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  • Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    This case arises out of an ongoing dispute between Plaintiffs LoanStreet, Inc. (“LoanStreet”) and LoanStreet CEO Ian Lampl (“Lampl,” and together with LoanStreet, “Plaintiffs”) and a former employee, Defendant Wyatt Troia (“Troia”).

    LoanStreet, a online platform which provides services to help clients share, manage, and originate loans, hired Troia to work as a software engineer in February 2019.  In June 2020, LoanStreet terminated his employment. Troia subsequently posted disparaging statements about LoanStreet, Lampl, and other LoanStreet employees on various websites, including Glassdoor.com and Reddit.com.

    Troia also purchased advertisements on Google that would appear when users searched the following terms or phrases: “LoanStreet”; “Loan Street”; “LoanStreet Glassdoor”; “LoanStreet careers”; “LoanStreet engineering”; “LoanStreet software engineering”; “What it’s like to work at LoanStreet”; and “LoanStreet Jobs.” Each of Troia’s Google advertisements began with the heading: “LoanStreet horror story” and linked to a Reddit post he had made, titled: “Name and Shame: LoanStreet (NY) cheated me out of equity.”

    Plaintiffs brought suit against Troia, asserting claims for breach of contract, defamation and unfair competition.

    Troia filed a motion to exclude Plaintiffs’ proposed expert, Allen Adamson while Plaintiffs filed a motion to exclude Troia’s proposed experts, Deepak Sabiki and Lamarcus Bolton.

    Branding Expert Witness

    Allen P. Adamson is a co-founder and managing partner of Metaforce, a marketing and brand consultancy, and he is an Adjunct Professor and guest lecturer at New York University’s Stern School of Business. He received his B.S. from the S.I. Newhouse School of Public Communications at Syracuse University and his MBA from New York University’s Stern School of Business.

    Want to know more about the challenges Allen Adamson has faced? Get the full details with our Challenge Study report.  

    Forensic Accounting Expert Witness

    Deepak Sabiki is a principal at Sabiki Consulting LLC, and he serves as a consulting and testifying expert in “forensic accounting, compliance, and litigation matters.” Sabiki received his B.S. in Finance and Economic Theory Analysis from New York University’s Stern School of Business.

    Get the full story on challenges to Deepak Sabiki’s expert opinions and testimony with an in-depth Challenge Study

    Psychology Expert Witness

     Dr. Lamarcus R. Bolton is a Principal at Insightful Holdings, a research firm based in Los Angeles, California. He attended St. Louis University, where he received his B.A. in Psychology and his M.S. and PhD in Industrial/Organizational Psychology.

    Discover more cases with Lamarcus Bolton as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Troia’s Daubert Motion

    Troia filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Allen Adamson.

    In his thirty-six-page report, Adamson evaluated the damage sustained to LoanStreet’s brand as a result of Defendant’s defamatory statements, focusing on the impact of his advertisements and posts on the company’s brand, and specifically on its ability to recruit software engineers and other prospective employees, attract and retain investors, and appeal to customers. Adamson further assessed the reputational damage sustained by Lampl’s “personal brand” due to Defendant’s statements.

    He ultimately determined that LoanStreet would need to spend a total of $3,700,000 over at least two years to repair its reputation with software engineers, prospective customers, and investors, and that Lampl would be required to spend between $750,000 and $2,500,000 over the next three to five years in order to adequately restore his reputation and safeguard his future career prospects.

    Troia claimed that Adamson’s testimony should be excluded as “irrelevant, unreliable, and prejudicial” and raised a variety of concerns centering primarily upon the assertion that Adamson’s report did not adequately establish causation by isolating the harm caused by Defendant’s defamatory statements.

    He also asserted that Adamson’s damages calculation impermissibly accounts for the republication of Defendant’s defamatory statements by third parties, which Troia contended is speculative and resulted in an “artificially inflated” damages amount.

    As Plaintiffs noted, broad general damages are permitted in cases involving defamation per se, and Adamson’s testimony is thus squarely relevant to those claims.

    The Court held that Troia’s remaining concerns regarding Adamson’s report and proposed testimony primarily concerned the weight of his testimony, rather than its admissibility, and are best addressed on cross examination.

    b. Plaintiffs’ Daubert Motion

    i. Deepak Sabiki

    Sabiki reviewed Adamson’s expert report and, after reviewing additional documents in this case, issued a ten-page rebuttal report in which he concluded that Adamson’s report is “speculative and not reliable, because it fails to tie the wrongful acts of Troia to the economic harm that LoanStreet and Lampl allegedly suffered.” 

    Plaintiffs contended that Sabiki’s report should be precluded because: (i) he has no expertise in branding and reputational harm or repair; (ii) he did not perform his own analysis or proffer a contrary damages calculation; and (iii) his proposed testimony presents arguments that counsel could make equally well without a witness.

    As an experienced consulting and testifying expert in litigation and forensic accounting with a degree in finance and economic theory analysis, the Court held that Sabiki is qualified to testify as a rebuttal expert regarding Adamson’s analysis of the economic damages sustained by Plaintiffs as a result of Defendant’s defamatory posts. Moreover, Defendant clarified that Sabiki is testifying solely as a rebuttal expert.

    Although Plaintiffs contended that Sabiki’s analysis consisted of observations that “can be observed readily by jurors and/or brought out in cross examination without benefitting from any aid by an expert,” they have not raised sufficient concerns regarding Sabiki’s qualifications or the reliability and relevance of his testimony. On the contrary, Sabiki’s opinion raised questions regarding Adamson’s analysis and methodologies, centering primarily on his failure to perform an economic causation analysis and a comparative damages analysis, as well as the data and assumptions underlying Adamson’s report. Although Plaintiffs may disagree with Sabiki’s conclusions, the Court held that those disagreements are best addressed on cross-examination.

    ii. Dr. Lamarcus Bolton

    Bolton conducted two surveys intended to “analyze public perceptions of the Defendant’s online statements regarding” LoanStreet and “gauge how these perceptions influenced potential employees’ and potential customers’ decisions to work for or engage in business with LoanStreet.”

    In his 137-page report, Bolton concluded, inter alia, that the survey results suggested that “the vast majority of the readers” of Troia’s posts “did not think the posts accused LoanStreet of breaking the law when it withheld equity compensation from Troia.”

    The primary issue with Bolton’s survey and report, as Plaintiffs noted, is its focus on whether respondents believed that Defendant had accused Plaintiffs of “breaking the law.” The use of this phrase appeared to be designed to determine whether the survey respondents believed defendant’s posts conveyed defamatory meaning. However, “breaking the law” carries an indisputably criminal connotation, and its use is entirely inappropriate in a survey carried out to assist in the determination of damages owed in a civil litigation. 

    Further, the Court agreed with Plaintiffs that both surveys impermissibly attempted to relitigate the question of liability and Defendant’s intent in crafting his posts by asking whether it “is possible” that the author of the posts “did not intend to claim LoanStreet broke the law” or was “motivated . . . by a desire to protect fellow workers” and asking whether the author’s post was “useful to public debate about workers’ rights.” Moreover, the fact that Bolton’s survey examining Defendant’s Reddit post did not include all the defamatory statements contained in the original post rendered that survey unusable.

    Additionally, both surveys are less reliable because they failed to exclude survey respondents with prior knowledge of Defendant’s posts regarding Plaintiffs or who had pre-existing perceptions regarding LoanStreet.

    Held

    • The Court denied Troia’s motion to exclude the testimony of Plaintiffs’ expert Allen Adamson.
    • The Court denied Plaintiffs’ motion to exclude the testimony of Troia’s experts with respect to Deepak Sabiki but granted it with respect to Dr. Lamarcus Bolton.

    Key Takeaway:

    While each methodological flaw, standing alone, may not mandate exclusion, the cumulative effect of the methodological flaws so diminishes the reliability and probative value of the survey that its exclusion is warranted under Rules 403 and 702.

    Case Details:

    Case Caption: Loanstreet Inc. Et Al V. Troia
    Docket Number: 1:21cv6166
    Court Name: United States District Court, New York Southern
    Order Date; September 03, 2025
  • Legal Expert’s Testimony on the Customs and Usages of the Oil and Gas Industry Admitted

    Legal Expert’s Testimony on the Customs and Usages of the Oil and Gas Industry Admitted

    Louisiana Minerals, Ltd., as lessor, and Weyerhaeuser, as lessee, are the successors in interest to a 1986 Timber Sale and Lease Contract (“Contract”).

    LML asserted that Weyerhaeuser has entered into a significant number of unauthorized third-party agreements that impinge upon or adversely affect LML’s rights under the Contract. Damages were sought for harm caused by Weyerhaeuser’s alleged breach of contract and a declaration of the parties’ rights under the Contract to preclude Weyerhaeuser’s “unauthorized” activity going forward.

    Both parties retained multiple experts to offer testimony concerning the interpretation of the parties’ agreement and calculation of damages. Weyerhaeuser Company filed a Daubert motion exclude the testimony of Patrick Ottinger while Louisiana Minerals, Ltd. filed a Daubert motion or alternative motion in limine to exclude or limit the testimony of Keith B. Hall.

    Law And Legal Expert Witnesses

    Patrick S. Ottinger has practiced mineral law for forty-nine years — including examining title for oil and gas purposes, has taught oil and gas courses at the Paul M. Hebert Law Center, Louisiana State University since 1996, and has authored numerous articles on a variety of issues involved in this field.

    Want to know more about the challenges has faced? Get the full details with our Challenge Study report.  

    Professor Keith B. Hall practiced law for sixteen years focusing on oil and gas litigation and transactions prior to joining the LSU Law faculty in 2012. He has served as an expert on customs and practices within the oil and gas industry on numerous occasions, including disputes that arose in Louisiana. Hall also holds multiple academic and professional appointments that focus on mineral rights and energy law, including serving as Director of the Mineral Law Institute at Louisiana State University (LSU). He is also the co-author of four books on oil and gas law.

    Get the full story on challenges to Keith Hall’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    The Ottinger Motion

    LML’s proffered expert, Ottinger was retained to give his “opinion as to the effect and import of the [Contract] … particularly as to the provisions contained therein relative to the right to exploit mineral resources in and under the [Property] affected by the [Contract], and to conduct surface activities, or to grant other surface rights, on the [Property] described in the [Contract].”

    Weyerhaeuser sought to exclude Ottinger’s trial testimony on the basis that the opinions rendered in his expert report consisted entirely of legal opinions.

    Weyerhaeuser pointed to Ottinger’s deposition testimony stating that his proposed testimony is “fairly characterized as an opinion about how the [Contract] might be interpreted in granting or reserving rights to minerals in the land, including how the Contract would be viewed as a legal instrument within the structure of the Civil Code.”

    The Hall Motion

    Hall was retained by Weyerhaeuser to opine on “customs, usages and practices of the oil and gas industry, and particularly … relevant to agreements governing a mineral owner’s and its mineral lessee’s right to use the surface of land to conduct mineral operations and the concurrent rights of others to use the surface.”

    LML asserted that Hall did not possess the requisite knowledge, skill, experience, training or education to instruct the Court as the fact finder on custom and practices of timber leases or surface use agreements.

    LML also claimed that Hall did not review documents showing the opinions or practice of mineral lessees or their interpretations of the Contract as it pertains to surface use on the Property.

    Analysis

    Having carefully reviewed Ottinger’s expert report and deposition testimony, and particularly considering his years of experience as an oil and gas title examiner, professor of law, and mineral lawyer, the Court is satisfied that he possesses knowledge that may assist the trier of fact in understanding how the issues presented in this case conform to the customs and usages in the oil and gas industry.

    As a result, Ottinger was allowed to testify, based on custom and usages, as to how the Contract and third-party agreements of the kind in dispute work in the oil and gas industry. However, Weyerhaeuser’s point is well taken that, “it is inappropriate to allow an expert to opine on legal conclusions, even in a bench trial.” Accordingly, Ottinger was barred from testifying about the legal effect and meaning of the Contract.

    Hall’s experience as an oil and gas lawyer and an expert on customs and practices within the industry, coupled with his multiple academic and professional appointments and related authorship, are all indicia that he possesses knowledge that will assist the Court in understanding the custom and practice regarding the agreements that LML now challenges. While Hall was allowed to testify about how the Contract and third-party agreement of the kind in dispute operate in the oil and gas industry, the Court did not permit Hall to testify about the legal effect or meaning of the Contract.

    Held

    • The Court granted in part and denied in part the Defendant Weyerhaeuser Company’s Daubert motion to exclude the testimony of Patrick Ottinger.
    • The Court granted in part and denied in part LML’s Daubert motion to exclude the testimony of Keith B. Hall.

    Key Takeaway:

    It is inappropriate to allow an expert to opine on legal conclusions, even in a bench trial. Accordingly, both Ottinger and Hall were barred from testifying about the legal effect and meaning of the Contract.

    Please refer to the blog previously published about this case:

    Oil and Gas Industry Expert is Qualified Despite Her Lack of Forensic Accounting Credentials

    Case Details:

    Case Caption: Louisiana Minerals Ltd V. Weyerhaeuser Company
    Docket Number: 5:22cv145
    Court Name: United States District Court for the Western District of Louisiana, Shreveport Division
    Order Date: June 4, 2025
  • Environmental Engineering Expert’s Testimony on Workplace Exposure Admitted

    Environmental Engineering Expert’s Testimony on Workplace Exposure Admitted

    Anthony Perrotti was an engineer who designed navigation control systems for air- and spacecraft. Aside from a brief stint at another aerospace company, he worked for Lockheed for his entire career, from when he was an intern in college until he died from gastroesophageal cancer at age 47. After his death, Jennifer Perrotti, his widow, brought this suit against Lockheed for negligence and strict liability, alleging that toxic chemicals at the facility where he worked caused his cancer.

    Plaintiff relied on Dr. Ranajit Sahu, a fate-and-transport engineer to establish causation. The Court filed a motion to exclude the testimony of Sahu.

    Environmental Engineering Expert Witness

    Dr. Ranajit (Ron) Sahu has over thirty one years of experience in the fields of environmental, mechanical, and chemical engineering. He has over twenty eight years of project management experience and has successfully managed and executed numerous projects in this time period. He has provided consulting services to numerous private sector, public sector and public interest group clients.

    Want to know more about the challenges Ranajit Sahu has faced? Get the full details with our Challenge Study report.  

    Discussion by the Court

    Sahu’s opinions are as follows. In the companion case, Sahu used Lockheed’s reported emission rates to model the concentrations of the substances at issue to which people in the area surrounding the facility were exposed, and then he compared those concentrations to the background exposures of the general population of the state. He concluded that the concentrations modeled in the area nearby were many times higher than the background exposures. The Court found that methodology reliable.

    Adopting that analysis in this case, Sahu then concluded that the decedent was “likely exposed” to the substances at issue via “occupational exposures.”

    Sahu characterized the decedent’s exposures as “elevated,” but he declined to quantify particular levels of exposure, instead performing a qualitative assessment. In his rebuttal report, Sahu noted that the studies he relied on concerning occupational exposures likewise did not quantify particular dosages.

    He pointed out that precise quantification would have required historical recordkeeping that Lockheed did not do, and he noted that any modeling he could conduct now would not capture the emissions to which this decedent in particular was exposed beginning three decades ago.

    Specifically, Lockheed argued: (1) because Sahu did not quantify the dose levels, no reliable data shows the decedent was likely exposed to the substances at issue; (2) Sahu’s failure to investigate exactly where the decedent worked in the facility and model exposures inside the facility means he cannot reliably show exposure; (3) the studies Sahu cited did not reliably support his conclusions because they do not all pertain to cancer; and (4) Sahu improperly relied on some data outside the time period of the decedent’s work.

    Analysis

    The Court held that the lack of a quantitative dosage assessment specific to the decedent did not make Sahu’s methodology unreliable. Based on his three decades of experience as an engineer in the field of air emissions, Sahu reconstructed data from the time of the decedent’s employment using Lockheed’s records to show the emissions coming from the facility, examined the ventilation system to determine that the decedent would have been exposed to those emissions through the air, and concluded that the decedent was likely exposed at elevated levels comparable to subjects in occupational exposure studies.

    Therefore, the conclusion that the decedent was exposed on-site at elevated levels logically flows from Sahu’s reliable opinion that individuals nearby were exposed to elevated levels against background.

    The Court found Lockheed’s secondary arguments similarly unavailing. Sahu explained that no matter where the decedent was working at the facility, he would have been exposed throughout.

    Sahu opined that insufficient containment and ventilation systems meant the decedent would have been exposed inside or out. He explained why he did not model inside the facility and why doing so would not have been useful anyway. He relied on studies examining occupational exposures because that was the opinion he was asked to provide—on workplace exposure, not the decedent’s particular cancer. Sahu referenced chemical usage records during the years of the decedent’s employment, and he explained that emissions prior to the decedent’s work also caused ongoing contamination.

    Held

    The Court denied Lockheed’s motion to exclude the testimony of Ranajit Sahu.

    Key Takeaway:

    Lockheed may quibble with exactly what Sahu’s opinion—that the decedent was “likely exposed” to the chemicals at “elevated” levels—can (and cannot) tell the jury about whether the chemicals caused his cancer. But there is nothing about this methodology or the data it interprets that is insufficient or unreliable from a Daubert standpoint.

    Case Details:

    Case Caption: Perrotti V. Lockheed Martin Corporation
    Docket Number: 6:22cv1338
    Court Name: United States District Court, Florida Middle
    Order Date: September 02, 2025
  • Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Untimely Disclosure of Neurosurgery Expert Permitted in Damages-Only Case

    Plaintiff, Pearl R. Kline was driving her vehicle eastbound on Interstate 70, near the Clear Springs exit in Washington County, Maryland. At the same time, a vehicle owned by Defendant Road Range Express and operated by Defendant Sukhjinder Singh was traveling directly behind Plaintiff’s vehicle. When Plaintiff stopped for traffic, Singh’s vehicle struck the rear of her vehicle. This incident led Plaintiff to file a negligence action against Road Range Express and Singh.

    On June 19, 2025, Defendants filed a motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik. In their motion, Defendants argued that Plaintiff’s Rule 26(a)(2) expert disclosure should be stricken because it is (1) untimely and (2) insufficient, in violation of Rule 26(a)(2) of the Federal Rules of Civil Procedure. 

    Neurosurgery Expert Witness

    Dr. Ira M. Garonzik is the founder and president of the Baltimore Neurosurgery and Spine Center which began in 2005. The Baltimore Neurosurgery and Spine Center specializes in the comprehensive treatment of a wide variety of intracranial and spinal disorders. Garonzik is widely published, having authored more than fifty peer reviewed articles, book chapters and abstracts.

    He completed his neurosurgical residency at the Johns Hopkins Hospital after earning his medical degree from the Emory University School of Medicine Summa Cum Laude and his undergraduate degree with highest honors from Johns Hopkins University. During his training, Garonzik completed specialized fellowships in complex spinal surgery and functional neurosurgery.

    Get the full story on challenges to Ira Garonzik’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendants argued that they would be severely prejudiced if the Court were to permit the untimely disclosure of Plaintiff’s expert because discovery had closed and the deadlines for their own disclosures had elapsed, leaving them with no opportunity to rebut or respond to Garonzik’s opinions.

    Plaintiff’s disclosure included the expert’s curriculum vitae and fee schedule, but omitted the expert’s report and did not otherwise summarize the expert’s opinions. There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient.

    There is no dispute that Plaintiff’s disclosure of Garonzik was untimely. And because the disclosure lacked the required written report when Plaintiff served it on Defendants, it was plainly insufficient under Rule 26(a)(2) of the Federal Rules of Civil Procedure. Moreover, as Plaintiff’s own opposition admitted, the untimely disclosure was not substantially justified. Consequently, the real inquiry is whether the error was harmless.

    In determining whether a party’s failure to disclose was substantially justified or harmless so as to exclude a witness pursuant to Rule 37(c)(1), this Court has broad discretion and is guided by consideration of five factors: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party’s explanation for its failure to disclose the evidence.” 

    Analysis

    The first factor, surprise, weighed in Defendants’ favor, as the disclosure came more than two months after the disclosure deadline and without advance notice.

    The second factor—the ability to cure—cuts both ways. Because the discovery period has closed, Defendants’ ability to identify a rebuttal expert is limited. However, reopening discovery for the narrow purpose of allowing Defendants to serve their own expert disclosures provides an adequate cure. Indeed, there are several cases in this District that have permitted limited extensions of discovery to mitigate the prejudice from untimely expert disclosures. 

    The third factor, disruption of trial, did not weigh heavily against Plaintiff, as no trial date has been set, and a modest extension of expert discovery will not substantially disrupt proceedings. The fourth factor, the importance of the evidence, strongly favored Plaintiff, as Garonzik is Plaintiff’s sole expert on damages, which is the only remaining issue in this case. Finally, the fifth factor, the explanation for the delay, weighed against Plaintiff, as no justification has been provided for failing to comply with the Scheduling Order.

    Given the broad discretion afforded to district courts in weighing these factors and fashioning appropriate sanctions, the Court will treat Plaintiff’s disclosure of Garonzik as an untimely Rule 26(a)(2) disclosure that can be rendered harmless by modifying deadlines in the Scheduling Order. 

    Held

    The Court denied the Defendants’ motion to strike Plaintiff’s Rule 26(a)(2) disclosure of Dr. Ira M. Garonzik.

    Key Takeaway:

    On balance, although Plaintiff’s disclosure was untimely, insufficient, and unjustified, precluding Plaintiff’s expert from testifying altogether in this damages-only case would be an extreme result. 

    The Court can adequately minimize the prejudice to Defendants through a limited reopening of expert discovery. The Court will re-open discovery for a 45-day period for the sole purpose of allowing Defendants to conduct discovery related to Garonzik’s report (including a deposition of Garonzik) and to designate rebuttal witnesses.

    Case Details:

    Case Caption: Kline V. Singh Et Al
    Docket Number: 1:25cv63
    Court Name: United States District Court, Maryland
    Order Date: August 28, 2025
  • Law Enforcement Expert’s Testimony on the Unique Overdose Risk of Fentanyl Excluded

    Law Enforcement Expert’s Testimony on the Unique Overdose Risk of Fentanyl Excluded

    David James Michael Jensen is charged in an eight-count Superseding Indictment with five counts of Unlawful Possession of a Firearm, one count of Possession of Controlled Substances with Intent to Distribute (methamphetamine and fentanyl), one count of Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and one count of Possession of Fentanyl with Intent to Distribute for events that occurred on five separate dates.

    The Government provided Jensen’s counsel with notice of potential expert testimony by Homeland Security Investigations Supervisory Special Agent Marco Dkane about criminal practices with respect to drugs and guns to be presented at trial. 

    Jensen filed a motion requesting the exclusion of testimony from Dkane about common methods and practices of drug dealers.

    Law Enforcement Expert Witness

    Agent Marco Dkane is a twenty-two year veteran of Homeland Security Investigations (“HSI”) with the United States Department of Homeland Security.

    His duties as a supervisory special agent include serving as Task Force Commander of a High Intensity Drug Trafficking Area Task Force, supervising investigative activities of narcotics agents and detectives from numerous agencies, instructing HSI investigators in narcotics investigations, and serving as a witness relating to drug trafficking method and trends. His investigative duties include conducting investigations of fentanyl, counterfeit pharmaceuticals, heroin, methamphetamine, cocaine, and MDMA (ecstasy) trafficking. 

    He has also served as an instructor for both local and national law enforcement training on counterfeit medications, contraband/narcotics, investigative techniques, and Organized Crime Drug Enforcement Task Forces.  Dkane has been involved in the investigation of transnational criminal organizations and drug trafficking organizations. He has served as an expert witness in jury trials where his testimony included explaining the practices of drug traffickers.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Marco Dkane’s expert testimony. 

    Discussion by the Court

    Rule 702 Challenge

    1. Relevance

    a. General Relevance Challenge

    Jensen challenged the expert testimony proffered by the Government because he asserted that this case involved no complex illegal activities that require expert guidance. However, the Ninth Circuit has repeatedly allowed expert testimony regarding modus operandi in cases where defendants have been charged with possession with intent to distribute drugs or possession of a firearm in furtherance of a drug trafficking crime, as Jensen is charged in this case. 

    The Court found that Dkane’s testimony is generally relevant and will help the jury understand the evidence or determine a fact in issue. 

    b. Specific Relevance Challenges

    (1) Matters of “Common Knowledge” to Jurors

    Jensen asserted that parts of Dkane’s proffered opinions are “matters of common knowledge familiar to jurors,” “at least for those who have read a newspaper, seen a movie, or watched television since 1960 or so.”

    In this case, the Government proffered that Dkane will testify about the difference between distribution and user amounts of drugs and provide other details relevant to the distribution counts.

    During a search incident to arrest on April 7, 2022, officers found over $1,000 in low-denomination bills on Jensen, and a search of his vehicle found weapons and a safe containing 528 fentanyl pills, 75 grams of methamphetamine, and 22 grams of heroin in the trunk of a vehicle he had accessed moments earlier. The Government asserted that the jury is entitled to hear Dkane’s opinion as to, for example, whether 400 pills is a distributor’s or user’s quantity of fentanyl possession, information that is beyond the common knowledge of most individuals. The Court agreed that this type of information “supplements lay understandings about drug dealing and is a far cry from what is commonly known.”

    (2) Types of Controlled Substances and Drug Use

    Jensen asserted that the proffered opinion regarding the types of controlled substances largely consists of facts that “are both unassailable and immaterial to any issue in the case. . . . Fascinating, I suppose, in a Discovery Channel documentary way, but wholly unconnected with the facts of this case.” The Government responded that Jensen’s argument ignored the fact that he was found with the drugs that will be discussed by Dkane during the charged events. Some background testimony will be admissible to provide context to the Government’s case and may also help explain distributor’s or user’s quantity of the drugs. The Court found that testimony about types of controlled substances and how drugs are used is relevant.

    However, the Court agreed with Jensen that Dkane’s testimony regarding harm to users or society generally, such as the unique overdose risk of fentanyl, is not relevant.

    (3) Common Slang Terms

    Jensen asserted that Dkane’s testimony regarding common slang terms and codes for controlled substances is unnecessary as none of the words at issue are uttered in this case. The Government acknowledged that this testimony is likely unnecessary in this case and it does not plan to introduce this testimony. The Court agreed that this testimony seems irrelevant in this case.

    (4) Legal Opinions

    Jensen asserted that certain opinions—such as whether fentanyl is a controlled substance—call for a legal conclusion that is for the Court and not the jury.

    The Government responded that ” Dkane’s testimony that various drugs are controlled substances, while containing within it a legal conclusion, is obviously necessary as a predicate fact to explain why drug dealers do or not do certain things.” The Court agreed with the Government. Further, it appeared that Jensen is not contesting that the drugs at issue in this case are controlled substances under federal law as he has agreed to a jury instruction on to this effect. 

    (5) Testimony Regarding “In Furtherance Requirement”

    Jensen asserted that admission of expert testimony on whether a firearm was possessed in furtherance of the charged drug trafficking would violate Rule 702.

    However, the Government will not be relying solely on the expert testimony to establish that Defendant possessed a firearm in furtherance of a drug trafficking crime, but also intended to introduce evidence of the proximity, accessibility, and location of the firearms in relation to the locus of the drug activities.

    2. Reliability

    As a preliminary matter, the Court noted that Jensen did not challenge Dkane’s qualifications as an expert, nor did he dispute that Dkane has specialized knowledge on the topics of types of controlled substances or common characteristics of drug trafficking or drug traffickers and has based his opinions on that knowledge.

    The Court found that the combined aspects of Dkane’s background, training and experience clearly meet the requirements of Federal Rule of Evidence 702 and qualify him to testify as an expert in the field of drug trafficking generally based upon his knowledge, skill, experience, training, and education.

    Rule 403 Challenge

    1. General Prejudice

    Jensen asserted that “[g]eneral expert testimony regarding common methods and practices of drug dealers should be excluded because it gives rise to unfair prejudicial inferences that outweigh the limited probative value of the evidence.” While the Court is cognizant of the dangers raised by Jensen, the risk that unfair prejudice will actually materialize is not so high that it substantially outweighs the probative value of Dkane’s testimony.

    2. Specific Prejudice

    a. Comment on a Defendant’s Mental State

    Jensen correctly asserted that a witness is not allowed to state an expert opinion or inference about whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged.

    Therefore, the Court granted Jensen’s motion but only as to excluding testimony by an expert as to whether the Defendant did or did not have a mental state or condition that constitutes an element of the crime charged.

    b. Fentanyl addiction and deaths

    Jensen argued that Dkane’s testimony concerning the addictive nature of fentanyl, the deaths it has caused, and the societal devastation resulting from its use did not prove the elements of the charged offense and created a substantial risk of prejudice. 

    The Court agreed that testimony regarding fentanyl statistics or death toll would be more prejudicial than probative and will exclude such testimony.

    The Court will limit the Government to eliciting testimony on the dangers of fentanyl as related to drug trafficking practices and as explanatory information related to law enforcement’s handling of the investigation and the seized drugs. 

    c. Testimony regarding types of controlled substances

    Jensen asserted that evidence about where the overwhelming majority of drugs trafficked in Washington are made, the fact that the drugs are usually smuggled into the United States through states other than Washington, and how they are transported to other localities are “wholly unconnected with the facts of this case.” The Court agreed that this type of evidence, while perhaps marginally relevant, is ultimately more prejudicial than probative.

    Therefore, the Court granted Jensen’s request to exclude this type of testimony pursuant to Rule 403.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the testimony from Marco Dkane.

    Key Takeaway:

    An expert’s opinion may overlap with the jurors’ own experiences or cover matters that are within the average juror’s comprehension, so long as the expert uses some kind of specialized knowledge to place the litigated events into context. Therefore, Dkane’s testimony about the difference between distribution and user amounts of drugs and other details relevant to the distribution is relevant.

    Case Details:

    Case Caption: United States V. Jensen
    Docket Number: 2:24cr204
    Court Name: United States District Court, Washington Western
    Order Date: August 28, 2025
  • Religious Studies Expert’s Testimony on the Beliefs of Jehovah’s Witnesses Admitted

    Religious Studies Expert’s Testimony on the Beliefs of Jehovah’s Witnesses Admitted

    Plaintiff Brianna Bolden-Hardge is a member of the Jehovah’s Witnesses and believes her faith forbids her from “swearing primary allegiance to any human government” and “swearing to engage in political or military activity—including taking up of arms.”

    She applied for a position with the Office of the California State Controller (“SCO”) and received an offer. However, her religious beliefs prevented her from signing an oath that the California Constitution requires public employees to take.

    Bolden-Hardge proposed signing the oath with an addendum expressing her own views on what she affirmed, which SCO understood to be a modification, not in conformance with applicable law, and thus rescinded the offer of employment. As a result, she alleged violations of her legal protections for religious freedom and accommodation.

    Plaintiff relied on certain expert opinions by Paul Finkelman, Ph.D., and Mathew N. Schmalz, Ph.D. Defendants filed a motion to exclude certain expert opinions of Finkelman and Schmalz. At the outset, the Court denied as moot the motion as to Finkelman because the Court did not find his opinions to be particularly helpful or relevant. Schmalz’s testimony on the other hand, was critical to Plaintiff’s Title VII disparate impact claim.

    Religious Studies Expert Witness

    Mathew N. Schmalz is a Professor of Religious Studies at the College of the Holy Cross. He has published multiple research papers and essays on Jehovah’s Witnesses.

     Schmalz has served as “the academic expert commentator for programs on television/digital platforms that have reported on Jehovah’s Witnesses,” “provided expert commentary on Jehovah’s Witnesses for national media outlets,” and is currently serving as an expert consultant on pending legal cases “to provide context on Watchtower beliefs and practices and the internal dynamics shaping Jehovah’s Witness life.”

    Get the full story on challenges to Mathew Schmalz’s expert opinions and testimony with an in-depth Challenge Study.  

    Law And Legal Expert Witness

    Paul Finkelman is a specialist in American legal history, constitutional law, law and religion, civil rights and race relations, African American history, civil liberties, American Constitutional history, the American Civil War, and legal issues surrounding baseball.

    He was an expert witness in a number of cases including the lawsuit over the ownership of Barry Bonds’ 73rd home run ball (Popov v. Hayashi) and in the famous Alabama Ten Commandments Monument Case (Glassroth v. Moore).

    Want to know more about the challenges Paul Finkelman has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    In this case, Schmalz was retained by the Plaintiff to “provide expert analysis and possible testimony concerning the beliefs and practices of Jehovah’s Witnesses concerning oaths.”

    Defendants did not contest that Schmalz’s testimony is helpful, as it goes to the core of the disparate impact claim. Defendants also did not substantively argue that Schmalz is unqualified. While they stated that Schmalz has not published research on Jehovah’s Witnesses since 1998, they did not explain why this gap in time precludes him from being qualified to opine on matters in this case. Instead, Defendants’ principal argument is that portions of Schmalz’s opinions are so unreliable, speculative or constitute improper legal conclusions that they must be excluded. The Court disagreed.

    The Court found that Schmalz’s opinions are “based on sufficient facts or data” to survive Defendants’ motion to exclude. 

    Held

    The Court denied Defendants’ motion to exclude portions of Dr. Mathew N. Schmalz’s testimony. 

    Key Takeaway:

    After an expert establishes admissibility to the judge’s satisfaction, challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. A district court should not make credibility determinations that are reserved for the jury.

    Case Details:

    Case Caption: Bolden-Hardge V. Office Of The California State Controller Et Al
    Docket Number: 2:20cv2081
    Court Name: United States District Court, California Eastern
    Order Date: August 29, 2025
  • Neurology Expert’s Testimony on Postoperative Complications Excluded

    Neurology Expert’s Testimony on Postoperative Complications Excluded

    This medical malpractice action is brought by Gladys Torres-Correa (“Plaintiff”) against Instituto de Ojos y Piel, Inc. and Dr. Miguel Santiago García, along with several unnamed insurers. After undergoing ophthalmic surgery performed by Defendants, Plaintiff allegedly developed a series of complications. 

    Consequently, Plaintiff claimed that those complications were caused by Defendants’ negligence. To prove her claims, Plaintiff intended to introduce at trial the expert witness testimony of Dr. José A. Rodríguez Robles.

    However, Defendants requested that the Court deem Rodríguez’s proffered testimony inadmissible.

    Neurology Expert Witness

    Dr. José Antonio Rodríguez Robles is a neurologist with extensive experience in alternative medicine.

    He did his doctorate in medicine and surgery at Ponce Health Sciences University.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding José Rodríguez Robles’ expert testimony.  

    Discussion by the Court

    Defendants provided four reasons to exclude the testimony of Rodríguez. First, Defendants argued that Rodríguez is unqualified to offer expert opinions regarding the medical issues in this case, given that he is not an ophthalmologist, has no formal training in the field, and has never performed the surgeries Plaintiff received in this case. Second, Defendants asserted that Rodríguez has failed to adequately describe what he believes to be the applicable standard of care in this case. Third, Defendants contended that Rodríguez’s proffered testimony regarding causation is wholly conclusory and “outcome driven.” Finally, Defendants asserted that “Rodríguez’s report and his deposition testimony are devoid of any clinical evidence, specific findings or medical literature to support” his opinion.

    In the first report, Rodríguez listed the medical records he reviewed, described Plaintiff’s then-current symptoms, provided a diagnosis of Plaintiff’s condition, and made general reference to three scientific publications. However, the first report did not define the “adequate standard of care” or the “proper precautions” that Rodríguez believed were not observed by Defendants.

    The second report also summarized information contained in the first report, and included citations to ten legal and scientific references that Rodríguez consulted in forming his opinion, three of which were also included in the first report. At no point, however, does either report ever attempt to explain how the opinion of Rodríguez was informed by or related to any of the referenced scholarship.

    Rodríguez Fails to Identify the Applicable Standard of Care

    Rodríguez failed to provide any such evidence of a national standard of care, and Plaintiff openly conceded that fact.

    The deposition testimony of Rodríguez did not cure these deficiencies. Wherever Rodríguez was asked a direct and concrete question regarding the applicable standard of care during the deposition, he failed to articulate the relevant standard in any meaningful detail. 

    The Court held that these analytical gaps implicate the reliability of the proffered expert testimony, as Rodríguez provided no reasoned or detailed basis for the conclusions adopted in his reports. Furthermore, the absence of any reliable opinion testimony regarding the applicable standard of care also compromises the relevance of the proffered testimony.

    Rodríguez Failed to Provide Support for the Conclusion that Defendants Deviated from an Applicable Standard of Care, or that any such Deviation caused Plaintiff’s Injuries

    Even if Rodríguez had articulated an applicable standard of care, the proffered testimony still failed to provide a reasoned basis for the conclusion that Defendants breached any such applicable standard of care.

    In characterizing the opinion of Rodríguez as “outcome driven, as opposed to causation driven,” Defendants argued that Rodríguez improperly relied on the mere fact that Plaintiff sustained an injury to reach the conclusion that Defendants were negligent. The Court agreed. The opinion proffered by Rodríguez is entirely conclusory, as he failed to provide any substantive explanation of the “proper procedures” or the preferred surgical “technique” that allegedly went unheeded by Defendants. Nor did he ever explain how any such unstated acts or omissions caused Plaintiff to experience postoperative complications.

    When urged during the deposition to cite any evidence supporting the conclusion that Plaintiff’s injuries were caused by Defendants’ negligence, Rodríguez explained that his opinion was simply based on the fact that Plaintiff had sustained injuries. However, by indicating that Plaintiff’s injuries could have occurred even in the absence of any negligence, Rodríguez deposition testimony appears to undermine his own conclusory opinion that Defendants must have been negligent.

    Rodríguez Failed to Explain his Methodology or Provide Adequate Data to Support his Opinions

    In this case, the Court observed a significant analytical gap between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    In the reports, Rodríguez made general reference to eight publications relating to matters of ophthalmology, as well as two publications regarding “legal and ethical issues in medical malpractice.”

    Yet the reports never provided any analysis whatsoever to explain the relationship between the sources cited in the reports and the conclusions drawn by Rodríguez. None of the conclusions reached by Rodríguez cite directly to any scientific literature; the sources in question are simply appended to the end of the reports without any internal citations or further explanation. The reports never quote any of the cited sources, never summarize their findings, and never describe what, if any, data was drawn from the cited scholarship. To determine whether the citations provide any support for the proffered opinion of Rodríguez would require pure speculation where, for instance, Rodríguez made general reference to a nearly 1000-page textbook without any further explanation of how he relied on that scholarship.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of Dr. José A. Rodríguez Robles.

    Key Takeaway:

    In performing its gatekeeping function, the Court must determine whether the proffered expert opinion is “supported by an accepted methodology that is based on substantial scientific, technical, or other specialized knowledge.” The Court will not admit expert testimony that lacks “good grounds”: the admissibility of expert witness testimony is contingent upon whether the expert establishes “a valid scientific connection” between the data on which they have relied and the “pertinent inquiry” at issue in the case.

    In this case, there is a yawning “analytic gap” between the scientific literature cited by Rodríguez and the conclusory opinions articulated in his report.

    Case Details:

    Case Caption: Torres-Correa V. Instituto De Ojos Y Piel, Inc
    Docket Number: 3:23cv1025
    Court Name: United States District Court for the District of Puerto Rico
    Order Date: August 27, 2025
  • Road Safety Expert’s Testimony on Disability Discrimination Admitted

    Road Safety Expert’s Testimony on Disability Discrimination Admitted

    Plaintiff Gabriel Brandon Garzaa, a current part-time preloader and temporary cover driver, sued United Parcel Service Inc., alleging disability discrimination based on its failure to promote him or provide reasonable accommodations because of his disability. Garza asserted that UPS’ refusal to hire Garza in a Driver position is based on UPS’ written policy against hiring any person with a DOT hearing exemption as a Driver.

    Plaintiff retained Dr. Jamie Dow as an expert to testify in support of their case and rebut these defenses. Defendant filed a motion to exclude the expert testimony of Dow.

    Road Safety Expert Witness

    Dr. Jamie Dow has developed a world-wide reputation as an expert on medical fitness-to-drive standards over the past twenty years.

    He also conducted research on the effects of medical conditions on crash risk using a database containing complete medical and road safety records for 4.94 million Quebec drivers of whom 500 000 were commercial drivers.

    He was the chair of the Medical Advisory Committee of the Canadian Council of Motor Transport Administrators (CCMTA) and of the sub-committee on Medical Advisory Boards and Licensing at the US Transportation Research Board.

    Want to know more about the challenges Jamie Dow has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Dow’s opinion focused on whether there is a correlation between hearing impairment and the risk of motor vehicle crash. Dow’s opinion supported Plaintiff’s position that Defendant’s decision not to promote Plaintiff was based on discrimination and not safety concerns. It also rebutted Defendant’s business necessity defense.

    Defendant argues that Dow’s opinions are irrelevant and will not assist the trier of fact because they are “contrary to findings the [Federal Motor Carrier Safety Administration (“FMCSA”)] made in the 1970s.” However, Defendant’s argument ignored the last 55 years in which the FMCSA has amended its findings and regulations regarding hearing impaired drivers. Dow’s opinion merely confirms the FMCSA’s own current research and findings.

    The Court held that Dow’s opinion is based on sufficient facts and data. Along with his extensive background, Dow relied on the numerous documents and peer reviewed articles listed in his expert report. 

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Jamie Dow.

    Key Takeaway:

    Dow’s testimony is the product of reliable principles and methods in his field. Dow’s opinion reflects a reliable application of the principles and methods to the facts of the case.

    Case Details:

    Case Caption: Garza V. United Parcel Service, Inc.
    Docket Number: 1:23cv97
    Court Name: United States District Court for the Southern District of Texas, Brownsville Division
    Order Date: July 17, 2025
  • Psychology Expert’s Opinion on the Harm Resulting from the Alleged Misconduct Admitted

    Psychology Expert’s Opinion on the Harm Resulting from the Alleged Misconduct Admitted

    This is a pro se prisoner action brought by Plaintiff William A. White relating to White’s detention at the John E. Polk Correctional Facility, in Sanford, Florida, between May and December 2014. Plaintiff’s claims arise out of his placement in the isolation unit due to information received from the U.S. Marshals that White was a neo-Nazi with white supremacist views creating safety and security concerns.

    Dr. Richard M. Samuels has provided a forty-page report (including appendices) titled Independent Psychological Evaluation, opining as to the effects of Defendants’ alleged misconduct on Plaintiff’s psychological health.

    Defendants filed a Daubert motion to exclude opinions offered by Plaintiff’s psychological expert, Samuels.

    Psychology Expert Witness

    Dr. Richard M. Samuels has conducted 2300 psychological evaluations till date. He is licensed in Arizona and New Jersey and is a Member of the Arizona Supreme Court Competent Professional Mental Health Provider Panel, Maricopa County. He has been court-appointed in most Arizona, New York, and New Jersey counties.

    Get the full story on challenges to Richard Samuels’ expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Basically, Defendants contended that Samuels’ report “contains certain opinions of a medical nature [that Samuels] does not appear qualified to offer” and that Samuels provided “certain inflammatory opinions about historical references to interrogation techniques,” which are irrelevant. Defendants further maintained that the opinions offered by Samuels are unreliable because they are based on only a portion of the evidence and on Plaintiff’s self-serving statements.

    Additionally, Defendants argued that the report is not sworn or verified and is inadmissible hearsay, and they noted that other courts have questioned the opinions of Samuels. 

    Analysis

    Given his extensive credentials in the field of psychology, the Court held that Samuels is qualified to testify as an expert regarding his psychological evaluation of Plaintiff. Moreover, Samuels persuasively outlined his methodology in the report, and any alleged flaws in the methodology can be addressed through cross-examination.

    The opinions offered by Samuels are also likely to assist the factfinder because they provide psychological insights into how Defendants’ alleged misconduct could have harmed Plaintiff.

    Plaintiff represented to the Court that Samuels will not testify to matters outside his report or to “the legal standards of ‘physical injury’ or ‘greater than de minimis‘” harm. Additionally, the Court noted that Samuels may not present any legal conclusions at trial.

    Held

    The Court denied the Defendants’ Daubert motion to exclude the testimony of Richard Samuels.

    Key Takeaway:

    Because Samuels is not merely transmitting hearsay, is qualified to provide psychological opinions, has used a sufficiently reliable methodology, and is likely to assist the factfinder as to Plaintiff’s purported damages, the Court held that his opinions are not due to be excluded under Daubert.

    Case Details:

    Case Caption: White V. Eslinger Et Al
    Docket Number: 6:14cv936
    Court Name: United States District Court, Florida Middle
    Order Date: August 27, 2025
  • Marketing Expert’s Testimony on Review Hijacking Limited

    Marketing Expert’s Testimony on Review Hijacking Limited

    The present action stems from Plaintiff ML Products, Inc. (“ML Products”) and Defendants BillionTree Technology USA, Inc. (“BillionTree”) and Mountain Peak, Inc. (“Mountain Peak,” collectively, “Defendants”) competing for sales on Amazon.com where Defendants allegedly employed fraudulent tactics. Specifically, ML Products asserted claims of violations of the Lanham Act, false advertising, and unfair competition against Defendants.

    On April 12, 2024, Professor Brett Hollenbeck, ML Products’ affirmative technical expert, produced an expert report on his analysis of “the tactics related to online reviews used by certain competitors of ML Products, including BillionTree and its [alleged] affiliates.”

    Broadly, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking—inappropriately linking a different product’s reviews to the given product on Amazon and misrepresenting the product as having more positive reviews; reviewers of nine of the products complained that the seller sent them emails requesting them to change negative reviews into positive ones in exchange for payment; and by manipulating and falsifying product ratings, BillionTree increased its visibility and sales on Amazon, misled customers, and lowered the visibility of its competitors, thereby harming ML Products.

    Defendants filed a motion to exclude the testimony of Hollenbeck.

    Marketing Expert Witness

    Prof. Brett Hollenbeck is an Associate Professor of Marketing at the UCLA Anderson School of Management in Los Angeles, California. His educational background includes a Bachelor of Science in Economics and a Bachelor of Arts in Political Science, both from the George Washington University, a Masters in Economics from the University of Texas at Austin and a Ph.D. in
    Economics from the University of Texas at Austin.

    Want to know more about the challenges Brett Hollenbeck has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    1. The Expert Report is Compliant with Rule 26(a)

    Defendants argued that ML Products failed to disclose the facts and data—specifically, the Amazon information—considered by Hollenbeck in forming his opinion. Defendants further argued that ML Products’ failure to disclose warrants sanctions under Rule 37.

    The Court did not find that ML Products failed to disclose the facts and data considered by Hollenbeck in forming his opinion. Although Defendants are correct that the Hollenbeck Report must lay out the factual bases for his opinions, the Hollenbeck Report provided the factual bases upon which he formed his opinions as he explored whether BillionTree and its alleged affiliates engaged in product rating manipulation to increase its sales and harm competitors like ML Products.

    For instance, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking; 9 of the products had reviews where customers were offered gift cards to change negative reviews into positive ones; and BillionTree and its alleged affiliates’ conduct increased their products ratings and hurt the sales of its competitors, including ML Products.

    The Court is not convinced that ML Products’ disclosure prevented Defendants from conducting a meaningful deposition of Hollenbeck, as Defendants have had until August 20, 2025, to submit a rebuttal report and until September 3, 2025, to complete discovery, which is more than sufficient time.

    The Court found that sanctions under Rule 37 is not warranted, as ML Products did not fail to disclose Hollenbeck as an expert witness nor the facts and data supporting his opinions in the Hollenbeck Report.

    2. The Expert Report is Not Improper under FRE 703

    Defendants argued that the Hollenbeck Report should be excluded because it relies on inadmissible hearsay and improperly attempts to establish the truth of its content.

    However, the Court held that Hollenbeck may rely on hearsay as it is reasonably relied upon in the field of marketing academia. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function.  Further, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking, bribing customers to turn negative reviews into positive ones, and manipulating Amazon ratings to boost its sales and diminish competitors’ sales.

    Moreover, the probative value of Hollenbeck’s opinion outweighs its prejudicial effect because it could help a juror to determine certain facts like whether review hijacking, bribing customers for better reviews, and manipulating ratings constitutes an unlawful, unfair, or fraudulent business act or practice. 

    3. The Expert Report Applies Reliable Methods

    Defendants argued that the Hollenbeck Report should be excluded because it lacked analytical rigor, relied on incomplete data, and failed to account for alternative explanations.

    Defendants asserted that, for example, the report did not account for other variables impacting a products’ ranking on Amazon, and that the Hollenbeck Report did not provide evidence supporting its assertion that repurposed reviews misled consumers and caused harm.

    Hollenbeck reviewed product pages and analyzed 29 products. He further declared that he performed an analysis of the reviews and product pages downloaded by applying his skills and expertise from marketing academia.

    The Court found that his understanding and expertise in the area coupled with the general accepted principle that alternative explanations involve weight, not admissibility, are sufficient to assuage Defendants’ concerns of unreliable methodology.

    4. The Expert Report Attempts to Introduce Legal Opinions

    Defendants argued that the Hollenbeck Report repeatedly referred to Defendants’ alleged conduct as illegal according to the Federal Trade Commission, which is an impermissible legal opinion.

    The Court found that some of Hollenbeck’s opinions constituted improper expert opinions.

    In paragraph 9 of his report, Hollenbeck described BillionTree and its alleged affiliates as partaking in review hijacking and opines that “this type of review hijacking is considered illegal by the Federal Trade Commission.” In paragraph 99 of his report, Hollenbeck opined that BillionTree and its alleged affiliates engaged in “harassment and paying for positive reviews which are considered illegal by the Federal Trade Commission.” Interpreting whether conduct constitutes a violation of law regulated by the Federal Trade Commission falls squarely within the Court’s province, as it involves conclusion of law.

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Brett Hollenbeck.

      Key Takeaway:

      Expert witnesses may rely on inadmissible hearsay in forming their opinions, so long as it is of a type reasonably relied upon by experts in their field. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. In this case, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking.

      Case Details:

      Case Caption: ML Products Inc. V. Billiontree Technology USA, Inc.
      Docket Number: 2:23cv8626
      Court Name: United States District Court for the Central District of California
      Order Date: August 26, 2025