of Insurance from 2015-2023 and determined that State Farm consistently has “over 8.5% of the Property and Casualty Insurance Market in California.”
Melzer goes on to explain that based on his familiarity with Xactimate and XactContents®, he believes that “given the detailed data that insurance companies maintain and given the flexibility and power of Xactimate/XactContents, it is [his] opinion that State Farm can create a report, or export the necessary data, that will allow for the identification of all personal property insurance claims where State Farm depreciated the taxes. From that report, Plaintiffs will be able to identify the members of the Class.”
b. Class Member Identification
State Farm maintained that the Court must exclude any class identification opinion from Melzer, as he “has not purported to identify class members” and instead “conjectures that someone else can.”
It similarly urged that Melzer’s “conjecture that someone else can reliably and feasibly identify specific class members based solely on the Combined Pitkin Dataset also lacks sufficient foundation, conflicts with Melzer’s other admissions, and is therefore inadmissible.”
Plaintiffs contended that Melzer did, in fact, “analyze the capabilities of the Combined Pitkin Dataset to ascertain the members of the class.”They highlighted that Melzer provided a “detailed analysis of the capabilities of XactWare products, including XactContents.”
“While State Farm may disagree” with this analysis, Plaintiffs concluded, “that is not a basis for the Court to exclude Melzer’s conclusions based on his extensive experience.” The Court agreed.
c. Depreciation Standard Industry Practices
State Farm similarly sought to exclude Melzer’s opinions on “sales tax depreciation practices for the insurance industry as a whole.”
Plaintiffs responded by highlighting Melzer’s “more than a decade of experience regarding the adjustment of insurance claims,” including working for Farmers, Travelers, and during his “nearly five years as a public adjuster working with multiple insurers from 2020 to the present.”
Much of that time was spent working with XactWare products, including XactContents®, which Plaintiffs believe render him qualified to “offer opinions as to the industry standard for adjustment of contents insurance claims.”
As with his other opinions, the Court found that it is more likely than not that Melzer meets the four requirements. While a fact finder may conclude that State Farm’s sales tax depreciation practices are not what Melzer claims them to be, that does not render his opinion and testimony inadmissible.
d. Rule 26 Testimony
Plaintiffs acknowledged that “they, and State Farm, are precluded from offering undisclosed expert opinions.” But they maintained that “Melzer’s opinions as to the typicality of insurers not depreciating sales tax were explicitly disclosed in his report.”
No party may offer undisclosed expert opinions at trial. The Court held that the example in the preceding paragraph was disclosed and will not be excluded.
3. Eugene Peterson
a. Methodology
Peterson concluded that “XactContents® software contains global and line-item settings that allow an insurance company to apply depreciation based on one of three methods: 1) percentage, 2) by a fixed dollar amount, and 3) by age with an adjusted condition.” He opined, “the software allows complete control over how depreciation is calculated, so each insurance company can set its policies for depreciation without needing to customize the software. From the software’s perspective, a user can determine what line items are to be depreciated and what is to be depreciated in each line item, e.g., sales tax.”
b. Opinions on XactContents® Data Extraction
State Farm “did not dispute Peterson’s ability to testify regarding what the XactContents® tool is and how it may be used.” Instead, it sought to exclude Peterson’s “feasibility opinion—that the Combined Pitkin Dataset in this matter can be used by someone else to reliably identify class members or calculate damages.”
The Court found that Peterson sought to offer a relatively narrow opinion with respect to the structure and abilities of XactContents® to assist Plaintiffs in calculating damages in this case. He has significant experience working with XactContents®.
4. Duane Steffey
Steffey was hired by State Farm to “evaluate the basis and foundation for Regan’s, Melzer’s, and Peterson’s opinions” at class certification. State Farm also disclosed Steffey as a rebuttal expert to Regan’s supplemental report.
a. Class Membership
Plaintiffs took issue with how Steffey criticized Regan’s identification of 41,153 class members in his Supplemental Report.
State Farm countered that Steffey’s rebuttal report criticizing Regan’s “new approach to identifying class members and calculating damages” was “based on his knowledge and education in statistics, previous experience, and the materials he reviewed.”
The Court agreed with State Farm that exclusion is not warranted. Steffey engaged in a thorough review of the materials provided to him, including all exemplar claims identified by Regan. He then identified at least one “exemplar” Plaintiff who potentially lacked injury and damages, thus raising questions about Regan’s methodology for identifying class members.
b. Damages Calculations
Plaintiffs also sought to exclude Steffey’s criticism that Regan’s damages “scenarios” are “unreliable.”
The Court found that Steffey raised important questions about Regan’s methodology that go to the heart of this dispute—questions regarding standing, injury, and how to identify class membership. His opinions are relevant. They can be tested. And they may assist the trier of fact in resolving the question of damages and standing in this case.
c. Data Fields Interpretation
Plaintiffs sought to exclude Steffey’s claim that some of Regan’s “descriptions of certain data fields in the Combined Pitkin Dataset ‘have not been corroborated by anyone with requisite knowledge.’”
The Court found that Steffey properly critiqued Regan’s assumptions in the Combined Pitkin Dataset, a topic which he, as a statistician, may opine. That Steffey recognized he cannot judge the accuracy of the fields is a different question than identifying Regan’s failure to corroborate the Dataset.
d. Substantial Revision Opinion
Plaintiffs finally sought to exclude Steffey’s opinion that Regan’s supplemental report represents a “substantial revision” to his analysis in the original report.
Credibility is always an issue for the jury to consider, and Steffey’s opinion about the “drastic” change “underscores the unreliability of Regan’s approach generally.”
State Farm is entitled to present this opinion as an attack on Regan’s credibility at trial. In sum, the Court will not exclude Steffey’s testimony.
Held
The Court denied the parties’ motions to exclude, as each request raises issues of credibility—a question reserved for the factfinder—instead of admissibility.
Key Takeaway
Plaintiffs must show it is more likely than not that: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert [has reliably applied] the principles and methods to the facts of the case.” Applying this standard, State Farm argues that Plaintiffs have not met their evidentiary burden.
