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  • Transportation Safety Expert’s Testimony on Compliance with Federal Safety Regulations Admitted

    Transportation Safety Expert’s Testimony on Compliance with Federal Safety Regulations Admitted

    This case concerns a motor vehicle collision that occurred between Plaintiff Bryan Russell Arnett (“Plaintiff”) and Defendant Larry Tyrone Fairell, II (“Fairell”) on December 14, 2022.

    Fairell filed a motion to partially strike the testimony of Arnett’s retained transportation safety expert, David Hedgpeth.

    Transportation Safety Expert Witness

    David Hedgpeth is the principal owner of Hill Country Transportation Resources, LLC and has over 35 years of experience in the commercial transportation industry.

    Hedgpeth has a comprehensive understanding of commercial transportation industry standards, best practices, and regulatory guidelines, and in particular, what would be considered usual and customary, with employees, commercial drivers, delivery services and company management.

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

    Discussion by the Court

    Arnett designated Hedgpeth, of Hill Country Transportation Resources, LLC, in his First Supplemental Expert Designations on March 24, 2025. The designation stated that Hedgpeth “will testify about transportation safety, regulatory compliance, fleet management, commercial motor vehicle accident investigation, and industry standards of care.”

    On May 06, 2025, Arnett served his Eleventh Supplemental Rule 26 Disclosures, which included Hedgpeth’s supplemental report.

    The parties did not dispute that Arnett’s original designation of Hedgpeth
    was timely. But the Defendants took issue with the service of Hedgpeth’s supplemental report, which they asserted “addresses new topics and offers new opinions not addressed in Hedgpeth’s original report not disclosed in Plaintiff’s Designations.”

    And, so, Defendants contended that Hedgpeth’s supplemental report should be stricken because it is untimely and fails to comply with Rule 26’s disclosure requirements and because the opinions contained in it are unreliable and, consequently, inadmissible under Rule 702 and Daubert.

    Rule 26

    Defendants argued that Hedgpeth’s supplemental report is untimely because it consisted of “new” opinions about whether speeding was a contributing factor to the incident at issue, which were not contained in his original report.

    Arnett stated that the original report analyzed compliance with Federal Motor Carrier Safety Regulations (“FMCSR”) and, specifically, section 395.8(2)(i), which requires drivers to record their duty status. And the supplemental report “builds on this” by analyzing newly produced bills of lading, which “provide additional data regarding the driving hours and mileage of Defendant Fairell [and] directly relate to the original opinion about FMCSR compliance and safety concerns.”

    Arnett contended that the supplemental report bolsters Hedgpeth’s original conclusions about FMCSR compliance and safety concerns but did not exceed the scope of his original report.

    Based on its review of Hedgpeth’s original and supplemental reports, the Court agreed with Arnett.

    Hedgpeth’s supplemental report serves to elaborate – more generally – on his original opinions about compliance with federal safety regulations. And, so, it does not depart from his original report in material respects.

    As to timeliness, the documents (bills of lading) that formed the basis of Hedgpeth’s supplemental report were purportedly produced on March 12, 2025, which was before Arnett’s expert designation deadline.

    Arnett asserted that Hedgpeth reviewed the materials and produced the supplement “as quickly as practicable,” which allowed Arnett to serve the supplemental report on Defendants on May 6, 2025 – ten days after the discovery deadline.

    Rule 702 and Daubert

    Defendants also contended that Hedgpeth’s opinions in his supplemental report are unreliable under Rule 702 and Daubert because they are facially speculative. Specifically, Defendants pointed to Hedgpeth’s statements that he “is unable to come to an accurate conclusion as to speed and hours of service” and that the “information and data is inconclusive.”

    But Arnett’s response persuasively addressed Hedgpeth’s qualifications, methodologies, materials reviewed, and summary of his opinions as it relates to his supplemental report. And, so, the Court found that Hedgpeth’s supplemental report satisfied Rule 702 and Daubert and that it should not be excluded on that basis.

    Held

    The Court denied the Defendants’ motion to partially strike the testimony of transportation safety expert, David Hedgpeth.

    Key Takeaway:

    Insofar as Arnett’s supplemental disclosure fell short of Rule 26’s requirements, the Court found that such non-compliance – on considering the arguments that Arnett persuasively lays out in his response – was harmless.

    Case Details:

    Case Caption: Arnett V. C&S Delivery Services LLC Et Al
    Docket Number: 3:24cv1643
    Court Name: United States District Court, Texas Northern
    Order Date: August 20, 2025
  • Metallurgical Engineering Expert Was Not Allowed to Testify About the “Expected” Performance of Golf Clubs

    Metallurgical Engineering Expert Was Not Allowed to Testify About the “Expected” Performance of Golf Clubs

    This is a products liability action involving a Callaway Rogue X 5 Iron golf club with a True Temper XP95 shaft that fractured. Plaintiff alleged that the shaft cut his finger and broke his index-finger bone on his right hand. It is undisputed that True Sports manufactured the shaft of the Five Iron.

    Joseph P. Crosson and Joseph A. Lemberg were among the experts retained to opine on the Five Iron’s potential defectiveness.

    Crosson, Plaintiff’s engineering expert, testified that based on various markings on the Five Iron, he believed it had been swung multiple times prior to its fracture. True Sports and Callaway filed Daubert motions seeking to exclude various parts of Crosson’s expert testimony.

    Callaway identified Lemberg as an expert engineer, and Lemberg found no evidence of a design or manufacturing defect having caused or contributed to the fracture of the Five Iron. Plaintiff filed a motion in limine to exclude parts of Lemberg’s expert testimony.

    Metallurgical Engineering Expert Witnesses

    Joseph P. Crosson holds both a Bachelor of Science and Master of Science in metallurgical engineering and has been conducting root cause failure analysis investigations for several decades.

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

    Joseph Aaron Lemberg is a licensed metallurgical engineer specializing in failure analysis, fracture mechanics, metallurgy, and materials science engineering with a particular emphasis on understanding the fracture behavior of materials.

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

    Discussion by the Court

    A. True Sports and Callaway’s Motions to Exclude Crosson’s Testimony

    True Sports filed a motion to exclude Crosson’s testimony that the fracture occurred during a normal golf swing and was not the result of misuse or abuse, arguing his opinion is unreliable and irrelevant. Callaway filed a motion to exclude Crosson’s opinion that he would not expect a golf club to fracture during a normal golf swing because Crosson is not qualified to render opinions about a club’s expected performance, and his opinion is a backdoor attempt to bring in a “res ipsa” opinion that is both unreliable and irrelevant. Plaintiff opposed both motions, arguing Crosson is qualified to speak on both matters and his analysis was based on reliable processes and methodologies.

    1. Crosson’s Opinion that the Fracture Occurred During a Normal Golf Swing

    True Sports contended that Crosson’s testimony stating the fracture occurred during a normal golf swing and was not the result of misuse or abuse is both unreliable and irrelevant because it is a speculative conclusion not based on any scientific analysis and therefore does not assist the trier of fact.

    The Court found Crosson’s testimony that the fracture occurred during a normal golf swing is sufficiently reliable. He represented that in examining the Five Iron, he relied on his experience and visual and photographic examinations of the Five Iron, a metallographic analysis, Vickers microhardness testing, and a compositional analysis. 

    In assessing the causal nature of the Five Iron’s condition, Crosson relied on its physical appearance, personal experience, and the angles of the abrasions and transferred materials. Specifically, Crosson testified that the perpendicular angles of the markings on the Five Iron suggested they were incurred during a normal swing, and the nature of the deformity in the shaft was consistent with a single event overstress fracture. Because Crosson relied on his experience in root cause analysis, the angular nature of the abrasions, and other deformities on the Five Iron to form his opinion that the club fractured during a normal swing, the Court held that his opinion is sufficiently reliable and assists the trier of fact. 

    2. Crosson’s Opinion that He Would Not Expect a Golf Club to Fracture During a Normal Golf Swing

    Callaway argued Crosson’s opinion that he would not expect a properly designed and manufactured golf club to fracture during a normal golf swing should be excluded.

    While Crosson admittedly is not an expert in golf club design or manufacturing, his area of expertise includes evaluating and conducting root cause failure analyses of metallic components. As such, the Court held that his expertise in metal component failures makes him sufficiently qualified to offer an expert opinion as to the expected performance and durability of a metal shaft on a golf club.

    Callaway also argued that, even if Crosson is qualified, his res ipsa-flavored opinion should be excluded because he points to no data, tests, or measurements in reaching the conclusion that a non-defective club would not fracture during a normal swing, and, as such, this opinion is unreliable.

    Plaintiff again relied on Crosson’s extensive visual examination of the abrasions and strike marks to argue this opinion is sufficiently reliable. However, Plaintiff failed to explain how a visual examination of this specific Five Iron informs his expectations about golf club performance generally. Moreover, Crosson admitted he could not render an opinion as to the Five Iron’s design or golf club design generally, nor did he calculate the Five Iron’s load bearing capacity or know the industry standard load bearing capacity. 

    Callaway further argued this opinion should be excluded because it requires “a large analytical leap” and therefore did not satisfy Daubert‘s “fit” test. The Court held that this conclusion, seemingly based solely on Crosson’s experience as a recreational golfer, did not assist the trier of fact or offer anything other than the type of speculation that is more appropriate for Plaintiff’s closing argument.

    B. Plaintiff’s Motion to Exclude Lemberg’s Testimony

    Lemberg opined that misuse, mishandling, or abuse of the subject club cannot be ruled out as a cause of the shaft fracture.

    Lemberg relied on largely the same scientific methodologies as Plaintiff’s expert, Crosson, which the Court found herein to be sufficiently reliable. And Lemberg’s opinion, based on scientific examinations and analyses, assisted the trier of fact by explaining how various features of the Five Iron – such as the unknown red material, dirt, scuff marks, misalignments, and the shaft’s deformity – are consistent with misuse or abuse.

    Lemberg’s second opinion with which Plaintiff takes issue stated: “My examination of available shaft remnants did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft.” Plaintiff argued that this opinion is unreliable because it contradicted Lemberg’s statement in his deposition that the Five Iron’s misalignment and deformity could have been introduced during the manufacturing and design processes.

    In his deposition, Lemberg consistently stated that his inspection of the Five Iron showed it met True Sports’ specifications and he found nothing wrong with its material properties, nor did he find any metallurgical defects.
    He later was able to review the inspection processes in place and confirmed that if the deformity was introduced during manufacturing, it would have been caught during inspection, rendering him able to narrow the window of time in which it could have been introduced.

    Held

    • The Court denied True Sports’ motion to exclude the testimony of Joseph Crosson.
    • The Court granted Callaway’s motion to exclude Crosson’s opinion that a properly designed and manufactured golf club should not break during the normal course of use.
    • The Court denied Plaintiff’s motion in limine to exclude the opinions of Joseph Lemberg.

    Key Takeaway:

    While directly contradicting opinions could raise concern, the Court agreed with Callaway that Plaintiff’s reiteration of Lemberg’s opinions is not wholly accurate. The Court found Lemberg’s opinion that his examination did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft sufficiently reliable.

    Case Details:

    Case Caption: Spivey V. Topgolf Callaway Brands, Corp.
    Docket Number: 6:24cv4
    Court Name: United States District Court, Georgia Southern
    Order Date: August 20, 2025
  • Marketing Expert’s Consumer Survey Report Admitted

    Marketing Expert’s Consumer Survey Report Admitted

    Plaintiffs Markus Heitkoetter and Rockwell Trading Services, LLC sued Karl Domm for defamation by implication, defamation (libel), deceptive trade practice, intentional interference with prospective business relations, and abuse of process. Both Defendant and Plaintiffs operate channels on www.youtube.com (“Youtube”) where they publish videos about online trading. 

    Plaintiffs filed a motion to strike the testimony and report of Defendant’s consumer survey expert, Travis Tae Oh, Ph.D.

    Marketing Expert Witness

    Travis Tae Oh holds a Ph.D. and M.Phil in marketing from Columbia University. He is currently a tenure-track faculty in marketing at Yeshiva University.

    His work has been featured in multiple media outlets, such as Vox, The Washington Post, Next Avenue, Stylus. He also regularly writes for Psychology Today. Travis is also a certified wine expert, holding a WSET Diploma. His research primarily examines the underlying psychological processes and meanings of consumer experiences, with a focus on conceptualizing and investigating fun in people’s lives.

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

    Discussion by the Court

    Plaintiffs filed a motion to exclude the testimony and consumer survey of Oh, pursuant to Federal Rules of Evidence 702 and 403 on the basis that the consumer survey was “so methodologically flawed” as to render the report and Oh’s testimony unreliable and irrelevant in answering the question of how consumers understood the two allegedly misleading statements made by Plaintiffs.

    Though the Plaintiffs complained that Oh wrote the survey without viewing the Youtube video or the web page in which the two allegedly misleading statements appear, they provided no evidence to support a finding that this would automatically render the survey invalid “according to accepted principles.”

    As for the Plaintiffs’ claim that the universe of participants was overbroad, the Court has held that arguments that the universe of survey participants is over-or under-inclusive is a challenge to a survey’s “methodology and design” and “is precisely the kind of claimed deficiency that goes to the weight of the evidence, not its admissibility.”

    Held

    The Court denied the Plaintiffs’ motion to strike the testimony of Defendant’s expert, Travis Tae Oh, Ph.D.

    Key Takeaway:

    Survey evidence should be admitted as long as it is conducted according to accepted principles and is relevant. Technical inadequacies in a survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility. Follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility.

    Case Details:

    Case Caption: Heitkoetter Et Al V. Domm
    Docket Number: 1:22cv368
    Court Name: United States District Court for the Eastern District of California
    Order Date: August 16, 2025
  • Expert Testimony on Legitimate Marketing Practices Admitted

    Expert Testimony on Legitimate Marketing Practices 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. The FTC sued Amazon.com, Inc. and three of the company’s executives, Neil Lindsay, Russell Grandinetti, and Jamil Ghani.

    Defendants’ expert Donna L. Hoffman, Ph.D. offered five opinions. First, she said that analysis of online consumer experience must account for consumers’ goals, past experiences, and expectations. Second, she said that the definition of “dark patterns” is vague and lacks scholarly consensus. She also said that the subjective interpretation of this term may misidentify common legitimate marketing practices as “dark patterns.” Third, she said that the FTC’s claims regarding the user interface (“UI”) design elements in Amazon Prime Enrollment and Cancellation Flows are “unfounded.” Fourth, she said that the UI design elements at issue are common online and likely familiar to consumers. Fifth, she said that Amazon’s clarity improvement initiatives had methodological limitations that limited Amazon’s ability to interpret the results.

    The FTC made two primary arguments to exclude Hoffman’s testimony. First, it said that her analysis of the Prime Enrollment and Cancellation Flows is irrelevant and unreliable. Second, it said that her comparative analyses of UI elements is similarly irrelevant and unreliable. 

    Marketing Expert Witness

    Donna L. Hoffman, Ph.D., is a marketing professor at The George Washington University School of Business. She has a Ph.D. from the University of North Carolina at Chapel Hill and her training is in psychometrics, a field of behavior science that focuses on experimental design and human cognition and behavior.

    Her work has been published in all of the field’s top journals and enjoys wide impact with nearly 30,000 Google scholar citations.

    Hoffman has been awarded many of the field’s most prestigious awards, including being named a Fellow of the Society for Consumer Psychology, the Robert B. Clarke Educator of the Year Award from the DMEF, the Sheth Foundation/Journal of Marketing Award for long-term contributions to the discipline of marketing, the Stellner Distinguished Scholar Award from the University of Illinois, the William O’Dell/Journal of Marketing Research Award for long-term research impact, and others.

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

    Discussion by the Court

    A. Relevance of Hoffman’s Testimony

    1. Analysis of Prime Enrollment and Cancellation Flows

    The FTC argued that Hoffman’s analysis of the Prime Enrollment and Cancellation Flows is irrelevant. It said that this analysis is irrelevant because it will not help the factfinder determine whether Amazon disclosed Prime’s terms clearly and conspicuously, obtained informed consent from Prime subscribers, or provided simple mechanisms to cancel Prime.

    Defendants have shown by a preponderance of the evidence that the analysis is relevant. The FTC contended that Prime’s enrollment and cancellation flows include manipulative designs. And Hoffman’s analysis directly responded to this allegation by saying, among other things, “the FTC’s failure to consider consumers’ familiarity with design elements or standard marketing practices severely undermines their conclusions about whether the alleged UI design elements at issue in Amazon Prime’s enrollment and cancellation flows would ‘trick,’ ‘manipulate,’ or ‘mislead’ consumers and influence their behaviors or ‘complicate’ these processes.”

    2. Comparative Analyses of UI Elements

    The FTC also said that Hoffman’s comparative analyses are irrelevant because they are not focused on Prime. According to the FTC, regardless of the practices employed by other subscription services, the factfinder must evaluate Amazon’s conduct independently. But Defendants said that this testimony is relevant to the “reasonable consumer” standard.

    Defendants also satisfied their burden of showing that this testimony is relevant. At a minimum, much like her analysis of the Prime enrollment and cancellation flows, Hoffman’s comparative analyses responded to the FTC’s allegation that Amazon employs manipulative designs. She presented two comparative analyses that suggest “these UI design elements at-issue (or those similar to them) are commonly used online, and many consumers are likely to be familiar with them independent of their interactions with Amazon website.”

    B. Reliability of Hoffman’s Testimony

    1. Analysis of Prime Enrollment and Cancellation Flows

    The FTC argued that Hoffman’s analysis of the Prime enrollment and cancellations flows is unreliable. It said that she does not refer to any methodology in her report and that she suggested nine methodologies during her deposition. The FTC added that even if the Court accepted that Hoffman used a methodology, the methodology is insufficiently reliable because she never defines “legitimate marketing practice.”

    Although the FTC argued that she described nine methodologies, that does not appear to be the case. Instead, she applied the “concepts and constructs from [her] discipline to evaluate the flows.” As one example of this, she evaluated allegations the FTC made about the complexity of Amazon Prime’s cancellation process.

    She explained how, in her opinion, the FTC overlooked “legitimate and standard marketing practice” when making these allegations. Her report also applied pertinent academic marketing and consumer behavior literature. She used a marketing management textbook to explain the complexity of a consumer’s decision-making process.

    The Court found that Hoffman relied on her education and experience to reach these conclusions. The FTC also challenged Hoffman’s failure to define “legitimate marketing practices,” but her report does provide examples that she believes fall within the ambit of this term.

    2. Comparative Analyses of UI Elements

    First, the FTC said it was concerned that Hoffman had developed her comparative analysis specifically for purposes of this litigation. Hoffman’s report indicated that she offered conclusions “growing naturally and directly” from her education and experience in marketing research techniques.  So, on balance, the Court decided that Hoffman’s comparative analysis need not be excluded simply because she developed it for the purposes of this litigation.

    Second, the FTC said that Hoffman’s methodology lacked acceptable standards. For instance, the FTC complained that Hoffman did not explain how she chose to “map” each of the UI design elements that she supplied to the independent coders. But she identified the specific paragraph of the complaint that she used to generate her description of the at-issue UI element. Hoffman adequately articulates her methodological choices and provided a foundation for the data she incorporated into her report.  

    Third, the FTC said that there is an analytical gap between Hoffman’s data and her conclusions. On this point, the FTC appeared to misapprehend Hoffman’s report because it does not attempt to define a specific threshold at which the prevalence of a UI design element makes it “familiar” to consumers or how familiarity with one website gives consumers familiarity with an Amazon website. To the contrary, as Hoffman explained in her deposition, her goal was to establish that certain UI elements are common across commercial and government websites, and a consumer’s familiarity with these features “could likely implicate — likely impact their, you know, understanding and their interaction behavior, and things like that.”

    Finally, the FTC said that Hoffman’s methodology rests on a “shaky foundation.” Yet “shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”

    Held

    The Court denied the Plaintiff FTC’s motion to exclude the testimony of Defendants’ expert Donna L. Hoffman.

    Key Takeaway:

    When an expert in an uncertain field is extrapolating from existing data and generating novel hypotheses about complex issues, she is permitted wide latitude to offer opinions.

    The Court did not deem her methods unreliable because she did not explain precisely how she got from the allegations in the complaint to the analyzed UI design element. Hoffman adequately articulates her methodological choices and provided a foundation for the data she incorporated into her report. The FTC’s other arguments criticizing Hoffman’s methodology similarly failed to persuade the Court that her report is the product of unreliable methods. 

    Please refer to the blogs previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    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 19, 2025
  • Expert Reliably Applied Vocational Counseling Experience to the Facts

    Expert Reliably Applied Vocational Counseling Experience to the Facts

    In July 2021, the Federal Reserve Bank of Minneapolis required its employees to be vaccinated against COVID-19. The policy allowed religious exemptions. Plaintiff Rodney Maki—one of the Bank’s law enforcement officers—requested one, citing his opposition to vaccines linked to fetal stem cells. The Bank granted Maki a temporary accommodation but revoked it a few months later. In January 2022, Maki remained unvaccinated, and the Bank terminated him. Maki sued under Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act (or “RFRA”) for religious discrimination.

    Maki filed a motion to exclude two of Bank’s experts, Dr. Frank Rhame and Jennifer Bey. The Bank, in response, filed a motion to exclude the testimony of Maki’s expert rebuttal witness Dr. Peter A. McCullough.

    Infectious Diseases Expert Witness

    Dr. Frank S. Rhame is a medical doctor with board certifications in internal medicine and infectious diseases. He studied at Stanford University and directed the Hospital Infection Control Program at the University of Minnesota. Rhame is an Adjunct Professor of Medicine at the University of Minnesota and is a fellow of the Infectious Diseases Society of America. He has presented over twenty lectures on COVID-19 and testified as an expert in two trials.

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

    Vocational Rehabilitation Expert Witness

    Jennifer Bey is a vocational expert and owner of Bey & Dyer. She has a B.S. in Psychology from the University of Wisconsin-River Falls and a Master’s in Rehabilitation Counseling from Illinois Institute of Technology.

    Bey has over twenty years of experience in the field, and has testified or been deposed as an expert in thirty-four cases from 2017 to 2024, not counting this matter.

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

    Internal Medicine Expert Witness

    Dr. Peter Andrew McCullough has a medical degree from the University of Texas Southwestern Medical School in Dallas. He completed a master’s degree in public health in the field of epidemiology at the University of Michigan. McCullough has published frequently in medical journals and provided testimony on government panels on the response to the COVID-19 pandemic. 

    He is board certified in the United States in internal medicine and cardiovascular disease, and holds an additional certification in clinical lipidology, as well as a previous certification in echocardiography.

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

    Discussion by the Court

    Frank Rhame

    Maki argued that Rhame’s testimony regarding the effectiveness of vaccines on COVID-19 infection and transmission is irrelevant to the Bank’s undue hardship defense and described scientific opinions the Bank never consulted while it developed its vaccination policy.

    There are two basic aspects to Maki’s argument that Rhame’s opinions should be excluded. The first is that Rhame addresses many scientific aspects of COVID-19, but “COVID-19 is not on trial in this case.” This argument is not persuasive. In developing its vaccination policy and in determining not to grant Maki’s requested accommodation, the Bank accounted for a variety of scientific information regarding COVID-19, the disease’s impact on its employees and operations, and the efficacy of vaccines or other measures in addressing these impacts. The Court held that Rhame’s proffered testimony will assist the jury in understanding this information.

    The second aspect to Maki’s argument is that Rhame’s proffered testimony would concern information the Bank never considered in developing its policy or refusing the requested accommodation.

    The Court explained that the issue with Maki’s motion is that he did not point out the specific parts of Rhame’s testimony that were based on information the Bank did not have in January 2022 or before.

    Jennifer Bey

    First, Maki argued that Bey is not offering specialized knowledge, but rather a cursory and superficial analysis within the jury’s capabilities. However, Bey did not merely repeat written job descriptions or compare them as a layperson might. She analyzed Maki’s deposition testimony in relation to his work for both employers.

    As for Bey’s salary-comparison analysis, Maki contended that Bey “did not address Maki’s testimony, nor did she identify what most of the security jobs’ benefits packages might entail, and how they would compare with Maki’s benefits at the Bank.” The Court clarified that the problems Maki pointed out are matters that can be challenged during cross-examination, but they are not serious enough to justify excluding the testimony.

    Maki contended that Bey’s methodology is inadequate to determine the reasonableness of a job search. However, the Court held that Bey’s proffered testimony drew on her vocational counseling experience, described tangible steps an applicant could take to pursue employment, and offered an expected timeframe to gain a licensed position.

    Maki asserted that Bey would inappropriately opine on legal matters if she testified as proffered that Maki’s job search was not a reasonable and diligent effort. As Maki’s cited authorities confirm, the reasonableness of a job search for purposes of mitigating damages is a fact question for the jury. Bey’s opinion embraces an ultimate issue with respect to damages, but this is consistent with the rules.

    Peter McCullough

    The Bank sought to exclude only “the narrow portion of McCullough’s opinion related to vaccine requirements and exemptions or accommodations to such requirements.”

    McCullough would testify, for example, that “a position supporting or mandating COVID-19 vaccination goes against good medical practice and cannot be backed by ethical and prudent physicians, public health agencies, schools, or employers.” And again, “the COVID-19 vaccines have never been sufficiently protective against contracting COVID-19 to support their use beyond voluntary participation.” The Bank argued that these statements exceeded the boundaries of acceptable expert testimony in three ways: they are outside McCullough’s expertise; they constitute legal opinions; and they are irrelevant.

    The parties disagreed about whether McCullough is qualified to testify regarding the appropriateness of employer responses to the COVID-19 pandemic.

    McCullough may testify on the medical value of vaccines, and although the Bank disputes this testimony, it does not seek to exclude it. The Court admitted this testimony. However, when McCullough opined on how “prudent” employers should have responded, the Court held that he spoke beyond his expertise. This included his references to “ethical and prudent employers” and his statements that “[e]xemptions from vaccination saved lives and should have been granted for all applications” and “[n]o one should have received any pressure, coercion, or reprisal for requesting exemption from or declining COVID-19 vaccination.”

    Held

    • The Court granted in part and denied in part Rodney Maki’s motion to exclude the testimony of Frank Rhame and Jennifer Bey.
    • The Court granted Federal Reserve Bank of Minneapolis’s motion to exclude the testimony of Peter McCullough.

    Key Takeaway:

    An expert must stay within his area of expertise when testifying. If the witness’ competence does not match the subject matter of the testimony, the Court must exclude the opinion.

    Case Details:

    Case Caption: Maki V. Federal Reserve Bank Of Minneapolis
    Docket Number: 0:22cv2887
    Court Name: United States District Court, Minnesota
    Order Date: May 21, 2025
  • Construction Expert’s Opinions Regarding the Rebuilding Costs Admitted

    Construction Expert’s Opinions Regarding the Rebuilding Costs Admitted

    On March 4, 2023, Plaintiff Jane Randall’s son, Christian Randall, set fire to her home on Lady’s Island in Beaufort, South Carolina. On January 26, 2025, Plaintiff identified David Johnson as an expert general contractor to testify regarding the extent of damage to Plaintiff’s home and the need to demolish and rebuild the property at a cost of approximately $2.2 million. 

    Defendant Allstate Insurance Company argued that Johnson’s opinions regarding the cost of rebuilding Plaintiff’s home are “nothing but speculation, conjecture and a lack of formalized testing.”

    Construction Expert Witness

    David Johnson has over two decades of experience as a licensed general contractor in both North and South Carolina. He has been in the homebuilding construction business since 1971 and has served as a project manager for many residential properties in Beaufort County. As both a licensed realtor and a licensed general contractor, he has extensive experience in assessing property values and damage costs.

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

    Discussion by the Court

    After a careful review of Johnson’s deposition, the arguments of the parties, and Rule 702 standards, the Court found that Johnson’s testimony is sufficiently reliable and would be helpful to the jury if called upon to determine damages in this case. Johnson has sixteen years of experience as a general contractor in the area and has firsthand knowledge of construction costs. He has consulted with an architect and structural engineer and provided an estimate that the rebuilding of the home would cost around $395 per square foot, which is at the low range of square foot costs in the area.

    Johnson’s use of a per square foot metric to estimate rebuilding costs is a reasonable method utilized in his business.

    Defendant accurately noted that the estimate provided by Johnson is not based on final architectural blueprints and that the square foot number he utilized was based on information provided by Plaintiff. These issues go to the weight and not the admissibility of the expert testimony. Defendant will have every opportunity to cross examine Johnson at trial and identify any weaknesses or questions about his opinions.

    The Court found, however, at this point, Plaintiff has carried her burden of showing by a preponderance of the evidence that Johnson’s opinions are sufficiently reliable, based upon reasonable methods, and would be helpful to the jury should damages be an issue at trial.

    Held

    The Court denied the Defendant’s motion to exclude David Johnson as an expert witness under Rule 702.

    Key Takeaway:

    Johnson’s opinions are based on personal experience as a general contractor in the Beaufort County area, consultation with an architect and structural engineer, personal inspection of the fire damaged home, firsthand knowledge of actual costs for construction in the local area, and the use of a cost per square foot metric. 

    Case Details:

    Case Caption: Randall V. Allstate Insurance Company
    Docket Number: 9:24cv4123
    Court Name: United States District Court, South Carolina
    Order Date: July 07, 2025
  • Expert Testimony on Pharmacy Dispensing Standards Admitted

    Expert Testimony on Pharmacy Dispensing Standards Admitted

    The United States Attorney’s Office alleged that Omnicare violated the False Claims Act by failing “to obtain a new prescription” for residents of certain long-term-care facilities “after an old one expired or ran out of refills,” instead continuing to dispense medications through certain computer functionalities.

    The Office retained Dr. W. Thomas Smith to review Omnicare’s medication-dispense records from a sample of patients to assess whether Omnicare dispensed non-controlled substances without a valid prescription—as defined by Smith.

    Omnicare argued that the testimony from Smith about the requirements of pharmacy law in various states was improper because he testified about matters that are the province of the Court. 

    Pharmacy Expert Witness

    W. Thomas Smith has served as Dean of Health Sciences and Pharmacy at Manchester University (MU) College of Pharmacy, Natural and Health Sciences since 2017. He is active in several pharmacy professional organizations, including the American Association of Colleges of Pharmacy (AACP) and the American Society for Pharmacy Law (ASPL). He also currently serves as chair-elect of AACP’s Council of Deans and sits on the organization’s Board of Directors.

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

    Discussion by the Court

    Smith — a duly qualified expert of pharmacology, who teaches pharmacists about how to comply with the law for a living — testified about whether Omnicare’s dispensing practice was consistent with the core pharmacy requirement in a number of states, whose laws required a valid prescription before dispensing drugs.

    In applying state-law requirements to his assessment of Omnicare’s drug authorization records, Smith engaged in the type of pharmacist practice that pharmacists are trained to perform in their day-to-day practice.

    Of the dispensings Smith identified as invalid, many were based on the fact that there was no authorization — no prescription whatever — for the drug dispensation. As noted above, the existence of a prescription is a federal requirement, and so required no application of state-specific standards. Moreover, Omnicare had the opportunity both to cross-examine Smith and offer its own competing expert — an option it chose not to exercise.

    Held

    The Court allowed Dr. W. Thomas Smith to testify as an expert about the pharmacy law requirements in different states.

    Key Takeaway:

    Experts regularly provide opinions related to legal requirements in regulated industries. Smith’s testimony did not usurp the role of the judge since he made no effort to instruct the jury on FCA law.

    Case Details:

    Case Caption: United States Of America Ex Rel. Uri Bassan, Et Al V. Omnicare, Inc.
    Docket Number: 1:15cv4179
    Court Name: United States District Court, New York Southern
    Order Date: August 18, 2025
  • Epidemiology Expert’s Testimony Consisted of Unreliable Recitations of Scientific Studies

    Epidemiology Expert’s Testimony Consisted of Unreliable Recitations of Scientific Studies

    Plaintiff Leroy Jerome Richardson, III, a basketball referee, has sued his former employer, NBA Services Corp. and the National Basketball Association (together, the “NBA”) after his request for a religious exemption from its requirement that all NBA referees be vaccinated against COVID-19 during the 2021-22 season was denied. 

    The NBA filed a motion to exclude the testimony of the Plaintiff’s expert, Dr. Harvey Risch.

    Epidemiology Expert Witness

    Harvey A. Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.

    The majority of his career has focused on cancer and its causation. In May 2020, he published a paper on early treatment of high-risk COVID-19 outpatients. Since that time, he has co-authored other papers on COVID-19, which he describes as focusing on early outpatient management.

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

    Discussion by the Court

    Risch believes that the spread of infection is inevitable and post-infection natural immunity is a public good. He believes that the pandemic should not have been managed by tracking infection but rather by tracking deaths, hospitalization, and the incidence of serious long-term syndromes caused by infection. Accordingly, he asserts, governments, businesses and schools should not have mandated vaccination to prevent the spread of infection.

    Insofar as the NBA is concerned, Risch observed that by December 2021, the NBA had added a booster dose requirement to its mandate. Nonetheless, NBA referees and players, almost all of whom were vaccinated, caught COVID-19 during the 2021-22 season. Risch concluded that, given the small number of NBA staff seeking a religious exemption, even if all had gotten COVID-19, the infection burden would have been less than the breakthrough infection burden among the vaccinated referees.

    Relevance

    The NBA argued that many of Risch’s opinions are irrelevant. According to the NBA, the issue for the jury will be whether it reasonably relied on health authority guidance for the 2021-22 season and has carried its burden to show that allowing exemptions to its vaccination policy would have imposed an undue hardship. Accordingly, the NBA sought to strike Risch’s disagreements with the advice given by government agencies regarding COVID-19 and the data presented by government health authorities. For instance, Risch took issue with whether the government data was accurate and argued that the government should have focused more on issues such as post-infection natural immunity or developed incentives for vaccination.

    Although Risch is offered as a witness on the issue of undue hardship, he did not offer any opinion on the negative impact that game postponement, rescheduling, and cancellation would have on the NBA and those involved in NBA games. Nor did he dispute that the Omicron variant of the COVID-19 virus was considered even more transmittable than prior variants. His disagreements with public health management of the pandemic are irrelevant to the particular issues that created hardship for the NBA and the reasonableness of the NBA’s reliance on its experts in 2021 and 2022.

    The NBA sought to strike as well those opinions which relied on studies published after the 2021-22 season as irrelevant to the NBA’s determination by December 2021 to insist that its referees be vaccinated.

    Although Risch indicated that he is relying on later studies only to confirm his opinion, without those later studies it is unclear whether Risch had any reliable basis in the fall of 2021 for a different opinion than the one offered by the NBA’s medical consultants. The Court held that citing those later studies would only create confusion at best.

    Legal Conclusion

    The NBA additionally sought to exclude Risch’s report to the extent it offered legal conclusions. As an example of such inadmissible testimony, the NBA pointed to Risch’s opinion that allowing Richardson to work without a vaccination did not constitute an undue hardship when measured against the Equal Employment Opportunity Commission (“EEOC”) guidelines.

    The NBA is correct that the Plaintiff’s expert cannot offer such opinions to the jury. In opposition to this motion, Richardson agreed that Risch cannot testify to the legal conclusions in his report.

    Reliability

    The NBA explained that Risch has rejected nearly all of the studies that were available during the 2021-22 season and has relied instead on a 2024 “pre-print” study — i.e., a study that is shared publicly but not peer-reviewed — to conclude that vaccinations were not as effective as they were believed to be through 2022.

    The NBA also contended that Risch has selectively pointed to passages in studies to reach conclusions different from what the authors of the study concluded, and has done so without an adequate explanation. 

    In opposing this motion, Richardson pointed to only three studies that he argued are relevant and provide appropriate support for Risch’s opinion: Madewell, Puhach and the pre-print Riemersma.

    While Madewell acknowledged that COVID-19 vaccines became less effective in reducing the spread of new variants, Risch distorted Madewell to cite it for the proposition that vaccines had “lost most of their ability” to suppress the spread of infection. Puhach was not published until March 2023 and therefore would not have been available to the NBA when it made its decision to no longer permit unvaccinated referees to work.

    Finally, Riemersma, according to Risch, indicated that those infected during the period in which the Delta variant was prominent, had “similar” viral loads whether or not they had been vaccinated. That is an accurate description of Riemersma. But this study, which was not peer reviewed, does not undercut the advice the NBA’s experts provided to it, much less the recommendations of the Centers for Disease Control and Prevention (“CDC”). It does not take issue with the data showing that vaccination reduced the risk of infection.

    In sum, the Court ruled that Risch’s opinions should also be excluded because they were not reliable.

    Rule 403

    Finally, the NBA argued that the report must also be stricken pursuant to Rule 403.

    Risch’s analysis created a substantial risk of confusing and misleading the factfinder. In deciding whether the NBA has carried its burden of showing that an accommodation of Richardson would have created an undue hardship, jurors must focus on what the relevant scientific community and the NBA understood of the COVID-19 virus and the efficacy of vaccines and testing in the 2021-22 season, particularly during the late fall of 2021.

    The Court held that Risch’s criticism of public health authorities’ recommendations in the midst of a pandemic, especially when based on a few hand-picked studies that post-date the period in which the NBA made its decision, has limited to no probative value.

    Held

    The Court granted the Defendants’ motion to exclude the testimony of the Plaintiff’s expert, Dr. Harvey Risch.

    Key Takeaway:

    While cross-examination is an appropriate method for demonstrating the limitations in an expert’s analysis, before that analysis may be admitted at trial, its proponent must still show that it is sufficiently reliable to pass muster under Rule 702 and Daubert. This Richardson has not done.

    Admission of Risch’s testimony risks misleading and confusing the jury as to the relevant standard for determining undue hardship and the relevant evidence on which to base its verdict.

    Case Details:

    Case Caption: Richardson V. The National Basketball Association Et Al
    Docket Number: 1:23cv6926
    Court Name: United States District Court, New York Southern
    Order Date: August 18, 2025
  • Engineering Expert’s Testimony on Metal Roofing Degradation Admitted

    Engineering Expert’s Testimony on Metal Roofing Degradation Admitted

    This case is a breach of good faith and fair dealing and breach of contract due to Defendant CSAA General Insurance Company denying Plaintiff George Richardson’s roof damage claim that occurred on September 23, 2023.

    Defendant filed a Daubert motion to exclude the testimony of Plaintiff’s expert witness, Michael Pruitt.

    Engineering Expert Witness

    Michael Pruitt, P.E. has over 30 years of experience in engineering, code compliance, and construction. He has conducted more than 1,500 forensic investigations. His expertise spans commercial and residential roof inspections, foundation investigations, building envelopes, and structural evaluations.

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

    Discussion by the Court

    Pruitt’s Qualifications

    Although Defendant did not generally challenge the qualifications of Pruitt to testify as an expert, it did argue that at least one of his opinions should be excluded because he does not have any metallurgy expertise. Plaintiff countered that Pruitt is an engineer who serves primarily as an insurance defense expert witness and, in fact, Pruitt has worked for Defendant in the past and is currently involved in one of Defendant’s cases.  Based on Pruitt’s more than 30 years of engineering and construction experience, as well as his extensive forensic investigation experience, the Court concluded that he possessed the necessary skill, experience or knowledge to be qualified to offer the opinions in his report.

    As it specifically relates to his opinion regarding degradation of the metal roofing based on loss of granules, Pruitt offered an explanation supporting his opinion based on the manufacturer’s sales materials.  Nothing about this opinion indicated that Pruitt needed to be a metallurgist to opine on the effects of loss of granules from the roof at hail impact sites, particularly considering the roof manufacturer’s own product material statements.

    Reliable Methodology of Pruitt’s Opinions

    Defendant argued that Pruitt’s opinions lacked a reliable methodology because his opinions were contradicted by the roofing manufacturer’s testing and product materials. Defendant further argued that Pruitt’s opinions were inadmissible because he had conducted no independent testing, and his opinions were not supported by peer-reviewed publications.

    Pruitt set forth his opinions and the basis upon which he arrived at those opinions in his report. In doing so, he documented the observable damage and explained what damage he believed to be hail damage and its severity.

    Much of Defendant’s Daubert Motion appeared to rely not on Pruitt’s report or his opinions expressed therein, but on his responses to deposition questions regarding the roofing materials manufacturer’s product information.

    The fact that Defendant disagreed with Pruitt’s conclusions or believed other evidence contradicted those conclusions was not a basis upon which to exclude Pruitt’s opinions. To the extent Defendant disagreed with Pruitt’s opinions and conclusions, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof were the traditional and appropriate means of attacking shaky but admissible evidence.”

    Therefore, the Court concluded that Pruitt’s opinions relied on and were based on a sufficiently reliable methodology to be admissible.

    Held

    The Court denied Defendant’s Daubert motion to exclude the testimony of Plaintiff’s expert witness Michael Pruitt. 

    Key Takeaway:

    An expert’s personal experience, training, method of observation and deductive reasoning could be sufficiently reliable to constitute valid methodology. It should be noted that Pruitt’s method did not involve application of any controversial scientific process or theory.

    Case Details:

    Case Caption: Richardson V. CSAA General Insurance Company
    Docket Number: 6:24cv247
    Court Name: United States District Court for the Eastern District of Oklahoma
    Order Date: June 05, 2025
  • Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Emergency Medicine Expert Barred From Testifying Due to His Admitted Lack of Knowledge

    Plaintiff Emilee Bradley sued Defendants BSL Express Trucking, Inc. and Fatkhuddin Kurbonov in Jefferson Circuit Court, alleging various claims arising from an automobile accident involving Bradley and Fatkhuddin Kurbonov. Intervening Plaintiff Shawna Broyles (hereinafter “Broyles”) was a passenger of Plaintiff Bradley’s vehicle.

    Defendants filed a motion to exclude the opinion of Broyles’ proffered expert, Dr. Jules J. Barefoot.

    Defendants asserted that Barefoot’s expert report “is devoid of any meaningful analysis or reasoning” and therefore would not aid the jury with its deliberation of any issues in the case. Additionally, Defendants argued that Barefoot is not qualified to opine regarding Broyles’ dental injuries, scarring, or alleged concussion.

    Emergency Medicine Expert Witness

    Julius Jackson Barefoot is a medical doctor certified in emergency and preventative medicine. In addition, Barefoot is a certified independent medical examiner and has extensive experience evaluating injuries in the litigation context.

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

    Discussion by the Court

    Broyles intended to introduce Barefoot to testify that she suffered injuries from the accident and that “all of the medical care and medical bills [she] incurred . . . were reasonable, necessary, and appropriate for the injuries sustained.”

    The Court agreed with Defendants that Barefoot’s proposed testimony must be excluded. Because Barefoot’s report did not outline his reasoning or methodology, the Court is left to speculate as to whether Barefoot’s opinion “is the product of reliable principles and methods” or whether he has reliably applied those “principles and methods to the facts of the case.” Indeed, Barefoot provided no explanation for his conclusion that Broyles’ medical treatment was appropriate.

    The Court is also not convinced that Barefoot’s testimony would aid the jury. Barefoot’s report largely consisted of a summarization of Broyles’ medical records. And because Barefoot offered only a conclusory statement that Broyles’ treatment was necessary and appropriate, his proposed testimony did nothing to meaningfully “contextualize, analyze, and interpret” this historical information.

    Finally, the Court noted that Barefoot’s report repeatedly stated that he has not evaluated Broyles and that he is unaware of the full extent of her injuries and treatment. Barefoot’s admitted lack of knowledge regarding the full extent of Broyles’ injuries and treatment therefore made it impossible for him to reliably testify in the manner Broyles intended.

    Held

    The Court granted the Defendants’ motion to exclude the opinion of Plaintiffs’ expert Dr. Jules Barefoot.

    Key Takeaway:

    Information presented without any expert analysis or other application of the expert’s expertise generally should come to the jury directly from the sources rather than through the mouth of the expert. In this case, Broyles’ medical history “should come to the jury directly from the sources rather than through the mouth of” Barefoot.

    Case Details:

    Case Caption: Bradley V. BSL Express Trucking, Inc. Et Al
    Docket Number: 3:23cv133
    Court Name: United States District Court, Kentucky Western
    Order Date: August 18, 2025