Cook County ran an annual property tax sale targeting homeowners behind on property taxes. When taxes went unpaid, the County obtained court orders to sell tax liens on delinquent properties. Private tax buyers then paid the outstanding taxes in exchange for collecting repayment, plus interest, from property owners. If the owners didn’t repay within about 30 months, buyers could petition for a tax deed and take ownership.
Michelle Kidd and Goyce H. Rates, two homeowners who lost their properties through this system, sued alongside two advocacy groups, Southwest Organizing Project (SWOP) and Palenque LSNA. They alleged the County’s tax sale process amounted to unconstitutional takings, excessive fines, and due process violations. Their homes, lost for debts under $10,000, were valued by the County between $166,000 and $389,000. Yet neither homeowner received compensation for the equity lost.
As part of the litigation, the Plaintiffs introduced Dr. William G. Hamm, an economist who supported the reliability of Cook County’s mass appraisal system to estimate market values. The Defendants countered with Ron DeVries, a real estate expert who challenged that approach. Both sides moved to exclude the other’s expert.
Economic Valuation ExpertWitness
William G. Hamm is a professional economist and a Managing Director of Berkeley Research Group, LLC (“BRG”), an expert services and economics consulting firm headquartered in Emeryville, California.
Hamm has a BA from Dartmouth College and a PhD in economics from the University of Michigan.
Ron DeVries‘ valuation experience includes industrial, retail, office, hotel, multi-family (including FNMA/Freddie, HUD as well as LIHTC deals), and residential subdivisions for uses ranging from due diligence and financing to review appraisal.
DeVries is a frequent speaker at the Chicago Real Estate Council, the Chicagoland Apartment Association as well as private events for clients. He has testified as an expert witness in a variety of matters. DeVries is past national Chair of Education for the Appraisal Institute and previously served on the Appraisal Institute’s Board of Directors, and numerous committees.
The Court found William G. Hamm qualified to testify. He is a professional economist and Managing Director at Berkeley Research Group with a PhD in economics. His experience includes building models to assess the market value of mortgage-related assets. Though not a licensed appraiser, the Court ruled that this does not disqualify him from evaluating Cook County’s mass appraisal system. His qualifications allow him to speak on complex modeling used to estimate real estate value.
Reliability
Hamm’s methodology involved analyzing how Cook County assesses property values using its Computer Assisted Mass Appraisal (CAMA) system. He reviewed public data, used certified Board of Review assessments, and calculated lost equity across a sample of properties. He acknowledged imperfections in the data and proposed interpolation to improve accuracy. The Court concluded that his methods were sound, especially given the lack of alternative sale data, and ruled that criticisms of his data sources go to weight, not admissibility.
Ron DeVries (Defendants’ Expert)
Qualifications
The Court found DeVries qualified as an expert. He is a licensed real estate appraiser with decades of experience in property valuation. While he lacks experience in mass appraisal modeling, he is qualified to critique how accurately Cook County’s assessments reflect market value based on his appraisal experience.
Reliability
DeVries relied largely on his own professional knowledge to evaluate weaknesses in the County’s system, such as infrequent assessments and a lack of individualized property inspections. Although his report lacked citations to specific county documents, the Court found this appropriate for the nature of his testimony. The Court held that any gaps in his review go to credibility, not admissibility.
Held
The Court denied the Defendants’ motion to exclude William G. Hamm, finding his economic expertise and valuation methods reliable and admissible.
The Court also denied the Plaintiffs’ motion to exclude Ron DeVries, holding his appraisal-based critique of Cook County’s assessments was qualified and relevant under Rule 702.
Key Takeaway:
The Court admitted both expert witnesses, ruling that Dr. William G. Hamm’s economic modeling and Ron DeVries’s appraisal-based critique were sufficiently qualified and reliable. Their testimony will play a central role in evaluating the constitutionality of Cook County’s tax sale system.
Case Details
Case Caption:
Kidd v. Pappas
Docket Number:
1:22cv7061
Court Name:
United States District Court for the Northern District of Illinois, Eastern Division
This is a trademark infringement dispute between the franchisor, Spice Merchants Entities Corp., owned by Lisa Freeman, and its former franchisee, Pretty Colorado, owned by Corine Winslow. Freeman alleged violations of the “Breckenridge Tea & Spice” mark and claimed that Winslow and Pretty Colorado are using the same trade dress as the Spice franchises.
Plaintiffs filed a motion to exclude the testimony of Defendants’ expert, Steven H. Weigler, Esq. Weigler is an expert in trademark prosecution and law and believes that expert testimony in the area of trademark practice, procedure, custom, usage, and law related to trademark rights and formal disputes can assist “even the most experienced judges” on issues of trademark.
The gist of Plaintiffs’ argument is that Weigler’s testimony will not assist the trier of fact (in this case, the trial judge) because experts are not to state legal conclusions drawn by applying law to the facts.
Trademarks Expert Witness
Steven H. Weigler, Esq. is a trademark and intellectual property attorney who has prosecuted over 1,015 trademarks. He has litigated numerous trademark infringement lawsuits as well as trademark cancelation proceedings at the United States Patent and Trademark Office’s (“USPTO”) Trademark Trial and Appeal Board (“TTAB”). Weigler publishes frequently on the subject of trademarks and trade dress protection.
He is an active member of the International Trademark Association, IR Global (Intellectual Property Section), and the World Trade Center. Weigler collaborates in written and video content with similarly situated trademark professionals and other practitioners. He teaches a course in International Intellectual Property Protection for the World Trade Center in Denver, Colorado.
Plaintiff claimed that by using Breckenridge Tea and Spice to sell tea and spices, Defendants were causing confusion with Plaintiff’s mark. Defendants’ affirmative defenses claimed fraudulent procurement: i.e., the registered mark was fraudulently procured, thus making it unenforceable and/or cancellable.
Defendants, via testimony they hoped to elicit from Weigler, argued that the trademark is in fact invalid as it is procured by fraud, and therefore the franchise documents contained misrepresentations, which presumably made the franchise agreement itself unenforceable.
The Court found no likelihood of confusion with respect to Pretty Colorado and Winslow’s use of the BRECKENRIDGE TEA & SPICE mark or the supposedly proprietary trade dress. Moreover, Weigler’s opinion that Plaintiffs defrauded the trademark examiner usurped the role of the Court. As a result, the Court excluded Weigler’s opinions on those subjects.
However, the Court deemed Weigler’s testimony about the process of trademark prosecution and how an applicant or the applicant’s attorney interacts with the USPTO’s examining attorney to be helpful.
In other words, Weigler was not allowed to testify that he believes this to be an incident of fraud in trademark application process, but he was allowed to explain, as an expert in trademark prosecution, how the SPICE MERCHANTS and SPICE & TEA MERCHANTS marks came to be registered and whether this prosecution is consistent or inconsistent with the norms with which he is familiar as a trademark expert.
Held
The Court granted in part and denied the Plaintiffs’ motion to exclude the testimony of Defendants’ expert Steven H. Weigler, Esq.
Key Takeaway:
The judge, in this case, is not an expert in intellectual property, and it would be helpful to hear how a trademark prosecution occured.
The Court believed that it would be helpful for Weigler to explain a trademark applicant’s obligations of candor to the USPTO, and the significance of the removal of “spices” from the description of the services being provided in connection with the attempted registration.
Case Details:
Case Caption:
Spice Merchants Entities Corp. Et Al V. Pretty Colorado, LLC Et Al
This action arises from injuries sustained by Christopher Fabricant, a 52-year-old pelvic surgeon, while riding the Kingda Ka rollercoaster at the Six Flags amusement park located in Jackson, New Jersey.
Defendants challenged the admissibility of Plaintiffs’ expert Edward M. Pribonic, who was retained to “conduct an engineering review and mechanical analysis to determine the mechanisms by which Fabricant received the injuries to his spine, as the result of riding on the Kingda Ka roller coaster,” and, if necessary, opine on “the kinematics or movements that created the injury mechanisms.”
Engineering Expert Witness
Edward Mark Pribonic holds a Bachelor of Mechanical Engineering degree from the University of Pittsburgh; he is a registered professional engineer and is licensed in California. He specializes in “engineering design, rehabilitation, safety improvement, maintenance, ride safety inspections and accident investigation in the amusement ride industry.” Pribonic has held engineering related positions at Walt Disney Imagineering and Disneyland, has provided consultation to theme parks and ride manufacturers pertaining to ride equipment design, and has taught ride safety and inspection courses to California ride inspectors and to industry members. He has previously been qualified as an expert in the field of engineering in approximately twenty cases in both state and federal court in New Jersey.
In his July 15, 2019 declaration, Pribonic opined that the seats and restraints on Kingda Ka were standardized and mass-produced.
Pribonic’s opinions regarding functionality, design, and structure are based solely on a visual comparison of photographs pulled from the internet that purport to be other Intamin and Intaride rollercoasters. Pribonic did not identify the dimensions, designs, or the nature of the materials of the seats, restraints, and/or locking mechanisms in reaching his conclusions. Moreover, Pribonic did not identify any testable hypothesis, standard, or technique used to formulate his conclusions.
As a result, the Court found that the opinions set forth in Pribonic’s July 15, 2019 declaration were inadmissible as they were unreliable and constituted net opinions.
Given the technical expertise being offered here, the Court found that Pribonic’s opinion is impermissibly speculative because it is grounded only in his superficial observations of seat exteriors through photographs. Moreover, Pribonic’s declaration is not based on any methodology, but rather his own intuition.
Held
The Court held that any testimony regarding the opinions set forth in Edward Pribonic’s July 15, 2019 declaration failed to meet the Daubert standard and was therefore inadmissible.
Key Takeaway:
The Court noted that an expert may focus upon personal knowledge or experience rather than scientific foundations. But even considering Pribonic’s experience in the amusement park industry and his time as an engineer, the Court found that his opinions in the July 15, 2019 declaration fell within the category of subjective belief and unsupported speculation.
Case Details:
Case Caption:
Fabricant Et Al V. Intamin Amusement Rides Int. Corp. Est. Et Al
Think Green Limited (“Think Green”) has taken Medela AG and Medela LLC (“Medela”) to Court, accusing them of infringing on the trade dress rights it holds in its breast pump and misleading consumers through false advertising.
Rhonda J. Harper, a Think Green expert witness in areas involving marketing, branding, and consumer research, used various analytical methods to conclude that (1) among the relevant universe of consumers, there is a likelihood of confusion that Medela’s pump is sponsored or approved by Think Green due to the allegedly infringing trade dress; and (2) the relevant universe of consumers would likely ascribe secondary meaning to Think Green’s trade dress. Medela filed a motion to exclude Harper’s expert opinions and underlying survey results pursuant to Rule 702 and the Daubert Standard. Medela also sought to strike Harper’s rebuttal declaration.
Cynthia Cohen, who Medela proffered as an expert in areas related to psychology and consumer research, reached the following conclusion based on her analytical work: “offering the Medela breast milk collector on the Amazon platform does NOT cause consumer confusion.” Think Green filed a motion to strike this conclusion and the entirety of Cohen’s expert report.
Think Green also filed a motion to strike portions of the expert report prepared by Medela expert Carsten Faltum.
MarketingExpert Witness
Rhonda Jane Harper has over 30 years of experience at the highest levels of marketing, research, and branding. She has been the top marketing executive for several Fortune 100 corporations, served as an adjunct marketing professor at two universities, held national and international board positions in leading brand and marketing associations, led a leading global agency division, and founded an organic growth strategic consultancy. Harper has also provided and rebutted hundreds of trademark and trade dress infringement surveys for litigation purposes.
Cynthia R. Cohen, Ph.D. is an expert in survey methods. She designed consumer studies for Lanham Act cases and change of venue surveys for trials. Cohen’s education includes psychology degrees at UCLA and USC. Her firm, Verdict Success LLC, specializes in in jury research, trial strategies, and settlement decision-making.
Carsten Faltum has extensive experience in the life sciences industry, particularly in R&D coupled with several years as an investment manager in venture capital and corporate venture.
With regard to Harper’s surveys, Medela argued that the data was not analyzed in accordance with accepted statistical principles, nor was the objectivity of the entire process assured.
Courts generally find consumer survey evidence admissible if a qualified expert testifies that the survey was conducted according to generally accepted principles of survey research. Moreover, survey evidence need not be perfect to be admissible.
The Court held that Harper’s surveys did not constitute one of those “rare” situations where fundamental flaws rendered them “completely unhelpful to the trier of fact and therefore inadmissible.”
Admissibility of Harper’s Survey Evidence
Control Stimuli in Secondary Meaning and Point-of-Sale Confusion Surveys
Medela took issue with the control stimuli Harper used in her secondary meaning and point-of-sale confusion surveys. Medela also objected to the pump images that members of both control groups were shown—in other words, the control stimuli.
The survey ultimately asked respondents whether or not “the manufacturer or brand of the breast milk pump/collector [they] just reviewed … is sponsored or approved by another manufacturer or brand.” If a respondent answered yes to the “sponsored or approved” inquiry, the respondent was then asked what other manufacturer or brand had sponsored or approved the pump or collector the respondent had just viewed and why the respondent thought so.
Medela argued that the control stimuli are “so wildly different” than the test stimuli that Harper’s surveys are unreliable.
But as Think Green pointed out, it is not imperative that secondary meaning surveys include a control group at all to be considered reliable. As at least one district court has observed, secondary meaning surveys measure the extent to which consumers associate a particular trade dress with a particular source, and a control group would not necessarily aid in that analysis. Nor is it clear that including a weak control stimulus (even assuming that is a fair characterization of the control stimuli used here) renders a survey “so flawed as to be completely unhelpful to the trier of fact” and therefore inadmissible.
According to the Court, Medela’s bones of contention provides no basis to strike Harper’s testimony altogether.
Point-of-Sale Confusion Survey and Marketplace Reflection
Medela separately complained that Harper’s point-of-sale confusion survey did not reflect how consumers encountered the depicted pumps in the real-world marketplace.
It argued that the pictures Harper used did not “present[] the full scope of information available to a prospective online purchaser” and were “devoid of a host of further identifying information that consumers would typically encounter by viewing the actual product listing page for these products.”
A survey need “not replicate the exact purchasing experience of every consumer confronting the pertinent product in the marketplace”; it requires only “reasonable choices based on the expert’s experience and training and on accepted survey techniques.”
In this Court’s estimation, Medela’s criticisms did not bear on the survey’s admissibility, but on the “evidentiary weight of the survey results”—a question for the jury.
Control Stimulus in Post-Sale Confusion Survey
Through a different survey, Harper sought to “determine whether Medela’s breast milk pump/collector is likely to cause post-sale confusion.” Post-sale confusion occurs when a potential customer sees a product bearing the Plaintiff’s trade dress and mistakenly attributes the product to the Plaintiff, thereby influencing his or her buying decision, either positively or negatively.
To assess the likelihood of post-sale confusion, Harper’s online survey first screened for respondents who purchased a pump in the last year or who would consider purchasing one in the next year. The test group was presented with four images of Medela’s pump, collected from Medela’s online retail product pages, less Medela’s name, design elements, and measurements.
Medela objected to the images Harper presented to the test group of its pump as well as the control stimuli images.
The Court held that a survey need not be excluded simply because it failed to use the best available control stimuli.
Test Stimuli in Post-Sale Confusion Survey
Medela next criticized the post-sale confusion survey’s test stimuli as failing to “reflect real-world conditions in which consumers are likely to encounter the products.”
What images Harper should have presented to better depict the “obvious intimate and exposed” nature of using a breast pump, Medela did not say. In any event, whatever Medela’s argument, the Court held that it affected the weight of the evidence—not its admissibility.
Test Stimulus in Secondary Meaning Survey
Medela argued that the test stimulus Harper used in her secondary meaning survey was “fundamentally flawed” because it failed to isolate the trade dress.
To support its assertion that “a secondary meaning test stimulus must isolate the trade dress at issue,” Medela cited Handelman’s Guide to TTAB Practice, Second Edition, § 18.15. However, the quoted portion of Handelman’s Guide specifically directs that “[i]f the image used in the stimulus differs from the mark shown in the application or registration drawing”—as Medela alleges here—”the difference will weigh against the probative value, if any, to be accorded to the survey.” In other words, the Court held that Medela’s own source instructed that the weight to be assigned to the secondary meaning survey is a question for the jury—not one of admissibility.
Use of Functional Stimuli To Assess Non-Functional Trade Dress
Medela next argued that Harper’s surveys did not test the asserted trade dress, because the “shield-bulb-base” arrangement featured in the stimuli is functional.
Because this argument mirrors a central theory of Medela’s summary judgment motion: that Think Green’s asserted trade dress is functional and therefore cannot be protected, the Court will address this argument when it resolves Medela’s motion for summary judgment.
Net Secondary Meaning Calculation
Medela argued that Harper’s secondary meaning calculation is “fundamentally flawed” because, in calculating net secondary meaning, she failed to subtract a particular number from the results.
Harper, however, has laid out her reasons for employing the methodology that she did and, in so doing, amply conveyed that her calculations were a considered choice, not the result of a fatal error or oversight.
At the end of the day, the two experts analyzed the same data, but came to different conclusions about its meaning. That leaves the Court with a “battle of the experts” situation that is inappropriate for dispensation in a Daubert motion and must be left for the factfinder to resolve.
Data Supporting Secondary Meaning Opinion
Medela argued that Harper’s report “fails to substantiate the connection between these data points with its conclusions that these were purportedly successful in connecting Think Green as the source of the trade dress in the minds of relevant consumers.” By “these data points,” Medela appeared to be referencing the entire universe of “sales data, advertising expenditures, awards, social media followers etc. ” in Harper’s report. But Medela did not actually cite to “these data points” or describe them with any degree of specificity. The Court will not guess at them, nor will it develop Medela’s argument for it.
Admissibility of Harper’s Rebuttal Declaration
Think Green attached a rebuttal declaration from Harper to its response to Medela’s motion for summary judgment in which Harper responded to Medela’s criticism of her net secondary meaning calculation. Medela filed a motion under Rule 37 to strike this declaration.
In her short rebuttal declaration, Harper responded to what she described as “mischaracterization” and criticism Medela offered in its summary judgment briefing. More specifically: Harper explained that there are multiple ways of calculating net secondary meaning and why she chose her particular method of calculation. At the conclusion of her rebuttal, Harper performed an alternate method of calculation that “[s]ome sources indicate [is] also appropriate,” which she claims—consistent with her previously expressed opinion—”shows that the trade dress is strong.”
The Court denied Medela’s motion to strike Harper’s rebuttal declaration because it remained “firmly grounded” in the opinions she expressed in her original expert report. Basically, Harper’s rebuttal declaration is the type of responsive report that is permitted under Rules 26 and 37.
Cynthia Cohen
Qualifications
Medela contended that Cohen’s experience conducting consumer surveys related to trademark disputes is relevant to trade dress disputes, as the methodology between the two topics is largely interchangeable. Medela also cited her publications, speeches, and court appearances as an expert witness concerning consumer surveys.
According to Think Green, Cohen’s limited prior experience as an expert or witness rendered her unqualified.
Despite criticizing Cohen for not having “essential” experience, education, or training in marketing, Think Green did not draw any link between “a professional marketing background” and trade dress likelihood of confusion surveys. The Court is not persuaded that an expert who lacks a marketing degree or marketing experience should be automatically precluded from opining on matters of trade dress.
Methodology
Think Green argued that Cohen’s likelihood of confusion survey relied on improper methodology. In Cohen’s survey, respondents were shown the stimulus image of Medela’s pump “as it had been displayed on the Amazon platform.”
With the stimulus picture still available on the screen, respondents were asked open-ended questions meant to assess whether confusion was likely. For example, respondents were asked “if you have an opinion, what company or organization makes or puts out this breast milk collector” and if the respondent had an opinion, whether the respondent “believed that this breast milk collector is affiliated with or sponsored by any other company.”
Think Green objected to Cohen’s methodology of showing respondents the stimulus picture while the respondents answered the survey questions. According to Think Green, this is “a major flaw” that “departs from typical marketplace conditions.”
As the Court already explained when denying Medela’s motion to exclude Harper’s expert report, no survey is “foolproof,” and perfection is not required to clear the Daubert bar. Think Green has presented no argument that any flaws in Cohen’s survey create one of the “rare” situations where a survey is so fundamentally flawed “as to be completely unhelpful to the trier of fact and therefor inadmissible.”
Relevance
Like Harper’s testimony, the Court held that Cohen’s survey evidence concerning likelihood of confusion will assist the jury in evaluating Think Green’s claim of trade dress infringement.
Carsten Faltum
As for Think Green’s motion to strike portions of the expert report prepared by expert Faltum, the Court denied Think Green’s motion to partially strike without prejudice to renewal after Think Green hinted that it may file a more robust motion to strike Faltum’s report before trial.
Held
The Court denied Medela’s motion to exclude Rhonda Harper’s expert opinions and underlying survey results as well as Harper’s rebuttal declaration. Think Green’s motion to strike Cynthia Cohen’s report was also denied by the Court.
Additionally, the Court denied Think Green’s motion to partially strike portions of Carsten Faltum’s report without prejudice to renewal.
Key Takeaways:
A survey need “not replicate the exact purchasing experience of every consumer confronting the pertinent product in the marketplace”; it requires only “reasonable choices based on the expert’s experience and training and on accepted survey techniques.”
Courts generally find consumer survey evidence admissible if a qualified expert testifies that the survey was conducted according to generally accepted principles of survey research. Moreover, survey evidence need not be perfect to be admissible.
The notion that Daubert requires particular credentials for an expert witness is radically unsound. Anyone with relevant expertise enabling them to offer responsible opinion testimony helpful to judge or jury may qualify as an expert witness.
In a case of dueling experts, it is left to the trier of fact—not the reviewing Court—to decide how to weigh the competing expert testimony.
Kiel Green fell to the ground after hitting the back of his elbow on a pallet of metal shelving while returning from a wooden wagon display containing beef jerky. At the time Green entered Atwood’s, Defendant was in the process of conducting a “reset” and various departments and merchandise were in the process of being rearranged. As part of the reset, a pallet of metal shelving had temporarily been placed near the beef jerky.
Kiel and Melissa Green filed this action against Atwood Distributing, L.P. seeking to recover for negligence and loss of consortium arising from this incident, and requesting both compensatory and punitive damages.
Plaintiffs argued that the Court should strike Speck-Kern as an expert witness because: (a) Speck-Kern did not send the raw data from her Rule 35 examination of Green to Green’s neuropsychologist until the day Daubert motions were due, violating Rule 26(a)(2)(B)(ii); and (b) Defendant failed to disclose a deposition given by Speck-Kern in the last four years, violating Rule 26(a)(2)(B)(v) while Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.
Psychology Expert Witness
Elizabeth Speck-Kern is the Founder and Partner of Arkansas Neuropsychology Associates, P.A. She performs neuropsychological, psychological, and forensic examinations on children and adults. She obtained her Ph.D. in School Psychology from the University of South Carolina.
Irmo D. Marini obtained his PhD in rehabilitation from Auburn University and a master’s degree in clinical psychology from Lakehead University in Thunder Bay, Ontario, Canada. He is a 2009 recipient of the National Council on Rehabilitation Education’s Distinguished Career Award in rehabilitation education, and 2010 recipient of the American Rehabilitation Counseling Association’s James F. Garrett Distinguished Career Award in rehabilitation research.
In response, Defendant filed an affidavit by Speck-Kern explaining these two lapses. The affidavit sets forth that Speck-Kern’s failure to timely transfer the raw data to Green’s neuropsychologist was the result of a series of increasingly unfortunate events.
Specifically, Plaintiffs’ counsel requested the raw data from defense counsel on February 7, the day after the Rule 35 examination, and defense counsel forwarded that request to Speck-Kern three days later. At that point, the raw data had not yet been compiled, and, unfortunately, Speck-Kern overlooked the emailed attachment that contained Plaintiffs’ request. As a result, the request went unanswered.
Subsequently, two months later—and approximately six weeks after the full disclosure deadline—on April 11, Plaintiffs’ counsel contacted defense counsel to explain that Green’s neuropsychologist never received the raw data and to renew his request. Defense counsel forwarded this second request to Speck-Kern on April 14. At that time, Speck-Kern and her assistant (the only other person in her practice) were dealing with multiple familial illnesses and deaths. Consequently, on May 5—the first day Speck-Kern and her assistant were both back in the office and the day Daubert motions were due—Speck-Kern forwarded the raw data to Green’s neuropsychologist.
As for Speck-Kern’s failure to disclose a prior deposition, she explained in her affidavit that, at the time she was retained and disclosed in this case, she did not recall any testimony she had given in the last four years. It was only when she reviewed Plaintiffs’ motion to strike and saw the attached portions of the testimony that she recalled the deposition.
Irmo Marini
Plaintiffs filed a motion to strike Marini as an expert on the basis that Marini has failed to disclose a list of all other cases in which he has been deposed or testified in the last four years under Rule 26.
However, Marini provided a list of all cases in which he has been retained—approximately seventeen pages long, mostly single spaced—in which he includes his client’s name, the type of opinion given, the attorney’s name, and the location.
While Plaintiffs argued that it did not denote which cases he offered testimony in, Defendant pointed out that Marini includes a “d” or “t” at the end of the client information for each case in which he testified.
Plaintiffs cited various out-of-circuit courts for the proposition that Rule 26(a)(2)(B)(v) requires the parties’ names, case number, court, and whether the testimony was by trial or deposition. There is no binding precedent on this matter, and “courts in this Circuit have not necessarily required such rigorous case data from experts, although this Court agreed that the sort of information required is largely ‘a matter of common sense.’”
Held
The Court denied Plaintiffs’ motions to strike the opinions of Elizabeth Speck-Kern and Irmo Marini. While Plaintiffs may seek leave to supplement their Daubert motion as to Speck-Kern—provided they file such motion within ten (10) days—the Court ordered Defendant to supplement Marini’s disclosures within fourteen (14) days.
Key Takeaway:
“When a party fails to provide information” under Rule 26(a), “the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” However, the exclusion of evidence is a harsh penalty and should be used sparingly.
Plaintiff Hui Wang brought suit against Omni Hotels Management seeking damages from a fall she suffered on September 25, 2018, in the lobby of the Omni New Haven Hotel at Yale. Wang alleged that she fell due to “water that had accumulated on the floor” and that Omni was negligent in allowing that water to accumulate and in failing to warn her about the slipping hazard.
Omni sought to preclude the admission of Douglas A. Fisher, a forensic engineering expert retained by the Plaintiff with more than 35 years of experience. Omni also sought to preclude Plaintiff’s expert, Dr. Brad J. Yoo, from offering opinions about the permanency of Wang’s injuries.
Forensic Engineering Expert Witness
Douglas A. Fisher is a forensic engineering expert with more than 35 years of diversified engineering experience in the fields of forensic evaluations, building design, and construction administration.
Brad Joonschik Yoo, MD is a board-certified orthopaedic trauma surgeon and Associate Professor of Orthopaedic Surgery and Rehabilitation. He specializes in treating severe fractures, post-fracture complications, as well as deformities and arthritis of the lower extremity.
Yoo graduated cum laude from Cornell University. He obtained his medical degree from New York Medical College where he first found his passion for orthopaedics. Next came a residency in Baltimore, MD at the University of Maryland Medical Center, the R. Adams Cowley Shock Trauma Center, and the Johns Hopkins Hospital. He then spent a fellowship year specializing in orthopaedic trauma at the University of Washington Harborview Medical Center in Seattle.
Fisher relied on his knowledge of the relative slipperiness of flooring materials under different conditions and industry standards for mitigating slipping risks. Fisher then applied this background to the video he saw and drew conclusions on that basis. In so doing, he relied on the coefficient of friction, “a numeric value that represents the amount of friction between two objects” as determined by a tribometer, as well as the American National Standards Institute guidelines for commercial entrance matting.
Omni sought to preclude three of Fisher’s opinions: (1) his “opinions regarding the cause of Plaintiff’s fall,” (2) his opinions regarding the proper placement of the floor mats in the Hotel lobby, and (3) his opinions regarding the characteristics of the Hotel flooring.
As to each, Omni raised essentially three challenges: (1) as it would be offered as an exhibit, Fisher’s export report contains inadmissible hearsay, (2) Fisher’s opinions are not based on sufficiently reliable methodologies, and (3) Fisher’s opinions are not likely to be helpful to the jury.
First, Omni objected to Fisher’s opinion that “‘Wang was caused to slip, fall, and become injured due to moisture on an exposed area of the marble tile flooring.’”
Omni also objected to Fisher’s further opinions that “‘[t]he Omni hotel failed to maintain the subject area in a safe condition,’” and “‘Omni failed to inspect the floor in order to prevent a hazardous and dangerous condition.’”
Analysis
The Court concluded that two of Fisher’s three opinions are admissible. In essence, Omni argued that determining what happened when Wang fell is so straightforward a task that a jury can review the video of her fall and other evidence and reach a conclusion as to the issues in dispute without the assistance of an expert. However, even if a jury could review the video and reach its own conclusions as to both (1) the cause of Wang’s fall and (2) whether the floor was maintained in a safe condition, the Court concluded that Fisher’s expertise as an engineer will assist the jury in that task and that these two opinions are based on sufficiently reliable methods and data to be admissible.
To the contrary, Fisher applied no particular expert methodologies to conclude that “Omni failed to inspect the floor in order to prevent a hazardous and dangerous condition.” Instead, the Court held that Fisher merely summarized testimony in the record from Omni employees and found that Omni’s employees perhaps could not have seen the front lobby well enough to look for liquid on the floor and may have failed to examine the lobby frequently on the day in question.
As for the issue of hearsay contained within his report, Plaintiff’s counsel indicated that he would have no issue redacting portions of Fisher’s report that contained hearsay. Because the Parties may be in agreement on a path forward regarding alleged hearsay in Fisher’s report, the Court need not resolve whether each potentially inadmissible statement in Fisher’s report meets Rule 703‘s standard.
Omni’s motion to preclude the permanency opinion of Yoo
Omni sought to preclude Yoo from offering opinions about the permanency of Wang’s injuries. Yoo last treated Wang in 2019 but only formulated his opinion as to the permanency of her disability in 2022 through his review of years-old medical records.
But Wang sought to offer Yoo to testify regarding a probable current disability. Yoo’s permanency opinion—formed separately from his treatment of Wang and on the basis of years-old information—cannot constitute the opinion of a doctor treating Wang, and, instead, would require a separate expert designation. Yoo conceded that because his opinion as to permanency was based on information at least five years old, he “did not know if Wang has any disability currently.”
As a result, the Court concluded that Yoo’s opinions as to permanency must be excluded and granted Omni’s motion to exclude this opinion from Yoo’s testimony.
Held
The Court granted in part and denied in part Omni’s motion to preclude the testimony of Douglas A. Fisher.
The Court granted Omni’s motion to preclude the permanency opinion of Dr. Brad J. Yoo.
Key Takeaway:
While expert testimony regarding the mechanics of a fall and industry safety standards and their supporting reasoning is more likely than not to help the jury resolve material issues in dispute, Fisher applied no particular expert methodologies to conclude that “Omni failed to inspect the floor in order to prevent a hazardous and dangerous condition.” The Court held that these conclusions are based on straightforward review of the evidence without application of particular “scientific, technical, or other specialized knowledge,” and therefore allowing Fisher to testify on this issue would impermissibly usurp the role of the jury.
This suit arises from a motor vehicle accident that occurred on September 7, 2018, in Vinton, Louisiana. Plaintiffs alleged that Billy Smith was operating a 2016 Kenworth T880 while traveling westbound on Interstate 10 on that date.
The vehicle was outfitted with Chinese-manufactured steel belt radial truck tires, distributed by CMA under the trade name “Double Coin tires.” The accident occurred when Smith’s tires suffered a catastrophic tread/belt separation, overturning the vehicle and severely injuring Smith. Smith passed away on September 4, 2021, and his surviving spouse and four adult children were substituted as Plaintiffs.
Defendants sought to introduce testimony from forensic pathologist, Dr. Franklin J. Peretti. Plaintiffs filed a motion to exclude that testimony under the standards set forth in Federal Rule of Evidence 702 and Daubert.
Peretti conducted the only autopsy on Smith. Plaintiffs did not challenge his qualifications but maintained that he lacked a sufficient factual basis for his opinions because he did not have Smith’s complete medical records when he conducted the autopsy.
Forensic Pathology Expert Witness
Dr. Franklin Joseph Peretti is a forensic pathologist with over 30 years of experience. He has served as associate or assistant medical examiner for the Arkansas State Crime Laboratory, the Baltimore Office of the Chief Medical Examiner, and the Rhode Island Medical Examiner’s Office.
Peretti admitted at his deposition that he was not given any medical records or history at the time of the autopsy. Since that time, and before his deposition, he reviewed the death certificate provided by Calcasieu Parish coroner Dr. Terry Welke (who performed a limited post-mortem examination in lieu of an autopsy), the report of Plaintiffs’ treating neurologist Dr. David Weir (who did not examine Smith after his death), and the report and deposition of Plaintiffs’ consulting neurologist, Dr. Ian Hood (who never examined Smith).
He admitted that all of the information with the exception of Hood’s report was only provided to him on the morning of his deposition. He also admitted that it was “sort of an unfair autopsy” because he lacked any information at the time, including the death certificate.
Because of the lack of medical history, he did not fix the brain in formalin and perform a neuropathic examination. He advised, however, that he was not adverse to changing his opinion on a cause of death if provided with sufficient evidence. He found no basis in the reports provided to do so.
Analysis
Drs. Hood, Weir, and Welke came to a different conclusion on Smith’s cause of death, and will be able to defend that conclusion at trial based on their familiarity with the alleged progression of Smith’s neurological injury if properly qualified. But Peretti is a qualified forensic pathologist and performed the only autopsy in this matter.
He examined Smith’s brain and, even after reviewing the relevant medical opinions, found no basis to change his conclusion. Plaintiffs may cross-examine him as to the sufficiency of his autopsy and what findings he might have missed without a neuropathic examination. The Court held, however, that they failed to show that his conclusions were so unfounded as to provide no aid to the jury under Rule 702.
Held
The Court denied the Plaintiffs’ Daubert motion to exclude the testimony of Defendants’ expert Franklin Peretti.
Key Takeaway:
Peretti did not have Smith’s complete medical records when he conducted the autopsy. He admitted as much. However, Peretti examined Smith’s brain and, even after reviewing the relevant medical opinions, found no basis to change his conclusion. Peretti is, after all, a qualified forensic pathologist and performed the only autopsy in this matter.
Rejection of expert testimony is the exception rather than the rule, and the court’s role as gatekeeper “does not replace the traditional adversary system and the place of the jury within the system.”
Please refer to the blog previously published about this case:
This action arises from the pled sexual assault of Plaintiff Margaret Betts by a massage therapist during an in-room massage appointment at Sixty LES, a hotel owned and managed by Defendants Sixty Lower East Side, LLC, Sixty Hotels, LLC, and Sixty Hotel Manager, LLC.
Plaintiff has proffered two expert witnesses, Dr. Steven A. Fayer and Dr. Joseph Otonichar, to testify at trial that the Plaintiff’s assault resulted in lasting psychological injuries, including symptoms of post-traumatic stress disorder (“PTSD”). Defendants, meanwhile, have proposed to offer one expert witness, Dr. Julie C. Medlin, to testify at trial that the Plaintiff’s assault did not significantly impact her pre-existing psychological symptoms.
The parties have each filed motions in limine seeking to preclude the opposing party’s proposed expert witnesses from testifying at trial.
Psychiatry Expert Witnesses
Dr. Steven Alan Fayer is an associate professor of psychiatry at The Icahn School of Medicine at Mount Sinai Hospital and an attending physician at The Mount Sinai Hospital. He received his M.D. from Georgetown School of Medicine and completed his residency in psychiatry at Mount Sinai Medical Center in New York City. He is certified by the National Board of Medical Examiners and the American Board of Psychiatry and Neurology.
Dr. Joseph Otonichar is a clinical assistant professor in the department of psychiatry at New York University’s Grossman School of Medicine, the medical director of Mental Health at NYC-HHC Correctional Health Services, and a co-partner at Gotham Forensics. He received a master’s degree in biology from Cleveland State University, and he subsequently received his D.O. from Midwestern University — Arizona College of Osteopathic Medicine. He is certified by the American Board of Psychiatry and Neurology in forensic psychiatry and is a diplomat of the American Board of Psychiatry and Neurology in Psychiatry.
Dr. Julie Christine Medlin is a licensed psychologist and the Director of the Medlin Treatment Center in Marietta, Georgia. She obtained her bachelor’s degree in psychology from Harvard University, and her master’s and doctoral degrees in clinical psychology from the University of Florida. Medlin specializes in assessments and conducts psychological, sexual trauma, psychosexual, and forensic evaluations.
Plaintiff’s Motion to Exclude the Testimony of Medlin
Plaintiff filed a motion to exclude Medlin’s testimony on the grounds that she: (i) lacked the qualifications to serve as an expert in this case; (ii) is not licensed to practice psychology in New York; and (iii) employed tests and techniques in her examination that were not subject to peer review and have not gained general acceptance in the relevant scientific community.
Julie C. Medlin
To begin with, Medlin’s curriculum vitae stated that she founded a private, outpatient counseling center more than twenty-five years ago to offer “specialized evaluation and treatment for sexual and physical trauma victims” and conduct “forensic and clinical evaluations of alleged or confirmed sexual abuse victims and perpetrators, including in criminal and civil cases.” The Court found that such work experience is directly relevant to the issues in this action.
Moreover, Medlin’s curriculum vitae stated that she is licensed with PSYPACT, an interstate organization that allows licensed psychologists to practice telepsychology and conduct temporary, in-person sessions across state boundaries. Medlin conducted her evaluation of Plaintiff in New Jersey, which is a participant in PSYPACT.
Medlin conducted the following psychological tests on Plaintiff: the Personality Assessment Inventory (PAI); Minnesota Multiphasic Personality Inventory-3 (MMPI-3); Trauma Symptom Inventory, 2nd Edition (TSI-2); and Inventory of Problems (IOP-29).
Although Plaintiff claimed that the validity of each test is disputed, Plaintiff’s motion failed to present sufficient evidence to support this assertion. Rather, a brief internet search suggested that, although some instability is inherent in any tests that involve self-reporting, the tests employed by Medlin were widely used and generally considered to be reliable, including for diagnosing PTSD.
Finally, Plaintiff requested that Medlin be precluded from testifying about certain commentary concerning Plaintiff’s counsel that is contained in her report. While Medlin’s report certainly suggested that Plaintiff’s counsel exhibited unprofessional behavior during both of Medlin’s examinations of Plaintiff, at this stage the Court agreed that the admission of such information is not directly relevant to the issues to be presented at trial.
Defendants’ Motion to Exclude the Opinions of Fayer and Otonichar
Defendants filed a motion to bar the admission of testimony by Fayer and Otonichar under Daubert or, alternatively, requested that the Court order a Daubert hearing to determine the reliability of their testimony.
Joseph Otonichar
First, the Defendants contended that Otonichar’s credentials “simply do not meet the standard” set forth in Rule 702(a). With Otonichar’s advanced education in psychiatry and his work experience, including as Medical Director of Mental Health at NYC-HHC Correctional Health Services and Clinical Assistant Professor in the Department of Psychiatry at New York University School of Medicine, the Court disagreed.
The Defendants further asserted that Otonichar’s methodology was unsupportable, claiming that he conducted two Zoom interviews of the Plaintiff in January and February 2024 lasting a combined total of four hours and “has not spoken to or engaged in any conversation” with the Plaintiff since that time. However, in preparing his written report, Otonichar reviewed: (i) psychiatric treatment records of Dr. Robert A. Reff, M.D. between July 2016 and January 2024; (ii) psychiatric treatment records of Dr. Wilson between August 2016 and January 2024; (iii) the psychiatric examination report of Fayer dated November 9, 2021; (iv) testimony and exhibits from the deposition of plaintiff on January 8, 2021; and (v) the pleadings and procedural filings in this action.
Finally, the Defendants asserted that Otonichar’s report contains “no opinion on the issues of causation or permanency,” and that he must be precluded from offering opinions to the jury on those issues. The Court disagreed because Otonichar clearly addressed both causation and permanency in his report. Specifically, he stated that Plaintiff experienced a “new type of anxiety” as a result of the assault, which took the form of a “fear of intimacy and romantic relationships.”
Steven A. Fayer
Next, Defendants contended that Fayer must also be precluded from testifying at trial, asserting that his proposed testimony did not meet the requirements of Rule 702(b-d).
First, Defendants asserted that Fayer’s methodology was insufficient, contending that he: (i) interviewed Plaintiff for a total of four hours via Zoom on September 29, 2021 and October 20, 2021, and has had no further contact with Plaintiff or reviewed any additional medical records since that call; (ii) did not review medical records from Plaintiff’s primary treating psychologist after December 15, 2020 or records from Plaintiff’s primary treating psychiatrist covering the four treatment sessions immediately preceding the assault, and did not review the records of Plaintiff’s second treating psychiatrist, Dr. Wilson, or her other medical providers; and (iii) did not administer any tests in evaluating Plaintiff’s psychological condition. However, a review of Fayer’s report indicated that he based his diagnosis of Plaintiff’s mental health conditions on his own examinations of Plaintiff and a review of her psychiatric treatment records with Robert Reff.
Defendants further argued that Fayer’s expert report contained “no opinion on the issues of causation or permanency,” and that he must be precluded from offering opinions to the jury on those issues. However, Fayer stated that, as a result of the assault, Plaintiff developed “trauma-induced anxiety with features of posttraumatic stress” including “flashbacks, dreams, negative thoughts, avoidance, and isolation.” As a result, the Court held that Fayer’s report adequately addressed both causation and permanency.
Rule 403
Finally, Defendants contended that the testimony of Fayer and Otonichar should be precluded or limited as duplicative under Rule 403, asserting that both witnesses “will present predominantly duplicative testimony.”
Because the two experts examined Plaintiff three years and five years after the assault, respectively, and are expected to testify regarding their separate conclusions with respect to Plaintiff’s psychological condition at each point in time, the Court held that the proposed testimony is neither cumulative nor duplicative.
Held
The Court denied the Plaintiff’s motion to exclude the testimony of defense expert, Dr. Julie C. Medlin as well as the Defendants’ motion to exclude the testimony of Plaintiff’s experts, Dr. Steven A. Fayer and Dr. Joseph Otonichar.
Key Takeaways:
Medlin offers specialized evaluation and treatment for sexual and physical trauma victims. Her work experience is directly relevant to the issues in this action. Moreover, even if it were not, an expert’s training need not narrowly match the point of dispute in the case.
Fayer’s opinion is grounded in a reliable methodology commonly accepted in the psychiatric community. Any concerns regarding the depth or form of his evaluation goes to the weight of his testimony, rather than its admissibility, and may be addressed on cross-examination.
Andrew Swainson filed a § 1983 claim against the City of Philadelphia. He challenged his 1989 conviction for Stanley Opher’s murder. He spent more than 30 years in prison. Swainson argued police officers fabricated and concealed key evidence. He said they created a false narrative of his flight to Jamaica. They also used a coerced eyewitness and ignored other suspects.
He claimed the City enabled this misconduct. According to Swainson, officials failed to train, supervise, or discipline detectives. That failure, he said, allowed unconstitutional practices to continue.
Swainson retained Michael K. Lynch as an expert in police practices. Lynch worked in law enforcement for over 30 years. In April 2024, he submitted a report. He reviewed police records, lawsuits, and prior wrongful convictions. Lynch found a pattern of misconduct inside the homicide division dating back to the 1970s.
The City and two detectives filed a motion to exclude Lynch’s report and testimony. They called it irrelevant and unreliable.
Law Enforcement Expert Witness
Michael K. Lynch has 32 years of experience in law enforcement. Since 2013, Lynch has been employed by the Camden County Police Department as assistant chief of police (2013-2014), senior policy advisor (2015-2023), and chief of staff (since 2023). As chief of staff, Lynch assists the chief of police in connection with accounting, human resources, procurement, administrative support services, and police records.
The court found that Michael K. Lynch was qualified to testify as an expert on police practices. Lynch worked in law enforcement for 32 years. He served in leadership roles in the Camden City and Camden County Police Departments. He also completed training at Northwestern University’s School of Staff and Command and the West Point Command and Leadership Program. Lynch investigated violent crimes and supervised misconduct cases. He also developed police policies on investigations, supervision, and training. The court ruled his experience met the expert qualification standard.
Reliability of Methods
The court next considered whether Lynch’s opinions were reliable. Because Lynch is not a scientist, the court looked at his experience and methods. Lynch reviewed police files, lawsuits, public records, and media investigations. He relied on his knowledge of minimally accepted police practices, such as avoiding coercion, fabrication, or suppression of evidence. The court rejected the defense’s claim that Lynch relied only on pleadings. It also allowed his use of reports by other experts and the City’s own oversight agencies. The court concluded his opinions rested on a reliable foundation.
Relevance and Fit
The court also ruled on whether Lynch’s testimony would help the jury. The defense argued his report restated Swainson’s version of events. But the court found that Lynch’s summary aligned with the factual record. Lynch outlined how PPD failed to meet basic standards of supervision and discipline. He also addressed misconduct by Detective Santiago and its possible impact on Swainson’s case. The court noted that Lynch’s opinions did not cross into impermissible legal conclusions. Instead, they reflected professional standards in law enforcement. The court found his opinions would assist the jury.
Held
The Court denied the City’s motion to exclude the testimony of Michael K. Lynch.
Key Takeaway:
The court upheld Michael K. Lynch’s qualifications, methods, and relevance as a police practices expert. It ruled that his experience, review of misconduct patterns, and analysis of departmental failures provided reliable, admissible testimony that could assist the jury in evaluating Andrew Swainson’s § 1983 municipal liability claim.
Case Details:
Case Caption:
Swainson v. City of Philadelphia
Docket Number:
2:22cv2163
Court Name:
United States District Court for the Eastern District of Pennsylvania
Louisiana Minerals, Ltd., as lessor, and Weyerhaeuser, as lessee, are the successors in interest to a 1986 Timber Sale and Lease Contract (“Contract”).
LML asserted that Weyerhaeuser has entered into a significant number of unauthorized third-party agreements that impinge upon or adversely affect LML’s rights under the Contract. Damages were sought for harm caused by Weyerhaeuser’s alleged breach of contract and a declaration of the parties’ rights under the Contract to preclude Weyerhaeuser’s “unauthorized” activity going forward.
LML retained Ms. Helga A. Zauner to calculate their alleged damages in this action. She produced two reports, the first on December 15, 2023, and a supplemental report on February 29, 2024. Weyerhaeuser filed a Daubert motion to exclude the opinions of Zauner on the basis that they are both irrelevant and unreliable.
Weyerhaeuser, on the other hand, retained Ms. Lesa S. Adair who rendered a rebuttal to Zauner’s first expert report. LML filed a motion to exclude the opinions of Adair on the basis that she is unqualified, her methodologies are unreliable, and her opinions are not based on sufficient facts.
Forensic Accounting Expert Witness
Helga Abreu Zauner, CVA, CFE, MAFF, is a testifying expert witness with 27 years of experience in litigation consulting, financial analysis, banking, research and teaching. She focuses on financial modelling and statistical techniques, with extensive experience in quantitative data analysis.
Zauner is recognized as a Certified Fraud Examiner (CFE) by the Association of Fraud Examiners and as a Certified Valuation Analyst (CVA) and Master Analyst in Financial Forensics (MAFF) by the National Association of Certified Valuators and Analysts. In addition, she has built a successful practice as an expert witness in personal injury, family law, and commercial litigation.
Lesa Shuyler Adair has a Bachelor’s Degree in Chemical Engineering and an MBA in Finance. She is a founder and principal of Pearson Adair & Co., and has more than 35 years’ experience in the energy industry. Adair also has served as an expert or consultant in many court and arbitration proceedings, assessing and analyzing damages in a variety of industries and contexts, including the oil and gas industry. She has written several energy related publications.
Weyerhaeuser asserted that Zauner’s testimony is irrelevant because her damage calculations were based upon third-party agreements selected by LML’s attorneys according to unknown and unverifiable criteria and because her calculations reflected a theory of disgorgement, which is not an available remedy for breach of contract under Louisiana law.
Having reviewed Zauner’s reports and the parties’ submissions, the Court found that Zauner’s testimony is relevant as it relates to and will aid the Court’s determination of damages. Zauner’s reports were based on assumptions of how the disputed facts might be resolved by the Court.
The third-party agreements that formed the basis of Zauner’s calculations were selected based on the assumption that they infringed on LML’s mineral rights. Her damage calculations were not based on a legal theory but were based on the assumption of what LML would have received from third parties in the absence of Weyerhaeuser’s third-party agreements.
Reliability
Weyerhaeuser contended that Zauner’s testimony is unreliable because she assumed breach of contract and causation of damages. Moreover, Weyerhaeuser argued that her extrapolation methods were faulty, she made unspecified corrections in her second report, she failed to consider Weyerhaeuser’s offsetting damages, and her analyses were based on LML’s counsel’s selection of agreements based on undisclosed criteria.
The Court disagreed with Weyerhaeuser’s assertion that there is “an unbridgeable gap” between Zauner’s opinions and the evidence in this case. Whether there is a breach of the contract that caused any damage to LML are core facts in dispute in this action. Moreover, Zauner’s calculations were not based on facts contradictory to the evidence in the record, but instead relied on assumptions of facts in dispute. In other words, the Court declared that Weyerhaeuser’s objections to Zauner’s opinions on the grounds of unreliability were ultimately rooted in the bases and sources of her opinions.
Adair Motion
First, LML claimed that Adair is not qualified to rebut the conclusions of Zauner, who is a credentialed forensic accountant. LML alleged that Adair is not qualified because she is not a forensic accountant and holds no licenses, certifications, or formal training in accounting.
Moreover, LML stated that no one on Adair’s analytical team holds any type of license or certification in accounting. LML also asserted that Adair lacked expertise in the subject matter of this case because she has never been retained by a timber company and there is no explanation of how her technical experience, as a chemical engineer, relates to her conclusions or how she applied her experience to the facts of this case.
Weyerhaeuser contended that this case did not involve forensic accounting, but a calculation of what third parties paid Weyerhaeuser for use of the surface. She was assisted by a team including a mechanical engineer, a financial analyst with an accounting degree, and a market research data analyst with a finance degree.
The Court found LML’s assertions that Adair is unqualified unconvincing. First, Adair herself has a master’s degree in finance and her team included others with a background in finance.
Further, the Court was persuaded by Weyerhaeuser’s argument that the damage calculations in dispute did not involve forensic accounting principles. Additionally, even though Adair has not been retained by a timber company before, her expertise in the oil and gas industry will aid the Court in resolving the disputed facts which form the basis of Zauner’s damage calculations.
Reliability
First, LML claimed that Adair’s report is unreliable because she only criticized Zauner’s opinion and did not conduct an independent analysis. LML also averred that Adair’s opinions are not based on sufficient facts and have not been reliably applied to the facts of this case.
The Court found that Adair’s critique of Zauner’s report was based on her independent analysis; further, any shortcomings of Adair’s analysis may be addressed on cross examination and will go to the weight of her testimony.
Held
The Court denied both Weyerhaeuser Company’s Daubert motion to exclude the testimony of Helga Zauner and Louisiana Minerals, LTD.’s Daubert motion—or, in the alternative, motion in limine—to exclude or limit the testimony of Lesa Adair.
Key Takeaway:
While expert testimony is rightly excluded where an expert’s opinions are based on such speculative assumptions or alterations of fact that the testimony is no longer relevant and would not materially assist the trier of fact, making factually supported and non-speculative assumptions does not constitute valid grounds for disqualification of an expert opinion.
Just as with Zauner, Adair has relied on assumptions — which agreements to include, the value of certain agreements, whether administrative fees should be included, and whether LML would have received the same payments that Weyerhaeuser received from third parties — of facts in dispute in this case.
Case Details:
Case Caption:
Louisiana Minerals Ltd V. Weyerhaeuser Company
Docket Number:
5:22cv145
Court Name:
United States District Court for the Western District of Louisiana, Shreveport Division
