Plaintiffs Lisa Brun and Daniel Brun ( collectively, “Plaintiffs”) brought this action against Defendants PeakCM Lake Street Hotel, LLP, d/b/a/ Hampton Inn (“Hampton Inn”), the City of St. Albans (“St. Albans”), Integrated Technical Systems, Inc. (“ITS”), Cross Consulting Engineers, P.C. (“Cross”), and Conner Communications, Inc. (“Conner”) ( collectively, “Defendants”) arising out of the injuries Ms. Brun sustained after an access gate at a parking garage owned and operated by St. Albans unexpectedly closed on Ms. Brun. As a result, Plaintiffs asserted a claim of negligence against Defendants.
Hampton Inn filed a motion in limine to exclude the testimony of Plaintiffs’ expert, George W. Melchior, R.A., P.E., with respect to any duty Hampton Inn had to warn Plaintiffs not to park in the garage.
Parking Expert Witness
George William Melchior, R.A., P.E. is a licensed architect and professional engineer with over twenty years of experience.
Through his experience as a Facilities Management Director for the Department of the Navy and as a parking consultant, Melchior has extensive experience operating and maintaining millions of square feet of parking facilities throughout the northeastern United States.
Hampton Inn argued that Melchior’s opinions must be excluded because they: (1) are “not made within his expertise as a Registered Architect and Professional Engineer”; (2) are irrelevant; (3) are not the product of reliable principles and methods reliably applied to the facts; and (4) improperly usurp the jury’s role in applying the law to the facts.
Analysis
Melchior’s opinion regarding Hampton Inn’s duty to Plaintiffs is grounded in his education and experience in operational risk management rather than his expertise in architecture and engineering.
Because the jury can determine for itself whether it was reasonable for Hampton Inn to direct Plaintiffs to the garage if it knew the garage prohibited or posed a danger to motorcyclists, Melchior’s opinion regarding Hampton Inn’s duty is not helpful to the jury, usurps the role of the Court, and is therefore inadmissible.
It is, after all, the Court’s responsibility to decide whether a duty exists.
Held
The Court granted Hampton Inn’s motion in limine to exclude the opinion of George W. Melchior.
Key Takeaway
It is the Court, not an expert witness, who instructs the jury on whether a duty exists and, if so, the law governing that duty.
Plaintiff, Amaris I Ward, who was seventeen years old during the events of this case, sought medical treatment at Madigan Army Medical Center (“MAMC”) over several weeks in October 2022.
Plaintiff alleged that emergency care providers at MAMC failed to properly evaluate and diagnose her with acute bacterial rhinosinusitis on October 16, 2022, which led to their failure to determine the extent of the sinusitis so it could be treated in a timely fashion. As a result, Plaintiff alleged that the bacterial infection progressed untreated for more than 30 hours, which caused permanent damage to the optic nerve in her left eye, resulting in permanent blindness in the left eye. Plaintiff alleged that these actions amounted to a breach of the standard of care of reasonably prudent emergency care providers when confronted with symptoms such as Plaintiff’s.
Defendants filed a motion to exclude the testimony of Plaintiff’s expert, Dr. Richard O. Cummins.
Emergency Medicine Expert Witness
Richard Oliver Cummins is board-certified in both internal medicine and emergency medicine.
He joined the faculty of the Department of Medicine at the University of Washington in 1981, and was promoted to the rank of full Professor in 1993. As a member of the Department of Emergency Medicine he worked as an attending physician in the UWMC Emergency Department, providing clinical care, supervising medical students and emergency medicine residents in training, as well as providing direct patient care.
Defendants argued that Cummins did not have the clinical experience or educational basis to anchor his causation opinion about the cause of Plaintiff’s infection.
The Court noted that Cummins is qualified to testify because he has been medical physician for several decades and is board-certified in both internal and emergency medicine.
Although he is not an infectious disease specialist, he is a board-certified emergency medicine physician with over 39 years of experience. To the extent there is a challenge to Cummins’ qualifications, the Court is satisfied he has demonstrated at least a “minimal foundation of knowledge, skill, and expertise required” to give expert testimony on the issues in this case.
2. Cummins’ methodology is not reliable
Defendants argued that Cummins opined that the failure to start Plaintiff on either levofloxacin or moxifloxacin on October 16, 2026 caused her permanent loss of vision—and argued that this opinion is unreliable.
According to Cummins, a “causal chain” of failures to comply with the standards of reasonable emergency department care led to Plaintiff’s vision loss. Within the “causal chain” was the failure to timely initiate “appropriate treatment,” otherwise identified as “appropriate intravenous antibiotics.”
Cummins determined from review of available records that Plaintiff’s left eye blindness was caused by “damage to her optic nerve (optic neuropathy) from her infectious sphenoid sinusitis,” which contained fusobacterium necrophorium. But nowhere in Cummins’ expert report or deposition testimony did he explain why or how the failure to diagnose Plaintiff with severe bacterial pan-sinusitis caused damage to her optic nerve.
Simply put, the Court cannot identify the generally accepted methodology Cummins used in arriving at his medical conclusions on causation. When asked how he reached the opinion that if physicians had given Plaintiff antibiotics on October, the antibiotics would have been effective to prevent Plaintiff’s vision loss, Cummins stated, “A general experience that antibiotics often work.” To the extent Cummins’ opinions are based on his general experience, he did not explain “how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Held
The Court granted Defendants’ motion to exclude the testimony of Dr. Richard Cummins.
Key Takeaway
A medical expert may rely heavily on their experience, but they must still explain their methods. Put differently, the opinion must describe a “methodology that can be challenged in some objective sense” because “a subjective, conclusory approach cannot reasonably be assessed for reliability.”
In October 2015, Apple expanded its restricted stock units (“RSU”) offerings to cover all employees working for the company—including those classified as non-exempt or eligible for overtime.
The Named Plaintiffs in this case all worked in jobs Apple classified as non-exempt or overtime eligible, which Apple pays on an hourly basis. Plaintiffs each received RSU awards from Apple. As a matter of policy, Apple did not include the value of the vested RSUs when calculating the regular rate for non-exempt/overtime eligible employees.
Plaintiffs brought this case to challenge that policy. In their view, RSUs should not be excluded from the regular rate of pay calculations under the FLSA, and they are therefore entitled to damages.
Plaintiffs’ primary expert witness, Dr. Dwight D. Steward, Ph.D., sought to provide a methodology to calculate damages should RSUs be incorporated into overtime calculations.
Apple, in response, brought two expert witnesses: (1) Dr. Valentin Estevez, Ph.D., who opined on Steward’s methodology and the feasibility of damages calculations; and (2) Barbara Baksa, who sought to compare RSUs to stock options and similar equity-based programs.
Named Plaintiff Francis Costa and Apple both filed motions to exclude the other party’s expert witnesses.
Economics Expert Witnesses
Dr. Dwight D. Steward holds a Ph.D. in Economics from the University of Iowa, and a B.A. in Economics from the University of Texas at Austin. He is the author of three professional economics textbooks and was previously a Senior Lecturer in the Economics department at The University of Texas at Austin and was a Visiting Assistant Professor in the Finance Department in the College of Business at Sam Houston State University in Huntsville, Texas.
Dr. Valentín Estévez has worked as a labor economics consultant and testifying expert in class action and single-plaintiff matters for clients in numerous industries.
Estévez performs economic and statistical analyses of employment discrimination claims in pay, hiring, promotions, terminations, and other employment actions and alleged violations of the FLSA and state wage and hour statutes, such as those in California, New York, and Massachusetts.
Barbara Baksa is the Executive Director of the National Association of Stock Plan Professionals (NASPP).
Baksa began her career in equity compensation more than 20 years ago. She is a member of the Curriculum Committee and the Advisory Board of the CEP Institute at Santa Clara University and an Executive Fellow of the Institute for the Study of Employee Ownership and Profit Sharing at Rutgers University School of Management and Labor Relations. Baksa has a BA in English from the University of Iowa.
If two contradictory expert witnesses can offer testimony that is reliable and helpful, both are admissible and it is the function of the finder of fact, not the trial court, to determine which is the more trustworthy and credible.
The Court refused to exclude the testimony of Steward and Estevez because both parties raised issues of credibility that are “within the province of the jury.”
The more pertinent question concerns the report written by Apple’s second expert, Barbara Baksa. Costa maintained that Baksa’s report must be excluded because Baksa is “not qualified to testify as an expert on the issues the Court must decide in this case,” and that “Baksa’s opinions are not reliable or relevant, but rather, seek to advance improper legal conclusions and advocate for change in the law.”
1. Qualifications
Plaintiffs attacked Baksa’s qualifications on multiple grounds. First, they noted that the NASPP, for which Baksa works, “profits from companies that have equity compensation programs by providing them with resources and conferences.”
Plaintiffs’ arguments are not well taken. Baksa’s work with the NASPP and on the CEP advisory board do not disqualify her from testifying in this case on the matter of equity awards. Membership in the same professional organization with a party does not create an impression of possible bias.
Additionally, that Baksa lacked robust experience with legal cases did not disqualify her from providing expert testimony in this matter. Baksa has significant experience dealing with equity-based awards, of which she is being introduced to testify.
These qualifications render her able to testify about the “economic characteristics of RSUs and equity award practices in order to inform the factfinders’ determination on the merits of Apple’s argument that RSUs are excluded from the regular rate of pay under the equity exception.”
2. Reliability and Relevance
a. FLSA and Congressional Intent
Plaintiffs argued that Baksa’s “beliefs about what the FLSA should exclude are irrelevant because the FLSA’s stock exception does not include RSUs as one of the three stock programs that may be excluded.”
Whether the value of vested RSUs is excludable from the regular rate under the so-called “equity exclusion” under the FLSA is central to this case. Apple argued that to reach this answer, a “factfinder will need to determine whether Apple RSUs have the characteristics necessary to exclude them from the regular rate of pay, including under the equity exclusion,” which Baksa’s report “squarely addresses.”
Plaintiffs argued that Baksa is going further than just providing factual background: instead, they claimed that Baksa “speculates” on Congress’s intent in amending the FLSA, as well “advances the legal conclusion that RSUs are ‘discretionary awards’ and labels them ‘discretionary equity vehicles.’”
As a professional in compensation, the Court held that Baksa is entitled to present her analysis on the historical development of RSUs. Indeed, her opinions concerning the similarities between RSUs and stock options, as well as other equity-based programs, are important in resolving the dispute in question. But her analysis of the legislative history of the FLSA constitutes a legal opinion that she is not qualified to opine on (nor was she retained to provide).
b. Company Reactions to Vested RSUs
In her report, Baksa noted that should RSUs be included in overtime payment calculations, “public companies will likely cease offering equity awards to non-exempt employees,” which would “introduce significant volatility into overtime wages, which must be paid in cash.”
Plaintiffs claimed that this testimony is “unsubstantiated speculation” that is “not reliable and has zero relevance to the issues the Court must decide in this case.”
The Court agreed and excluded Baksa’s opinions about how companies may react to vested RSUs being incorporated into employee overtime pay calculations.
c. Apple’s Practices as Compared to Other Companies
Plaintiffs filed a motion to exclude Section 4 of Baksa’s report, entitled “How Apple’s Practices Align with Other Public Companies.”
There, Baksa noted that Apple’s equity practices “align with those of other technology companies,” as well as “those of stock options granted by public companies.”
Plaintiffs objected to this section on grounds of relevance, as “Apple cannot demonstrate how other companies’ pay practices are relevant to whether the law demands that Apple include vested RSUs in the regular rate.”
Because this section is marginally relevant to the issue of wilfullness and good faith, the Court declined to exclude it.
Held
The Court denied both parties’ motions to exclude expert witnesses, except for Plaintiffs’ motion to exclude portions of Barbara Baksa’s report.
Key Takeaway
Expert opinions must be excluded if rooted in “unsubstantiated speculation and subjective beliefs.” Basically, Baksa’s testimony appears focused on the potential policy consequences of plaintiffs’ interpretation of the FLSA, not what RSUs are or how they function.
Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”), and Defendant West Town Bank & Trust (“WTB”) held a Deed of Trust and Promissory Note secured by the Hotel and the BPP, as well as a personal guaranty from Charm’s sole owner and member, Param Kaur.
West Town Bank and Javed filed a motion to strike Plaintiff’s rebuttal expert, Brian P. Worthington.
Law And Legal Expert Witness
Brian Paul Worthington is a 1991 graduate of the University of Wisconsin, and a 1995 graduate of the University of San Diego School of Law. He was a partner at Wingert, Grebing, Anello & Brubaker, and then Ryan, Mercaldo & Worthington before starting a solo practice in 2012.
WTB argued that Worthington, in his expert report, offered nothing more than improper legal conclusions about his interpretations of the insurance policy and the application of NRS 40.455.
Here, Worthington opined that WTB is not entitled to receive policy benefits under the insurance policy based on the language in the loss payable provisions endorsement because it no longer has a financial interest in the property. This is a legal conclusion because it improperly interpreted the insurance policy.
Moreover, Worthington’s opinion is devoid of any discussion on industry standards, claims-handling practice, underwriting customs, etc.
Worthington further opined that “the ‘entire’ debt was eliminated, extinguished, and forever barred from collection when the deadline in NRS 40.455(1) elapsed” and that “once the sixth-month deadline in NRS 40.455 passed with no deficiency action, Charm Hospitality’s debt to WTB was extinguished and WTB ceased to have any financial interest in the insurance proceeds.” Again, this is improper because it applies the relevant law to the facts and draws a legal conclusion regarding extinguishment of the debt.
Accordingly, the Court struck Worthington’s opinion interpreting the insurance policy and applying NRS 40.455.
Held
The Court granted WTB’s motion to strike Plaintiff’s rebuttal expert Brian Worthington.
Key Takeaway
Expert testimony cannot be used to provide legal meaning or interpret the policies as written. In other words, expert testimony which purported to interpret a statute and opine as to whether it was violated was an improper legal conclusion.
Crestbrook Insurance Company, as subrogee of Central Prairie Co-Op, sued Ecolab, Inc., for negligence and breach of contract.
This case is about a fire that destroyed a grain storage bin and its contents. Central Prairie is a Kansas grain cooperative that stores wheat and other grains in large bins at facilities across the state. In late October 2022, Ecolab—a commercial fumigation company—fumigated two bins at Central Prairie’s remote, unmanned site in Lyons, Kansas. Seventeen days later, a fire broke out in one of the bins, destroying the wheat inside and damaging the bin.
Crestbrook, which insured the property, paid Central Prairie $573,919.74 for the loss and, as subrogee, then filed suit, asserting claims for negligence and breach of an oral contract.
Ecolab’s phosphine product at issue here, VAPORPH3OS, addressed the flammability risk through its delivery system. Ecolab applied VAPORPH3OS using a machine called the HDS 200, which automatically dilutes the raw phosphine with carbon dioxide or forced air. The HDS 200 is engineered to ensure the delivered concentration never exceeds 10,000 parts per million—about 55% of the flammability threshold—and its built-in safeguards are designed to keep the concentration from ever crossing that line.
Between Crestbrook and Ecolab, the parties have filed four motions to exclude expert testimony. Crestbrook sought to exclude two of Ecolab’s experts, Benjamin Streifel and Jeffrey Tucker while Ecolab sought to exclude two of Crestbrook’s experts, Dirk Maier and Peter Dahl.
Chemistry Expert Witness
Benjamin Streifel is a chemist. He trained at Johns Hopkins University and has practiced in the field for more than fifteen years.
Dirk E. Maier is an agricultural engineer. He is a professor in the Agricultural & Biosystems Engineering Department at Iowa State University. Maier as worked with fumigation practices at different institutions for close to thirty years.
Ecolab retained Streifel to address the chemistry, properties, and behavior of phosphine gas and phosphine-air mixtures in confined containers.
He offered four opinions. First, there is no evidence of phosphine separation or concentration once the HDS 200 mixes phosphine into air. Second, gravitational separation based on density alone, as hypothesized by Crestbrook, would require timescales exceeding the ten-day window between the bins’ unsealing and the fire. Third, gravitational separation at the applied concentrations would require length scales far exceeding Bin 2’s 100-foot height. Fourth, phosphine concentrations in grain bins naturally decrease, rather than increase, over time. Each of these opinions challenged Crestbrook’s core causation theory that residual phosphine could have settled and concentrated in Bin 2’s cone bottom to the level required for ignition.
Analysis
Crestbrook argued that Streifel’s opinions exceeded the scope of his expertise. In particular, it argued that his opinions are speculative and rest on unreliable methods because he has not worked with phosphine, performed a commercial fumigation, or formally studied conditions inside a grain bin. Crestbrook failed to explain how or why Streifel’s lack of these experiences undermines the reliability of his analysis or methodology.
Crestbrook next argued that Streifel conducted no independent investigation and relied “exclusively” on information Ecolab supplied. Streifel reviewed the HDS 200 Operator’s Manual, the Fumigation Management Plan, the VAPORPH3OS product label, depositions from those involved with the fumigation, and forty other sources, including fifteen peer-reviewed publications on phosphine and gas diffusion.
Crestbrook also argued that Streifel did not engage with the scene investigators, did not attend a scene examination, and did not attend a lab examination. Ecolab noted, and Crestbrook did not deny, that scene investigators photographed and measured the empty bin, electrical equipment, and charred aeration fan. At the lab, they examined the removed fan for signs of fire origin. Crestbrook made no concrete argument why Streifel had to experience this in person and could not rely on the recorded observations.
Crestbrook’s last set of critiques concerned Streifel’s understanding of the HDS 200 on two grounds. First, Crestbrook argued that Streifel’s opinions were unreliable because they rested on a capability the HDS 200 did not have, namely, the ability to create a “new and stable gas.” But nowhere in his report did Streifel discuss this capability. And when the issue arose during his deposition, Streifel explicitly disavowed Crestbrook’s characterization of his opinion.
Second, Crestbrook argued that Streifel never inspected the HDS 200, never tested its output, and never reviewed maintenance or calibration records to confirm it operated as designed. But this conflates the issue. Streifel did not opine on whether the HDS 200 worked as intended, and, notably, his analysis took into account malfunction scenarios.
The Court found that none of Crestbrook’s challenges to Streifel’s opinion show that his opinion must be excluded.
Jeffrey Tucker
Crestbrook sought to strike Tucker’s opinion that the industry standard for commercial fumigators is to follow the EPA label physically attached to or accompanying the pesticide at the time of manufacture, rather than the most recently approved EPA label that may have been issued after manufacture.
Crestbrook first argued that Tucker’s opinion is “flatly contradicted” by federal and Kansas pesticide statutes. But this is not a basis for exclusion. The gist of Crestbrook’s argument on this point appears to be that because Tucker’s conclusion is wrong, his opinion is inadmissible. That argument failed to justify exclusion because the relevant inquiry is whether an expert’s principles and methods are reliable, not whether the moving party agrees with where those methods lead.
Crestbrook next argued that Tucker’s opinion is an impermissible legal conclusion that “invades the Court’s role” of instructing the jury on the law.
The bulk of Tucker’s challenged opinion is permissible. He described the training of fumigators and industry customs. He explained the practical reasons for that custom, namely, because labels do not always reach fumigators promptly after a new one is approved, and product purchased earlier may sit in inventory before use.
In his deposition, however—the testimony on which Crestbrook’s motion rests—Tucker more than once framed that custom in the language of legal obligation, veering into territory reserved for the court. Pressed by Crestbrook’s counsel, he stated that fumigators “are obligated to follow” the cylinder-affixed label and “are not obligated to follow the most recent EPA label.” Because those statements were elicited at deposition rather than offered as report opinions, the limitation is prophylactic.
The Court granted Crestbrook’s motion to exclude Tucker’s opinion to the extent that it treated the industry custom he described as a matter of legal obligation or compliance.
Dirk Maier
Maier offered an interlocking chain of opinions on causation. Specifically, he asserted that residual phosphine remained in Bin 2 after Ecolab unsealed it on November 1, 2022. Then, over the next ten days, the residual gas settled and concentrated in the bin’s cone bottom under the combined effect of natural convection and a day-night “pumping action” through the headspace. The concentration eventually reached phosphine’s 18,000-parts-per-million lower flammability limit and the gas then self-ignited and initiated a “slow pyrolysis” smoldering fire in the wheat surrounding the north aeration duct.
Maier also opined that Ecolab’s failures to monitor phosphine concentrations and to aerate Bin 2 upon unsealing constitute “violations of State of Kansas and federal law.” Maier’s causation chain provided the foundation of Crestbrook’s negligence theory by supplying chemistry and physics explanations for how residual phosphine settled and concentrated in Bin 2’s cone bottom to the ignition threshold during the ten-day window before aeration.
Analysis
Ecolab challenged Maier’s central causation theory. Specifically, it sought to exclude his opinion that residual phosphine, after Ecolab unsealed Bin 2 on November 1, 2022, settled by gravity and convection into the cone bottom of Bin 2 and concentrated to its 18,000 parts per million lower flammability limit during the ten-day window before aeration.
To begin with, Maier conducted no testing of the theory. Moreover, Maier admitted that he is aware of no peer-reviewed literature documenting gravitational concentration of phosphine within a grain bin. Furthermore, Maier’s own peer-reviewed work on phosphine, which he omitted from his report, undermined his opinion.
Ecolab next challenged Maier’s calculation that 2,280 grams of phosphine could reach 18,000 parts per million if concentrated into a volume of 3,165 cubic feet within Bin 2. First, it assumed that all 2,280 grams of phosphine introduced into Bin 2 on October 27 remained in the bin on November 1—an assumption Maier conceded is wrong and that he made no attempt to quantify. Second, the calculation’s premise that the gas was “trapped” or “contained” within a small subset of the bin’s interior—the 3,165 cubic feet of the cone bottom—had no basis in the record.
Ecolab’s third challenge concerned Maier’s opinion that once phosphine reached its 18,000 parts per million self-ignition limit in the cone bottom of Bin 2, it ignited and initiated a “slow pyrolysis” smoldering fire in the wheat surrounding the north aeration duct.
Maier admitted that he has done “no calculation, modeling, or testing to determine how much thermal energy would have to be given off by a phosphine gas ignition to in fact ignite wheat.”
Ecolab’s final challenge concerned Maier’s statements that Ecolab’s failure to monitor and failure to aerate “are violations of State of Kansas and federal law.”
The Court held that the legal-conclusion problem is properly remedied not by wholesale exclusion of the expert’s testimony but by exclusion of the offending statements. Maier remains free to testify—within the boundaries set above—about what the VAPORPH3OS label requires of a licensed fumigator, the industry custom for monitoring and recording phosphine concentrations during fumigation, the content of the Fumigation Management Plan Ecolab submitted, and the practical reasons that label requires the steps it does.
Peter Dahl
Dahl opined that the ignition source was a concentrated pocket of residual phosphine that, having settled at the lowest point in the north aeration pipe inside Bin 2, reached its 18,000-parts-per-million lower flammability limit and produced a momentary flame front that ignited adjacent wheat. Dahl’s specific-causation chain depends on the general-causation premise—that residual phosphine could and did concentrate to ignitable levels in Bin 2’s cone bottom—that he obtained from his conversations with Maier and his review of phosphine manufacturers’ Material Safety Data Sheets. Dahl conducted no independent research, testing, modeling, or peer-reviewed-literature analysis of phosphine settling, concentration, or the ignition mechanism his opinion describes.
Ecolab argued that Dahl’s causation opinion did not satisfy Rule 702 because it depended entirely on a general-causation premise that Dahl did not himself develop, but instead obtained from Maier.
The evidence on which Dahl relies for his causation case needs to be independently reliable. But, as noted above, Maier’s opinion as to causation—which forms the basis of Dahl’s own opinion—was not reliable. Without that foundation, Dahl’s causation analysis cannot stand and thus, the Court granted Ecolab’s motion to exclude his testimony.
Held
The Court denied Crestbrook’s motion to exclude Benjamin Streifel.
The Court granted in part and denied in part Crestbrook’s motion to exclude Jeffrey Tucker.
The Court granted in part and denied in part Ecolab’s motion to exclude Dirk Maier.
The Court granted Ecolab’s motion to exclude Peter Dahl.
Key Takeaway
An expert may testify where the subject is within “the reasonable confines” of his expertise even if he lacks specialization in the precise application.
While testing is not required, when an expert relies on a novel theory and the basis for the expert’s opinion is subject to debate, the importance of testing as a factor in determining reliability is at its highest.
This case concerns Plaintiff Alison Kareem’s facial and/or as applied constitutional challenge to “ballot selfie” laws, a categorization of long-standing prohibitions on displaying election ballots. With fingertip access to smartphone cameras, voters can take pictures of their completed ballots and immediately post them on social media sites. This action and the statutes come under review.
Kareem asserted that the laws did not satisfy the requisite level of scrutiny and are overbroad.
Plaintiff contested the Court’s ability to consider the report of Dr. E. Scott Adler, the State’s expert, arguing that it is not admissible and did not satisfy the Daubert factors.
Political Science Expert Witness
Prof. E. Scott Adler received his Ph.D. in Political Science from Columbia University in 1996, and has been teaching in the Department of Political Science at the University of Colorado Boulder since 1996. Adler’s specialty is American politics, with a focus on the U.S. Congress, congressional organization and reform, elections, and constituencies. Since 1992, he has taught general courses in American politics, including the history, administration, and implications of elections and voting.
According to Adler, protecting the secrecy of the individual vote has been a central tenet of electoral law in nearly every state in the U.S. for well over a century. The long-held importance placed on election ballot secrecy in democracies has been motivated by three primary aims: protecting the right to privacy of personal political beliefs; discouraging the use of coercion against voters; and preventing vote buying.
Adler also clarified that employer-induced political activity is relatively common in contemporary America.
Plaintiff contended that the report reflected Adler’s personal opinions; relied on anecdotal evidence; is not supported by “legitimate methodology;” has not been peer reviewed; and failed to consider other potential causes or remedies.
Adler draws from a range of historical sources and contemporary research related to election privacy and integrity, which is sufficiently more than anecdotal evidence.
The Court found that his methodology is an accepted approach in the field of political science, which reliably supports his opinions.
Held
The Court did not discount or exclude Dr. E. Scott Adler’s expert report.
Key Takeaway
In making such determinations, courts consider a non-exhaustive list, known as the Daubert factors, which include testing, peer review, publication, known or potential error rates, and “general acceptance within a relevant scientific community.”
But the Daubert factors are not a checklist, and the reliability inquiry can depend on “the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”
Plaintiff Charm Hospitality, LLC filed this lawsuit alleging, inter alia, legal malpractice against Defendant Nohayia Javed, Esq. Specifically, Charm made various allegations, in which it contended that Javed fell below the standard of care in her representation of Charm in connection with her prosecution of an insurance claim relating to water damage sustained at a Hotel owned by Charm in Elko, Nevada. The Hotel and the business’ personal property (“BPP”) were insured by General Security and Indemnity Company of Arizona (“GSICA”).
Javed filed a motion to strike Plaintiff’s expert, Rob Bare.
Law And Legal Expert Witness
Rob Bare worked at the State Bar of Nevada for 17 years (and as the chief attorney for 15 of those years), in which he prosecuted and tried 870 disciplinary hearings.
A graduate of the University of Pittsburgh School of Law, he also served as a judge in Department XXXII of the Nevada Eighth Judicial District Court.
Javed argued that Bare is not qualified to testify because he lacked knowledge and experience in the areas of law that are relevant to the underlying action. She contended that Bare has no experience performing client conflicts, prosecuting first-party insurance claims, or handling commercial litigation.
Bare opined that Javed (1) breached the duty of competent and diligent representation by failing to research Nevada and Illinois law prior to advising Charm that West Town Bank needed to be a co-client; (2) breached the duty of communication by failing to advise Charm that (a) Javed was not licensed to practice law in Nevada or Illinois, (b) Charm may not receive proceeds under the policy; and (c) West Town Bank could be made a co-claimant; (3) failed to provide a facially valid conflict waiver by not identifying the potential conflict regarding division of proceeds; (4) breached the standard of care by disbursing the settlement payment without Charm’s consent or a court order; and (5) charged unreasonable attorney’s fees and potentially excessive costs.
Bare’s above opinions are closely related to the rules of professional conduct and his ample experience and knowledge regarding the duties of communication, competence, and diligence, as well as client conflicts. This Court further noted that Bare presided over 15,000 civil and business cases during his tenure as a state court judge for 10 years. This, combined with his 17 years of experience with the rules of professional conduct, make it “more likely than not” that Bare’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”
C. Bare’s opinion is supported by sufficient facts or data
Javed argued that Bare’s opinion is not based on sufficient facts or data because he did not independently analyze the underlying loan documents or the insurance policy.
Bare’s opinion is based on what Javed did or did not disclose to Charm (given Charm’s version of the facts). He did not need to review the loan documents or insurance policy to form this opinion. In addition, it appeared that he did review the fee contract. Based on the scope of Bare’s opinion, the Court cannot say that his opinion was not based on sufficient facts or data merely because he did not review the loan documents or insurance policy. In sum, it is more likely than not that his above opinions were based on sufficient facts or data.
As for Javed’s argument regarding the personal guaranty, this argument is based on disputed facts. As the parties have repeated throughout this litigation, much of this case comes down to a he-said-she-said scenario. This Court will not choose between the parties’ competing version of the facts at the admissibility stage.
D. Bare’s opinion that the GSICA insurance payment was uncontested is not reliable
Javed argued that Bare’s opinions on the alleged breaches of duties owed by her to Charm are not reliable.
First, Javed argued that Bare did not explain what, if anything, would have changed about Charm’s position if she had researched Nevada or Illinois law. Second, Javed argued that she had no reason to tell Charm that she was not licensed in Nevada because Charm’s representative already knew that. In his expert report, Bare stated that lawyers have a duty to familiarize themselves with factual and legal elements of a problem and that the facts did not show that Javed familiarized herself with Nevada or Illinois law. He further stated that Javed did not communicate to Charm that she was not licensed to practice law in Nevada or Illinois.
The Court found that Bare’s opinions are based in his experience with the rules of competence, diligence, and communication governing lawyer conduct. Javed did not contest that she did not familiarize herself with Nevada or Illinois law or that she did not tell Charm she did not practice law in Nevada or Illinois; rather, Javed is arguing that she did not need to do so because it wouldn’t have changed Charm’s position or because Charm already knew.
Third, Javed argued that Bare incorrectly opined that the GSICA’s initial payment under the policy was uncontested and thus her fees were excessive. Bare identified no facts underlying his “understanding” that the insurance payment was uncontested, nor can the Court find any in his expert report.
Fourth, Javed argued that Bare incorrectly opined that she disbursed payment without Charm’s knowledge or consent. Javed is merely disputing the conclusion Bare reached, which is not a reason to strike his opinion at the admissibility stage.
E. Bare’s opinion regarding forfeiture and damages will be stricken as improper legal conclusions and opinions
Javed argued that Bare’s opinion that her fees are subject to forfeiture is an improper interpretation of the law. The Court agreed. Expert witnesses cannot opine as to legal conclusions, i.e., an opinion on an ultimate issue of law and Bare’s statement that Javed should be required to forfeit some if not all of her fees is a legal conclusion.
Held
The Court granted in part and denied in part Javed’s motion to strike the testimony of Rob Bare.
Key Takeaway
The Court has broad discretion to qualify experts. Bare’s extensive experience with the rules of professional conduct make it more likely than not that his experience and knowledge will help the trier of fact determine whether Javed violated one of those rules.
This medical-negligence/wrongful-death case resulting from the tragic death of Formeka Ball. Ms. Ball was admitted to the River Oaks Hospital Emergency Room complaining of chest pain and shortness of breath that started earlier that morning. After she died, Plaintiff Patricia Ball, Ms. Ball’s mother and the administratrix of her estate, sued River Oaks.
Todd Allen Parker is a board-certified emergency-medicine physician and an attending physician. He is an editor and chapter author of a major Emergency Medicine board review textbook published by the American Academy of Emergency Medicine.
Ronald Howard Wharton is board certified in cardiovascular disease, completed a residency in internal medicine and a fellowship in cardiovascular disease, and is an associate professor of cardiology at the Zucker School of Medicine of Hofstra University in New York.
He is also an attending cardiologist at a hospital in Manhasset, New York.
Defendants mostly accepted their qualifications but said that their testimony is unreliable and thus inadmissible under Federal Rule of Evidence 702.
Parker and Wharton offered similar core opinions. Though Ball was given a troponin test in the ER to determine whether she was having a heart attack, they believe she should have received a second troponin test after more observation. Had that test been done, they believe it would have detected the need for additional treatment and that she would not have died from cardiac arrest later that night.
1. Speculative and Conclusory Opinions
Both Parker and Wharton offered opinions on the standard of care, breach, and causation. According to Defendants, Parker and Wharton failed “to take into account facts established by the family members’ depositions” regarding the onset of symptoms and have “no autopsy, no abnormal EKG, and no abnormal laboratory testing which factually supports the experts’ opinions.”
Parker’s initial report indicated that Ball “presented to the ED with a history & physical that is a ‘textbook’ case of how cardiac ischemia presents.” He then described that history and those symptoms, including Ball’s score on a clinical guideline (the HEART score and Heart pathway).
Parker also conducted a differential diagnosis, ruling in cardiac arrest and ruling out other causes of her symptoms. The Court found the methodology sufficiently reliable to meet Plaintiff’s burden under Rule 702.
According to Defendants, Parker and Wharton missed evidence and had no autopsy to consider. Neither is dispositive. Because Plaintiff met Rule 702’s burden, Defendants’ other factual arguments go to weight.
2. Wharton’s Qualifications
According to Wharton, Ball would have survived if given treatment, including “medications and reperfusion therapy (either percutaneous coronary intervention or bypass surgery).”
Defendants said that Wharton is unqualified to give this opinion because he is neither an interventional cardiologist nor a cardiovascular surgeon.
Even assuming he did not currently perform the procedures he noted, Defendants have not explained why a cardiologist with his knowledge, skill, experience, training, and education would lack the expertise to explain how heart attacks are treated.
Defendants next complained that Wharton lacked the qualifications to agree with the coroner’s finding that cardiac arrest caused the death.
This was a new argument. While Wharton addressed the issue again in his new affidavit, his original report noted the coroner’s finding and stated that “more likely than not, Ball died from complications of an acute myocardial infarction.” Thus, Defendants could have initially argued that Wharton needed to be a pathologist to testify regarding the cause of death. That argument would have allowed Plaintiff an opportunity to respond.
This qualifications argument is untimely, and the Court will not strike Wharton based on qualifications.
3. Failure to Identify Specific Life-Saving Treatment
After arguing that Wharton is unqualified to address the specific procedures he believes would have saved Ball, Defendants fault Plaintiff’s experts for failing to “establish that timely diagnosis would have led to an identified course of treatment and that treatment would more likely than not, have prevented death within the relevant time window.”
But the experts’ initial reports did not mention specific treatment, so Defendants could have faulted the experts for this omission in their opening brief. The argument is therefore untimely.
Held
The Court denied the Defendants’ motion to strike the testimony of Todd Parker and Ronald Wharton.
Key Takeaway
The Court should make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.
Case Details:
Case Caption:
Ball V. River Oaks Hospital, LLC
Docket Number:
3:24cv632
Court Name:
United States District Court, Mississippi Southern
Sentara Health (“Sentara”) sponsored the Sentara Health 403(b) Plan (“Plan”) – a defined contribution retirement plan for its employees at its non-profit entities. Like virtually all such plans, it offered an array of investment options from which its employees can choose to invest a portion of their salary and company matching contributions. The Sentara Healthcare Fiduciary Committee (“Committee”) oversees the performance of the Plan’s investments. It does so, in part, by comparing the investments’ performance against market benchmarks and peer group investments. The Committee is assisted by an investment consulting firm, Aon Hewitt Investment Consultants (“Aon”), which recommends the benchmarks and peer groups, and provides the Committee with quarterly reports about the performance of all Plan investments. The investment at issue here is the Principal Guaranteed Interest Balance Contract (“GIBC”).
It consistently outperformed its benchmark and peer group, according to Aon’s quarterly reports. Plaintiffs alleged that they suffered losses as a result of their investment in the GIBC on the theory that the Committee breached its fiduciary duty by not monitoring the GIBC’s performance and by not replacing it with a similar investment that provided higher returns. For support, Plaintiffs proffered Matthew Eickman and Christian Toft as purported experts.
Sentara sought the exclusion of certain opinions and testimony of Eickman and Toft.
Employee Benefits Expert Witness
Matthew J. Eickman practiced employee benefits law for more than 21 years and worked with plans larger than $1 billion for more than 16 years.
From June 2012 through June 2024, he was an investment advisor representative (“IAR”) at Prime Capital Investment Advisors, LLC (“PCIA”). In his role as an IAR, he worked as a member of the investment consulting team for plans within a wide range of sizes, including those with less than $1 million in plan assets ranging up to those with several hundred million dollars in plan assets.
Christian David Toft has a degree in quantitative economics, and his relevant work experience includes sourcing and managing a portfolio of guaranteed investment contracts (GICs) like the GIBC on behalf of municipalities—including by participating in near-daily competitive bids for GICs—and participating in the implementation of a GIC-backed note program.
Sentara argued that Eickman’s opinions failed to raise a triable issue of fact because he is unqualified to opine on appropriate benchmarks and peer groups for investments like the GIBC.
Eickman worked as a retirement plan investment advisor at an Aon-analogous firm for 12 years—from June 2012 through June 2024—providing investment advice, IPS development and maintenance, committee governance and procedural oversight, and fiduciary training and education to defined contribution clients.
Eickman’s firm was “ultimately responsible” for coming up with benchmarks [or peer group comparisons] for clients’ investments, although the firm partnered with an outside provider “to ensure that those benchmarks were both available and capable of being applied on a consistent basis for reporting purposes.”
These experiences informed Eickman’s understanding of “industry standards for ERISA fiduciaries’ monitoring of stable value funds” and provided a sufficient basis for him to opine regarding whether the Defendants’ monitoring of the GIBC fell below the industry standard of care.
Sentara argued that Eickman’s failure to identify what a more prudent benchmark or peer group would have been means that his opinion will not assist the factfinder in evaluating the Defendants’ prudence.
Contrary to Sentara’s argument that Eickman was unable to identify an appropriate benchmark or peer group, Eickman clearly testified that the Committee should have “asked Aon to build a custom peer group that allows for comparison to other general account products that would’ve been available in the marketplace, 204 or 3(b) plan.”
Sentara also contended that the opinions expressed in Eickman’s rebuttal report are unreliable because the report “egregiously mischaracterizes” the opinions of Sentara’s rebuttal witness. The Court held that this is not an appropriate basis for a Daubert motion since the factual basis for Eickman’s opinion ultimately goes to the credibility of his testimony.
II. Christian Toft
Sentara argued that Toft is not qualified to render opinions on proper benchmarks and peer groups for measuring the performance of the GIBC because (1) Toft admits that he has no experience, knowledge, skill, education, or training in advising ERISA plan sponsors on such matters, and (2) Toft based his opinions about benchmarking on Eickman’s opinions rather than on his own analysis.
Based on the evidence before the Court, Toft has never performed work related to pension plan investments. More importantly, Toft has no knowledge or experience regarding the selection of suitable benchmarks or peer groups for a stable value fund.
Additionally, Toft lacked expertise related to the specific benchmark and peer group Sentara uses to monitor the GIBC’s performance. He admits he has no understanding of whether it is “common for stable value funds . . . to benchmark against a 90-day treasury.”
The Court decided that Toft has no relevant experience whatsoever in identifying appropriate benchmarks and peer groups. And Toft’s general familiarity with the concept of benchmarking did not render him an expert on the matter—something his “extensive experience working with GICs” did not change.
Held
The Court granted in part and denied in part the motion to partially exclude the testimony of Matthew Eickman and Christian Toft.
Key Takeaway
A review of Eickman’s report and the report of Sentara’s rebuttal expert indicated that the Plaintiffs have met their burden to demonstrate the reliability of Eickman’s methods by a preponderance of the evidence.
If the Defendants wish to challenge the credibility of Eickman’s assertion that prudence requires measuring performance against a custom peer group, they may do so on cross-examination.
Plaintiff Fernando Villanueva-Galvez claimed that Officer Eliseo Anaya’s use of a police canine to locate and arrest him constituted excessive force in violation of the Fourth Amendment.
Villanueva-Galvez proposed to present Ernest Burwell‘s testimony regarding police canine practices. Defendants did not challenge Burwell’s qualifications. Nor did the Defendants seek to preclude Burwell from testifying entirely. Rather, Defendants argued that Burwell should not be permitted to testify about legal conclusions regarding the severity and reasonableness about the use of force in this case, how disputed factual issues should be resolved by the jury, police canine practices for which he cites no reliable data or other support, and purported deficiencies in the City’s canine training and supervision practices for which he cites no relevant professional standards or reliable principles.
Law Enforcement Expert Witness
Ernest Burwell has decades of experience as a police officer, including twenty years of K9 handling and tactical training to K9 units. Burwell holds a POST Advanced Certification and even worked as a canine unit statistical data manager, keeping track of bite ratios, injuries, length of time the dog bit the suspect, and other information required by supervision, about the search, handler, dog, and suspect.
Defendants sought to exclude Burwell’s opinions regarding the lawfulness and reasonableness of the force used, specifically that Anaya’s deployment of a police dog here constituted “deadly force,” that the “type, degree, and duration of the force were unreasonable and excessive,” and that Anaya’s release of the dog was “unwarranted” and “excessive.”
Whether Anaya’s actions were “objectively reasonable” in light of the facts and circumstances confronting him is a question for the jury.
The Court has carefully reviewed Burwell’s expert report, and while the report did recite standards and best practices, the challenged opinions are not tied to those standards and practices. Instead, Burwell proposed to testify, categorically, that Anaya used “deadly,” “excessive,” “unreasonable,” and “unwarranted” force, without explaining what a particular standard requires and how such standard applies to a specific assumed or hypothetical factual scenario.
B. Interpretation of Disputed Facts
Defendants sought to exclude Burwell’s opinions regarding his interpretation of Anaya’s body-worn camera (“BWC”) video and other evidence in the record, arguing that such testimony usurps the fact-finding role of the jury.
As explained above, while it is generally permissible for an expert to testify about whether a specific set of assumed or hypothetical facts does or does not meet relevant standards, the challenged opinions are not tied to any such standards or set of facts. While Burwell included excerpts of different standards in his expert report, he did not link his opinions with any such standards or explain why particular assumed or hypothetical facts did not meet those standards.
C. Police Canine Practices
Defendants sought to exclude Burwell’s opinions that “many agencies are not using the police dog as it was intended” and that the “average length of time” of a police canine bite is “10 seconds or less” as “unsupported by any reliable methodology and untethered to the facts of this case.” Villanueva-Galvez initially opposed Defendants’ motion and argued that Burwell’s opinions are based on “decades of law enforcement experience, advanced knowledge of POST standards, and specific work with K9 tactics.”
However, at the hearing, Villanueva-Galvez conceded that Burwell should not be permitted to testify that “many agencies are not using the police dog as it was intended” and that the “average length of time” of a police canine bite is “10 seconds or less.”
D. Severity of Force
Defendants sought to exclude Burwell’s opinion that the use of a police canine “is the most severe use of force of all the less lethal tools/options,” arguing that such testimony is not grounded in identifiable professional standards or reliable analysis.
The Court agreed. Burwell’s expertise on police-canine practices does not entitle him to tell the jury, as an expert, which non-lethal force is the greatest.
E. Training and Supervision
Defendants sought to exclude Burwell’s opinion criticizing the practice of using police canines generally and, in particular, his opinion that the City failed to properly train and supervise its canine handlers and ensure that handlers maintain control of their dogs.
The Court has carefully reviewed Burwell’s expert report. While the report excerpts certain standards from the SJPD Manual, the challenged opinion is not tied to those standards or explained. Instead, Burwell proposes to testify, categorically, that Ronin was not properly trained.
Held
The Court granted the Defendants’ motion to exclude the challenged testimony offered by Ernest Burwell.
Key Takeaway
It is generally permissible for an expert to testify regarding best practices and standards and whether an officer’s conduct complies with those best practices and standards. Such testimony could include whether deployment and handling of the police canine here did or did not comply with such practices or standards. The problem here is that it is not clear to the Court whether such an opinion is actually disclosed or on what basis Burwell intended to provide such testimony.
