George Huerta filed a wage and hour class action based on his work at the California Flats Solar Project in Monterey County. First Solar, Inc., the project owner, hired CSI Electrical Contractors, Inc. (“CSI”) to manage Phase 2 construction. CSI employed a large workforce, including subcontracted labor from Milco National Constructors. Huerta worked on-site from June 13 to July 10, 2018, as a Milco employee reporting to CSI.
Workers accessed the site through a guarded entrance and drove several miles to the Phase 2 Security Gate for badge scanning. At day’s end, they scanned out, sometimes waiting up to 20 minutes in vehicle lines.
Basically, Huerta claimed this waiting time and allegedly restricted meal breaks were compensable under California law, arguing CSI retained control during breaks. However, CSI countered that employees were properly compensated and free to use break time as they wished.
Therefore, CSI retained an expert witness Keith Mendes, who reviewed records and concluded Huerta and others were fully paid, including for badge-out delays. Huerta challenged Mendes’ declaration on wage issues and damages.
Wage and Hour Expert Witness
Keith Mendes has consulted in matters involving intellectual property, valuations, wage and hour class claims, issues related to wrongful terminations, business interruption, and calculation of complex damages. Mendes has been published and submitted an expert report regarding the determination of the appropriate “cram-down” interest rate in a bankruptcy setting. He also has testimony experience at both deposition and trial.
In assessing the parties’ arguments, the Court focused on whether CSI complied with wage and hour laws in compensating Huerta for all work performed, particularly regarding badge-out wait time and meal breaks.
Huerta argued these periods were compensable, claiming CSI maintained control over employees during both. He challenged the credibility of CSI’s expert, Keith Mendes, criticizing his reliance on timesheets, invoices, and interviews instead of payroll records. Huerta further contended that Mendes’ analysis was based on unfounded assumptions and inadmissible hearsay.
The Court rejected these objections, finding Mendes’ testimony admissible under Federal Rule of Evidence 702. It held that experts may rely on otherwise inadmissible materials if properly applied within their field, and that challenges to Mendes’ assumptions affected the weight, not admissibility, of his opinion.
As a result, the Court found Mendes’ analysis credibly showed CSI complied with wage laws, including pay for badge-out delays, and saw no evidence that meal breaks were unduly restricted.
Held
The Court overruled Huerta’s objections to Keith Mendes’ opinions.
Key Takeaway:
In this case, Huerta has not presented the opinion of his own expert, or any other evidence, from which this Court could conclude that reliance on timesheets and billing invoices, and any assumptions made in calculating wages, render Mendes’ methodology unreliable.
Case Details:
Case Caption:
Huerta V. CSI Elec. Contrs., Inc.
Docket Number:
5:18cv6761
Court Name:
United States District Court for the Northern District of California, San Jose Division
Defendants 1536 Blue Jay Way, LLC and Michael Herman (collectively, Blue Jay Way) have brought claims against Defendant LMID, Inc. and others for negligence and negligence per se related to the renovation of a high-end home.
Plaintiff Travelers has been defending its insured, Defendant LMID, Inc. (LMID), in state court since June 2020.
Travelers has brought this action seeking: (1) a declaration that it has no duty to defend LMID in the state court action; (2) a declaration that it has no duty to indemnify LMID; and (3) reimbursement for defense costs incurred.
LMID’s expert, Joseph Oliva, is an attorney whose practice focuses on insurance coverage disputes. Oliva was asked to provide an opinion on “whether the allegations [in] the complaint and/or extrinsic evidence (discovery) . . . constitutes an occurrence under California insurance industry standards and whether the claims against [LMID] fall within the scope of the definition of property damage.” In his report, he concludes that the claims against LMID fell within the terms of the policy and that Travelers is obligated to defend and indemnify in the underlying action. Blue Jay Way’s expert, Peter Schulz, is also an attorney with experience in insurance coverage matters. Schulz’s opinions relied on Oliva’s analysis and his review of Oliva’s report.
However, Travelers filed a motion to exclude Oliva’s and Schulz’s testimony.
Insurance Expert Witnesses
Joseph Oliva is an attorney licensed and admitted to practice before all courts of the states of California, Texas, Arizona, and Nevada. He is a shareholder of the law firm of Joseph Oliva & Associates, P.C.
Oliva has been retained as an expert on sixteen matters, provided testimony on four matters, three of which were California arbitrations and one Arizona State Court action.
Peter Schulz is an attorney at law, duly licensed and admitted to practice before all courts of the states of California. He is the sole shareholder of the law firm of Schulz Brick & Rogaski, APC.
Schulz has taught in seminars attended by attorneys, brokers, and insurance claims adjusters in California. In 2023, he was a lecturer in a program sponsored by The Seminar Group entitled “Insurance in the Construction Industry,” where he presented on Cumis/Civil Code Section 2860 – Practical considerations for policy holders and for carriers.
Travelers moved to exclude Oliva’s and Schulz’s testimony on two grounds. First, it argued that the experts are not qualified to testify about insurance industry standards because they are attorneys who have never worked in the insurance industry itself. Second, Travelers contended that the experts’ opinions are improper legal conclusions. While the reports refer to “insurance industry standards” and “insurance industry practices,” Travelers contends that the experts’ opinions are in fact legal conclusions that rely on legal analysis.
As an initial matter, the Court rejected Travelers’ overbroad argument that Oliva and Schulz are unqualified to opine on insurance industry standards because they are insurance lawyers.
The fact that Oliva and Schulz are attorneys does not mean that they could not have acquired the requisite expertise to testify about insurance industry standards.
But this motion is less about qualifications and more about the subject of the proffered opinions. Oliva and Schulz did not offer opinions on insurance industry standards that would assist the trier of fact; rather, they attempted to present legal opinions disguised as industry standards—much of it amounting to little more than legal briefing.
Nowhere in the reports do the experts explain how their conclusions are based on their experiences or specialized knowledge from litigating insurance cases. Though the reports refer to some nonlegal materials—e.g., insurance bulletins and pamphlets—the Court held that those references appear to be intertwined with the experts’ legal analysis.
It is unclear how the experts would be able to excise any legal analysis from their testimony, or how any nonlegal opinions would be based on their specialized knowledge from litigating insurance cases.
Held
The Court granted Plaintiff Travelers Casualty Insurance Company of America’s motion to exclude the testimony of experts Joseph Oliva and Peter Schulz.
Key Takeaway:
Basically, Oliva’s and Schulz’s reports engage in legal analysis, assessing cases and industry materials and applying the law to the facts of this case. In doing so, Defendants have not demonstrated that is it more likely than not that the experts’ knowledge “will help the [Court] to understand the evidence or to determine a fact in issue.”
Case Details:
Case Caption:
Travelers Casualty Insurance Company Of America V. Lmid, Inc. Et Al
This is a consolidated case involving alleged improprieties in the payment and performance of certain equipment fabrication and associated work on two beef processing projects. Plaintiff asserted the following causes of action against its former employee, Michael Chapple, in relation to such work: (1) tortious interference with business expectancy; (2) tortious interference with contract; (3) civil conspiracy; (4) breach of contract with respect to Chapple’s employment agreement; (5) breach of the duty of loyalty; and (6) repayment of wages.
Defendant Tom’s Metal Enterprises, LLC d/b/a Industrial Metal Enterprises, LLC (“IME”) retained Lin Heath. Plaintiff sought an order excluding testimony of Heath, that (1) consists of legal conclusions and/or (2) lacks evidentiary support.
Construction Expert Witness
Lin Heath is a Professional Engineer, a Certified General Contractor in the State of Florida; Certified Cost Professional; Certified Construction Contract Administrator, a Certified Forensic Claim Consultant, and a PMI Scheduling Professional.
His 47 year career in Construction Management and Construction Engineering includes hands on administration with concentration in construction management information systems and project management.
An issue in this case is the terms of the contract by which IME fabricated parts for Plaintiff to use in the Demkota Project. Plaintiff maintained that the agreement was for a fixed price, which IME exceeded. IME’s position is that the agreement was on a time and materials basis with no monetary limit.
Legal Conclusion
Heath sought to testify that the contract between Plaintiff and IME was for work on a time and materials basis.
Whether the contract was issued on a time and materials basis is a legal question about a key term of the agreement. The Court held that Heath has no demonstrated legal expertise, let alone expertise in ascertaining what these parties intended. Moreover, the record is devoid of evidence that contracts in the meat rendering plant industry conform to particular practices or that the parties in this case were expected or intended to conform to such practices.
Absent some such fixed points of reference in the industry, Heath’s opinions about documents and information he would expect to find or other opinions about the agreement from “a contract administration perspective” are irrelevant.
In addition, to the extent it recites evidence about what Plaintiff did and did not do, and what IME and Plaintiff did and did not notice, what Plaintiff and Morris claim and do not claim and whether their claims are reasonable, Heath’s testimony is not necessary or helpful to the trier of fact.
Methodology
The Court held that Heath’s “Reasonable and Necessary Cost Study” identified no methodology or industry-wide standard from which to determine the necessity or reasonableness of the amounts which IME billed.
Absent an identified methodology, based in science or industry-wide norms and practices, Heath’s opinion represents nothing more than an ipse dixit. Presumably, IME project documents would not confess that work was unnecessary and charges were excessive, and Heath does not explain how summarizing the project documents shows that work actually was necessary and that charges actually were reasonable.
Held
The Court sustained the Plaintiff’s motion to exclude the testimony of Lin Heath.
Key Takeaway:
The Court can provide appropriate guidance on contract law without Heath’s assistance or testimony and the forgoing facts are well within the competence of a jury unassisted by Heath’s experience in other transactions.
This action is about holding Chargebacks911 (“CB911”), its CEO (Monica Eaton) and its former CEO (Gary Cardone) accountable for their roles in keeping a massive online Keto diet pill scam (the “Keto Racket”) profitable, viable, and undetected while it victimized Plaintiffs and tens of thousands of other consumers across the country.
Troy Carrothers is Defendants’ rebuttal expert to Plaintiffs’ payment processing industry expert. Plaintiffs took issue with certain opinions given by Carrothers, including that “‘Value Added Promotions used by [Global e-Trading] before 2019 are commonly used marketing programs,” as well as statements that Plaintiffs maintain are impermissible legal conclusions.
Lisl Unterholzner, an accountant and certified fraud examiner, is Defendants’ rebuttal damages expert. Plaintiffs took issue with certain opinions given by and analysis performed by Unterholzner, including her discussion of a The Fulfillment Lab (“TFL”) spreadsheet with shipping addresses and her MID-by-MID and time-limited calculation of damages attributable to Global e-Trading.
Financial Expert Witness
Troy Carrothers is a financial services and retail leader with approximately thirty years of experience working in a variety of leadership roles in retail payments. These responsibilities have spanned operational leadership positions with responsibility for functions with small teams such as Risk Management or Financial Planning & Analysis in payment issuance and acceptance to leading multi-billion dollar retail credit and debit portfolios with thousands of employees.
Lisl Unterholzner is the Managing Partner at Oscher Consulting, PLLC, a Certified Public Accounting firm. Unterholzner is a Certified Public Accountant (“CPA”) and has been accredited in Business Valuation by the American Institute of CPAs. She has also been accredited as a Certified Fraud Examiner. Her experience includes forensic accounting investigations, performing business valuations, and the analysis of economic damages.
Plaintiffs sought to preclude Carrothers from “offering testimony on his general understanding of the term Value Added Promotions, or VAP, including how other companies in the industry may use the term.”
The Court held that Carrothers’ testimony about his understanding of VAP used by other companies does not match the descriptions of Global e-Trading’s VAP program within Global e-Trading’s own internal documents. Moreover, Carrothers admitted during his deposition that he did not “know the details of [Defendants’] VAP program from when they ran it.”
While the issues Plaintiffs pointed out give them ample ammunition for cross-examination, the Court decided that they still did not warrant disqualifying Carrothers from testifying as an expert.
The Court also disagreed with Plaintiffs as to Carrothers’ statement that Global e-Trading “paused service several times” for Brightree. In other words, Carrothers is merely pointing out that Global e-Trading may have had pauses in its provision of services to Brightree, which is true and potentially relevant to Defendants’ defense regarding intent. The Court did not find this statement so irrelevant as to be kept from the jury.
However, to the extent Carrothers intended to offer the legal conclusion that he has seen no evidence in the record to support that Defendants’ VAP program was fraudulent, the Court agreed with Plaintiffs.
Lisl Unterholzner
Plaintiffs sought to preclude Unterholzner from testifying about two subjects. First, they argued that Unterholzner should not testify “about whether any of the customer, email, or shipping data in the TFL Spreadsheet is valid” or offer “any opinions or conclusions about the deliverability of any shipment made by The Fulfillment Lab or the Keto Entities.” Second, they sought to prevent Unterholzner from “parsing or calculating damages in a way that is based on a piecemeal analysis of Defendants’ activities with respect to the overall Keto enterprise.”
The Court disagreed with Plaintiffs. Because Unterholzner is a rebuttal expert, it is perfectly appropriate for her to question the documents upon which the Plaintiffs’ damages expert relied.
To the extent Unterholzner intended to opine that Defendants can only be liable for damages incurred for certain times during which Global e-Trading was providing services to Brightree, the Court excluded that opinion as irrelevant.
However, to the extent Unterholzner’s report and opinions addressed flaws in Plaintiffs’ expert’s damages calculation because of incomplete data, this opinion is permissible. Since this analysis is proper for a rebuttal expert, the Court will not exclude it.
Held
The Court granted in part and denied in part the motion to limit the testimony of Defendants’ experts Troy Carrothers and Lisl Unterholzner.
Key Takeaways:
No witness may offer legal conclusions or testify to the legal implications of conduct.
Despite Plaintiffs’ legitimate questions, the supposed problems with Unterholzner’s methodology can be explored on cross-examination.
This case arises from a traffic accident that occurred on December 21, 2022 at an intersection on U.S. Highway 98, involving an 18-wheeler and a Ford F-150 pickup truck.
Cameron Thompson and his son, J.C., brought this action seeking damages, which included, among other things, past medical expenses for injuries sustained in the accident.
Defendants retained Nancy Michalski to opine on the “reasonable value” of Cameron’s medical treatment. Of the $40,440.00 billed for medical services provided to Cameron, Michalski opined that the reasonable value of such services is only $33,166.60.
Plaintiffs contended that Michalski’s opinions are inadmissible because the methodology Michalski used to arrive at her opinions violates Mississippi’s collateral source rule and because the opinions are otherwise not relevant or reliable.
Medical Billing Expert Witness
Nancy Fraser Michalski provides clients with practical ways to improve efficiency, quality, and outcomes of their bodily injury claims and litigation, including medical bill auditing, comprehensive claim reviews, medical record reviews, and life care planning. Drawing on her extensive experience as a nurse and medical billing expert, Michalski developed a methodology for medical bill audits that has been endorsed by peer review, as well as a patent pending system for medical record analysis.
Plaintiffs asserted that any testimony at all “about the so-called ‘reasonable value’ of Plaintiff’s medical bills are [sic] simply not referred to or a factual issue at dispute.”
Given the Defendants’ right to rebut the “necessary and reasonable” presumption regarding evidence of medical bills, it seems clear that Michalski’s opinions may be relevant. Having reviewed the parties’ submissions, including Michalski’s report and affidavit, the Court found that Michalski’s opinions are indeed directed at the “reasonableness” of the amount of the medical bills by focusing on the charges themselves for the medical services rendered.
It is through Michalski’s opinions that Defendants are attempting to rebut the presumption that the medical bills incurred were necessary and reasonable, and by reducing the charges, they would thereby reduce the amount recoverable on the medical bills.
Therefore, the Court found that, because Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged, the opinions were relevant.
Reliability
Whether Michalski’s opinions violate the collateral source rule
Mississippi’s collateral source rule bars a tortfeasor from reducing the damages it owes to a Plaintiff ‘by the amount of recovery the Plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor.’”
In other words any “compensation or indemnity for the loss received by Plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages.” Typically, the rule bars a Defendant from introducing evidence that a Plaintiff has received payments from a collateral source to reduce that Defendant’s liability for the damages.
Plaintiffs contended that Michalski’s opinions ran afoul of the collateral source rule. To be sure, Michalski’s ultimate opinion is that the reasonable value of the medical services rendered is less than the amount billed. However, she did not arrive at this opinion based on payments made on behalf of Plaintiffs either by insurance or Medicaid/Medicare or evidence in the form of write-offs or self-pay discounts.
Her ultimate opinion is based on what is essentially a “sub-opinion” that some of the rates charged were too high. Defendants emphasized, and the Court agreed, that Michalski’s proposed testimony is not that Plaintiffs’ recovery should be reduced by payment from an independent source; rather, it is that the charges are not reasonable when ultimately compared to charges from other similarly situated providers. Because Michalski does not arrive at her opinions, as Plaintiffs contend, by deducting, or even considering, payments, gifts, or write-offs from third parties, the Court found that Michalski’s opinions, on their face, do not violate Mississippi’s collateral source rule.
Whether Defendants have shown the opinions are otherwise reliable
Plaintiffs claimed that Michalski “has not sufficiently established that her method for projecting these future costs is generally accepted in the relevant scientific community.”
However, there is no opinion by Michalski as to future costs. She addresses only past medical treatment. Plaintiffs also argue that “Michalski’s methodology differentiates between expected charges for services as opposed to a reasonable value or actual cost to a patient.” While the meaning of this statement is a bit unclear, Plaintiffs never explain which part of Michalski’s report employs such methodology.
The Court is left to speculate about the methodology’s unreliability because these general statements lack sufficient explanation.
Critiques go to the weight not the admissibility of the opinion
To begin with, Michalski used several nationally recognized sources to determine the reasonable value of the charges. She consulted multiple pricing databases including Physician’s Fee Reference, PMIC Medical Fees, Find-a-Code, and the American Hospital Directory, and then applied a geographic adjustment factor for the location where the services were provided and ultimately arrived at her opinion as to the reasonable value of the medical services rendered to Cameron.
In their Reply, Plaintiffs assert that medical treatment is not a commodity or services that is like other goods or services. Plaintiffs claim that medical providers have their own system, “Chargemasters,” which establishes the prices for treatment provided. The Court cannot accept a bald assertion in a party’s brief as fact.
Additionally, Plaintiffs complained that by comparing Cameron’s providers to other “unidentified” providers, Michalski failed to account for the quality of services, the cost of the services, or the continuity of care, making her opinion, a comparison of apples to “unidentified oranges.” The Court held that these critiques go to the weight not the admissibility of the opinion.
Finally, Plaintiffs argued that numerous other courts have excluded experts who have used Michalski’s exact same methodology, citing several cases. Because Plaintiffs have misunderstood Michalski’s methodology, the Court cannot agree.
Held
The Court denied the Plaintiffs’ motion to exclude the opinions by Nancy Michalski.
Key Takeaways:
Michalski’s opinions would assist the jury in determining whether the medical bills paid or incurred were necessary and reasonable by focusing specifically on the amounts charged.
To address every case cited would seem to be an exercise in futility because “a district court has broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert’s opinion.” This Court exercises its discretion here, and trusts that those courts did the same with what they were presented and reached the correct result.
Case Details:
Case Caption:
Thompson Et Al V. Intermodal Cartage Co., Llc. Et Al
Docket Number:
2:24cv34
Court Name:
United States District Court, Mississippi Southern
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
Barczyk produced two expert reports regarding Plaintiff’s injuries. The first report, dated December 3, 2024, sets out Plaintiff’s treatment history since the accident.
The report concluded with a summary, in which Barczyk stated that Plaintiff’s injuries to her cervical and lumbar spines, her shoulder, and foot are causally related to the accident. In addition, Barczyk stated that the accident produced an injury mechanism for Plaintiff’s brain.
The second report, dated March 18, 2025, is identical to the first report with respect to its discussion of the biomechanics of Plaintiff’s accident and its conclusions on medical causation.
Barczyk’s Qualifications
Plaintiff proffered Barczyk as a qualified expert in chiropractic medicine and biomechanics. It should be noted that Barczyk has a doctoral degree in chiropractic medicine, is a board-licensed chiropractor, and has practiced chiropractic medicine since 1994.
Although Barczyk does not have a formal degree in biomechanics, he has extensive training. His CV attests that he has attended over a dozen trainings in biomechanics and has attained several certifications.
It should be noted that the Plaintiff did not cite any case holding that a chiropractor could testify to medical causation.
Medical Cause of Plaintiff’s Alleged Brain Injury
While the Court found that Barczyk was qualified to opine on the medical causation with respect to Plaintiff’s musculoskeletal injuries on the basis of his chiropractic expertise, it is not satisfied that Barczyk is qualified on the basis of his chiropractic expertise to testify as to the medical cause of Plaintiff’s alleged brain injury.
After all, Barczyk’s training and diploma do not amount to a medical degree.
Moreover, Plaintiff cited no evidence that Barczyk has conducted research with respect to the brain injury that Plaintiff allegedly suffered or that, as part of his chiropractic practice, Barczyk diagnoses or treats brain injuries or orders diagnostic tests in connection with brain injuries.
With respect to Barczyk’s expertise in biomechanics, the Court likewise found that Barczyk was not qualified to opine on the medical cause of any of Plaintiff’s injuries on that basis.
In sum, on account of his chiropractic expertise, the Court found that Barczyk is qualified to opine on the cause of Plaintiff’s musculoskeletal injuries. However, he is not qualified to opine on the cause of Plaintiff’s brain injury.
On account of his expertise in biomechanics, Barczyk is qualified to opine on the effects of the force that the accident generated on the hypothetical human body but is not qualified to opine on the medical causes of Plaintiff’s injuries.
The Reliability of Barczyk’s Opinions
As for Barczyk’s opinions as to the medical causes of Plaintiff’s musculoskeletal injuries, Barczyk’s analysis initially describes the mechanism of injury as the result of “impact in a rear end crash.” But there are no additional facts regarding the specifics of the accident in this case.
The Court found that Barczyk’s analysis is generalized and therefore any conclusion applying his analysis to the facts of this case is unreliable.
The Court also noted that, in the “Occupant Risk Factor” section of his report, Barczyk identified certain risk factors particular to Plaintiff. He cited several sources for the risk factors that he identified. However, his discussion in that section is terse, cursory, and conclusory.
Barczyk does not explain how Plaintiff’s characteristics serve as risk factors in this case or the role they played in causing her injuries. Again, the Court is left with nothing but Barczyk’s own assurances that he has reliably analyzed the risk factors.
Whether Barczyk’s Testimony Would Be Cumulative
Federal Rule of Evidence 403 provides that a district court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.”
Without the benefit of hearing the evidence that Plaintiff will have introduced at trial, the Court finds that it would be premature to exclude Barczyk’s testimony as cumulative at this juncture.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Key Takeaway:
While the Court has focused on the reliability of Barczyk’s opinions with respect to the medical causes of Plaintiff’s musculoskeletal injuries, the defect in Barczyk’s analysis which renders these opinions unreliable equally characterizes his opinion as to the cause of Plaintiff’s alleged brain injury. Accordingly, that opinion is also excludable as unreliable pursuant to Rule 702. However, the Court will not exclude Barczyk’s general discussion on the mechanisms of injury typically associated with rear-end collisions.
Case Details:
Case Caption:
Martin V. National Interstate Insurance Company Et Al
Carleton Shockman’s property was allegedly damage by an April 2021 hailstorm. After inspecting the property, State Farm found no storm-related damage and denied coverage. Shockman invoked the policy’s appraisal process, which resulted in an award of $61,778.97, but State Farm still denied coverage.
Finally, Shockman sued State Farm, asserting claims for breach of contract, violations of the Texas Insurance Code, breach of the duty of good faith and fair dealing, and violations of the Texas Deceptive Trade Practices Act. Shockman designated Neil Hall as an expert witness on (1) the condition of Shockman’s property “following the hail and windstorm event” and (2) “the amount of funds necessary to repair the property to its original condition.”
Hall, a licensed engineer and architect with over five decades of professional experience, concluded that hail caused the property damage on April 15, 2021.
State Farm filed a motion to exclude Hall’s testimony on three grounds: (1) Hall failed to conduct a credible investigation based on accepted standards; (2) his causation opinions are conclusory and unreliable; and (3) he began with a firm conclusion and sought only confirming evidence.
Civil Engineering Expert Witness
Neil Hall served as a commissioned officer in both the Army Corps of Engineers and the Navy Civil Engineer Corps. He holds two degrees in Architecture, graduate degrees in Systems Management and Landscape Architecture and a Ph.D. in Urban Studies.
He is a licensed Architect, Interior Designer, Civil Engineer and Landscape Architect; a Certified Floodplain Manager; and a NFPA 1033 Certified Fire Investigator.
First, Hall conducted an in-person inspection of the property on June 6, 2023. During this inspection, he documented the condition of the roof and other property components through photographs and direct observation. Hall then analyzed these observations in the context of potential causes.
Second, Hall consulted multiple weather-data sources to determine if weather events capable of causing the observed damage had occurred at the property. These sources included weather data from the National Oceanic and Atmospheric Administration and storm-event data from the National Centers for Environmental Information. Hall used this data to identify an April 15, 2021, hailstorm that he concludes had wind strong enough and hail large enough to cause the observed damage.
Third, Hall reviewed claim documents and other materials related to the property and the insurance dispute. This included examining previous inspections and findings.
Finally, Hall applied his professional experience to correlate the observed damage patterns with the meteorological data, ultimately concluding that an April 15, 2021, hailstorm caused the damage to Shockman’s property.
While Hall’s execution of this methodology may be properly subject to criticism on cross-examination, the Court held that the methodology itself satisfies Daubert‘s reliability threshold because the “method is generally accepted in the relevant engineering community”—specifically, forensic engineering.
2. State Farm’s Objections
Three main contentions were raised against Hall’s methodology: (1) Hall did not conduct a credible investigation and relied on “homemade theories”; (2) his causation opinions are conclusory and unreliable; and (3) he started with a conclusion and sought only confirming evidence.
State Farm challenged Hall’s conclusion that hail can cause shingle damage at 0.75 inches, arguing that the hail must be at least 1.5 inches to do so. It criticized his choice not to measure individual hail impacts. State Farm questioned his decision not to inspect every portion of the roof. It disputed his assessment of a single window-screen tear. And it digressed considerably about “redacted” weather data without establishing the data’s significance or countering Hall’s testimony that he accounted for the data elsewhere in his report.
As for the first argument—that Hall conducted an insufficient investigation and used “homemade” methods—the Court held that State Farm never shows how Hall’s investigation meaningfully deviates from accepted practices used by similar experts in this field.
Next, the Court held that it is not clear whether State Farm’s second and third contentions—that Hall’s opinions are conclusory and that he started with a predetermined conclusion—even challenged Hall’s methodology. Forming an initial hypothesis—which Hall acknowledged doing—does not render an expert’s methodology unreliable if he then gathers and analyzes data to test that hypothesis, which Hall did. Similarly, State Farm’s characterization of Hall’s opinions as “conclusory,” is more of an assertion that Hall didn’t use a methodology, not that the methodology he used is unreliable.
Finally, the State Farm’s claim that Hall “disregarded any unfavorable data that did not support his assumption that hail was the cause of loss” was unsupported by the record.
Held
The Court denied the State Farm’s motion to exclude the testimony of Plaintiff’s expert witness, Neil Hall.
Key Takeaway:
The Court’s task in evaluating expert testimony is not to determine whether the expert’s conclusions are correct or to nitpick every data point or input used. Rather, the Court must ensure that the methodology used to reach those conclusions is reliable.
Basically, the Court found that Hall employed a reliable approach consistent with practices in the field of forensic engineering by inspecting the property, analyzing weather data from multiple sources, documenting damage, and applying his professional experience to reach his conclusions.
Moreover, the Court added that State Farm’s criticisms of Hall’s specific factual inputs and conclusions did not show any fundamental flaws in his methodology.
Case Details:
Case Caption:
Shockman v. State Farm Lloyds
Docket Number:
4:22 cv 02030
Court Name:
United States District Court for the Southern District of Texas, Houston Division
It all started when Plaintiff, Maurice Young (“Young”), was employed by Defendant, Jabil, Inc. (“Jabil”) in the role of Machine Operator I (“Operator”). It should be noted that Young suffers from osteoarthritis in his hips which limits his ability to stand, sit, and walk.
Young asked for a new accommodation, applying for the Engineering Technician I position (“Engineering Technician”) on October 29, 2022. However, Young’s employment with Jabil was officially terminated on November 1, 2022. As a result, Young contended that Jabil failed to accommodate him for other positions under the Americans with Disabilities Act (“ADA”).
On October 22, 2024, Young submitted the expert report of Dr. John Dieckman. Dieckman provided an ultimate conclusion that Jabil had alternate employment opportunities that they could have offered to Young as a reasonable accommodation. Additionally, Dieckman opined that Young lost at least $36,563 in earnings and $6,033 in benefits.
Defendants filed a motion to strike the testimony of Dieckman primarily because he is not a qualified expert as to ADA compliance and economic losses.
Vocational Rehabilitation Expert Witness
Dr. John Dieckman is a Certified Rehabilitation Counselor and Certified Disability Management Rehabilitation Specialist. He has held the position of Assistant Vocational Director at Proto-Worx since 2000.
At Proto-Worx, Dieckman oversees the development, training, supervision, and direction of vocational staff. He has previously testified regarding wage loss, liability, and economic recovery in federal and state courts as well as in administrative hearings.
Defendants sought to preclude Dieckman’s report as it pertains to both his ADA and Loss of Earnings findings.
Dieckman explained that his vocational assessment was based on a review of numerous documents, including Jabil performance reviews of Young, the Jabil physician questionnaire, emails between Young and Jabil employees regarding the accommodation process, and a review of Jabil job listings.
Dieckman explained that his analysis of lost earnings was based on a review of Young’s W-2 forms and taxes between 2018 and 2023.
ADA Arguments
1. Dieckman is not a qualified expert as to ADA compliance because Dieckman does not have any medical training or licenses
2. Dieckman’s methodology regarding ADA compliance is unreliable because his finding that Jabil did not provide Young a reasonable accommodation was based solely on public job descriptions and conversations with Young
3. Dieckman cannot opine on whether Jabil provided Young a reasonable accommodation because Dieckman did not interview anyone at Jabil as to what positions Young could perform or review job postings from the relevant period.
Economic Loss Arguments
1. Dieckman is not a qualified expert as to economic losses because Dieckman does not have any economics or business certifications or training
2. Dieckman’s methodology regarding economic losses is unreliable because his finding that Young was entitled to economic losses was based on open positions as of May 2024, whereas the economic loss assessment covers the period between July 2022 and March 2023, and was calculated based on full time employment when Young was on a part-time schedule prior to his termination.
3. Dieckman cannot opine on whether Jabil violated the ADA because Dieckman cannot provide a conclusion as to whether Young’s requested accommodations were an undue burden or whether Jabil should have placed Young into a new position
4. Dieckman’s conclusions regarding Young’s economic losses would not help the jury because they are purely speculative.
Analysis
Qualification
With his formal training in vocational rehabilitation, the Court held that Dieckman is a qualified vocational expert. After all, Dieckman has over thirty years’ experience as an Assistant Vocational Director wherein he has performed vocational evaluations of injured and disabled individuals and produced reports regarding wage and earning loss.
Reliability
Defendants’ challenge to Dieckman’s vocational assessment pertains to Dieckman’s failure to interview any Jabil employees. The Court held that Defendants’ challenge to the report’s credibility can be “addressed through vigorous cross-examination [rather] than through threshold exclusion.”
Defendants’ challenge to Dieckman’s analysis of lost earnings pertains to Dieckman’s use of open positions as of May 2024 instead of July 2022 to March 2023 and calculation of lost earnings based on full-time employment.
As to Dieckman’s use of positions available as of May 2024, Dieckman was aware, from his interview with Young and review of the records, that Young had applied for an open Engineering Technician position. While Dieckman reviewed additional job postings as of May 2024, and determined that Young would have been able to fulfill the requirements for most of the positions, this does not negate Dieckman’s knowledge of at least one open position from the relevant period that he determined Young was able to perform.
Moreover, the Court held that Dieckman’s use of full-time employment to calculate Young’s lost earnings is premised on the assumption that had Jabil provided Young a reasonable accommodation, such as a transfer to the Engineering Technician position, Young would have been able to return to work full-time.
Courts in this Circuit have held that the future earning capacity model, which would allow for greater damages than identified by Dieckman’s Report, “is an accepted and reliable method for calculating future lost earnings.”
Fit
Dieckman’s vocational assessment and wage loss analysis is connected to the questions presented in this case, namely whether (1) Jabil failed to reasonably accommodated Young, and (2) if Jabil violated the ADA, what damages Young is entitled to. Dieckman’s assessment will assist the trier of fact in answering whether Young was able to perform other positions at Jabil and what wages Young lost as a result of his termination.
Thus, the Court held that there is a sufficient nexus between the facts of the case and Dieckman’s Report to satisfy the “fit” standard.
Oral Argument
The decision to hold a Daubert hearing is discretionary with the Court and is not necessary when “the facts upon which the Court must make its determination have been adequately presented to the Court in the parties’ papers and accompanying exhibits.”
Based on the Court’s review of Dieckman’s Report and the parties’ submissions, which the Court finds are sufficient to render a determination, a Daubert hearing is not warranted in this case.
Held
The Court denied Defendants’ Daubert motion to strike the testimony of Dr. John Dieckman.
Key Takeaways:
Dieckman’s report met the Daubert standard because he articulated his methodology and the sources on which he relied.
Dieckman is qualified because he has performed vocational evaluations of injured and disabled individuals and produced reports regarding wage and earning loss.
Case Details:
Case Caption:
Young V. Jabil, Inc. Et Al
Docket Number:
2:23cv4992
Court Name:
United States District Court, Pennsylvania Eastern
Board of Education of the City of St. Louis, through Superintendent Kelvin Adams and Chief Human Resources Officer Charles Burton, imposed a vaccination mandate on its employees. Despite inviting requests for religious exemptions (and received nearly 200 of them), it denied every single one of them. As a result, many of the employees brought this suit against the Board, Adams, and Burton.
Defendants retained Dr. Daniel Salmon to provide opinions in six general areas: (1) the threat of COVID-19 in October 2021, (2) the “[s]afety and [e]fficacy of COVID-19 vaccines,” (3) institutions’ COVID-19 vaccine mandates, (4) the “[i]mpact of medical and religious exemption requests,” (5) “the anti-vaccine movement’s impact on mandatory vaccine policies,” and (6) the connection between COVID-19 vaccines and stem cells. Plaintiffs filed a motion to exclude the proposed testimony of Salmon.
Epidemiology Expert Witness
Daniel Salmon works as a professor of global disease epidemiology and control in the Department of International Health at the Johns Hopkins University Bloomberg School of Public Health.
The Plaintiffs argued Salmon lacked knowledge about the specific parties in the case, noting he reviewed only three exhibits and didn’t know the number of exemption requests.
The Court held that these objections did not warrant dismissing Salmon’s opinions wholesale.
2. Relevance
Plaintiffs argued that Salmon’s opinions lacked relevancy because they did not relate to Defendants’ stated reasons for denying Plaintiffs’ religious exemption requests. After all, the only reason that Defendants gave for denying Plaintiffs’ exemption requests was the need to “balance the constitutional obligation to provide a free public education” to Missouri youth against the right to the free exercise of religion.
Plaintiffs thus argued that any other attempted justification for the denials bears no relevance to the case because “[g]overnment ‘justification[s]’ for interfering with First Amendment rights ‘must be genuine, not hypothesized or invented post hoc in response to litigation.’”
The letters denying the religious-exemption requests did not explicitly mention the Board’s interest in protecting students and staff from COVID-19. But the challenged vaccination policy itself did. Basically, the Board of Education adopted this policy to safeguard the health and well-being of employees and their families.
Therefore, the post-hoc-in-response-to-litigation doctrine did not render Salmon’s opinions irrelevant.
3. Assistance to the Trier of Fact
Plaintiffs argued that Salmon’s opinions “expressed factual determinations that a jury is readily capable of making without expert assistance” and that his opinions “are premised on publicly available information regarding the COVID-19 pandemic.”
However, the Court rejected Plaintiffs’ argument on this ground as undeveloped.
4. Relevance and Unfair Prejudice
Plaintiffs argued that Salmon’s testimony would be “unfairly prejudicial” because it would associate Plaintiffs “with anti-vaccine movements and statements about stem cells.” Salmon admitted that he “[doesn’t] know anything about the Plaintiffs in this case.”
The Court agreed with Plaintiffs that Salmon’s opinions about the anti-vaccine movement’s impact on mandatory vaccine policies would not help the jury. After all, Salmon can offer nothing of value on the question of whether Plaintiffs’ objections were “religious in nature.”
So although Salmon might have knowledge about anti-vaccine movements, he does not (and cannot) connect any Plaintiff to any anti-vaccine movement.
Plaintiffs alleged in their complaint that their “religious beliefs prevented them from receiving the vaccination due to their use of fetal stem cells taken from aborted fetuses.”
As for Salmon’s opinions about stem cells and stem cells’ connection to COVID-19 vaccines, Salmon did not (and could not) opine on the extent to which the stem-cell issue influenced Plaintiffs’ objections to COVID-19 vaccination since he didn’t know anything about Plaintiffs.
5. Legal Conclusions
Salmon’s report answers this question: “Did institutions have a responsibility to evaluate non-medical exemption requests rather than simply rubber-stamping requests?” Salmon did not explain what he meant by “responsibility.”
To the extent that Salmon attempted to characterize “responsibility” as legal obligation, the Court excluded Salmon’s testimony as an improper legal opinion.
And to the extent that Salmon attempted to characterize “responsibility” in a different way (e.g., as moral or ethical responsibility), Defendants have failed to establish that Salmon has expertise to render opinions in that domain, and they have also failed to identify any reason why any opinions about moral or ethical responsibilities—as opposed to legal obligations—would have any relevance to the issues in this case.
Therefore, the Court excluded Salmon’s testimony to the extent that Salmon sought to testify to institutional responsibility of evaluating non-medical exemption requests.
6. Expertise
Plaintiffs argued, once again, that Salmon “did not apply any specialized expertise to the evidence.” The Court disagreed. Salmon’s expert report showed that he largely reached his conclusions based on his assessment, interpretation, and synthesis of numerous scientific studies related to vaccinology and epidemiology.
And Plaintiffs have failed to point to any specific opinions that they believe Salmon reached without his expertise. The Court rejects Plaintiffs’ generic, undeveloped argument on this ground.
Held
The Court granted in part and denied in part the Plaintiffs’ motion to exclude the testimony of Daniel Salmon.
Key Takeaway:
Salmon does not (and cannot) opine on the extent to which the stem-cell issue influenced Plaintiffs’ objections to COVID-19 vaccination because objective facts about the vaccines’ connections to stem cells have no bearing on whether Plaintiffs objected to vaccination based on their religious beliefs, which “need not be acceptable, logical, consistent, or comprehensible to others” to merit protection under the law.
Case Details:
Case Caption:
Brandon V. Board of Education of City of ST. Louis
Docket Number:
4:22 cv 00635
Court Name:
United States District Court for the Eastern District of Missouri, Eastern Division
Plaintiffs, Monterrey’s Grill Inc. filed suit against the Defendant, Axis Surplus Insurance Company, alleging that the Defendant breached its obligations under the insurance policy by not paying a claim for hurricane damage to Plaintiff’s commercial building. During discovery, Plaintiff disclosed Emory “Les” Covan as its damages expert and produced a 44-page replacement cost value estimate signed by Covan.
Axis Surplus Ins. Co. sought to exclude the testimony of Plaintiff’s retained damages expert witness, Covan.
Construction Expert Witness
Emory “Les” Covan is an estimator. He was retained to testify about the subject insurance claim, damages sustained as a result of the subject loss, costs of construction/necessary repairs and/or damages sustained by Plaintiff.
Defendant filed a motion to strike Plaintiff’s damages expert, Emory “Les” Covan, under Daubert, arguing his estimate merely “parroted” the opinions of the expert who prepared the initial draft of the estimate.
In this case, Covan conducted his own inspections and reviewed pertinent documents before signing the estimate. He explained that he reviewed photographs of the damage to the insured property; he conducted a virtual inspection of the property using a three-dimensional video of the property; he reviewed engineering reports detailing the damages, moisture levels, and the recommended repairs to the property; and he relied on the Xactimate program for the costs included in the estimate.
Moreover, for every line-item in the estimate that he was asked about during his deposition, Covan was able to explain the source of information (e.g., photograph, report, etc.) and reason for including that item in the estimate.
Even though Covan did not prepare the initial draft of the estimate, the record shows that he did not simply adopt the initial draft of the estimate as his own without doing any additional work.
As a result, the Court concluded that the fact Covan did not know how the initial estimate was prepared or how, if at all, it differed from his estimate goes to the weight of the estimate, not its admissibility. Likewise, the fact that there were only minor differences between Covan’s estimate and the initial draft concerned the weight of the estimate, not its admissibility.
Held
The Court denied Axis Surplus’ motion to excliude the testimony of Emory “Les” Covan.
Key Takeaway:
An expert cannot “simply repeat or adopt the findings of another expert opinion without attempting to assess the validity of the opinions relied upon.” Thus, one expert cannot simply adopt the opinion of another expert as his own without conducting his own analysis.
Case Details:
Case Caption:
Monterrey’s Grill Inc. v. Axis Surplus Ins. Co.
Docket Number:
3:23cv24580
Court Name:
United States District Court for the Northern District of Florida, Pensacola Division
