Plaintiffs sought the partition and sale of a Boynton Beach property, a Miami property, and a West Palm Beach property (the “Properties”).
The Defendants sought to exclude the opinions, analysis, and testimony of George Smith, an expert witness retained by Plaintiffs to provide a Broker Opinion of Value with an opinion of market value for the Miami property at issue in this case.
Real Estate Expert Witness
With a decade of experience in commercial and industrial real estate, George Smith has established himself as a leading broker specializing in cold storage assets. Beginning his career in 2014, he closed over $55 million in industrial and office transactions within his first two years, focusing primarily on off-market investment opportunities across Florida and the Southeast.
With regard to the Daubert analysis, the Lesters did not explicitly dispute Smith’s qualifications, other than to state that he is not a licensed appraiser and has no formal training in appraisal theory or in the Uniform Standards of Professional Appraisal Practice.
Reliability of Smith’s Methodology
Smith was retained as an expert to create a broker opinion of value “to present the client with an opinion of market value for an industrial cold storage facility . . . using completed leases, and sales as well as current listings as indicators.”
He explained at his deposition that he was not sure if most brokers used his exact methodology but testified that they should. Smith also testified at length about his experience and how it related to his methodology.
The Court noted that Smith is allegedly solely going to be testifying through deposition designations and will not be appearing live at the upcoming hearing.
Upon due consideration, the Court found that the deposition excerpts designated by Plaintiffs, in conjunction with Smith’s report, sufficiently clarified Smith’s methodology for the purpose of this Court’s Daubert analysis.
Held
The Court denied the Defendant’s motion in limine to exclude the opinions of George Smith.
Key Takeaway:
The Court is capable of determining at a bench hearing what weight, if any, to give Smith’s opinions. Further, to the extent they seek to discredit Smith’s opinions, the Defendants are free to question other witnesses about those opinions and/or to introduce other portions of his deposition.
Case Details:
Case Caption:
Romade Asset Partners, L.P. Et Al V. Lester Et Al
Docket Number:
9:22cv81914
Court Name:
United States District Court for the Southern District of Florida
Sebastian Symeonides got stuck in a malfunctioning elevator at the Trump International Hotel in Las Vegas for 20 minutes on Valentine’s Day 2022, which also happened to be his wedding day. So he sued Trump Ruffin Commercial LLC and its affiliated entities, along with Otis Elevator Corporation for negligence and products liability. His claims are based primarily on the opinions of his retained elevator-maintenance expert, John Koshak.
John Koshak opined that PE3 malfunctioned because the hoistway ropes stretched, resulting in the lowering of the compensation sheave to the point where the switch tripped, which stopped the elevator.
Koshak further concluded that Otis’ maintenance of PE3 was negligent for this incident to occur, as Otis employees must have failed to notice and fix the stretched ropes or the lowering of the compensation sheave before the incident occurred.
Otis filed a motion to exclude Koshak’s report and testimony, arguing that it is not based in the scientific method, plus it’s speculative and irrelevant.
Elevator and Escalator Expert Witness
John Winfield Koshak has worked in the elevator industry for the last several decades. He belongs to the American Society of Mechanical Engineers (ASME) and the American National Standards Institute (ANSI), he is a certified elevator inspector, and he has earned various other accolades and accomplishments in the world of elevators.
A. Koshak’s opinion is not excludable for his failure to use the scientific method
Otis contended that Koshak’s opinions must be excluded because they are not based on “good science” like “testable” conclusions or “peer-reviewed or published literature.”
The Court held that Koshak’s opinions are not based on scientific experiments or published studies, but rather founded upon his more than four decades of specialized knowledge, training, and experiential practice in the elevator industry—primarily as an elevator adjuster, serviceman, consultant, and research engineer.
B. Koshak’s Causation Opinion is not Based on Cherry-Picked Evidence
Otis’ second criticism is that Koshak’s opinion that the compensation sheave caused Symeonides’s wedding-day incident is excludable because it is “founded on cherry-picked evidence that feeds into Koshak’s result-driven litigation opinion.”
However, Koshak’s deposition testimony confirmed that they are also based on a review of Otis’ business records; attorney discussions, reports from emergency personnel, and building engineering incident reports.
Therefore, the Court cannot conclude that Koshak’s opinions are based on cherry-picked evidence.
C. Koshak’s Opinion that the Compensation Sheave Should have been Examined Twice a Year is based on Specialized Knowledge and Experience
A key opinion of Koshak is that the defect in the compensation sheave would have been apparent to Otis had it sent in a competent, qualified mechanic in to perform a proper inspection of the elevator pit twice yearly.
Otis contended that “[t]here is no foundation for” this opinion, which “is based only on his self-serving interpretation of the Code, maintenance records, and selected witness testimony,” making it neither relevant nor reliable.
However, Koshak’s deposition testimony demonstrated that his twice-a-year inspection-frequency opinion is based on his extensive experience in elevator maintenance and specialized knowledge, not mere speculation.
D. Koshak’s opinion that Otis did not Sufficiently Examine the Elevator is Based on Specialized Knowledge and Experience and is Relevant and Helpful
Otis offered the same criticism of Koshak’s opinion that Otis’ preventative maintenance was insufficient: it’s pure speculation. Otis also attacked Koshak’s negligent-maintenance opinion as irrelevant and unhelpful.
A review of Koshak’s deposition testimony revealed that this opinion was based on the conditions of the elevator and pit, which revealed extensive neglect; Koshak’s experienced belief that the inspections performed were too short to complete all required tasks; plus the absence of maintenance records that reflected that key tasks were performed.
Moreover, the messy condition of the pit was just part of the foundation for Koshak’s opinion that insufficient maintenance had been performed.
Koshak May not Offer Legal Opinions Unrelated to Negligence
Otis argued that Koshak should not be permitted to offer opinions that “Otis was contractually obligated to inspect the pit at least twice a year” or that Otis’ maintenance records were “fraudulent.” The Court held that the Plaintiff has not established that Koshak is qualified to offer such legal opinions.
Held
The Court granted in part and denied in part Otis’ motion to exclude John Koshak’s testimony.
Key Takeaway:
Koshak will not be permitted to offer the legal conclusions that Otis’ actions constituted a breach of contract or fraud. The contract-breach and fraud opinions are irrelevant in this negligence case, and expert testimony that does not relate to any issue in the case is not relevant and, ergo, nonhelpful.
This civil rights case arises out of the officer-involved detention and shooting of Hector Puga (“Decedent”) by California Highway Patrol officers Isaiah Kee, Michael Blackwood, and Bernardo Rubalcava (“State Defendants”) and County of San Bernardino deputies Jake Adams and Robert Vaccari (“County Defendants”) that resulted in Decedent’s death on February 17, 2021.
At the Final Pretrial Conference, Plaintiffs raised concerns regarding State Defendants calling County Defendants’ expert Dr. Kris Mohandie as a witness because State Defendants had not designated Mohandie as an expert. Thus, the Court ordered Plaintiffs to file briefing regarding the admissibility of expert witness Mohandie’s testimony no later than Monday, May 19, 2025. The Court also ordered any opposition to be filed by Wednesday, May 21, 2025.
On May 19, 2025, Plaintiffs filed the instant motion in limine to exclude the testimony of Mohandie. State Defendants failed to file an opposition.
Psychology Expert Witness
Kris Mohandie is a board-certified specialist in police and public safety psychology through the American Board of Professional Psychology.
It was Mohandie’s opinion that the decedent committed suicide by cop. According to him, the Decedent had an Antisocial Personality Disorder, including psychopathy, with life-threatening addictions to alcohol and methamphetamine.
In this case, State Defendants failed to designate Mohandie as an expert witness prior to the deadline to designate an expert witness.
Moreover, State Defendants failed to oppose Plaintiffs’ motion. Thus, State Defendants’ failure to file an opposition is deemed consent to the granting of the motion.
Held
The Court granted the Plaintiffs’ motion in limine to exclude the testimony of Dr. Kris Mohandie.
Key Takeaway:
Failure to file any required document, or to file it within the stipulated deadline, may constitute consent to the granting of the motion. Moreover, arguments for which no response is provided are considered to be conceded.
This case arises from a claim made by Richard Bernier under the underinsured motorist (“UIM”) coverage provided in his State Farm policy.
Bernier was involved in a November 18, 2020 auto accident. He settled the underlying claim for the other driver’s limits of coverage and then sought the maximum available UIM coverage under his own policy of $50,000.
Bernier’s expert, Mr. Stephen Strzelec, concluded that State Farm “arbitrarily reduced/discounted [medical bills] based on speculation and conjecture by the claim handler.”
However, State Farm’s expert, Ms. JoAnna Moore, wrote that Bernier’s medical bills “should have been questioned . . . [because] there was no airbag deployment, only slight injuries were noted,” and Moore saw “no physician report tying Bernier’s rotator cuff tear, ulnar nerve injury, or cervical disc disease to the accident.”
Bernier filed and served his expert report of Stephen Strzelec on December 13, 2024 and on January 7, 2025, State Farm filed its rebuttal expert report of JoAnna Moore “on issues relating to claim handling and specifically with regard to Stephen Strzelec’s report.”
Bernier asserted that the eight numbered paragraphs in Moore’s report are a valid rebuttal but that the last two and a half pages are “an attempt to testify in Defendant’s case-in-chief” and should be excluded.
Insurance Expert Witness
JoAnna Moore is the Principal and Founder of J. Moore Consulting Services. For nearly a decade, Moore served on the Advisory Board for the Center for Insurance Studies, which is part of the Mihaylo College of Business & Economics at California State University, Fullerton. In that capacity, she has been a frequent keynote speaker during the University’s annual Business Week and guest class lecturer, as well as advising the center on curriculum and course offerings.
In 2009 she received special recognition by the Center for her continuing support of insurance education. Moore is also a participating Advisory Board member of the Women’s Leadership Institute at Auburn University, Auburn, Alabama. She earned a B.S. Degree from Auburn in 1978 and is a member of the National Association of Professional Women (NAPW).
The topics in Moore’s report are valid rebuttals of Strzelec’s report. Strzelec lays out what he asserts are claims-handling principals and standards, and analyzes State Farm’s handling of Bernier’s first-party underinsured motorist claim. For example, Strzelec lists all the UCSPA standards for insurance companies and asserts that, on top of the standards set in statutes and regulations, “internal standards of fairness by the insurer” help define the parameters required for every specific situation. In response to Strzelec’s assertions regarding standards for insurance companies, Moore detailed what she asserts is the “standard for claim handling.”
First, Moore summarized what she argued is the applicable “reasonableness, not perfection” standard, and then she listed what she asserted, based on her experience, are “the reasonable and industry-accepted claims practices.” The Court held that this evidence is proper rebuttal evidence, as Moore addressed insurance company standards and practices, which is the same subject matter as the opinions in Strzelec’s report.
Moore’s report provided “[a] list of things that Moore believes Defendant did correctly,” as well as her “personal opinion on whether Defendant acted reasonably.” These topics are on the same subject matter as the testimony of Strzelec in his expert report. In fact, Strzelec stated at the top of his “analysis and discussion” section that he was asked to “provide [his] opinions regarding State Farm’s handling of the first party underinsured motorist claims.”
When Strzelec concluded that “State Farm failed to meet minimum industry standards for handling claims,” Moore listed the actions she argued demonstrated State Farm complied with industry standards, such as reviewing and utilizing contract language, seeking input from supervisory personnel, and providing appropriate claim note documentation.
Held
The Court denied Richard Bernier’s motion to exclude portions of JoAnna Moore’s expert report.
Key Takeaway:
Moore’s rebuttal expert report did not merely opine on the same general subject matter as Strzelec’s report. Instead, Moore’s rebuttal expert report properly rebuts and contradicts Strzelec’s expert testimony.
Case Details:
Case Caption:
Bernier V. State Farm Mutual Automobile Insurance Company
The Plaintiff, Glynn Simmons, was wrongfully imprisoned for nearly 49 years after a 1974 murder conviction and was exonerated in 2023. He filed a civil rights lawsuit seeking damages for the constitutional violations that led to his wrongful conviction and decades of incarceration.
As a result, Simmons sued the City of Edmond, the City of Oklahoma City, former Oklahoma City Police Detective Shobert, and the estate of former Edmond Police Detective Sergeant Anthony David Garrett (Garrett).
In other words, Plaintiff alleged that they suppressed exculpatory evidence and fabricated evidence, violating his Fourteenth Amendment rights.
To support his claims, he retained Dr. Shirley Saar-McPherson, Ph.D., a clinical psychologist, to conduct a comprehensive psychological evaluation to assess his potential mental health diagnoses and their causes.
City contended that Saar’s opinion is unreliable because she only formed this opinion for the purposes of testifying and did not treat the evaluation as carefully as she would have in her practice outside of paid consulting.
Psychology Expert Witness
Shirley Saar-McPherson is a a clinical psychologist with over two decades of experience. Basically, she earned her Ph.D. in clinical psychology with a concentration in forensic psychology, and has numerous publications in her field.
The City argued that Saar’s opinion was inherently unreliable because it was prepared solely for litigation and lacked the same level of care and rigor she would typically apply in her regular clinical practice. According to the City, the evaluation was not conducted under the same professional standards expected outside the context of paid expert testimony.
The City further asserted that the limited basis for her opinion, consisting of just two Zoom interviews and remote testing, rendered her conclusions methodologically weak and scientifically unsound.
After reviewing the submissions from both parties, the Court found that Saar’s testimony satisfied the requirements of Federal Rule of Evidence 702, which governs the admissibility of expert testimony. The Court concluded that her opinion was grounded in sufficient facts and data and was derived using reliable principles and methods appropriate to her field.
Also, the Court acknowledged that the City’s criticisms about the limited interaction and remote testing methodology might raise valid concerns regarding the thoroughness of Saar’s evaluation. However, it held that such concerns relate to the weight of the testimony rather than its admissibility. These are matters best explored through cross-examination, not exclusion.
Held
The Court denied the City’s motion to exclude the testimony of Plaintiff’s expert witness Shirley Saar-McPherson.
Key Takeaway:
Despite being based upon two zoom meetings and remote testing, the Court found that Saar’s opinion was based on sufficient facts and data and is the product of reliable principles and methods.
Case Details:
Case Caption:
Simmons v. City of Edmond
Docket Number:
5:24cv97
Court Name:
United States District Court for the Western District of Oklahoma
S.F., a former detainee in the Denton County Jail, asserted claims for alleged violations of her constitutional rights on account of the jail’s treatment of her withdrawal from opioids during two separate incarcerations and the alleged denial by the jail of medication for Opioid Use Disorder (“OUD”).
Plaintiff filed a motion to strike or limit the expert testimony of Dr. Nicholas Longnecker, contending that he is not qualified to opine on addiction medicine, the ADA (Americans with Disabilities Act), Denton County policies, and Department of Justice (“DOJ”) policies.
Correctional Healthcare Expert Witness
Nicholas Longnecker obtained a Bachelor of Science in Microbiology and Immunology from the University of Miami with minors in Chemistry and Religious Studies and his Doctor of Medicine from the University of Miami Miller School of Medicine. He completed his residency at The Washington Hospital Family Medicine Residency Program in Washington, Pennsylvania, and is licensed to practice medicine in the states of Texas, New Mexico, Colorado, and Wyoming.
Longnecker is also a certified correctional health professional (CCHP), and he obtained his DEAX licensure, which allowed him to prescribe buprenorphine before this required waiver was eventually removed.
A.Longnecker’s Qualification to Opine on Addiction Medicine
To begin with, S.F. argued that Longnecker is not qualified to offer an expert medical opinion on addiction medicine.
She asserted that Longnecker might be qualified to talk about the administration of some medications in a correctional setting for general ailments but lacks certification or advanced training in addiction medicine and lacks training in psychiatry and addiction psychiatry.
However, Longnecker gained experience in addiction medicine through his work at several facilities over the course of many years.
Longnecker worked at Greenbriar Treatment Center and the Washington County Jail for two years. He evaluated and treated patients suffering from addiction there. And at the Washington County Jail, he managed patients with addiction disorders. For the next six-and-a-half years, he worked at the University of Pittsburgh Medical Center, where he regularly treated patients suffering from addiction and managed their addiction medications.
For a year-and-a-half after that, he worked at WellPath, where he oversaw the MAT program for Albion Prison. And since 2022, he has worked at CorrHealth, where he is responsible for directing inmate medical care. He also developed and manages its MAT program for sites across four States.
The Court found Longnecker qualified to opine on addiction medicine.
B. Improper Topics of Expert Testimony
I.The ADA
S.F. argued that Longnecker is not qualified to testify as to his legal conclusions about whether illicit substance abuse removes ADA protection.
The Court held that Longnecker is qualified to draw that conclusion because he cited DOJ guidance and because he is experienced both in determining whether to offer Medication-Assisted Treatment (“MAT”) for OUD in a correctional setting and in drafting policies and procedures addressing that issue.
II.County Policies
S.F. argued that Longnecker is not qualified to testify that the Denton County Jail does not have a blanket policy prohibiting MAT. She said that the record did not show that Longnecker has worked at the jail, that his employer has performed services there, or that he has reviewed the jail’s or Public Health’s policies.
The entirety of Longnecker’s opinion about the jail’s policies reads as follows: “No evidence exists that the Denton County Jail had a blanket policy prohibiting MAT. Conversely, there is evidence of MAT administration at the jail when the appropriate conditions were met (i.e. pregnancy).”
Since the jury did not need expert testimony to determine what evidence is in the record, the Court held that Longnecker’s opinion about the jail’s policies constituted improper expert testimony.
III.DOJ Policies
S.F. argued that, in the absence of any evidence or training showing otherwise, Longnecker is not qualified to opine as an expert that the jail provided treatment consistent with DOJ policies.
Longnecker stated that the jail’s treatment of S.F. was “consistent with . . . DOJ expectations.” He did not, however, specify what expectations he had in mind. And his report mentioned only one DOJ report: a document that “provides informal guidance” to the public, the contents of which “do not have the force and effect of law and are not meant to bind the public in any way.”
The Court held that the jury did not need an expert to opine on a document that was drafted for the public. Longnecker was expressing a prohibited legal conclusion if he meant to convey his opinion that, based on his understanding of the ADA’s requirements described in that document, the jail complied with the ADA.
C.Relevance
S.F. argued that Longnecker’s testimony about whether the jail treated her withdrawals is irrelevant. In her view, the issue is whether the jail treated her alleged disability—that is, her OUD—as opposed to her withdrawal symptoms.
The Court held that Longnecker’s opinion about whether it was medically reasonable for S.F. to be treated for her withdrawals rather than being given MAT is relevant to showing deliberate indifference as to her constitutional right to medical care.
D. Reliability
I. County policies
S.F. argued that Longnecker’s opinion about the county’s policies is unreliable because it is not based on any instances of the jail actually providing MAT. As already noted, the county refutes that assertion based on Longnecker’s review of county records.
But even if Longnecker reached his conclusions about the county’s policies after reviewing relevant records, the Court held that he did not identify which facts in the record he relied on or what method he used to reach his conclusion.
II. Standard of Care
S.F. argued that the scientific and medical community regards methadone, buprenorphine, or naltrexone as the standard of care for treating OUD.
In her view, Longnecker’s opinion that forced withdrawal, followed by treatment of withdrawal symptoms, constitutes effective treatment for Opioid Use Disorder “is so far outside the established medical community as to be unreliable, unsupportable, and viewed with extreme skepticism.”
Longnecker did not opine, as S.F. argued, that forced withdrawal would be within the acceptable medical standard of care in all circumstances. And even if he did, S.F.’s argument that Longnecker’s opinion is “far outside the established medical community,” would still fail. The “general acceptance” factor from Daubert questions whether a theory or technique is reliable. It does not matter, at this stage, whether Longnecker is correct in finding forced withdraw reasonable. What matters is how he reached that conclusion, and his report makes that sufficiently clear.
The Court held that Longnecker supported his opinion that MAT was not appropriate during S.F.’s first incarceration with sufficient facts and data. He opined that it was medically appropriate to provide “medically-assisted detox” because S.F. would not have been able to continue MAT after her transfer to Christian Farms, a facility that does not provide MAT.
Further, Longnecker cited the “grave risk of severe overdose when using both fentanyl and methadone” as another reason the jail should not have administered methadone.
Held
The Court granted in part and denied in part the Plaintiff S.F’s motion to strike defense expert Dr. Nicholas Longnecker.
Key Takeaway:
Longnecker was allowed opine on whether the jail’s treatment of S.F. during both incarcerations, including its treatment of her withdrawals, was within the acceptable standard of care; and the severity of S.F.’s withdrawal.
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 retained expert, Everett K. Neely, to testify regarding the Washington County Jail policies and practices as they relate to booking (intake) procedures, record keeping and strip searches.
However, the Defendant challenged Neely’s qualifications, questioned the reliability of his methods, and argued that his testimony was irrelevant and improperly intruded on the jury’s role to assess witness credibility and determine facts.
Corrections Policy and Procedures Expert Witness
Everett K. Neely has over 30 years of correctional experience in Broward County, Florida. His areas of expertise include jail operations and management, booking (intake) procedures, development of policies and procedures, and training and supervision of correctional officers.
Neely’s anticipated testimony and opinions regarding jail practices and procedures are not relevant to the trial issue
Neely’s expert report indicated that he was asked by Plaintiff to testify and opine on whether “proper records management practices [were] in place at [the jail] on January 6, 2020[.]” However, Plaintiff’s claims relating to the Washington County Jail’s policies and procedures have been dismissed with prejudice.
Since Plaintiff’s only remaining claim is that Defendant conducted a strip search on Plaintiff in violation of Plaintiff’s constitutional rights, Neely’s anticipated testimony and opinions regarding jail practices and procedures do not make any fact of consequence at trial more or less probable.
Therefore, Neely is precluded from offering testimony and opinions regarding the jail practices and procedures at trial, including whether the staff at the Washington County Jail adhered to the jail’s policies and procedures.
Neely’s anticipated testimony and opinions interpreting the jail’s policies and forms are unnecessary and unhelpful
Basically, Neely’s expert report includes lengthy discussion and numerous opinions interpreting the language of the Washington County Jail’s policies and forms.
The Court held that Neely may have a wealth of specialized experience and knowledge regarding jail policies and procedures, but such experience and knowledge is unnecessary to understand the purpose and meaning of the plain language of the jail’s policies and forms.
Neely’s anticipated testimony and opinions impermissibly invade the exclusive roles of the judge and jury
Neely’s expert report indicated that he was asked by Plaintiff to testify and opine on whether “Defendant performed a ‘strip search’ on Plaintiff” and whether “it was appropriate for three male deputies to watch [Plaintiff] undress and change into jail clothes.”
Neely also opined on the anticipated testimony of witnesses, and the law relating to strip searches. However, the Court held that his anticipated testimony on these issues invaded the exclusive roles of the judge and jury.
Held
The Court granted the Defendant’s motion to exclude at trial the testimony of Plaintiff’s expert, Everett K. Neely.
Key Takeaway:
The Court excluded Everett K. Neely’s expert testimony because it was irrelevant to the central claim, unhelpful to the jury, and improperly intruded on the judge and jury’s roles. Moreover, his opinions on general jail practices and legal conclusions posed a risk of unfair prejudice and confusion, making them inadmissible at trial.
This securities fraud putative class action is based on allegations that Tivity, a publicly traded company, as well as various high-ranking executives, made false or misleading statements and omissions, and had a scheme to defraud investors regarding, facts material to both: the purported success of Tivity’s acquisition of Nutrisystem, Inc. (“Nutrisystem”) in Q1 of 2019 (“Nutrisystem Claim”); and the valuation of Tivity’s goodwill and the Nutrisystem tradename throughout 2019 (“Goodwill Claim”).
According to Lead Plaintiff, Defendants’ materially false or misleading statements and omissions on these issues led to significant losses in shareholder value when, on February 19, 2020, Defendants disclosed Tivity’s financial results for 2019 and forecasts for 2020, and announced the resignation of the Nutrition Segment’s President, Keira Krausz as well as the termination, without cause, of Tivity’s CEO, Donato Tramuto.
Predictably, the effect (or lack thereof) of the allegedly fraudulent statements and omissions on the Corrective Disclosure and Tivity’s eventual decreased stock price is a central contested factual issue of this case. W. Scott Dalrymple sought to opine on the amount of loss Tivity shareholders experienced from Defendants’ scheme to defraud them, as well as their false and misleading statements and omissions, through evaluation of five items in the Corrective Disclosure.
Defendants filed a motion to exclude the testimony of Dalrymple.
Economics Expert Witness
W. Scott Dalrymple is an economist specializing in quantitative valuation, econometrics, statistics, securities analysis, antitrust, financial markets, and intellectual property.
Dalrymple has led numerous consulting, commercial litigation, and restructuring engagements on behalf of multinational companies, investors, financial institutions, and government agencies in the U.S., Europe, and Australia.
Dalrymple is supposed to analyze the impact of the Corrective Disclosure on Tivity’s stock price.
Dalrymple’s Analysis
First of all, Dalrymple assumed that Tivity’s stocks had been trading on a semi-strong form of an efficient market prior to Tivity’s release of the Corrective Disclosure on February 19, 2020. Then, Dalrymple conducted a market model event study by using a regression model to predict expected returns on Tivity’s stock during the event window (i.e., the day of the Corrective Disclosure).
Tellingly, Dalrymple made no attempt to separate the varying purported causes of Tivity’s stock drop included in the Corrective Disclosure—to determine whether some, all, or none of that information was attributable to Defendants’ fraud.
Dalrymple explained this seemingly glaring omission in his analysis. He contended that isolating the effects of the five items in the Corrective Disclosure is unnecessary given all that information is within what Lead Plaintiffs believe to be the zone of risk of Defendants’ concealed fraud.
The Court held that Dalrymple failed to both (1) bridge any connection between the alleged corrective information, Defendants’ fraud, and Tivity’s stock decline, and (2) apply any principled or economic method to support his conclusion that the items in the Corrective Disclosure did not constitute confounding information that required removal from his total damages calculation.
Dalrymple Fails to Properly Analyze the “Corrective” Nutrition Segment Financial Disclosures
The Court held that Dalrymple’s aggregation of the five items in the Corrective Disclosure (the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, impairments to Tivity’s goodwill and the Nutrisystem tradename, and the announcements of Tramuto’s termination and Krausz’s resignation) as a single bundle of new information, despite acknowledgement that some of the information implicated information beyond Defendant’s alleged fraud, demonstrated the issue with his approach.
Dalrymple made no effort to determine whether the Q4 and 2019 earnings results, Q1 and FY 2020 earnings guidance, and impairments to Tivity’s goodwill and the Nutrisystem tradename were actually “corrective.”
Nor did he account for that some of that financial information—information that, according to Lead Plaintiff, made the stock price fall—had already been anticipated by the market based on prior disclosures that the Nutrisystem acquisition may prove unsuccessful.
Because Dalrymple knew the market already anticipated that the Nutrisystem merger may have failed irrespective of Defendants’ fraud, the Court held that his analysis “should have carefully considered whether other factors [other than Defendants’ alleged fraud] might have been at play” in causing Tivity’s stock price decline.
Dalrymple Fails to Properly Analyze the “Corrective” Executive Departure Announcement Disclosures
Dalrymple’s treatment of Tivity’s executive departures revealed in the Corrective Disclosure is equally flawed. As with Dalrymple’s acknowledgement that Tivity’s financial information could contain non-fraud related information, he understood “that Tramuto’s eventual departure from the company may have been anticipated.”
The Court held that Dalrymple’s analysis of the purported corrective disclosures announcing Tramuto’s termination and Krausz’s resignation suffers from another flaw: these items are, as a matter of law, not within the zone of risk of Defendants’ alleged fraud. There is no evidence in the record that Tivity’s announcements of Krausz’s resignation and Tramuto’s termination revealed any fraud perpetuated by Defendants.
Because Dalrymple does not provide any bridge between his opinion that the announcement of Tivity’s executive departures had “limited, if any, negative impact” on Tivity’s share price and an analytical framework supporting that conclusion, the Court held that Dalrymple’s attempt to remove this non-fraud information from his equation is merely inadmissible ipse dixit.
Dalrymple’s Demeanor at the Daubert Hearing Underscores Why His Opinions Should Be Excluded
The shortcomings of Dalrymple’s analyses are compounded by his demeanor on the stand. Dalrymple has extensive experience as an expert in litigation. He has appeared as an expert at trials and hearings on nine prior occasions and has sat for twenty depositions.
However, during one exchange with Defendants’ counsel, Dalrymple directly contradicted his prior deposition testimony that he it did not causally connect any alleged misstatements to any of the five items from the Corrective Disclosure he based his opinions on by attempting to assert the opposite during the Daubert hearing. While testifying is no doubt a stressful experience, even for those familiar with the courtroom, Dalrymple’s contradictory positions about such basic elements of his reports and the tone and tenor of his testimony further underscores the problems with Dalrymple’s testimony and opinions.
Dalrymple’s Testimony and Opinions Are Inadmissible Under Rule 702
In this case, Dalrymple ignored the possibility that a portion of the five items in the Corrective Disclosure did not relate to Defendants’ fraud, and he also chooses to ignore his own knowledge confirming as much.
He then failed to properly deploy any reliable methodology based on sufficient data about the market to analyze whether there were any non-fraudulent factors within the Corrective Disclosure contributing to a drop in Tivity’s stock.
Because Dalrymple did not reliably determine whether the information he relied upon was corrective of Defendants’ fraud, and did not reliably calculate the loss in value, if any, of Tivity’s stock that was caused by only non-fraudulent factors, the Court held that his testimony is also unhelpful to the jury.
Held
The Defendants’ motion to exclude W. Scott Dalrymple’s testimony was granted by the Court.
Key Takeaway:
By presuming that analysts had already priced in all goodwill, integration, and diet-season risks in the Nutrition segment, Dalrymple treats any price drop from the five items in the Corrective Disclosure as necessarily fraud-related. But he finds support of this assumption only in the stock drop itself. For this, and the reasons stated above, his lack of methodological reasoning in disaggregating the fraud and non-fraud information in the Corrective Disclosure raises several “red flags that caution against certifying an expert includ[ing] reliance on anecdotal evidence, improper extrapolation . . . lack of testing, and subjectivity.”
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.
Elisabeth York was disclosed to address Danyale’s mental health symptoms and her diagnosis of posttraumatic stress disorder (PTSD).
Defendant challenged York’s qualifications as an expert and the reliability of her methods and opinions. Defendant also argued that York’s anticipated testimony was unfairly prejudicial.
Mental Health Expert Witness
Elisabeth York is a licensed clinical mental health counselor (“LCMHC”) with a robust background in mental health and trauma counseling. She holds a Master’s of Science in Clinical and Mental Health Counseling from the Grand Canyon University.
Defendant argued that York was not qualified to offer expert testimony because she was an associate LCMHC, which required a supervising provider to consult on and approve her diagnoses.
However, the record plainly demonstrates that a supervising provider signed off on each of York’s therapeutic sessions with Plaintiff.
York is now an LCMHC, and Defendant did not challenge her current qualifications as an expert. Therefore, there is nothing in the record to suggest that York lacked the requisite specialized knowledge, skill, experience, training, or education.
York’s anticipated testimony is reliable
York demonstrated that she obtained sufficient information from Plaintiff to make her diagnoses. The Court held that the timing of such diagnoses, whether more information would have been helpful to the diagnoses, and York changing the diagnoses are subjects for cross-examination. York could also rely on information relayed to her by Plaintiff in making her diagnoses, just as any medical or mental health provider relies on information given to them by their patients. While some of these facts are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of a treatment provider’s testimony because the provider’s diagnosis relied on information offered by their patient. Moreover, York’s reliance on information Plaintiff provided did not render York’s testimony and opinions unreliable.
Also, York’s deposition testimony demonstrated that she applied the specific criteria required for Plaintiff’s PTSD diagnosis. Defendant’s expert may disagree with that diagnosis. But that disagreement did not render York’s conclusion unreliable.
York’s anticipated testimony is relevant and admissible
York did not have personal knowledge of whether Plaintiff was strip searched. The Court held that York will not be permitted to testify that Plaintiff was strip searched or that the strip search caused Plaintiff to have PTSD or other mental health diagnoses. But this did not mean that York’s anticipated testimony and opinions were not relevant to the trial issues.
While York is not permitted to vouch for Plaintiff, she can testify to her observations of Plaintiff during their therapy sessions. York can also testify regarding her communications with Plaintiff during their therapy sessions. Such testimony is generally not hearsay. And, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, York may testify that the circumstances, as described to her by Plaintiff during their therapy sessions, are sufficient to meet the criteria for certain mental health diagnoses and lead to York’s diagnoses of Plaintiff. The Court held that this anticipated testimony and opinions are highly relevant to damages issues.
Defendant raised concern that York’s testimony and opinions may cause unfair prejudice by causing the jury to give greater weight to Plaintiff’s credibility, and created a danger of misleading or confusing the jury regarding issues of causation.
But these concerns are nearly always risks when a non-retained treatment provider offers expert testimony regarding a diagnosis. And they are limited and avoided through vigorous cross-examination, the presentation of contrary evidence, carefully crafted jury instructions, and appropriately targeted closing arguments.
Held
The Court denied the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Elisabeth York.
Key Takeaway:
York is qualified to offer expert testimony. Her methods and opinions are sufficiently reliable, and her anticipated testimony is relevant and its probative value is not substantially outweighed by a risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
However, as necessary or appropriate based on what evidence and how such evidence is admitted at trial, specific objection may be raised at trial to specific questions posed to York.
Plaintiff Deven Barrette (“Plaintiff) brings this action against Defendants the Village of Swanton; Kyle Gagne (“Defendant Gagne”); Jordan M. Mosher (“Defendant Mosher”); Robert Recore (“Defendant Recore”); and Leonard Stell (“Defendant Stell”); as well as John and Jane Does I-X (the “Doe Defendants”).
Plaintiff’s claims arose from his detention by Swanton Village Police Department (“SVPD”) officers on the night of April 2, 2020, and subsequent treatment by those officers and Northwest State Correctional Facility (“NWSCF”) employees. Barrette argued that Mosher, a corrections officer, used excessive force and unlawfully seized him when Mosher removed Barrette from a police cruiser. He also asserted assault and battery and intentional infliction of emotional distress.
Steve Ijames, Defendant Mosher’s use-of-force expert, opined that the injury suffered by Plaintiff “was not the result of force intentionally applied, but the accidental and unintended consequence of appropriate action taken while overcoming his resistance to control.”
Moreover, Michael J. Kuzel, Defendant Mosher’s human factors expert, opined that the action used by Defendant Mosher to pull Plaintiff out of the vehicle “involved a ballistic muscle contraction.”
Police Practices & Procedures Expert Witness
Steve Ijames has forty-six years of experience in policing and has acted as an instructor, presenter, and consultant on the use of force.
To begin with, Ijames bases this opinion, in part, upon his reconstruction of the incident in which he met with Defendant Mosher, drove a Vermont State Police vehicle to a similar location where the vehicle transporting Plaintiff was parked, and allowed Defendant Mosher to extract him from the vehicle approximately twenty times in varying ways, including one in which a second officer grabbed him as he was being pulled out of the vehicle.
The Court held that the opinions of Steve Ijames that Plaintiff’s injuries were “accidental” are inadmissible because they are opinions regarding Defendant Mosher’s intent.
Correspondingly, expert opinions regarding whether Defendant Mosher acted “reasonably” under the circumstances are inadmissible because they not only usurp the role of the finder of fact, but also “express a legal conclusion or instruct the jury what conclusion to reach.”
Basically, the Court held that the Plaintiff’s challenge to opinions based on the attempts by Ijames to re-create the event are grounded in the absence of a need for expert witness testimony on this point.
Human Factors Expert Opinion
Based on his review of the video of Defendant Mosher’s use of force and Defendant Mosher’s testimony about the incident, Kuzel opined that the action used by Defendant Mosher to pull Plaintiff out of the vehicle “involved a ballistic muscle contraction.” According to Kuzel, “there is an accuracy tradeoff associated with ballistic contractions, leading to the actual force differing from the intended force.”
However, Plaintiff argued that Kuzel’s engineering background did not qualify him to opine on Defendant Mosher’s use of force, and that his conclusions were “speculative and conclusory.”
Because Kuzel provided no scientific basis for his conclusions that Defendant Mosher’s use of force on Plaintiff was a “ballistic muscle contraction” or that it is “unrealistic and near impossible” to predict Plaintiff’s resistance to such a movement or for his opinions regarding Defendant Mosher’s intent, and because his alleged scientific sources offer only broad generalizations about human behavior, such that “[t]hinking and decision-making are guided by two Systems[,]” one characterized by “instantaneous, automatic thinking” and another that “is analytical, deliberate, and rational,” the Court held that his opinions were inadmissible.
Held
The Court held that the opinions of both Steve Ijames and Michael J. Kuzel were unreasonable.
Key Takeaway:
To allow an expert to assume the role of an actor in his or her own incident reconstruction which involves no special expertise lies far afield of an opinion based upon specialized knowledge grounded in the expert’s education, experience, or training.
