This is a subrogation action resulting from a water loss that occurred in January of 2021 at a single family home located in Cranston, Rhode Island.
Defendant filed a motion to prevent one of Plaintiff’s experts—Thomas F. Zarek—from testifying as to the source of the damage at trial.
Construction Expert Witness
Thomas F. Zarek has significant experience in the construction and remodeling of homes and commercial businesses.
Zarek has been responsible for a variety of forensic engineering assignments, on average between 200 and 300 assignments per year. These have comprised not only heating system failures, but freeze loss examinations, piping and plumbing systems, water and wastewater distribution systems, fire investigation, and failures of commercial and residential systems.
Defendant argued that: (1) Zarek did not have the relevant plumbing experience to determine whether Defendant’s actions caused the leak; and (2) he did not understand how a fuel usage analysis works, and has not conducted one himself, even though he relied on one in his report.
Here, Defendant failed to show that Zarek is either unqualified as a plumbing expert or that the materials that he relied on in forming his opinion are unreliable. As his CV indicates, Zarek possesses decades of relevant experience conducting plumbing investigations. Additionally, as Plaintiff pointed out, Zarek’s alleged inability to understand how the formula underlying a fuel usage analysis is calculated does not relate to whether he improperly relied on this information in reaching his conclusion.
Separately, the Court acknowledged that Plaintiff asked Zarek to conduct a subsequent report after he performed an earlier, inconsistent one during this litigation.
While Zarek’s original report noted that the freezing weather might have caused damage to the plumbing here, his updated report ruled this out as a potential option.
As with Zarek’s knowledge of the source material underlying his expert report, Defendant can remedy this issue on cross-examination and by impeaching Zarek with his prior report, rather than seeking its exclusion altogether.
Held
The Court denied without prejudice Defendant’s Daubert motion in limine to prevent Thomas Zarek from testifying about the cause of the leak.
Key Takeaway
Zarek’s alleged inability to understand how the formula underlying a fuel usage analysis is calculated does not relate to whether he improperly relied on this information in reaching his conclusion. For example, an expert should be able to rely on a weather forecast in order to conclude whether it was a nice day outside without needing to explain to someone the science underlying the forecast itself.
Case Details:
Case Caption:
Certain Underwriters at Lloyd’s Lond. v. Sonner Plumbing, Inc.
This case concerns a fatal officer-involved shooting that took place on February 5, 2023. Plaintiff Matilde Garza alleged that Defendants County of San Bernardino, Bill Abernathy, and Nicholas Krinder (collectively, “Defendants”) used excessive deadly force by shooting and killing Plaintiff’s son Antonio F. Garza, Jr. (the “Decedent”).
John Chatfield Hiserodt has performed over 12,000 autopsies in his career, including many cases of in-custody deaths and various types of shooting cases.
He has been qualified as a Forensic Pathology Expert in determining cause, manner and mechanism of death in numerous trial venues throughout California and the country, including providing opinions regarding bullet trajectory in many shooting-related deaths.
Scott Allen DeFoe has twenty-eight years of law enforcement experience where he responded to hundreds of calls where subject may be barricaded, mentally ill, suicidal, experiencing a mental health crisis and worked almost 20 years with L.A.P.D’s mental evaluation unit.
DeFoe also volunteered for five years with a suicide prevention hotline.
Defendant sought to preclude Hiserodt from offering opinions regarding bullet trajectories and the position of the shooting officers relative to Garza.
Defendants argued that Hiserodt is not qualified in ballistics or crime-scene reconstruction so as to testify about such opinions and therefore, this evidence is inadmissible.
Hiserdot has demonstrated his qualifications in similar cases and in medicine to form the basis of his opinion. Therefore, any probative value of such evidence is not substantially outweighed by danger of unfair prejudice, confusing the issues, or misleading the jury.
Scott DeFoe
Defendant sought to exclude any opinions by DeFoe regarding Garza’s alleged mental health crisis or mental illness.
Plaintiff submits evidence that beginning in 2020, Garza began to suffer mental health issues, and was experiencing a mental health crisis on the date of the incident.
Defendant argued that DeFoe lacked the background, training, experience, or qualification to provide expert opinion testimony regarding Garza’s mental health status because DeFoe is not a psychiatrist, psychologist, counselor, or other individual with specialized knowledge which would allow him to opine on Garza’s mental health status at the time of the incident or his mental health history.
At his deposition DeFoe stated he will not offer any opinion diagnosing Garza but rather how police officers in California are trained to recognize behavioral indicators associated with mental illness.
The Court has reviewed DeFoe’s curriculum vitae and there is no reference to him being a medical provider but it stated that DeFoe has experience in crisis negotiations/mental health training.
The Court found based on DeFoe’s resume, testimony and report that his experience is relevant to Plaintiff’s causes of action under the ADA and Rehabilitation Act.
Held
The Court denied the Defendants’ motions in limine to preclude the testimony of John C. Hiserodt and Scott Defoe.
Key Takeaway
Experts must be qualified to form the opinions that make up their testimony. DeFoe has sufficient experience in crisis negotiations/mental health training.
This case stems from a dispute over the production (or lack thereof) of meatless meatballs, which Plaintiff Ascot Valley Foods, Ltd. (“Plaintiff,” “Ascot,” or “Ascot Valley”) agreed to manufacture, package, and ship to Defendant ADF Foods (USA), Ltd. (“Defendant” or “ADF”). Ascot Valley brought claims under New York law for breach of contract, promissory estoppel, and account stated. ADF brought several counterclaims, alleging damages from unfulfilled purchase orders and misappropriation of trade secrets stemming from Ascot Valley’s production of similar meatless meatballs for other customers.
ADF called Mahabir Singh to testify as an expert in food science and technology. Ascot asked the Court to bar the testimony of defense expert Singh.
Food Science Expert Witness
Mahabir Singh has a master’s degree in food technology and is pursuing a Ph.D. in food science and technology.
He has more than two decades of directly relevant experience, having worked for over 25 years in the development and production of food products, while currently running a consultancy for new product development and plant design in India and abroad.
Singh used his experience and training in product development to determine the procedures he used to evaluate and compare the meatless meatballs in this case. Those procedures are widely used by food scientists in the industry in developing new products.
For each product, Singh compared the ingredients used in the recipe and the cooking means and methods employed in the manufacturing of the items.
Based upon these repeated observations and using the same methodology across each of the seven products he analyzed, Singh concluded “that the original recipes were ADF’s recipes, Ascot Valley tweaked a little bit the seasoning part or some of the ingredients and they tried to name it as a new recipe” and that “[Ascot Valley] took the ADF recipes, tweaked them to some extent, and followed the same process, same time to process, and processing conditions to produce nearly identical or similar products.”
The Court found that Singh was qualified to testify as an expert in food science and technology and concluded that his opinion testimony and report were admissible.
The Court, however, declined to credit the testimony of Ascot’s expert, Marc A. Meyers. Meyers used the same methodology that Singh used to compare the recipes for ADF products against the recipes Ascot used to make meatless meatballs for Lidl, Creative Fine Foods and Topco.
Meyers’s testimony made it clear that Ascot selectively provided him information to skew his opinions. Moreover, Meyers also acknowledged that Ascot made mistakes in calculating the percentage differences that it alleges show the products are different.
Held
The Court denied Ascot’s motions to exclude the testimony of Mahabir Singh.
Key Takeaway
Even with respect to the most well-qualified of experts, a district court must also be satisfied that the expert employed a reliable methodology in reaching her conclusions.
While detained in Division 6 of the Cook County Jail, Plaintiff Willie Clay began experiencing a toothache. Clay claimed that he waited nearly a month before being evaluated by a dentist and that, as a result of the delay, he experienced unnecessary pain. For that reason, he brought the present civil rights action on behalf of himself and similarly situated Division 6 inmates against Defendants Thomas Dart, in his official capacity as the Sheriff of Cook County (“Sheriff”), and Cook County.
Clay also contended that Division 6’s dental clinic maintained grossly deficient scheduling and staffing policies that denied constitutionally adequate medical care to inmates.
The Court has certified a Plaintiff class consisting of similarly situated individuals assigned to Division 6 between February 19, 2018, and March 31, 2020, who submitted a written complaint of a toothache causing significant pain but failed to receive a timely evaluation by a dentist.
Defendants sought to exclude the opinions proffered by Clay’s expert, Dr. Anita Lockhart, and Clay, in turn, sought to strike Defendants’ expert, Dr. John Dovgan.
Dental Expert Witnesses
Anita Lockhart is a dentist who has worked as a clinical specialty consultant and dental officer with the Federal Bureau of Prisons since June 2013. She has authored a chapter regarding correctional dentistry in Correctional Health Care: Practice, Administration, and Law, an authoritative textbook, with leading public health dentists
John W. Dovgan is a practicing dentist. He has been a board approved consultant for over 29 years, adjudicating more than 1,300 dental board cases in Arizona.
According to Defendants, Lockhart relied on cherry-picked data to conclude that the Division 6 dental clinic lacked adequate staffing and appropriate scheduling procedures to ensure that detainees with urgent toothaches were timely evaluated by a dentist.
Specifically, Defendants fault Lockhart’s opinions for being based in substantial part on the records of a sample of 45 detainees who submitted urgent health service request forms (HSRFs) during the class period that were selected and provided to her by class counsel.
The Court concluded that Lockhart’s use of a nonrandom sample is not a basis for excluding her opinions but instead is an issue to be explored on cross-examination.
Next, Defendants argued that Lockhart failed to conduct any meaningful analysis connecting her review of the exemplars’ medical records to her conclusion that there were systemic deficiencies in the Division 6 dental clinic’s staffing and scheduling practices that caused unreasonable delays in dental care for urgent HSRFs.
The Court, however, disagreed that Lockhart did not connect the dots between her review of the exemplars and her overall conclusion. Lockhart’s discussion of the exemplars is preceded by her extensive analysis of the Division 6 dental clinic’s response to the urgent HSRFs submitted by three of the related-case Plaintiffs.
Finally, Defendants argued that Lockhart’s opinions should be excluded because she is admittedly unable to identify the exact reason why any specific Plaintiff or exemplar was scheduled for a dentist’s appointment on a particular date. However, her opinions are not rendered inadmissible because she cannot assign a specific cause of delay for each detainee that she examined. It is enough that Lockhart offered well-founded opinions about the existence of systemic delays in scheduling urgent HSRFs at the Division 6 dental clinic.
John Dovgan
In this case, the central issues relate to whether the Division 6 dental clinic was adequately staffed, whether it maintained adequate scheduling procedures, and whether detainees with urgent complaints of pain from a toothache were timely scheduled for an appointment with a dentist.
Instead of directly confronting Clay’s core contentions about staffing, scheduling, and the timeliness of dental evaluations, Dovgan’s approach focuses on the ultimate issue of whether Division 6 detainees overall received objectively reasonable care.
To evaluate the quality of dental care that detainees received, Dovgan reviewed the treatment records from the class period for Clay and the related-case Plaintiffs along with a random sample of 84 detainees. To put together the sample, Dovgan selected the first complete name on every 25th page of the Division 6 dental clinic’s schedule for the class period. However, that process resulted in a detainee being selected for the sample regardless of whether he had submitted an HSRF indicating a pain level of 6 or greater. Thus, Dovgan’s sample sweeps in not just detainees with urgent HSRFs but also detainees whose HSRFs indicated conditions causing them no pain or requested routine procedures like a cleaning.
Another significant problem with Dovgan’s testimony is that, in instances where a detainee has complained of urgent pain, Dovgan offered his own opinion on whether that detainee was, in fact, suffering pain at the level indicated, and then he incorporated that credibility determination into his evaluation of the reasonableness of care the detainee received.
In short, the Court found that Dovgan’s opinions must be excluded in their entirety because they do not fit the relevant facts of this case, make improper assertions regarding the credibility of detainees’ subjective complaints of pain, and are not founded on scientifically reliable premises.
Held
The Court granted Clay’s motion to exclude the testimony of Dr. John Dovgan but denied Defendants’ motion to bar the expert testimony of Dr. Anita Lockhart.
Key Takeaway
This case concerns whether detainees with urgent complaints of pain from a toothache received a reasonably timely response from a dentist. Detainees who never submitted an urgent HSRF have no relevance to the reasonableness of care provided in response to urgent HSRFs. Dovgan’s analysis of a sample that includes those detainees provides an answer to a different question than the one asked and, as such, does not assist the trier of fact.
On September 30, 2021 at approximately 4:14 p.m., Defendant Marcus D. Jethrow, was operating a 2021 Volvo 760 tractor-trailer owned by Defendant Keep Trucking, LLC (Defendant Keep Trucking) traveling northbound on US 61 Hwy in Marion County, Missouri. At the same time, Keith Triplett (decedent) was operating a 1988 International Harvester grain hauler traveling east on County Road 338 in the process of crossing US 61 Hwy. The vehicles collided, and Triplett died as a result.
Triplett’s wife asserted claims of negligence in hiring, training, supervising, retaining, and entrusting Jethrow against Defendant Keep Trucking.
Plaintiffs asked the Court to exclude the testimony of the Defendants’ retained accident reconstruction expert witness, Kevin T. Johnson, for both Rule 26(a)(2)(B) and Daubert reasons.
Accident Reconstruction Expert Witness
Kevin Turner Johnson is accredited by A.C.T.A.R., the Accreditation Commission for Traffic Accident Reconstruction, testifies as an expert witness, and trains others in the accident reconstruction community. His 10 years of law enforcement experience, which included over 500 collisions investigated on-scene, lends additional perspective to collision analysis and police investigations.
First, Plaintiffs alleged that Johnson performed an avoidability calculation of what would have occurred if Jethrow had been traveling at exactly the posted speed limit of 65 m.p.h. and then suppressed it, not complying with required disclosures in Rule 26(a)(2)(B).
Johnson analyzed multiple data points to reach his conclusions in this case which would include but are not limited to: physical evidence on the roadway, damage patterns, distances traveled, electronic data from the vehicle showing speeds and braking, and the video of the collision and the event prior thereto.
Johnson’s report contained his analysis of available data and after performing accident reconstruction calculations, determined that Defendant Jethrow’s speed did not cause the accident. Plaintiffs presented no evidence that Johnson or Defendants suppressed anything here or that they did not comply with required disclosures in Rule 26(a)(2)(B). Therefore, the Court refused to exclude his opinion on Plaintiffs’ first point of argument.
Plaintiffs also took issue with the perception-response time analysis done and the traffic standards applied. Johnson focused his reconstruction analysis on a moment in time that the decedent was a hazard — i.e. when he was in the median failing to yield. Plaintiffs’ expert, meanwhile, focused his reconstruction analysis on a ten second window prior to the collision. Just because these analyses are different, the Court held that challenges to the factual basis of Johnson’s testimony go to credibility and the weight of the testimony which are subjects that may be raised during cross-examination.
Held
The Court denied Plaintiff’s motion to exclude the testimony of Defendants’ expert Kevin Johnson.
Key Takeaway
Challenges to the factual basis of Johnson’s testimony go to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.
Case Details:
Case Caption:
Triplett V. Keep Trucking, LLC
Docket Number:
2:25cv1
Court Name:
United States District Court for the Eastern District of Missouri, Northern Division
Plaintiff Rickey Martin is a Florida resident who purchased corrective contact lenses from Defendant Lens.com’s website on five separate occasions between January and October, 2021.
When making these online purchases, Plaintiff alleged that Lens.com charged him an undisclosed, unreasonable, and unlawful processing fee in violation of Florida’s Unfair and Deceptive Trade Practices Act (the “FUDTPA”).
Plaintiff further alleged that Lens.com advertised one price for its contact lenses but charged 50% more than the advertised price at checkout. According to Plaintiff, purchasers can only recoup the additional 50% charge by completing a mail-in rebate which is disclosed at checkout for the first time.
Plaintiff also alleged that Lens.com charged Florida customers “Taxes and Fees,” even though the State of Florida exempts contact lens purchases from sales tax.
Plaintiff thus sought to represent a class of “all Florida residents and consumers who, within the applicable statute of limitations preceding the filing of this action to the date of class certification, purchased products from Defendant and paid a charge labeled “Taxes & Fees” (known to Defendant as a “Processing” fee).” Lens.com denied that its “Taxes and Fees” are deceptive charges in violation of the FDUTPA.
Lens.com proffered the testimony of four retained expert witnesses: (1) Joshua Gifford; (2) Mark T. Keegan; (3) Peter Kent; and (4) Michele Jowdy. Plaintiff filed a consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses under Daubert.
Accounting Expert Witness
Joshua J. Gifford is a Certified Public Accountant, Accredited in Business Valuation by the AICPA and is a Certified Fraud Examiner. He has spent the majority of his career performing business valuations for litigation purposes in construction, engineering, retail, wholesale, professional services and agriculture related industries.
Gifford also has experience in forensic investigations, lost profits and economic damages analyses, and bankruptcy related tax work.
Mark Thomas Keegan has over 24 years of experience conducting consumer survey research. Over the course of his career, he has personally conducted over 1,000 consumer surveys reaching more than 250,000 consumers.
Keegan maintains a number of professional certifications and memberships that are directly related to his work as an expert in marketing and consumer research. He is a graduate of the University of Georgia’s Principles of Market Research Program, a professional certification program for marketing industry professionals covering all aspects of the survey research process. He is also a Professional Certified Marketer (PCM), an American Marketing Association certification conferred upon individuals who have demonstrated a mastery of comprehensive and core marketing knowledge and principles.
Peter Kent is an e-commerce and SEO (“Search Engine Optimization”) consultant who provides online e-commerce strategies to companies seeking to improve their business online. He has written many books about the Internet and technology in general.
Kent has been working with computer technology since early 1979 and has extensive experience in the e-commerce arena.
Gifford proffers his opinion, from an accounting perspective, that Lens.com’s “‘Taxes and Fees’ description is generic indicating there are a broad range of activities being covered by the charge.” In sum, Gifford opined on the “meaning and connotation of the ‘Taxes and Fees’ description from a financial or business perspective.”
B. Mark Keegan
Keegan’s study of 459 relevant consumers shows that most consumers understand the pricing presented during Lens.com’s online purchase checkout process and are not deceived or confused by Lens.com’s representations.
C. Peter Kent
According to Kent, customers are generally driven by price. Some customers seeking the best price for their contact lenses are benefitting from a low overall price from online sellers like Lens.com, even after the additional fee is added at the end of the transaction.
D. Michele Jowdy
Jowdy compared Lens.com’s final prices (inclusive of all applicable fees and rebates) to the final prices of Lens.com’s competitors. Jowdy also compared Lens.com’s price to the average price for 16 different brand-name contact lenses. Although Jowdy does not proffer an opinion, her report seems designed to show a jury that Lens.com charges a competitive final price for its prescription contact lenses.
Analysis
Plaintiff contended that offering their expert opinion is an improper attempt to “reframe this lawsuit as a dispute about overcharging, price comparison, consumer confusion, or industry norms,” when the case is instead about whether Lens.com’s “Taxes and Fees” are deceptive or misleading to the reasonable consumer in violation of the FDUTPA.
Plaintiff observed that Lens.com’s “four experts share the same flaw: each is directed at a substitute issue that would distract the jury from the only one that matters,” i.e., whether the net impression of Lens.com’s “Taxes and Fees” is misleading to the reasonable consumer under the circumstances, which deception caused Plaintiff actual damage. The Court agreed with Plaintiff on this point and goes one step further. All four experts improperly intrude into the province of the jury.
The testimony of Gifford, Kent, and Keegan constitute opinion on whether reasonable consumers would find Lens.com’s “Taxes and Fees” deceptive. Clearly, that is an issue (perhaps the critical issue) for the fact finder, not an expert.
The jury did not need an expert to assist its factual determination of whether the net impression of Lens.com’s “Taxes and Fees” is objectively misleading to the reasonable consumer. Nor did a jury need an expert to opine as to whether Plaintiff suffered actual damages by paying those charges.
Held
The Court granted the Plaintiff’s consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses, Joshua Gifford, Mark Keegan, Peter Kent, and Michele Jowdy.
Key Takeaway
In this case, Lens.com’s proffered expert opinions would not only not assist the trier of fact, they would affirmatively confuse the jury. The Court is disinclined to allow experts, even qualified, reliable, and helpful ones, to supplant and interfere with the jury’s role in this kind of case.
Plaintiff Geoffrey Long brought this action against Defendants Power Technique North America LLC (“Power Technique”) and United Rentals (North America, Inc.) (“United Rentals”), asserting claims for strict products liability, negligent products liability, and breach of warranty. Long alleged that he sustained life-altering injuries, including significant injuries to his cervical spine, when an access door of a portable air compressor fell on him while he was inspecting the machine in the course of his employment as a General Foreman at a job site in New Jersey.
Craig David Clauser is an engineer with over fifty years of experience in industrial safety, machinery safeguarding, failure analysis of mechanical and structural devices, and accident investigation. He has particular expertise in metallurgical engineering and materials science, and safety engineering.
Clauser concluded that the incident and Long’s injury occurred because the subject air compressor was a “defectively designed product.” Specifically, he opined that “the design did not address the hazard of a gas spring failure allowing a door to drop and strike a user.”
i. Insufficient Facts or Data
Defendants first argued that Clauser’s testimony should be excluded insofar as it rests on insufficient facts or data, specifically an “assumption” that the gas strut failed. Defendants contended that Clauser’s testimony should be excluded in its entirety because it depends on Long’s eyewitness testimony that the gas strut failed. Long correctly responded that such reliance is permissible.
Clauser was unable to inspect the gas strut at issue, which Defendants’ own expert opined had likely been discarded, and instead inspected the machine with new gas struts installed. He paired that inspection with reliance on Long’s testimony that the door fell on him after the gas strut had failed. The Court found that reliance on this evidence is sufficient. Any challenges to the credibility of Long’s testimony that the gas strut failed are better left with the jury, not the judge.
Defendants also argued that Long’s eyewitness testimony is an insufficient fact to support Clauser’s conclusions because Clauser, in relying on that fact, “performed no analysis into why the gas struts did not need to be replaced until February 2025 by United Rentals.”
Long responded, and the Court agreed, that Defendants misconstrued Clauser’s testimony. At his deposition, Clauser stated: “I don’t know that they weren’t replaced, and I did not really put any analysis into that.” That is not the same as Clauser admitting that “he performed no analysis into why the gas struts were not replaced until February 2025.”
Finally, Defendants argued that Long’s eyewitness testimony is insufficient because Clauser did not rule out alternative explanations. According to the Court, where alternative explanations conflict with eyewitness testimony, an expert may rely on the eyewitness account.
ii. Reliable Principles and Methods
Defendants challenged Clauser’s alternative-design opinions on the ground that he proposed those alternatives without “testing, data analysis, or calculations,” and instead merely “showed a picture of the two alternatives without any diagrams.”
But the absence of testing, standing alone, does not render an alternative-design opinion unreliable per se. Here, Clauser’s opinion concerning the formation and necessity of alternative designs rests on his substantial experience, his personal inspection of the compressor, his review of the record, and his application of the Order of Precedence or Safety Hierarchy.
Accordingly, the Court held that any lack of testing goes to the weight of Clauser’s opinion, not its admissibility.
Defendants separately argued that Clauser’s methodology in providing alternative designs is insufficient because he did not independently test the lifespan of a gas strut. But Clauser’s report made it clear that he relied on the testimony of Mark MacInnis, Power Technique’s former Vice President of Engineering for its Portable Power and Flow Division, regarding the lifespan of the struts. MacInnis testified that it would be unlikely “if there was anyone in the globe who knew more about this product than me.” Clauser’s reliance on that testimony was considered permissible.
Finally, Defendants faulted Clauser because they averred that no manufacturer had implemented his proposed alternative design. But Defendants did not meaningfully explain how that fact rendered Clauser’s methodology unreliable and cited no authority imposing a categorical requirement that an expert demonstrate industry use of the precise alternative design he proposed.
iii. Warnings or Instructions Testimony
Defendants also challenged Clauser’s warning opinion that Power Technique should have warned that “air springs were susceptible to unexpected failure” and that users should not rely on them as the sole means of support. Defendants contended that this opinion is improper because Clauser did not know the failure rate of the gas struts at issue, “did not know of any really sudden failure of a gas strut,” and again asserted that Clauser does not know that a gas strut failed in the subject accident.
These arguments do not warrant exclusion of his testimony. As discussed above, Clauser relied on Long’s eyewitness testimony in concluding that a gas strut failed, and such reliance is permissible.
Defendants next argued that Clauser’s opinion that Power Technique “could have provided instruction to the owner and maintainer of the compressor that the air springs, which Mr. MacInnis stated are inexpensive, should be replaced at a frequency that prevents end of life failures in service” is based on unsupported conjecture and speculation. The record does not support that characterization. Clauser acknowledged that the lifespan of a gas strut depends on the strut’s usage and the environment in which it is used. But that does not make replacement-frequency information unknowable or speculative.
Defendants further faulted Clauser for not identifying similar replacement schedules for gas struts across other industries and for not relying on specific industry standards governing regular replacement of gas struts. But the absence of industry standards or comparable replacement schedules did not, by itself, require exclusion.
Held
The Court denied Defendants’ motions to exclude the testimony of Craig D. Clauser.
Key Takeaway
Clauser relied on his personal inspection of the compressor, his review of the record, and his decades of experience in engineering, safety engineering, machinery safeguarding, failure analysis, and accident investigation. Defendants’ criticisms of the factual basis for his warning opinion may go to its weight, but they do not render the opinion inadmissible.
Case Details:
Case Caption:
Geoffrey L. Long v. United Rentals N. Am., Inc.
Docket Number:
2:25cv4432
Court Name:
United States District Court, Pennsylvania Eastern
Plaintiff Judith Bean alleged that this action arose from a February 28, 2023, trip-and-fall incident at Walmart Supercenter Facility #5686, located at 1301 N. Victory Place, Burbank, California, and asserted causes of action for negligence and premises liability.
Walmart filed a motion in limine to preclude Plaintiff’s expert witnesses, Alex J. Balian and Kuba Glazek, Ph.D., from testifying about certain topics. Plaintiff filed a motion in limine to exclude improper opinions by Walmart’s rebuttal safety expert, Michael V. Nichols.
Retail Store Expert Witness
Alex J. Balian has been in the retail industry as an owner, operator, and consultant for more than 65 years.
He has testified as a safety and operations expert in all areas of retail store operations and public facilities involving supermarkets, commercial buildings, restaurants, warehouse facilities, home improvement stores and specialty stores for more than thirty years.
He has qualified as a retail safety expert and given expert testimony in state and federal courts in matters pertaining to retail operations throughout the United States.
Kuba J. Glazek has a Ph.D. in Brain and Cognitive Sciences. He has researched, published, presented, and consulted on human factors since 2006 and has applied his background in human cognition and scientific methods to analyze a variety of legal cases, including but not limited to premises, transportation, construction, industrial, products, sports, dram shop, and warnings cases.
Michael V. Nichols has a Bachelor of Science in Occupational Health & Safety, along with ample experience in retail security and safety. He has been practicing as a Safety Consultant since 1992, conducting safety inspections and consulting on liability and workers’ compensation.
Nichols also taught Accident Investigation, Cal-OSHA Law, and Workers’ Compensation at Cal State Dominguez Hills University for fifteen (15) years. As a safety expert witness, he has testified over 130 times and given more than 1300 depositions since 1992.
First, Walmart argued that Balian, a “retail-safety” expert, cannot offer opinions regarding “human factors” because he has no expertise in that field.
Second, Walmart argued that Balian cannot offer opinions regarding prior incidents because his deposition testimony shows that he did not study the prior incidents to verify whether they were substantially similar and therefore probative.
Third, Walmart argued that Balian should be precluded from testifying that Walmart engaged in a “conscious and wanton disregard” for Plaintiff’s safety because he admitted at his deposition that he used the term in a non-legal way.
Finally, Walmart’s notice of the motion in limine further sought to exclude Plaintiff’s human factors expert, Kuba Glazek, Ph.D., on the ground that his testimony is unnecessary.
II. Plaintiff’s MIL No. 4
Plaintiff sought to exclude certain testimony by Walmart’s rebuttal retail safety expert, Michael V. Nichols, on the grounds that his opinions are beyond his designation as a rebuttal expert and/or are inadmissible credibility, advocacy, legal conclusion, and factual determination conclusions that invade the province of the jury or attempt to contradict Walmart’s binding admissions.
The Court’s Analysis
The Court found that a considerable amount of the content in Balian’s report, Glazek’s report, and Nichols’ rebuttal report will be inadmissible testimony at trial as improper legal conclusions or determinations that invade the province of the jury.
Accordingly, the Court will not permit any expert witness for either party to testify as to their conclusions regarding issues for the jury to decide, including: whether the stackbase at issue was “unsafe,” a “trip hazard,” a “dangerous condition,” or below industry safety standards; whether Walmart’s policies and/or training was adequate or met industry standards/a standard of care or whether Walmart employees could have prevented the incident.
Given that the Court found much of what Walmart objected to in Balian’s report and what Plaintiff objected to in Nichols’ report improper for reasons other than the reasons underlying the motions in limine, the Court need not specifically rule on each of the grounds in the respective motions in limine.
To the extent that Walmart sought to exclude Glazek from testifying as to human factors on the grounds that his testimony is unnecessary and cumulative, the Court denied Walmart’s motion. Glazek may provide testimony based on his specialized knowledge, such as to limits on visual perception, human behavior, etc., that would be helpful to the jury to interpret the evidence. But Glazek may not interpret the evidence for the jury. To the extent that Plaintiff sought to exclude Nichols’ testimony as outside of the scope of rebuttal, the Court denied Plaintiff’s motion at this time. Plaintiff may raise such an objection to specific testimony at trial.
Held
The Court denied Walmart’s fourth motion in limine to preclude certain testimony by Alex Balian and Kuba Glazek as well as Plaintiff’s fourth motion in limine to exclude certain testimony by Michael Nichols.
Key Takeaway
To avoid expert witnesses invading the province of the jury, the Court does not permit expert witnesses to interpret the factual evidence in this case. Instead, expert witnesses may testify about industry standards, customs, best practices, and norms, and specialized knowledge relating to relevant topics.
Expert witnesses may be asked hypothetical questions to elicit expert opinions on the aforementioned topics but may not be asked to make conclusions about the facts or evidence of the instant case, as these are issues for the jury to decide.
Case Details:
Case Caption:
Judith Bean V. Walmart Inc.
Docket Number:
2:24cv8871
Court Name:
United States District Court for the Central District of California
Plaintiff Kimberly McKinney filed a wrongful termination action against Land O’Lakes, citing its failure to accommodate her disability and work limitations stemming from injuries she sustained due to an unsafe condition at work.
Defendant sought to preclude the testimony of Plaintiff’s retained experts Dr. Joseph Penbera and Dr. Julie Armstrong.
Economics Expert Witness
Joseph J. Penbera earned a B.A. from Rutgers in 1969, a masters in public administration from The Baruch School (CUNY) in 1970 and a Ph.D. from American University in 1973.
He is forensic economist whose work has been accepted in local, state, and Federal jurisdictions as well as in various international venues.
Julie Armstrong earned a bachelor of science in nursing from the Consortium of Cal. State Colleges and Universities in 1988, a Masters in nursing/clinical nurse specialist from U.C.L.A. in 1990 with a specialty in psychiatric/mental health nursing, and a Doctor of Psychology degree from Pepperdine University in 1996.
She has conducted more than a thousand clinical interviews or evaluations for psychological injury or impairment for the Workers’ Compensation Appeals Board in California. As of 2025, she has testified in Court or Administrative hearings approximately 60 times.
I. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY PENBERA
Defendant sought to preclude Plaintiff’s expert, Dr. Joseph Penbera, from: (1) testifying to lost wages that allegedly accrued after January 1, 2024 through trial, (2) offering opinions based on unreliable methodology and testifying as to legal conclusions; and (3) testifying as to punitive damages.
A. Opinions on lost income and benefits since May 28, 2023
1. Admissibility of Penbera’s expert testimony
Penbera calculated Plaintiff’s lost income and benefits based on Plaintiff’s past wages. Defendant raised several objections regarding the method Penbera utilized in calculating lost wages, but such objections go to the weight of Penbera’s opinion, not its admissibility. Penbera’s report indicates that, among other information, he reviewed Plaintiff’s earnings statements from “12/23/2018 to 1/13/2024” and from “6/15/2023 to 5/15/2025.” Those include Plaintiff’s earnings statements showing her 2023 income and deductions through May 2023, when she was put on leave or terminated, and showing her 2024 income and deductions through mid-December 2024.
To the extent the Defendant argued that Penbera relied on incomplete pay data from the relevant years or failed to adequately consider Plaintiff’s earnings in earlier years, “it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.”
The Court made it clear that Penbera is not precluded as a general matter from offering expert opinions on Plaintiff’s lost income and benefits.
2. Lost income and benefits damages based on events occurring between Plaintiff’s 2022 injury and her starting a new position in March 2024
Defendant asserted that Penbera’s opinions rest “entirely” on 2024 and 2025 factual allegations that are not part of plaintiff’s claims in this action. But that is incorrect. For example, Penbera’s report reflects that, among other data, he considered Plaintiff’s past wages from January through May 2023 in calculating Plaintiff’s lost income for the period from her alleged constructive termination in May 2023 through her starting a new position in March 2024.
Penbera’s report also included calculations of Plaintiff’s future lost income and benefits after December 2024. But the parties agreed that Plaintiff obtained a new job position with Defendant in March 2024. And while Plaintiff was allegedly terminated from that new position in December 2024, that termination is not part of Plaintiff’s claims in this action.
To the extent Plaintiff’s future lost income and benefits are based on Plaintiff’s alleged wrongful termination in December 2024, which is not a claim at issue in this case, testimony as to such damages would not be relevant to Plaintiff’s claims at trial. The Court held that Penbera will be precluded from testifying as to lost income and benefits damages that are due to Plaintiff’s December 2024 termination. However, to the extent certain such future losses are attributable to actions that are the subject of Plaintiff’s claims—for example, Plaintiff’s loss of future benefits due to her lost income in the period from May 2023 to March 2024—then Penbera’s testimony as to such specific future losses would be admissible to that extent.
B. Punitive Damages
Defendant argued that Penbera should be precluded from testifying about punitive damages because he was not designated to testify about punitive damages.
Plaintiff appeared to concede that Penbera cannot provide expert testimony as to punitive damages. Plaintiff did not disclose Penbera as an expert on any punitive damages issue, and Penbera’s expert report did not include an opinion regarding punitive damages.
Penbera was therefore precluded from testifying as an expert as to punitive damages and may not offer any opinion as to Defendant’s financial documents or financial condition. Plaintiff did not dispute the exclusion of expert opinion or expert testimony on this issue.
II. MOTION IN LIMINE TO PRECLUDE TESTIMONY BY ARMSTRONG
Defendant sought (1) to preclude Plaintiff’s expert Julie Armstrong from testifying as to Plaintiff’s emotional distress and non-economic damages because, Defendant claims, Armstrong’s testimony is based on events in 2024 that are outside the scope of the litigation, (2) to preclude Armstrong’s testimony because it is not based on any medical or employment records, and (3) to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages.
Analysis
First, Defendant argued that Armstrong’s opinions should be precluded because they are based on Plaintiff’s factual allegations concerning events outside the scope of Plaintiff’s claims, including Plaintiff’s assertion that in December 2024 Defendant wrongfully terminated her from her new position, and that in September 2024 Defendant posted graphic photos of Plaintiff’s injury.
While Defendant argued that Armstrong relied insufficiently on the relevant period in reaching her expert opinions, that is incorrect. Armstrong’s report refers at length to Plaintiff’s account of her circumstances from her injury in November 2022 to her re-hiring by Defendant in March 2024.
Second, Defendant also objects that Armstrong’s opinion relies solely on her experience and her interview and testing of Plaintiff and not on medical or employment records. This argument likewise goes to the weight of Armstrong’s testimony, not to its admissibility.
Armstrong explained that her opinion is based largely on her clinical interview of Plaintiff, during which Armstrong administrated the Structured Inventory of Malingered Symptoms (SIMS) and Millon Clinical Multiaxial Inventory-IV (MCMI-IV) tests.
Third, Defendant sought to preclude Armstrong from offering opinions regarding the causation of Plaintiff’s emotional distress damages. Armstrong was not Plaintiff’s treating provider and did not review Plaintiff’s contemporaneous medical records, and she did not observe Plaintiff’s emotional state or symptoms during the period from 2022 to March 2024.
But the Court held that Armstrong may testify to her observations of Plaintiff’s emotional distress symptoms and disorder when she evaluated plaintiff in July 2025, and the extent to which plaintiff’s account of her alleged adverse workplace experiences from her 2022 injury to her rehiring in March 2024, if true, could substantially contribute to such ongoing emotional distress symptoms.
Held
The Court granted in part and denied in part Defendant’s motions in limine to preclude the testimony of Dr. Joseph Penbera and Dr. Julie Armstrong.
Key Takeaway
Under Daubert, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.
Plaintiff Brigid “Bridie” Farrell alleged that Defendant Gabel groomed and sexually abused her from June 1997 to January 1998, when she was 15 and Gabel was 33. Plaintiff was a competitive short-track speedskater in the 1990s and 2000s.
Defendant United States Olympic and Paralympic Committee (“USOPC”) filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Paul Ballas, pursuant to Rule 702 of the Federal Rules of Evidence.
Psychiatry Expert Witness
Dr. Paul A. Ballas is a trained psychiatrist with board certifications in child, adolescent, and adult psychiatry.
Ballas completed an internship, psychiatry residency and child and adolescent psychiatry fellowship at Thomas Jefferson University Hospital in Philadelphia. Ballas has treated over 1,000 children and adults with psychiatric and mental illness related to sexual abuse.
Specifically, USOPC requested that the Court exclude Ballas from testifying about the following:
(1) his causation opinions, namely, that “Farrell experienced the onset of severe psychiatric symptoms following the sexual abuse that occurred from 1997-1998” and that “Farrell developed a depressive disorder in addition to PTSD as a consequence of the serious trauma inflicted upon her by Andy Gable [sic] from 1997-1998.”
(2) his vocational functioning opinions, namely, that “the sexual and emotional abuse that occurred from 1997-1998 had an impact on Plaintiff’s future ability to function in her employment capacity.”
(3) his opinions regarding Plaintiff’s past and future medical costs attributable to the alleged abuse.
A. Defendant USOPC’s motion to exclude parts of Paul Ballas’ expert testimony
(a) Causation opinion
Ballas opined that Plaintiff developed psychiatric symptoms because of Defendant Gabel’s alleged abuse. USOPC took issue with this causation opinion, arguing that, “given the lack of any evidence or data suggesting that Plaintiff’s psychiatric symptoms developed immediately after her alleged abuse by Defendant Gabel, Ballas’ opinion that there was a clear demarcation of symptoms before and after the alleged abuse — and thus that the alleged abuse caused Farrell’s psychiatric symptoms and conditions — is speculative and should be excluded.”
However, the Court found that, even if this was a flaw in Ballas’ reasoning or methodology, this flaw is not “‘large enough that Ballas lacks good grounds for his conclusions.’”
Moreover, the Court concluded that Ballas’ opinion that, because of a traumatic experience as a child, Plaintiff later in life developed psychiatric conditions that did not exist prior to the traumatic experience is not the type of testimony which “is speculative or conjectural.”
USOPC also criticized the reliability of Ballas’ report by arguing that his “failure to consider and rule out other likely causes of Plaintiff’s alleged injuries constitutes an independent and additional reason to exclude his causation opinions.”
However, Ballas did acknowledge other traumas in his report. Ballas explained that, although other traumatic incidents have occurred, the abuse by Defendant Gabel was the first, making it the “index event” in causing Plaintiff’s trauma.
Ballas also reviewed Farrell’s medical records and medical history, along with the medical records of her treating psychiatrist, Dr. Eleni Maloutas. USOPC took issue with the Ballas’ report to the extent that Ballas relied on Maloutas’ conclusions. However, an expert’s reliance on a Plaintiff’s treatment record will not bar this expert’s testimony from being admitted.
The Court concluded that the methodology that Ballas used to reach his conclusions about the cause of Plaintiff’s psychological injuries is reasonable.
Ballas opined that Plaintiff’s “ongoing symptoms are clearly affecting her relationships and vocational functioning.”
Ballas opined that, “in his opinion, the sexual and emotional abuse that occurred from 1997-1998 had an impact on Plaintiff’s future ability to function in her employment capacity, since her PTSD, anxiety, and depressive symptoms were directly related to this abuse.”
Ballas, a trained psychiatrist, opined that the severe psychological symptoms Plaintiff is experiencing impacted her ability to function in her career. This application of Ballas’ training and experience does not contain a “flaw in his reasoning or methodology that is large enough that he lacks good ground for his conclusions.”
Accordingly, the Court found that Ballas’ opinion regarding Plaintiff’s vocational capacity is reliable.
(c) Ballas’ medical cost opinions
USOPC contended that, although Ballas purportedly calculated Plaintiff’s medical costs stemming from the alleged abuse, his methods for calculating those costs are unreliable and should not be considered.
With regard to the issue of past medical costs, Ballas estimates that “the financial cost of Plaintiff’s therapy and psychiatric visits since 2014 was approximately $40,000.”
In this case, Ballas’ estimate of past medical expenses is not reliable. Plaintiff’s past expenses stemming from the alleged abuse can be calculated with specificity based on her actual treatment records. There is no need for an expert to estimate what those costs were. Furthermore, Ballas’ estimate of past treatment costs is unreliable because it includes costs that Plaintiff never incurred because, during certain periods, she received no treatment and, thus did not incur any costs. Therefore, the Court found that Ballas may not testify about Plaintiff’s past medical costs because any such testimony would be neither reliable nor necessary.
With regard to future medical expenses, Ballas opined that Plaintiff will require mental health treatment “for at least an additional 40 years.” In this case, Ballas has not provided any information that suggests that he is qualified to testify about an individual’s life expectancy or that he has any actuarial experience. Therefore, the Court found that Ballas lacked the base level qualifications that Rule 702 requires to opine on Plaintiff’s life expectancy.
Furthermore, the Court found that Ballas is qualified to testify regarding his opinion on Plaintiff’s yearly medical costs. The Court also found that Ballas’ opinion regarding Plaintiff’s future medical costs is relevant because it will assist the trier of fact in calculating any damages to which it concludes Plaintiff is entitled.
B. Defendant USOPC’s motion to strike Ballas’ May 30, 2024 Declaration
USOPC contended that the declaration of Ballas that Plaintiff filed in support of her opposition to its motion to exclude Ballas’ testimony contains new opinions asserted after the close of discovery and contains improper legal arguments.
The Court has reviewed the information contained in Ballas’ May 30, 2024 declaration and finds that it is related to the initial Ballas report. For example, in this declaration, Ballas reaffirms much of what he has already stated or is responding to USOPC’s criticisms of his report.
Furthermore, the Court found that USOPC’s argument that Ballas is making improper legal arguments in his May 30, 2024 declaration is without merit. In all the paragraphs that USOPC cited as alleging impermissible legal arguments, no such arguments are made. Rather, Ballas is permissibly responding to the criticisms of his expert report that USOPC made in its motion to exclude those reports.
Held
The Court granted in part and denied in part Defendant USOPC’s motion to exclude the expert testimony of Dr. Paul Ballas.
Key Takeaway
When determining whether to admit expert testimony, a court must consider the qualifications of an expert to testify as to a particular matter. Ballas has not provided any information that suggests that he is qualified to testify about an individual’s life expectancy.
Please refer to the blog previously published about this case:
