This matter arises out of the collapse of a retaining wall at the home of Plaintiffs Pranav Mishra and Mamta Mishra. The Mishras sued Defendant State Farm Fire and Casualty Company for breach of contract and bad faith failure to pay their resulting insurance claim. State Farm filed a motion to exclude the testimony of Scott Skipper because (1) it is not based on reliable methodology, (2) it does not assist the trier of fact, and (2) the Mishras did not comply with the obligations of the Scheduling Order or Federal Rule of Civil Procedure 26(a)(2)(B).
On February 3, 2023, Skipper wrote a letter to Pranav offering several theories as to the retaining wall’s collapse. Skipper agreed there was inadequate drainage behind the retaining wall and the wall was structurally unsound.
Skipper issued a report on June 21, 2024, which State Farm received just one day before Skipper’s deposition. His report noted that the February 2023 letter “was not intended to be a technical analysis. It was intended to convey an alternative theory only.” Skipper’s June 2024 report stated that on the night the wall collapsed, 1.55 inches of rain fell and he was “of the opinion that with the shallow footing of the failed wall and its position on the side of the sloping terrain, groundwater would likely migrate beneath the wall, and we would be doubtful impoundment of water behind the wall would be a major issue.”
Skipper concluded that the retaining wall, even with the deficiencies noted, has held fast for more than 17 years.
Civil Engineering Expert Witness
Scott Skipper is a registered engineer and land surveyor. He obtained his Bachelor of Science in civil engineering in 1986 from the University of Alabama.
State Farm challenged the reliability of the methodology underlying Skipper’s expert report. It argued (1) Skipper initially visited the Property to determine how to repair it, not to determine the cause of the collapse, and (2) Skipper did not investigate the cause of the failure but instead relied on his familiarity with the Property based on his visits in early 2023 to determine how to repair the retaining wall.
The record before the Court did not reflect that Skipper’s opinion was reached through a methodology that satisfied the Daubert factors. Instead, it appeared that Skipper’s testimony was based primarily on his general experience with the geography surrounding the Mishras’ residence. The Court cannot discern what, if any, scientific methodology Skipper applied to either his initial letter or June 2024 report. Notably, Skipper testified that his February 3, 2023 letter was not intended to be a technical analysis but instead was meant to convey a “possibly plausible theory.” This is the type of “subjective belief [and] unsupported speculation” prohibited by Daubert.
The June 21, 2024 report is similarly deficient because he apparently arrived at his conclusions based on “just living on the river my whole life.”
Because Skipper’s testimony is due to be excluded on reliability grounds, the Court did not reach State Farm’s arguments regarding Skipper’s alleged lack of opinions or the Mishras’ alleged failure to comply with the Scheduling Order and Rule 26(a)(2)(B).
Held
The Court granted State Farm’s motion to exclude the expert testimony of Scott Skipper.
Key Takeaway:
Unlike a lay witness, an expert may offer an opinion, including one that is not based on firsthand knowledge or observation. This relaxation of the usual requirement of firsthand knowledge “is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.”
The Mishras have not shown by a preponderance of the evidence that Skipper’s causation opinion is reliable because it is testable, peer reviewed, or generally accepted. Nor does the record reflect the known error rate for Skipper’s opinion.
Case Details:
Case Caption:
Mishra Et Al V. State Farm Fire And Casualty Company
Docket Number:
4:23cv1537
Court Name:
United States District Court for the Northern District of Alabama, Middle Division
Defendants owned and managed an apartment complex called The Trails at Flat Rock in Columbus, Georgia. In October of 2022, a fire occurred in Building A of the apartment complex. Kevin Ford, who was staying in unit A-24 with tenant Anthony Thorpe, died in the fire. Plaintiff, the administrator of Ford’s estate, asserted negligence claims against Defendants based on Ford’s death, alleging that Defendants’ negligence caused Ford’s death and pre-death pain and suffering. Plaintiff intended to support these claims by proffering evidence of negligent inspection, testing, repair, and maintenance of the apartment’s sprinkler system—including expert testimony of Robert Bell, Frank Hagan, and Gregory Gorbett. Defendants argued that the testimony of these three experts should be excluded.
Fire Investigation Expert Witnesses
Robert Keith Bell is a certified fire investigator with more than thirty years of experience performing private fire investigations and working for the Georgia State Fire Marshal’s Office.
Gregory E. Gorbett holds a PhD in fire protection engineering and works as a professor in the Fire Protection and Safety Engineering Technology Program at Eastern Kentucky University.
Bell opined that the fire originated in the kitchen of apartment A-23. Defendants contended that Bell’s testimony did not apply the scientific method outlined in NFPA 921. Those steps are: (1) recognizing the need; (2) defining the problem; (3) collecting the data; (4) analyzing the data; (5) developing hypotheses; (6) testing the hypotheses; and (7) selecting the hypotheses. The Court found Defendants’ arguments unpersuasive.
First, Defendants contended that Bell’s investigation was insufficient because he ruled out the living room and balcony of A-23 as the fire’s origin without collecting evidence and data from those areas. Defendants acknowledged that it was impossible for Bell to collect such evidence and data because there was nothing left of A-23’s living room and balcony due to the fire damage. Bell examined burn patterns, Matterport scans, and photographs of the fire to rule out the living room and balcony as possible areas of origin.
Next, Defendants argued that Bell’s investigation was incomplete because he did not interview A-23’s resident. During his investigation, Bell reviewed investigation reports that included statements A-23’s resident made to investigators. The Court is not persuaded that Bell’s failure to follow up with A-23’s resident under these circumstances renders his opinions unreliable.
Finally, Defendants asserted that Bell’s investigation was incomplete because he did not conduct testing on the contents of a visibly burned pot even though he concluded that the fire started on the range top of A-23 due to careless use of cooking materials. Bell testified that based on the burn damage and burn patterns on the pot, he knew something in the pot itself must have burned. Bell further explained that in reaching his opinion, he considered evidence from the range top and examined burn patterns in the kitchen.
Frank Hagan and Gregory Gorbett
Hagan and Gorbett concluded that a sprinkler in the kitchen of A-23 failed to extinguish the fire on the stove top in the kitchen, which allowed the fire to spread to the rest of the building. Defendants argued that the opinion testimony of Hagan and Gorbett should be excluded because they relied on some of Bell’s opinions in reaching their own. Defendants contended that if Bell’s testimony is excluded, then the testimony of Hagan and Gorbett must be excluded too.
As discussed above, the Court declined to exclude Bell’s testimony.
Held
The Court denied the Defendants’ motions to exclude the testimony of Robert Bell, Frank Hagan, and Gregory Gorbett.
Key Takeaway:
Federal Rule of Evidence 702 states that an expert’s testimony must be based on sufficient facts or data. Under Rule 702, an expert may rely on the reliable opinions of other experts. Therefore, Hagan and Gorbett may rely on Bell’s opinions in forming their own conclusions.
Plaintiffs alleged that Defendants former Washington County Sheriff’s Office (“WCSO”) Deputy Defendant Jeffrey Aaron Edwards (“Edwards” or “Deputy Edwards”) and former WCSO Deputy Brian Mizelle (“Mizelle” or “Deputy Mizelle”) used excessive force against them during a March 2, 2022, attempt to transport Plaintiff Gary Thomas (“Thomas”) to the Washington County Courthouse. The factual circumstances in this case primarily surround the transportation of Plaintiff Thomas from a patrol vehicle to the Washington County Courthouse and Plaintiff Mary Moore’s aggressively lunging at Edwards during that attempt, which caused her to be properly struck by Edwards.
Thomas was placed under arrest by Deputy Edwards and was being transported inside the courthouse with the assistance of Deputy Mizelle when Moore interfered with Thomas’ arrest. Thomas became injured while he resisted arrest requiring Edwards and Mizelle to use force to maintain safety and control of this incident.
Defendants Edwards, Barnes, and Mizelle offered the testimony of Albert Vangura to opine on the biomechanics of the interactions between Edwards and Plaintiffs, the cause of Plaintiffs’ injuries, and the position of Edwards’s hand when he struck Moore.
Plaintiffs filed a motion in limine to exclude the testimony of Vangura.
Biomechanics Expert Witness
Albert Vangura is an engineering professional with nearly forty years of experience in biomechanical and human factors evaluations, product design and development, manufacturing, and testing.
He holds a Master of Science Degree in Bioengineering from the University of Pittsburgh, a Bachelor of Science Degree in Exercise and Sports Science, and an Associate of Science Degree in Mechanical Engineering Technology, both from The Pennsylvania State University.
In their motion in limine to exclude Vangura’s opinions and testimony, the Plaintiffs argued that Vangura’s report and opinion lacked any reliable or recognized methodology; therefore, the Court should exclude them.
The Court found that Vangura’s testimony lacked reliability. Vangura did not identify methods or principles underlying his ”bioengineering and biomechanical engineering investigation and analyses.” In fact, when asked about his methodology, Vangura responded that he used the ASTM E620-18. The ASTM E620-18 is not a methodology. It is three pages of standards about forensic or technical reports an expert can use in any field. In other words, it tells the expert how to write their report, not the methodology the expert should follow.
Moreover, Vangura used one of the cited sources in his report, and he misapplied it. Specifically, Vangura cited Accidental Injury, a book that “looks at the applied biomechanics of accidental injuries.” Vangura used findings from Accidental Injury to analyze Moore’s facial injuries. It is undisputed that Defendant Edwards struck Moore in the face intentionally; thus, “observations from accidental injuries” are irrelevant and inapplicable. This fact undermined the reliability of Vangura’s report.
Biomechanics experts frequently address causation issues, but experts addressing causation must demonstrate how and why they eliminated other causes when reaching their conclusions. Vangura never mentions if or how he eliminated other causes when he opines on proximate cause.
Relevance
Plaintiffs argued that Vangura’s testimony consisted of common sense observations. Vangura spent most of his report narrating and characterizing the video evidence, which requires no specialized knowledge and is within the function of the jury. Beyond the video narration, Vangura’s discussion and findings included opinions and testimony about the biomechanics of walking. Vangura admitted that he made findings by simply ”watching this video,” a factfinding exercise that is well within the jury’s function.
The Court found that these findings “risk ‘supplanting a jury’s independent exercise of common sense’ and its role of determining the facts.”
Qualification
Plaintiffs argue that Vangura is not qualified to opine about law enforcement tactics and practices or the parties’ injuries and medical conditions. Vangura has an associate’s degree in mechanical engineering technology, a bachelor’s in exercise and sports science, and a master’s in bioengineering but no medical degree. Moreover, Vangura is not qualified to speak on proximate cause because his testimony rests on opinions about law enforcement tactics and practices.
The Court found that Vangura’s testimony about the proximate cause of injuries in products liability cases does not qualify him to testify to proximate cause in an excessive force case, especially when his testimony goes beyond the purview of biomechanics and leads to hypotheticals about the necessity of arrests and an officer’s use of force.
The Court also found that Vangura’s report consisted of improper opinions on the parties’ injuries. The parties agreed that biomechanical experts cannot make independent medical diagnoses or offer opinions about the specific causes of an injury.
Lastly, the Court found that Vangura is not qualified to opine about whether Thomas was conscious after falling down the courthouse stairs despite consulting Thomas’s medical records. Vangura has not demonstrated that he has any knowledge, education, or training to (1) determine whether a person is conscious based on video evidence or (2) assess the relationship between loss of consciousness and a traumatic brain injury. Thus, Vangura is not qualified to opine on this topic.
Held
The Court granted the Plaintiffs’ motion in limine to exclude the testimony of Albert Vangura.
Key Takeaway:
Expert testimony may be admissible even though it does not rely on anything like a scientific method. But the expert must explain how his experience leads to the conclusion reached. why his experience is a sufficient basis for the opinion. and how his experience is reliably applied to the facts. Vangura failed to demonstrate how his experience as a biomechanics expert specializing in products liability and vehicle crashes led him to his conclusions, why that experience suffices to support his findings in an excessive force case, or how he applied that experience to the video evidence here.
Case Details:
Case Caption:
Moore Et Al V. Barnes Et Al
Docket Number:
2:23cv56
Court Name:
United States District Court, North Carolina Eastern
Plaintiffs alleged that Defendants engaged in a scheme to defraud and made numerous materially false and misleading statements and omissions to investors regarding Acadia’s business and operations.
Defendants filed a motion to exclude the testimony and opinions of Plaintiff’s expert witness W. Scott Dalrymple. Specifically, Dalrymple was retained to analyze share price inflation and damages associated with Plaintiffs’ allegations.
Dalrymple purports to calculate the inflation in the stock price caused by these alleged misrepresentations by measuring the abnormal stock price decline following “curative events” that allegedly disclosed the truth behind the misrepresentations.
Economics Expert Witness
W. Scott Dalrymple is a Partner at BVA Group LLC (“BVA Group”). He is an economist and a CFA charter holder with extensive experience in economic, financial, and statistical analyses. During his career, he has worked on issues relating to the analysis of economic damages involving securities litigation, business valuation, structured finance, financial derivatives, antitrust, intellectual property, and breach of contract.
Dalrymple holds a Master of Science in Economics from the London School of Economics and Political Science and a Bachelor of Business Administration in Finance and Business Honors from the University of Texas at Austin.
To begin with, Defendants challenged the admissibility of Dalrymple’s opinions under Rule 702. As grounds, Defendants contended that Dalrymple did not offer opinions of loss causation which rendered his opinions on damages irrelevant and unhelpful; that his opinions are unreliable because he failed to disaggregate the impact of the corrective disclosure from any other non-fraudulent information; and that his opinions are results oriented (i.e., not reliable) because he measured inflation using a four-day window for one of the alleged corrective disclosures.
Plaintiffs, however, noted that Dalrymple conducted multiple event studies in which he considered and disaggregated confounding information and that the only assumption in Dalrymple’s analysis is that the jury will find the alleged misstatements were, in fact, actionably false and misleading.
For the most part, Defendants’ arguments challenged the factual bases for Dalrymple’s opinions, they go to the weight, rather than the admissibility, of his testimony.
The Court found that Plaintiffs have shown by a preponderance of the evidence that Dalrymple is qualified, his opinions have a reliable basis in the knowledge and experience of his discipline, and that he will testify to knowledge that will assist the trier of fact in understanding the evidence and deciding why Acadia’s stock price fell when it did and the issue of damages.
Held
The Court denied the Defendants’ motion to exclude the testimony of Plaintiff’s expert witness W. Scott Dalrymple.
Key Takeaway:
To determine reliability under Rule 702, the Court must determine not whether the expert’s opinion is correct, but rather whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.
The facts of this case do not show that Dalrymple’s opinions are “so fundamentally unsupported that they can offer no assistance to the trier of fact.”
Case Details:
Case Caption:
St. Clair County Employees’ Retirement System V. Acadia Healthcare Company, Inc. Et Al
Docket Number:
3:18cv988
Court Name:
United States District Court for the Middle District of Tennessee, Nashville Division
Robert I. Toussie alleged that he and his brother Michael entered into an agreement (the “Participation Agreement”) with Coastal Development, LLC (“Coastal”), an entity run by Richard Fields in 2000 to finance the development of casinos in Florida. However, Coastal/Fields promptly, and repeatedly, breached the terms of the Participation Agreement by not paying the Toussies their share of distributions from the casinos. In the early 2000s, the Toussies hired Williams & Connelly, LLP, Joseph G. Petrosinelli, David A. Forkner, Jonathan E. Pahl (“W&C Defendants”) to sue Coastal and Fields and recoup their participation interest.
In the early 2000s, the Toussies sued Coastal/Fields twice to recoup the missed payments, and, represented by W&C, successfully recovered more than $37 million—over ten times the Toussies’ initial investment.
In 2015, Coastal/Fields again stopped making payments owed to the Toussies, and W&C again sued Coastal/Fields on their behalf (the “2015 Coastal/Fields Litigation”), this time winning the Toussies a roughly $7.5 million arbitral award (the “Award”).
The Toussies confronted a choice of either accepting the proposed settlement or converting the $7.5 million arbitral award to a judgment and pursuing its enforcement. Defendants advised the Toussies on how to proceed with this choice, and the Toussies chose to pursue conversion and enforcement of the arbitral award rather than settle the Coastal Litigation.
Defendants’ advice and counsel in that regard is of what Plaintiff now complains as legal malpractice.
To prove his malpractice claim, Plaintiff proffered Professor Ronald J. Colombo as an expert “in the field of legal ethics and the practice of law.” However, Defendants filed motions to exclude Colombo from testifying at trial.
Law And Legal Expert Witness
Ronald J. Colombo developed his expertise through his legal education at New York University Law School, his practical experience as an associate at Sullivan & Cromwell and then as in-house counsel at Morgan Stanley & Co. Inc., and through his scholarly work as a law professor at the Maurice A. Deane School of Law at Hofstra University (“Hofstra Law”).
Colombo has taught several courses at Hofstra Law, served as a faculty advisor to student organizations and academic programs for students desiring to concentrate in business law, and published at least fifteen law review articles, two books, and contributed to at least two other books.
He has as a member of the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York in the past. His most recent law review article is Duties Regarding Duties.
W&C Defendants, Colombo argued, fell short of the rules of the New York Rules of Professional Conduct in three ways: (1) Defendants did not conduct themselves with the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession in undertaking their representation of Plaintiff (2) failing to properly advise Plaintiff on the consequences of pursuing a strategy of judgment enforcement against Fields and Coastal rather than accepting a settlement offer and (3) terminating W&C’s representation without proper notice.
Defendants argued that Colombo is not qualified because he has never held himself out as an expert in the practice of law or taught a legal ethics class, did not have a specialized education in legal ethics, and failed to demonstrate mastery of New York’s ethical rules in his own report. Defendants then argued that Colombo’s opinions are unreliable because they are unmoored from the underlying record, employ speculation, and misinterpret legal ethics opinions. Defendants lastly argued that Colombo’s opinions on W&C Defendants “engagement and withdrawal” are irrelevant because Plaintiff never alleged such harms in any of his complaints nor that such harms caused any damages.
I.Colombo Is Not A Legal Ethics Expert
Defendants argued that Colombo (1) lacks relevant experience, (2) lacks relevant education or training, (3) has too limited ethics-related experience, and (4) lacks relevant knowledge of the ethical rules themselves, and therefore is not qualified to testify as an expert in legal ethics. The Court agreed.
Colombo did not meet the requirements to be qualified as a legal ethics expert. His education, training, and practical experience all failed to distinguish him from other lawyers who only possess a general knowledge of legal ethics. First, Colombo is not a legal ethics expert by means of education or training. One professional responsibility course, one training for law firm associates, one training for FINRA arbitrators, and a three-year members on a local bar ethics committee constitute Colombo’s education and training in legal ethics. This is insufficient to qualify one as an expert. Plaintiff failed to show that Colombo has developed, much less maintained, an expertise in legal ethics. Colombo also cannot develop expertise through reading the case materials and treatises on legal ethics and professional responsibility.
Second, Colombo’s professional experience is insufficient. As an associate or in house counsel he did not represent a single client in any case, much less a malpractice action, and never advised a client or peer on issues of legal ethics and professional responsibility. As a professor, Colombo has never taught a course in legal ethics, and neither of his published books or book chapters addresses legal ethics.
His recent law article, Duties Regarding Duties, does not qualify him either. In fact, it furthers the argument that Colombo is only familiar with the world of corporate and securities law because the article instructs its readers on how to best advise members of institutional corporate boards not attorneys facing ethical legal questions or malpractice actions.
II. Colombo’s Opinions Are Irrelevant and Unreliable
A. Colombo’s Opinions Regarding Defendants Engagement and Withdrawal are Irrelevant
Defendants argued that Colombo’s opinions regarding their engagement and withdrawal as the Toussies’ counsel are irrelevant as “neither the second amended complaint nor any of the Toussie’s prior two complaints even mentioned purportedly improper circumstances of W&C’s engagement or withdrawal, much less challenged them as malpractice.”
Plaintiff brought this action complaining of receiving harmful legal advice. Neither W&C Defendants’ retention or withdrawal caused them to provide Plaintiff with the complained of advice. Plaintiff has not shown that the conditions surrounding his retention of W&C Defendants caused them to not more vehemently advise him against pursuing judgment enforcement. Plaintiff, instead, alleged that W&C Defendants did not properly calculate “the value or collectability of the Judgment.” W&C Defendants’ withdrawal could not have caused the alleged harm, because the alleged harm was already committed and completed by the time W&C Defendants withdrew their representation of Plaintiff. Colombo therefore failed to show how the substance of W&C Defendants’ advice was caused by the conditions surrounding their retention and withdrawal.
B. Colombo’s Opinion Regarding Defendants’ Legal Advice Is Unreliable
The Court agreed with W&C Defendants and found Colombo’s report to be unreliable for three reasons.
First, Colombo did not provide a reliable methodology. Colombo focuses on the standard of the “ordinary and reasonable skill of a member of the legal profession,” but this is only the standard for determining if an attorney’s conduct was negligent. Indeed, the violation of an ethical rule alone does not constitute a breach of fiduciary duty, much less malpractice.
Second, Colombo made several speculative leaps throughout his report. The Court also found Colombo’s musings that Plaintiff was an “atypical” client for W&C Defendants to be speculative.
Third, Colombo’s report conflicts with Plaintiff’s own admission. In his report, Colombo asserted that W&C Defendants failed to emphatically advise Plaintiff to settle rather than pursue judgment enforcement. In his report, however, Colombo quoted an email written by Plaintiff stating that Defendant Petrosinelli’s “response to me is, and always had been, settle.”
In sum, the Court found that Colombo is not qualified as an expert on legal ethics and the practice of law, and that his specific opinions in this case are irrelevant, unreliable, and therefore inadmissible.
Held
The Court granted the Defendants’ motions to exclude the testimony of Plaintiff’s proffered legal ethics expert, Ronald J. Colombo.
Key Takeaway:
Colombo’s factual errors in combination with his unreliable standard of care and use of speculation together warrant his proferred expert testimony to be stricken and deemed inadmissible in its entirety. Colombo’s report risks misleading a jury to believe that the violation of an ethical rule alone can constitute malpractice or a breach of fiduciary duty.
This case arises from a contract between The Bama Companies, Inc., a manufacturer of baked goods, and Stahlbush Island Farms, Inc., a farmer and food processor, for the purchase of approximately 130,710 pounds of berries for a mixed berry and lemon cream pie Bama would supply for McDonald’s restaurants.
Bama claimed that it was forced to cancel the McDonald’s promotion because Bama identified a handful of physical contaminants in some finished pies.
Plaintiff’s expert, Steve Rutherford, a licensed CPA was retained to “review and verify as to the consistency and comprehensiveness of how the staff (for the Plaintiff) accounted for the standard costing and pricing comparison,” and to state whether overhead costs should be included in damages.
Rutherford opined that Bama incurred damages of Nine Hundred Eighty-Nine Thousand and Nine Hundred and Seventy-Seven Dollars ($989,977.00) due to actions of Stahlbush Island Farms, Inc.
Defendant filed a motion to exclude the opinions of Rutherford. Specifically, Defendant argued that Rutherford’s testimony should be excluded because (1) Plaintiff has failed to demonstrate that Rutherford is qualified to opine regarding the valuation of damages in a civil case, and (2) Rutherford’s opinions “consisted largely of bare conclusions that vouch for Plaintiff’s expertise as a supplier.”
Accounting Expert Witness
Steve M. Rutherford is a Certified Public Accountant and has served as the sole shareholder and president of his own accounting firm for nearly thirty-three (33) years.
Additionally, he has provided expert advice and testimony in multiple and a wide range of personal and business legal matters for approximately thirty-six (36) years and has been appointed as a bankruptcy trustee on eight (8) occasions.
In Rutherford’s report, he initially concluded that the damages set forth by Plaintiff are “a reasonable estimate of the damages” and further noted that he has “no reasons to doubt the accuracy nor the comprehensiveness of methods and calculations” set forth by Plaintiff. Moreover, he observed that Plaintiff “has been doing business with McDonald’s for approximately three decades” and that “it seems to reason that from a discerning eye, someone in the business profession would have to think [they] know what they are doing (much experience) when it comes to pricing out the costs associated with making pies for McDonald’s.”
Building on this reasoning, Rutherford further asserted that “such a long-term mutually beneficial relationship would have been terminated, had [Plaintiff] been devoid in their costing amounts.” However, according to the Court, rather than applying methodologies and performing calculations himself, Rutherford simply assumed that the methodologies applied and calculations performed by Plaintiff must be right due to Plaintiff’s previous experience and existing business relationship with McDonald’s.
Consequently, for similar reasons, the Court found that Rutherford’s opinions regarding overhead costs are also not reliable or relevant. Once again, rather than applying methodologies and performing calculations, Rutherford opined that calculations prepared by Plaintiff are “very detailed, concise and organized” and further emphasized that due to Plaintiff’s previous experience and existing business relationship with McDonald’s, “any deficiencies or irregularities would have been exposed and corrected at the time the job in question had come to fruition.” Ultimately, while he seemed to offer general principles regarding overhead costs, such as rent, Rutherford’s opinions did not apply the specific facts of the case to a particular methodology and, therefore, did not provide sufficient support for the opinions he offered.
Held
The Court granted the Defendant’s Daubert motion to exclude the opinions of Bama Damages expert Steve Rutherford.
Key Takeaway:
Rutherford’s opinions are plainly not based in sound methodology, nor do his opinions demonstrate a connection of the opinions to the facts of the case. Rutherford’s opinions consisted mainly of assumptions with no evidentiary support. While an expert may apply assumptions, assumptions must have some reasonable evidentiary foundation.
Further, although Rutherford is entitled to some element of professional judgment in forming his opinion, he must still explain how he reached his opinion based in recognized methodology and by application of the facts. Because Rutherford’s opinions failed to do so, the Court agreed with Defendant and found that Rutherford’s opinions are not reliable and relevant.
Case Details:
Case Caption:
Bama Companies, Inc., The V. Stahlbush Island Farms, Inc.
Jennmar manufactures and assembles products for use in agricultural, construction, energy, and mining industries, with locations across the United States. The Plaintiffs are current and former hourly employees of Jennmar. The Plaintiffs alleged that Jennmar failed to pay employees wages and overtime in violation of federal and state law. Specifically, the Plaintiffs alleged that Jennmar’s fifteen-minute time rounding policy, combined with mandatory safety and housekeeping pre-shift work, resulted in hourly employees performing approximately twenty minutes of unpaid compensable work per shift.
The Plaintiffs sought to exclude the testimony of Richard A. Goldberg, an expert witness for Jennmar.
Wage and Hour Expert Witness
Richard A. Goldberg is a partner at Resolution Economics LLC, a firm that conducts economic and statistical analyses related to litigation and consulting matters. He has nearly 19 years of experience in labor and employment-related litigation support and consulting. His engagements involve state and federal wage-and-hour litigation, class action employment discrimination claims, and single-plaintiff matters. In addition, Goldberg partners with companies and their counsel to conduct proactive evaluations of pay equity and compliance with wage-and-hour laws.
Goldberg holds a bachelor’s degree in political science from the University of California, Los Angeles, and a master’s degree in political science with an emphasis in quantitative research methodology from Columbia University.
The Plaintiffs contended that the methodology employed by Goldberg was not reliable. Specifically, the Plaintiffs argued that Goldberg did not address (1) how unpaid hours worked should be calculated; (2) how unpaid wages should not be calculated; and (3) the effects of Jennmar’s rounding practices. Further, the Plaintiffs contended that Goldberg’s testimony would not assist the factfinder to understand the evidence, is irrelevant, and is not rooted in personal knowledge.
However, Goldberg based his conclusions on timekeeping and payroll data provided by Jennmar. Goldberg relied on this data to calculate a series of summary statistics for each employee (including averages, medians, and the percentages of shifts with rounding above or below certain thresholds). Given that both sides have conceded to the accuracy of the timekeeping record, the Court found that Goldberg based his conclusions upon reliable data.
Goldberg also attested to using the same methodology as Jennmar’s expert to determine the number of allegedly rounded minutes for each shift.
Held
The Court denied the Plaintiffs’ motion to exclude the testimony of Richard Goldberg.
Key Takeaway:
Goldberg’s work includes evaluating large data sets, such as timeclock entries and payroll information.
The task for the district court in deciding whether an expert’s opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.
Given that both sides have conceded to the accuracy of the timekeeping record, the Court found that Goldberg based his conclusions upon reliable data.
Case Details:
Case Caption:
Stacy Et Al V. Jennmar Corporation Of Virginia, Inc. Et Al
This case arises from a fatal automobile accident that occurred on September 22, 2017. Blake Haddox was traveling southbound on a motorcycle as Defendant Nicholas Roshon Moore drove a semi-truck in a northbound lane and turned left across traffic. The two collided, and Haddox died as a result.
Plaintiffs planned to present the testimony and opinions of Daniel R. Phillips as an expert in accident reconstruction. Defendants argued that Phillips, an accident reconstructionist, is not qualified to provide the expert testimony he proffers, that his testimony will not help the jury, and that his opinions are unreliable. As a result, Defendants filed a motion to prohibit his testimony.
Accident Reconstruction Expert Witness
Daniel Ray Phillips earned a Bachelor of Science degree in mathematics with a minor in physics from the University of North Texas, and a Master of Science degree in mathematics from Texas A&M University. He is fully accredited by the Accreditation Commission of Traffic Accident Reconstruction and has worked as an accident reconstructionist for over 20 years. Phillips also has received specialized training in accident reconstruction.
A. Phillips is qualified to testify as an accident reconstructionist, but unqualified to testify about “human factors” or make credibility determinations
Defendants argued that Phillips is unqualified to testify about “human factors,” unqualified to provide an “opinion as to whether Moore had a protected green arrow when he proceeded to make his turn,” and unqualified to make credibility determinations.
The Court found Phillips qualified by knowledge, skill, experience, training, and education to render opinions about accident reconstruction. However, the opinions proffered by Phillips extend beyond the realm of an accident reconstructionist. The Court agreed with Defendants that Phillips is unqualified to testify about “human factors.” His curriculum vitae does not reflect any specific training in this area. And during his deposition, Phillips acknowledged that his training in “human factors” stems from “some coursework at Northwestern University,” what has been “provided by Crash Safety Solutions,” and that which is “intrinsic … within reconstruction.”
B. Phillips’s proffered opinions are neither relevant nor reliable
Defendants contended that Phillips’ testimony will not aid the jury. One area of his proffered testimony concerns whether an eyewitness, Bruce Gourd, could view the traffic light at the time of the accident.
The Court is not persuaded that Phillips’ testimony about whether Gourd could view the traffic light at the time of the incident is helpful to the jury. Gourd is listed as one of Plaintiffs’ witnesses. The Court did not find it helpful for an expert to explain what Gourd observed when Gourd can tell the jury himself. Moreover, many of Phillips’ opinions are statements of fact that are adequately covered by fact witnesses who were at the scene the night of the accident.
Phillips’ proposed opinions impermissibly invaded the province of the jury. His opinions included, for example: “Moore’s decision to turn across the path of approaching traffic was causal to the crash”; “the independent witness statements are consistent with one another and indicate that Haddox had a green light upon approach”; and “Moore’s testimony concerning the light sequence is not consistent with either of the independent witnesses.”
Throughout his report, Phillips relied on unreliable data to reach his opinions. For example, his report stated, “an exact impact speed of the motorcycle cannot be determined with the available evidence” but the next sentence provides, “[a] subjective analysis of the damage using my experience does not suggest impact speeds over 30 mph.” Phillips failed to explain what his subjective analysis takes into consideration. Further, he acknowledged in his deposition that the exact speed of the motorcycle cannot be determined from the evidence.
For all the reasons set out above, the Court concluded that Phillips’ opinions will not assist the jury and are therefore not relevant.
Held
The Court granted the Defendants’ motion to strike the testimony of Plaintiffs’ expert Daniel Phillips.
Key Takeaway:
The Court concluded that Phillips’ opinions are not relevant and are unreliable because no special skill, knowledge, or expertise is needed to understand and draw conclusions from facts about common experiences.
The Court is confident that the jury will be fully equipped to form its own conclusions about the weight of Gourd’s testimony, other fact witnesses’ testimony, and the ultimate issues in this case. Further, the facts here and the applicable traffic rules are easily understood and within the common experience of jurors in Oklahoma, where private motor vehicle travel is the primary mode of transportation.
Plaintiffs Hadek Protective Systems B.V. and Hadek Protective Systems, Inc. (collectively “Hadek”) asserted in this action that Defendant Ergon Asphalt & Emulsions, Inc. (“Ergon”) breached a Master Agreement between the parties regarding the sale and distribution of PENNGUARD® Block Lining System Products made by Ergon (the “Master Agreement”).
By its choice, Hadek’s sales were limited to PENNGUARD® Block 55 with a 1.5 or 2.0-inch thickness. The parties disputed the nature and timing of the termination of the Master Agreement.Thereafter, Hadek sued Ergon for breach of contract and tortious interference. Hadek claimed that Ergon’s conduct caused it to lose certain sales opportunities of PENNGUARD® products.
In connection with its damages claims, Hadek retained Melissa Bizyak as an expert witness. Her report, and the opinions expressed therein, are at issue here. In short, Ergon asserted that she must be excluded as an expert because she is unqualified to render the opinions she has expressed, that her opinions are unreliable and that her opinions do not fit the facts of this case.
Accounting Expert Witness
Melissa Bizyak, CPA, ABV, CFF, CVA who joined Grossman Yanak & Ford, LLP in 1997, has practiced in public accounting for nearly 20 years. She has significant experience in providing services for privately held concerns and their owners.
Bizyak’s business valuation experience is diverse, with clients including both private and publicly held companies in a wide variety of industries. She has performed valuations for various purposes such as financial reporting, equitable distribution, buy/sell transactions and dissenting shareholder disputes, employee stock ownership plans (ESOPs), value enhancement, and gift and estate tax strategies.
Ergon argued that Bizyak is not qualified to render opinions in this case. Its contention is based on several factors. First, Ergon argued that Bizyak’s report and deposition testimony include impermissible legal conclusions on issues of contract interpretation and performance, matters that are beyond her expertise as an auditor. By way of example, Ergon noted that Bizyak makes certain representations regarding the exclusive territory of the Master Agreement, Hadek’s exclusivity and first right to pursue opportunities in its territory, Ergon’s obligations under the Master Agreement and the Agreement’s term more generally.
Ergon also argued that Bizyak is unqualified to provide opinions on sales and marketing of the at-issue glass block lining products in Asia. Ergon bases this contention on the fact that Bizyak has no relevant experience in this realm, did no independent research on this industry and merely accepted the information that was provided by Hadek.
However, the Court found that Bizyak is qualified to render the opinions expressed in her report. Specifically, Bizyak possesses the required “specialized knowledge” through her education, background and experience to render opinions about lost profits. Moreover, she is not being offered as an expert on the glass block lining industry, but on the calculation of Hadek’s damages. Hadek is correct that as an expert, Bizyak is free to make certain assumptions regarding liability issues for purposes of expressing opinions on damages and may rely on information supplied by Hadek in doing so.
As it relates to the issues of reliability and fit, the Court concluded that despite the parties’ extensive and well-done briefing, a Daubert hearing is necessary to resolve these issues.
Held
The Court denied in part Ergon’s motion to exclude the testimony of Hadek’s expert Melissa Bizyak.The Court defers ruling on the remainder of Ergon’s motion pending the completion of a Daubert hearing.
Key Takeaway:
Bizyak possessed the requisite specialized knowledge to offer expert opinions in this case. As reflected on her resume, she is a certified public accountant a certified valuation analyst, and is certified in financial forensics. She has been qualified as an expert in a number of cases and several of her prior expert engagements have involved the calculation of lost profits.
Thus, Ergon’s arguments are misplaced and if anything, Ergon is actually raising a reliability issue, not challenging Bizyak’s qualifications.
Case Details:
Case Caption:
Hadek Protective Systems B.V. Et Al V. Ergon Asphalt & Emulsions, Inc.
Docket Number:
2:22cv1421
Court Name:
United States District Court for the Western District of Pennsylvania
Plaintiff Grasshopper Gardens, Inc., a lawncare and landscaping services provider, accused PMA Mechanical LLC, a heating, ventilation, and air conditioning (“HVAC”) service provider, of trademark infringement, unfair competition, and false designation of origin.
Plaintiff retained Dr. Eli Seggev to conduct a survey on the likelihood of confusion between the marks at issue in this case (“Seggev Survey” or the “Survey”) and to provide an expert report and testimony. Defendant sought to preclude use of this evidence under Rules 702 and 403 of the Federal Rules of Evidence.
Marketing Expert Witness
Dr. Eli Seggev holds an MBA from the University of Michigan and a PhD in Marketing and Quantitative Methods from the School of Management at Syracuse University. In addition to teaching in graduate business programs at various universities Seggev also founded and managed two marketing research companies, both of which had been acquired by UK-based corporations.
The Seggev Survey used a format referred to as an original “Squirt” survey. Specifically, the Survey is comprised of two parts: a screener portion and the main questionnaire. Moreover, the Survey followed a “Test v. Control” design, “in which the impact of an allegedly infringing stimulus (Test Group) is compared to the impact of a similar stimulus that is free of the allegedly infringing elements (Control Group).”
The “Test” design compared a portion of Plaintiff’s website page without its URL to a portion of Defendant’s website page without its URL, while the “Control” design compared the portion of Plaintiff’s website page to a portion of a completely random website for an HVAC contractor called “Best Contractors” with the URL “besthvac.contractors” included.
Importantly, the images of both Plaintiff’s and Defendant’s portions of websites included the word “grasshopper” while the “Best Contractors” website page did not include the word “grasshopper” or any other similarities to the other website pages. Finally, Seggev testified that he intentionally designed the Survey this way to lead participants towards his own conclusion that the marks at issue “were identical.”
2. Operation of the Seggev Survey
The Survey participants were either shown the “Test” group or the “Control” group, not both. Specifically, Participants randomly selected for the “Test” group were first asked to review “a webpage” and then shown images of both the portion of Plaintiff’s webpage without its URL and the portion of Defendant’s webpage without its URL.
Notably, for this “Test” group, the Survey does not include a question separating the portions of Plaintiff’s website and Defendant’s website, creating the impression that they came from the same website because each of the URLs were removed and the question just prior refers to just “a website.” Alternatively, participants selected for the “Control” group were presumably shown the same portion of Plaintiff’s website without the URL and then asked to review the top portion of another website for Best Contractors with the URL “besthvac.contractors.”
After being shown these images in the “Test” or “Control” groups, participants were then asked whether they thought the websites represented “the same company,” “different companies,” or “don’t know/no opinion.” Participants in both groups were then asked whether they believe that “the two companies are affiliated, connected, or associated with one another or have no opinion.”
3. Results of the Seggev Survey
According to the Seggev Report, participants were classified as confused if they considered the two images to be the “same company” or “companies that are affiliated, connected or associated with each other.” Based on the results of the Survey, Seggev claimed that 68.3% of participants found a likelihood of confusion for the “Test” group. And, the results of the “Control” group showed that 28.1% of participants believed that Plaintiff and Best Contractors were also either the same company or “affiliated, connected or associated with each other.”
Seggev did not vet the results based on household income level or whether the Survey participants were appropriate prospective consumers of Defendant’s services. Additionally, Seggev did not focus on the marketplace in which both parties currently operate; instead, he conducted a nationwide survey.
4. Application
Seggev utilized the original formulation of the Squirt survey, showing participants either (1) portions of images of Plaintiff’s website and Defendant’s website in the Test cell, or (2) portions of images of Plaintiff’s website and “the webpage of a heating and cooling business that did not use the Grasshopper” in the Control group. As illustrated in Seggev’s report, the Survey showed participants both images consecutively. The Court agreed with Defendant that, in showing only two images consecutively, without any other similar trademarks/companies, in artificially close proximately for two non-competing companies, the Survey intentionally signals to participants that there is a connection between the two and thereby artificially inflates the Survey’s estimates of likelihood of confusion.
Courts have found that the Squirt format is intended to replicate market conditions under which the relevant services have marketplace proximity and is therefore most appropriate where the marks are sold to overlapping customers or through overlapping channels of trade, such that consumers would typically encounter one soon after the other. Here, there is no competitive proximity between the parties. During prosecution, Plaintiff’s services were described as “strictly for landscaping” and “broadly categorized as ‘lawn care.’” Defendant, however, provided HVAC services and its business does not overlap with Plaintiff’s in any appreciable manner.
Moreover, there is limited proximity of the marks in the marketplace. Although both companies operate websites that present the services they offer, that is where the proximity ends.
While these flaws alone are likely sufficient to justify the exclusion of Seggev’s report and the Survey, Seggev’s admitted bias in administering the Survey convinced the Court that exclusion is the only appropriate course. As noted above, Seggev testified that he intentionally designed the Survey the way he did to lead participants towards his own conclusion that the marks at issue “were identical.”
Held
The Court granted the Defendant’s motion to exclude the expert testimony of Dr. Eli Seggev.
Since the Plaintiff failed to raise a genuine issue of material fact with respect to likelihood of confusion and the Defendant is entitled to summary judgment on Plaintiff’s claims brought under the Lanham Act, the final judgment was entered in the Defendant’s favor.
Key Takeaway:
Generally, when a party challenges a survey for bias, they are forced to use circumstantial evidence, such as leading questions or the use of images that are clearly intended to direct survey participants to a desired result. While it is generally understood that expert witnesses retained by the respective parties are going to provide their opinion testimony in a manner favorable to the party that retained that expert, such testimony is generally provided under the guise of being unbiased. By Seggev’s own admission, the Survey was injected with his own bias and results oriented, making the Survey inherently unreliable.
