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  • Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Economics Expert Allowed to Testify Despite Not Considering Job Tenure

    Plaintiffs Donrudy Loiseau, Quinton L. Hebron, and Dwayne Small (together, “the Plaintiffs”), brought an individual and class action suit against their former employer, Bozzuto’s Inc., alleging discrimination against black employees with respect to promotions, warehouse position assignments, pay, workplace discipline, and terminations.

    Plaintiffs retained Dr. David M. Lang “to analyze employment data provided by Bozzuto’s Inc. to determine whether there were racial disparities between White and Black employees, especially in pay, job roles, promotions, and terminations (but also in discipline), and if so, the extent of those disparities and whether they are statistically significant.”

    Defendants filed a Daubert motion to exclude the opinions of Lang.

    Economics Expert Witness

    Dr. David M. Lang is a Full Professor and Chair of the Economics Department at California State University, Sacramento (CSUS). He routinely teaches courses at the University of California, Davis, across the Economics, Statistics, and Mathematics Departments, with a particular focus on labor economics and econometrics.

    Lang has published eight research papers and presented his work at more than 30 academic conferences. He earned his B.A. in Economics from Stanford University and both his M.A. and Ph.D. in Economics from Washington University in St. Louis.

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

    Discussion by the Court

    Defendants challenged the Lang Reports on two grounds: that Lang’s analyses failed to consider major non-discriminatory factors, rendering his conclusions unreliable and Lang’s analyses cannot be tested or reproduced because Lang has not produced the data underlying his opinions.

    Lang’s Analysis is Unreliable Because it Failed to Account for Major Non-Discriminatory Factors

    Defendants first alleged that Lang’s analysis is unreliable because it failed to account for major non-discriminatory factors: job type and tenure, employee qualifications, and whether an employee applied for a position or sought a promotion. Defendants urged that not only is Lang’s analysis so flawed as to lack any probative value, but that the alleged lack of consideration of certain non-discriminatory factors is fatal to its admissibility altogether.

    Lang’s analysis controlled for several variables, including job title, race, and
    base pay. Other factors Lang employed included corrective reviews, voluntary termination rates, and involuntary termination rates. Therefore, the Court held that the Defendants’ characterization of Lang’s analysis as aggregated and obfuscatory is inaccurate and ignored the disaggregated data Lang included across his two reports.

    Moreover, Lang’s decision not to consider certain factors (such as job tenure) is within his discretion and implicates, at most, the probative weight of his conclusions. Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure. Moreover, Lang explained that certain other variables, such as “experience” are not amenable to review based on the data Bozzuto’s supplied. The assessment of Lang’s conclusions, in light of those factors he did and did not include within his analysis, rests with the factfinder in assessing their ultimate credibility.

    Lang Failed to Provide the Data Underlying his Opinions, Preventing Reproduction or Testing of his Analysis

    Defendants argued that “Lang’s testimony is unreliable and should be excluded because he has not produced the data underlying his opinions, and thus his analyses cannot be recreated.”

    Defendants claimed that Lang “prevented anyone from recreating or testing the accuracy of his work by purposefully conducting his work in a manner to leave no trail or evidence of his analysis.”

    However, Lang did supply the materials underlying his reports. Plaintiffs sent
    Defendants Lang’s expert materials on September 13, 2024, something Defendants acknowledged in their January 30, 2025 correspondence with Plaintiffs’ Counsel.

    Defendants tempered their initial assertion that Lang did not supply any of the materials underlying his reports by stating instead that the information supplied has not allowed the Defendants’ expert to replicate his results. As described above, this demonstrates a misunderstanding of the requirements of Rule 702 with respect to replication. Admissibility under Daubert does not demand that dueling experts supply one another with step-by-step instructions on how to replicate their results.

    Held

    The Court denied the Defendants’ Daubert motion to exclude the opinions of David M. Lang.

    Key Takeaway:

    As a general matter, variables excluded from a regression analysis impact the probative weight, not the admissibility, of expert evidence. Moreover, which variables to include in a regression analysis are within the professional judgment of the expert where certain variables may be tainted by discrimination.

    In this case, Lang explained that tenure is not an appropriate control variable because it is tainted by discrimination, i.e., that Black employees are more likely to be terminated or disciplined as a result of discriminatory practice, thereby resulting in a shorter tenure.

    Case Details:

    Case Caption: Loiseau V. Bozzuto’s Inc
    Docket Number: 3:22cv1485
    Court Name: United States District Court, Connecticut
    Order Date: August 27, 2025
  • Adolescent Health Expert’s Testimony on Brain-Scan Studies Excluded

    Adolescent Health Expert’s Testimony on Brain-Scan Studies Excluded

    A.C. is a transgender boy who attends Martinsville High School. Prior to attending Martinsville High School, he attended John R. Wooden Middle School (“Wooden Middle”). While attending Wooden Middle, A.C. sought to use the boys’ restroom, the restroom he felt most comfortable using, but was denied access by the School District. The School District offered him the use of the school’s single-sex restroom instead.

    A.C. filed the instant lawsuit against the School District, citing Title IX and Equal Protection violations.

    The School District designated Dr. Kristopher E. Kaliebe as an expert witness to offer opinions concerning the care of youth with gender dysphoria. Plaintiff A.C. filed a motion to exclude the testimony of Kaliebe while Defendant Metropolitan School District of Martinsville filed a motion to exclude the testimony of James D. Fortenberry, M.D., M.S., who has been disclosed as an expert by Plaintiff.

    Psychiatry Expert Witness

    Kristopher Edward Kaliebe, MD is a Professor of Psychiatry at University of South Florida, in Tampa Florida. He is Board Certified in Psychiatry, Child and Adolescent Psychiatry and Forensic Psychiatry. He is a Distinguished Fellow at the American Academy of Child and Adolescent Psychiatry (AACAP). His clinical work has been primarily in University clinics, Federally Qualified Health Centers and juvenile corrections.

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

    Adolescent Health Expert Witness

    Dr. James Dennis Fortenberry is Professor of Pediatrics at Indiana University School of Medicine. He served as Division Chief from 2015 – 2020. He also holds an adjunct appointment in epidemiology in the Fairbanks School of Public Health and is a member of the Center for Sexual Promotion at Indiana University.

    Fortenberry is a member of the World Professional Association for Transgender Health, the Society for Adolescent Health & Medicine, the International Academy for Sex Research, the American STD Association, and the Society for Scientific Study of Sex. He is past president of the International Academy for Sex Research, and past-president of the American STD Association, a fellow of the Society for Scientific Study of Sex, and past chair of the Board of Directors of the American Sexual Health association.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding James D. Fortenberry’s expert testimony. 

    Discussion by the Court

    A.C.’s Motion to Exclude Testimony of Kaliebe

    A.C. argued that Kaliebe is not qualified to render opinions concerning gender dysphoria and social transition, Kaliebe’s opinions generally are not reliable, and Kaliebe’s opinions are irrelevant in assessing the damages caused for the emotional distress and physical discomfort A.C. experienced.

    A.C. narrows in on the fact Kaliebe has no clinical experience on the issue at hand in this case – the denial of a form of social transition, restroom usage, to a gender dysphoric youth.

    The School District details how Kaliebe’s testimony is relevant (1) to dispute whether their position regarding bathroom access is the cause of any irreparable injury to A.C.; (2) to the balancing harms analysis set forth in the permanent injunction consideration; and (3) to demonstrate that the public’s interest would not be served by a permanent injunction. However, there is no argument as to how this testimony relates to damages.

    Given the Court’s granting of the permanent injunction, the merits of the permanent injunction request are no longer an issue for trial. Therefore, the Court decided that Kaliebe’s proposed testimony is no longer relevant.

    The School District’s Motion to Exclude Testimony of Fortenberry

    The School sought to exclude the testimony of James D. Fortenberry, who opined that A.C. would suffer adverse effects if he is denied continued use of the boys’ restroom. The School District also sought to exclude Fortenberry’s testimony as to the genetic or brain-scan studies suggesting that there is a biological component to gender identity because those are areas outside his alleged expertise.

    Fortenberry’s Testimony on Harm Caused to Transgender Youth

    A.C. convincingly argued that most of Fortenberry’s testimony is necessary and relevant to demonstrate the types of harm – both physical and emotional – that transgender youth suffer. Fortenberry’s opinion that “forced use of facilities that contravene [A.C.’s] gender experience and identity are reasonably expected to cause adverse effects on relationships with his school, his safety at school, and his mental health” speaks to the harm A.C. experienced when he was denied access to the boys’ restroom prior to this Court’s grant of a preliminary injunction. Similarly, testimony about how youth react to the denial of access to appropriate restrooms and suicidality rates in transgender youth provides relevant background to the harms affiliated with gender dysphoria. A.C. testified that he made comments to his mom about not wanting to live trapped in a female’s body. This testimony is directly related to suicidal ideations in transgender youth.

    Fortenberry’s Testimony on Studies Demonstrating there is a Biological Component to Gender Identity

    However, A.C. has not successfully demonstrated how Fortenberry’s testimony that “gender expression/identity is not a ‘choice’” or testimony about genetic or brain-scan studies is relevant information that can help a jury understand gender dysphoria as it relates to A.C. specifically. A.C. argued that testimony about brain scans is necessary to explain his opinion that being transgender is not a choice. But A.C. did not explain how transgender status being a choice, opposed to a biological making, makes the harm he faced by the School District’s actions more or less probable. For this reason, the Court barred Fortenberry from discussing whether or not gender identity is a choice and from discussing genetic or brain-scan studies.

    The School District also argued that reports of the experiences of other young people with gender dysphoria should be excluded because it is hearsay, confusing to the jury, and unduly prejudicial. Fortenberry may communicate what he observed and heard to establish the basis of his opinion.

    Therefore, the Court held that while Fortenberry may testify about the harm caused to transgender youth who are denied the ability to socially transition,
    and the suicide rates of transgender youth, he may not testify about whether
    transgender status is a choice or studies demonstrating there is a biological component to gender identity.

    Held

    • The Court granted A.C.’s motion to exclude the testimony of Kristopher Kaliebe.
    • The Court granted in part and denied in part the School District’s motion to exclude the testimony of James Fortenberry.

    Key Takeaway:

    Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action. In this case, Fortenberry’s testimony is relevant to demonstrate the type of harms – both physical and emotional – that A.C. was caused by the School District restricting his access to the boys’ restroom. His testimony as to the danger of suicidality in transgender young persons is necessary to demonstrate how serious gender dysphoria is.

    Case Details:

    Case Caption: A.C. V. Metropolitan School District Of Martinsville Et Al
    Docket Number: 1:21cv2965
    Court Name: United States District Court, Indiana Southern
    Order Date: August 27, 2025
  • Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    Geriatrics Expert’s Cause-of-Death Opinion was Deemed Reliable

    James Dean Bloomer, as the surviving child of decedent James Wright Bloomer; and the Estate of James Wright Bloomer, through James Dean Bloomer Jr. as Administrator of the Estate, brought this action against Defendants HMG Park Manor of Westwood, LLC and HMG Services, LLC.

    Plaintiffs alleged wrongful death and survival claims under Kansas law arising out of decedent James Wright Bloomer’s treatment at a skilled nursing facility, HMG Park Manor of Westwood, LLC d/b/a Tanglewood Nursing and Rehabilitation (“Tanglewood”), located in Topeka, Kansas.

    Plaintiffs filed a Daubert motion to exclude certain opinions of Defendants’ retained expert Jeffrey A. Kerr DO.

    Geriatrics Expert Witness

    Jeffrey A. Kerr has been a physician since 1985 in many hospital settings. He is board certified in family practice, with an added qualification in geriatrics. He is also a certified medical director for long term care. Kerr has been affiliated with several different nursing facilities during most of his tenure as a physician, and he has served as an expert witness in many cases since 2020.

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

    Discussion by the Court

    Plaintiffs asserted that certain opinions of Kerr are made without analysis and are therefore conclusory. Defendants responded that these are two of several opinions that are based on Kerr’s preceding analysis in the report of Bloomer’s medical records for the four years leading up to his death.

    Kerr began his report by listing a multitude of deposition transcripts, exhibits, pleadings, medical records, and other documents he reviewed before rendering his opinions. Also, Kerr considered Bloomer’s extensive medical history and medications, and constructed an exhaustive timeline of his treatment going back to June 16, 2018. 

    The Court found that Kerr’s review of Bloomer’s medical records, in light of his training and experience that focuses on geriatric care, was sufficient for him to offer a reliable opinion on Bloomer’s cause of death. Plaintiffs failed to identify a specific reliability issue in the records Kerr relied on in formulating his opinions.

    To the extent Plaintiffs maintained that there are other facts that Kerr failed to consider, or that the timeline is flawed or missing information, those are matters for cross-examination because they go to the weight of the testimony, not its admissibility. The Court has reviewed the report and found no “great analytical gap between the data and opinion proffered” that would render it unreliable.

    Held

    The Court denied the Daubert motion to exclude certain opinions of the Defendants’ retained expert Jeffrey A. Kerr DO.

    Key Takeaway:

    Kerr was not required to categorically exclude each and every possible alternative cause—to require otherwise would mean that few experts would ever be able to testify. Instead, he was required to provide objective reasons for eliminating alternative causes. Therefore, the Court found that Kerr has provided an objectively reliable basis for his opinion.

    Case Details:

    Case Caption: Bloomer V. HMG Park Manor Of Westwood LLC
    Docket Number: 2:24cv2059
    Court Name: United States District Court, Kansas
    Order Date: August 22, 2025
  • Family Medicine Expert’s Standard-of-Care Testimony Excluded

    Family Medicine Expert’s Standard-of-Care Testimony Excluded

    This lawsuit arises out of medical care and treatment Courtney L. Mapes rendered to Plaintiff Bradley Medina on February 8, 2019 at Family Health Care Network. Medina brought a cause of action against Mapes for medical negligence based on the allegation that Mapes misdiagnosed him with a hamstring injury rather than an infection in his leg.

    Defendant filed a motion to exclude or limit “the scope of the opinions from Plaintiff’s designated rebuttal expert, Daria Majzoubi, M.D.,” asserting Majzoubi’s “proposed testimony exceeded the permissible scope of a rebuttal expert witness.”

    Family Medicine Expert Witness

    Daria Majzoubi, M.D. specializes in family medicine, and has been practicing medicine for over 13 years, starting his practice in the Central Valley in 2003. 

    Trained at George Washington University, Majzoubi did his Residency at Northwestern University.

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

    Discussion by the Court

    Defendant explained, “Plaintiffs were given leave to designate Majzoubi strictly to rebut the opinions of Defendant’s Infectious Disease expert as it relates to issues of medical causation presented in this case” however, “Majzoubi’s report testimony focuses nearly entirely on the issue of standard of care” and “goes beyond the scope of her designation as rebuttal expert in this case.”

    Plaintiffs contended that Majzoubi’s expert report and causation testimony is essential to its case and precluding it would be unfair.

    Majzoubi spoke to standard of care only, which is an issue Plaintiffs must prove in their case in chief. The fact that he disagreed with the defense experts does not make him a rebuttal expert. Therefore, the Court held that Majzoubi’s designation cannot properly be characterized as rebuttal testimony.

    Plaintiffs also asserted that the Defendant would not suffer any prejudice or unfairness because Defendant has retained an expert. However, the Court granted Plaintiffs several extensions solely for the purpose of designating a rebuttal expert to respond to the opinions of Defendant’s retained infectious disease expert, but they did not do so. Also, Plaintiffs failed to provide the Court any explanation or argument relating to untimely/improper disclosure.

    Held

    The Court granted the Defendant’s motion to exclude or limit the scope of the opinions from Plaintiff’s designated rebuttal expert, Daria Majzoubi, M.D.

    Key Takeaway:

    If a party fails to provide information or identify a witness as required by Rule 26, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.

    The Court did not find the failure to timely designate Majzoubi to be “substantially justified or harmless.” 

    Case Details:

    Case Caption: Medina Et Al V. Mapes
    Docket Number: 1:21cv844
    Court Name: United States District Court, California Eastern
    Order Date: August 10, 2025
  • Packaging Expert’s Testimony on Compression Failure Limited

    Packaging Expert’s Testimony on Compression Failure Limited

    Plaintiff Tricia McFee asserted a negligence claim against Defendant BJ’s Wholesale Club, Inc. (“BJ’s”) under New York law, arising from a slip-and-fall accident in the bottled water display area on August 20, 2020, while she was at a BJ’s club in Brooklyn, New York.

    Defendant filed a motion to exclude the testimony of Sterling Anthony, Plaintiff’s liability expert.

    Packaging Expert Witness

    Sterling Anthony is a certified packaging professional with over fifty years of experience. Anthony has a bachelor’s degree in packaging engineering from Michigan State University, a master’s degree in marketing and finance from Roosevelt University and has taken doctrinal courses in international marketing and logistics from Michigan State University. 

    He has published over two hundred articles in various trade journals related to marketing, packaging, and logistics, and has presented in “dozens” of seminars and conferences in the United States and abroad. Anthony has testified as a marketing, packaging, and logistics expert in depositions or at trials at least nineteen times since 2012.

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

    Discussion by the Court

    Anthony opined that BJ’s knew or should have known that (1) “a slip-and-fall hazard was inherent to its bottled-water section”; (2) “compression is a force that’s inherent to palletized bottled water”; (3) “leakage from just one bottle will spread across a wide area of [the] floor”; (4) “it owes a duty to its invitees to maintain its premises in a safe condition, including against the hazard of slip-and-fall[s]”; (5) “scheduled walkthroughs were necessary, but not sufficient, as a safeguard against slip-and-fall[s] in the bottled-water section”; (6) “there are measures that can be taken to reduce the risk of slip-and-fall in the bottled-water section”; and (7) “it owed its invitees a duty to warn concerning the hazard of slip-and-fall in its bottle-water section.”

    Qualifications

    Defendant argued that Anthony is unqualified because he “lacked the scientific, technical or other specialized knowledge to opine on the liability issues relevant” to Plaintiff’s slip-and-fall.

    Based on Anthony’s significant experience in packaging engineering, the Court found that Anthony has the “knowledge, skill, experience, training, [and] education” required by Rule 702 to offer opinions in this case relating to the packaging of palletized water bottles and the compression caused by their manner of packaging.  

    However, Anthony did not appear to have experience or training in shoe design and products. Because he lacked the qualifications or experience necessary to offer opinions regarding Plaintiff’s shoes, the Court excluded Anthony’s report and proposed testimony regarding whether Plaintiff’s shoes contributed to her fall.

    Reliability and Relevance

    First, Defendant argued that “Anthony failed to perform any testing or analysis of any kind” and that “his rudimentary ‘measurements’ of the unrelated Wellsley Farms water bottles were simply incorrect.”

    Second, Defendant argued that Anthony’s report and findings are unreliable because he “has made no showing whatsoever how his experience led to his conclusions, why that experience is a sufficient basis for his opinions, how that experience has been reliably applied to the facts or whether he performed any measurements or compression testing of any kind.”

    The Court excluded the portions of Anthony’s report and proposed testimony addressing whether Plaintiff’s injuries were caused by the compression failure of water bottles at BJ’s because they are not “based on sufficient facts or data” and did not “reflect a reliable application of the principles and methods to the facts of the case.” As Defendant argued, Anthony’s primary basis for concluding that compression failure led to a leak from the palletized water bottles was his analysis of a package of Wellsley Farms water from a different BJ’s club. It is undisputed that Plaintiff fell in front of the Poland Springs water display, and that the Wellsley Farms and Poland Spring waters were displayed separately.

    Probative Value and Prejudice

    Defendant argued that the Court should preclude Anthony’s testimony under Rule 403 because Anthony’s opinions have no probative value and would be prejudicial.

    Anthony’s report and proposed testimony — specifically, the discussions of the general risks of compression failure in bottled water packaging — is not unduly prejudicial or confusing because knowledge of bottled-water packaging may be probative of the source of the water on which Plaintiff slipped.

    Accordingly, the Court admitted only the portions of Anthony’s report and proposed testimony discussing the general risks of compression failure in bottled water packaging and excluded the portions regarding the causal relationship between the water condition at BJ’s and Plaintiff’s slip-and-fall.

    Held

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

    Key Takeaway:

    Expert testimony is inadmissible under Rule 702 if it is not accompanied by a sufficient factual foundation. Anthony’s opinion regarding whether the water in which Plaintiff slipped resulted from compression failure is not reliable or relevant since it is based on his analysis of Wellsley Farms water and his own assertions that the Wellsley Farms water is representative of other water brands.

    Case Details:

    Case Caption: McFee V. BJ’s Wholesale Club, Inc.
    Docket Number: 1:21cv3087
    Court Name: United States District Court, New York Eastern
    Order Date: August 25, 2025
  • Orthopedic Surgery Expert Allowed to Testify Despite a Temporary Lapse in Board Certification

    Orthopedic Surgery Expert Allowed to Testify Despite a Temporary Lapse in Board Certification

    This case concerns a personal injury. On July 5, 2021, Plaintiff Cline Cockburn was employed by AmSpec Services, LLC as a petrochemical inspector performing work for Marathon Petroleum Company, LP aboard in rem Defendant the M/V San Roberto, a vessel owned and operated by Defendant Buffalo Marine Service, Inc. (“Buffalo Marine”).

    At the time, the San Roberto was moored at a dock facility in Mt. Airy, Louisiana, that was owned by Apex Oil Company, Inc. Cockburn was injured while disembarking from the San Roberto when the gangway leading from the barge to the dock “gave way.” On July 5, 2022, Cockburn filed this suit against Apex, Buffalo Marine, and the San Roberto, in rem, and amended it on June 21, 2023, alleging negligence claims.

    In April 2022, nearly nine months after the accident, Cockburn began treatment with Dr. Alexis M. Waguespack, an orthopedic surgeon.

    Plaintiff Cline Cockburn filed a motion in limine to exclude evidence of prior alleged acts of malpractice and credentialing records related to Waguespack while Defendants Buffalo Marine Service, Inc. and Apex filed a motion in limine to exclude Waguespack’s testimony.

    Both Buffalo Marine and Apex filed a motion in limine to exclude the testimony of lifecare planner Jordan Frankel.

    Orthopedic Surgery Expert Witness

    Dr. Alexis Mayoral Waguespack has been performing orthopedic spinal surgery since 1998. She attended medical school at Louisiana State University School of Medicine, did her residency at LSU and completed a fellowship in spine surgery at the San Francisco Spine Institute in California.

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

    Vocational Rehabilitation Expert Witness

    Jordan Frankel earned his Master of Health Sciences in Rehabilitation Counseling degree from Louisiana State University Health and Sciences Center. Frankel is a Licensed Rehabilitation Counselor in the State of Louisiana, and has national certifications as a Certified Rehabilitation Counselor and a Certified Life Care Planner.

    He is a member of the International Association of Rehabilitation Professionals. Frankel has testified in federal court in the fields of Vocational Rehabilitation and Life Care Planning.

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

    Discussion by the Court

    Alexis Waguespack

    Buffalo Marine and Apex argued that Waguespack’s testimony should be excluded to the extent she may offer expert opinions on medical causation or necessity of treatment, or testify in any way as an expert, because, they say, she lacks the requisite expertise and her opinions are not reliable or based on sufficient facts or data.

    Buffalo Marine and Apex contended that Waguespack lacked expertise because she let her certification with the American Board of Orthopaedic Surgery lapse from January 1, 2021, to January 15, 2023, during part of Cockburn’s treatment, which began in April 2022.

    They also argued that Waguespack’s opinion—that Cockburn’s cervical symptoms and two cervical surgeries were more likely than not caused by the July 2021 incident—is unreliable, because it rests on Cockburn’s self-reported pain nine months after the incident.

    Analysis

    Having weighed Waguespack’s qualifications, history of treating Cockburn, and her deposition testimony against the arguments presented, the Court found that she is qualified by education and experience to render opinions as to medical necessity and causation. The opinions are reliable, considering her long career as an orthopedic surgeon and history of treating Cockburn. While the temporary lapse in Waguespack’s board certification does not make her unqualified to render the proffered opinions, it does raise questions as to her credibility and status at the time she began treating Cockburn. Therefore, the Court will not exclude such evidence.

    On the other hand, evidence about medical malpractice claims made against Waguespack are not relevant and would be more prejudicial than probative, and so will not be admitted into evidence. The questions raised by Buffalo Marine and Apex regarding the reliability of Waguespack’s testimony, such as the basis for her diagnosis, causation opinion, and the necessity of future treatment, can be addressed through vigorous cross-examination and the presentation of countervailing expert testimony.

    Jordan Frankel

    Buffalo Marine and Apex argued that Frankel’s testimony as to the cost of future medical treatment is predicated on Waguespack’s recommendation for a cervical fusion and that such evidence should be excluded to the extent that Waguespack’s testimony is excluded.

    Because the Court is not excluding Waguespack’s opinions on future treatment, it will not exclude Frankel’s opinions based on them.

    Held

    The Court denied Buffalo Marine and Apex’s motions in limine to exclude the testimony of Alexis Waguespack and Jordan Frankel.

    Key Takeaway:

    Waguespack’s temporary lapse in board certification does not mean that she lacked expertise, especially considering her long career as an orthopedic surgeon and history of treating Cockburn. However, it does raise questions as to her credibility and status at the time she began treating Cockburn. 

    Case Details:

    Case Caption: Cockburn V. Apex Oil Company Inc Et Al
    Docket Number: 2:22cv2058
    Court Name: United States District Court, Louisiana Eastern
    Order Date: August 22, 2025
  • Law And Legal Expert’s Speculative Calculations of Future Earnings Excluded

    Law And Legal Expert’s Speculative Calculations of Future Earnings Excluded

    Drew Dixon alleged that the Defendant, Antonio Marquis “L.A.” Reid sexually harassed her and refused to allow her to succeed unless she acquiesced to his demand to be alone and in close proximity to her while she was employed as an A&R executive at Arista Records from 1996 to 2002.

    Dixon claimed that Antonio Reid sexually assaulted her twice in 2001.

    Dixon departed Arista in 2002, leaving the music industry to pursue a degree at the Harvard Business School.

    Defendant filed motions to preclude the testimony of Plaintiff’s expert witnesses, Michael Selverne, Mark Plotkin, and Dr. Chitra Raghavan, pursuant to Federal Rules of Evidence 702 and 403.

    Law And Legal Expert Witness

    Michael Selverne is an attorney who, for the past 39 years, has specialized in the field of executive compensation in the music industry. Over the course of his career, he has represented artists in their contract negotiations for recording and performance agreements, record executives in their negotiations of compensation packages with their employers, and music labels in their negotiations with executives.

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

    Music Industry Expert Witness

    Mark Plotkin holds a Bachelor of Arts degree from a joint program between Case Western University and The Cleveland Institute of Music and has over two decades of diverse experience in the music industry. Plotkin is a member of the Recording Academy, co-founded Decision Desk and Wifi Music School, and is the founder and CEO of Beast Music A.I., a media platform utilized by record labels such as RCA Records and Atlantic Records. Plotkin further serves as a Professor and the Area Head of Business and Technology at New York University’s Clive Davis Institute of Record Music.

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

    Psychology Expert Witness

    Dr. Chitra Raghavan is a licensed clinical psychologist with more than twenty years of experience. Raghavan received her doctorate in clinical and community psychology at the University of Illinois at Urbana-Champaign and post-doctoral training at Yale University. Currently, she serves as a Professor of Psychology, Director of the Forensic Mental Health Counseling Program, and Coordinator of Victimology Studies in Forensic Psychology at John Jay College of Criminal Justice.

    She has previously testified as a witness for the prosecution in other cases regarding the effects of traumatic abuse and coercive control and given over 150 conference presentations and published over forty articles in various publications on subjects related to domestic violence, sex trafficking, and trauma.

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

    Discussion by the Court

    Michael Selverne

    In connection with this litigation, Selverne submitted an expert report setting forth his opinions regarding Plaintiff’s lost future compensation. In rendering his opinion, Selverne reviewed Dixon’s compensation package during her time at Arista.

    While the Plaintiff was hired in 1996 as a Senior Director for a two-year term, she was promoted to the position of Vice President when one of her “designated artist” albums sold 500,000 records. Selverne opined that the improvement in her compensation package and title in such a short time span indicated that Arista viewed Plaintiff as a “budding superstar.”

    Reviewing the compensation packages of contemporaries of Plaintiff who rose to the ranks of CEOs for major music labels, Selverne concluded that, if Dixon had “continued along the trajectory she was on when she departed Arista, it is highly likely that Dixon’s earnings would have reached seven or eight figures annually. It is equally likely that Dixon would have created a joint venture with a major record company and see her fortunes rise into the nine figures.”

    Analysis

    Selverne did not purport to calculate Plaintiff’s lost earnings based on her actual compensation at the time she left Arista. Indeed, he did not purport to calculate her lost earnings at all. He did not, for example, specify how long Plaintiff would have expected to work in the industry, with reference to verifiable statistics regarding longevity in the industry or even actuarial tables reflecting life expectancy. He did not calculate the value of lost benefits.

    Selverne’s lack of methodology in reaching his opinion on future earnings loss is reflected in his failure to quantify such damages. Selverne vaguely asserted that Plaintiff suffered damages in the range of millions to hundreds of millions of dollars.

    Selverne conjectures that Plaintiff not only would have continued to have a successful career in the music industry, but that she would have reached the pinnacle of the profession to become the CEO of a major record label or otherwise enter into a lucrative joint venture agreement. The Court held that these hypothetical promotions, bonuses, and business deals lack sufficient evidentiary foundation, and thus cannot form the basis of an expert opinion.

    Mark Plotkin

    Plaintiff retained Marc Plotkin to provide an expert opinion regarding the hypothetical earnings Plaintiff would have received from her A&R commission structure had she successfully signed Kanye West and John Legend.

    Plotkin first looked to Plaintiff’s employment agreement for the relevant formula and then researched West and Legend’s first contracts with Def Jam and Columbia Records, respectively, as well as their sales data year by year to ultimately determine how many records and singles were sold across various mediums and the price per unit.

    Analysis

    Defendant objected to Plotkin’s reliance on historical data regarding record sales as the basis for his opinion. Defendant contended that it rests on the faulty assumption that West and Legend would have released the same albums while at Arista and thus earned the same revenues. 

    The Court held that these are the types of assumptions that go to the weight of the evidence, not admissibility. The use of historical data may not provide exactitude, but allows for calculations to a reasonable certainty, which is all the law requires.

    Defendant also argued that the entirety of Plotkin’s opinion is speculative, in that it is unknown whether these artists would have signed to Arista if offered the chance or that they would have been deemed Dixon’s designated artists if they had done so. Defendant misapprehended the nature of Plotkin’s inquiry. Plotkin is not purporting to offer an opinion as to whether West or Legend would have signed to Arista, or if they had whether Dixon would have been responsible for signing them. Rather, his opinions are limited to a calculation of what commissions Plaintiff would have been entitled to under the terms of employment contract in the hypothetical world where she was responsible for signing the artists while at Arista.

    Dr. Chitra Raghavan

    Raghavan opined that she “found Dixon’s reported history to be believable” because she reported a decrease in recent symptoms rather than an increase, a pattern that would be typical of malingerers; Plaintiff’s emotional and physical responses were consistent with the experiences she relayed; she was able to clearly explain the abuse fact pattern and her narratives over multiple interviews; and three objective tests indicated that she responded genuinely about her mental health.

    She further opined that Defendant “used numerous tactics of coercive control to maintain his abusive power” over Plaintiff, including physical violence, manipulation, sexual abuse, retaliation, and microregulation. Raghavan opined that the “sexual assaults and the atmosphere of coercion and hostility” that Plaintiff suffered triggered a severe episode of complex PTSD.

    Analysis

    The Court held that Raghavan’s anticipated testimony is replete with improper opinions regarding witness credibility and bolstering. Such bolstering testimony regarding the truth of the underlying factual allegations in the case is not the proper province of an expert witness.

    The Court held that Raghavan is precluded, pursuant to Rules 702 and 403, from offering testimony at trial regarding Plaintiff’s credibility, including an opinion that Plaintiff was the subject of a sexual assault by Defendant or that Defendant exercised coercive control over Plaintiff. She is also precluded from opining on the causation of Plaintiff’s conditions. Raghavan can testify, however, as to coercive control generally, as background; her diagnoses of Plaintiff’s mental health conditions and the bases for her diagnoses; and that Plaintiff’s condition is “consistent with” that of individuals who have been sexually assaulted.

    Held

    • The Court granted the Defendant’s motion to preclude the testimony of Michael Selverne.
    • The Court denied the Defendant’s motion to preclude the testimony of Mark Plotkin.
    • The Court granted in part and denied in part the Defendant’s motion to preclude the testimony of Dr. Chitra Raghavan.

    Key Takeaway:

    Where lost future earnings are at issue, an expert’s testimony should be excluded as speculative if it is based on unrealistic assumptions regarding the Plaintiff’s future employment prospects.

    Selverne’s opinion is not only of little assistance to a jury, but also rests on inherently speculative assumptions. 

    Case Details:

    Case Caption: Dixon V. Reid
    Docket Number: 1:23cv9878
    Court Name: United States District Court, New York Southern
    Order Date: August 21, 2025
  • Architecture Expert’s Testimony Regarding the Mat’s Condition Excluded

    Architecture Expert’s Testimony Regarding the Mat’s Condition Excluded

    In December 2022, Carole Daniel (“Ms. Daniel”) tripped on a floor mat and fell inside a Phenix City, Alabama Dollar General retail store (“Dollar General”). Ms. Daniel suffered injuries and later sued Dolgencorp, LLC (“Dolgencorp”), the corporate entity operating the Dollar General. On June 15, 2024, Ms. Daniel passed away. Ms. Daniel’s husband, Ralph Daniel (“Mr. Daniel”), as Personal Representative of the Estate of Carole Daniel, was substituted as the proper Plaintiff in this action.

    Dolgencorp filed a motion to exclude the expert testimony of Mark E. Williams, which is opposed by Mr. Daniel.

    Architecture Expert Witness

    Mark Elan Williams is an Alabama licensed architect, with more than thirty years of experience. He is licensed in multiple states throughout the Southeast and is certified by the National Council of Architectural Registration Boards.

    To learn about other cases where Mark E. Williams has been involved as an expert witness, order an Expert Witness Profile report.

    Discussion by the Court

    To begin with, Williams reviewed several pieces of evidence, in forming his expert opinion, including: (1) December 2, 2022 surveillance footage of Ms. Daniel’s fall; (2) the pertinent Customer Incident Report; (3) Dolgencorp’s “Safety Orientation Training Module” ; (4) industry standards; (5) Dolgencorp’s Standard Operating Procedure (“SOP”) Manual; and (6) five January 31, 2023 photographs taken by Ms. Daniel’s sister, Becky Coreno (“Ms. Coreno”). He did not personally examine the specific mat involved in Daniel’s fall, but noted he was familiar with the mat’s manufacturer and its “‘waffle’ pattern of raised squares.”

    Williams concluded, among other things, that the floor mat was a dangerous tripping hazard because: (1) it was “loose-laid” and had raised edges, which caused Ms. Daniel to trip and (2) it was improperly “secured down.” Moreover. Williams added that the “hazards associated with loose-laid floor mats are well documented and have been widely known for many years.”

    In other words, his affidavit concluded that Dolgencorp “violated the standard of care for property maintenance, and created the dangerous condition that caused Ms. Daniel’s fall and injury.”

    Basically, Williams offered expert testimony that Dolgencorp’s floor mat was a dangerous tripping hazard that ultimately caused Daniel to trip and fall.

    Assist the Trier of Fact

    In its role as gatekeeper, the Court is not convinced that Williams’ expert testimony regarding the mat’s condition will assist the jury, considering that his testimony relied on the video footage of Ms. Daniel’s fall.

    The Court found “after reviewing the record evidence, especially the surveillance video . . . that a genuine dispute of material fact exists regarding the condition of the mat, such that a reasonable jury could find in Mr. Daniel’s favor.” However, the Court reached this conclusion without considering Williams’ expert report.

    Moreover, Williams’ opinions could confuse the jury. His expert report found “the failure of Dollar General to provide a floor mat heavy enough not to move or properly secure the mat in place, violates the standard of care for property maintenance, and created the dangerous condition that caused Ms. Daniel’s fall and injury.” The Court held that Williams’ discussion of “standard of care” would at the very least confuse the jury, as “a witness may not testify to the legal implications of conduct; the Court must be the jury’s only source of law.” 

    Held

    The Court granted Dolgencorp’s motion to exclude Mark Williams’ testimony.

    Key Takeaway:

    Daniel failed to show that Williams’ testimony would satisfy Daubert‘s helpfulness prong. The parties’ dispute in this case while important—is simple—whether Ms. Daniel fell because the floor mat “was in a worn condition.” Jurors are capable of using common sense when it evaluates the floor mat’s condition and placement in the surveillance video. 

    Case Details:

    Case Caption: Daniel V. Dolgencorp, LLC
    Docket Number: 3:23cv135
    Court Name: United States District Court for the Middle District of Alabama, Eastern Division
    Order Date: August 22, 2025
  • Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

    Economics Expert’s Testimony on Prime Enrollments and Cancellations Admitted

    The Federal Trade Commission contended that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime. According to the FTC, this was accomplished by failing to disclose the material terms of the subscription clearly and conspicuously and by failing to obtain the consumers’ informed consent before enrolling them. The FTC also alleged that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships. As a result, the FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    The FTC requested that Dr. Neale Mahoney, Ph.D. provide an expert opinion on (1) “Whether Amazon’s Cancellation Survey provides a reliable basis from which to draw inferences regarding the behavior of its customers”; (2) “The extent to which customers were unintentionally enrolled in Amazon Prime, and how much such consumers paid to Amazon in Prime membership fees during their memberships”; and (3) “The extent to which customers attempted to cancel their Amazon Prime memberships and believed that they had done so but did not in fact complete the cancellation process, as well as how much such customers subsequently paid to Amazon in Prime membership fees.”

    The Defendants filed a motion to exclude Mahoney’s expert testimony. They contended that his testimony on unintentional Prime enrollments and cancellations is neither relevant nor reliable.

    Economics Expert Witness

    Dr. Neale Ashok Mahoney, Ph.D. is a Professor of Economics at Stanford University. He received a Ph.D. and M.A. in Economics from Stanford University. And he has taught economics courses at both Stanford University and the University of Chicago’s Booth School of Business.

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

    Discussion by the Court

    Mahoney’s report offered five opinions: First, Amazon’s Cancellation Survey provided a reliable basis to conclude that a significant number of Prime enrollees unintentionally enrolled in Amazon Prime. Second, unintentional enrollments in Amazon Prime through the at-issue “upsells” led to millions of dollars in harm. Third, a significant number of Prime customers who entered Amazon’s cancellation process did not complete the process and continued to pay Prime subscription fees to Amazon. Fourth, Prime benefit usage patterns showed that a significant number of Prime subscribers exited the cancellation process with the mistaken belief that they had cancelled their Prime subscription. Fifth, Prime subscribers who exited the cancellation process with the mistaken belief that they had cancelled their Prime subscriptions led to millions of dollars in harm. 

    Unintentional Enrollment Harm

    Defendants contended that Mahoney’s report is unreliable because it “assumes that the 99.998 percent of customers who intended to enroll in Prime nevertheless suffered some compensable harm because a very small fraction of other customers enrolled unintentionally.” But this argument is based on the misplaced premise that “[t]he FTC must prove its case by a preponderance of the evidence,” so only the 49 out of 2.7 million customers with a prediction score greater than 50 were likely harmed.

    Defendants next argued that “intent to subscribe is a binary choice; a consumer either meant to sign up or they did not.” Yet Defendants provided no evidence or caselaw to support this conclusory assertion.

    Defendants further criticized Mahoney’s analysis because he assumed “all subscribers who answered [the Amazon Cancellation Survey] by choosing ‘did not intend (DNI)’ are unintentional enrollments.” Even though Defendants have conjured up a hypothetical scenario where a subscriber might have selected DNI when they actually intended to sign up for Prime, that does not make Mahoney’s inference unreasonable.

    Defendants’ final argument is that Mahoney failed to consider the benefits that consumers gained from having a Prime subscription.

    Analysis

    However, Mahoney’s analysis logically advances the FTC’s argument that consumers were harmed by unintentional enrollment in Amazon Prime. This analysis will similarly help the factfinder determine facts that are in dispute. Mahoney also used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these techniques to facts of this case. As a result, the Court found that the FTC has met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional enrollment analysis is both relevant and reliable. The FTC has also met its burden of showing that Mahoney’s analysis is reliable even though it does not account for any potential benefits that a consumer gained from having a Prime subscription.

    Unintentional Cancellation Harm

    Defendants contended that Mahoney’s unintentional cancellation analysis is flawed too. They fault Mahoney for failing to failing to “separate lawful from unlawful conduct.” But the FTC alleged “all Prime subscriptions involve unlawful conduct as Amazon never had Restore Online Shoppers’ Confidence Act-compliant cancellation.” The hypothetical scenarios envisioned by Defendants did not render Mahoney’s analysis unreliable, nor did they show he cannot separate lawful from unlawful conduct. 

    Defendants’ final argument is that Mahoney’s unintentional cancellation analysis is unreliable because it failed to consider the benefits Prime subscribers received when they failed to cancel their memberships. This argument failed for the same reasons it failed for Mahoney’s unintentional enrollment analysis. The FTC alleged that the fraud was in Prime’s cancellation mechanisms, not the value of Prime. Thus, it was appropriate for Mahoney to include the full value of subscribers’ Prime subscription in his analysis.

    Much like his analysis of harm from unintentional enrollments, Mahoney’s unintentional cancellation analysis logically advances the FTC’s argument that consumers were harmed when they mistakenly believed they cancelled their Amazon Prime subscription. This analysis will also help the factfinder determine facts that are in dispute. Mahoney used techniques that enjoy wide acceptance in the field of economics and he shows that he appropriately applied these technique to the facts of this case. As a result, the Court found the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation analysis is both relevant and reliable.

    Held

    The Court denied the Defendants’ motion to exclude Neale Mahoney’s testimony.

    Key Takeaway:

    Mahoney used techniques that enjoy wide acceptance in the field of economics and he showed that he appropriately applied these techniques to facts of this case.

    The Court found that the FTC met its burden to establish by a preponderance of the evidence that Mahoney’s unintentional cancellation and enrollment analyses are both relevant and reliable.

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court for the Western District of Washington
    Order Date: August 22, 2025
  • Mechanical Engineering Expert Barred From Testifying for Not Testing Alternative Design

    Mechanical Engineering Expert Barred From Testifying for Not Testing Alternative Design

    Plaintiff Paul Johnson sustained severe injuries while operating a RIDGID K-6200 drain cleaning machine (“subject machine”) at his workplace. He sued the machine manufacturer, Defendant Ridge Tool Company (incorrectly identified as Ridge Tool Manufacturing Company, Inc.), asserting claims for negligence, product liability, and failure to warn.

    Plaintiff brought this lawsuit contending that Defendant manufactured an unreasonably dangerous and defective machine without an appropriate fixed guard that would have prevented Plaintiff from having to hold a rotating cable in his hand that could suddenly twist and kink and pull him. Plaintiff also challenged the adequacy of Defendant’s warnings and argued that personal protective equipment (PPE) was insufficient to protect users from the known hazards associated with this type of drain cleaning machine.

    In support of his claims, Plaintiff relied on two experts, Chad E. Jones, a mechanical engineer, and Cynthia M. Rando, a certified human factors professional. Following the completion of discovery, Defendant filed motions to exclude the testimony of both experts.

    Mechanical Engineering Expert Witness

    Chad E. Jones is a certified machine safety expert who is licensed in seven states and has worked as an engineer since 1996. He has a Bachelor of Science in Mechanical Engineering from Clemson University. Jones has participated in and led industrial accident investigations and participated in in-depth process safety audits. This work has included equipment design, machine safeguarding, cost estimating and safety compliance. He has designed HVAC and plumbing systems for commercial, industrial, and private clients.

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

    Human Factors Expert Witness 

    Cynthia M. Rando is a certified human factors professional who has worked in the human factors field for approximately twenty years. She is Vice President of the Board of Certification in Professional Ergonomics (Human Factors). Rando received her B.S. and M.S. in Human Factors Engineering from Clemson University and an MBA from Northeastern University. She has also served as an associate professor at University of Houston Clearlake providing instruction in Human Factors, Safety and Ergonomics course material.

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

    Discussion by the Court

    Chad Jones

    i. Qualifications

    Defendant argued that Jones was not qualified because, despite being a mechanical engineer, he did not have any experience with the machine at issue or with drum-style drain cleaning machines generally. Defendant also contended that Jones’ purported experience with guarding mechanisms as they relate to industrial machine presses bore no relation to this case, as a machine press was entirely different from a drum-style cleaning machine.

    While Jones’ personal experience with drain cleaners is limited, and he is not familiar with the subject machine, the Court held that his professional experiences qualify him to opine here. Jones is certified as a machinery safety expert and has worked in the area of machine safeguarding since March 2019. True, he may not have actual experience with the particular machine in this case, but he need not be the best expert in the field in order to be qualified.

    ii. Reliability

    Defendant argued that even if Jones’ qualifications pass muster, his opinions are nonetheless unreliable because he failed to perform any testing of his purported reasonable alternative design. Jones opined that Defendant was required to include a fixed guard over the rotating cable to prevent injury. It is undisputed that Jones did not engage in any physical testing of the proposed alternative nor did he conduct any mathematical calculations or models.

    Indeed, Jones conceded that he has not spoken to any users of the equipment or industry professionals nor did he design or test his own fixed guard or physical prototype, use a computer program to design or simulate a fixed guard, perform calculations or drawings to demonstrate how an alternative guard would fit onto the machine, take an exemplar guard and try to apply it to the machine, or perform calculations, modeling, or other analysis to assess if an alternative guard would impact the speed or ability of the cable’s rotation. 

    Plaintiff’s contention that Jones need not test his alternative design is premised upon his assumption that the fixed guard is an “industry standard.” On this point, Plaintiff claimed that three of Defendant’s competitors use a fixed guard and thus the Court should presume this is what the industry requires. But that is too great of a leap in logic.

    Jones did not conduct any type of analysis that would make up for his lack of testing of the proposed alternative design. While Plaintiff contended that Jones included detailed designs, an economic study, preliminary drawings, and his own risk-utility testing, the Court does not find that information on the cited references or anywhere else in the report.

    Cynthia Rando

    After reviewing certain materials and taking Plaintiff’s hand measurements, Rando opined as follows:

    ➢ The primary root cause of the incident involving Plaintiff and the K-6200 Drain Cleaning machine was failure to effectively address hazards created by the design and operation of the K-6200 Drain Cleaning machine through standard design controls.

    ➢ Defendant demonstrated negligence through their failure to effectively assess and control risk and the violation of accepted standards of practice pertaining to risk management and the design for human safety.

    ➢ Additionally, the failure to provide the correct personal protective equipment (PPE), including unsafe recommendations made by Defendant to utilize a “one size” glove that allowed for a loose fit for individuals representing a smaller anthropometric hand size range, introduced unacceptable added risk and significant potential for injury.

    ➢ The reliance on the user manual to provide the necessary information regarding safe operation of the device by Defendant and the expectation that the manual was the hazard control method was negligent. This approach passed the responsibility of safety to the end user despite the awareness of the potential for significant injury based on the design of the equipment and recommended method of operation.

    ➢ The user manual was not written in an easy-to-understand manner, including conflicting safety instructions and recommendations for postures that would create increased risk of injury to the operators.

    ➢ The manual violated ANSI Z535 standards and recommended unsafe operations to the end users but advertised them to be “safe.”

    ➢ These issues represent the root cause and contributing factors to the injury incurred by Plaintiff on August 17, 2019.

    i. Reliability

    Defendant argued that Rando’s opinions on the user manual are irrelevant to the causation analysis and unreliable because she failed to either offer or test any reasonable alternative warnings.

    After reviewing Rando’s expert report, the Court concluded that Rando did not offer a specific opinion about the adequacy of the warning label. Indeed, her opinions as to “Caution and Warnings” are couched in the context of analyzing the user manual which, as noted, Plaintiff did not read.

    Rando never addressed whether the warning label affixed to the machine was inadequate or failed to capture Plaintiff’s attention. Because her opinion focused solely on the user manual Plaintiff never read, the Court held that it is not relevant.

    Even if the Court did interpret Rando’s opinion as encompassing the warning label, her failure to draft or test any proposed alternative warnings still rendered any such opinion unreliable.

    Last, Plaintiff pointed to Rando’s opinion on personal protective equipment (PPE) that Defendant’s standard one size fits all glove—which Plaintiff admittedly did not use here—was unsafe, but that has no bearing on his failure to warn claim. In the end, these “unsafe recommendations” were included in the user manual, which, as already discussed, Plaintiff never read. Therefore, the Court held that her opinion on PPE is similarly irrelevant.

    Held

    The Court granted the  Defendant’s motions to bar the testimony of Plaintiff’s expert witnesses, Chad Jones and Cynthia Rando.

    Key Takeaway:

    An expert can overcome the lack of testing by adhering to the standards of intellectual rigor demanded in their professional work. However, Jones did not conduct any type of analysis that would make up for his lack of testing of the proposed alternative design. 

    Case Details:

    Case Caption: Johnson V. Ridge Tool Manufacturing Company, Inc.
    Docket Number: 1:21cv1939
    Court Name: United States District Court, Illinois Northern
    Order Date: August 22, 2025