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  • Banking Expert’s Opinions Regarding the Card Processing Industry Admitted

    Banking Expert’s Opinions Regarding the Card Processing Industry Admitted

    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.

    Defendants filed a motion to exclude the testimony of two of Plaintiffs’ experts, Kenneth Musante and Kerrie Merrifield. 

    Musante opined that Global e-Trading, which does business as Chargebacks911, “provided critical and necessary support which allowed the fraudulent merchants to continue processing consumer payments. But for [Global e-Trading’s] assistance, the fraud would have either been muted or ended much sooner than it otherwise did.”

    Merrifield was “retained to review the documents and the ‘shipping,’ ‘refunds,’ and ‘charge backs’ Excel spreadsheets produced in the [case] in order to determine the differences between amounts that were charged United States customers that purchased either the, ‘buy 2, get 1 free’ (referred to as 3 bottles) or ‘buy 3, get 2 free’ (referred to as 5 bottles) promotion of either Instant Keto, Ultra Fast Keto Boost, or Keto Boost products, and the amounts these customers expected to be charged and is offset by any refunds and charge backs.” She opined that the total damages for the Keto Entities’ diet pill scheme is $18,779,274.

    According to Plaintiffs, they offered “Merrifield as an expert for only one thing: to filter and calculate numbers from hundreds of thousands of rows in a spreadsheet. Her assignment was to find select rows in a spreadsheet with values that fit into criteria that Plaintiffs’ counsel provided and to perform math on those values.”

    Banking Expert Witness

    Kenneth Musante has a Bachelor of Science in Managerial Economics, an MBA, and “graduated from the Pacific Coast Bankers School in Seattle, WA.” He has has more than thirty years’ experience with the banking industry and with the major credit card companies, such as Visa, Mastercard, Discover, American Express.

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

    Accounting Expert Witness

    Kerrie Merrifield is a Certified Public Accountant (CPA) and has over 35 years of experience accounting with an emphasis on forensic accounting and damages calculations. She has been the Director of Litigation Support for Axiom Forensics since 2008. 

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

    Discussion by the Court

    Kenneth Musante

    Global e-Trading maintained that Musante’s report included numerous impermissible legal conclusions, lacked a reliable methodology, and would not be helpful to the jury and is irrelevant.

    However, Musante pointed to the documents he reviewed in reaching his opinions based on his experience in the banking and card processing industries. And, in his deposition, Musante explained that he reviewed the complaint and other materials in the case, created an outline based on that review and his experience.

    While Defendants may have legitimate questions about Musante’s conclusions based on his document review or take issue with the documents he relied upon, the Court held that these issues can be explored on cross-examination.

    While the Court understands Plaintiffs’ position that Musante used the words “fraud” and “fraudulent” in the vernacular sense, the Court is concerned with the potential to confuse the jury by use of these words with legal significance. It is likely a jury would believe Musante was offering a legal conclusion that certain transactions legally constituted fraud. Thus, the Court prohibited Musante from using the words “fraud” and “fraudulent” in offering his expert opinions. However, the Court declined to exclude Musante’s use of the phrase “sham transactions” in relation to the microtransactions scheme or the term “bad actors.” Neither “sham” nor “bad actor” is a legal term of art, and the Court is not concerned about jury confusion over the use of these words.

    Moreover, it is permissible for Musante to testify — among other things — that, in his opinion, Global e-Trading “was instrumental” in helping the Keto Entities continue accessing card processing and selling its keto diet pills to consumers. While Musante’s opinions touch on an ultimate issue, Musante does not merely instruct the jury on what result to reach.

    Kerrie Merrifield

    Defendants also sought to limit the testimony of Kerrie Merrifield. Global e-Trading insisted that Merrifield is unqualified to offer certain opinions, her methodology is unreliable, and her opinions unhelpful to the jury such that her opinions should be excluded under Rules 702 and 403.

    Qualification

    Global e-Trading insisted that Merrifield was not qualified “to testify competently regarding the matters she intends to address,” specifically regarding “the price U.S. consumers expected to pay for their purchase.” But, indeed, Plaintiffs insisted that they were not offering Merrifield as an expert on consumer expectations.

    Although Merrifield’s calculations required an assumption about what consumers expected to pay, the Court did not interpret Merrifield as offering an expert opinion regarding consumer expectations.

    Reliability 

    Merrifield “reviewed various documents that were produced” in discovery and performed “various technical steps” “along with applying forensic accounting procedures in order to properly extract the data needed and to perform an accurate analysis.”

    She filtered through data and used data within large spreadsheets of payment and shipping information to calculate the class-wide damages in this case.

    The fact that the documents and spreadsheets Merrifield consulted were provided by Plaintiffs and that Merrifield consulted Plaintiffs’ counsel regarding certain assumptions did not render Merrifield an unreliable “mouthpiece” for Plaintiffs’ counsel.

    While Defendants may have legitimate questions about Merrifield’s reliance on the data within the spreadsheet or any assumptions underlying her analysis, the Court held that these supposed problems can be explored on cross-examination.

    Helpfulness to the Jury

    The Court also determines that Merrifield’s opinions and calculations will be helpful to the jury. Defendants are incorrect that Merrifield’s analysis involved “a simple math calculation that most kids in junior high could perform.” Rather, as Plaintiffs point out, the data Merrifield sifted through to make her calculations “is on a spreadsheet containing over 414,000 rows” such that she “had to use advanced Excel techniques to arrive at her numbers.” It is certainly helpful to the jury to have an analysis of the voluminous data from the spreadsheets provided to them rather than reviewing all the data in the spreadsheets themselves to reach a damages calculation.

    The Court held that Merrifield’s damages calculation, made after sorting through the voluminous data, will help the jury decide what damages to award, if it finds Defendants liable.

    Held

    • The Court granted in part and denied in part Defendant Global E-Trading, LLC’s Daubert motion to exclude the testimony of Kenneth J. Musante.
    • The Court denied Defendant Global E-Trading, LLC’s Daubert motion to exclude the testimony of Kerrie Merrifield.

    Key Takeaway:

    The Court considered all of Musante’s opinions, with the exception of his use of the legal terms “fraud” and “fraudulent,” helpful to the jury. The card processing industry and its procedures are unfamiliar to the average juror. For that reason, the Court held that Musante’s opinions regarding that industry and whether Defendants’ practices violated the rules of that industry or assisted the Keto Entities will be helpful to the jury. 

    Moreover, the Court held that Merrifield’s consideration of Plaintiffs’ counsel’s hearsay statements, which a reasonable damages expert would consider in conducting her analysis, was permissible under Rule 703.

    Case Details:

    Case Caption: Sihler Et Al V. Global E-Trading, Llc Et Al
    Docket Number: 8:23cv1450
    Court Name: United States District Court, Florida Middle
    Order Date: May 16, 2025
  • Mechanical Engineering Expert is Qualified Despite His Lack of Familiarity with Gaming Machines

    Mechanical Engineering Expert is Qualified Despite His Lack of Familiarity with Gaming Machines

    Plaintiff Mark Sabti, a Slot Technician at Greektown Casino, brought this products liability action against Interblock USA, the manufacturer of the Universal Cabinet Craps machine. Sabti alleged design defects and a breach of implied warranty of fitness by the Defendant after the machine’s gas springs failed. The hood of the machine fell and injured his back.

    Dr. Stephen Batzer prepared a Rule 26 Report opining that Defendant should have utilized a prop rod or self-locking gas springs, which are used on other gaming machines to hold the hood in place in its elevated position.

    However, Defendant filed a motion to strike Plaintiff’s expert Batzer contending he has no experience in the design of casino games or machines utilizing gas springs.

    Mechanical Engineering Expert Witness

    Stephen Batzer has a Ph.D. in Mechanical Engineering. He is a board-certified forensic engineer and has worked as a forensic engineer. He holds three safety patents and is a member of the American Society of Mechanical Engineers and the Society of Automotive Engineers.

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

    Discussion by the Court

    Batzer is expected to testify, consistent with his report, that Defendant was negligent in its design of the subject machine and that the subject machine is not fit for its intended use. He also identified alternative means that should have been utilized by the Defendant to prevent uncontrolled descent of the hood of the machine after it had been opened.

    To begin with, Batzer relied on the testimony of fellow slot technician James Thiellesen, who testified that other gaming machine manufacturers utilize self-locking gas spring which would prevent the uncontrolled descent of the hood.

    Moreover, Sean Matson, Slot Technician Manager at Greektown Casino, also testified that both Aristocrat and Light & Wonder gaming machines use prop rods or hinges that hold the hood in place so that it does not come down uncontrollably.

    The Court rejected Defendant’s argument that Batzer is not qualified because he has no experience working on casino gaming machines. Nor was the Court persuaded that Batzer’s opinion was unreliable because he did not perform any scientific analysis or testing.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Stephen Batzer.

    Key Takeaway:

    The Court upheld the admissibility of Stephen Batzer’s expert testimony despite his lack of direct experience with casino gaming machines. These issues also go to the weight to be accorded Batzer’s testimony, not to its admissibility. After all, he has specialized in forensic engineering and safety analysis for twenty years.

    Case Details:

    Case Caption: Sabti v. Interblock USA A K A Interblock Luxury Gaming Prods., LLC
    Docket Number: 23cv12620
    Court Name: United States District Court for the Eastern District of Michigan, Southern Division
    Order Date: May 15, 2025
  • Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Epidemiology Expert’s Opinions about the Risk of Breakthrough Infections Excluded

    Washington Governor Jay Inslee issued Proclamation 21-14 (“the Proclamation”), which required state employees to be fully vaccinated by October 18, 2021, to continue employment with the state. The Proclamation carved out an exception to the vaccination requirement for employees who were entitled to disability related accommodations or accommodations related to a sincerely held religious belief under relevant anti-discrimination laws, including Title VII and the Washington Law Against Discrimination (“WLAD”).

    This litigation concerns a number of Plaintiffs who requested religious accommodations from the Washington State Department of Fish and Wildlife (“WDFW”).

    While the Plaintiffs were initially granted religious accommodations, they were informed in late September of 2021 that “no reasonable accommodation” could be found because their jobs “must at times be done in the physical presence of others.” The Plaintiffs were subsequently terminated in November of 2021.

    Defendants filed a motion to exclude the expert opinion of Dr. Harvey Risch as well as those of Lisa Brock and John Cary.

    Epidemiology Expert Witness

    Harvey Risch is a practicing epidemiologist with more than 40 years of research and teaching experience. He is a Professor Emeritus of Epidemiology at Yale School of Public Health.

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

    Human Resources Expert Witness

    Lisa Brock has worked in human resources (“HR”) for over forty years. She spent the majority of her career in healthcare. Most recently, she worked as the HR director at Overlake Medical Center and Clinics.

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

    Vocational Rehabilitation Expert Witness

    John R. Cary is a certified rehabilitation counselor (CRC) and disability management specialist (CDMS) with over 19 years of experience in providing rehabilitation counseling and case management services to individuals facing socio-economic and psychosocial challenges, multiple morbidities, and language barriers. 

    Discover more cases with John Cary as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Harvey Risch

    Risch submitted two expert reports—one on the efficacy of COVID-19 vaccines and vaccine mandates and one rebuttal report. 

    In the rebuttal report, Risch opined that the vaccine mandate failed to recognize that “post infection natural immunity” is as good as if not better than vaccination.

    Defendants objected to Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation.

    Relevancy

    To begin with, Defendants maintain that “Risch’s opinions on the efficacy of COVID-19 vaccines, the role of natural immunity, and the Proclamation should be excluded for lack of relevancy,” as they will not assist the trier of fact in understanding “a fact in issue.”

    The Court concluded that Risch’s testimony about the efficacy of COVID-19 vaccines, the role of natural immunity, and the governor’s Proclamation requiring vaccination will be excluded for lack of relevance.

    Facial challenges to the Proclamation have been rejected and the vaccine mandate itself is not at issue in this litigation—only how WDWF applied it to its employees.  Accordingly, the Court held that testimony about the efficacy of the Governor’s vaccine mandate will not aid the “trier of fact to understand the evidence or to determine a fact in issue.”

    Moreover, Defendants argued that his opinions based on “information available after WDWF made accommodation decisions regarding Plaintiffs” must be excluded as not relevant.

    Besides, Defendants added that judging an employer’s undue hardship decision based on knowledge and information developed after the fact would hold that employer to an impossible standard. Risch asserted that WDFW cannot establish undue hardship because “the cumulative hardship would not have been inordinate compared to the larger breakthrough infection burden from the vaccinated staff.”

    Likewise, the Court excluded Risch’s conclusions about whether Defendants provided a reasonable accommodation or established undue hardship.

    Reliability

    Defendants argued that Risch’s opinions are not the product of reliable principles and methods because he does not state “what method of analysis he applies to any of the data he includes in his report.”

    As to Risch’s opinions about the risk of breakthrough infections, Defendants argued that he “fails to compare apples to apples.”

    In determining the number of WDWF employees who could have been expected to have breakthrough infections, Risch used CDC figure of 4.3%. The 4.3% figure represented the total number of vaccinated breakthrough cases by the total number of vaccinated people from April 2021 to December 2021: 5,988,636 divided by 139,768,554. 

    The Court held that not only were Risch’s calculations incorrect, but Risch offered no information or analysis comparing the job duties and responsibilities of the hypothetical employees who would suffer a breakthrough infection with those of the unvaccinated employees. For example, it is unknown whether any of these hypothetical employees teleworked full-time or otherwise interacted with co-workers or the public.

    Thus, even if there were hypothetical employees who suffered breakthrough infections, it impossible to evaluate whether those hypothetical employees would have, or would not have, posed a greater risk than the unvaccinated Plaintiffs in this case.

    Furthermore, the Court determined that Risch’s opinion about the 4.3% figure—that it “is also likely a very large undercount” is unreliable, as Risch does not cite any peer reviewed evidence or statistical analysis that suggests that the CDC figure is an undercount or account for whether CDC itself corrected for the factors Dr. Risch opines resulted in the undercount. 

    Lisa Brock

    In her report, Brock included a step-by-step best practices guide published by the Society for Human Resources Management (SHRM) on handling requests exemptions to a vaccine requirement. She testified that her professional opinion in the report is based on her experience as a “practitioner of human resources,” and specifically the experience she gained as an “HR practitioner during the time of the proclamation and the COVID vaccine.” 

    Defendants asserted that “despite her failure to engage in a comprehensive review of any Plaintiff’s accommodation process, Brock made several unsupported factual conclusions regarding WDFW’s accommodation process and also made impermissible legal conclusions.”

    The Court held that Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. This extremely limited evidence did not “provide a complete picture of relevant events”—indeed, Brock did not review any documents specific to more than half of the Plaintiffs going to trial and did not review the accommodations policies that WDFW had in place. 

    The Court excluded Brock’s report because she offered opinions without a full understanding or knowledge of the facts of this case.

    John Cary

    On January 31, 2025—the final day of discovery—Plaintiffs submitted an expert rebuttal report from John Cary. The rebuttal deadline had been extended at the Parties request to January 14, 2025. 

    Rule 37 forbids the use of Cary’s expert report unless Plaintiffs are able to show that the failure was substantially justified or harmless. Plaintiffs could have requested leave from the Court for late supplementation but did not. Plaintiffs could have notified Defendants and the Court during the discovery hearing on January 30, 2025, but did not. Accordingly, the Court excluded Cary’s expert report.

    Held

    The Court granted the Defendants’ motions to exclude the opinions of Dr. Harvey Risch, Lisa Brock and John Cary.

    Key Takeaway:

    • The Court held that Risch did not base his critiques of the CDC’s methods in widely accepted scientific methods of analysis—and failed to explain the analytical method he is using.
    • Brock relied on her personal experience and a paucity of documents to evaluate WDFW’s accommodations process. Accordingly, because Brock’s testimony lacks support from sufficient facts or data and fails to sufficiently specify the method by which she reached her conclusions, the testimony does not satisfy the Daubert standard.

    Case Details:

    Case Caption: Shirley Et Al V. Washington State Department Of Fish And Wildlife Et Al
    Docket Number: 3:23cv5077
    Court Name: United States District Court, Washington Western
    Order Date: May 13, 2025
  • Psychology Expert’s Testimony on the Grave Risk of Harm Admitted

    Psychology Expert’s Testimony on the Grave Risk of Harm Admitted

    Petitioner brought this action under the 1980 Hague Convention and the International Child Abduction Remedies Act, seeking the return of his minor child, S.A.M., to Switzerland. He alleged that Respondent wrongfully removed the child to Missouri in April 2025 without his consent and was unlawfully retaining custody.

    Asserting joint custody rights, Petitioner identified Switzerland as the child’s habitual residence and requested repatriation.

    Respondent raised affirmative defenses, claiming that the child’s return would pose a grave risk of physical or psychological harm or create an intolerable situation. She also invoked the Human Rights Exception of Article 20 of the Convention, arguing that the repatriation would violate the human rights and fundamental freedoms.

    Petitioner filed a motion to exclude the testimony of expert David Finn and to block a medical examination of the child.

    Psychology Expert Witness

    David Finn is a doctor of psychology and licensed clinical psychologist with a practice focused on forensic assessment in good standing in the State of Illinois of the United States of America

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

    Discussion by the Court

    Petitioner moved to exclude David Finn’s testimony under Daubert v. Merrell Dow Pharms., Inc. and Federal Rules of Evidence 702, 401, and 403, because his opinions were unreliable, cumulative, based on selectively provided documents and unsupported by sufficient testing.

    Respondent opposed the motion to exclude. It was clear that Petitioner has failed to demonstrate Respondent acted outside her authority as the custodial parent in obtaining the examination of the minor child by Finn. Finn also reviewed the reports from the Department of Children and Family Services.

    Finn evaluated S.A.M. and reviewed all documents regarding S.A.M. Finding that Finn’s opinions were based on a sufficient factual foundation and methodological approach, the Court ruled his testimony admissible. While Petitioner’s concerns could impact credibility, they did not warrant exclusion and would be properly addressed through cross-examination.

    Held

    The Court denied the Petitioner’s motion to exclude the testimony of David Finn.

    Key Takeaway:

    The Court found Finn’s testimony admissible, supported by interviews and a review of documents, including Department of Children and Family Services reports.

    It held that the objections against Finn’s testimony concerned credibility, not admissibility, and could be addressed on cross-examination. Expert testimony, it emphasized, should only be excluded if so unsupported that it offers no help to the factfinder.

    Case Details:

    Case Caption: Muehlbauer v. Muehlbauer
    Docket Number: 2:24cv47
    Court Name: United States District Court for the Eastern District of Missouri, Northern Division
    Order Date: May 14, 2025
  • Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    Family Medicine Expert Allowed to Testify Despite Her Lack of Experience in the Correctional Medical Context

    This litigation revolves around medical care, and the alleged lack thereof, provided to Plaintiff Peter George Noe between fall 2020 and late 2022, while incarcerated at the United States Penitentiary ADMAX in Florence, Colorado.

    Defendant filed a motion to exclude the testimony of Plaintiff’s retained expert, Dr. Kimberly A. Cullen, MD, arguing that Cullen does not qualify as an expert and that her testimony does not meet the reliability requirements of Federal Rule of Evidence 702.

    Family Medicine Expert Witness

    Kimberly Cullen is a primary care physician and board certified by the American Board of Family Medicine. She attended the University of Massachusetts Medical School and completed a three-year family
    medicine residency program at Swedish Family Medicine – First Hill in Seattle, Washington in 2018.

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

    Discussion by the Court

    Qualification

    Defendant first attacked Cullen’s qualifications as an expert, highlighting her limited experience, including no experience in the correctional medical context, and non-practicing status at the time of her deposition.

    The Court rejected Defendant’s argument that simply because Cullen has never worked in a correctional setting and because she may have had a brief gap in practicing as a primary care physician she does not qualify as a competent medical expert in this case.

    It is true that Cullen not only had several years of experience treating patients, including as a supervising physician, but she also has seen hundreds of patients treated or tested for UTIs and diagnosed and treated patients
    with degenerative disc disease, which is probative to the facts of this case.

    Reliability

    Defendant argued that Cullen’s opinions offered in this case, related to unreasonable delays in the care Noe received, including a failure to suspect a different source for Noe’s symptoms and pain, are unreliable because she does not specifically articulate a community standard of care and is relying on her experience as a young physician.

    Cullen clarified in her deposition that her opinions were based on the general
    standard of care and practice—the general practice of medicine.

    While Cullen’s opinions may be general as to why the Federal Bureau of Prisons (“BOP”) fell below the standard of care normally followed by a primary care physician, such as herself, the Court found that her specialized knowledge as a Colorado- licensed physician who is Board certified in Family Medicine would be helpful to the Court in determining the particular issues in this case.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Plaintiff’s retained expert, Kimberly A. Cullen, MD.

    Key Takeaway:

    Cullen’s opinions are more likely than not to be helpful and reliable given her review of Noe’s extensive medical records and the application of her knowledge, training, and experience as a primary care physician to the facts of this case.

    Case Details:

    Case Caption: Noe V. Seroski Et Al
    Docket Number: 1:21cv3340
    Court Name: United States District Court, Colorado
    Order Date: May 14, 2025
  • Marketing Expert’s Consumer Confusion Survey Admitted

    Marketing Expert’s Consumer Confusion Survey Admitted

    Plaintiff Alfwear, Inc. (“Alfwear”) is an outdoor clothing company that sells products under the KÜHL mark. Ibkul is a clothing company specializing in athleisure wear.

    In November 2021, Alfwear initiated this lawsuit against Ibkul, alleging trademark infringement, unfair competition, and dilution. Alfwear, Inc. has alleged that the sales of apparel using the IBKÜL trademark infringed Plaintiff’s rights in its KÜHL trademark.

    Alfwear disclosed that it intended for Rhonda Harper to serve as an expert “regarding research surveys, consumer confusion, and likelihood of confusion. Such evidence may also be offered in support of damages issues in the case.”

    Ibkul disclosed that Krista Holt would “serve as an expert in response to Plaintiff’s Expert Disclosures, including the general subject matter of ‘research surveys, consumer confusion, and likelihood of confusion’ and ‘damages issues,’ including any deductions and apportionment.”

    The parties moved to exclude each other’s expert under Rule 702. 

    Marketing Expert Witness

    Rhonda J. Harper has over 30 years of experience at the highest levels of marketing, research, and branding. She has been the top marketing executive for several Fortune 100 corporations, served as an adjunct marketing professor at two universities, held national and international board positions in leading brand and marketing associations, led a leading global agency division, and founded an organic growth strategic consultancy. Harper has also provided and rebutted hundreds of trademark and trade dress infringement surveys for litigation purposes.

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

    Intellectual Property Expert Witness

    Krista Holt is a Managing Director at Econ One Research, Inc. (“Econ One”). Holt is an active member of the American Bar Association, Intellectual Property Owners Association, International Trademark Association, National Association of Certified Valuators and Analysts and Licensing Executives Society.  She was the Chair of the LES Valuation and Taxation Committee.  Holt is also a Certified Licensing Professional and an Accredited Valuation Analyst, and is an instructor for the Certified Licensing Professional program.

    She has lectured on a variety of intellectual property topics for the American Bar Association, Licensing Executives Society, IPI, DRI, Harvard Law, George Washington Law and various other organizations and universities.

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

    Discussion by the Court

    Krista Holt

    Holt was asked by IBKUL to serve as an expert in response to Alfwear’s expert, including the general subject matter of research surveys, consumer confusion, and the likelihood of confusion. Holt was also asked to serve as an expert on damages issues “including any deductions and apportionment.”

    Alfwear contended that portions of Holt’s expert report should be excluded on three bases. First, it argued that Ibkul failed to disclose Holt at the deadline for affirmative experts, so the portions of her report that go beyond the scope of the Harper Report should be excluded. Next, it argued that Holt was not qualified to offer opinions on marketing. Finally, Alfwear argued that Holt used the wrong standard to critique Harper’s methodology. The Court considers each argument in turn.

    Rule 26

    Holt was previously retained by another defendant in a different case to assess the fame of the KÜHL mark (the “Fame Survey”). Holt conducted an online survey of 394 respondents from the general public in 2020, which indicated that consumers do not consider KÜHL to be famous.

    Alfwear argued that two portions of the Holt Report should be excluded for failure to comply with the Rules of Civil Procedure. First, it argued that the Fame Study in the Holt Report should be excluded because Holt was designated as a rebuttal expert on topics that did not include the fame of any of Alfwear’s marks.

    Second, it argued that Holt’s opinions about damages should be excluded because Holt was not timely disclosed as a damages expert and because the Harper Report does not address damages.

    The Court held that the Fame Study is not responsive to the Harper Report and Alfwear does not have the ability to find another expert to conduct a responsive study at this stage in the litigation. Morover, Ibkul’s failure to disclose Holt was prejudicial to Alfwear. The deadline for expert discovery had passed and Alfwear did not have the opportunity to retain a responsive damages expert. In conclusion, the Court held that it would be highly prejudicial to allow this damages testimony into trial without giving Alfwear an opportunity to respond with its own expert.

    Qualifications

    Alfwear next argued that Holt is not qualified to offer an opinion on whether the parties sell in different product categories.

    However, Alfwear did not challenge Holt’s qualifications to offer the other rebuttal opinions presented in her report. Holt’s experience and education qualify her to offer a rebuttal opinion on Harper’s Confusion Survey. Holt has a master’s in business administration and has over ten years of experience in accounting and marketing. Holt has provided survey services in trademark disputes for over fifteen years, including designing and rebutting trademark surveys. She also has also presented on survey design and brand valuation. Accordingly, the Court evaluated Holt’s rebuttal testimony to determine whether it is reliable.

    Critique of Confusion Survey

    Alfwear argued that Holt’s critique of the Confusion Survey should be excluded because Holt used an incorrect standard to evaluate the data.

    Ibkul relied on a supplemental declaration by Holt. The Holt Declaration stated that it sought to “clarify and supplement” the report “in light of Plaintiff’s challenges.”

    Because the Rules prohibit preparing a declaration solely to strengthen and deepen Holt’s existing opinions, the Court has not considered the Holt Declaration or Ibkul’s arguments relying on it.

    As for Holt’s critique of the standard used to evaluate the survey in the Harper Report, the experts’ competing opinions about which standard should be used present the classic battle of the experts and it is up to a jury to evaluate what weight and credibility each expert opinion deserves.

    If Holt’s rebuttal opinion uses an outdated standard, Alfwear may seek to present that information to the jury at trial. However, the Court held that it is not a sufficient basis to exclude Holt’s opinions at this stage.

    Rhonda Harper

    As part of its litigation strategy, Alfwear hired Rhonda Harper to determine whether consumers would confuse the IBKÜL mark with the KÜHL mark. Harper was asked “to conduct a forward likelihood of confusion survey among the relevant population and provide [her] opinions.” Harper utilized a Squirt-style sequential line-up study to evaluate whether consumers would confuse the KÜHL and IBKÜL marks (the “Confusion Survey”).

    The Court first addresses whether the Confusion Survey uses reliable methodology. Then, it turns to whether Harper reliably applied this methodology and addresses Ibkul’s arguments against the Report’s admission.

    Methodology

    The Court held that Harper used an accepted method for measuring consumer confusion in trademark disputes and applied recognized standards as per the Daubert factors. 

    Application

    Confusion Survey Universe

    The Court first considered the Confusion Survey’s universe and whether the sample it considered was representative.

    Ibkul first argued that the Harper Report should be excluded because the relevant universe it surveyed is not accurate.

    The Harper Report states that “the relevant universe was defined as past and potential purchasers of Defendants’ products.”

    Ibkul argued that there should be a far more limited universe, arguing that the survey should be excluded because its respondents are outside Ibkul’s typical shopper, a woman in Florida with an income around $150,000 who is willing to pay around $100 for apparel and shops at golf, tennis, and country clubs.

    The Court held that the consumers represented in the Confusion Survey reasonably approximate Ibkul’s potential customers; therefore, the survey universe is not so broad that the Survey should be excluded.

    Ibkul contended that the survey universe is too broad because it contains individuals interested in athleisure wear, which it argues is a “very general class of products.” However, Ibkul sells athleisure wear.  It does not explain why the survey universe should not consider individuals interested in athleisure wear, which includes its product line. Therefore, the Court held that Ibkul has not shown that the survey is so broad that it does not represent potential Ibkul customers, and the Confusion Survey should not be excluded on this basis.

    Confusion Survey Conditions

    Ibkul challenged the Survey’s use of hang tags without showing the parties’ clothing, arguing that showing only the hang tags fails to recreate marketplace conditions. Ibkul also argued that survey conditions do not match real world condition because IBKÜL is in a different product category than KÜHL. Moreover, Ibkul contended that the Confusion Survey does not accurately reflect market conditions.

    However, the Court held that although Ibkul has pointed out issues with the survey that may diminish its evidentiary value, none of these flaws are so serious and pervasive that the entirety of the Confusion Survey should be excluded.

    Confusion Survey Methodological Errors

    Finally, Ibkul argued that the Confusion Survey’s methodology was unreliable. It argued that the questions included were leading and suggestive, that different control hang tags should have been used, and that there were errors in the report’s calculations.

    However, the Court held that Ibkul has not shown that any survey questions were so leading that the Confusion Survey should be excluded. It did not explain why any questions used in the survey were so leading that they cause serious and pervasive flaws in the Harper Report. Moreover, the survey’s use of a control group provides assurances of its reliability.

    Held

    • The Court granted in part and denied in part Alfwear’s motion to exclude Krista F. Holt’s expert report.
    • The Court denied Ibkul’s motion to exclude testimony and opinions of Plaintiff’s survey expert Rhonda Harper.

    Key Takeaways:

    • Ibkul has introduced criticisms of the Confusion Survey that may ultimately show that the Survey, and Harper’s opinions based on it, have little evidentiary value. But that is a decision for the jury. Ibkul has not established that the Survey has such serious and pervasive flaws that the Court should exclude it altogether. 
    • Alfwear has demonstrated that the Fame Survey and damages calculations should be excluded. It has also established that Holt cannot offer testimony about whether the parties sell in different product categories. 

    Case Details:

    Case Caption: Alfwear V. Ibkul Ubhot
    Docket Number: 2:21cv698
    Court Name: United States District Court for the District of Utah
    Order Date: May 12, 2025
  • Insurance Expert is Not Allowed to Opine on Structural Design

    Insurance Expert is Not Allowed to Opine on Structural Design

    Plaintiffs, Michael and Karen Green claimed that they had sustained loss as a result of hail and wind. Defendant Nationwide Mutual Insurance Company issued them a homeowner’s policy but when Plaintiffs filed a claim for loss under the policy, it gave rise to this dispute because Nationwide apparently failed to reimburse all covered losses under the Policy.

    Nationwide sought to exclude the testimony of Plaintiffs’ retained expert witness, James Taylor, a licensed public adjuster.

    Insurance Expert Witness

    James Taylor has extensive knowledge about restoration and common practices in adjusting and handling claims in the insurance industry. He is licensed public adjuster, insurance appraiser, and IICRC-certified restorer with significant experience in insurance claims handling, loss assessment, and industry-standard compliance.

    He has worked in field of remediation since 2000, and as an insurance adjustor and appraiser since 2019. Taylor’s professional background includes experience in water intrusion and hail damage assessments and structural loss analysis. He holds a public adjuster license with multi-state reciprocity, including Missouri, and maintains IICRC certification in restoration practices.

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

    Discussion by the Court

    Nationwide argued that Taylor lacked the qualifications to opine on the Nederveld engineering report or offer credibility opinions regarding third parties. Plaintiffs countered that Taylor’s testimony concerned insurance industry standards and claims handling practices, not legal conclusions, and agreed he would not testify on the legal standard for vexatious refusal to pay under Missouri law.

    The Court found Taylor qualified based on his extensive experience as a public adjuster, appraiser, and restorer. The Court ruled that Taylor will be permitted to testify regarding insurance industry practices and standards in general, proper claims handling, how certain information affects claims decisions, and whether Nationwide’s actions deviated from insurance industry customs and practices.

    As for the Nederveld engineering report, the Court allowed Taylor to testify on how the industry uses such reports and why, as an adjuster, he finds it reliable or not, but ruled he could not offer opinions on structural engineering defects. Similarly, while he could not give unfounded credibility opinions about third parties like SeekNow or Sedgwick Claims, the Court permitted him to testify if their services or practices were consistent with insurance industry standards.

    Held

    The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of expert James Taylor.

    Key Takeaway

    Taylor is not an attorney offering a legal opinion as to whether Nationwide complied with Missouri law. He is a licensed public adjuster and former restorer, and he is an expert in insurance industry practices and standards. He is offering opinions as to whether Nationwide’s handling of Plaintiffs’ claim was in line with practices in the insurance industry, which goes to the issue of reasonableness and is admissible.

    Case Details

    Case Caption: Green v. Nationwide Mut. Ins. Co.
    Docket Number: 4:23 cv 156 
    Court Name: United States District Court for the Eastern District of Missouri, Eastern Division
    Order Date: May 12, 2025
  • Infectious Disease Expert’s Statements on Employer Liability Excluded

    Infectious Disease Expert’s Statements on Employer Liability Excluded

    Plaintiffs, former employees of a local government public health agency, each filed suit against Rock Island County Health Department (“RICHD”) and Rock Island County, Illinois (“the County”) alleging that their previous employer, RICHD, violated Title VII of the Civil Rights Act of 1964.

    The purported violations stem from their employer’s failure to accommodate their religious beliefs, first, when it denied their exemptions from a COVID-19 vaccination requirement, and later when Plaintiffs were terminated for failing to get vaccinated.

    RICHD disclosed an expert witness, Dr. F. Ramzi Asfour. Asfour was asked to “provide his opinion concerning the proper approach of a public health entity to evaluating requests from employees to be exempted from” vaccination requirements and to provide epidemiological evidence related to vaccine efficacy compared to other mitigation methods.

    Plaintiffs filed the instant motion to bar Asfour, arguing that his opinion violated the standards of Federal Rules of Evidence 702 and 704.

    Infectious Disease Expert Witness

    F. Ramzi Asfour, MD, is board certified in Infectious Diseases and Internal Medicine, having attended a fellowship specializing in infectious
    diseases and having worked for the World Health Organization.

    His experience practicing medicine in the area of infectious diseases spans seventeen years, with over 72,000 patient encounters. Moreover, he has recent experience in consulting hospitals and other healthcare facilities on “policies, procedures and protocols relating to COVID-19.”

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

    Discussion by the Court

    Whether the Statements Fall Outside of Asfour’s Expertise

    Plaintiffs state that Asfour is a medical doctor with an expertise in public health who “is not qualified to render opinions regarding religion or religious exemptions.”

    The Court held that Asfour did not purport to opine about the sincerity of anyone’s religious beliefs. Instead, he highlighted various reasons that it was important from a public health perspective that healthcare workers be vaccinated, and based on those factors, opined that healthcare entities should carefully scrutinize requests for religious exemptions from COVID-19 vaccination requirements. Further, he opined that the scrutiny should be accomplished by identifying whether there was a “clear and specific doctrinal basis for objecti[ng]” to getting the vaccine. This is not a religious opinion, so Plaintiffs’ argument that Asfour should be barred from testifying that “religious exemptions should generally be denied unless there is a clear and specific doctrinal basis for objection” on the basis that it is outside his expertise is denied.

    Whether the Opinion Contains Legal Conclusions

    Asfour opined on how “employer liability” is affected by a potential COVID-19-
    related illness or death. And, while Plaintiffs do not take issue with
    this part of the opinion, Asfour recounts, verbatim, the definition of religion under Title VII.

    While allowing Asfour to opine as to the definition of religion under Title VII and interpret an employer’s liability related to COVID-19 illness or death would run the risk of confusing a jury with multiple presentations of the law, the Court held that Asfour’s statements also offer his perspective on public health matters and provide background for RICHD to make its arguments related to whether granting religious exemptions constituted an undue burden.

    Therefore, the Court will limit Asfour’s opinion as to his statement on employer liability related to COVID-19 illness or death, and the definition of religion under Title VII. Those are matters designated for the Court to instruct on; all other statements do not constitute legal conclusions.

    Whether the Opinion Meets the Standards of Reliability

    From what the Court can decipher from Plaintiffs’ motion, they did not challenge that the underlying data or methodologies used to formulate Asfour’s opinion were unreliable; however, they seemingly did contend that his opinion cannot meet the requirements under Rule 702(d).

    Asfour began his expert report by outlining “[a] meta-analysis with seven studies with 21,618,297 COVID-19 patients,” and explained how “unvaccinated patients were 2.46 times more likely to die from COVID-19.”

    He analyzed the drop in the death rate after the introduction of the vaccine, specifying how the weekly deaths in Rock Island County decreased from five to one from late 2021 to early 2022.

    Asfour then discussed how religious groups generally did not object to vaccinations from a public health standpoint.

    The Court held that Asfour’s application of data to the facts at hand did not run afoul of what was required under Rule 702(d).

    Whether the Opinion is Relevant

    Plaintiffs argued that much of Asfour’s opinion consisted of mere “facts which appear solely intended to justify the vaccine mandate itself which is not the issue for this jury.”

    However, the Court held that Asfour’s opinion will aid the factfinder by providing a better understanding of how the rates of infection during the COVID-19 pandemic changed based on the availability and use of the vaccine, which connects to the analysis of whether RICHD faced an undue burden in granting exemption requests.

    Plaintiffs next argue that the opinion is too vague due to Asfour’s use of words like “most,” “many,” and “generally.”

    Since RICHD has met its burden in establishing how the expert opinion will aid the finder of fact, the Court held that Asfour’s opinion is not too vague to provide this background.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion to bar or exclude Defendant Rock Island County Health Department’s expert F. Ramzi Asfour.

    Key Takeaway:

    Asfour has over seventeen years of experience in treating infectious diseases and has recently shifted his career to consulting healthcare entities specifically on COVID-19 responses—expertise that he pulls from to formulate his opinion. Moreover, his expert opinion meets the relevant standards; he is qualified to opine on matters of public health, his methodology was reliable, and the testimony is relevant.

    However, Asfour cannot opine on the definition of religion under
    Title VII or employer liability related to COVID-19 illness or death.

    Case Details:

    Case Caption: Sanchez V. Rock Island County Health Department
    Docket Number: 4:23cv4007
    Court Name: United States District Court for the Central District of Illinois, Rock Island Division
    Order Date: May 12, 2025
  • OSHA Expert Barred From Testifying About Causation

    OSHA Expert Barred From Testifying About Causation

    David Badagliacco, a Skokie, Illinois police officer, sued Safariland, LLC, alleging his exposure to pepper spray during their training course was the reason he suffered from an eye infection necessitating cornea replacement surgery. Badagliacco contended that the negligent, willful and wanton operation of the training course caused his injuries.

    Plaintiff David Badagliacco retained expert witness Patrick Schuerman, an inspector for the Illinois Occupational Safety and Health Administration to testify regarding the standard of care for provision of a decontamination station when training for use of a substance like pepper spray. 

    Badagliacco’s treating physician, Ali Djalilian, an ophthalmologist and corneal specialist, offered an opinion about whether pepper spray can cause the injury Badagliacco suffered. 

    Safariland argued that there is insufficient evidence for a reasonable jury to find that any breach of Safariland’s duty with respect to provision of a decontamination station caused Badagliacco’s injuries. Specifically, Safariland argued that neither: (1) the OSHA inspector, Patrick Schuerman; nor (2) Badagliacco’s treating physician, Ali Djalilian, are qualified to offer an opinion regarding the causation of the injuries to Badagliacco’s eyes.

    Occupational Safety and Health Administration Expert Witness

    Patrick Schuerman is a member of Midwest Safety Consultants LLC. He has
    expertise in workplace safety, accident investigations, and State and Federal
    Standards as it relates to Occupational Health and Safety. He has had 30 years of Safety and Risk Management Experience. In addition, he has been an instructor at Illinois Valley Community College, teaching industrial safety since 2012.

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

    Ophthalmology Expert Witness

    Ali R. Djalilian is a recognized authority on immunologic issues in corneal/limbal stem cell transplantation and the surgical management of severe ocular surface disease. He has developed innovations in surgical techniques that substantially improve the surgical efficiency and the patient outcomes. Djalilian bridges his clinical experience with his basic science and translational research projects, which have been funded in part by the National Eye Institute/NIH and Research to Prevent Blindness. He joined the department in 2005. He is board certified in ophthalmology.

    Discover more cases with Ali R. Djalilian as an expert witness by ordering his comprehensive Expert Witness Profile report. 

    Discussion by the Court

    The Court agreed that Schuerman lacked the necessary expertise to testify about the cause of an eye injury. However, Schuerman’s testimony is intended to address the standard of care for provision of a decontamination station, not causation of Badagliacco’s eye injury. The Court does not understand Badagliacco to be offering Schuerman’s testimony to prove causation. Safariland had not challenged his qualification on the standard of care issue, and the Court found him qualified for that limited purpose. The causation of Badagliacco’s eye injury, however, implicates the physiology of the human eye, and Badagliacco has not argued that Schuerman has any expertise in that subject area, so the Court barred him from testifying about it.

    Djalilian has treated Badagliacco’s eye injuries, and therefore was qualified to offer an opinion about whether pepper spray can cause the injury Badagliacco suffered. 

    The Court rejected Safariland’s argument that Djalilian was not qualified to opine on whether the “pepper spray could injure the eye such that an infection could develop” because he is not a toxicologist or epidemiologist.  Toxicologists or epidemiologists are generally not experts in the physiology of the eye.

    The Court held that this argument concerned the weight of Djalilian’s testimony, not its admissibility.

    Held

    While there is nothing about Patrick Schuerman’s expertise that would qualify him to offer an opinion about the cause of an eye injury, the Court found him qualified to testify about the standard of care for provision of a decontamination station.

    As for Ali Djalilian, the Court held that he is an expert in the functioning of the human eye, and thus qualified to offer an opinion about whether pepper spray can cause the injury Badagliacco suffered. 

    Key Takeaway:

    A treating physician’s opinion about causation is admissible without disclosure as opinion evidence pursuant to Federal Rule of Civil Procedure 26(a)(2), as long as the physician made the determination about the cause of the injury “in the course of providing treatment.”

    Djalilian testified that in the course of his treatment of Badagliacco’s injuries he determined that they were caused by the pepper spray.

    Case Details:

    Case Caption: Badagliacco v. Safariland, LLC
    Docket Number: 1:21cv2424
    Court Name: United States District Court for the Northern District of Illinois, Eastern Division
    Order Date: May 9, 2025
  • Belated Production of the Accounting Expert’s Report Was Not Justified

    Belated Production of the Accounting Expert’s Report Was Not Justified

    Asserting various state and federal claims arising from alleged trademark infringement, Sacks Holdings, Inc. (the “Plaintiff” or “Sacks”) sued Grin Natural USA Limited, Grin Holdings Limited, Grin Natural US Limited, and Grin Natural Products Limited (collectively, the “Defendants” or “Grin”) for, inter alia, trademark infringement.

    In July 2024, Defendants’ counsel contacted Julianne “Juli” Saitz at FTI Consulting, asking her “to take a look at” the instant “trademark infringement dispute,” as well as to “give [defense counsel Saitz’s] thoughts on potential damages.”

    At 8:12 p.m. on Wednesday, October 30, 2024, Defendants produced a second expert report from Saitz (the “New Report”) as well as certain documents (the “New Evidence”) that contain “information relied on by Saitz in forming her opinions.” 

    Plaintiff sought to exclude the New Evidence and strike the New Report. Defendants opposed both Motions.

    Accounting Expert Witness

    Julianne Saitz has more than 25 years of experience providing forensic accounting and financial and economic analysis to attorneys in litigation and arbitration, as well as private general ledger accounting expertise. 

    Saitz holds a B.S. from New York University’s Stern School of Business. She is a Certified Public Accountant in New York, is Accredited in Business Valuation and is Certified in Financial Forensics by the American Institute of Certified Public Accountants.

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

    Discussion by the Court

    First of all, Defendants failed to establish either harmlessness or substantial justification for their belated production of the New Evidence.

    Defendants contended that the New Report qualifies as a “timely and proper” supplementation. 

    To begin, as Defendants tacitly concede, the Initial Report opines solely on the parties’ sales, whereas the New Report additionally opines on the parties’ profits. Thus, the New Report offers “new opinions” and calculations; it does not merely “offer[] more details on [Saitz’s] prior calculations” or otherwise supplement her prior opinions.

    However, Defendants just failed to provide the (basic) information necessary to begin the five-day objection window until August 26, 2024, a delay that extended the objection window beyond the expert report deadline.

    “Second,” Defendants maintained, they “created new financial statements after receiving guidance from Saitz on the details of costs and expense information necessary from deduction of sales to determine profits. That effort took until October.” The Court held that this argument does not show good cause for the violation of Rule 26.

    The exclusion of the New Evidence independently necessitates exclusion of those portions of the New Report that rely thereon, and the determination that Plaintiff possesses priority rights to the disputed mark lessens the importance of the New Report’s calculation of Plaintiff’s profits to resolution of this action. 

    This case, filed more than seventeen months ago, goes to trial in less than three months and even Defendants’ proposed alternative sanction would interject further delay into these proceedings. 

    In sum, the Court held that the Defendants failed to establish good cause for their belated production of the New Report.

    Held

    The Court granted the Plaintiff’s motion to exclude the New Evidence and strike the New Report. 

    Key Takeaway:

    Rule 26(e) requires a party to “supplement or correct its disclosure or response . . . if the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

    Case Details:

    Case Caption: Sacks Holdings, Inc. V. Grin Natural USA Limited Et Al
    Docket Number: 1:23cv1058
    Court Name: United States District Court, North Carolina Middle
    Order Date: May 09, 2025