Plaintiffs Timothy Scott, Patricia Gilchrist, Karen Fisher, Helen Maldonado-Valtierra, Dan Koval, Judy D. Duff, John Griffin, Kenneth Rhodes, Judy Dougherty, John Kelly, Richard Walshon, Jennifer Fryer, and Vince Carabba alleged that Defendants AT&T Inc., the AT&T Defined Benefit Plan, and AT&T Services, Inc. (collectively AT&T) have violated the Employee Retirement Income Security Act of 1974 (ERISA).
Apparently, AT&T Defined Benefit Plan (the Plan) did not calculate and disburse “Joint and Survivor Annuities” (JSA) in a manner consonant with ERISA. Plaintiffs said that the Plan failed to treat JSA and Single Life Annuity (SLA) participants in an actuarily equivalent fashion by using “mortality assumptions” that are “fifty years out of date,” which resulted in the “payment of a benefit that is less” than the JSA beneficiaries were entitled to.
In response, Defendants filed a motion to exclude the opinions of Plaintiff’s proffered expert, Ian H. Altman, under Rule 702.
Actuarial Expert Witness
Ian H. Altman is a Fellow of the Society of Actuaries and an Enrolled Actuary. He was the founding partner and manager of Altman & Cronin Benefit Consultants, which was established in 1996. His firm merged with Gallagher Benefit Services, Inc. in 2016. Since his separation from Gallagher in 2020, he has worked as an independent consulting actuary in the employee benefits field.
AT&T said that Altman’s opinions about the Plan’s conversion factors’ failure to achieve actuarially equivalent results is unreliable because his preferred methodology assertedly did not establish the “bottom” of the range of actuarially equivalent results, and the claim that his methodology is “conservative” rests on no more than ipse dixit.
However, the Court held that Altman relied on his decades of experience and reliable evidence about industry practice to opine that the Plan’s conversion factors do not generate actuarially equivalent JSA benefits because the underlying assumptions are outdated and unreasonable.
For Altman’s methodology for calculating “damages,” AT&T said that there are several discrete mistakes that render his opinion unreliable. However, Plaintiffs emphasized guidance in the Actuarial Standards of Practice (ASOP), published by the Society of Actuaries, that provided that an actuary may apply “judgmental adjustments or assumptions” where “accurate and complete [data] may not be available” so long as the use of such adjustments or assumptions is disclosed.
Altman adequately explained and disclosed the adjustments and assumptions he made when dealing with what he reasonably believed to be deficient data, and AT&T did not demonstrate those assumptions were so outlandish that no reasonable actuary would make them.
Altman also explained why, based on his experience, the pop-up benefit should not be considered, because it is a benefit separate from the JSA benefit that offers “no value to the surviving beneficiary.”
AT&T’s final objection goes to Altman’s inclusion of participants who received benefits in the form of both a partial lump sum and JSA is not grounds for exclusion, as the contention at bottom is not about his methodology’s reliability but about whether the resultant JSA benefits are “qualified” or subject to the statutory actuarial equivalency requirement despite the partial lump sum election.
Held
In conclusion, the Court denied the Defendants’ motion to exclude the opinions of Plaintiff’s proffered expert, Ian H. Altman, without prejudice to renewal at trial as to specific calculations, as the evidence and circumstances warrant.
Key Takeaway:
Altman’s opinions are grounded in evidence and sound actuarial methods and therefore will be put through the crucible of vigorous cross examination at trial.
Plaintiff Michael Ruiz (“Ruiz”) is suing his former employer, Defendant Magellan Financial & Insurance Services (“Magellan”), under the theory that his alleged demotion and subsequent termination were due to his race and national origin and that he was also subjected to a hostile work environment.
Ruiz retained an expert, Michael J. Stokes (“Stokes”) of Beta Business Consulting LLC (“Beta”), to calculate the net present value of his lost wages and benefits. Magellan, however, filed a motion to exclude the expert testimony of Stokes.
Economics Expert Witness
Michael J. Stokes earned an MBA from the Isenberg School of Management at the University of Massachusetts Amherst with a focus in entrepreneurship. He has been employed as a litigation-related economic expert for 6 years at Beta Consulting.
Magellan argued that Stokes is unqualified because “his financial or accounting training concerned issues related to capital and corporate investment, and no other topics” and “he has no other certifications or licenses, and no publication history.”
Analysis
The Court held that Stokes is qualified to offer opinions about the net present value of Ruiz’s purportedly lost wages and benefits. First, Stokes’ opinions are “within the reasonable confines of his subject area.” Stokes holds an MBA from the University of Massachusetts, where he took classes on management, supply-chain management, entrepreneurship, finance, and basic economics.
As for the “finance and accounting” portion of his studies, Stokes studied “[a]nything from investment to just looking at capital investment, corporate investment.” These areas of study appear to encompass the opinions set forth in the report. Although Magellan may be correct that Stokes’ credentials are not highly specialized, the absence of specialization goes to the weight of Stokes’ testimony and did not provide a basis for exclusion.
Second, Stokes’ experience also forms part of the basis for his qualification to testify as an expert. Stokes is an “economic analyst” for Beta, where he has worked since 2018, and is now the full owner of the company. Before assuming ownership, Stokes was trained by the founder and previous owner, Larry Stokes (his father), who has a Ph.D. in economics. In addition to being trained and advised by his father, Stokes “occasionally reviews” trainings from the National Association of Forensic Economics (“NAFE”), a standards-setting association for forensic economists of which he is a member.
Relevance
Magellan next argued that Stokes’ testimony is not relevant because it does not consider the relevant factors in an economic damages calculation “such as back pay or mitigation” and only “seeks to estimate what [Ruiz] might have earned from Magellan had he not been terminated.”
Analysis
Stokes’ report purported to calculate the net present value—$3,729,078—of the wages and benefits Ruiz would have earned had he remained employed by Magellan until his retirement. Although this figure likely overstated Ruiz’s economic damages, as it made no attempt to account for offsets and mitigation, it was still at least one piece of the puzzle.
Magellan contended that even if relevant, Stokes’ testimony would be confusing, misleading, and/or prejudicial because Ruiz “claimed that Stokes’ calculation represents his damages.” In essence, Magellan argued that a jury would be confused by the difference between Stokes’ economic earnings projection and “economic damages,” which are calculated by incorporating a variety of figures, including mitigation. The problem with this argument is that although Ruiz has at times during this case appeared to characterize the report as showing his economic “damages,” the report itself did not purport to calculate Ruiz’s litigation damages and Stokes did not suggest as much in his deposition. In fact, he clearly stated the opposite.
Moreover, Ruiz clarified in his response brief that the report did not purport to establish his damages and will simply “be helpful to the jury to determine [Ruiz’s] damages.”
As a result, the Court will not categorically exclude Stokes’ opinions before trial based on Rule 403.
Reliability
Magellan’s final argument for exclusion is that “Stokes’ opinion is not reliable because it did not comply with his own assumptions.” Specifically, Magellan contended that Stokes “assumed that generally an employee’s earnings peak mid-career, and then ‘tend to’ decline toward the end of the employee’s working life.” The opinion that Stokes offered, however, assumed that [Ruiz’s] earnings would continue to increase through the end of his working life.
Analysis
The Court held that Magellan’s reliability-based arguments did not provide a basis for exclusion because the report is based on clear and accessible data, including Ruiz’s responses to a questionnaire, Ruiz’s W-2s from 2018-2023, publicly available government data, and scholarly research—all of which Stokes disclosed throughout the report.
In each section of the report, Stokes also explained his methodological approach. By disclosing his methodology and the data on which his analysis relies, Stokes’ calculations may be retested, refined, and challenged. This ability to be tested—also known as falsifiability—is a hallmark of the scientific method and a factor that courts may consider in testing for reliability.
Additionally, the Court is sufficiently convinced that Stokes’ methods are “generally accepted in the scientific community.” The record indicated that Stokes devised his methods in compliance with NAFE, a professional standards-setting organization for forensic economists.
Magellan argued that Stokes’ approach is unreliable because he failed to adhere to his own assumption by not lowering Ruiz’s projected wages closer to retirement. However, Stokes merely stated that a late-career decrease in earnings “often tends” to occur but that this tendency “is affected by a worker’s age, sex and level of educational attainment.” Given these caveats and qualifications, there was nothing inherently contradictory and unreliable in Stokes’ decision to assume that Ruiz’s earnings would not decrease over time.
For the same reasons, exclusion is not warranted based on Magellan’s contention that Stokes relied on other “unreliable assumptions.” As an initial matter, Stokes’ decision to use industry averages of similarly situated persons to quantify Ruiz’s projected health and retirement benefits, instead of basing the calculation on Ruiz’s actual health and retirement benefits, is not clearly unreliable. Magellan offered no authority suggesting that such an assumption is per se unreliable.
Held
The Court denied Magellan’s motion to exclude the testimony of Plaintiff’s expert Michael J. Stokes.
Key Takeaway:
Although an expert’s “failure to follow his own general practice” is a methodological flaw that may provide a basis for exclusion, the Court is not persuaded that Stokes engaged in such a failure here. Stokes merely stated that a late-career decrease in earnings “often tends” to occur but that this tendency “is affected by a worker’s age, sex and level of educational attainment.”
On January 21, 2022, James Raeford Hatcher (“Hatcher”), an employee of South East Grinding, was fatally injured while attempting to unjam a debaler at his workplace. His clothing became entangled in the machine, and he was unable to stop its operation. The machine in question—a “Model BBU.90” debaler—was manufactured by Emerging Acquisitions, LLC. Plaintiff Connie Hatcher, on behalf of Hatcher’s estate, brought claims against Defendant for negligence, strict liability, and breach of warranty.
According to Plaintiff, Defendant designed, manufactured, and sold the debaler in question and was aware of previous injuries and fatalities involving similar models. Despite this knowledge, Plaintiff alleged that the Defendant failed to implement standard safety features—such as human detection sensors or “light curtains”—unless specifically requested by customers. The debaler that killed Hatcher did not have these features.
Defendant filed a motion to exclude Plaintiff’s design engineering expert, Dr. James L. Glancey, arguing he lacked specific experience with recycling machinery and failed to test his proposed design alternatives.
Mechanical Engineering Expert Witness
Dr. James L. Glancey holds a Ph.D. in mechanical engineering from the University of California, Davis and is a licensed professional engineer with over 20 years of experience in the field. Furthermore, he has published more than 50 engineering articles and has served as an expert in over 200 product-related matters.
While Glancey lacked direct experience with debalers or recycling machinery, his mechanical engineering background qualified him to offer opinions on industrial machine design. After all, Glancey has a Ph.D. in mechanical engineering and thirty years of experience teaching product design. He has designed several machines, consulted on failure analysis for various products, and taught courses on both.
The Court held that the Plaintiff was not required to retain an expert specifically in debalers, and found that Glancey was sufficiently qualified to testify under Rule 702.
Alternative Design
Glancey’s proposed alternative designs incorporated light curtain technology and interlock safety features. He specifically testified that such technology has been available for incorporation in similar machines since the 1970’s.
Indeed, Defendant has incorporated a light curtain in other debalers it has manufactured. Plaintiff cited ample authority, uncontroverted by Defendant, to support the proposition that the existence of the alternative technology in the market subdues the need for expansive feasibility analysis or functional testing.
As a result, Glancey’s alternative design opinions were deemed sufficiently reliable under Daubert.
Warnings and Open and Obvious Danger
Defendant argued that Glancey’s warnings analysis was inadmissible because the danger was open and obvious, and no efficacy testing was done.
The Court found that Glancey analyzed the original warnings and identified deficiencies, including the lack of clear unjamming instructions. Whether the danger was sufficiently open and obvious to negate a duty to warn is a factual question for the jury.
Held
The Court denied Defendant’s motion to exclude Plaintiff’s expert, Dr. James L. Glancey.
Key Takeaway:
Plaintiff must present a reasonable alternative design, considering cost, safety, and functionality. The need for testing is blunted if the proposed alternative design is simple or is already used in the industry. In this case, the Plaintiff cited ample authority, uncontroverted by Defendant, to support the proposition that the existence of the alternative technology in the market subdues the need for expansive feasibility analysis or functional testing.
Kyle Rak worked as a Jones Act seaman for C-Innovation, L.L.C. (“C-I”). On October 10, 2022, everything changed. According to Rak, his superintendent suddenly shoved him to the ground without warning. The incident left him injured and shocked.
The next day, things got worse. C-I terminated Rak’s employment and, as he claimed, left him stranded in a dangerous jurisdiction. Feeling abandoned and wronged, Rak decided to act. He filed a lawsuit against C-I, Island Ventures 6, L.L.C., and Galliano Marine Services International, L.L.C. He brought several claims, negligence, unseaworthiness, maintenance and cure, retaliatory discharge, and wrongful termination, under general maritime law and the Jones Act.
To support his case, Rak hired Joseph R. Bridges as an expert witness. Bridges focused on the topic of seafarer abandonment. He discussed maritime customs, International Maritime Organization (“IMO”) guidelines, and the Maritime Labour Convention, 2006. In his view, the Defendants failed to meet industry standards.
However, the Defendants pushed back. They argued that Bridges’s opinions crossed the line into legal conclusions. In their view, his testimony stepped into the jury’s territory and should have been excluded.
Maritime Safety Expert Witness
Joseph R. Bridges is a 50-year veteran of the maritime industry, having sailed in various positions from Graduate Trainee to Ship’s Master. His seagoing career consisted of sailing on Container, Offshore Tugs, Tankers, Multi-Purpose and Roll On-Roll Off vessels.
The Court reviewed Defendants’ motion to exclude expert testimony from Joseph R. Bridges. Defendants did not dispute his qualifications. Instead, they challenged the scope and foundation of his opinions.
First, the Court examined Bridges’ use of language. He described Defendants’ conduct as “outrageous,” “callous,” and “ethically wrong.” The Court found this terminology inflammatory and unnecessary. It concluded that such statements were personal opinions, not expert analysis. The Court excluded those portions of testimony.
Next, the Court addressed Bridges’ opinions on maritime customs. He discussed seafarer abandonment and referenced IMO guidelines and the Maritime Labour Convention. Though not binding law, the Court recognized these sources as respected in the maritime field. It allowed Bridges to testify on these industry standards.
Then, the Court turned to opinions that lacked factual support. Bridges failed to disclose the facts or assumptions he used. He also omitted exhibits or data. The Court ruled these opinions inadmissible under Rule 702 and Rule 26.
Finally, the Court noted that Bridges made credibility judgments. He accepted one side’s version of events without question. The Court ruled that such determinations belong to the jury, not the expert. It excluded those opinions as well.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of the Plaintiff’s expert Joseph R. Bridges.
Key Takeaway:
The Court allowed Joseph R. Bridges to testify about maritime industry standards and seafarer abandonment but excluded his opinions that were inflammatory, unsupported, or based on credibility judgments. Expert witnesses must rely on disclosed facts and avoid legal conclusions or emotional language that invades the jury’s role.
Case Details
Case Caption:
Rak v. C-Innovation, L.L.C.
Docket Number:
2:23cv619
Court Name:
United States District Court for the Eastern District of Louisiana
This case stems from allegations by the U.S. Department of Justice that Dr. Eli Jarjoura, a licensed dentist, illegally prescribed Schedule IV controlled substances without a “legitimate medical purpose . . . in the usual course of his professional practice.”
Jarjoura instructed the patient to take one 0.25 mg tablet of triazolam and one 0.5 mg or 1.0 mg tablet of alprazolam—both Schedule IV sedatives used in conscious sedation dentistry—one hour before the procedure, and to return any remaining tablets to Jarjoura for administration, if needed, or for disposal.
Dr. Bruce D. Horn is DOJ’s expert witness on dentistry and sedation practice. Horn’s report, submitted pursuant to Rule 26, opines on “whether prescriptions written and issued by [Defendant] . . . were (i) issued for a legitimate medical purpose; and/or (ii) issued within the ordinary course of professional practice.”
Horn concluded that Defendant’s prescription practices regarding certain sedation drugs had no “legitimate medical purpose and were outside the course of usual professional practice.”
Defendant filed a motion to exclude Horn’s opinions under Rule 702.
Dentistry Expert Witness
Dr. Bruce D. Horn is a dentist in a private practice setting and has been practicing since 1981. He holds an active permit with the Oklahoma Board of Dentistry for parenteral conscious sedation and has served on the Oklahoma Board of Dentistry in a variety of roles.
Specifically, Horn made three related contentions. First, Horn noted that Defendant prescribed abnormally high quantities of the benzodiazepines Triazolam and Alprazolam despite no “reliable, accepted publication supporting the combined use of these two sedatives in sedation dentistry.” Second, Horn contended that Defendant’s recordkeeping was deficient. In his words, “sedation dental practice . . . should be based on the individual characteristics of each patient,” and patient records should contain these details to ensure “safe dosing” but Defendant’s records lacked the requisite detail. Third, Horn asserted that Defendant could not have effectively monitored his patients given the amount of sedation medication administered. Such levels of sedation medication, Horn argued, would have placed Defendant’s patients in physical danger.
The Defendant argued that Horn’s expert opinion should be thrown out under Rule 702, claiming he wasn’t qualified to speak on prescription drug safety or drug interactions. Their reasoning? Horn was trained as a dentist—not a pharmacist—so he allegedly lacks the expertise required for that kind of analysis.
Defendant further argued that certain portions of Horn’s report were either irrelevant or prejudicial. Defendant cited to portions of the report in which Horn commented on the following topics: (1) the presence of expired sedative antagonists in Defendant’s office stock; (2) Defendant’s practice of intravenously administering the benzodiazepine Midazolam; (3) the accuracy of Defendant’s medical recordkeeping; (4) appropriate dosing of prescriptions kept in Defendant’s office stock; (5) the application of the Oklahoma Board of Dentistry statutes and regulations to Defendant’s practice; and (6) the proper monitoring of patients during conscious sedation.
Analysis
Qualifications
Defendant challenged Horn’s qualifications, asserting that Horn is unqualified “regarding safety of prescriptions and drug interactions” because he is not a pharmacist.
The Court found that Horn is qualified to offer opinions regarding the safety and adverse effects of the medications at issue in this case. Horn has served as the President of the Oklahoma Board of Dentistry, has practiced dentistry for over 40 years, and has extensive experience working with various sedation techniques. His experience provides the foundational knowledge necessary to compare Defendant’s prescription practice to the professional dental practice at large.
The fact that Horn is a dentist, and not a pharmacist, is not a barrier to admissibility.
Reliability
Defendant did not challenge the reliability of Horn’s methodology.
Upon review of the expert report, the Court held that Horn’s methods were reliable. Horn’s opinions were derived from a comparison of Defendant’s practices as observed from medical records and deposition testimony with industry standards as identified by Horn and promulgated by the Oklahoma Board of Dentistry.
Relevance of Expert Testimony
Defendant challenged the relevance of certain portions of Horn’s report. Specifically, Defendant argued that Horn’s comments on the following topics are irrelevant to the ultimate issue of Defendant’s prescription practices:
1. The presence of expired sedative antagonists in Defendant’s office stock;
2. Defendant’s intravenous application of Midazolam;
3. The accuracy of Defendant’s medical records;
4. The appropriate dosing of certain prescriptions kept in Defendant’s office stock;
5. Purported violations of Oklahoma Board of Dentistry statutes and regulations; and
6. The failure to properly monitor patients during conscious sedation.
Defendant asserted that each of the above comments go beyond the scope of this case—whether “prescriptions written by Defendant were issued for a legitimate medical purpose or within the ordinary course of professional practice.”
The Court had no trouble finding that each of the contested portions of Horn’s report was relevant. Item 3—medical record inaccuracies—inform how medication should be prescribed and in what quantity. The remaining items—all of which relate to appropriate dental practice (i.e. the intravenous use of Midazolam, appropriate dosing, etc.)—are not only relevant, but central to the issue in this case. Each matter presents the fact finder with the background necessary to evaluate Defendant’s overall practice, including the appropriateness of prescription decisions.
Thus, the challenged testimony will be helpful to the trier of fact in determining whether Defendant’s prescriptions had a legitimate medical purpose in the usual course of professional practice.
Held
The Court denied the Defendant’s Daubert motion to exclude certain opinions of Bruce D. Horn.
Key Takeaway:
Horn is qualified as an expert by knowledge, skill, experience, training, or education. Furthermore, it is more likely than not that (a) Horn’s scientific, technical, or other specialized knowledge will help the trier of fact because under Rule 401, relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The Plaintiff, Hannibal Buress, is a well-known stand-up comedian who brought this case against two Miami Police Department (“MPD”) Officers, Luis Verne and Elio Villegas, and the City of Miami, for violations of his civil rights under both federal and Florida law based on an incident in the Wynwood area of Miami on December 9, 2017.
Buress retained Dr. Christopher Chapman as a testifying expert in this case. Chapman opined that “the arrest and handcuffing of Buress on December 9, 2017 . . . was objectively unreasonable and not consistent with police training/standards,” and “consistent with what is commonly referred to as Contempt of Cop.”
Verne believed that Chapman “improperly usurps the jury’s role of evaluating the testimony of the witnesses, making determinations as to the credibility of the witnesses, and applying those facts to the law instructed to them by this Court.”
Law Enforcement Expert Witness
Dr. Christopher Chapman is a retired Sergeant of Police with the Township of Cranford Police Department, Cranford, New Jersey. He has held numerous law enforcement positions and is also an Associate Professor and Founding Director of the Criminal Justice Degree Program at Kinsborough Community College—City University of New York (CUNY), Brooklyn, New York. He earned a PhD. in criminal justice from Northcentral University.
Verne argued that Chapman will opine on “whether the officers violated constitutional standards,” which “is the function of the jury.”
However, Buress clarified that “before a jury, Chapman will not provide testimony about the existence of probable cause; instead, he will testify about Officer Verne’s procedures and tactics.”
Considering “Chapman’s role is limited to describing sound professional standards and identifying departures from them,” the Court denied Verne’s Daubert motion.
Yet, in Buress’ response to Verne’s Daubert motion, Buress stated that Chapman’s first opinion includes opining that “a reasonable officer in Officer Verne’s position would not have reasonably believed they had the authority to censor Buress’ speech regardless of Officer’s Verne disagreement with the speech.” This toes the line between opining on “sound professional standards and identifying departures from them” on the one hand, and whether Officer Verne did indeed violate state law, on the other. However, the Court ended up giving credit to Buress’ purported limitations on Chapman’s potential testimony.
Federal Rule of Evidence 403
Verne believed Chapman’s testimony was inadmissible under Fed. R. Evid. 403 because “Chapman’s testimony about whether Officer Verne had the legal authority to arrest Plaintiff and whether the constitution was violated would mislead the jury in its function as a factfinder, waste time, and is outweighed by the facts that Buress hopes to prove.” Therefore, to Verne, Chapman’s “legal conclusions . . . would also present cumulative evidence to the extent it is based on any facts.”
However, it is premature to conclude that Chapman’s testimony is inadmissible under Rule 403. To begin with, and as Buress pointed out, Verne failed to “provide citations to specific opinions included in Chapman’s report that would confuse the jury, nor does he explain precisely why his testimony would confuse the jury.”
Additionally, and as the Court noted when denying Verne’s Daubert motion, Buress purports to place limits on Chapman’s testimony that would prevent Chapman from opining on issues that are solely within the province of the jury. Thus, at this time, the Court cannot conclude that Chapman’s testimony would mislead or confuse the jury in a way that substantially outweighs the relevance of his testimony.
Finally, Verne misstated the standard on cumulative evidence when he stated that Chapman “would also present cumulative evidence to the extent it is based on any facts.”
Verne seemed to believe that Rule 403 excludes any cumulative evidence but the Court clarified that Rule 403 only excludes the “needless presentation of cumulative evidence” when the repetitive nature of such evidence “substantially outweigh[s]” its relevance.
Held
The Court denied Luis Verne’s Daubert motion to exclude the testimony of Plaintiff Hannibal Buress’ expert Dr. Christopher Chapman.
Key Takeaway:
A police practices expert may present factors that might inform an officer’s decision regarding standards such as probable cause or the use of force when making arrests.
The Plaintiffs had been employed by the Metropolitan Government of Nashville and Davidson County, Tennessee. They alleged in their lawsuits that, on May 4, 2020, they were either terminated or demoted for discriminatory reasons, and brought claims asserting many of the same legal violations.
The Defendants filed two motions to exclude the testimony of Plaintiffs’ experts, Dr. Kenneth Smith and Dr. Robin Lovgren.
Accounting Expert Witness
Dr. Kenneth A. Smith has a PhD in Governmental Accounting and has worked as a Certified Public Accountant with local governments. Based on his published research and service on his local school board, he has specific expertise in public school district budgeting, accounting and financial management.
Dr. Robin Lovgren is an Associate Professor of Mathematics at Belmont University and has been teaching statistics for 16 years. She has overseen student statistical projects including a statistical regression analysis for the Human Resources Department of a local architectural and engineering firm recently.
She earned her Master of Science in Statistics and Ph.D. in Management Science from the University of Tennessee in Knoxville.
“Elimination of the Central Office positions was discretionary and not mandated by the budget process”; and
“The removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven organizations.”
Metro filed a motion to exclude Smith’s opinions on the basis that they were irrelevant and unreliable, and therefore inadmissible.
Relevance
Metro first argued that Smith’s opinion that the Central Office reorganization at Metro Nashville Public Schools (“MNPS”) was discretionary is irrelevant, because school budgeting always involves a certain amount of discretion, and Metro has never contended otherwise. Rather, Metro stated, it has always acknowledged that the fiscal year budget for fiscal year 2021 “reflected MNPS’ business judgment and budgetary discretion.” It argued that the jury will not be called upon to decide whether the Central Office reorganization was mandated by law but, instead, whether the employment decisions were retaliatory or discriminatory. “So,” it concluded, “an expert opinion that budgeting is discretionary and that reorganization was not required by law has no bearing on any fact of consequence in this case.”
The Court disagreed. While there is no doubt that school budgetary decisions are largely discretionary, involving selections among many possible choices, Smith’s report suggested that Metro’s purported budgetary concerns were grossly overstated, given MNPS’ actual financial situation in 2020. The point of his opinion is that there were many other less controversial and more common areas within the budget from which Metro could have made up whatever deficit it believed it needed to cover, rather than taking the unusual step of cutting personnel first.
Reliability
Metro argued that Smith’s opinion that the Central Office reorganization did not “‘appear’ to follow the correct steps” is not reliable because it amounts to nothing more than speculation based on Smith’s “subjective notion about what should have or could have happened during [the] reorganization.”
Smith observed that: (1) “budget pressure at MNPS in 2020 was fairly similar to prior years”; (2) “there were a large number of reasonable, routine & available options to address the budget pressure”; (3) “most budget options went through a substantive technical review process”; and (4) “this change [i.e., the elimination of Central Office positions] did not follow a substantive technical review process.”
Therefore, Smith concluded that the removal of these positions did not appear to follow the procedural and professional steps that commonly occur for budget-driven reorganizations.
The Court held that Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Whether the Central Office Reorganization Resulted in Cost Savings
Smith stated in his report that reorganizations like that undertaken by MNPS “sometimes result in actual cost savings, sometimes they are budget neutral and sometimes [they increase rather than decrease] the budget outflows.”
Based on this statement, Metro argued that Smith cannot offer an opinion as to whether MNPS sought or achieved any particular cost savings through the Central Office reorganization.
The Plaintiffs did not address this argument, and it did not appear that Smith offered or intended to offer any such opinion, as he expressly disclaims knowledge of whether cost savings were either projected or achieved. Accordingly, Metro’s request to exclude such an opinion is uncontested. The Court granted this small aspect of Metro’s motion.
Robin Lovgren
Robin Lovgren was asked by the Plaintiffs to “determine whether the employment decisions made in 2020 at [MNPS] show a pattern of discrimination based on engagement in protected activity.”
She conducted a statistical analysis, based on information and documentation provided to her by the Plaintiffs that identified which employees were and were not known by Defendant Battle to have engaged in protected activity.
Based on the information she reviewed, Lovgren concluded that “in 2020 a disproportionately large number of employees engaged in protected activities were adversely affected by the reorganization of the Central Office.”
Statistical Analyses Based on the Number of Central Office Employees Who Had Engaged in Protected Activity
Reliability
Metro argued that Lovgren’s opinions are unreliable, because she failed to “support her opinions with sufficient facts or data to establish how many MNPS employees engaged in protected activity, or how many were adversely affected by the reorganization.”
Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Dr. Adrienne Battle’s deposition testimony.
The Court found it reasonable to assume that Battle, as Director of Schools for MNPS, understood the meaning of “protected activity” and knew what she was acknowledging when she stated she was not aware that any of the individuals had engaged in such activity. Moreover, it was undisputed that she knew the Plaintiffs had, in fact, engaged in protected activity. The Court concluded that Lovgren’s failure to define the term did not render her opinions unreliable.
Likewise, as a matter of common knowledge, it was clear that being demoted, fired, or not rehired after a reorganization are “adverse” employment events, and Lovgren’s failure to define “adversely affected” as used in her report did not render her opinions unreliable.
Relevance
Metro argued that, because Lovgren’s opinions—based on the number of employees who were not known to have engaged in protected activity—were not reliable, they did not “tend to show that any facts are more or less probable” and therefore must be excluded for lack of relevance. However, because the Court found the opinions reliable, this argument failed.
Statistical Analyses Based on the Number of Principals Who Had Engaged in Protected Activity
Metro raised a separate argument regarding Lovgren’s analysis of the relative numbers of school principals who did or did not suffer an adverse employment action and who were or were not known to have engaged in protected activity. Lovgren conceded that she did not have any information regarding school principals (other than Plaintiff James Bailey) who were known to have engaged in protected activity.
And in her explanation of the analyses regarding school principals, Lovgren stated: “The number of principals who engaged in protected activity was not known for this analysis so ‘what-if’ analyses were performed. The [analyses assume that] Bailey was the only principal who engaged in protected activity.”
Because Lovgren admittedly cannot point to any facts in the record to support her assumption that Bailey was the only principal who was known to have engaged in protected activity, the Court held that her statistical analysis relating to school principals are not reliable and must be excluded.
Held
The Court granted in part and denied in part the Defendants’ motions to exclude the opinions of Dr. Kenneth Smith and Dr. Robin Lovgren.
Key Takeaways:
An expert’s opinion, where based on assumed facts, must find some support for those assumptions in the record. Here, Lovgren’s opinion regarding which employees were and were not known to have engaged in protected activity was based on Defendant Battle’s deposition testimony.
Expert testimony should be supported by more than subjective belief and unsupported speculation and should be supported by good grounds, based on what is known. Smith’s opinion that the “Central Office Reorganization was not mandated nor necessitated by the budget process” is adequately supported and not based on mere speculation.
Case Details:
Case Caption:
Hayes V. Metropolitan Government Consolidated Of Nashville and Davidson County, Tennesse
This case concerns a maritime personal injury sustained by a Mexican citizen, who was legally working in the United States on a seasonal H-2B visa. To assess damages, Espinoza hired AsherMeyers, LLC, a dispute advisory and forensic accounting firm, to calculate his economic losses, which include his future loss of earning capacity, fringe benefits, and found.
Subsequently, partners Harold A. Asher and Jeffrey E. Meyers issued a joint report in which they opined that, based on Espinoza’s work-life expectancy of 7.5 years and his pre-incident earning capacity of $29,105 per year, his “loss of economic capacity” — which includes lost wages, fringe benefits, and found — totals $274,082.
In response, Westbank Fishing, LLC filed an instant motion in limine seeking to exclude or limit Asher and Meyers’s testimony, arguing that it is speculative because it does not account for the fact that Espinoza was a seasonal worker who had an H-2B visa for the 2023 fishing season.
Accounting Expert Witness
Harold Alan Asher is a Certified Public Accountant. He is a member of the American Institute of Certified Public Accountants, its Forensic and Valuation Services Section and the Louisiana Society of Certified Public Accountants.
Notably, Asher was designated a Certified Fraud Examiner by the Association of Certified Fraud Examiners in February 1995 and a Certified Valuation Analyst by the National Association of Certified Valuators and Analysts in December 1995.
Throughout his career, he has served as a consultant and testified in a wide range of complex matters including commercial damages, lost profits, valuations fraud, personal injury damages, matrimonial disputes, business interruption claims, accounting malpractice, securities and FINRA disputes, breach of fiduciary duties and intellectual property infringement.
Jeffrey E. Meyers was designated a Certified Valuation Analyst by the National Association of Certified Valuators and Analysts in May 2009 and a Master Analyst in Financial Forensics cosponsored by the National Association of Certified Valuators and Analysts as of July 2010.
In addition, the Association of Certified Fraud Examiners designated Meyers a Certified Fraud Examiner in February 2011. Meyers is a member of the National Association of Certified Valuators and Analysts, Association of Certified Fraud Examiners and the American Statistical Association.
He is routinely involved in a variety of complex issues relating to commercial damages, lost profits, personal injury damages, matrimonial disputes, business interruption claims, intellectual property impairment and fraud.
In this case, Westbank did not challenge Asher’s or Meyers’s qualifications or the methodology they used to formulate their opinions. Instead, it argued that the experts improperly assumed Espinoza would have continued working in the United States, pointing to Westbank’s own inability to secure H-2B visas every year.
However, this argument overlooked the fact that Espinoza had previously worked legally in the U.S. under H-2B visas for other employers. The mere possibility that Westbank might not have been able to hire him in a future year did not preclude the likelihood that another fishing company could have done so.
Moreover, Westbank failed to cite — and the Court was unaware of — any authority holding that an economic expert’s testimony must be excluded or limited as speculative simply because it assumed a foreign worker, with a documented history of lawful U.S. employment, could continue working legally in the United States in future years.
After considering Asher and Meyers’s report and credentials alongside Westbank’s objections, the Court concluded that their education and experience qualified them to offer opinions on Espinoza’s future economic losses.
Held
The Court denied Westbank’s motion in limine to exclude or limit the testimony of Harold A. Asher and Jeffrey E. Meyers.
Key Takeaway:
The Court saw no reason to disqualify the experts’ projections. In fact, it found no precedent requiring exclusion of economic loss testimony simply because it assumes that a legally employed foreign worker could stay in the workforce.
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.
Ethicon filed a motion to exclude or limit certain testimony of Thacker’s expert, Dr. Bruce A. Rosenzweig.
Urogynecology Expert Witness
Dr. Bruce Alan Rosenzweig is currently an Assistant Professor of Obstetrics and Gynecology at Rush University Medical Center in Chicago, Illinois. He received his MD degree in 1984 from the University of Michigan in Ann Arbor, Michigan.
Rosenzweig attended a two year Urogynecology and Urodynamic fellowship at UCLA Harbor General Hospital in Torrance, California. After graduating from the Urogynecology fellowship, he became a faculty member at the University of Illinois in Chicago. Rosenzweig started a Urogynecology program at the University of Illinois and also was the residency program director.
He has published numerous articles and has given numerous lectures on the topics of pelvic organ prolapse, urinary incontinence, and repair of pelvic organ prolapse.
The Defendants asked the Court to block Rosenzweig from testifying about Thacker’s future prognosis.
Additional Surgery
First, the Defendants argued that Rosenzweig’s statement—“Thacker may need additional surgery to remove any remaining mesh as well as the possibility of additional vaginal surgeries for vaginal scarring, pelvic pain, and recurrent infections, and will likely continue to suffer other injuries”—was too speculative. They specifically objected to what they viewed as equivocal language in that portion of Rosenzweig’s report, emphasizing the words “may,” “possibility,” and “will likely” to highlight the uncertain nature of his opinion. In support, the Defendants cited caselaw requiring that an expert’s opinion must rise from merely “possible” to “probable” to be admissible. However, they did not cite any other caselaw or evidence showing that the quoted portion of Rosenzweig’s opinion lacked support.
The Court agreed with the Defendants that an expert’s opinion must move beyond mere possibility to probability, but ultimately rejected their conclusion. Defendants’ lack of citation to the record was noted. The Defendants also conceded that Rosenzweig’s prognosis opinions fell within his area of expertise, and did not respond to Thacker’s arguments on this point. Taken together, these omissions suggested that the dispute was more about semantics than any substantive flaw in Rosenzweig’s testimony. As a result, the Court allowed the challenged portion of his testimony, noting that any perceived equivocation could be addressed through cross-examination or a timely objection at trial.
Continuum of Care
The Defendants next argued that Rosenzweig’s opinion that Thacker required a continuum of care that “could range anywhere from 6 months to 5 years” and that such care would be “socially disruptive, very expensive, and not usually covered by insurance,” is unreliable. They suggested that Rosenzweig’s opinion is baseless and lacks tailoring to this case.
The Court found Rosenzweig’s opinion on Thacker’s required continuum of care to be reliable and therefore admissible. Put plainly, the challenged portion of Rosenzweig’s report was based on a reliable foundation rather than unsupported speculation. He explained that his opinion is based on his education, experience, review of relevant literature, and review of Thacker’s medical records.
Held
The Court denied the Defendant’s motion to exclude certain opinions and testimony of Plaintiff’s expert Bruce Rosenzweig, M.D.
Key Takeaway:
The task for the district court in deciding whether an expert’s opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.
Please refer to the blogs previously published about this case:
Wexford Health Sources, Inc. was the company hired by the State of Illinois to provide medical care to inmates across the state’s prison system. One of those inmates, Paul Daval, filed a lawsuit against certain Wexford employees, accusing them of showing deliberate indifference to his serious medical condition. Daval alleged that while he was incarcerated at Dixon Correctional Center, the staff knew he had chronic Hepatitis B and serious liver damage—but still failed to provide timely treatment. As a result, his health reportedly worsened due to the delay.
Daval’s retained opinion witness Dr. Nancy Reau concluded (among other things) that Wexford’s course of treatment “most likely” caused Daval to develop liver cirrhosis, severe symptoms, and an increased risk of liver cancer. Defendants filed motion to bar these conclusions under the Daubert standard.
Hepatology Expert Witness
Dr. Nancy S. Reau has over twenty years’ experience treating viral hepatology and currently serves as the Chief of Hepatology at Rush University Medical Center.
Reau’s 26(a) report details Daval’s treatment history and condition before attributing his risk of cancer to “ongoing hepatocellular injury with hepatic necrosis resulted in fibrosis and, because it was not controlled, cirrhosis.”
According to Reau, properly treating Daval beginning shortly after he tested positive for hepatitis B would have significantly reduced the likelihood of Daval developing cirrhosis, because cirrhosis happens progressively over a long period of time in response to a hepatitis B infection.
The Court held that the Defendants wrongly asserted that Reau relied “only” on Daval’s fatigue in reaching her conclusion, when her deposition testimony indicated she also knew he suffered from nausea and “a lot of musculoskeletal issues.”
In assorted causal challenges to Reau’s conclusions, the Defendants contended that she failed to account for relevant variables, failed to obtain a control sample, and ultimately reached the opposite conclusion than their own expert.
The Court held that the Defendants’ causal challenges are all factual matters necessarily reserved for the trier of fact or, if appropriate, on summary judgment. As a result, Reau may opine on whether the Defendants’ delay contributed to Daval’s symptoms, cirrhosis, and risk of liver cancer, consistent with her report and subject to “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.”
Held
The Court denied the Defendants’ motion to limit the testimony of Plaintiff’s expert, Dr. Nancy Reau.
Key Takeaway:
Reau’s report provided a rational connection between Wexford’s medical treatment and Daval’s cirrhosis, symptoms, and risk of liver cancer. Whether it definitively proved those relationships, however, falls outside the scope of Daubert.
Daubert, after all, is concerned with methodology that experts use, not the conclusions experts reach.
