This case arises out of injuries sustained by Brandon Jensen on his bicycle when he collided with a semi-truck who made a left turn through his lane of travel. The semi-truck was driven by Defendant Michael Beale. Beale was working for Crete Carrier at the time of the accident.
To begin with, Defendants Michael Beale and Crete Carrier Corporation (Crete Carrier) filed three motions in limine concerning the testimony of the Plaintiffs’ accident reconstruction expert, Dr. Jay Przybyla.
First, Defendants Michael Beale and Crete Carrier Corporation (Crete Carrier) filed a motion to exclude seven videos relied on by Przybyla in his rebuttal report that show semi-truck trailers turning into the Crete Carrier terminal. Second, the Defendants filed a motion to exclude Przybyla’s opinions about the time required for Plaintiff Jensen to stop his bicycle. Finally, the Defendants filed a motion exclude Przybyla’s reconstruction simulations on the ground that he made improper assumptions about truck weight.
Transportation Engineering Expert Witness
Jay J. Przybyla, Ph.D., P.E. is a licensed professional engineer and managing engineer at Focus Forensics with experience, education, and training in the fields of civil engineering, forensic engineering, and transportation safety. He also holds a Master’s and Ph.D. in transportation engineering from the University of Utah and a Bachelor’s in civil engineering from Brigham Young University.
The Court questioned Przybyla outside the presence of the jury on the morning of November 12, 2025. The Court cautioned the witness to avoid opining on the credibility of Beale’s testimony or the propriety of Beale’s choices, but the Court found that the methodology for his accident reconstruction analysis was otherwise reliable. To be clear, uncertainties about bicycle stopping time or the assumptions about truck weight that Przybyla used to model his simulations went to the weight of the evidence rather than its admissibility.
Moreover, the Court found that the seven videos showing Crete Carrier trucks turning into the terminal were used in rebuttal to opinions from the Defendants’ accident reconstruction expert and were admissible for illustrative purposes. The Defendants’ concerns that the trucks were different makes and models and had different loads could be addressed during cross examination.
Held
The Court denied the Defendants’ motion in limine to exclude seven videos relied on by Jay Przybyla.
The Court denied the Defendants’ motion in limine to exclude Jay Przybyla’s opinions on the time required for Plaintiff Brandon Jensen to stop.
The Court denied the Defendants’ motion in limine to exclude Jay Przybyla’s reconstruction simulations.
Key Takeaway:
Uncertainties about bicycle stopping time or the assumptions about truck weight that Przybyla used to model his simulations could be adequately examined during cross examination.
Case Details:
Case Caption:
Jensen V. Crete Carrier Corporation
Docket Number:
1:23cv105
Court Name:
United States District Court for the District of Utah, Northern Division
Defendant Bryant Wilson (hereinafter “Defendant”) was charged with voluntary manslaughter and possession of contraband in prison, following a prison fight at USP Canaan that resulted in the stabbing death of Defendant’s victim on November 28, 2021.
Defendant did not contest that the fight happened, nor that the death of his victim resulted; rather, he asserted that he acted in self-defense.
Government filed a motion in limine to preclude the testimony of Paul Gibson, a prison expert for the defense.
Jails and Prisons Expert Witness
Paul Gibson was previously employed by the Bureau of Prisons for almost 32 years working in classification, treatment, and correctional programs, prior to moving into a correctional management capacity before retiring in 2022.
Gibson is the founder of Beyond the Sentence, LLC, a prison consulting firm, and he is currently working with My Federal Prison Consultants (MFPC) and The Prison Education and Reform Alliance (PERA), which he joined shortly after retiring from the Federal Bureau of Prisons (BOP).
Defendant indicated that Gibson would testify to the following:
1. Due to the dangerous environment at high security USPs, including USP Can[a]an, it is common for inmates at these facilities to carry a weapon or have access to a weapon.
2. It is proper procedure for correctional officers at a high security USP, including USP Canaan, to secure the area and request the assistance of additional staff before breaking up a physical altercation between inmates.
3. At a USP, it is common for other inmates to join an attack on another inmate after it has been initiated.
4. High security USPs, including USP Canaan, is a dangerous place where inmates are at risk of serious bodily injury or death by other inmates every day.
a. Proper staff procedure for a physical altercation at a high security federal prison
Defendant expected Gibson to testify that “it is proper procedure for correctional officers at a high security USP, including USP Canaan, to secure the area and request the assistance of additional staff before breaking up a physical altercation between inmates.”
While the average lay juror would not know proper staff procedures within a federal prison, the Court disagreed that Gibson’s testimony on the matter is necessary.
The security camera footage of the incident clearly shows that officers did not and were not going to intervene in the fight. Whether or not it was proper protocol is irrelevant. Further, Defendant’s knowledge or lack thereof of protocol is similarly irrelevant, as the reality of non-intervention in that moment was clear. The jury will be able to watch the events unfold, assess the lack of intervention, and determine whether the lack of intervention made Defendant’s actions reasonable, without need for Gibson’s testimony.
b. Likelihood of additional prisoners engaging in an ongoing altercation
Defendant also expected Gibson to testify that “At a USP, it is common for other inmates to join an attack on another inmate after it has been initiated.”
The security camera footage clearly shows all other inmates in the area swiftly return to their cells when Defendant and the victim began fighting. In the Court’s opinion, there was no imminent threat of harm from any additional prisoners to Defendant, nor any reason for Defendant to expect there was. Furthermore, to the extent there was any, the court is not persuaded that such a threat has any tendency to make Defendant’s actions with respect to the victim any more reasonable. Presenting evidence about the likelihood of additional prisoners joining in the fight would only serve to confuse the issues, as no one joined in here.
Therefore, the Court held that such testimony would be irrelevant, confusing, a waste of time, and unhelpful to the jury.
c. Dangerousness of high security federal prisons
Defendant further expected Gibson to testify that “high security prisons, including USP Canaan, are dangerous places where inmates are at risk of serious bodily injury or death by other inmates every day.”
Having Gibson testify as to the dangerousness of a high security prison would unquestionably waste the jury’s time. Common sense does indeed lend itself to a presumption that prison is dangerous, regardless of the security level. Furthermore, to the extent that a juror may think a high security prison is somehow safe, they will not need an expert to dispel such a notion at trial.
d. Commonality of armed inmates at high security federal prisons
Finally, Defendant expected Gibson to testify that “due to the dangerous environment at high security USPs, including USP Canaan, it is common for inmates at these facilities to carry a weapon or have access to a weapon.”
The Court found that such testimony would also be irrelevant and unhelpful to the jury. Common sense, again, leads to the conclusion that inmates often possess weapons such as “shanks.” Furthermore, that Defendant and the victim had weapons is clear from the security camera footage. Finally, the Court does not see how the commonality of weapon possession in prison has any bearing on this case. Such information does not connect to any element of the crimes charged or aid in any defense.
Held
The Court granted the Government’s motion in limine to preclude the testimony of Paul Gibson.
Key Takeaway:
Gibson’s testimony would be irrelevant and unhelpful to the jury. For instance, having Gibson testify as to the dangerousness of a high security prison would unquestionably waste the jury’s time. For that matter, presenting evidence about the likelihood of additional prisoners joining in the fight would only serve to confuse the issues, as no one joined in here.
Plaintiffs Orellana and Hernandez brought this suit against Defendants on behalf of a class of all persons who, from July 18, 2014 through November 15, 2018, were detained by the Suffolk County Sheriff’s Office (“SCSO”) pursuant to an ICE immigration detainer request after the SCSO’s detention authority had expired, alleging violations of their rights under the Fourth and Fourteenth Amendments of the United States Constitution and under the First Article of the New York State Constitution.
Plaintiffs retained Sean M. Kruskol to calculate the duration in hours that each class member was held in custody by the Suffolk County Sheriff’s Office (“SCSO”) under a detainer and administrative warrant issued by Immigration and Customs Enforcement (“ICE”).
He purported to do so by analyzing the file of inmate records—known as an “inmate jacket”—maintained for each class member by SCSO, and determining “a) the time when the SCSO’s records indicate an individual would have been released but for the existence of an ICE detainer; and b) the time when the SCSO’s records indicate an individual was transferred into ICE custody.”
However, Defendants filed a motion to preclude “[Class] Plaintiffs’ expert Kruskol from offering testimony or opinions in this matter” under Rule 702 and the Daubertstandard.
Data Analytics Expert Witness
Sean M. Kruskol is a Certified Public Accountant (‘CPA’), Chartered Global Management Accountant (‘CGMA’) and a Certified Fraud Examiner (‘CFE’) with more than a decade of experience leading complex, large-scale data analytics in litigation and investigations across industries.
Defendants sought to exclude Kruskol’s expert testimony as (1) outside his area of expertise, (2) based on flawed methodology, and (3) unhelpful to the jury.
After conducting the appropriate review under Rule 702 and under Daubert and its progeny, the Court determined that Defendants’ objections go to the weight, rather than admissibility, of Kruskol’s expert testimony. Kruskol is a qualified expert in data analytics with ample experience analyzing large datasets and deriving conclusions therefrom.
Moreover, his expert testimony relied on sound methodology and data. Kruskol tested the reasonableness of his results by comparing the computed extended detentions intervals to how SCSO’s documents described their internal operational expectations (including the 48-hour detainer language) and performed adjustments and sensitivity checks for administrative processing time.
To the extent Defendants disagree with Kruskol’s conclusions, Defendants will, for instance, have the opportunity to cross-examine Kruskol.
Finally, Kruskol’s testimony is sufficiently likely to assist the jury by presenting a coherent summary of “thousands of pages of technical inmate records” and purporting to “accurately identify and reconcile timestamps across multiple record types and fields.”
Held
The Court denied the motion to exclude Sean Kruskol’s expert testimony.
Key Takeaway:
The test to admit expert testimony under Rule 702 and under Daubert requires an analysis of the following considerations: (1) whether the witness is qualified to be an expert; (2) whether the opinion is based upon reliable data and methodology; and (3) whether the expert’s testimony on a particular issue will assist the trier of fact.
Kruskol is a qualified expert in data analytics with ample experience analyzing large datasets and deriving conclusions therefrom. His expert testimony relied on sound methodology and data. Moreover, Kruskol’s testimony is sufficiently likely to assist the jury.
Case Details:
Case Caption:
Castaneda V. County of Suffolk
Docket Number:
2:17cv4267
Court Name:
United States District Court for the Eastern District of New York
Maryland resident Douglas J. Furlong, and two out-of-state breweries, Varietal Beer Company (“Varietal”), and Vortex Brewing Company, LLC (“Vortex”) (collectively, “Plaintiffs”) challenged the constitutionality of Maryland laws that limit out-of-state breweries’ ability to deliver beer directly to consumers in Maryland.
Defendants, Anthony Brown, in his official capacity as the Attorney General of the State of Maryland, and Jeffrey A. Kelly, in his official capacity as Executive Director of the Maryland Alcohol, Tobacco, and Cannabis Commission (together, “Defendants”) proffered William C. Kerr, Ph.D. (“Dr. Kerr”) as an expert witness.
Plaintiffs sought to preclude Kerr from testifying, contending that any expert testimony must be limited to (1) to whether facts and data show that beer from out-of-state manufacturers poses an actual threat of being unfit for public consumption; and (2) to exclude legal opinions and areas beyond the scope of Kerr’s expertise.
In response, Defendants objected to the proposed testimony from Plaintiffs’ expert Mr. Jim Kuhr.
Economics Expert Witness
William C. Kerr is an economist who serves as Senior Scientist and Scientific Director of the Public Health Institute’s Alcohol Research Group. The Public Health Institute is a non-profit health, equity, and wellness organization that conducts research.
Kerr received his Ph.D. in economics from the University of California-Davis (1997).
Also, he has been involved in researching alcohol use and related public policies for over 25 years.
Jim Kuhr is the owner of Catalyst Beverage Consulting,LLC, which offers brewing consulting services to the public and to breweries around the country.
He has 41 years of hands-on experience with beer, breweries, beer delivery and shipping systems, state and federal alcohol regulators, and a broad variety of beer industry practices.
He has worked in various capacities for breweries, brewing associations, and beverage manufacturing and development since 1984 and holds a Bachelor of Science degree in Business Administration & Management and an associate’s degree in business.
Kerr’s expert report provides information regarding how “Maryland’s direct beer delivery law promotes the health and safety of Maryland’s consumers and other legitimate state interests.” His report includes opinions regarding the purpose of Maryland’s three-tier system, the purpose and scope of the challenged statutes, the economic impacts of the statutes and limited alcohol delivery, and the negative effects of direct delivery of beer by out-of-state manufacturers.
Basically, Kerr is an economist who has conducted research regarding various states’ public and economic policies pertaining to alcohol. As the parties agreed on the record, Kerr’s proposed expert testimony generally relates to three categories of public health and safety: (1) pure public health concerns; (2) broader public health and safety concerns; and (3) taxation and economic effects of alcohol regulations as related to public health. Some of the proposed expert testimony in Kerr’s report, however, pertains to broad sociological risks or concerns of alcohol consumption, including drunk driving, alcohol-involved crimes, risky sexual behavior, and productivity loss.
Kerr’s testimony will be limited in part
The Court held that Kerr is qualified as an economist to testify to the economic effects of alcohol regulations, including his proffered opinions: (1) about how Maryland’s regulatory scheme promotes orderly market conditions; (2) that permitting out-of-state retailers to ship and sell alcohol that is not routed through Maryland’s regulatory system compromises Maryland tax revenues; (3) that Maryland’s direct beer delivery law protects the health and safety of Maryland’s citizens by precluding the availability of lower cost alcohol; and (4) that increased availability of alcohol leads to increased price competition, lower prices, and higher alcohol consumption.
As explained on the record, these opinions fall squarely within his expertise as an economist who has conducted extensive research of alcohol regulation and policies.
Kerr is also qualified to testify to a limited extent regarding his opinion that Maryland’s direct beer delivery law prevents the sale of beer to underage drinkers and limits the geographic range of a producer’s beer sales by requiring delivery by the producer’s employees. As a result, Kerr may testify to this opinion to the extent that he limits his testimony to the economic effect of the limited geographic range of beer sales.
Kerr is not qualified, however, to testify about broad sociological or societal concerns regarding the use of alcohol.
Although Defendants asserted that Kerr has extensive research experience regarding the social and public health concerns related to alcohol consumption, his education is focused on the economic impact of various alcohol regulations. Accordingly, as explained on the record, he can offer minimal testimony as to his opinion that subjecting alcohol sold to Maryland consumers to Maryland’s higher taxation promotes numerous public and safety objectives.
Jim Kuhr
Kuhr bases his testimony on his personal knowledge and experience, including experience in “industrial scale and craft beer, brewing, packaging, fermentation, blending, product development, quality assurance, food safety, occupational safety, sustainability, and project management.”
To begin with, Kuhr represents that his “expertise ranges from quality, brewhouse, and cellar operations, process improvement, product development, packaging management, occupational and food safety, supply chain, and systems commissioning and optimization.”
Kuhr’s testimony will be limited in part
Defendants specifically objected to Paragraphs 2, 4, 8, and 9 of Kuhr’s expert report on the basis that he was not qualified as an expert on those topics.
First, Paragraph 2 of Kuhr’s report generally stated that the FDA, manufacturer, local or state health agencies, and the Alcohol and Tobacco Tax and Trade Bureau (“TTB”) are involved in food safety recalls, and “state alcohol regulatory and law enforcement agencies would not usually play a role.”
Second, Paragraph 4 of his report generally provided that “food safety risks involved in the production of wine mirror those of beer” and “Maryland currently allows the transportation of wine from out of state producers directly to consumers by common carriers.”
Third, Paragraph 8 stated, “the concern for the sale and delivery of beer to minors is the same as with wine. The same rules applied to wine can be used for beer.”
Finally, Paragraph 9 of Kuhr’s report provided “it is my opinion that the Three Tier System of alcohol distribution in the United States is one designed to facilitate the collection of taxes rather than one designed with an eye toward food safety.”
However, Defendants conceded that they did not object to Kuhr’s proposed testimony in Paragraphs 2, 4, and 8 to the extent that he offered such opinions from a product safety standpoint. Plaintiffs agreed that Kuhr is offered only as a food- and product safety expert such that his proffered opinions do not reflect sociological or broad public health and safety opinions.
Moreover, all parties agreed on the record that Kuhr’s proposed opinion in Paragraph 9 of his report regarding the purpose of alcohol regulation systems in the United States is beyond the scope of his expertise and must be excluded.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude certain testimony of Plaintiffs’ expert Jim Kuhr.
The Court granted in part and denied in part the Plaintiffs’ motion in limine to exclude the proffered opinions of William Kerr.
Key Takeaway:
Kerr’s testimony regarding the broad public health and safety concerns was excluded. The Court refused to admit any specific or extensive testimony regarding reductions in drunk driving, alcohol-involved crimes and mortality, risky sexual behavior, and lost productivity.
Johnson is charged with three counts relating to sex trafficking or transportation of a minor for purposes of engaging in sexual activity: sex trafficking of a minor, coercion and enticement of a minor to engage in sexual activity, and interstate transportation of a minor for criminal sexual activity.
On October 3, 2025, the government notified counsel for Johnson that it intended to introduce the expert testimony of FBI Special Agent James E. Hardie who is alleged to be an expert in sex trafficking involving minors.
On October 14, 2025, Johnson filed the present motion in limine to preclude the government from introducing Hardie’s “so called ‘expert’ testimony.” He argued that Hardie’s proposed testimony is inadmissible because “it is not an area of any actual expertise,” and that “in effect, what the Government has proposed to do is elicit testimony from a law enforcement officer wherein the officer testifies that Johnson’s behavior is that of a sexual predator.”
Law Enforcement Expert Witness
James E. Hardie is a member of the FBI’s Critical Incident Response Group, National Center for the Analysis of Violent Crime, Behavioral Analysis Unit – 3. In that role, he is responsible for providing operational support to local, state, federal, and international law enforcement agencies investigating crimes against children, including sex trafficking.
Previously, Hardie served in other roles within the FBI, including supervising a squad of FBI special agents who were responsible for conducting sex trafficking investigations, working as an FBI liaison to the National Center for Missing and Exploited Children (“NCMEC”), and investigating child and adult sex trafficking cases as an FBI special agent.
On one hand, the government painted Hardie’s testimony as more general and described it as including: “(1) methods and techniques used in the management and procurement of commercial sex and (2) common characteristics and factors of victims of sex trafficking.” Whereas Johnson maintained that Hardie planned to testify specifically to his “expert opinion that Johnson behaved like a sexual predator.”
Having reviewed the statement of Hardie’s anticipated testimony, the Court found that his testimony included opinions of a general nature rather than opinions specific to this case, Johnson, or Minor Victim. However, to be clear, the Court agreed with Johnson that Hardie may not testify that “ Johnson behaved like a sexual predator” or that he “must be a sexual predator.” This testimony would be tantamount to Hardie providing legal opinion and usurping the role of the jury, which is impermissible.
Again, considering Hardie’s proposed testimony as contained in the government’s notice, the Court has no reason to anticipate that Hardie will testify impermissibly.
b. Qualifications, Reliability, and Relevance
The Court found no support for Johnson’s suggestion that Hardie’s specialized knowledge is not a valid area of expertise or that his extensive experience cannot render him an expert pursuant to Rule 702.
Based on Hardie’s qualifications, and like the other courts have found with respect to Hardie’s background testimony regarding sex trafficking, the Court found that Hardie’s testimony is reliable.
The Court also found that Hardie’s testimony is relevant to the issues in this case and will be helpful to the jury. The “culture and dynamics of sex trafficking are ‘not the subject of common knowledge.’”
For these reasons, the Court made a preliminary determination that Hardie’s testimony is admissible. Furthermore, after reviewing the above-cited caselaw, the Court found that a pre-trial Dauberthearing is unnecessary.
Held
The Court denied the Defendant Johnson’s motion in limine to preclude the testimony of James Hardie.
Key Takeaway:
Hardie’s testimony will assist the jury in understanding the behaviors and dynamics of trafficking victims and traffickers as well as assist it in assessing the credibility of the witnesses.
Plaintiffs sought to develop affordable housing in Brevard County. The Venue at Heritage Oaks Partners, Ltd. was the contract purchaser of the property. They, along with Atlantic Housing Partners L.L.L.P., intended to develop as “The Venue at Heritage Oaks,” a development comprised of multi-family dwelling units.
Canton Construction, LLC was to construct the development, and once completed, Concord Management, Ltd. was to manage it. The project did not come to fruition, however, because in December 2023, Defendant’s board of commissioners rejected Plaintiffs’ bond financing application.
Plaintiffs brought this action against Defendant for damages under the Fair Housing Act and the Florida Fair Housing Act, alleging that Defendant’s rejection discriminated against racial minorities.
Defendant affirmatively alleged that Plaintiffs must mitigate their damages and have failed to do so,” and as such, argues that “Plaintiffs’ claims should either be barred, or in the alternative, comparatively reduced in accordance with Plaintiffs’ failure to mitigate damages.
Defendant retained Patrick Kelleher as an expert to demonstrate that “Plaintiffs’ damages model does not consider mitigation and that reasonable possibilities likely existed with respect to mitigation.”
Patrick F. Kelleher is a Certified Public Accountant (CPA) and Certified in Financial Forensics (CFF) with both a Bachelor of Science in accounting and a Master of Business Administration focused on finance, and he has more than twenty years of experience in forensic and investigative accounting. Kelleher submitted a twenty-page report that stated his opinions, included the documents he considered, and explained the analysis he performed, among other things.
Kelleher opined that “Plaintiffs have not demonstrated any economic damages with reasonable certainty, but rather have provided a model that does not reflect the timing and accuracy of the cash flows associated with the housing] project.” Kelleher also identified alleged errors and deficiencies with Plaintiffs’ model and with testimony from two of Plaintiffs’ witnesses. With respect to his methodology, Kelleher reviewed Plaintiffs’ documents and used them to render accounting and financial testimony related to mitigation. In doing so, he used calculations and analysis in accordance with the American Institute of Certified Public Accountants (AICPA) Statement on Standards for Forensic Services. He also used AICPA prescribed methods for calculating damages.
Analysis
Plaintiffs stated, without citations to the record or supporting caselaw, that Kelleher’s opinion was unreliable as it was not based in accounting—Kelleher’s area of expertise—but is based on a qualitative analysis. Plaintiffs also asserted that Kelleher’s opinion cannot be tested and did not use a generally accepted methodology. However, Kelleher noted that he performed his analysis in accordance with AICPA standards and followed AICPA prescribed methods for calculating damages. Courts have consistently found that such methodologies are generally accepted and thus reliable.
Plaintiffs further challenged Kelleher’s opinions as unhelpful because they are “not beyond the understanding of the average lay person.” Plaintiffs also contended that Kelleher’s opinions offered just what Defendant’s attorney could argue in closing arguments. However, Kelleher’s testimony can assist the jury with financial and accounting principles.
Even if Kelleher’s opinion “boils down to at its essence,” something a layperson may understand, the purpose of an expert is to help simplify complex concepts, boiling them down—as Plaintiffs point out—so that laypersons can comprehend them.
Although Kelleher’s conclusions may be simple, the mathematical calculations leading to such conclusions are beyond the understanding of the average layperson, so his opinions would help the jury.
Kelleher can explain field-specific information that the average layperson does not know, including, but not limited to, the capital forces specific to Plaintiffs’ business model, the ownership structure of the entities at issue, and how these topics affect the ability to redeploy capital.
Given the “liberal standard for relevance to whether expert testimony will aid the jury in resolving the facts,” the Court declined to exclude Kelleher’s testimony under Daubert.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions offered by Patrick Kelleher.
Key Takeaway:
If Plaintiffs wish to undermine Kelleher’s opinions, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Case Details:
Case Caption:
Atlantic Housing Partners L.L.L.P. Et Al V. Brevard County
This suit involves the unnecessary use of excessive force by police officers against a black man suffering from a mental health crisis.
On November 21, 2021, during a mental health crisis, Jabari Asante-Chioke encountered Louisiana State Police (“LSP”) Officer Nicholas Dowdle and East Jefferson Levee District (“EJLD”) Officers Jonathon Downing and Gerard Duplessis (collectively referred to herein as “Officer Defendants”
Plaintiff, Malikah Asante-Chioke, individually, and on behalf of her father, Jabari Asante-Chioke, herein filed this action against the Defendants, accusing them of failure to use less-than-lethal methods in accordance with training and state and federal law, to subdue Mr. Asante-Chioke.
LSP Defendants argued that the Court should exclude Plaintiff’s expert John C. Gardiner, along with his testimony and opinions, because he is unqualified, his methodology is unreliable, and his testimony is irrelevant.
EJLD Defendants made similar arguments, but they also argued that Gardiner’s testimony will not help the factfinder.
Biomechanics Expert Witness
Dr. John Carter Gardiner, PhD PE holds a Bachelor of Science in Mechanical Engineering and a Doctor of Philosophy in Bioengineering. He is a Senior Biomechanical Engineer who conducts biomechanical analysis of a variety of events including shootings.
Gardiner is a principal and senior biomechanical engineer at MEA Forensic. He joined the firm in 2002 and leads the Biomechanics Group in the Los Angeles office.
LSP Defendants argued that Gardiner is unqualified to opine on the likely source of the shots fired because, apart from his expert reviews, he lacked specific training, education, or experience analyzing bullet trajectory “based on gunshot wounds.”
Gardiner estimates that he has performed biomechanical analyses in “50 different cases involving” gunshot wounds.
LSP Defendants offered no authority which requires Senior Biomechanical Engineers to have specific training, experience, or education in bullet trajectory analysis to opine on the source of each bullet wound. Further, courts have allowed biomechanical engineers, including Gardiner, to opine on the source of wounds in a shooting.
Accordingly, the Court found that Gardiner is qualified to opine on the likely source of Mr. Asante-Chioke’s gunshot wounds.
II. Reliability of Gardiner’s Methodology
LSP Defendants also argued that Gardiner’s methodology is unreliable because he did not calculate or quantify the officers’ exact shooting angles.
Plaintiff contended that Gardiner did not merely “eyeball” the footage and instead considered “the relative positions of each of the three officers to Asante-Chioke, the gunshot wound entrances and exits, the gunshot wound trajectories, and the anatomical postures and positions of Asante-Chioke during the shooting incident.”
This Court agreed with Plaintiff. LSP Defendants offered no authority which requires an expert to quantify or calculate exact shooting angles to opine on shooting source and position.
LSP Defendants also argued that Gardiner’s methodology is unreliable due to alleged inconsistencies and contradictions concerning the timing of certain wound in his report termed as Gunshot Wounds #14 and #15 and his conclusions concerning how many gunshot wounds were consistent with coming from Dowdle during the final 1.1 seconds of the shooting. However, as Plaintiff correctly pointed out, LSP Defendants primarily disputed Gardiner’s conclusions, not his methodology.
III. Relevance of Gardiner’s Opinions
Defendants argued that Gardiner’s opinions are irrelevant to the issue of qualified immunity at this stage of the litigation. LSP Defendants also suggested that Gardiner opined on ultimate causation and damage issues regarding Gunshot Wound #15.
This Court found that most of Gardiner’s opinion is relevant. In his report, Gardiner opines on the likely source of Asante-Chioke’s bullet wounds and when the shooting officers, including Dowdle, likely fired them. Such opinions are relevant to the pertinent qualified immunity issues of “whether Dowdle fired any shots; how many if so; and when, in relation to Asante-Chioke’s actions and death.”
Still, in his report Gardiner also references Chief Forensic Pathologist Dr. Dana Troxclair’s conclusion that the “bullet causing Wound #15 killed Mr. Asante-Chioke.” Opinions and references thereto concerning which bullet killed Asante-Chioke are irrelevant to the limited issue of whether the shooting officers are entitled to qualified immunity when they continued to fire upon him. Accordingly, the Court excluded such opinions and references from Gardiner’s report.
IV. Helpfulness of Gardiner’s Opinions
EJLD Defendants also argued that Gardiner’s testimony will not assist the factfinder because video captures the incident.
Plaintiff argued that neither of EJLD Defendants’ cited cases mention the use of experts or hold that experts cannot assist the factfinder in interpreting facts depicted on video. The Court agreed with Plaintiff.
By opining on the likely source and timing of each gunshot wound, Gardiner will help the factfinder determine whether each of the shooting officers acted unreasonably when they continued to fire upon Asante-Chioke.
Held
The Court granted in part and denied in part the LSP Defendants’ motion to exclude the testimony and opinions of John Gardiner.
The Court denied the EJLD Defendants’ motion to exclude the testimony of Plaintiff’s expert John C. Gardiner.
Key Takeaway:
While Gardiner will be allowed to testify as an expert in this case, but he will not be able to opine or reference opinions on which wound likely killed Asante-Chioke.
Opinions and references thereto concerning which bullet killed Asante-Chioke are irrelevant to the limited issue of whether the shooting officers are entitled to qualified immunity when they continued to fire upon him.
Plaintiff David Vakili alleged that a snow thrower was defective because its design lacked a simple safety feature—a cleanout tool. To help prove his case, Vakili enlisted the support of Jack Krafchick, P.E., who authored an expert report finding the subject snow thrower defective and the cause of Vakili’s injuries. Defendants MTD Products Inc. and Tractor Supply Company filed a motion to exclude Krafchick’s report.
Engineering Expert Witness
Jack Krafchick, P.E. provided consulting engineering services to the insurance and legal community for over 30 years. This work has included analysis, accident reconstruction, and testimony covering a wide range of issues related to machine safety, project engineering, construction practices, and construction site safety.
Krafchick evaluated MTD’s design of the subject snow thrower using the “Safety Hierarchy” technique. He concluded that it would have been impossible for MTD to eliminate the hazards of the impeller on the snow thrower completely, nor would it have been able to provide adequate safeguarding.
While he recognized MTD provided warnings about the potential hazards with its snow thrower, Krafchick faulted the company for failing to include safety equipment with the machine. Specifically, he believed the company could have easily provided a cleanout tool, to help clear clogs of snow with the machine. Krafchick opined that it was MTD’s failure to include a cleanout tool that caused Vakili’s injuries.
According to the Court, Krafchick’s report summarily concluded the “lack of a clean-out tool caused Vakili’s injury.” It is not clear what “methods and procedures of science” Krafchick used to come to his conclusion on causation. He is a “consulting engineer,” not a behavioral scientist. Neither Krafchick in his report nor Vakili in his briefing explain what qualifications Krafchick has in human psychology such that he could say that if a cleanout tool had been provided, Vakili would have used it.
To the extent Vakili may wish to claim the idea of causation would be obvious, then Krafchick’s opinion would not “fit” the current case.
Held
The Court granted MTD’s motion in limine to the extent it wished to preclude Jack Krafchick from offering testimony on causation.
Key Takeaway:
An expert’s opinion must be one that “will help the trier of fact to understand the evidence or to determine a fact in issue.” Thus, if Krafchick is not using his expertise to offer an opinion, it is not one that could help the jury and must be excluded.
This case arises from Plaintiff Cox Automotives, Inc’s (“Cox”) allegations that Defendant Super Dispatch Inc. (“Super Dispatch”) has committed false advertising, unfair competition, and other business torts against Cox. Super Dispatch denied the allegations.
Cox retained an expert in computer security, Dr. Micheal Bailey (1) to evaluate the cybersecurity measures Cox employed to protect its Central Dispatch platform; and (2) to analyze the functionality of the software tools that Super Dispatch uses to interact with Central Dispatch. Super Dispatch filed a motion to strike the first category of testimony on the basis that it will not be helpful to the jury, is based on insufficient facts, and his evaluation is conclusory. With respect to the second category, Super Dispatch argued that the functionality of the software tools is “a factual inquiry” that did not require expert testimony.
Defendant Super Dispatch Inc. filed a motion to exclude the testimony of Bailey.
Cybersecurity Expert Witness
Micheal Donald Bailey currently serves as a Professor and School Chair in the School of Cybersecurity and Privacy at the Georgia Institute of Technology.
He received a Ph.D. in Computer Science from the University of Michigan, a Master of Science degree in Computer Science from DePaul University, and a Bachelor of Science in Computer Science from the University of Illinois.
With respect to Bailey’s testimony about Cox’s cybersecurity measures, one of the issues in this case is whether Super Dispatch violated Missouri Uniform Trade Secrets Act (“MUTSA”).
As an expert in computer security, Bailey’s testimony will help the jury understand industry practices for protecting electronic data and the types of controls put in place by Cox. Moreover, Bailey’s evaluation was guided by three widely recognized cybersecurity frameworks and included interviews with a knowledgeable Cox witness, direct interaction with the Central Dispatch platform, and review of relevant documentation. Based on those assessments, Bailey evaluated whether the cybersecurity measures in place for Central Dispatch are consistent with recognized guidelines and industry expectations.
Analysis
The Court held that his testimony is not conclusory in any sense of the word. It is based on substantive analysis as demonstrated by his report. However, Bailey may not testify that Cox’s efforts to maintain the secrecy of information in the Central Dispatch were reasonable under MUTSA—an issue reserved for the jury—but he may testify that they were consistent with respect to industry expectations, standards, and guidelines.
Moreover, the functionality of the tools Super Dispatch used to interact with Central Dispatch, e.g., the digital “scraper” that Super Dispatch allegedly used to mine information behind Central Dispatch’s paywall without authorization, underlies all of Cox’s claims. The Court held that Bailey’s testimony will help the jury understand how these tools operate. Thus, his testimony is relevant.
His analysis includes source code where available (i.e., scraper and Chrome extension), direct interaction where available (i.e., Chrome extension), and review of relevant documentation and testimony.
Finally, the Court rejected Super Dispatch’s suggestion that its access of the Central Dispatch platform is a “factual inquiry” that should only be presented to the jury through “fact witnesses with personal knowledge.” This argument misconstrues one of the roles of expert testimony: to help the trier of fact understand the evidence.
Held
The Court granted in part and denied in part the Defendant Super Dispatch Inc.’s motion to exclude the testimony of Dr. Michael Bailey.
Key Takeaway:
Evidence regarding the software tools that Super Dispatch used to access Central Dispatch will involve highly technical subject matter, including source code, the operation of browser extensions, the use of an App to extract data from a third-party website, and two techniques for using automated means to post information to a third-party website. Expert testimony on these complex technical issues will be helpful to the jury.
Plaintiffs Nathan Campos and Janet Garvey (collectively, “Plaintiffs”) brought this putative class action alleging damages from being “deceived into making in-game purchases of deceptively marketed in-game items in the mobile application games Big Fish Casino and Jackpot Magic slots (collectively, “the Games”) and lost those purchases to the Games’ unlawful and unfair casino-style games of chance.”
Defendants Big Fish Games, Inc. and Product Madness, Inc. (collectively, “Defendants”) filed a motion to exclude the testimony of Plaintiff’s expert Muhammad Khan.
Financial Analysis Expert Witness
Muhammad Anwar Khan has over 20 years of experience as a financial analyst and is currently the Head of Investment at Building Communities Initiative, a real estate developer located in Australia.
He analyzes investment opportunities for hotels, resorts, and government affordable housing projects,” and he has prior experience with investment banks doing “comprehensive financial analysis in a variety of industries.” Also, he has provided expert testimony in two prior cases, which involved banking and real estate under Islamic law.
First, Defendants challenged Khan’s qualifications as an expert opining on damages models in this case. Plaintiffs contended that Kahn “is undoubtedly qualified as a financial analyst and accountant” to provide an expert opinion for the “very limited purpose” on “whether certain damages models can be measured for class members using Defendants’ financial data.”
The Court agreed with Defendants. Plaintiffs offered no evidence of specific training, experience, or specialized knowledge Khan has that is relevant to his damages models examination in this case. Merely stating that Khan is “undoubtedly qualified” because he works as a “financial analyst and accountant” is conclusory and insufficient to qualify Khan as an expert witness.
Furthermore, Khan stating in his deposition that his expert declaration was “all drafted by” Plaintiffs’ counsel raised serious credibility and reliability questions that Plaintiffs did not respond to.
The Court found that Plaintiffs have failed to show that Khan is qualified as an expert in this case.
Held
The Court granted the Defendants’ motion to exclude the testimony of Muhammad Khan.
Key Takeaway:
Plaintiffs are not required to show that Khan has the exact specialized expertise to answer the issues here, but Plaintiffs do have the burden to show by a preponderance of the evidence that he is qualified based on his knowledge, skill, experience, training, and/or education for this Court to find him an expert with a reliable or appreciably helpful opinion for a jury.
