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  • Expert Testimony Limited in Identity Theft Credit Reporting Dispute

    Expert Testimony Limited in Identity Theft Credit Reporting Dispute

    Oleksandr Panchenko, a Ukrainian national, first entered the U.S. in 2009 on a J-1 visa and received a Social Security Number. He lived intermittently in the U.S. until 2019, then returned permanently in April 2023 for work.

    In May 2023, he discovered over $120,000 in fraudulent accounts on his credit report, including unauthorized cards, bank accounts, addresses, and employment records from periods when he was outside the U.S., confirmed by travel records. He reported the identity theft to Mountain View police, filed an FTC affidavit, and disputed the accounts with multiple banks and credit bureaus. Despite supporting evidence, the institutions allegedly failed to investigate or correct the inaccuracies.

    As a result, false debts remained, leading to denied credit, higher deposits, and emotional and financial harm. To counter Comenity’s expert, Panchenko disclosed Douglas A. Hollon, a credit reporting professional, as his rebuttal expert witness.

    Credit Reporting Expert Witness

    Douglas A. Hollon is the Owner of Credit Experts of North Texas, LLC and has worked in the consumer reporting industry since 2005. At Experian, he handled escalated credit disputes for attorneys, regulators, and government agencies, served as Government Liaison, and testified as a Rule 30(b)(6) witness in about 20 Fair Credit Reporting Act (FCRA) cases.

    He has extensive expertise in identity theft disputes, credit bureau operations, credit scoring, and industry standards for FCRA compliance. Qualified as an expert in federal and state courts, Hollon holds a B.S. in Business Finance and multiple certifications in credit analysis, risk modeling, scorecard development, and lending compliance.

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

    Discussion by the Court

    Proper Rebuttal

    The Court found that Hollon’s opinion on the adequacy of Comenity’s investigation was proper rebuttal to Ulzheimer’s testimony. Both experts reviewed ACDV forms and addressed whether Comenity’s investigation met industry standards. However, Hollon’s opinion that Panchenko was a victim of identity theft did not rebut Ulzheimer’s report and thus was untimely.

    Exclusion of Identity Theft Opinion

    Because Panchenko had asserted identity theft from the outset, he had ample opportunity to timely disclose expert testimony on the issue. The late disclosure was neither justified nor harmless, as it deprived Comenity of a chance to prepare a counter-expert. Accordingly, the Court excluded Hollon’s identity theft opinion.

    Expert Qualifications

    Comenity argued Hollon lacked qualifications because his background was with a consumer reporting agency, not a furnisher. The Court disagreed, finding Hollon’s 19 years in the credit reporting industry and his experience handling tens of thousands of identity theft disputes sufficient to qualify him as an expert on FCRA investigations and industry standards.

    Legal Conclusions and Terminology

    The Court emphasized that experts may not offer legal conclusions. While Hollon could critique Comenity’s investigation, he could not characterize it as “unreasonable” under the FCRA, as that term has a distinct legal meaning. Instead, he must explain inadequacies in practical terms without invoking legal standards.

    Sufficiency of Facts and Data

    The Court rejected Comenity’s claim that Hollon relied on insufficient facts. As a rebuttal expert, Hollon was not required to conduct his own investigation but could rely on his expertise to critique Ulzheimer’s analysis. Any perceived gaps affected the weight, not admissibility, of his testimony.

    Held

    The Court partially granted Comenity’s motion, excluding Hollon’s identity theft opinion and barring use of FCRA legal terms, but allowing him to rebut Comenity’s investigation and industry standards.

    Key Takeaway:

    The Court limited Douglas Hollon’s testimony, excluding his opinion that Panchenko was a victim of identity theft and restricting use of legal terms like “reasonable” under the FCRA. However, Hollon remains qualified to testify as a rebuttal expert on industry standards and the adequacy of Comenity’s investigation, ensuring the jury hears his critique while preventing him from offering legal conclusions or untimely opinions.

    Case Details:

    Case Caption: Panchenko V. Comenity Cap. Bank
    Docket Number: 5:23cv4965
    Court Name: United States District Court for the Northern District of California
    Order Date: August 13, 2025
  • Civil Engineering Expert Employed a Reliable Methodology for Segregating Damages

    Civil Engineering Expert Employed a Reliable Methodology for Segregating Damages

    In this insurance coverage dispute, Plaintiff Will Properties Inc. brought claims against Defendant Century Surety Company for breach of contract, common law bad faith, and violations of the Texas Insurance Code.

    Plaintiff alleged that its exhibition center in Harker Heights, Texas was covered by Defendant’s policy, which included hail and windstorm coverage, from November 1, 2020 to November 1, 2021, and that the property “sustained extensive damage resulting from a severe storm that passed through the Bell County, Texas area” during the policy period.

    Defendant contended that Plaintiff cannot show that its claimed damages resulted from a covered cause of loss because it cannot segregate between damages that occurred during and before the policy period, including in a 2013 storm.

    Moreover, Defendant asked the Court to exclude the opinions of Plaintiff’s expert, Neil B. Hall.

    Civil Engineering Expert Witness

    Neil Bradley Hall is a graduate of City College of New York and a licensed Professional Engineer in Texas, Minnesota, New York, New Jersey, USVI and Mississippi, with over 25 years of professional experience in the practice of engineering. 

    Hall is the owner and principal of Groundtruth Forensics, a consulting firm specializing in building performance, failure analysis and damage assessment.

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

    Discussion by the Court

    Defendant contended: “According to the facts that Hall acknowledges, the Property suffered damage from a combination of covered and non-covered causes of loss. Yet nowhere in his written reports or deposition testimony does Hall even attempt to segregate the damage between those two.”

    Therefore, Defendant asserted, “Hall’s opinions do nothing to aid the fact finder and offer no information relevant to a determination of whether or to what extent Will Properties’ roof might have been damaged by a covered cause of loss.”

    In response, Plaintiff emphasized that Defendant did not challenge Hall’s education, qualifications, or methodology. Instead, Plaintiff contended, Defendant misstated the testimony of Hall, who “explained how he segregated damages between the Policy period and those pre-existing the Policy period.” Plaintiff submitted the transcript of Hall’s deposition and his declaration responding to the motion to exclude. In both, Hall explained his efforts to segregate hail damage to Plaintiff’s property by age, including by reviewing storms five years before the reported date of loss and focusing on two hail storms in 2019 and 2020; he also testified that he reviewed information from the 2013 storm.

    The Court, therefore, found that Hall’s opinions are relevant and sufficiently reliable to be considered by the finder of fact, who will be free to consider Hall’s methodology for segregating damages when determining the proper weight to accord his opinions.

    Held

    The Court denied the Defendant Century Surety Company’s motion to strike and exclude the opinions of Neil B. Hall.

    Key Takeaway:

    As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility. Therefore, Defendants’ arguments about the reliability of Hall’s opinions go to the weight properly afforded his testimony, not its admissibility. 

    Case Details:

    Case Caption: Will Properties Inc. V. Century Surety Company
    Docket Number: 1:22cv1072
    Court Name: United States District Court, Texas Western
    Order Date: July 16, 2025

  • Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    Legal Expert Allowed to Testify Despite His Lack of Particularized Expertise

    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 James C. Cooper offered opinions on two issues: (1) What a reasonable market participant would have expected, prior to March 2021, was required to comply with Restore Online Shoppers’ Confidence Act (“ROSCA”); and (2) The extent to which the FTC’s allegations in this case are consistent with such reasonable expectations predating March 2021.

    The FTC filed a motion to exclude Cooper’s testimony on three grounds. First, it said that his testimony is irrelevant to whether Defendants violated the FTC Act or ROSCA and the availability of civil penalties. Second, it contended that his methodology is unreliable because he applied his case coding technique inconsistently. Third, it asserted that he offers legal conclusions that are inadmissible under Federal Rule of Evidence 702. 

    Law And Legal Expert Witness

    James Campbell Cooper is a law professor at George Mason University’s Antonin Scalia Law School (ASLS). He has a Ph.D. in economics from Emory University. At ASLS, he teaches courses on the digital economy and consumer protection law; the consumer protection law course covers, among other things, the FTC’s authority to regulate deceptive conduct and FTC disclosure requirements. 

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

    Discussion by the Court

    To generate his opening report, Cooper reviewed complaints and judicial decisions from ROSCA enforcement actions initiated before March 2021, when Amazon received a Civil Investigative Demand from the FTC. He then coded these materials to determine the prevalence of certain allegations in ROSCA enforcement actions. If an element was included in the document, it was coded as a “1” but if an element was not included then it was coded as a “0.” This method purportedly allowed him to calculate the relative frequency of certain allegations and understand the conduct a “reasonable market participant” would expect to violate ROSCA. 

    Cooper found that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard that represents an unpredictable departure from the standard prior to March 2021 in two ways.” First, he said that the allegations suggested a new standard to “balance” the options to accept or decline an offer to enroll in a subscription service. Second, he said that the FTC’s complaint sets out more stringent standards for clear and conspicuous disclosure, express informed consent, and simple cancellation than a “reasonable market participant” would have expected ROSCA to require. His report also found that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    Relevance of Cooper’s Testimony

    Defendants said that Cooper’s opinions are relevant to the FTC’s request for civil penalties. But the FTC said that Cooper’s opinions are irrelevant to this request because the understanding of a “reasonable market participant” is unrelated to any Defendant’s actual knowledge, which is the relevant question in the civil penalty inquiry. The FTC also contended that Cooper’s opinions are flawed because they were formed on the basis of non-ROSCA guidance.

    The Court held that Cooper’s opinions are relevant to the FTC’s request for civil penalties because his report may help the trier of fact determine whether Defendants should have known their actions were unlawful. The FTC argued that Cooper did not offer an opinion on this subject because the relevant implied knowledge inquiry for Amazon is whether “a sophisticated company with virtually unlimited resources and near-constant involvement of in-house and outside counsel should have known.” 

    And it said, for the individual Defendants, whether “executives in charge of the largest subscription program in the United States, essentially unlimited legal resources, and constant involvement with in-house or outside counsel” should have known. But these arguments that Cooper did not account for the actual circumstances of this case concerned the weight—not admissibility—because they attacked the factual basis of his opinions.

    In addition, Cooper’s reliance on non-ROSCA guidance for his opinions did not render them irrelevant. As the FTC’s designated representative recognized in her deposition, non-ROSCA sources provide “guidance relating to clear and conspicuous online disclosures” that are the same as “clear and conspicuous disclosure[s] in the context of ROSCA.”

    Reliability of Cooper’s Testimony

    The FTC next argued that Cooper’s opinions must be excluded because they are unreliable. It said that Cooper failed to demonstrate how his experience informs his conclusions. It also said that Cooper’s case coding methodology was applied inconsistently because he used a different method to code for “dark patterns” than he used to code for past FTC ROSCA enforcement actions.

    The FTC’s first two arguments, that Cooper lacked experience with ROSCA and he did not show how his experience informed his conclusions failed to persuade the Court.

    Even though the FTC said that Cooper did not perform any work pertaining to ROSCA while working at the FTC and that he has not written substantively on ROSCA, these arguments merely concerned to the weight of his conclusions. Cooper added that the methodology he employed is common in the field of law and economics.

    The FTC’s other argument about reliability, that Cooper applied his coding method inconsistently, also did not persuade the Court. The FTC took issue with Cooper’s methodology because he reviewed and analyzed past FTC ROSCA complaints to code them, but then coded past FTC cases for “dark patterns” based on the explicit use of that term. 

    The FTC likewise contended that Cooper did not consider consent orders from past FTC ROSCA enforcement actions to code for sub-categories of alleged deficiencies, but he did review consent orders from past FTC ROSCA enforcement actions to code for allegations of fraud.

    Defendants explained in response that the FTC has not defined “dark patterns” clearly enough to allow coding by any means other than searching for this explicit term. At his deposition, Cooper explained that he did not consider some information, such as FTC consent orders, because he was coding for the presence of certain allegations made in each case.

    Testimony on Legal Conclusions

    The FTC maintained that Cooper’s report included four impermissible legal conclusions: (1) that “the FTC’s allegations against Amazon in this case lay out a new ROSCA standard”; (2) that “the first departure from prior guidance is the novel theory of liability grounded in the subjective concept of ‘dark patterns’”; (3) that “the FTC employed much more stringent tests for ‘clear & conspicuous disclosure,’ ‘express affirmative consent,’ and ‘simple cancellation’ in this case than in its other ROSCA cases”; and (4) that “a reasonable market participant would not have believed, prior to March 2021, that the enrollment and cancellation flows alleged in the Complaint violated ROSCA.”

    The FTC did not identify any portion of his report that claimed to interpret ROSCA. Nor did the FTC identify any portion of his report that opines on whether Defendants had knowledge of ROSCA or that Defendants knew or should have known that their actions violated ROSCA. Instead, as Defendants acknowledged, Cooper reviewed, interpreted, and analyzed the FTC’s past ROSCA enforcement actions. He then noted where he believed the FTC departed from its prior guidance. This is not an interpretation of ROSCA. He also concluded that a “reasonable market participant” would have expected to have complied with ROSCA under certain conditions, but he never says that Defendants did not violate ROSCA or that Defendants would not have expected to have complied with ROSCA under these conditions. 

    The Court found this testimony permissible because an expert is allowed to “discuss industry conditions, standards, and practices” as well as “factual corporate norms.”

    Held

    The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert James C. Cooper.

    Key Takeaway:

    Cooper’s report does not go so far as to decide the ultimate legal questions. Instead, it stays within proper bounds by addressing industry conditions, standards, practices, and common corporate norms.

    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

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 15, 2025
  • Human Factors Expert’s Testimony on Dark Patterns Excluded

    Human Factors Expert’s Testimony on Dark Patterns Excluded

    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 Craig Rosenberg‘s opening report addresses the FTC’s allegation that Amazon used deceptive practices known as “dark patterns” in user interface design to drive unintended Prime membership.

    Rosenberg’s opening report makes several findings. He stated that there is ambiguity in the definition of the term “dark patterns,” it is difficult to measure clarity in user experience design and subjective evaluations are insufficient to measure this clarity, Amazon’s initiatives to enhance clarity demonstrate a commitment to data-driven user experience refinement, Amazon uses empirical evidence to inform design decisions, there are alternative (non-user experience design) explanations for declines in Prime membership subscriptions following clarity-centered changes, and the absence of objective standards for clarity risks penalizing legitimate business practices. 

    The FTC filed a motion to exclude Rosenberg’s testimony on three grounds. First, it said that his methods are unexplained and unreliable. Second, it said that he is not qualified to testify on the subject of his opinions. And third, it said that his testimony is irrelevant and confusing.

    Human Factors Expert Witness

    Craig S. Rosenberg, Ph.D., is a consultant who provides advanced engineering services for a wide array of companies. He has a Master of Science and Ph.D. from the University of Washington in Human Factors, a multidisciplinary field that studies how people interact with machines, technology, and their environment. 

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

    Discussion by the Court

    Rosenberg’s opening report, rebuttal report, and deposition testimony all indicate the primary source of his expert opinions is his experience, training, and education as a human factors engineer. However, Rosenberg’s inability to articulate how his education, training, and experience have led him to his conclusions shows that these conclusions are not the product of a reliable method; therefore, the Court held that his testimony is inadmissible.

    Amazon said Rosenberg’s “references to the ‘totality’ of his experiences are not evasions, but acknowledgments that his expert conclusions stem from integrated professional judgment based on decades of interface design.” Even so, Rosenberg must explain how his decades of experience inform his expert conclusions. By his own admission, he cannot do so.

    Held

    The Court granted Plaintiff FTC’s Rule 702 motion to exclude the testimony of Defendants’ expert Craig Rosenberg.

    Key Takeaway:

    Liberally construing Rule 702 in favor of admissibility, Rosenberg’s opinion does not show how his experience informs his conclusions. He draws no methodological nexus between his conclusions and his experience, education, and training, other than to say his conclusions are based on his experience, education, and training. This circular reasoning is insufficiently reliable.

    Please refer to the blog previously published about this case:

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 11, 2025
  • Relying on Personal Intuition Is Not a Valid Methodology for an Entertainment Industry Expert

    Relying on Personal Intuition Is Not a Valid Methodology for an Entertainment Industry Expert

    This copyright infringement action concerns two musical works: Plaintiff, Rene Lorente Garcia’s 1998 song Algo Diferente (“AD”), and the 2021 track Don’t Be Shy (“DBS”), performed by Tijs Michiel Verwest (“Tiësto”) and Carolina Giraldo-Navarro (“Karol G”). 

    Plaintiff brought two claims: direct infringement against Karol G and Tiësto (“Count I”); and contributory and vicarious infringement against Atlantic Recording Corporation (“Atlantic”), Kobalt Music Publishing America, Inc. (“Kobalt”), Sony Music Publishing (US) LLC (“Sony”), and Warner Records Inc. (“Warner”). 

    Plaintiff, a professional flutist and Latin music composer, has featured AD on several albums and made it available on digital platforms like Spotify and YouTube. DBS was created collaboratively over Zoom on May 29, 2020, by writers located in the Netherlands and Finland; Tiësto and others later completed the production, and Karol G added her vocals in the final stages.

    Each side offered a purported music expert to address whether DBS copies protectable elements of AD. Plaintiff relied on Richie Viera, a Latin music producer and former Vice President of Artists and Repertoire (“A&R”) at Capitol Records, who contended that the two songs share original melodic, harmonic, and rhythmic features. 

    Defendants requested that the Court exclude the Viera Report under Rule 702 and Daubert.

    Entertainment Industry Expert Witness

    Richard A. Viera-Cintrón is a former Vice President of A&R at Capitol Records, with decades of experience managing and producing Latin artists. Beyond that, he has taught music business and copyright at the Liceo de Arte y Tecnología in Puerto Rico, led seminars across Latin America, and appeared as a television commentator on music industry issues in Puerto Rico. 

    Viera is also a voting member of the Latin Academy of Recording Arts and Sciences and the National Academy of Recording Arts and Sciences.

    His expertise encompasses copyright infringement, moral rights, authorial rights, and trademark registration, making him a highly sought-after expert witness in legal disputes within the entertainment sector. As a musicologist, historian, and producer, he has worked with major labels and artists, curating historical compilations and reediting classic vinyl and CD recordings. 

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

    Discussion by the Court

    Qualifications

    While Plaintiff touts Viera’s decades in the music industry, the Court held that experience alone does not open the gate to expert testimony.

    To begin with, the list of cases that appears in Viera’s CV is long, but not illuminating. He cited 22 matters where he allegedly served as an expert, consultant, or musicologist — but nearly all involve the same cluster of parties in the Puerto Rico music industry, with one Plaintiff, Joel Bosh, recurring across five suits filed within three years. 

    Plaintiff highlighted Viera’s role as an author and educator, pointing to three published books and a forthcoming volume titled Stolen Music – The Fraud of Prior Art and Musical Building Blocks. But Plaintiff supplied no academic reviews, peer validation, or usage data to show these works carry weight in the forensic or legal musicology community.

    More generally, the nature of Viera’s professional background does not qualify him to engage in the comparative analysis his report purports to offer. While his curriculum vitae (“CV”) highlights substantial experience in the business side of the Latin music industry — including artist management, record production, television commentary, and music business education — none of these roles involves the core competencies of forensic musicology: transcribing compositions, analyzing protectable expression, or applying comparative methodologies to determine similarities.

    Moreover, Viera did not hold a degree in musicology, music theory, composition, or any closely related field. Nor did Viera’s deposition testimony bridge the gap. He declined to define standard musicological terms, such as “tonic” and “diatonic” despite using them in his analysis.

    Reliability

    Even if Viera’s experience qualified him to testify, that experience would not render his opinions reliable.

    Defendants explained in detail why Viera’s methodology failed every aspect of Daubert‘s reliability framework. His analysis — which relied largely on listening rather than transcription or notation — is neither testable nor replicable, lacks peer review or validation, and departs from accepted musicological methods by failing to conduct a prior art review or isolate protectable elements. 

    That concern is heightened by Viera’s admission that he did not prepare the transcriptions in his own report; Plaintiff supplied them — leaving the foundation of Viera’s analysis not just unverifiable, but secondhand.

    Plaintiff asserted that Viera’s “aural comparisons” supported by “visual representations” are grounded in industry experience and accessible to a jury. Yet Plaintiff identified no recognized methodology underlying this framework, nor did he explain how Viera’s conclusions can be tested or reviewed.

    Asked at his deposition about how he determines originality without evaluating prior art, he replied: “I use my instinct.I am able to detect when a word is copied, when there is any sort of copy.”

    He added, “I have a unique perception, something that perhaps very few people in the music industry have.” The Court held that it is not a methodology; it is, at best, Viera’s personal intuition offered up as professional expertise — untestable, unverifiable, and precisely the sort of expert say-so that Daubert excludes.

    Helpfulness

    The Viera Report did not engage in the type of analysis a jury could not undertake on its own. To the contrary, the Court held that Viera’s assertions rely on intuition and unexplained impressions — the kind of subjective judgments a jury is just as equipped to make as Viera; particularly in the absence of self-generated transcriptions, any review of prior art, or analytical tools to distinguish protectable expression from unprotectable elements. 

    Because Viera’s testimony is not the kind that Rule 702 envisions — evidence that informs, rather than supplants, the jury’s judgment — it is properly excluded.

    Held

    The Court granted the Defendants’ motion to exclude the Plaintiff’s proposed expert, Richie Viera.

    Key Takeaway:

    The unremarkable observation that an expert may be qualified by experience does not mean that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.

    An expert who is relying solely or primarily on experience must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.

    Case Details:

    Case Caption: Lorente-Garcia V. Giraldo-Navarro
    Docket Number: 1:24cv23066
    Court Name: United States District Court, Washington Western
    Order Date: July 09, 2025
  • Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

    Expert Testimony Survives Daubert Challenge in Surgical Mesh Injury Case

    Connie Thacker (Plaintiff) received two surgical mesh devices, Prolift and TVT-Secur, as implants on May 8, 2009. Both devices were manufactured by Ethicon, Inc. and were designed to treat pelvic organ prolapse and stress urinary incontinence in women. Later, Thacker sued, alleging damages resulting from the use of these devices and identified Elizabeth Laposata as her “Case-Specific expert.”

    The Defendants moved to exclude Laposata’s testimony regarding general principles of tissue reactions to mesh, changes in the mesh after implantation, pain and suffering, and her opinion that Thacker experienced certain complications.

    Pathology Expert Witness

    Elizabeth Ann Laposata, M.D., F.C.A.P., F.A.S.C.P., is an expert in Anatomic and Clinical Pathology who has served as an expert witness in matters involving negligence, criminal law, and products liability. She has testified in cases before courts including the U.S. District Court for the Northern District of Georgia, the Southern District of West Virginia, and the Supreme Court of Rhode Island, with judges such as Joseph R. Goodwin, William S. Duffey Jr., and others presiding.

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

    Discussion by the Court

    Impermissible General Testimony

    The Defendants argued that Laposata’s general opinions exceeded her designation as a case-specific expert and included irrelevant discussion of mesh changes and symptoms not experienced by Thacker. The Court adopted the reasoning in Meade v. Ethicon, Inc., which held that such general background is permissible when used to explain the pathology underlying the Plaintiff’s symptoms and to support case-specific opinions. The Court found her opinions consistent with her role and admissible under Rule 702.

    Qualification to Opine on Mesh Changes

    Defendants claimed Laposata was unqualified to testify about mesh degradation, citing a 2014 deposition where she allegedly admitted she was not a mesh degradation expert. The Court again relied on Meade, finding that her training, work, and literature review qualified her to opine on degraded mesh in human tissue. It emphasized that an expert’s self-description in a prior case is not dispositive and noted her continued education since 2014.

    Qualification to Opine on Pain and Suffering

    Defendants argued she lacked qualifications to opine on Thacker’s pain and suffering because she does not treat live patients for pain. The Court disagreed, citing Meade, and held that a pathologist’s expertise includes determining causes of injuries and diseases, which encompasses opinions on pain arising from pathological findings.

    Reliability of Testimony Without a Control

    Defendants contended her testimony on Thacker’s complications was unreliable because she did not compare the Plaintiff’s tissue slides with control slides from asymptomatic patients. They relied on MDL precedent that found such methodology insufficient. The Court declined to follow that reasoning, holding that her direct examination of Thacker’s explanted mesh provided adequate validation under Daubert. The absence of a control went to the weight of her testimony, not its admissibility.

    Held

    Defendants’ motion  to exclude testimony from Plaintiff’s expert Elizabeth Laposata was denied.

    Key Takeaway

    The Court upheld Laposata’s case-specific testimony, finding her qualified to opine on mesh changes, pain, and complications, and ruling her methods reliable despite the lack of control slides.

    Please refer to the blogs previously published about this case:

    Urogynecology Expert Witness Testimony about inadequate risk disclosure admitted in medical device product liability action

    Obstetrics and Gynecology Expert’s Testimony on Mesh Porosity and Stiffness Admitted

    Urogynecology Expert’s Opinion on Continuum of Care Admitted

    Obstetrics and Gynecology Expert’s Opinion Regarding the Common Knowledge of Pelvic Surgeons Admitted

    Biomedical Engineering Expert’s Testimony on Product Warnings Admitted

    Biomaterials Expert Barred from Testifying About Corporate Knowledge and Intent

    Case Details

    Case Caption: Thacker v. Ethicon Inc.
    Docket Number: 5:20cv50
    Court Name: United States District Court for the Eastern District of Kentucky, Central Division
    Order Date August 11, 2025
  • Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    Law Enforcement Expert’s Testimony Regarding the Standard of Care in an Involuntary Detention Setting Admitted

    This case arises out of Plaintiff Gregory Palm’s claim that he received deficient medical care while incarcerated in the Jones County Jail and Baldwin County Detention Center.

    Sheriff Butch Reese, Captain Shane Moody, Lieutenant Brent Skinner, and Lieutenant Dalton Hart (hereinafter “Defendants”) disclosed Kathryn Wild and Paul Cappitelli as expert witnesses. Plaintiff Gregory Palm filed a motion to exclude the testimony of these witnesses.

    Nursing Expert Witness

    Kathryn Jean Wild has extensive experience working alongside, supervising, and training correctional officers regarding their responsibilities and duties as they relate to the provision of healthcare in a correctional facility.

    Wild is a registered nurse with a bachelor’s degree in health services management and a master’s in public administration. She has worked in the field of correctional healthcare for forty years and has been certified as a correctional healthcare professional since 1991.

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

    Law Enforcement Expert Witness

    Paul A. Cappitelli is a career law enforcement officer with extensive experience working in administration, patrol, custody, homicide investigation, public affairs, and gang enforcement.

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

    Discussion by the Court

    Expert Testimony of Kathryn Wild

    Palm asserted that Wild is not qualified to opine about the conduct of jail correctional officers because she is a nurse and not a correctional officer herself.

    Wild is a registered nurse who has worked in the correctional healthcare setting for nearly forty years. She worked as a nurse in five correctional facilities, then went on to serve as the health services administrator for San Bernardino County, California, and the deputy agency director for correctional health services for Orange County, California. In her supervisory roles for San Bernardino County and Orange County, she was responsible for the oversight and training of non-medical staff such as corrections officers regarding the provision of healthcare services and she developed and implemented the healthcare policies that governed correctional facility employees.

    She now operates a consulting business in which she assists in training correctional facility staff, including correctional officers, on their responsibilities relating to the provision of healthcare for inmates and detainees. 

    The Court found that Wild is qualified to opine on the conduct of correctional officers in this action. While she may not be a correctional officer, Wild is familiar with (and has even participated in the creation of) standards governing the involvement of correctional officers in the provision of healthcare to detained individuals. She has first-hand experience training such officers on how they should provide healthcare to those in their custody. Wild’s knowledge and experience concerning the standards for correctional officers’ responsibilities relating to healthcare rendered her qualified to offer expert testimony in this action. 

    Having found that Wild was qualified to provide expert testimony on the subjects explained hereinabove, the Court found unpersuasive Palm’s argument that Wild’s testimony would be unreliable and unhelpful to the trier of fact.

    Expert Testimony of Paul Cappitelli

    Palm argued that Paul Cappitelli’s testimony should be excluded because it will not help the trier of fact understand the evidence or determine a fact at issue.

    Cappitelli is a career law enforcement officer who opines that the jail staff in this action “were attentive and conscientious in their interactions with Palm” and “arranged for [Palm] to receive medical treatment” when they first noticed his need for medical attention, such that he was never denied medical care.

    He also opined that Palm was properly monitored during his incarceration in conditions that were adequate, and that there is no evidence that any policy or practice could have altered Palm’s health outcome.

    Cappitelli asserted that the jail staff were adequately trained and not responsible for medical care decisions. He based these opinions on “the standard of care prevalent in the corrections and custodial profession and facilities, and the practices of corrections personnel in this matter.”

    Cappitelli is familiar with the standard of care unique to the corrections environment because he has extensive experience “personally supervis[ing] numerous officers and professional staff support employees in a custody environment.” 

    In summary, the Court held that Cappitelli’s expert testimony regarding the standard of care in an involuntary detention setting, and whether the Defendants met that standard of care under the circumstances in this action, will assist the trier of fact.

    Held

    The Court denied Palm’s motion to exclude the testimony of Defendants’ expert witnesses, Kathryn Wild and Paul Cappitelli.

    Key Takeaway:

    Monitoring detainees or prisoners in a correctional environment is distinct from monitoring someone in the home or office in a way that average jurors may be familiar with. That unique setting carries with it a unique standard of care which the average layperson will likely need expert assistance to understand.

    Cappitelli’s testimony about the standard of care applicable to custodial officers in an involuntary detention setting goes beyond “what lawyers for the parties can argue in closing arguments.”  As long as Cappitelli connects his conclusions and opinions to the unique standard of care and special circumstances in the detention setting, they may be helpful to the jury. 

    Case Details:

    Case Caption: Palm V. Corrcare Inc Et Al
    Docket Number: 3:24cv47
    Court Name: United States District Court, Georgia Middle
    Order Date August 11, 2025
  • Neuropsychology Expert’s Testimony on Marijuana Use Admitted

    Neuropsychology Expert’s Testimony on Marijuana Use Admitted

    This is a product liability case arising from a motorcycle accident. Plaintiff Cameron Woodall alleged that on September 9, 2022, he was severely injured while wearing a motorcycle helmet allegedly designed and manufactured by Defendants Yohe Helmet Manufacturing Co., Ltd. and Foshan City Nanhai Yongheng Helmet Manufacturing Co., Ltd.; and distributed and sold by Defendant Cycle Gear.

    Plaintiff claimed that the helmet was defectively designed and unreasonably dangerous because it failed to incorporate available anti-rotational technology, which allegedly would have mitigated the forces that caused his traumatic brain injury during the accident.

    Defendant Cycle Gear maintained that Plaintiff’s cognitive and neurological impairments may be influenced, at least in part, by his history of marijuana use, as documented in his medical records.

    In support of this theory, Defendant Cycle Gear designated Dr. Janyna M. Mercado, a neuropsychologist, to offer opinions regarding the potential relevance of Plaintiff’s prior substance use to his current condition. Mercado did not examine Plaintiff but reviewed his medical history and opined that substance use is a relevant pre-existing risk factor when evaluating post-injury impairments.

    Plaintiff contended that Mercado’s opinions concerning his marijuana use are speculative, unreliable, and inadmissible under Rules 403 and 702.

    Neuropsychology Expert Witness

    Janyna Marie Mercado-Couch is a licensed clinical neuropsychologist who specializes in brain-behavior relationships and the effects of medical history on cognitive and emotional functioning.

    She has extensive experience evaluating patients with traumatic brain injuries, and she routinely conducts evaluations of the kind at issue in this case.

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

    Discussion by the Court

    Admissibility Under Rule 702

    Mercado is Qualified

    Here, the Plaintiff did not dispute Mercado’s qualifications. Thus, the Court found that Mercado’s background, training, and clinical experience satisfy the qualification requirement under Rule 702.

    Mercado’s Specialized Knowledge will Help the Trier of Fact

    Defendant Cycle Gear sought to introduce Mercado’s opinion that Plaintiff’s history of marijuana use is a relevant factor in assessing his current cognitive and psychological impairments.
    There is no dispute that Plaintiff’s medical records—including those cited in his Life Care Plan—contain repeated references to marijuana use, cannabis dependence, and related diagnoses. Mercado relied on these records, in conjunction with her clinical expertise and scientific literature, to conclude that Plaintiff’s substance use is a relevant pre-injury risk factor for cognitive dysfunction. Because Plaintiff’s current neurological and psychological symptoms are central to his damages claims, and because the proposed testimony provides context for evaluating alternative or contributing causes, the Court found that Mercado’s opinions would “help the trier of fact to understand the evidence or to determine a fact in issue.”

    Mercado’s Testimony is Based on Sufficient Facts and Data

    Mercado’s opinions are based on her clinical experience and review of Plaintiff’s medical records, and accepted literature in the field of neuropsychology. Plaintiff has not cited any authority suggesting that reliance on medical records in this context is improper.

    Mercado’s Testimony is the Product of Reliable Principles and Methods Reliably Applied to the Facts of the Case

    Mercado testified that she conducted her analysis in accordance with APA Ethical Standard 9.01(c), which permits forensic opinions based on record review and professional experience when direct testing is not performed.

    She further acknowledged that while she cannot quantify the extent to which Plaintiff’s marijuana use contributed to his current symptoms, that limitation reflects the inherent boundaries of neuropsychological science and does not undermine the reliability of her methodology.

    Admissibility Under Rule 403

    Having found that Mercado’s opinions are admissible under Rule 702, the Court next considers whether they should be excluded under Rule 403.

    In this case, Mercado’s opinions appear to be directly relevant to causation, damages, and the weight to be given to Plaintiff’s cognitive complaints. The fact that the topic may have prejudicial implications does not render it inadmissible, particularly where the testimony is grounded in scientific methodology and offered by a qualified expert. Accordingly, the Court found that Rule 403 does not bar admission of Mercado’s challenged opinions.

    Held

    The Court denied the Plaintiff’s motion to exclude certain opinions of Janyna M. Mercado, Ph.D.

    Key Takeaway:

    In fact, expert witnesses—particularly in medical or psychological disciplines—may base their opinions on a review of records without necessarily conducting an in-person examination.

    Case Details:

    Case Caption: Woodall V. Cycle Gear, Inc.
    Docket Number: 4:23cv870
    Court Name: United States District Court, Texas Eastern
    Order Date: August 12, 2025
  • Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    Marketing Expert Employed Techniques Widely Accepted in Market Research Community

    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.

    Amazon requested that their marketing expert, Ronald T. Wilcox, conduct two surveys: (1) “A survey to assess the extent to which Prime members can locate and complete the desktop version of the Cancellation Flow on Amazon.com as described in the Amended Complaint” (Cancellation Survey); and (2) “A survey to assess the experiences of US consumers with free trials of memberships or subscriptions that automatically turn into paid memberships or subscriptions unless cancelled” (Free Trial Survey).

    Wilcox reported that the Cancellation Survey, designed to assess which Prime members can locate and complete the desktop version of the Cancellation Flow on Amazon.com, shows 99.8% of respondents (529 of 530) located the Cancellation Flow and 96.4% of respondents (511 of 530) paused or ended their Prime membership.

    The Free Trial Survey, designed to assess the extent of U.S. consumers’ experience with free trial memberships or subscriptions, particularly those that automatically turn into paid memberships or subscriptions, found 92.5% of respondents currently pay for at least one of the memberships or subscriptions on the list provided to respondents.

    The FTC, however, filed a motion to exclude these survey results. 

    Marketing Expert Witness

    Ronald T. Wilcox, Ph.D., is a Professor of Business Administration at the University of Virginia’s Darden Graduate School of Business Administration. He conducts research and teaches classes on marketing. His areas of expertise within marketing are branding, consumer behavior, surveys, statistical modeling of consumer choice, and the public policy implications of marketing.

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

    Discussion by the Court

     FTC asserted that the results of the first survey should be excluded for two reasons: (1) Wilcox recruited and sampled only the most technology-savvy, attentive survey takers; and (2) he failed to ensure the respondents were representative of U.S. Amazon Prime members seeking to cancel their memberships. The FTC likewise filed a motion to exclude the results of the second survey because it said nothing about respondents’ understanding of Prime memberships.

    Wilcox’s Surveys

    Cancellation Survey

    The FTC said that testimony about the Cancellation Survey must be excluded because nothing indicated the respondents were representative of U.S. Prime members. In particular, it argued that Wilcox selected only the most tech-savvy, attentive respondents to take this survey, and that he ignored this bias. And the survey must also be excluded, according to the FTC, because Wilcox did not verify that the respondents appropriately represented key demographics.

    The Court agreed that testimony about the Cancellation Survey is admissible because Wilcox used techniques with general acceptance in the market research community.

    The Cancellation Survey was also intended to test whether respondents were able locate the Cancellation Flow and pause or end a Prime membership. This was pertinent to the allegation that Amazon did not provide simple mechanisms for subscribers to cancel their Prime memberships.

    The FTC’s contrary arguments do not dictate a different conclusion. First, it said that the sample group was skewed towards tech-savvy participants.  But this is a critique of the survey’s design and methodology, which goes to weight—not admissibility. Similarly, the FTC’ second argument against Wilcox’s use of attention checks goes to weight because technical unreliability—for example, issues with the format of the questions or how the survey was conducted—goes to the weight afforded a survey, not admissibility. 

    The FTC’s third point, that it is problematic to have a greater percentage of people who have used the Cancellation Flow among the survey respondents than exists in the general population of Prime members, also goes to weight. As does its fourth argument, that Wilcox did not consider relevant socio-demographic information. These third and fourth arguments both go to weight because “[t]he selection of an inappropriate universe generally affects the weight of the resulting survey data, not its admissibility.” 

    Free Trial Survey

    The FTC next claimed the Free Trial survey had to be excluded because it was irrelevant. It objected to this survey on the grounds that it said nothing about Prime membership, and whatever respondents thought about a free trial of a gym membership, streaming service subscription, or other subscription service other than Prime had no bearing on this litigation. In addition, the FTC argued that the survey had to be excluded because Wilcox did not provide any evidence to connect the results of the Free Trial Survey to consumers’ understanding of Prime’s enrollment process.

    Defendants responded that Wilcox’s testimony about this survey is relevant for three reasons. First, the survey concerned the FTC’s allegation that consumers are unaware of Prime’s auto-renewal features. Second, the FTC has repeatedly argued that the context of disclosures matters, and this survey provides context about consumers’ understanding of subscriptions, free trials, and auto-renew features. Third, Defendants’ online consumer behavior expert connected the Free Trials survey to her opinions that many consumers are familiar with free trials and that consumers’ familiarity with free trials suggests they are familiar with free trial enrollment and cancellation.

    The Free Trial Survey is related to the FTC’s argument that Amazon’s strategies “made it unlikely many ordinary consumers would even look for Prime’s material terms, much less notice that Amazon was enrolling them in a Prime free trial or that the Prime free trial automatically renewed as a paying subscription.” This is because Wilcox’s survey purports to show that consumers are generally aware of paid subscriptions’ auto-renewal features. 

    The Court decided that the Free Trial Survey was relevant and admissible because it may aid the trier of fact in determining a fact in issue.

    Held

    The Court denied the Plaintiff FTC’s Rule 702 motion to exclude the testimony of Amazon’s expert, Ronald Wilcox.

    Key Takeaway:

    While the FTC identified a number of purported defects with the Cancellation Survey, precluding Wilcox from testifying about this survey is unwarranted. This evidence “is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” 

    Case Details:

    Case Caption: Federal Trade Commission V. Amazon.Com, Inc., Et Al.
    Docket Number: 2:23cv932
    Court Name: United States District Court, Washington Western
    Order Date: August 06, 2025
  • Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    Deaf Culture Expert’s Testimony Rests on Specific Qualifications, Not General Experience

    This is a failure to accommodate case brought by the Equal Employment Opportunity Commission (EEOC) on behalf of two former Walmart associates, Marvin Montoya (“Montoya”) and Raymond Moore (“Moore”) (collectively, “Claimants”), alleging Walmart violated the Americans with Disabilities Act (“ADA”) when it purportedly failed to accommodate the Claimants’ disability, resulting in their constructive discharge.

    Walmart filed a motion to exclude the EEOC’s expert, Roger C. Williams, who was supposed to opine on deafness, communication between deaf and hearing individuals, and how sign language interpretation may assist deaf individuals communicate at work.

    Deaf Culture Expert Witness

    Roger C. Williams specializes “in consulting and training related to the needs of deaf adults in the mental health system.” He has worked in various roles related to interpretation, treatment, and access for deaf individuals. In one of his prior roles, he advised a state department “on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.”

    He received his B.S.W. from the Rochester Institute of Technology and his M.S.W., specializing in community mental health, from the University of Illinois.

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

    Discussion by the Court

    Williams’ testimony can be summarized as four opinions. To begin with, he opined that Walmart did not provide effective accommodation to Montoya and Moore that would allow them to “enjoy all the benefits and privileges of their employment” or to “receive the same access to information provided to hearing co-workers.” His second opinion is that Walmart failed to follow its own policies requiring it to provide reasonable accommodations to deaf employees. Third, he opined that Walmart failed to provide an effective interpreter for Montoya and Moore, instead providing an unqualified interpreter—Walter-Gates—to translate between Walmart managers and Montoya and Moore. Finally, he concluded that Walmart’s procedure for requesting an accommodation and its forms that employees are required to complete are “inherently inaccessible for individuals who are deaf and do not have the written English competence to understand the forms.” 

    Walmart filed a motion to exclude Williams’ testimony. First, it argued that Williams’ opinions are unreliable and irrelevant because they misstate the record and make generalizations based on a small sample of experience. Second, it asserted that Williams’ opinions invaded the province of the jury by applying the law to the facts and telling the jury what to decide. Third, it said that Williams’ opinions will unfairly prejudice Walmart in a way that substantially outweighs the probative value of those opinions.

    The concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion

    Walmart first challenged Williams’ opinion that David Walter-Gates was not a qualified sign language interpreter. Its only argument in support is that Williams misstated the record, meaning Williams relied on unreliable facts and data to arrive at his conclusions.

    Williams’ challenged opinion relied, in part, on Walter-Gates’s own statement that “he was not qualified to interpret.” Walmart asserted that Walter-Gates was referring to statements he made because Montoya and Moore were attempting to use him as an interpreter—rather than Walmart attempting to use Walter-Gates as an interpreter to accommodate Montoya and Moore.

    According to Walmart, it is misleading for Wiliams to use that statement in support of his opinion that Walmart improperly used Walter-Gates as an unqualified interpreter for Moore and Montoya.

    For one thing, the record did not support Walmart’s assertion. Walter-Gates stated that “he made it clear to everyone that he was not an ASL interpreter and that he knew very little sign language,” that “he would get called over when there were conversations with [Montoya and Moore],” and that “he would always tell them right away that he was not an interpreter.” In any event, the Court held that the concerns Walmart raised speak to the weight of Williams’ opinion and are more properly addressed on cross examination than through exclusion.

    Walmart made a similar reliability challenge to Williams’ statement that Montoya and Moore’s supervisor, Austin Duvall, refused to train Montoya and Moore on powerlifting equipment because they were deaf.

    Walmart argued that the facts and data on which Williams’ conclusion is based—i.e., Duvall’s deposition testimony—are inaccurate.

    But Williams relied on the EEOC’s evidence that Duvall told Montoya that he could not train him on powerlifting equipment because his hearing limitations would create a safety issue for himself and others. 

    Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy

    Walmart objected to Williams’ opinion that Walmart’s policy is inaccessible for deaf individuals because it apparently is based on an unreliable generalization. It added that Williams’ opinion is irrelevant because it goes beyond the scope of the lawsuit.

    The Court held that Williams is qualified to opine about whether Walmart’s actions complied with its reasonable accommodation policy. Walmart contended that Williams’ opinions about Walmart’s policies are based only on his general experience as a supervisor. But Williams’ qualifications are more specific than that. When he worked at a state department of mental health, he was not just a supervisor: He “was responsible for hiring and supervising multiple deaf employees, as well as advising the Department’s Human Resources division on matters related to the recruitment, hiring, and retention of individuals with a hearing loss.” 

    Moreover, the Court held that Williams’ opinion will help the jury understand how a deaf individual, like Montoya, may have misunderstood the requirements of Walmart’s policies and how a sign language interpreter may have been able to help deaf employees understand what they needed to do to ensure that they were reasonably accommodated at work.

    If Williams’ testimony at trial strays into the governing law, a contemporaneous objection can address this concern

    Walmart challenged five of Williams’s opinions as impermissible legal conclusions. Those opinions are that Walmart “failed to provide effective communication,” “prevented Moore and Montoya from having access to the range of employment-related knowledge,” “did not provide effective accommodation which would have allowed Moore and Montoya to enjoy all the benefits and privileges of their employment,” “did not provide an effective interpreter,” and that “Walmart’s procedure for filing and documenting a disability and requesting accommodation is inherently inaccessible for individuals who are deaf.” 

    The legal conclusions that the jury must decide are whether Walmart failed to accommodate Montoya and Moore’s disabilities and whether Montoya and Moore were constructively discharged. Williams’ opinions are premised on his explanation of deafness, communication, and Montoya and Moore’s specific abilities and limitations.

    While some of the language in Williams’ opinion mirrors the legal standard, the Court held that he does not attempt to opine on what the law requires or whether Walmart complied with specific federal statutes.

    Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted

    Walmart’s final argument to exclude Williams’s testimony is that his opinion is more prejudicial than probative.

    Walmart relied on the same arguments it made above. It asserted that Williams encroaches on the jury’s role, provides unhelpful opinions, and that his opinions are unreliable. Those arguments have already been rejected, so Walmart has not shown that the extraordinary remedy of excluding evidence based on the danger of unfair prejudice is warranted.

    Held

    The Court denied Walmart’s motion to preclude the testimony of EEOC’s expert, Roger Williams.

    Key Takeaway:

    Walmart’s argument appeared to rely on the fact that Williams’ statement about Duvall is based on a contested fact. Walmart has not pointed to any authority suggesting that an expert may only rely on uncontested facts to support his or her conclusions. Rather, experts regularly rely on deposition testimony to form their opinions.

    It may be different if Williams’ entire opinion were that Duvall refused powerlifting equipment training for Montoya and Moore because they were deaf. Instead, it is one fact among fourteen pages of facts and data that Williams considered in forming his opinions about the effectiveness of Walmart’s accommodations. 

    Walmart may attempt to disprove the allegation that Williams relies on or make a contemporaneous objection if the helpfulness of Williams’ opinions regarding powerlifting equipment lessens after Walmart’s summary judgment motion is resolved. But Walmart’s concerns do not support a pretrial ruling excluding Williams’ opinion. 

    Case Details:

    Case Caption: Equal Employment Opportunity Commission V. Walmart Inc.
    Docket Number: 2:23cv2395
    Court Name: United States District Court, Kansas
    Order Date: August 08, 2025