This is a premises liability action in which the Plaintiff Natasha Walkowicz Shea (“Plaintiff’) sought to hold the Defendants, Kalahari Resorts & Conventions-Poconos; Kalahari Resorts, PA, LLC; and Kalahari Resorts, LLC (hereinafter, collectively, “Kalahari”) liable in negligence for her alleged injuries sustained as a result of slipping and falling on snow and/or ice in a parking lot owned by the Defendants.
Kalahari filed a motion in limine to preclude the testimony of Plaintiff’s engineering expert Keith A. Bergman, P.E.
Engineering Expert Witness
Keith Alan Bergman, P.E. is a Consulting Engineer in Civil Engineering and obtained a bachelor’s degree in civil engineering from San Diego State University in 1991. He is a licensed professional engineer in numerous states throughout the country and represents that his professional background experience includes “[e]valuations of ice, snow control, grading, storm water management, detention and retention basins, and soil and sedimentation control.”
He purports to specialize in “Highway and Street Design, Traffic Engineering, Utilities Construction, Storm Drainage, Pedestrian Safety, Walkway Surface Evaluations, Concrete and Asphalt Pavement Evaluations” and represents that he has extensive experience “in Construction Management, Project Management, Project Related Claims, Job Site Safety, Codes and Standards, and ADA Compliance.”
Bergman report indicated that he examined the incident site and the incident circumstances in order to determine the nature and cause of the accident.
In this matter, Defendants argued that Plaintiff’s engineering expert, lacked the qualification to offer many the opinions set forth in his expert report. In other words, Defendants claimed that the opinions offered by Bergman lacked scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine a fact in issue and therefore he is not qualified and his report and testimony does not “fit.”
Although the Court agreed with Defendants that many of the opinions offered by Bergman may be improper and concern areas outside his engineering expertise, it will not wholly preclude Bergman from offering opinions as to either deviation from the standard of care or causation. While certain of Bergman’s opinions and conclusions related to snow/ice removal process and his legal conclusions concerning the Defendants’ negligence may be improper or inadmissible, Defendants may raise these issues again prior to trial.
Similarly, many of the opinions offered by Bergman may not satisfy either the “reliability” or “fit” Daubert requirements, in that certain of his opinions may not assist the jury in determining a fact in dispute. Nevertheless, the Court is not inclined to wholly preclude each and every opinion offered by Bergman, who does in fact offer opinions within his area of engineering expertise.
For example, Bergman opined that “Kalahari Resorts knew, or should have known, that the parking lot slopes towards the inlets from the building which would facilitate drainage flow and have the potential for water freeze/re-freeze conditions with changing temperature.” According to Bergman, the presence of snow/ice on the parking lot created an unsafe walking surface for pedestrians, like Shea.
Defendants’ motion in limine to preclude the testimony of Bergman was denied without prejudice, subject to renewal prior to trial and a Daubert hearing should any party request one.
Held
The Court denied without prejudice the Defendants’ motion in limine to preclude the testimony of Plaintiffs expert Keith A. Bergman, P.E.
Key Takeaway:
The Daubert standard is not intended to be a high one, nor is it to be applied in a manner that requires the Plaintiffs to prove their case twice—they do not have to demonstrate to the judge by a preponderance of the evidence that the assessment of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.
Defendant Learneo, Inc., a Delaware corporation with a principal place of business in Redwood City, California, operates a website named Course Hero, an online learning platform of course-specific study resources. In particular, this action involves alleged unlawful conduct on Course Hero, where users upload materials, such as study resources, and access materials shared by others.
Consequently, Plaintiff Post University accused Learneo, Inc. of (1) direct copyright infringement, (2) contributory copyright infringement, (3) vicarious copyright infringement, (4) removal of copyright management information (“CMI”) in violation of the Digital Millennium Copyright Act (“DMCA”), (5) trademark infringement in violation of the Lanham Act, (6) false designation of origin in violation of the Lanham Act, (7) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), (8) unjust enrichment, and (9) common law unfair competition.
In support of its claims, Plaintiff retained Dr. Yoram (Jerry) Wind to conduct, analyze, and opine on prospective consumer confusion.
In response, Defendant filed a motion to exclude the testimony of Wind pursuant to Federal Rules of Evidence 403 and 702.
Marketing Expert Witness
Yoram (Jerry) Wind, PhD. is the Lauder Professor Emeritus and Professor of Marketing at the Wharton School of the University of Pennsylvania, having taught graduate courses relating to executive development and marketing since 1967, and worked as Director for the SEI Center for Advanced Studies in Management.
Wind joined the Wharton faculty in January 1967, upon receipt of his doctorate from Stanford University, and was granted Emeritus status in July 2017.
Defendant filed a motion to exclude Wind’s testimony, asserting that: (1) his surveys were fundamentally flawed as they improperly excluded educators during the screening portion, (2) his surveys were unreliable as they relied on unclear and undefined terms, including “document,” “material,” and “owns,” (3) his initial survey used improperly designed controls, (4) his coding results could not be replicated, (5) his understanding of the definition of CMI was incorrect, and (5) his conclusions are based on an unreliable application of his methodology.
A.Wind’s Qualifications
Defendant has not attempted to challenge Wind’s qualifications, nor could it. As part of a career spanning over four decades, Wind has been qualified as a marketing and survey research expert in federal court, where he has conducted and evaluated marketing and consumer research for use in litigation.
The Court therefore found that Wind is qualified to provide expert testimony on consumer confusion as it relates to Plaintiff’s claims against Defendant.
B.Reliability of Wind’s Testimony
1. Defendant’s Allegations that the Surveys Improperly Excluded Educators
Defendant contended that Wind improperly excluded educators from the surveys, as they are one of Defendant’s only two target demographics. According to Defendant, excluding educators compromises the probative value of the survey because it fails to capture the responses from all potential consumers of Course Hero.
Here, the purported testing of the wrong universe, as Defendant suggested, did not indicate that the surveys’ probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Defendant’s sweeping contention that educators must be included in the universe is belied by evidence showing that college educators made up only a fraction of Court Hero’s accountholders in 2021, including statistics that educators make up less than 1% of account holders, and testimony from Defendant’s VP of Marketing stating that “there are a lot more students than there are educators.” Further, Defendant did not seriously dispute Wind’s explanation that it is generally accepted and custom to exclude individuals who works in the same industry as the survey that is being conducted. It is thus appropriate for Defendant to raise its criticisms about the survey’s academia-based exclusion before the jury.
2.Defendant’s Allegations of Ambiguous Terms
Defendant contended that the survey questions using terms like “document,” “material,” and “owns” are ambiguous because almost all of the test stimuli show one document (the Post University material) within another document (the Course Hero webpage), and then ask questions about the “document.”
Defendant asserted that the use of the terms “document” and “material” interchangeably in Wind’s survey make it impossible to discern whether survey respondents understood “document” or “material” in the question to mean the alleged Post University material (green), the Course Hero webpage (red), or something else entirely.
However, it would be too wide a stretch for this Court to conclude that the failure to define “document” and “materials,” which are terms that jurors will have necessarily dealt with throughout their lives, would undermine the probative value of the survey.
Defendant next contended that the term “owns,” as used in Wind’s survey, is improper for being ambiguous and for asking the survey respondents to opine as to a legal question.
However, the survey did not present respondents with the legal issue of copyright ownership; rather, it asked the respondents to provide their impressions about who they believed had “owned” a document. Thus, the term “owns” bore no resemblance to the spectrum of cases cited by Defendant where exclusion was warranted due to an ambiguous term.
3.Defendant’s Allegations of Improper Controls
The Court finds, too, that Defendant’s critiques of Wind’s control stimuli are overstated. Defendant contended that Wind’s initial survey is unreliable as the control stimuli failed to isolate the alleged elements of the Course Hero website underlying any of Plaintiff’s claims, thus making it impossible to determine which elements, if any, contributed to confusion. Further, Defendant argued that Wind’s control stimuli removed an excessive amount of Course Hero website elements and improperly added a sentence, unilaterally drafted by Wind, to the footer of the stimuli, which stated, “Course Hero did not author and does not own this study resource.”
To be clear, consistent with Defendant’s contention, the absence of an effective control could certainly be a factor that damages the reliability of a survey. No such combinations of major flaws are found here. Thus, while a factfinder may not give Wind’s testimony much weight due to his removal of elements of the Course Hero website and addition of the footer, “neither science nor law mandate the [requested] exclusion” here.
4. Defendant’s Allegations of Wind’s Unreliable Coding Methodology
Defendant identified two theories upon which Wind’s coding methodology is unreliable. First, Defendant argued that Wind’s coding instruction did not provide sufficient guidance to produce reliable results, as Wind was unable to reproduce his coders’ classifications based on his own coding instructions. Specifically, Defendant noted that Wind was only able to match his coders’ classifications four out of fourteen times (28.6%) during a deposition. Second, Defendant argued that Wind failed to properly to isolate the alleged CMI, as his understanding of the definition of CMI was incorrect.
While it may be that it was impossible for Defendant to question Wind about 2,250 respondents during a deposition, the Court held that the emphasis on ten purported testimonial errors by Wind did not show that the methodology used was completely unreliable. Defendant did not conduct its own survey showing inconsistent results with Wind’s results and failed to show that it is impossible to reproduce Wind’s coding scheme.
Defendant’s allegation that Wind’s understanding of CMI was overly broad similarly failed to establish that there was unreliable coding methodology. As relevant here, Wind instructed his coders to look for the following categories of information in the “confused” responses to the test stimuli: Course Hero Logo, Course Hero Advertisement, Course Hero Banner Ads, Course Hero Copyright Notice, Course Hero Website / Link, Course Hero Watermark, Course Hero name on document, and Course Hero Other. Thus, Wind’s guidance to his coders is wholly consistent with the plain text of the DMCA, which defines CMI as information “conveyed in connection with” copies of a work, including “other information identifying the work[.]”
5. Defendant’s Allegations of Wind’s Faulty Conclusions
First, Defendant argued that Wind’s opinion as to CMI confusion failed to account for background noise in the control stimulus. Specifically, Defendant argued that several of the control stimuli contained the Course Hero footer watermark, which Plaintiff alleges to be false CMI. But that contention did not show that Wind’s findings are “speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.”
Second, Defendant argued that Wind’s reported measures of trademark confusion are below the level that courts require for experts to opine that there is a likelihood of confusion, i.e., 15%. But Defendant did not offer any binding law for the proposition that an expert must be precluded from testifying if a survey’s overall confusion is less than 15%.
Finally, the Court is not persuaded that the Defendant has shown that Wind’s conclusions are unreliable.
Held
The Court denied the Defendant’s motion to exclude the testimony of Yoram Jerry Wind.
Key Takeaways:
The fact that a survey used a control that could have been ‘stronger’ or ‘better’ may mean it is entitled to less weight, it does not mean that the survey does not provide relevant information.
Defendant showing Wind struggling to make consistent coding determinations as to a handful of responses during a deposition did not meet the threshold to exclude expert testimony: that “there is simply too great an analytical gap between the data and the opinion proffered.”
Jane Doe K.R. sued Defendants, Choice Hotels, Choice Hotels International, Inc., and Choice Hotels International Services Corp. under the Trafficking Victims Protection Reauthorization Act (TVPRA).
Plaintiff alleged that between March and May 2013, she was the victim of sex trafficking at an Orlando, Florida hotel owned and operated by WHG, a franchisee of the Choice Hotels Defendants.
In support of Plaintiff’s claims, Rochelle Keyhan has provided an approximately thirty-page report titled Expert Report on Human Trafficking: Victim Behaviors and Trafficker Actions. Defendants filed Daubert motions to exclude the opinions offered by Keyhan.
Human Trafficking Expert Witness
Rochelle Keyhan is the Chief Executive Officer of Collective Liberty and the 2018 Thomson Reuters Foundation Stop Slavery Hero award winner. She has 14 years of experience conducting anti-human trafficking investigations and prosecutions and 9 years as an expert advisor to over 2,000 investigations across the United States.
Keyhan received her Bachelor of Arts degree from UCLA and her law degree from Temple University.
In the report, Keyhan opined as to the Defendants’ knowledge of the trafficking of individuals at their properties in general and of Plaintiff’s trafficking at the Orlando hotel in particular. In addition, she opined as to the financial benefit that the Defendants derived by permitting trafficking as well as the Defendants’ failure to implement available anti-trafficking policies.
Moreover, in her report, Keyhan described her general methodology as involving data collection and analysis (including pattern recognition), collaboration with experts and organizations around the country, along with case studies of high-profile trafficking cases.
Analysis
Defendants contended that Keyhan is not qualified to offer these opinions, which are not based on a reliable methodology or helpful to the factfinder.
Furthermore, Keyhan testified that she had not reviewed anything specific to this case beyond the unverified complaint, and consequently, she could offer only general opinions on human trafficking. Nonetheless, the challenged opinions are specific to this case. They require sufficient facts about Defendants and the Orlando hotel to support conclusions about Defendants’ (actual or constructive) knowledge of trafficking there.
In addition, the opinions also require facts about Defendants’ financial situation and any anti-trafficking policies that Defendants had implemented. However, Keyhan’s deposition testimony showed that she lacked such facts: she could not recall reviewing Defendants’ franchise agreement and did not know what measures, if any, WHG SU Delegates had taken to address safety concerns at the Orlando hotel.
Meanwhile, Plaintiff faults Defendants for failing to timely provide case-specific documents, but Plaintiff bears the burden of establishing that Keyhan based her opinions on sufficient facts. Ultimately, the Court held that the methodology described in Keyhan’s report is too general to explain how she arrived at the opinions specific to this case.
Held
The Court denied the Defendants’ Daubert motions to exclude the testimony of Rochelle Keyhan.
Key Takeaway:
Because Keyhan did not review the Defendant’s policies and procedures, she lacked any foundation to assert that the Defendant failed to adopt, implement, or enforce adequate training, processes, or protocols to address prostitution or human trafficking on their properties.
Plaintiff Raymond Dean Brown, a federal inmate confined at the Federal Correctional Center in Terre Haute, Indiana (“FCC Terre Haute”), brought this action against the Defendants, Dr. Elizabeth Trueblood, Dr. William E. Wilson, and Dr. David Lukens, alleging that they were deliberately indifferent to his serious medical conditions in violation of his Eighth Amendment rights.
Brown’s expert witness, Charles Howard, testified that Brown’s February 15, 2019, optometrist visit that indicated he had potentially suffered a stroke “should have immediately resulted in a hospital trip because these complaints had already occurred several times. Brown clearly was experiencing clots thrown from his atrial fibrillation.”
According to Brown, other practitioners viewed Wilson’s actions as falling far short of the standard of care.
Defendants argued that Howard’s opinions are unreliable because (1) Howard cannot provide legal conclusions or opinions on causation; (2) Howard is not qualified in cardiology, pulmonology, or neurology, and he therefore cannot testify as to these specialists’ determinations for Brown’s care; and (3) Howard provides no reliable scientific methodology for his opinions.
Ophthalmology Expert Witness
Charles Howard, MD, MMM, is retired from the Federal Bureau of Prisons (BOP), having served twenty (20) years as a Medical Officer. He joined the US Department of Justice Federal Bureau of Prisons as a Medical Officer and National Ophthalmology Consultant in 2002 at the Federal Medical Center in Devens, Massachusetts.
Moreover, Howard earned a Master of Medical Management degree (MMM) from the HJ Heinz School of Public Management at Carnegie Mellon University in Pittsburgh. He is a Board-Certified Fellow of the American Board of Quality Assurance and Utilization Review Physicians (FABQAURP) and a Fellow of the American Institute of Health Care Quality Management (FAIHCQM).
In this case, Howard is a trained ophthalmologist and served as a Medical Director for the BOP, the same role Wilson held when supervising the care of inmates with complex medical conditions like Brown. He need not be a specialist in cardiology or neurology to review the care Brown holistically received just as Wilson would have done.
Specifically, the Court found that Howard is sufficiently qualified to give opinions regarding Brown’s holistic care under Wilson as a Clinical Director and ophthalmological care involving Lukens.
Moreover, Howard’s medical opinions are not based on ‘junk science,’ but more than twenty years of medical experience. Although the Defendants contended that Howard did not have a firm foundation for basing his opinions regarding the appropriate standard of care, the Seventh Circuit has found that a doctor can rely on medical history, including a review of medical records.
Defendants filed a separate motion to exclude Howard’s opinions at trial, which the Court denied as moot. The Court considered Howard’s testimony and evidence in connection with Defendants’ summary judgment motions. Ultimately, the Court granted those motions, and final judgment was entered in favor of the Defendants.
Held
The Court denied the Defendants’ partial motion to strike the testimony Charles Howard.
Key Takeaway:
Brown has therefore established by a preponderance of evidence that Howard meets the prerequisites of admissibility to offer a reliable opinion on the standards of care within his report and testimony.
And due to his specific knowledge of the circumstances and experience in the field, Howard’s testimony and report will assist the Court in understanding the evidence and determining the facts at issue in this case.
Michael Anthony (“Plaintiff”) filed this putative class action against The Federal Savings Bank (“FSB”), National Bancorp Holdings, Inc. (“NBH”), and FDE Marketing Group, LLC (“FDE”) (collectively, “Defendants”), asserting violations of the Telephone Consumer Protection Act (“TCPA”).
The Plaintiff filed a motion to bar defense expert Jan Kostyun while Defendants filed a cross-motion to bar Plaintiff’s expert Aaron D. Woolfson.
Telecommunications Expert Witness
Jan Kostyun is an independent technology consultant with over 35 years of experience covering the areas of telecommunications, enterprise architecture, and information technologies.
He developed expertise in areas such as landline and wireless order entry, including the collection of subscriber contact information and initial implementation of the National Do Not Call registry and has extensive experience in database methodologies, data analysis, and data mining in addition to call center operations and various dialing systems, including those used for inbound and outbound calling campaigns. He has personally performed database queries and data analysis against hundreds of data stores [such as] National Do Not Call lists, Wireless Block identifiers, Number Portability transaction lists and telephone call records produced by both wireless carriers and businesses involved in dialing campaigns.
Aaron David Woolfson has over 25 years of experience in developing and analyzing databases and telephone systems and establishing the interfaces between telephone systems and the networks that convey calls.
He has been qualified as an expert in other TCPA cases requiring him to analyze call records and compare them against records of leads.
Woolfson reached three conclusions after reviewing call detail records (“CDRs”) obtained from Ytel, FDE’s carrier: (1) that “there is a reliable method to identify which calls in the call records were made to telephone numbers (a) to which two or more times were called in a twelve month period by [FDE], and (b) that were registered with the [Registry] for more than thirty days before each of the calls”; (2) that “using the CDRs and Defendants’ call transfer logs, there is a reliable method to identify the calls in the CDRs that were to phone numbers that also appear in the call transfer log (“Live Transfers”); and (3) that he is “able to identify contact information, including names and mailing addresses, related to the individuals to whom the calls were placed, based upon the records that are maintained by phone carriers in their ordinary course of business.”
Defendants’ critique of Woolfson’s opinion essentially falls into two buckets—(1) disagreements about how he interpreted certain datapoints to reach his specific conclusions; and (2) concerns about the difficulties of his proposed process for identifying class members.
First, with respect to the underlying data relied upon by Woolfson, the parties agreed that the Ytel CDRs do not include call disposition information that affirmatively indicates if every telephone call placed by FDE actually connected to an active number on the Registry. Because of that, Woolfson determined that an appropriate measure of this critical detail was call duration.
Specifically, Woolfson sufficiently explained the process he used to query the data and then analyze the output. Basically, the Court found that Defendants attacked the reliability of Woolfson’s conclusions and whether they are supported by the data, not the validity of the methodology he employed in forming his opinions.
Jan Kostyun’s Rebuttal Expert Report
Defendants offered the opinion of their rebuttal expert, Kostyun, in seeking to bar Woolfson’s testimony.
Plaintiff contended that Kostyun’s methodology is not reproducible, as evidenced by his deposition testimony that he ran “hundreds and hundreds of queries against the data” which he cannot itemize or reproduce.
Defendants explained that Kostyun’s analysis “was undertaken in a forensic manner” that involved both “simplistic” and “more complex” queries of the data, and the “entire database and structure” were produced to Plaintiff.
However, Plaintiff never contended that Kostyun used an unacceptable methodology for the relevant industry. The Daubert inquiry focuses on assessing if Kostyun’s methodology lacks analytically sound bases, not if his rebuttal opinions are correct.
Held
The Court denied both Plaintiff’s motion to bar defense expert Jan Kostyun and Defendants’ cross-motion to bar Plaintiff’s expert Aaron Woolfson.
Key Takeaway:
Both sides argued at length in their extensive briefs that the opposing expert has erroneously interpreted the relevant data, and as a result, the opinions reached are wrong. But such “arguments about how the selection of data inputs affect the merits of the conclusions produced by an accepted methodology” are substantive considerations rather than proper Daubert challenges.
This is a medical negligence case filed by Plaintiff Tanya Soule, as holder of Power of Attorney for Marlene Do, her mother, a currently disabled adult, and Long Do, her husband. Specifically, Plaintiffs alleged that Defendants were negligent in failing to timely diagnose and manage Marelene’s ischemic stroke on December 11, 2019.
Subsequently, Defendants Blessing Hospital; Scott Hough, M.D.; Shaila O’Dear, R.N.; Jason Little, APRN; Kristin Hampton, R.N.; Angelo Liana, M.D.; and Rebecca Dennison, R.N. filed a motion to exclude all but the present value of future life care opinion testimony of Plaintiffs’ expert witness on economics, Stan Smith, PhD.
Economics Expert Witness
Stan V. Smith, PhD is the President of Smith Economics Group, Ltd., headquartered in Chicago, Illinois, which provides economic and financial consulting nationwide.
Moreover, Smith has worked as an economic and financial consultant since 1974. He has performed economic analysis in a variety of cases, including personal injury and wrongful death actions. Smith has over 40 years of experience in the field of economics and wrote the first textbook on Forensic Economic Damages.
Defendants sought to bar Smith from providing testimony at trial regarding purported loss of household/ family services sustained by Long Do, hedonic damages sustained by Marlene, and loss of society or relationship sustained by Long. Specifically, Defendants contend all of these opinions are based on methodologies that are unreliable and are not supported by facts specific to Marlene.
Loss of Household/Family Services
With respect to household/family services, Smith’s opinions included two subcategories alleged to be sustained by Long Do: (a) loss of housekeeping and household management services; and (b) loss of advice, counsel, guidance, instruction, and training services. Defendants argued that these damages are speculative and would not assist the jury.
For example, regarding loss of housekeeping and household management services, Smith opined that Long suffered a loss in the amount of $378,775. Essentially, Smith multiplied the amount of time it would take a non-professional to complete a particular task by the costs it would take to hire a professional.
In addition, Smith included a 50% non-wage component to the hourly wage rate. However, he acknowledged that Marlene was not a professional of any trade upon which he relied. Furthermore, he did not ask Marlene or Long whether they paid for any of the services considered. Smith admitted the calculation is his “estimate of the market value of the services performed by a female in the household on average.”
To illustrate, Smith created three tables to show his calculations for past and future loss of housekeeping and household management services. He then created a similar calculation to opine on the monetary loss of advice, counsel, guidance, instruction, and training services for Long.
Specifically, Smith assumed a loss of one hour per day for these advisory services based solely on his interview with Marlene’s daughter.
On the other hand, Plaintiffs noted that loss of household services is a compensable form of injury. They alleged that Smith’s testimony involves the loss of household services sustained by the family from the time of Defendants’ alleged negligence through Marlene’s life expectancy.
Conclusion
The Court allowed Smith’s testimony regarding the loss of housekeeping and household management services while excluding his testimony concerning the loss of advice, counsel, guidance, institution, and training services.
C. Hedonic Damages
Smith opined on the reduction in value of life or loss of enjoyment of life for Marlene. Plaintiffs claimed that the hedonic value of life refers to the value of the pleasure, the satisfaction, or the utility that human beings derive from life, separate and apart from the labor or earnings of life.
In his report, Smith stated that his “estimate of the value of life is consistent with estimates published in other studies that examine and review the broad range of economic literature on the value of life.”
Smith estimated the value of life “to be approximately $5.9 million in year 2023 dollars.” Defendants noted that Smith only interviewed Marlene’s daughter. He did not interview Marlene or Long.
Smith provided a “lower estimated impairment rating” and an “upper estimated impairment rating,” based on his range for either 50% or 80% reduction in value of life. Pursuant to his methodology, Smith estimated a total loss of value of life of $1,954,626 for 50% reduction and a total of $3,127,391 for 80% reduction. To determine future loss, Smith accounted for a discount factor to create a present value. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered-either 50% or 80%. Defendants noted that Smith did not consult with a single medical professional to arrive at his impairment rating.
Conclusion
Defendants alleged that federal and state courts have routinely barred Smith’s testimony as to hedonic damages.
After considering Smith’s testimony on hedonic damages, the Court agreed with the reasoning of the overwhelming majority of federal district courts. Therefore, the Court granted Defendants’ motion to the extent it sought exclusion of Smith’s testimony on hedonic damages.
Loss of Society or Relationship for Long Do
To begin with, Smith presented his opinions on loss of society or relationship relating to Long Do. In particular, Plaintiffs noted that Illinois law recognizes loss of society or relationship as a recoverable pecuniary loss. In other words, this is the total value of loss of society or relationship Long did and will suffer due to Marlene’s alleged injuries. Specifically, Smith testified that the loss is “the loss of love and affection that he has sustained, the loss of the quality of the relationship that he had that has impacted his quality of life.”
Defendants noted that Smith calculated loss of society in the same manner as his calculation for reduction in value/hedonic damages for Marlene. This loss is calculated from 2019 through 2030, which ends at Long’s estimated life span of 81 years old. Smith picked $5.9 million as the value of each human life in 2023 dollars. He then arrived at the value of hedonic damages by reducing the $5.9 million by the percentage of disability he believes Marlene has suffered. For loss of society, Smith chose 50% disability. He determined Long’s loss of society was $403,273. For future loss, Smith accounts for a discount factor to create a present value.
Conclusion
As Defendants alleged, the jury is capable of processing that information to calculate damages guided by their observations, experience, and sense of fairness. The Court held that Smith’s opinions on this topic are speculative and potentially misleading in focusing on the statistically average person instead of the individuals in this case.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude the opinions of Plaintiffs’ economic expert Stan Smith, Ph.D.
Key Takeaway:
Rule 702 requires a flexible inquiry and recognizes that the accuracy of proposed expert testimony can be explored adequately via the normal adversarial process of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”
It is “the soundness and care with which the expert arrived at her opinion” that is the focus of the inquiry and not “the ultimate correctness of the expert’s conclusions.”
Case Details:
Case Caption:
Do Et Al V. Blessing Hospital, A Corporation Et Al
Plaintiff Mary Spates (“Plaintiff”) as parent and natural guardian of her minor son, C.M., filed a suit against Defendant Horry County School District (“Defendant” or “School District”), alleging violations of C.M.’s Fourteenth Amendment due process rights.
Defendant Horry County School District filed a motion in limine seeking to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP, as well as a written report authored by Fowler.
Psychology Expert Witness
Jessica Greene, LPC holds a PhD in General Psychology from Northcentral University (2020), a master’s degree in Counseling with an emphasis in clinical mental health counseling (2006), and a Bachelor of Arts degree in Sociology from Coastal Carolina University (2003).
She is known for her passion in advocating for her clients and fighting to educate about trauma-informed and cognitive behavioral therapy treatment.
Jameion Blanton Fowler, MSW, LISW-CP (SC), LCSW (NC) is currently working as an Independently Licensed Social Work Clinician with A Place To Start Counseling. He is also the founder of Blanton Clinical Consulting Group (BCCG).
He has worked with a variety of different populations throughout his career. These include Mental Health, Substance Abuse and work with Children and families.
Defendant argued that Plaintiff failed to designate these witnesses as experts under Rule 26(a)(2), failed to provide the required disclosures under the Court’s scheduling orders, and now seeks to introduce opinions on diagnosis and causation that qualify as expert testimony.
The Court recognized that Rule 26 distinguishes between retained experts, who must provide a written report under Rule 26(a)(2)(B), and treating providers, who may testify as hybrid fact/expert witnesses without such a report.
Motion to Exclude or Limit
Here, Plaintiff did not timely disclose Greene or Fowler under Rule 26(a)(2). Her initial interrogatory responses confirmed no experts would be offered, and only on the final day of discovery in April 2024 did Plaintiff identify these providers and produce Fowler’s report. Such a late disclosure deprived Defendant of the opportunity to depose the providers or prepare rebuttal expert testimony before the close of discovery. The absence of a Rule 26(a)(2)(C) summary compounds this deficiency.
Allowing the evidence would disrupt the trial, requiring the Court to reopen discovery and delay a consolidated trial already scheduled. While the Court acknowledges the importance of treating providers’ testimony to Plaintiff’s claims, Rule 26 and Rule 37 require balancing that importance against fairness to the opposing party. Finally, Plaintiff offered no persuasive explanation for her failure to comply with the disclosure deadlines. On balance, these factors show that exclusion is warranted under Rule 37(c)(1).
At the same time, it is undisputed that Greene and Fowler are treating providers. Courts have permitted treating providers to testify about observations and diagnoses made during treatment, even absent a Rule 26(a)(2)(B) report. But they may not provide litigation-driven causation opinions prepared for trial. Fowler’s December 2023 report does just that-it expressly attributed C.M.’s depression to his “current legal situation and the family’s case against his former school district.” That opinion fell within Rule 702 and requires proper disclosure.
Plaintiff’s non-disclosure also meant that Greene’s and Fowler’s proposed opinions have never been scrutinized under the Court’s gatekeeping function pursuant to Federal Rule of Evidence 702 and the Daubert standard.
Held
The Court granted in part and denied in part the Defendant Horry County School District’s motion in limine to exclude or limit the testimony of Plaintiff’s treating mental health providers, Jessica Greene, LPC, and Jameion Blanton Fowler, MSW, LISW-CP.
Plaintiff’s treating providers, Jessica Greene, LPC, and Jameion Fowler, MSW, LISW-CP, may testify as fact witnesses regarding their treatment of C.M., including observations and diagnoses formed in the ordinary course of care. However, because Plaintiff failed to comply with Rule 26(a)(2) and has not shown substantial justification or harmlessness under Rule 37(c)(1), the providers may not offer undisclosed expert opinions on the causation of C.M.’s conditions or on the adequacy of the School District’s conduct. For the same reasons, Plaintiff may not introduce the December 16, 2023, written report by Fowler, which constitutes litigation-driven expert opinion.
The Court also noted that Plaintiff’s proffered opinions have not undergone the reliability screening required by Federal Rule of Evidence 702 and Daubert, further supporting their exclusion.
Key Takeaway:
Treating providers are often assumed to fall outside Rule 26’s disclosure requirements because they are not retained experts. But Rule 26(a)(2)(C) expressly requires a summary disclosure when a treating provider’s testimony implicates Rules 702-705. Counsel who conflate treatment testimony with litigation-driven expert opinions risk exclusion under Rule 37(c)(1).
This is a medical negligence case filed by Plaintiff Tanya Soule, as holder of Power of Attorney for Marlene Do, her mother, a currently disabled adult, and Long Do, her husband. Plaintiffs alleged that Defendants were negligent in failing to timely diagnose and manage Marelene’s ischemic stroke on December 11, 2019.
Defendants Blessing Hospital; Scott Hough, M.D.; Shaila O’Dear, R.N.; Jason Little, APRN; Kristin Hampton, R.N.; Angelo Liana, M.D.; and Rebecca Dennison, R.N. filed a motion under Federal Rule of Evidence 702 to bar Plaintiffs’ expert witness, Nurse Linda K. Schwieger, RN, CNLCP, CBIS, from testifying because she is not qualified to testify on future costs derivative of medical coding decisions and her life care plan is unsupported by medical evidence and fails to account for preexisting injuries.
Nursing Expert Witness
Linda K. Wilson-Schwieger, RN, CNLCP, CBIS is a certified nurse life care planner and certified brain injury specialist who has spent the last 19 years developing life care plans. She is a member of the American Association of Nurse Life Care Planners, where she spent two years as the National Conference Chairperson, a member of the American Association of Legal Nurse Consultants, where she served as President of her chapter, and a member of the International Association of Rehabilitation Professionals.
In seeking exclusion, Defendants noted that Schwieger conceded through her discovery deposition that she has no training, education, or experience in medical coding. Defendants claimed that this is significant because her cost opinions related to a portion of her life care plan derive from her independent medical coding decisions. Additionally, because her opinions are not supported by independent admissible evidence, Schwieger’s future cost opinions are irrelevant. Finally, Schwieger failed to account for whether Marlene would have needed the items and services in her life care plan due to her preexisting conditions.
B. Qualifications to Testify on Future Costs Using Medical Coding Decisions
Defendants contended that, despite Schwieger’s lack of training, education, or experience in the world of medical coding, she selected the second highest code and cost available for every physician service in Marlene’s life care plan.
Defendants contended that Schwieger’s life care plan opinion associated with (1) Physician Care; (2) Diagnostics; and (3) Physical, Occupational, and Speech-Language Therapies should be excluded because, based on the complexity of medical coding and given that she has not been trained or educated on how to select an appropriate medical code, she is not qualified under Daubert to render such opinions.
Given the nature and complexity of medical coding and the fact that Schwieger has no training, education, or experience in selecting medical codes for a patient, the Court concludes Schwieger lacked the requisite specialized knowledge under Rule 702 to select medical codes. Significantly, Schwieger did not base the medical codes she selected on codes that had previously been selected by healthcare providers. Instead, she independently selected medical codes that she believes may be selected by Marlene’s future healthcare providers. Her decision as to the appropriate code was “based on the complexity of what I know about [Marlene] and her issues.” However, Schwieger admitted that she is not qualified to make medical diagnoses and must rely upon decisions made by Marlene’s treating physicians.
Therefore, the Court granted Defendants’ motion to the extent it sought the exclusion of Schwieger’s life care plan opinions premised upon her medical coding selections: (1) Physician Care, (2) Diagnostics, and (3) Physical, Occupational, and Speech-Language Therapies.
C. Medical Evidence in Support of Life Care Plan
Defendants next contended that Schwieger’s life care plan is unsupported by medical evidence and fails to account for preexisting injuries. Specifically, she failed to collaborate with a physician for most of the opinions and did not account for Marlene’s preexisting conditions in developing her life care plan.
Plaintiffs argued that Schwieger relied on the medical opinions of a board-certified physical medicine and rehabilitation physician who has cared for thousands of stroke patients over the last 15 years, when drafting the life care plan. Schwieger also reviewed Marlene’s medical records and the deposition testimony of two of her medical providers. As a result, the Court concluded that the information is sufficiently reliable and relevant to assist the factfinder.
Defendants further noted that Schwieger was aware that, prior to her December 2019 stroke, Marlene had a debilitating condition known as rheumatoid arthritis, which resulted in her being on social security disability for two decades. Defendants contended that Schwieger failed to consider Marlene’s preexisting condition. However, while Plaintiffs appeared not to have disclosed any physicians to differentiate which items and services in Schwieger’s life care plan would have been needed if Marlene had not suffered a stroke, Mathew’s testimony touches on the issue.
Thus, the Court declined to bar Schwieger’s testimony as to the life care plans.
Held
The Court granted in part and denied in part the Defendants’ motion to bar the testimony of Linda Schwieger, RN, CNLCP, CBIS.
Key Takeaway:
While Schwieger lacked the requisite specialized knowledge under Rule 702 to select medical codes, Schwieger’s review of Marlene’s medical records, review of the deposition testimony of her treating physicians, her nursing assessment of Marlene, and Schwieger’s own education, training, and experience, all formed the factual basis of her life care plan.
Case Details:
Case Caption:
Do Et Al V. Blessing Hospital, A Corporation Et Al
Plaintiff Edgar T. Rodriguez filed this civil rights lawsuit against Defendants, including the City of Eugene as well as individuals Timothy Hunt, Mark Hubbard, and Faith McCready.
This case arises out of a police response to a disturbance at Plaintiff’s apartment on September 10, 2016, during which Plaintiff was shot by Defendants Hubbard and Hunt with the Eugene Police Department.
Wilson Carlyle “Toby” Hayes has a B.S. in Mechanical Engineering from Stanford University, 1964, a M.S. in Mechanical Engineering from Stanford University, 1966, and a Ph.D in Theoretical and Applied Mechanics from Northwestern University, 1970.
From 1969 to 1970, Hayes was a Research Fellow at the Laboratory for Experimental Surgery in Davos, Switzerland, and from 1970 to 1971 he was a Special Research Fellow at the Department of Orthopaedic Surgery at the Karolinska Institute in Stockholm, Sweden.
Hayes served as an Assistant Professor of Mechanical Engineering and Orthopaedic Surgery at Stanford University from 1971-1976; an Associate Professor of Orthopaedic Surgery at the University of Pennsylvania from 1976-1979; and a Professor of Orthopaedic Surgery and later of Biomechanics at Harvard University from 1979-1998.
After leaving Harvard University, Hayes was Vice Provost for Research at Oregon State University between 1998 and 2001 and Professor of Orthopaedics and Rehabilitation and Vice Chair for Research at Oregon Health Sciences University from 1998-2004.
Hayes is Qualified to Testify on Questions of Biomechanical Engineering
Hayes’ report covered a reconstruction of the shooting based on a FARO scan, photographs, post-shooting medical imaging, police reports, deposition testimony, and declarations.
Hayes’ report used biomechanical and anatomical principles and shooting reconstruction techniques, including modeling and the application of specialized software, to opine on the relative positions and physical orientation of Plaintiff and the Defendant officers during the shooting.
Moreover, the Court concluded that Hayes is qualified to testify on questions of biomechanical engineering, including shooting reconstructions; anatomy; the analysis of injuries; and the assessment of medical reports and imaging. The Court concluded that Hayes’ opinions concerning the shooting reconstruction are relevant and sufficiently reliable to meet the Daubert standard.
Hayes is not Qualified to Testify as an Expert on Perception–Response Time
Hayes’ report also consisted of opinions based on perception response time. However, Plaintiff filed a motion to exclude testimony concerning perception response time on the grounds that Hayes is not an expert in the subject. At the hearing, Hayes testified that he took courses on ergonomics while studying for his master’s degree between 1964 and 1966 which included the study of perception response time. The Court concluded that this training and experience is not sufficient to qualify Hayes as an expert on perception response time and so Hayes may not offer testimony on that subject.
The Court added that (1) Hayes may not testify as to the intentions, thoughts, or perceptions of any party or witness in this case; (2) Hayes may not vouch for the testimony of any party or witness in his testimony; (3) Hayes may not testify on the time it took for the Defendant officers to call for an ambulance, both because that opinion falls outside of his area of expertise as a biomechanical engineer and because, by Hayes’ own admission, his opinion is not supported by any data; (4) Hayes may not testify concerning police policy, use-of-force, or deadly force as those topics fall outside of his expertise as a biomechanical engineer; and (5) Hayes may not testify as to ultimate questions of law, such as whether a party acted “reasonably.”
Held
The Court granted in part and denied in part the Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Wilson C. “Toby” Hayes.
Key Takeaway:
Hayes took courses on ergonomics while studying for his master’s degree between 1964 and 1966 which included the study of perception response time. The Court, however, concluded that this training and experience is not sufficient to qualify Hayes as an expert on perception response time.
This case arises out of Plaintiff Cheyanne Dixson’s 2022 termination as a police officer with the Issaquah Police Department after Defendant, the City of Issaquah, determined it could not accommodate Plaintiff’s religious exemption to vaccination against SARS-CoV-2, an employment requirement implemented by Defendant during the COVID-19 pandemic. Dixon was a patrol officer in the City’s Police Department.
Defendant produced the expert report of John Lynch, M.D., a board-certified physician in infectious disease. Lynch’s proffered testimony includes background information on the COVID-19 pandemic and the development of the first COVID-19 vaccines. Plaintiff filed a motion to exclude all testimony by Lynch.
Infectious Disease Expert Witness
John B. Lynch is a board-certified physician in infectious disease. He currently works as an Associate Medical Director of Harborview Medical Center and a Professor of Medicine at the University of Washington (UW) and actively practices medicine as an infectious disease clinician.
His work at Harborview included serving as the medical director for the occupational health program, and he also served on the Board of Directors of the Infectious Diseases Society of America from 2019 to 2022.
Lynch earned his Doctor of Medicine (“MD”) from the UW School of Medicine in 2002 and his Master’s in Public Health (“MPH”) in epidemiology and global health from the UW School of Public Health in 2011.
Plaintiff asserted that Lynch is not qualified to opine as an expert except on the “efficacy of [CV-19] vaccines,” that his opinions are irrelevant and unreliable, and that his testimony and report will confuse the issues and should be excluded.
A. Rule 702 Challenge
1. Lynch’s Qualifications
The Court held that Lynch is abundantly qualified by both experience and training to render the opinions he offered. Plaintiff has not produced evidence to negate these qualifications.
2. Relevance of Opinions
Defendant offered Lynch’s testimony in support of its “undue hardship” defense to Plaintiff’s claim, under the Washington Law Against Discrimination, that Defendant discriminated against her by failing to accommodate her sincerely held religious belief.
To prevail on its undue hardship defense, Defendant will need to establish that the accommodation sought by Plaintiff—here, remaining unvaccinated and fulfilling her usual job duties but submitting to twice-weekly COVID-19 tests, masking during work hours while in the presence of others, and eating her meals in her car, outdoors, or off site—would result in “substantial increased costs in relation to the conduct of [Defendant’s] particular business.”
Plaintiff repeatedly asserted that information about vaccines and safety risks is irrelevant but does not explain how the health-and safety-related cost Plaintiff’s unvaccinated status imposed on Defendant can be evaluated without this information.
The one argument that Plaintiff presented as to why these topics are irrelevant—”because the Plaintiff was exempt from the vaccine requirement . . . .” —would appear to foreclose any consideration of health risks or other intrinsic “costs” of waiving an employment requirement for an objecting employee. But it is hard to see how an undue burden defense could ever be adjudicated without information about the purpose and value of the employment requirement from which a Plaintiff is exempt or seeking exemption.
3. Reliability of Opinions
Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cited in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department.
Though Defendant provided extensive case law on medical expert testimony in its response, Plaintiff offered no reply. Accordingly, the Court found that Lynch’s opinions have “a reliable basis in the knowledge and experience of the relevant discipline.”
Further, where the particular facts of the case are relevant to Lynch’s opinions, he considered them with specificity. For example, he considers Plaintiff’s work duties, the settings in which she worked, and the people with whom she interacted in her role as a police officer.
4. Plaintiff’s Other Arguments
Repeatedly, in support of her arguments on both relevance and reliability, Plaintiff argued for exclusion based not on opinions Lynch has offered but opinions he has not offered, mostly related to Plaintiff’s preferred framing of “the key issue” in this case: how could masking and testing be safe and effective from October to February and then unsafe or ineffective starting February 16, 2022.
Plaintiff also faults Lynch for not being able to precisely quantify “the residual risk of acquisition and transmission” by an unvaccinated person with Plaintiff’s accommodations and not opining on the actual incidence of breakthrough infections among Defendant’s employees or Defendant’s reliance on recommendations by the Centers for Disease Control and Prevention.
Assuming for the sake of argument that these “missing” opinions are relevant and otherwise admissible, the Court held that their absence is a subject for cross-examination, not a basis for exclusion of Lynch’s testimony under Rule 702.
B. Rule 403 Challenge
5. Testimony on Vaccine Development and Approval
Plaintiff objected to Lynch testifying about the development and Federal Drug Administration (“FDA”) approval of vaccines on the grounds that such testimony is both irrelevant and prejudicial, contending that “the introduction of these facts is more likely to prejudice the trier of fact by implying that [Plaintiff] contests vaccines and FDA approval and/or importance or efficacy. This is simply not true and the inclusion is prejudicial.”
As to the relevance of these issues, the Court agreed with Defendant that “[t]his data provides relevant background information about options available to the City and others to control the spread of COVID-19 in the workplace in late 2021 and early 2022.”
As to any potential undue prejudice, Plaintiff explained neither how facts about vaccine history and development imply anything at all about Plaintiff’s personal opinions, nor how such an implication could be prejudicial when the very basis of this case arises out of Plaintiff’s religious objection to a workplace vaccination requirement.
6. Opinions on Vaccine Hesitancy and Misinformation
Plaintiff also objected to a section of Lynch’s report entitled “Vaccine Hesitancy and Misinformation,” on the grounds that it “is likely to be more prejudicial than beneficial to the inquiry.” Besides this assertion, however, Plaintiff offered no argument on this topic.
According to the Court, this alone is a sufficient basis to reject Plaintiff’s unreasoned request for exclusion.
The Court noted, moreover, that most of the opinions Lynch offered in the challenged section are directly responsive either to specific statements in Plaintiff’s complaint or to arguments advanced by Plaintiff during this litigation.
Finally, Plaintiff argued that Lynch’s purported opinion that Defendant should not have accommodated Plaintiff even temporarily “will likely confuse the trier of fact, not assist them.” The Court need not consider the likelihood of confusion because Plaintiff presented no evidence that Lynch has ever expressed this opinion.
The other testimony cited by Plaintiff arose from a question about why Defendant would have accommodated her; Lynch responded that he was neither a human resources person nor involved in the conversations. Lynch tried to discern the rationale by reading the documents with which he was presented and responded that accommodating Plaintiff was a policy decision by human resources. Nowhere in the referenced material did he opine that Defendant should not have accommodated Plaintiff.
These exchanges, viewed along with their mischaracterization here by Plaintiff’s counsel (who also deposed Lynch), create the impression that counsel, not having solicited the deposition testimony she wanted from Lynch, decided to distort his testimony beyond recognition. The Court will give counsel the benefit of the doubt and assume that this was an honest mistake rather than a willful misrepresentation.
Held
The Court denied the Plaintiff’s motion to exclude the opinions of Defendant’s expert John Lynch.
Key Takeaway:
In ignoring the applicable standards, Plaintiff presented no clear argument that Lynch’s experience did not support his conclusions (and the Court finds that it does); that his reasoning is circular, speculative, or otherwise flawed (and the Court finds that it is not); or that his reasoning is not adequately explained (and the Court finds that is is).
Lynch explained in his declaration that his opinions were formed based on knowledge gained in “decades of working in clinical infectious diseases, infectious disease research, public health, and epidemiology,” the medical studies and public health data he cites in his declaration and report, his review of over a dozen documents from this case, and a visit to the Issaquah Police Department. This is clearly consistent with the types of sources typically relied on by medical professionals.
Case Details:
Case Caption:
Rosa V. City Of Issaquah Et Al
Docket Number:
2:24cv1673
Court Name:
United States District Court for the Western District of Washington
