On November 4, 2019, the Plaintiff, Cook Logistics, LLC filed a complaint alleging breach of contract for damage its cargo allegedly suffered while the Defendant, Equipment Express, Inc. transported it from Canada to Washington.
The Defendant’s expert witness, Lawrence Dull, concluded that the “damaged equipment in this case was caused by the failure of the shrink wrap used to encapsulate the equipment” and that “the failure of the shrink wrap was predictable.”
On July 15, 2022, the Defendant moved for summary judgment on all claims. The Defendant attached a one-page document it identified as a supplement to the opinion of its previously disclosed expert witness, Lawrence Dull. The Plaintiff subsequently filed a motion to strike the supplement to Dull’s report.
Packaging Expert Witness
Lawrence Dull is an IoPP Certified Packaging Professional with a B.S. and an M.S. in Packaging Technology from Michigan State University. With over twenty-five years of experience in managing technical packaging development groups, he has held positions with Eastman Kodak Company, Calgon Corporation and Syngenta Crop Protection Inc. He holds nine U.S. patents in the field of packaging and has won several awards in national packaging design competitions.
The Court set a deadline of June 1, 2022 for the Defendant to disclose its expert witnesses. The Defendant did not disclose the addendum to Dull’s report until September 30, 2022.
While Dull’s original report repeatedly noted that low temperatures affect the strength of shrink wrap, it said nothing about whether the duration of time the shrink wrap spends at low temperatures exacerbates that effect. But the addendum stated that the time that the shrink wrap spends at lower temperatures is “not important.” Since the addendum introduced a new opinion, the Court rejected the Defendant’s argument that the addendum only elaborates on Dull’s existing opinion.
The Defendant argued that it obtained the addendum to respond to a new argument the Plaintiff raised in its opposition to the summary judgment motion, but that position is belied by the fact that the addendum is dated July 14, 2022—almost two months before the Plaintiff filed its opposition brief.
Withholding the addendum until reply smells of bad faith or (at minimum) willfulness on the Defendant’s part. The Court found that this prejudiced the Plaintiff, who had no opportunity to address the addendum, effectively giving the Defendant the final say on the matter. The Defendant has not demonstrated that its failure to disclose the addendum was either justified or harmless.
Held
The Court granted the Plaintiff’s motion to strike the supplement to Lawrence Dull’s report.
Key Takeaway:
The Defendant’s argument that the addendum only elaborates on Dull’s existing opinion is not persuasive. Dull’s original report stated throughout that low temperatures affect the strength of shrink wrap. It said nothing about whether the duration of time the shrink wrap spends at low temperatures exacerbates that effect. But the addendum stated that the time that the shrink wrap spends at lower temperatures is “not important.” That is a new opinion, not an elaboration.
Plaintiffs Tonya Clayton and Hazel Stroble allege that an automobile assembly plant operated by Defendant FCA US LLC (“FCA”) near their homes in Detroit, Michigan (the “Detroit Plant”) emitted noxious odors into their neighborhood. They said that these odors unreasonably interfere with their ability to use and enjoy the residences that they own and depreciate the values of those residences.
In this putative class action, Clayton and Stroble asserted claims of nuisance and negligence against FCA based on FCA’s operation of the Detroit Plant.
Plaintiffs asked the Court to certify the following class: “All owner-occupants and renters of residential property located, in whole or in part, within one mile (1.0) of [the Detroit Plant], located at 2101 Connor Street/4000 St. Jean Street, Detroit, Michigan from March 1, 2021 to the present.”
FCA filed two motions to exclude the opinions of Plaintiffs’ expert witnesses, Dr. Mark P. Cal and Orell C. Anderson. Plaintiffs relied upon Cal and Anderson in support of their class certification motion.
Environmental Engineering Expert Witness
Dr. Mark P. Cal obtained a B.S. in Chemical Engineering and a M.S. and Ph.D. in Civil & Environmental Engineering from the University of Illinois at Urbana-Champaign (UIUC). He is currently the Campus Director and Vice President for Academic Affairs and a Professor of Civil and Environmental Engineering at New Mexico State University (NMSU) Alamogordo. For nearly 12 years, he was Chair and Professor in the Department of Civil and Environmental Engineering at New Mexico Tech (NMT). Cal’s research and consulting experience spans 36-years, and he has worked on projects in the areas of air pollution control, air quality science, atmospheric dispersion modeling (odors, gases and particles), chemical fate and transport, water resources engineering, and heat and mass transfer.
Orell C. Anderson is a valuer and expert forensic consultant with extensive experience in appraisal, diminution-in-value and litigation support matters involving commercial, industrial, subdivisions, and vacant land properties, as well as single- and multi-family residences.
He specializes in real property damage economics and property value diminution on a local to global basis and has worked on some of the most notable environmental, social justice, and terrorist cases in recent times.
Cal did not acknowledge or account for the mitigation efforts that FCA undertook beginning in the fall of 2021
Cal opined that (1) “the entire 1.0-mile proposed class area displayed some level of elevated odor concentrations above [one odor unit per cubic meter]” and (2) “there is clear and convincing evidence that odors were dispersed throughout [the] proposed class area at an odor threshold level that residents would find offensive.”
It is not clear from Cal’s report whether he is offering these opinions with respect to the limited time period for which he had actual sampling data (October and November of 2021) or, alternatively, with respect to the entire time frame covered by Plaintiffs’ proposed class definition (March of 2021 to the present).
To begin with, Cal did not acknowledge or account for certain mitigation efforts that FCA undertook beginning in the fall of 2021. According to the Court, his failure to consider those mitigation efforts, and to explain what effect, if any, those efforts had on the odor unit level in the proposed class area during the class period (March 1, 2021, through the present), rendered his opinions unreliable.
Next, if Cal’s opinion is limited to the time period for which he had sampling data, then it must be excluded because it is not an appropriate fit for the proposed class. As noted above, Plaintiffs are seeking to certify a class that spans from March 1, 2021, to the present. But an opinion covering only a small fraction of that period – i.e., the two-month period in the fall of 2021 for which Cal had sampling data – says little, if anything, about whether the criteria for class certification are satisfied for the entire proposed class period.
There is no reliable basis for Cal’s opinion that all of the members of the proposed class would find the odor level emitted from the Detroit Plant to be offensive
Cal bases that opinion solely on the fact that the odor emanating from the Detroit Plant was measured at one odor unit per cubic meter. But as Cal acknowledged, at that level, only “50 percent of the people” would even be able to “smell” the odor.
The Court ruled that Cal has not sufficiently explained how an odor that only 50 percent of people can even detect could reasonably be considered offensive to the entire proposed class. Moreover, his opinion that the class members would find the odor offensive because it measured one odor unit per cubic meter is at odds with his acknowledgment that five odor units per cubic meter, not one, is “generally” the “threshold level that residents would find offensive.”
Orell Anderson
The Court next turns to Anderson’s opinion that he could develop a reliable model to determine the economic damages suffered by the proposed class members.
Plaintiffs sought to certify a class that includes both “owner-occupants and renters” in the class area. But Anderson’s proposed model does not apply to renters. Instead, he intended to measure only the diminution in property values caused by the odors emanating from the Detroit Plant, and it is only property owners that could have suffered such a potential diminution.
That Anderson’s proposed model does not apply to renters is a significant problem because FCA has presented evidence that approximately 45% of the proposed class members are renters, not owners. Because Anderson’s proposed model did not apply to the many renters in the proposed class, the Court held that it is not a proper fit for that class.
Held
The Court granted FCA’s motions to exclude Plaintiffs’ expert witnesses, Dr. Mark Cal and Orell C. Anderson.
Key Takeaways:
To be clear, Cal certainly was not required to agree with FCA that its mitigation efforts meaningfully decreased the odors emitted from the Detroit Plant. But to be reliable, his analysis had to at least acknowledge those efforts and explain how, if at all, those efforts impacted the odor levels and his analysis.
Anderson’s proposed model has a major flaw—it doesn’t apply to renters. This is a serious issue because FCA has shown that about 45% of the proposed class members are renters, not owners.
Heather Blanchard died after undergoing a surgery at Madigan Army Medical Center. Heather’s husband Roy Blanchard was present in the hospital when Heather first finished surgery. Roy asserts his struggle with grief following Heather’s death has impacted his career and earning capacity. At the time of Heather’s death, Roy worked at J.P. Morgan in a private client banker position.
He took a three month leave of absence for bereavement, but struggled to succeed upon returning. He ultimately left J.P. Morgan in November 2022. Roy then worked part time, a seasonal job at Crystal Mountain as a ticket checker and lift operator. He then enrolled in barber school and became a licensed barber at Buzzerd’s Barber Shop in Tacoma where he still works today.
Roy sued the United States and Jane and John Does 1-10 on behalf of himself, Heather’s estate, and their children, C.B. and Ian Blanchard.
It should be noted that the Court dismissed Roy’s negligent infliction of emotional distress claim because he cannot meet the threshold requirement to show that he unwittingly encountered his wife Heather’s body given his concession that he requested to view her in the ICU.
Defendant United States filed a motion to exclude the testimony of Blanchards’ experts, Anthony J. Choppa, M.Ed., and Marsha Hedrick, Ph.D.
Psychology Expert Witness
Marsha Hedrick, Ph.D. is a clinical psychologist in private practice in Seattle specializing in forensic evaluations of adults and children.
Anthony Jude Choppa earned his M.Ed. in Rehabilitation Counseling in 1979 from Kent State University; is a cofounder of OSC Vocational Systems, Inc., practicing since 1976. OSC has over 50 employees throughout the State of Washington specializing in ‘hands on’ case management (life care planning) and vocational rehabilitation services. He has published many Life Care Plan and Vocational Rehabilitation articles and is a frequent speaker on rehabilitation issues in Washington State and internationally (U.S. and Canada ).
Choppa served on the Boards of the International Academy of Life Care Planners and the International Association of Rehabilitation Professionals. He is currently on the Board of the Spinal Cord Injury Association of Washington. He holds certifications including CRC, CDMS and CCM. His specialties include life care planning and vocational assessment.
To begin with, the Court has already concluded that Roy’s lost wages are not a “pertinent injury” that is recoverable. Therefore, Choppa’s opinions surrounding his earning capacity and what lost wages are attributable to the loss of Heather are not helpful to the jury. To the extent that Choppa offers opinion on “other losses” such as Roy’s “inconvenience” related to “restoring his emotional wellbeing,” the Court held that this information does not logically advance a material aspect of the Blanchards’ case and falls outside the expertise of a vocational expert.
Marsha Hedrick
Hedrick evaluated Roy and his sons and formed opinions on how Heather’s death caused them psychological harm.
The Court held that Hedrick’s testimony aimed at damages for mental anguish and grief is not relevant to a “pertinent injury” under the wrongful death statute and is excluded under Rule 702. To the extent that she offers testimony on loss of consortium, that topic is within the common knowledge and experience of a lay person and thus her expertise is unnecessary.
Held
The Court granted the Defendants’ motion to exclude the testimony of both Mr. Choppa and Dr. Hedrick
Key Takeaway:
Because the wrongful death statute does not allow the Blanchards to recover for Roy’s lost wages or for grief and mental anguish, the claim to recover Roy’s lost wages is dismissed and Choppa’s testimony aimed at calculating damages for Roy’s lost wages and Hedrick’s opinions on the Blanchards’ grief and mental anguish is barred.
Case Details:
Case Caption:
Blanchard V. United States
Docket Number:
3:23cv5460
Court Name:
United States District Court for the Western District of Washington
This products liability case arises out of injuries sustained by Plaintiff Joseph Gonsoulin (“Gonsoulin”) while seated on an allegedly defective electronic motorcycle that unexpectedly took off and caused him to crash into a wall.
As a result, Gonsoulin sued both the manufacturer of the Beta Explorer— Defendant Zhejiang Apollo Sports Technology (“Apollo”)—and the bike’s American distributor—Defendant Beta USA, Inc. (“Beta USA”).
Gonsoulin’s theories of liability and the factual issues flowing from them are: (1) whether the Beta Explorer in question should have had a kill switch or a right rear foot brake, (2) whether the Beta Explorer’s throttle was overly-sensitive to the extent that it posed an unreasonably danger to its users; and (3) whether the Beta Explorer’s warnings were legible and substantively adequate.
Robin L. Simmons is a motorcycle mechanic and service manager with over forty-five years of experience in the industry. He specializes in motorcycle repair, maintenance, and safety inspections and holds technician certifications from several major brands like Kawasaki, Yamaha, and Suzuki.
He has also testified as a motorcycle expert in at least two federal cases and received nationwide awards for his mechanic training videos related to topics, including but not limited to: transmission troubleshooting and hydraulic brake systems.
Outside of his professional career, Simmons stated that he has been riding motorcycles for over 60 years, currently owns over eleven different dirt and street bikes, and holds a motorcycle endorsement on his driver’s license.
Edward L. Patterson III is a Motorcycle Safety and Operation Consultant and currently serves as the Program Manager for the Louisiana Department of Public Safety’s Motorcycle Safety, Awareness, and Operator Training Program.
In that capacity, he oversees motorcycle safety instruction statewide and was certified as a Rider Coach Trainer and Master Instructor with the Motorcycle Safety Foundation—one of the country’s leading safety resources for motorcyclists.
Patterson has developed motorcycle safety curricula and instructional manuals that have been implemented internationally in countries like Indonesia, Zamia, Malawi, etc. In addition to his role involving motorcycle safety regulations, Patterson has also frequently testified as an expert in motorcycle accident cases across the state of Louisiana for over twenty-seven years. Finally, Patterson has been personally riding motorcycles for over fifty years and has a motorcycle endorsement on his license.
James Paul Evans is a licensed Professional Engineer and a nationally-certified accident reconstructionist with a mechanical engineering degree from Texas A&M University. He has more than thirty years of mechanical experience with motor vehicles and around twenty-one years of work in accident reconstruction involving motorcycles specifically.
Evans’ work requires him to frequently conduct crash testing and assess vehicle accelerometer equipment, such as brakes, acceleration, and turn testing.
Evans has previously testified as an expert accident reconstructionist in more than 500 cases, both civil and criminal, across the country.
Simmons’ extensive background as a motorcycle mechanic, combined with the relatively simple nature of the design defect and warning issues associated with the Beta Explorer, supported the conclusion that he possessed the necessary expertise to testify at trial. Additionally, the Court found no indication in the record that the materials Simmons relied upon—such as the Beta Explorer itself and the Owner’s Manual—or the method he used to review them were unreliable for forming a proper expert opinion
Simmons employed his “decades of practical experience diagnosing, repairing, and riding motorcycles to assess how the Beta Explorer functions, what mechanical risks are present, and how its features compare to industry norms.” To the extent that Defendants dispute Simmons’ credentials, the substantive nature of his expert opinions, or the depth of his experience with electric motorcycles specifically, they may raise these issues at trial during cross-examination.
b. Edward Patterson, III
The Court found that Patterson had the necessary background and expertise in motorcycles to testify about the design defect and warning label issues involving the Beta Explorer. His broad experience in motorcycle safety directly related to the very features at issue in this case, such as the absence of a kill switch and rear brake pedal. Accordingly, the Court concluded that Patterson was clearly qualified to testify as an expert on these matters.
As for the facts, data, and methods Patterson used to prepare his expert report, the Court determined that they were more than sufficient to meet the requirements of Rule 702. He reviewed, among other things, the Beta Explorer’s warning labels, owner’s manual, and advertisements relied upon by both parties’ experts. He also examined and tested both the Beta Explorer and Apollo’s RFN Rally Pro motorcycle, and conducted a comparative analysis with other similarly situated electric motorcycles. His opinions were not based solely on experience, but also on a structured inspection, side-by-side comparisons with competing models, and hands-on operation of the product at issue.
James Evans
The Court concluded that Evans has the expertise necessary to testify regarding the Beta Explorer’s safety designs and warnings. Moreover, Evans has largely relied on the same materials as those reviewed by other experts in this case and individually conducted rigorous scientific testing on the throttle sensitivity in both the Beta Explorer and different electric motorcycles. Thus, it cannot be said that his facts and data upon which he relied or his methodology are so unreliable as to warrant a categorical exclusion of his testimony.
Indeed, as Gonsoulin notes in his opposition, Evans “applied established accident reconstruction methodologies—such as velocity-time-distance calculations and mechanical analysis of throttle behavior—to quantify the Beta Explorer’s acceleration and speed during the incident.” To the extent Defendants argued that Evans’s reconstruction report would be unhelpful to the jury, the Court patently rejected such an argument, noting that his testimony is key to Gonsoulin’s case and proposes a likely scenario on how exactly this accident occurred.
Held
The Court denied the Defendants’ Daubert motions regarding Joseph Gonsoulin’s expert witnesses, Robin Simmons, Edward Patterson III, and James Evans.
Key Takeaway:
Gonsoulin’s experts have the necessary expertise to testify and otherwise will provide valuable testimony as to the cause of the accident.
Simmons employed his decades of practical experience diagnosing, repairing, and riding motorcycles to assess how the Beta Explorer functions, what mechanical risks are present, and how its features compare to industry norms. Patterson’s opinions are based on methodical inspection, side-by-side comparisons with competing motorcycle models, and real-world operation of the product in question. As for Evans, he “applied established accident reconstruction methodologies—such as velocity-time-distance calculations and mechanical analysis of throttle behavior—to quantify the Beta Explorer’s acceleration and speed during the incident.”
Plaintiff Ruben Wills, a former New York City Council member, brought claims for negligence and violation of his Fourteenth Amendment right to procedural due process against Microgenics Corporation and Sheila Woodberry, respectively.
Plaintiff was convicted on corruption charges, although his conviction was later reversed on direct appeal. While still incarcerated, and shortly before his scheduled parole, officials from the New York State Department of Corrections and Community Supervision (“DOCCS”) selected him for random drug testing. The officials used a urinalysis test and testing protocol that was designed, manufactured, and sold by Microgenics. The test returned what Plaintiff claims was a false positive. State officials revoked Plaintiff’s eligibility for parole, and Plaintiff remained incarcerated for several additional months. He is now out of prison.
Microgenics filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Robert B. Swotinsky.
Occupational Medicine Expert Witness
Dr. Robert Brian Swotinsky is a board-certified physician in occupation medicine with thirty-eight years of experience. This includes five years working with buprenorphine-assisted treatment of opioid-dependent patients, which involved urine testing for buprenorphine. Swotinsky has thirty-five years of experience as a medical review officer reviewing workplace drug test results. He is also the co-author of a physician certification examination for workplace drug testing, and he consults with government agencies on workplace drug testing. He has written two textbooks on the subject.
To begin with, Swotinsky opined that “the standard of practice for forensic urine drug testing includes complete chain of custody procedures and positive results supported by specific confirmatory tests,” and that Plaintiff’s drug test “had neither.”
Basically, Swotinsky’s testimony explains what the relevant standard of care is, and his opinion that Microgenics deviated from it. This will be helpful to the trier of fact in determining whether Microgenics breached a duty of care owed to plaintiff, one of the elements plaintiff must prove to prevail on his negligence claim.
Microgenics asserted that the relevant standard of care was that “an assay-based drug test [be] at least 98 percent accurate,” and that it complied with this standard of care because its Assay was 98% accurate. The Court ruled that Swotinsky’s testimony, that conducting drug screening tests that are 98% accurate without any confirmatory testing does not satisfy the standard of care, is thus necessary to rebut Microgenics’ assertion that it followed the proper standard of care.
Moreover, Swotinsky’s opinion that “[t]he reliable identification of a drug following a preliminary positive result requires using a second analytical method for confirmation, one based on a different and, in most cases, more specific chemical principle,” is not an inadmissible legal conclusion.
Microgenics’ assertion that Swotinsky ignored reliable data showing that the Assay was 98% accurate misses the import of Swotinsky’s opinion. Swotinsky does not dispute that the Assay is 98% accurate. Rather, he opined that conducting drug testing with a 98% accurate Assay, without confirmatory testing, falls short of the relevant professional standards for drug testing. Swotinsky supports this opinion with literature on workplace drug testing, Microgenics’ own product insert accompanying the Assay, and Swotinsky’s own experience with drug testing.
Held
The Court denied the Microgenics’ motion to exclude the testimony of Plaintiff’s expert Robert B. Swotinsky.
Key Takeaway:
A witness may have sufficient experience to qualify him as an expert even if his experience is in a slightly different area than the one he will testify about. The fact that Swotinsky’s experience with drug testing is in the occupational setting does not mean that he lacks the qualifications to provide opinions about the forensic setting.
Similarly, Swotinsky’s methodology is not unreliable just because he applies workplace drug testing standards to forensic drug testing standards, as Microgenics argues. In New York, the standards of care applicable to proprietary functions of a prison, such as the provision of medical care, are the same as in the private setting.
Kevin McCormick has sued his former employer, the Chicago Transit Authority. During the COVID-19 pandemic, the CTA established a policy requiring its employees to be vaccinated against the virus. McCormick sought a religious-based exemption from the requirement. The CTA concluded that McCormick had not shown that his request for an exemption was actually religion-based and denied his request. When McCormick still declined to be vaccinated, the CTA terminated his employment. This lawsuit followed.
Both parties have named an expert to give opinion testimony at trial, and each has asked the Court to prevent the other’s expert from testifying.
Biology Expert Witness
Pamela Acker has an undergraduate degree in biology, earned in 2004, and while an undergraduate she was involved in genomics research on a particular topic for a year.
She pursued a master’s degree in biology at The Catholic University of America from 2010 through 2012 and was awarded that degree in 2012. During various periods while at Catholic University, Acker worked as a research assistant, a teaching assistant, and an adjunct instructor.
Acker taught high school biology for about six years and developed curricula for a homeschool co-op and for a Catholic homeschool organization for about three years.
Mark A. Roberts is an epidemiologist who has worked for a little over fifty years in public health, occupational medicine, and academia. He has a master’s degree in education; a master’s of public health in epidemiology and biostatistics; a doctorate in epidemiology and biostatics; and he is a medical doctor. Roberts served as the State Epidemiologist for the State of Oklahoma. He has published numerous articles, books, and other materials in the field of epidemiology, he has taught graduate-level courses; and has been qualified to render expert testimony in a number of court cases. In addition, since the outset of the COVID- 19 pandemic, Roberts has consulted with about two dozen companies, organizations, agencies, law firms, and others regarding responses to issues related to COVID-19.
Acker intended to render opinions that: (1) aborted fetal cell lines were used in the development of the COVID-19 vaccine, and provided a detailed description of how they were purportedly used; (2) McCormick, as a practicing Roman Catholic, had a legitimate religious-based objection to the vaccine due to the use of aborted fetal cell lines (along with a detailed description of why this is so); (3) contentions that other medications that McCormick uses or has used similarly involved use of aborted fetal cell lines are inaccurate, along with an explanation of why; (4) the COVID-19 vaccine causes physical harm to vaccinees, and the vaccine does not prevent infection; and (5) McCormick’s proposed alternative to vaccination—wearing a facemask and keeping a distance from others—was an adequate alternative.
The CTA contended that Acker’s opinions should be barred because she is not sufficiently qualified by education, training, or experience to give expert testimony on any of the points in question, and because her opinions regarding the religious legitimacy of McCormick’s beliefs will not assist the jury in determining any fact in issue.
Analysis
Acker is not qualified to render opinion testimony at a trial regarding the basis or legitimacy of McCormick’s claimed religious beliefs regarding the COVID-19 vaccine or vaccines generally. She does not identify any more training or expertise in the field of Catholic doctrine or theology than the average Catholic generally, or at least no more than the average person who attended a Catholic university and, perhaps, took the undergraduate theology courses typically required at such universities for persons not majoring in theology. The Court has no doubt that Acker has read a lot about Catholic teaching, including as it applies to vaccines, but that—even together with the rest of her background—does not give her any specialized knowledge within the meaning of Rule 702 that qualifies her to render opinions on these topics.
Qualifications aside, any opinion by Acker on the sincerity of McCormick’s religious beliefs or whether those beliefs actually motivated his objection to getting vaccinated would amount to an opinion regarding his state of mind, which is generally an inappropriate topic for “expert” or other opinion testimony.
On the particular topics regarding which she proposes to opine—how the COVID-19 vaccine is made; how other vaccines are made; the effectiveness and effect of the vaccine; and the adequacy of McCormick’s proposed alternative to vaccination—the record is sufficiently clear that Acker derives her claimed expertise (and, it appears, her opinions) simply from compiling and reading material produced by others.
Defendant’s Witness Mark Roberts
Roberts’ report stated that he has “reached the overarching opinion that there is no objective, scientific evidence supporting McCormick’s claim of a religious exemption from the [CTA’s] COVID-19 vaccination requirements for its employees.”
To begin with, McCormick did not challenge Roberts’ scientific or medical qualifications or expertise. The Court concluded that he is qualified to render opinion testimony in the fields in which he has worked and taught.
McCormick asserted a claim under Title VII for failure to accommodate his religious beliefs. To prevail, he must establish that: (1) he had a belief or practice that was religious in nature and conflicted with an employment requirement; (2) he called this belief or practice to the CTA’s attention; and (3) his religious belief or practice was the basis for his discharge.
If McCormick establishes these elements, then the burden shifts to the CTA to show that it could not accommodate McCormick’s religious belief or practice without undue hardship.
Analysis
Let us focus on Roberts’ broader opinion that “there is no objective, scientific evidence supporting McCormick’s claim of a religious exemption” to the vaccination requirement. As McCormick pointed out, religious beliefs or practices do not need to be supported by scientific or objective evidence. The Court agreed and ruled that Roberts may not offer this opinion at trial.
First, his testimony about the prevalence and community spread of COVID-19 during the relevant time period and the consistency of the CTA’s vaccination mandate with CDC and OSHA guidance was held to be relevant and admissible on the question of undue hardship. Second, the same is true regarding the safety risk posed by McCormick’s noncompliance with the vaccination mandate.
The Court also declined to exclude Roberts’ testimony regarding how and to what extent fetal cell lines were used in the development and testing of the vaccine. After all, the CTA is entitled to challenge McCormick’s contention that his opposition to getting vaccinated was not actually religious-based.
However, Roberts may not render opinions or conclusions regarding the “consistency” or inconsistency of McCormick’s views or practices. On that point, which essentially amounts to an inference or conclusion to be drawn from other evidence (including testimony that Roberts will render), Roberts has no specialized expertise that exceeds that of a jury.
Held
The Court granted the Defendant’s motion to bar Plaintiff’s expert witness Pamela Acker and partially granted but largely denied the Plaintiff’s motion to bar Defendant’s expert witness Dr. Mark A. Roberts.
Key Takeaway:
Given her biology background, Acker no doubt has a greater degree of understanding of these materials than the average person. But simply compiling, reading, and rendering opinions and conclusion reached by others who themselves may have the required specialized training or experience—which is all that Acker’s expert disclosure reflects she has done—does not qualify one to testify as an expert under Rule 702.
In this personal injury case, Johnathan Mudge sought to recover for injuries allegedly resulting from an automotive collision that occurred on October 5, 2021.
Mudge has sued three Defendants in this matter: Riverside Transportation, Inc., Riverside Transport, Inc., and Rena Talton, the driver of the vehicle that collided with Plaintiff’s vehicle.
Defendants collectively filed a motion to exclude testimony from one of Plaintiff’s treating physicians, Dr. Winston B. Morris, a family medicine practitioner.
Plaintiff elicited testimony from him regarding the anatomy of the spine, including the grouping of vertebrae, the nature and function of spinal discs, and the nature, causes, and symptoms of spinal disc injuries.
Family Medicine Expert Witness
Winston Barrington Morris, MD, holds a Bachelor of Arts degree in Biology from the University of South Florida, and he graduated as a Doctor of Medicine from the Medical University of South Carolina in 1997. He completed family medicine residencies in 2004, and he is certified by the American Board of Family Practice.
Morris offered some testimony based on scientific, technical, and otherwise specialized knowledge. For such testimony to be admissible in Court proceedings, Morris must be “qualified as an expert by knowledge, skill, experience, training, or education.” Morris’ medical education and significant experience as a doctor of family medicine satisfy this requirement.
Next, the Court must determine whether it is “more likely than not that the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Morris’ medical knowledge is more likely than not to assist the jury in this case with understanding medical evidence and deciding on relevant medical facts. Thus, his testimony satisfies this requirement as well.
Finally, the opinions he offers in this case must be “based on sufficient facts or data; be the product of reliable principles and methods; and must reflect a reliable application of the principles and methods to the facts of the case.” The Court ruled that Morris’ testimony about general medical facts meets the required standard. His knowledge of how the brain, spine, and nervous system work comes from his medical training. While he may not be a specialist, it’s up to the jury to decide how much weight to give his testimony.
Similarly, Morris’ testimony regarding Plaintiff’s medical condition is based on his own experience treating the Plaintiff, including his review of Plaintiff’s own statements and medical records, in keeping with Morris’ medical training. The Court deemed it sufficient for his testimony to be admissible.
Held
The Court denied the Defendants’ motion to strike the testimony of Plaintiff’s treating physician, Winston Barrington Morris.
Key Takeaway:
Plaintiff has shown that Morris is qualified as an expert, and that it is more likely than not his specialized knowledge will assist the factfinder. He has also shown that Morris’ opinions are based on sufficient data, are the product of reliable principles and methods, and reflect a reliable application of the principles and methods.
Connie Thacker is one of tens of thousands of individuals who have filed suit against Ethicon for injuries after treatment with Ethicon’s pelvic mesh devices.
Plaintiff Connie Thacker filed a motion asking the Court to preclude defense expert Dr. Uwe Klinge from offering testimony on certain subjects.
Biomaterial Expert Witness
Dr. Uwe Klinge is a former abdominal surgeon with specialized expertise in biomaterial science and surgical mesh design. His research has focused on mesh-tissue interactions, complications, and material performance.
He previously served as a consultant to Ethicon, advising on mesh development, including pore size, weight, and composition. Klinge is widely recognized for his contributions to improving the safety and design of implantable mesh devices.
Klinge’s testimony on PVDF mesh as an alternative design
Thacker offered Klinge’s opinion that PVDF mesh was a safer alternative design. The Court excluded this testimony as irrelevant. Since Klinge is a general expert, his opinion needed support from a case-specific expert showing PVDF mesh would have prevented Thacker’s injuries. No such testimony was offered. Without that link, the Court held the opinion did not “fit” the facts of the case under Rule 702.
Klinge’s testimony on Ultrapro mesh as an alternative design
Klinge also opined that Ultrapro mesh was a safer alternative for the TVT-S device. The Court found the opinion relevant—since Dr. Rosenzweig, a case-specific expert, supported the feasibility of Ultrapro mesh. However, the Court excluded Klinge’s opinion as unreliable under Daubert. He cited no testing, peer-reviewed studies, or scientific basis. Ethicon’s internal documents and a Turkish study (not disclosed in his report) were deemed insufficient.
Klinge’s testimony on fraying and particle loss in Prolene Soft mesh
Defendants challenged Klinge’s opinion that Prolene Soft mesh frays and sheds particles, arguing it was based on data from a different mesh type (Prolene). The Court allowed the testimony. It found insufficient evidence to determine if the distinction between Prolene and Prolene Soft rendered his opinion unreliable. Defendants may revisit the issue at trial.
Klinge’s testimony on Ethicon’s state of mind and corporate conduct
Defendants sought to bar Klinge from testifying about Ethicon’s knowledge or corporate behavior. Thacker did not oppose the motion. The Court granted it, precluding Klinge from offering such testimony.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of the defense expert Uwe Klinge.
Key Takeaways:
The Court partially excluded Dr. Uwe Klinge’s expert testimony, barring his opinions on PVDF and Ultrapro mesh as safer alternative designs due to lack of case-specific support and scientific reliability. However, it allowed his testimony on Prolene Soft mesh fraying and particle loss. The Court also prohibited him from discussing Ethicon’s corporate intent or state of mind.
Please refer to the blogs previously published about this case:
Plaintiff FireBlok IP Holdings LLC (“FireBlok”) sued Defendants Hilti, Inc. (“Hilti”) and RectorSeal LLC (“RectorSeal”) (together, “Defendants”) and asserted two separate causes of action under the Lanham Act, False Advertising and False Association, based upon Defendants’ use of the UL Certification mark and FM Approval mark on Hilti’s Firestop Box Insert.
The Firestop Insert is a fire suppression product that is an intumescent box insert designed to help protect electrical outlet boxes in case of a fire. FireBlok’s alleged competing produce is the FireBlok fire suppression gasket.
FireBlok retained Dr. Alexander V. Krasnikov to testify to damages allegedly sustained by the Defendants’ false advertising and false association.
Hilti, Inc. and RectorSeal, LLC filed a motion to exclude the testimony of Krasnikov.
Marketing Expert Witness
Dr. Alexander V. Krasnikov is a professor at the Quinlan School of Business at Loyola University Chicago, specializing in marketing strategy, analytics, and intellectual property. Since receiving his Ph.D. in marketing in 2007, Krasnikov has continuously researched, published articles, and given lectures on consumer goods marketing and IP strategy. Krasnikov has nearly twenty years of experience as a business school professor, teaching undergraduate, graduate, and Ph.D. students about “data analytics, marketing metrics, customer analytics, marketing research, and strategy.”
Based on his education, experience, and review of the documents produced in litigation, Krasnikov reached three opinions:
(1) Hilti and RectorSeal’s Profits: From 2008 to 2019, the Defendants’ sales for Firestop Box Inserts reached over $316 million. According to industry- standard profit margins, the Defendants likely net about 31% of this figure ($98 million dollars).
(2) FireBlok’s Market Share: Without the Defendants’ presence in the market, FireBlok would’ve held 3.82% of the market share for intumescent inserts for electrical outlets and switchboxes. Alternatively, those sales may have evenly split between three major competitors, making FireBlok’s relative market share about 33.3%.
(3) FireBlok’s Lost Profits: From 2012 to 2019, but now adjusted for inflation, FireBlok lost between $4.2 million and $37 million in profits to the Defendants.
Qualification
While it is true that Krasnikov isn’t specifically versed in the fire suppression industry and that he’s never personally prepared a profit/loss statement, the Defendants, however, never explain why those facts matter. Krasnikov commonly analyzes profit/loss statements prepared by third parties and, to the extent necessary, filled gaps in his industry-specific knowledge by relying on FireBlok’s fire suppression expert. If anything, estimating lost profits for fire suppression products is easier than most other industries. An average consumer upset by the (now shocking) price of eggs may choose a cheaper grocery store, use an alternative product, or go without; whereas, professionals in the fire suppression industry must purchase a switchbox and insert to comply with building codes. Therefore, the Court found Krasnikov generally qualified to opine on damages.
Reliability
First, in estimating the Defendants’ profits, Krasnikov multiplied their self-reported unit sales by the price per unit (calculating total revenue), then subtracted industry-standard costs as reported in financial and economic databases.
Second, Krasnikov compared FireBlok’s self-reported 2017–2019 sales to its competitors’ publicly reported annual revenue data for the same timeframe. Finding that two competitors make about thirty-five times FireBlok’s annual revenue for one product category, Krasnikov estimated that FireBlok’s relative market share for intumescent inserts for electrical outlet and switch boxes is roughly 4%.
Finally, Krasnikov calculated FireBlok’s lost profits by multiplying the Defendants’ unit sales of uncertified products by FireBlok’s market share. So, the Defendants wrongly asserted that Krasnikov relied on insufficient data, “blindly relied” on client information, and failed to support his methodology.
For one, the Defendants challenged the relevance of their own profitability before FireBlok entered the market in 2016. But without some reason to believe this calculation makes Krasnikov’s conclusions unreliable, the argument does not concern Krasnikov’s methodology. Likewise, to group the remaining arguments by their primary themes, the Defendants maintained that Krasnikov made implausible assumptions and failed to consider key variables.
It’s true that Krasnikov didn’t consider every variable conceivably affecting market share—such as FireBlok’s manufacturing capacity, profit-sharing agreements, and any promotional discounts in the relevant timeframe. But every analysis makes some assumptions. In this case, the assumptions are supported by reason.
Krasnikov’s lost profit analysis turns on FireBlok’s past performance in the market. After analyzing manufacturer market power, product offerings and prices over time—and further discussing the market with FireBlok—Krasnikov applied that data to a series of calculations plausibly based on market realities.
Held
The Court denied the Defendants’ Daubert motion to exclude the testimony of Plaintiff’s expert Dr. Alexander V. Krasnikov
Key Takeaway:
The Defendants objected to Krasnikov’s use of the market approach methodology. The Defendants contended that Krasnikov was required to use either the yardstick or the before-and-after methodology. But the yardstick and the before-and-after methodologies are not the exclusive ways that experts can determine damages. And courts have found the market approach an acceptable methodology.
Plaintiffs Michael Sutherland and Comfy Materials LLC sued Defendant Wellshow Machining Parts, Inc. for copyright infringement and false advertising relating to Defendant Wellshow’s Amazon listings of its competing products.
Per the Amended Case Management and Scheduling Order, Plaintiffs disclosed one expert witness, Charleen Purdy, on March 14, 2025, who will “opine on Plaintiffs’ economic losses in connection with their claims brought against Defendant, and to prepare any rebuttal analysis and report related to any alleged damages incurred by Wellshow as to its tortious interference claim.”
In her report, Purdy disclosed that discovery was ongoing at the time of her expert report, and therefore, she could not form an opinion on damages due to the outstanding requested discovery. Specifically, Plaintiffs’ expert report indicated that she had only received incomplete and insufficient documents from Defendant on March 7, 2025, and requested a list of additional documentation from Defendant “in order to determine, if any, the economic loss suffered by the Plaintiffs” and Defendant. Plaintiffs’ expert report also reserved the right to supplement her report following full and complete discovery.
Therefore, Defendant, Wellshow Machining Parts, Inc., sought an order precluding Plaintiffs from offering undisclosed expert testimony and precluding Plaintiff Michael Sutherland, corporate representatives, or employees of Defendant Comfy Materials, LLC from providing expert testimony under Federal Rule of Evidence 702.
Accounting Expert Witness
Charleen E. Purdy is a principal at Perzel & Purdy Forensic CPA’s, LLC. She is licensed as a Certified Public Accountant (CPA), credentialed as a Certified Valuation Analyst (CVA), Master Analyst in Financial Forensics (MAFF), and trained in Collaborative Divorce. Her experience includes services in the areas of forensic accounting, damage claims, business valuations, economic loss analysis, money laundering, shareholder disputes, trust and estate litigation, Ponzi schemes, personal injury claims, litigation support, and expert witness services.
Plaintiffs conceded that its expert witness disclosure is noncompliant with Rule 26(a)(2)(B) and Federal Rule of Evidence 702. As such, Plaintiffs’ expert report has no “facts or data” under Rule 26(a)(2)(B)(i)-(ii) because she could not properly form an opinion. Nevertheless, to comply with the Amended CMSO, Plaintiff’s timely disclosed Purdy to meet “the requirements of Rule 26(a)(2)(B) to the extent possible.”
Here, the Court found that even if Purdy’s expert report is insufficient under Rule 26(a)(2)(B), Plaintiffs still have time to supplement Purdy’s expert report within a timely manner under Rule 26(e).
As for the timing of the supplement, Rule 26(e)(2) states that for a Rule 26(a)(2)(B) expert (i.e., a retained expert), “any additions or changes to this information must be disclosed by the time the party’s pretrial disclosures under Rule 26(a)(3) are due.” Rule 26(a)(3)(B) provided that “these disclosures must be made at least 30 days before trial.” The CMSO has set the trial on November 3, 2025, and directs the parties to “meet the pretrial disclosure requirements and deadlines in Fed. R. Civ. P. 26(a)(3).” Thus, the Plaintiffs still have until October 4, 2025, to supplement Purdy’s expert report.
Analysis
To begin with, the Court found that any Rule 26(a)(2)(B) violation in Purdy’s disclosure on March 14, 2025, was substantially justified. First, Defendant’s motion did not make any argument about potential prejudice or surprise. Nor could Defendant make such arguments since, following Plaintiff’s timely expert witness disclosure on March 14, 2025, Defendant had the opportunity to provide the documents requested by Purdy and/or depose her before the discovery cut-off on April 28, 2025.
Additionally, Plaintiffs’ failure to provide a sufficient disclosure was harmless under Rule 37 because (1) Defendant has been on notice as to the subject matter of Purdy’s testimony since the expert witness disclosure deadline, and (2) any prejudice resulting from Plaintiffs’ insufficient disclosure can be cured by a supplemental disclosure.
Held
The Court denied Defendant Wellshow’s motion in limine to preclude the testimony Plaintiff’s expert Charleen Purdy.
Key Takeaway:
Substantial justification exists if there is justification to a degree that could satisfy a reasonable person that parties differ as to whether the party was required to comply with the disclosure request.
The Court found any violation of Rule 26(a)(2)(B) in Charleen Purdy’s disclosure was substantially justified.
Case Details:
Case Caption:
Sutherland V. Wellshow Machining Parts, Inc. Et Al
