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  • Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    Anesthesiology Expert Barred from Testifying About Alleged Strip Search

    The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

    Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

    Defendant sought to exclude or limit at trial the testimony of Plaintiff’s expert, Dr. Scott Allen. 

    Anesthesiology Expert Witness

    Scott Allen is a licensed medical doctor with specialization in anesthesiology. He has been board certified since 2017 by the American Board of Anesthesiology.

    Allen currently practices as an anesthesiologist with Mountain West Anesthesiology and has privileges at Intermountain Health Care, specifically at St. George Regional Hospital in St. George, Utah and Intermountain Medical Center in Salt Lake City, Utah.

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

    Discussion by the Court

    Plaintiff received multiple ketamine treatments at Allen’s clinic, starting on October 5, 2020, and met with Allen during at least three of her visits to the clinic.

    Allen was retained to testify that the Plaintiff’s arrest and the events surrounding it were extremely traumatic for her, leading to serious psychological and emotional issues.

    Plaintiff fails to demonstrate the reliability of Allen’s testimony for some of the matters for which he was designated as an expert

    The Defendant argued that Allen’s methods and opinions are unreliable because ketamine is not widely accepted as a standard treatment within the medical community. They also noted that Allen had only a few treatment sessions with the Plaintiff and based his understanding of her condition primarily on her ketamine treatment records.

    However, in his deposition, Allen explained that ketamine is a recognized treatment for certain medical and mental health conditions. He also testified that he used specific criteria and relied on sufficient facts to conclude that the Plaintiff exhibited symptoms consistent with anxiety, depression, or PTSD.

    Despite this, Allen did not provide an adequate basis to formally diagnose the Plaintiff with any medical or mental health condition. He also lacked personal knowledge of her arrest and alleged strip search. Ultimately, Allen did not diagnose the Plaintiff and cannot reliably determine the cause of her symptoms or the source of any diagnoses she may have received.

    Allen’s anticipated testimony, as limited in scope, is relevant and admissible

    The Defendant argued that even if Allen’s testimony meets the standards of Rule 702, it is irrelevant because it would not help the jury decide whether the Plaintiff was strip searched.

    Allen will not be allowed to testify that the strip search occurred or that it caused the Plaintiff to develop PTSD or any other medical or mental health condition. He also may not vouch for the Plaintiff’s credibility or state that he believes her version of events is true. However, this does not mean that his testimony is irrelevant to the issues at trial.

    Allen is permitted to testify about his direct observations of the Plaintiff during her ketamine treatments, as well as his communications with her during those sessions. Such testimony is generally not considered hearsay. If a proper foundation is laid and the testimony otherwise meets the requirements of the Federal Rules of Evidence, the Court held that Allen may also testify about general matters such as mental health diagnoses and the Plaintiff’s potential need for future ketamine treatments.

    This testimony is highly relevant to the issue of damages and may also be used to rebut the opinions and testimony of the Defendant’s expert, provided it meets evidentiary standards.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit the testimony of Dr. Scott Allen.

    Key Takeaway:

    It is important to note that Allen never diagnosed the Plaintiff with any specific medical or mental health condition. While he may speak generally about medical and mental health diagnoses, he is not permitted to testify or offer an opinion that the Plaintiff has, or is suffering from, any specific condition such as anxiety, depression, or PTSD.

    Please refer to the blogs previously published about this case:

    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Corrections Expert’s Opinions on the Strip Search Excluded

    Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 27, 2025
  • Lost Wages Expert’s Commission Calculations Admitted

    Lost Wages Expert’s Commission Calculations Admitted

    Jenessa Dubey was employed by Concentric Healthcare Solutions, LLC from August 2016 until her termination on December 2, 2021. She has filed a lawsuit against Concentric and Robert Bales, alleging sex-based discrimination, sexual harassment, and unpaid wages.

    The case focuses on Dubey’s claims that, over several years, Bales engaged in conduct that created a hostile work environment during her time at the company.

    Plaintiff retained a damages expert, Mr. Nathaniel Curtis, to calculate her lost earnings resulting from Defendants’ actions. As a result, Concentric and Robert Bales filed a motion to exclude Curtis under Federal Rule of Evidence 702 and Daubert V. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

    Lost Wages Expert Witness

    Nathaniel Curtis is typically engaged to analyze lost earnings related to complex labor discrimination and wrongful termination disputes.

    He holds an MBA, a Master’s Degree in Business Administration, and a Bachelor’s in “Business Ecology.” He serves as the Chief Financial Officer of a private engineering firm with over 150 employees based in Arizona.

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

    Discussion by the Court

    Curtis opined that the present value of Plaintiff’s lost earnings resulting from Defendants’ conduct is approximately $5.4 million as of January 1, 2024, based on documents produced by the parties, and information obtained from research efforts.

    Curtis is Qualified under Rule 702

    The Court found that Curtis is qualified to testify as an economics expert based on his education and professional experience. He holds an MBA in Business Administration and a Bachelor’s degree in Business Ecology, which satisfy the educational requirements under Rule 702. In addition, he has over ten years of experience providing expert analysis in similar cases. Therefore, the Court concluded that Curtis met the threshold qualifications to testify as an expert and will not exclude him at this pretrial stage.

    Whether Curtis’ Testimony Will Assist the Jury

    Defendants next argued that Curtis’ opinions about lost earning capacity are not helpful to the jury because the Plaintiff does not claim that her earning capacity was harmed. In response, Plaintiff contended that Curtis intends to testify only about the amount of her lost future earnings due to her wrongful termination by Concentric.

    There appeared to be a misunderstanding between the parties regarding the scope of Curtis’ intended testimony. In his report, Curtis stated that he was engaged to “calculate [Plaintiff’s] lost earnings resulting from Defendants’ actions as described in [her] complaint.” During his deposition, he was asked about the following statement: “[t]he relevant issue is [Plaintiff’s] earning capacity as a professional, not her earning capacity at Concentric.” When asked why her earning capacity at Concentric was not considered relevant, Curtis explained: “It’s not that it’s not relevant. It’s not the goal. The goal isn’t to say what she would have earned at Concentric. It’s to understand what her earnings capacity was.”

    The Court found that Curtis’ testimony will assist the jury because he will provide “knowledge beyond the trier of fact’s common knowledge.” The Defendants’ objections go to the weight of Curtis’ testimony and the evidence supporting it—not to its admissibility.

    Sufficient Facts and Data

    Defendant next argued that Curtis’ testimony relied on insufficient facts and data in violation of Rule 702(b). However, the Court found that Curtis’ opinions are drawn from sufficient factual grounds. Curtis stated in his report that, in developing his opinions, he reviewed documents produced by the parties, and information obtained from research efforts related to this report.

    Curtis has also included an exhibit detailing the documents he relied upon which includes check stubs and an offer letter. Plaintiff also noted in her response that Curtis relied upon records of Plaintiff’s historical compensation and commissions and data regarding compensation conditions in the specific industry at the relevant time. She also argued that Defendant’s expert also relied upon these same documents to reach his opinion.

    Defendants argued in their Reply that Curtis “only reviewed two commission payments to predict Plaintiff’s commissions for the remainder of her career” and that this limited review of two commission payments “is insufficient to predict almost 25 years of commissions.”

    Defendant essentially argued that Plaintiff’s commission payments and wage data were reviewed in a vacuum. Yet, according to Curtis, they were reviewed in conjunction with other documents, evidence and statistics from the Bureau of Labor. Cutis then utilized these facts, data and assumptions to reach a conclusion as to Plaintiff’s lost wages. These facts and data, reviewed in the aggregate, establish sufficient factual grounds from which Curtis could form an opinion and draw conclusions from.

    Reliable Principals and Methods

    Defendant argued that Curtis’ opinions regarding Plaintiff’s future earning capacity and expected growth rate in the “Actual Scenario” employed an unreliable methodology.

    Curtis employed a But-For Scenario and an Actual Scenario to calculate Plaintiff’s damages. He states that “the Actual Scenario differs from the But-For Scenario by assuming that [Plaintiff] will experience abnormal wage increases and commission increases in her new position because workers commonly experience several years of above average earnings increases when they pursue long-term and stable employment.”

    Curtis also stated that that “with respect to the Plaintiff’s lost commissions, I reviewed Plaintiff’s pay stubs, which revealed commissions in September 2021 of $16,308 and in October 2021 of $18,011. Using historical earnings, and specifically recent historical earnings, is a generally accepted and testable data source used by experts to calculate lost earnings in wrongful termination disputes.”

    Defendants objected to Curtis’ calculations regarding earning capacity growth and commissions. They also argued that he failed to explain the basis for his assumption of a 10% annual commission. However, an expert “may, in appropriate circumstances, rely on assumptions when formulating opinions.”

    While Defendants argued that Curtis did not take Plaintiff’s specific job into consideration in determining what rate was appropriate, the Court held that Curtis’ opinions are indeed the product of reliable principles and methods such that he can testify under Rule 702. It should be attacked by cross examination at trial—not exclusion beforehand.

    Held

    The Court denied the Defendants’ Daubert motion to exclude Plaintiff Jenessa Dubey’s expert, Nathaniel Curtis, MBA.

    Key Takeaway:

    Curtis has applied reliable principles to form his hypothesis. It is not for the Court to gauge whether that hypothesis is ultimately correct, so long as his opinion stays “within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.”

    Case Details:

    Case Caption: Dubey V. Concentric Healthcare Solutions LLC Et Al
    Docket Number: 2:22cv2044
    Court Name: United States District Court, Arizona
    Order Date: June 12, 2025
  • Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Human Factors Expert Barred from Testifying on Whether Injury Was Foreseeable

    Monserrate Caraballo (“Caraballo” or “Plaintiff”) has sued Home Depot U.S.A., Inc. (“Home Depot” or “Defendant”) under state common law tort for negligence, alleging that Defendant’s negligent display of boxed tile resulted in injuries to Plaintiff’s left eye.

    Caraballo filed a motion to exclude certain testimony from Home Depot’s expert, Dr. Robert Rauschenberger.

    Human Factors Expert Witness

    Robert Rauschenberger is currently the Vice President, Director of Human Factors at J.S. Held. He has over 25 years of experience conducting research on topics of visual attention and distraction, the organization of perceptual information, product design, user experience, risk communication effectiveness, and consumer decision-making.

    Also, Rauschenberger obtained his Ph.D. in cognitive psychology from The Johns Hopkins University, and for over two decades has conducted research on how humans process information.

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

    Discussion by the Court

    Caraballo argued (1) that Rauschenberger is unqualified to testify as an expert in this case because he does not have any demonstrable experience in “accidental construction or the biomechanics of strapped boxed tiles display, construction or movements,” (2) that his opinions regarding the “foreseeability” of Caraballo’s injury should be barred as they bear on the “‘ultimate issues’” of the case  (3) that his opinion is irrelevant under Federal Rule of Evidence 701 because it is “not based in science or fact,” and (4) and that “[a]ny evidence and/or testimony relating to an assertion that Plaintiff could and should have chosen a different method of accessing the boxed tiles to avoid the alleged incident contains speculation, is highly prejudicial, is not predicated on any fact and would mislead and confuse the jury,” in violation of Federal Rule of Evidence 403.

    Robert Rauschenberger

    To begin with, Rauschenberger has been recognized as a “human factors expert” under Federal Rule of Evidence 702 in past federal trials. Based on that, the Court has allowed him to testify in this case and offer expert opinions on how consumers like Caraballo may behave with or without proper warnings and instructions.

    Rauschenberg, however, will not be permitted to offer testimony that provides legal conclusions. Whether Caraballo’s injury was “foreseeable” strays perilously close to one of the ultimate issues of this case: whether Caraballo’s injury was reasonably foreseeable by Home Depot.

    The Court ruled that Rauschenberg’s first opinion—that, “[b]ased upon a lack of known prior similar incidents, the absence of scientific literature discussing the underlying mode of injury, and a dearth of even remotely related events in publicly injury databases . . . it was therefore appropriate [for Home Depot] not to provide warning against the alleged hazard of unintentionally punching oneself in the eye while attempting to pull merchandise off the display shelf using a packaging strap”—is relevant and admissible.

    However, he will not be allowed to state that “the subject incident was not foreseeable by Home Depot.”

    In Rauschenberg’s second and third opinions, he opined on how Caraballo “would have” behaved in the presence of warnings and the other options available to Caraballo. But drawing conclusions about what Caraballo would have done is speculative. At best, the Court held that Rauschenberg can opine on how “consumers” or “consumers like Caraballo,” generally behave, rather than speculating as to how Caraballo himself would have behaved.

    Held

    The Court granted in part and denied in part Caraballo’s motion in limine to exclude certain testimony by Dr. Robert Rauschenberger.

    Key Takeaways:

    • The Court recognized Rauschenberger as a qualified “human factors expert” under Rule 702 based on his prior testimony in federal trials.
    • The Court allowed him to testify about how consumers like Caraballo may behave with or without warnings and instructions.
    • The Court, however, prohibited Rauschenberger from testifying that the incident was not foreseeable by Home Depot.
    • The Court rejected Rauschenberger’s attempt to speculate on how Caraballo specifically “would have” acted, limiting him to general opinions on how consumers in similar situations behave.

    Case Details:

    Case Caption: Caraballo V. Home Depot U.S.A Inc
    Docket Number: 3:21cv252
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

    Family Medicine Expert’s Opinions on Opposing Experts’ Qualifications Excluded

    The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

    Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

    Plaintiff sought to exclude or limit at trial the testimony of Defendant’s expert, Dr. Kennon Tubbs.

    Family Medicine Expert Witness

    Dr. Kennon Christopher Tubbs is a licensed medical doctor and board-certified family practice physician with nearly 30 years of experience as a practicing physician, including numerous years as a physician at the Utah State Prison and various jails.

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

    Discussion by the Court

    Tubbs’ testimony and opinions regarding correctional standards are beyond the scope of his expert designation and are not relevant

    The Defendant appointed Tubbs to evaluate and challenge the opinions of the Plaintiff and her experts concerning the medical and mental health treatment provided during her arrest and booking. However, the Court found that Tubbs’ expert report went beyond that role—it included opinions stating that the Washington County Jail’s booking and release policies, as well as the Defendant’s actions, complied with correctional standards. The Court noted that these opinions were not backed by any analysis in his report and fell outside the scope of what he was designated to testify about.

    Tubbs is qualified to offer expert testimony

    The Plaintiff claimed that Tubbs was not qualified to give expert testimony because his background is in general medical care, not in diagnosing trauma in women. However, the Plaintiff did not cite any legal authority to support this argument, and there is nothing in the record showing that Tubbs lacks the necessary knowledge, skills, experience, training, or education to testify about the medical and mental health treatment the Plaintiff received during her arrest and booking.

    The Court also found that the Defendant had adequately shown that Tubbs is qualified to provide the expert testimony for which he was designated.

    Tubbs’ anticipated testimony and opinions are reliable and admissible under Rule 702

    Plaintiff argued that Tubbs’ methods and opinions are unreliable because he did not examine Plaintiff; he speculates on facts; he misinterprets the criteria for diagnosing PTSD; and he is biased against and dismissive of Plaintiff’s version of the events and of women in general.

    However, the Court found that Tubbs’ report and deposition showed he had reviewed enough information to support his critiques of the Plaintiff and her experts concerning her medical and mental health treatment related to her arrest and booking. The Court also noted that Tubbs used specific criteria and relied on sufficient facts to form his opinions challenging their conclusions.

    Tubbs may not offer ad hominem opinions, or testimony and opinions that invade the exclusive roles of the judge and jury

    In his report and deposition, Tubbs offered opinions about the qualifications, training, and personal habits of the Plaintiff’s experts. While he is allowed to critique their opinions on the Plaintiff’s medical and mental health treatment related to her arrest and booking, the Court ruled that his comments on their qualifications crossed the line—such matters fall solely within the judge’s authority to decide.

    Moreover, Tubbs’ report and deposition testimony also included commentary and opinions regarding the weight of certain evidence, as well as the motivations of Plaintiff and her experts. The Court made it clear that Tubbs is not allowed to give testimony or opinions that interfere with the jury’s job of evaluating the evidence and deciding which witnesses are believable.

    However, this determination did not preclude Tubbs from offering testimony and opinions that involve certain disputed facts. Moreover, the Court decided that Tubbs may testify and opine regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was intoxicated at the time of her arrest and booking, how her intoxication affects Plaintiff and her experts’ opinions regarding Plaintiff’s medical and mental health treatment as it relates to her arrest and booking.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Defendant’s expert, Dr. Kennon Tubbs.

    Key Takeaway:

    The Court held that Tubbs is allowed to provide relevant testimony and opinions that critique the views of the Plaintiff and her experts on the medical and mental health treatment the Plaintiff received during her arrest and booking. If he lays an adequate foundation and meets the requirements of the Federal Rules of Evidence, he may also testify about the applicable medical standards of care during that time at the Washington County Jail.

    However, he is not permitted to testify that the jail’s policies, procedures, or the Defendant’s actions met correctional standards. He is also barred from offering opinions about the qualifications of the Plaintiff’s experts or the reliability of their methods, as those issues fall solely within the judge’s authority.

    Please refer to the blogs previously published about this case:
    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Corrections Expert’s Opinions on the Strip Search Excluded

    Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: May 27, 2025
  • Corrections Expert Barred from Testifying on Nurse’s Medical Decisions

    Corrections Expert Barred from Testifying on Nurse’s Medical Decisions

    Johnathan Maskiell and John Daulton were placed together in a small “isolation” cell. Maskiell stomped and beat sixty-one-year-old Daulton into a coma. Daulton died from his injuries on May 21, 2023. Maskiell has since pled guilty to Daulton’s murder.

    The Plaintiff, Tonya Jones as Administratrix of John Daulton’s estate, filed suit against the Kenton County Detention Center, Deputy Kristen Wehrer, and Deputy Jared  Capps alleging multiple constitutional violations.

    Kenton County filed a motion to exclude or limit Gary Maynard‘s testimony.

    Corrections Expert Witness

    Gary Maynard is a corrections consultant with over 45 years’ experience. He has served in the correctional field as the head of four state departments of corrections across the country since 1987, including Oklahoma, South Carolina, Iowa, and Maryland.

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

    Discussion by the Court

    Opinion 1

    Maynard’s first contested group of opinions concerns whether: (1) Deputy Kristin Wehrer “fraudulently” and “recklessly” filled out an inmate intake assessment form; (2) Wehrer’s actions comport with accepted jail corrections practices; (3) Wehrer’s actions “set in motion the events that led to” Daulton’s death; and (4) the Kenton County Detention Center (“KCDC”) failed to provide safe housing for Daulton.

    Although testimony using terms like “fraud” and “recklessness” could imply legal conclusions about Wehrer’s liability, the Court, however, ruled that Maynard is allowed to testify about whether, in his expert opinion, Wehrer’s actions or omissions related to the intake assessment form did not meet accepted practices in jail corrections. The Court found that this opinion is based on Maynard’s professional experience and could help the jury understand the standards and whether they were followed in this case.

    Opinion 2

    Kenton County challenged Maynard’s opinions regarding KCDC’s policies on information collection and use. 

    The Court held that Maynard’s claims that Daulton was held in conditions that posed a serious risk of harm, and that Capps and Wehrer knew about this risk but ignored it, are essentially legal conclusions presented as if they were factual opinions.

    The Court ruled that Maynard cannot testify about Maskiell’s health records. Additionally, in line with its earlier decisions, the Court will not permit Maynard to testify that KCDC’s practices “lead to a failure to protect inmates and staff,” because such a statement touches on legal issues that were already dismissed in Jones’ claims against Capps and Wehrer.

    However, Maynard will be allowed to give his opinion that KCDC’s use of JailTracker and its alert system does not meet generally accepted practices for gathering inmate information in jails. This opinion is within his area of expertise and could help the jury decide whether the jail’s lack of training or supervision contributed to Daulton’s death.

    Opinion 3

    Maynard criticized KCDC for allegedly relying too heavily on New Vista staff and their placement decisions, especially given the lack of available information about limited isolation cells and the absence of direct observation of inmates. He argued that the way New Vista’s system was implemented at KCDC went against generally accepted correctional practices—but this is not the same as saying that simply using New Vista was inappropriate.

    Maynard’s report also suggested that he believes Nurse Whitney Price recommended Daulton should be cleared for the jail’s general population based on her personal familiarity with him—not because she was making a formal mental health evaluation. Maynard will be allowed to testify that it goes against best practices for jail staff to blindly follow off-site placement decisions from New Vista when jail staff may be in a better position to assess an inmate’s safety. However, he will not be allowed to testify that Nurse Price’s decision to clear Daulton for the general population amounted to medical advice, as Maynard is not qualified to evaluate her medical judgment.

    Opinion 4

    Maynard tries to offer an opinion about what Capps knew or should have known, but this goes beyond his expertise in jail operations and wouldn’t be helpful to the jury.

    He also claims that KCDC’s failure to conduct timely cell checks “contributed to the death of John Daulton.” The Court has excluded this statement because it takes away the jury’s role in deciding whether Wehrer’s actions were the legal cause of Daulton’s death.

    While Maynard cannot simply repeat that the cell checks were inadequate, he is allowed to explain why frequent cell checks are important for inmates in isolation. He may also testify that ongoing failures to perform these checks violate accepted correctional practices. These opinions are based on his professional experience and may help the jury assess whether jail staff were properly supervised.

    Opinion 5

    The Court will allow Maynard to testify about best practices for managing inmates placed in isolation cells. In the first part of his opinion, Maynard discusses the fact that KCDC had only four isolation cells compared to its total number of beds and that the facility had the authority to repurpose unused cells for isolation if needed. His view that KCDC’s approach was rigid and did not align with accepted correctional standards is permitted, as it is based on his experience in jail operations and may help the jury evaluate whether KCDC staff were properly trained or supervised.

    However, Maynard will not be allowed to offer opinions about what Capps should have done. The Court found that such testimony would improperly suggest what might have happened if Capps had acted differently, which is a decision the jury must make when determining legal causation (proximate cause).

    Opinion 6

    Maynard stated in his opinion that “KCDC has exhibited a policy of inadequate training and supervision; and a custom of tolerance or acquiescence of federal rights violations.” Kenton County argued that Maynard is not qualified to make this claim because he had no factual basis—he didn’t review any records about the training deputies actually received, and therefore can’t assess whether the training met jail standards.

    More importantly, the Court found that these statements are improper because they directly accuse Kenton County of breaking the law. Deciding whether the County violated the law is a legal judgment that must be made by the jury, not an expert witness.

    Held

    The Court granted in part and denied in part the motion to exclude certain oipnions of Gary Maynard.

    Key Takeaway:

    The Court found that Maynard’s testimony might help the jury decide whether the jail’s lack of training or supervision contributed to Daulton’s death. Therefore, the Court chose not to completely exclude his testimony.

    Case Details:

    Case Caption: Jones V. Kenton County, Kentucky Et Al
    Docket Number: 2:23cv164
    Court Name: United States District Court for the Eastern District of Kentucky, Northern Division
    Order Date: June 09, 2025
  • Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    Mechanical Engineering Expert’s Opinion on Alleged Manufacturing Defect in Accident Ladder Excluded

    In this products liability action, Plaintiff Joshua Cleaveland sued Defendants Tricam Industries, Inc. and Home Depot USA Inc. after he fell from a Tricam model GLX-5B ladder on August 26, 2021. The ladder was manufactured by Tricam and purchased from Home Depot. According to Plaintiff, he was injured because the ladder was defective.

    Defendants filed a motion to exclude the testimony of Plaintiff’s expert, Dr.
    Jonathan Slocum.

    Mechanical Engineering Expert Witness

    Jonathan Slocum is a mechanical engineer who earned his bachelor’s degree in 2014, master’s degree in 2015, and doctorate in 2018 in mechanical engineering from the Massachusetts Institute of Technology.

    He worked at Materials and Engineering Group LLC from 2017 to 2022 as a senior consultant, where he provided forensic and design consulting and failure analysis. Since 2020, his company LTAG Systems, LLC has been developing technology and devices for the United States Department of Defense.

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

    Discussion by the Court

    Defendants filed a motion to exclude Slocum’s expert testimony on the grounds that Slocum is not qualified to opine on ladder defects and design and causation, and his expert testimony is unreliable and speculative.

    Initial Matters

    The Court first addressed whether Plaintiff may rely on the First Slocum Affidavit to respond to Defendants’ motion to exclude.

    The Court concluded that Plaintiff may offer the First Slocum Affidavit to defend the principles and methodology used by Slocum in his initial report.

    To the extent that the Plaintiff attempted to use the First Slocum Affidavit to further explain Slocum’s qualifications as an expert in this case, the disclosure was untimely. Under Rule 26(a)(2)(B)(iv), Slocum was required to include all relevant qualifications in his initial expert report. As a result, the Court excluded certain parts of the First Slocum Affidavit.

    Slocum’s Qualifications

    The Court rejected Defendants’ argument that Slocum is unqualified to render an opinion in this case because he has never provided testimony specific to ladder design or accidents, has never designed a ladder or worked in the ladder industry, has no experience researching or addressing the causes of ladder-related accidents, and has never participated in any relevant committees that address ladder safety issues. While it is true that Slocum’s curriculum vitae indicated that he had little to no experience specific to ladder design and ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy demonstrated that he is qualified to opine on whether the aluminum ladder in this case was defectively designed and manufactured.

    Reliability of Slocum’s Testimony

    First, the Plaintiff has failed to show that a simple visual inspection is a reliable methodology from which to draw conclusions about whether the ladder suffered from a manufacturing or design defect. While Slocum himself claimed, without proof, that his methodology is generally accepted in the “scientific community,” the Court cannot conclude that Slocum’s methodology is reliable because the Plaintiff has not put forth any evidence or argument that visual inspection alone is a reliable methodology for assessing the causes of ladder-related accidents.

    Based on a visual examination of the accident ladder and the exemplar ladder and calculating the height/wall thickness ratio of the accident ladder’s rear rail, Slocum found “evidence of buckling at the pin joint” and “deformation of the aluminum tubing,” which he concluded to be a manufacturing defect that contributed to Plaintiff’s accident. However, Slocum provided no explanation or testing to demonstrate why the deformity at the “rear-left rail extrusion that the spreader-link pin-joint passes through” could be problematic.

    Slocum concluded that the ladder was defective in design because he found that a “side load” is applied to the ladder’s front and rear rails when a user’s weight is on one of the top two steps of the ladder, leading to deformation of the ladder’s rails and spreader links. However, Slocum did not perform any tests to determine whether Plaintiff’s position on the top step of the ladder would lead to the buckling observed on the accident ladder or to prove that the spreader link of the ladder applied both an “eccentric load” and “torsion to the tube, which would add to the overall stress it experiences when loaded.” He also did not explain how much torsion or eccentric load is acceptable.

    Held

    The Court granted Defendants’ motion to exclude Dr. Jonathan Slocum’s opinion.

    Key Takeaway:

    Rule 702 does not require expertise to be so exacting. Although Slocum’s curriculum vitae shows minimal, if any, direct experience with ladder design or ladder-related accidents, his extensive education and professional background in mechanical engineering and metallurgy support his qualification to offer an opinion on whether the aluminum ladder in question was defectively designed or manufactured.

    Case Details:

    Case Caption: Cleaveland V. Home Depot United States Inc Et Al
    Docket Number: 3:23cv1298
    Court Name: United States District Court, Connecticut
    Order Date: June 10, 2025
  • Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    Social Work Expert’s Testimony on PTSD Symptoms in Adult Women Admitted

    The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.

    Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.

    Plaintiff designated Annette Curtis as a retained rebuttal expert. Curtis will provide testimony regarding the symptoms and diagnosis of [PTSD] in adult women.

    Defendant sought to exclude or limit at trial the testimony of Plaintiff’s rebuttal expert, Curtis.

    Social Work Expert Witness

    Annette B. Curtis is a Licensed Clinical Social Worker (“LCSW”) with over 20 years of experience in treating women with sexual trauma and Post-Traumatic Stress Disorder.

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

    Discussion by the Court

    Curtis is Qualified to Offer Expert Testimony

    The Defendant contended that Curtis was not qualified because she lacked experience working in a jail setting or with inmates.

    However, the Court observed that Defendant pointed to no authority to support these propositions, and there is nothing in the record to suggest that Curtis lacked the requisite specialized knowledge, skill, experience, training, or education to testify and opine on the symptoms and diagnosis of PTSD in adult women. 

    Curtis’ Anticipated Testimony are Reliable and Admissible under Rule 702

    Defendant argued that Curtis’ methods and opinions are unreliable because she did not examine Plaintiff, but instead relied on a review of Plaintiff’s medical records and the discovery relating to other expert witnesses in the case.

    The Court held that Curtis’ report and deposition testimony demonstrated that she obtained and reviewed sufficient information to testify about and offer opinions on the symptoms and diagnosis of PTSD in adult women and the Plaintiff, as well as to critique the opinions of the Defendant’s experts. Whether obtaining more information or personally examining the Plaintiff would have been helpful to Curtis’ opinions is a matter for cross-examination.

    Moreover, Curtis’ report and deposition testimony also demonstrated that she applied specific criteria and sufficient facts to form her opinions.

    Specifically, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may offer expert testimony and opinions regarding the symptoms and diagnosis of PTSD in adult women. Curtis may also offer expert testimony and opinions regarding circumstances that may cause sexual trauma and PTSD. 

    Curtis may not offer Ad Hominem opinions, or Testimony and Opinions that Invades the Exclusive Roles of the Judge and Jury

    The Court held that Curtis’ speculation, ad hominem attacks on the Defendant’s expert, and personal (as opposed to expert) opinions are likewise inappropriate, irrelevant, and substantially prejudicial. In other words, Curtis’ testimony and opinions on these matters are not helpful under Rule 702.

    Curtis testified in her deposition that she believed the Plaintiff suffered a traumatic event at the jail, that the Plaintiff was strip-searched in front of male deputies, and that the Plaintiff was not intoxicated. While Curtis is permitted to critique the opinions of the Defendant’s expert regarding the Plaintiff’s mental health diagnosis, the Court held that her deposition testimony should not include weighing evidence or assessing witness credibility. Basically, Curtis did not have personal knowledge of whether Plaintiff suffered a traumatic event at the jail, was strip searched in front of male deputies, or was not intoxicated.

    But provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, the Court held that Curtis may rebut the opinions of Defendant’s expert regarding the medical effects of alcohol use and intoxication on an individual; how an individual’s alcohol use and intoxication affect or have implications in the proper diagnosis of medical and mental health conditions; and that if Plaintiff was not intoxicated at the time of her arrest and booking, how that affects the opinions of Defendant’s expert.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Annette Curtis.

    Key Takeaway:

    The majority of the issues the Plaintiff raised regarding the reliability of Curtis’ testimony and opinions went to weight, not reliability or admissibility. Curtis’ report and deposition testimony demonstrated that her expert testimony and opinions were the product of reliable principles and methods, which she applied reliably based on sufficient facts.

    While some of the facts on which Curtis’ opinions are based are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of her testimony and opinions regarding these facts. Curtis’ use of disputed facts to form her opinions regarding Plaintiff’s diagnosis did not render her testimony and opinions unreliable.

    Please refer to the blogs previously published about this case:
    Mental Health Expert’s PTSD Diagnosis Was Deemed Reliable

    Corrections Expert’s Opinions on the Strip Search Excluded

    Case Details:

    Case Caption: Blackmore V. Ramirez
    Docket Number: 4:21cv26
    Court Name: United States District Court, Utah
    Order Date: June 03, 2025
  • Architecture Expert’s Opinions on Causation and Damages Admitted

    Architecture Expert’s Opinions on Causation and Damages Admitted

    Plaintiffs Michael Gerstman and Marie Webster, the insureds, sued Defendant Crestbrook Insurance Company (“Crestbrook”), their insurer, to recover on contractual and extracontractual theories arising from Crestbrook’s denial of their claim in this storm damage insurance coverage dispute.

    Crestbrook filed a motion to strike the testimony of Plaintiffs’ experts, Dr. Neil Hall and Kevin Funsch.

    Architecture Expert Witness

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

    Hall is a member of the American Institute of Architects, American Society of Civil Engineers, Structural Engineering Institute, Construction Specifications Institute, International Institute of Building Enclosure Consultants, American Society of Safety Professionals and Association of State Floodplain Managers.

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

    Insurance Adjuster Expert Witness

    Kevin C. Funsch is an insurance adjuster and engineer with a solid background in claims handling and estimating. He has experience in adjusting property losses, performing appraisals, and writing expert reports.

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

    Discussion by the Court

    Neil Hall

    Crestbrook filed a motion to strike Hall’s opinions on the basis that they are irrelevant, and it contended that his opinion regarding the full replacement of the roof should be excluded because it is unreliable and lacked a clear or verifiable methodology.

    Crestbrook first contended that Hall’s opinions should be excluded as irrelevant because there is no dispute as to the scope of the damages at issue in this case. Plaintiffs countered that Hall’s opinions on causation and damages will certainly help the trier of fact understand the cause and extent of the damages at issue in this case.

    Hall’s expert opinions suggested that there may be more damages at issue than Crestbrook is willing to acknowledge when it maintained that it was only obligated to pay the cost of replacing the individual damaged tiles.

    Therefore, the Court declared that Hall’s opinions regarding the cause of the damage would assist the jury in understanding the evidence and in determining a fact in issue.

    Crestbrook also contended that Hall’s opinions regarding the necessity of replacing the entire roof in the absence of available matching tiles are unreliable and not based on any clear or verifiable methodology. However, Hall’s report and CV plainly showed that his reliance on his experience makes his opinions on the repairs required to bring the Property back to pre-loss condition sufficiently reliable for purposes of Rule 702.

    And to the extent that Crestbrook maintained that Hall did not make “any effort to determine whether ‘matching’ tiles were available,” the Court held that this fact, if true, would not undermine the reliability of his opinion that the entire roof would need to be replaced if matching tiles were unavailable in sufficient quantity.

    Kevin Funsch

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim.

    It maintained that they are unreliable insofar as they rely on Hall’s opinion that the roof may need to be completely replaced if there are not sufficient matching tiles with which to replace the damaged tiles.

    The Court disagreed with Crestbrook’s assertion that Funsch’s opinions and estimate are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim. This contention is based on Crestbrook’s position that it is not required to replace the entire roof under the Policy and that the estimated cost of replacing the roof is not relevant.

    Because there remains a genuine issue of fact as to whether Crestbrook was required to pay the cost of replacing the entire roof in the absence of the availability of matching tiles, the Court held that Funsch’s estimate regarding the cost of replacing the roof is relevant.

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are unreliable insofar as they rely on Hall’s opinion that the entire roof may need to be replaced if there are insufficient matching tiles to replace the damaged tiles. However, Crestbrook did not maintain that Funsch has relied on unreliable sources in determining the cost to replace the roof.

    Instead, the objection seemed to be that Funsch included in his damages calculation the cost of replacing the roof based on Hall’s opinion that the entire roof may need to be replaced. However, the Court held that this does not make Funsch’s calculation unreliable for purposes of Rule 702.

    Held

    The Court denied Crestbrook’s motions to strike the testimony of Plaintiffs’ testifying experts Dr. Neil Hall and Kevin Funsch. 

    Key Takeaway:

    Hall relied on his own inspection of the property, as well as weather data. His attached CV demonstrates his extensive education and professional experience in engineering and architecture.

    By extension, Funsch’s estimate and opinions are reliable because they are based on Hall’s recommendations, which, in turn, are grounded in reliable weather data and decades of experience. The opinions are also relevant, as they help determine the cost of the repairs.

    Case Details:

    Case Caption: Gerstman Et Al V. Crestbrook Insurance Company
    Docket Number: 3:24cv635
    Court Name: United States District Court, Texas Northern
    Order Date: June 09, 2025
  • Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Michaels Stores, Inc. sells arts and crafts and home decor products on its website and in its stores. Plaintiff, Nea Vizcarra, purchased several items from Michaels.com on November 28, 2022.

    Vizcarra said that in purchasing the discounted items, she understood that she was purchasing items that regularly (including before the advertised promotion) retailed at the published “regular” price, that this published price was the market value of the products she was buying, and that she was receiving the items at a comparatively reduced price that was not always available.

    Vizcarra brought this action on behalf of a putative nationwide class of people who “purchased one or more Michaels Products advertised at a discount on Defendant’s website or instore,” as well as on behalf of a similar California subclass. Michaels has moved to dismiss the amended complaint.

    Defendant filed two Daubert motions to exclude certain opinions of Plaintiffs’ two experts: Bruce G. Silverman and Colin B. Weir.

    Advertising Expert Witness

    Bruce G. Silverman is the owner and manager of Silverman Consulting LLC, an advertising and branding firm.

    He has testified as an expert in federal courts in Arizona, California, Delaware, Florida, Illinois and Oregon, in state courts in California and Missouri, at arbitrations, and before the Copyright Royalty Judges of the Library of Congress.

    Silverman served as EVP/Executive Creative Director at three of America’s largest advertising agencies (Ogilvy, Bozell and BBDO), as President/COO of two of the nation’s best independently-owned agencies (Asher/Gould and Wong Doody), and as President/CEO of the principal U.S. unit of the world’s largest media planning and buying shop (Initiative Worldwide).

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

    Economics Expert Witness

    Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

    His experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

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

    Discussion by the Court

    Opinions of Expert Bruce G. Silverman

    Defendant asked the Court to exclude two sets of Silverman’s opinions: (1) opinions related to whether certain discounts are misleading to reasonable consumers (“Misleading to Consumers Opinions”), and (2) opinions related to whether Defendant’s Coupon Discount practice would be important to a reasonable consumer  (“Michaels-Specific Opinions”).

    Misleading to Consumers Opinions

    Defendant argued that Silverman’s misleading to consumers opinions should be excluded because they opine on ultimate issues of law.

    Since Silverman did not opine on any legal issues, the Court held that there is no reason to exclude his proffered testimony on those grounds.

    Michaels-Specific Opinions

    Defendant argued that Silverman’s Michaels-specific opinions should be excluded because they (1) exceeded the scope of Silverman’s expertise, (2) were not the product of any reliable principles and methods, and (3) invaded the province of the jury. 

    The Defendant specifically challenged whether Silverman’s advertising experience provides a sufficient foundation to offer opinions about Michaels, its customers, or the coupon discount at issue in the case, without having conducted consumer surveys. As an expert, Silverman is permitted to make certain factual assumptions in forming his opinions. Moreover, the Court is persuaded that Silverman’s opinions are adequately grounded in his extensive personal knowledge and experience. The Court also noted that the Defendant had not demonstrated how Silverman’s opinions would invade the province of the jury.

    Opinions of Expert Colin B. Weir

    In his report, Weir opined that it is possible to determine class-wide damages using three damages theories, one of which is a conjoint analysis. Weir “proposes to calculate Price Premium Damages using conjoint analysis (wherein consumers would receive the difference in value between what they paid and the value of what they received that is solely attributable to Defendant’s challenged conduct).”

    The Defendant asked the Court to exclude Weir’s opinions that relied on his conjoint methodology on the grounds that they (1) are novel and unreliable, (2) ignore critical inputs, and (3) fail to properly account for supply-side factors.

    The Court found that the Defendant had not established a basis for excluding Weir’s opinions at that stage of the proceedings. The Defendant’s challenges to Weir’s use of conjoint analysis went to the weight and credibility of his opinions, not their admissibility.

    Held

    The Court denied the Defendant’s motions to exclude certain opinions of Bruce Silverman and Colin Weir without prejudice.

    Key Takeaway:

    Silverman’s opinions are sufficiently grounded in his experience in the advertising industry, and he is permitted to rely on hypotheticals supported by evidence. Moreover, Silverman did not offer opinions on any legal issues. After all, an opinion is not objectionable merely because it embraces an ultimate issue.

    Case Details:

    Case Caption: Vizcarra V. Michaels Stores, Inc.
    Docket Number: 5:23cv468
    Court Name: United States District Court, California Northern
    Order Date: June 02, 2025
  • Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    This dispute involves injuries sustained by Plaintiff Virginia English (“Plaintiff”) when she fell in a Hollister Co. store at the Greenwood Mall in Bowling Green, KY (the “Hollister Store”). English alleged that she was looking at some clothes while walking out of the right side of the store when she tripped over a clothes rack and fell. 

    Defendants Abercrombie and Fitch Stores, Inc. d/b/a Hollister Co. and Abercrombie & Fitch Management Co. (collectively, the “Abercrombie Entities” or “Defendants”) filed a motion to exclude the testimony of David Johnson (“Johnson”), English’s expert witness. Meanwhile, English filed a motion to exclude the testimony of Defendants’ expert, Randy Gray (“Gray”).

    Safety Expert Witnesses

    David Johnson is a board certified safety professional. He performs forensic engineering and safety expert witness work for attorneys and insurance adjusters for cases involving slips, trips, missteps and falls, falls from elevation, stairway falls and industrial accidents.

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

    Randy Gray has over 25 years of conducting OSHA inspections of workplaces based on federal and state regulations, while being employed at Kentucky Labor Cabinet, Division of Compliance, Occupational Safety & Health. He has also worked fifteen years in the private sector as the President of Grayhawk Advantage, Inc., where he provides expert witness investigation services and reports regarding hazardous workplace conditions that caused injuries to clients.

    He has a Bachelor of Science degree from Murray State University in Occupational Safety & Health, a Masters degree in Science from Murray State University in Occupational Safety & Health, and twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute.

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

    Discussion by the Court

    David Johnson

    English offered the opinion of David Johnson to show that the clothing rack “formed a low profile, low contrast, inconspicuous obstruction in a foreseeable passageway/walkway that was unsafe and unreasonably dangerous.” 

    Defendants asserted that Johnson’s report is not reliable because it is based on his own speculation and on incomplete information. Defendants also asserted that Johnson’s testimony is unreliable because “his own testimony contradicts his assumptions,” and that “Johnson cites no applicable codes or regulations with which the clothing rack failed to comply with.”

    Reliability

    However, the Court found nothing wrong with Johnson’s assumption that English fell when “her foot be[came] stuck and then unstuck under the clothing rack.” It did not constitute “subjective belief based on speculation and incomplete information” because Johnson did not fabricate that English’s foot became stuck under the rack. In fact, English’s medical records state that she “sustained a Type III RTC from falling when her foot caught on a rolling clothes hanger in the store.” Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Defendants challenged Johnson’s opinion that the clothing rack constitutes a platform or a display base because “the feet of clothing rack were below knee-level and/or under three feet in height.” Defendants also argued that because the feet of the rack cannot be separated from the clothing rack, Johnson’s opinion must be excluded as it is in direct contradiction of his own testimony and would also mislead the jury and confuse the issues. And Defendants challenged Johnson’s opinion because he opines that Hollister did not violate any applicable codes, and because he based his opinion on the existence and placement of the clothing rack, not whether the clothing rack was defective.

    The Court held that the objections raised by Defendants regarding Johnson’s reliability go to the weight that should be given to the expert’s opinions, and not to their exclusion.

    Relevance

    Defendants asserted that Johnson’s opinion regarding the lighting of the clothing rack was irrelevant because “he did not observe the rack with the additional holiday lighting that was placed.”

    However, the Court held that Johnson relied upon the testimony taken in the case, including of the store manager who testified that the store is dim, dimmer than most other stores in the mall, and that the lighting can create shadows on the floor. 

    Moreover, the fact that Johnson did not observe the rack with the additional holiday lighting is a potential limitation to his opinion, the weight of which can be decided by a jury.

    Defendants also argued that Johnson’s opinion that the rack was unexpected would confuse the jury because the Sixth Circuit has already taken judicial notice that clothing racks are expected in department stores during the holiday shopping season. The Court ruled that Johnson’s opinion about the rack being unexpected is specific to the facts of this case, not that all clothing racks in a store are unexpected. 

    Randy Gray

    Defendants retained Randy Gray “to render an opinion regarding the December 18, 2022, fall accident of English.”

    Qualification

    With twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute, Gray was found qualified by the Court under Rule 702 and Daubert to offer expert opinions on whether an unsafe and dangerous condition existed at Hollister, and whether Hollister failed to inspect, maintain, remedy, or warn of that condition.

    Relevance and Unduly Prejudicial

    English also argued that Gray’s opinion that Defendants did not violate any Codes of Federal Regulation “will not assist the trier of fact and its probative value is substantially outweighed by the danger or confusing the issues or misleading the jury.”

    In this case, the Court held that Gray’s testimony will assist the trier of fact in determining whether a dangerous condition existed at the time of English’s fall. First, although OSHA standards apply to employees, Gray’s opinion could still help jurors determine whether an unsafe condition existed at the time of English’s fall. Second, the objections raised by English go to the weight that should be given to the expert’s opinions, and not to their exclusion. 

    Since this opinion is not unfair or inappropriate, the jury would be within its discretion to credit Gray’s testimony to conclude that a dangerous hazard did not exist. 

    Held

    • The Court denied Hollister’s motion to exclude David Johnson’s testimony.
    • The Court denied English’s motion to exclude Randy Gray’s testimony.

    Key Takeaway:

    An expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. Stated another way “an opinion may be based on facts that are ‘assumed,’ or ‘hypothetical’ at the time of the report, provided that those facts are ultimately ‘established’ by other, independent evidence.”  Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Case Details:

    Case Caption: English V. Abercrombie & Fitch Stores, Inc. Et Al
    Docket Number: 1:23cv128
    Court Name: United States District Court, Kentucky Western
    Order Date: June 06, 2025