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  • Audiology Expert’s “Chart Note” is Not a Proper Expert Report

    Audiology Expert’s “Chart Note” is Not a Proper Expert Report

    This case stems from a rear-end, chain-reaction accident. Plaintiffs alleged that, on or about June 16, 2019, Plaintiff Miranda Allen was driving northbound on Interstate 5 in Skagit County, Washington, with Plaintiff J.M. as a passenger in her vehicle.

    While Plaintiff Allen’s vehicle was stopped in traffic, Defendant Martin Barratt, also driving northbound on Interstate 5, rear-ended Plaintiff Allen’s vehicle, “caus[ing] Plaintiff Allen’s vehicle to crash into the rear of the vehicle directly in front of them.” As a result of the accident, Plaintiff Allen allegedly sustained substantial and permanent injuries.

    On February 3, 2025, the Parties timely filed respective motions to exclude expert testimony. First, Plaintiffs filed a motion to exclude the expert testimony of Dr. Michael Hatzakis, Defendants’ physiatrist expert. Later that day, Defendants filed a motion to exclude the expert testimony of Dr. Leah Keylard, Plaintiffs’ audiologist expert.

    Physical Medicine And Rehabilitation Expert Witness

    Dr. Michael Hatzakis has been board certified in Physical Medicine and Rehabilitation for the last 20 years.

    Hatzakis worked as an engineer for almost a decade before entering medical school at Stanford University School of Medicine in California. While attending medical school, he also worked in the department of Electrical Engineering at Stanford, Neurosurgery and Interventional Radiology. Among other projects, he developed neural prosthetic devices under a joint program between Stanford medical school and the Department of Electrical Engineering. He did his residency training in Physical Medicine and Rehabilitation at Thomas Jefferson University Hospital in Philadelphia, PA.

    Over the last five years, through his leadership in the American Academy of Physical Medicine and Rehabilitation (AAPM&R), he has spearheaded one of the most ambitious “big- data” projects to improve the quality of care for individuals with low back pain, and, with neurological disorders. 

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

    Audiology Expert Witness

    Leah Wilkinson Keylard is a clinical audiologist and has been practicing since 1999.

    She has a strong background in diagnostic and rehabilitative audiologic techniques. She holds a Doctor of Audiology (Au.D.) from the Arizona School of Health Sciences.

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

    Discussion by the Court

    Michael Hatzakis

    Plaintiffs sought to exclude the expert testimony of Michael Hatzakis as insufficient under Federal Rule of Evidence 702.

    Plaintiffs represented that Hatzakis produced an initial expert report in November 2023 where he opined, inter alia, that Plaintiff Allen’s injuries had been proximately caused by the motor vehicle collision at issue in this case.

    According to Plaintiffs, Hatzakis’ opinions in the November 2023 report concurred with other expert testimony in the case: Hatzakis agreed that Allen suffered from the injuries and damages the other expert and independent medical examiners had found.” On November 26, 2024, however, Hatzakis provided Plaintiffs with an addendum to his original report. In the addendum, Hatzakis diverged from his original findings, opining that “none of Allen’s injuries or damages were caused by the collision, in direct contrast to his first report.”

    Plaintiffs’ Grounds for Exclusion

    First, Plaintiffs asserted that “Hatzakis has rendered opinions and conclusions which are contrary to scientifically accepted principles, and are based upon inaccurate and incomplete information.” Second, Plaintiffs asserted that Hatzakis’ opinions and conclusions “are . . . in direct contrast to the one other matter [Plaintiffs’ counsel] could find.”

    a. Opinions “Contrary to Scientifically Accepted Principles”

    Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.

    A sum, for example, cannot be “contrary” to, say, arithmetic; an x-ray impression cannot be “contrary” to radiology. To the extent that Plaintiffs intended to assert that Hatzakis’ opinions and conclusions are based on or derived from non-scientific principles—or, alternatively, are incorrectly based on or improperly derived from scientific principles—Plaintiffs do not sufficiently demonstrate that this is so. The Court held that the Plaintiffs relied on conclusory statements and did not connect their lengthy recitation of the rules of evidence to their cursory discussion of how Hatzakis’ testimony transgresses those rules.

    Moreover, Plaintiffs’ argument that Hatzakis’ opinions and conclusions are based upon inaccurate and incomplete information also failed. Plaintiffs did not provide any indication that Hatzakis reviewed any data that were factually wrong or otherwise erroneous. Plaintiffs suggested that Hatzakis might have based his opinions on an incomplete set of records, but not that those records were, however scant, faulty. According to the Court, the fact that an expert might have based their opinion on incomplete records is not sufficient grounds for exclusion under the Daubert standard. Rather, such a critique “goes to the weight of his opinions rather than their admissibility.”

    b. Opinions “in Direct Contrast” with Other Opinions

    As to Plaintiffs’ second basis for excluding Hatzakis’ testimony, it simply did not make sense. Plaintiffs asserted that Hatzakis’ opinions and conclusions are “in direct contrast to the one other matter [Plaintiffs’ counsel] could find, absent providing an adequate testimony list.” Taking Plaintiffs’ argument at face value, the Court is at a loss to see how Hatzakis’ opinions in an unrelated case have anything to do with his opinions in this one. Unless the facts, circumstances, and damages that were the subject of Hatzakis’ opinions in the other matter are directly comparable to Plaintiff Allen’s injuries and damages here—and Plaintiff does not provide any evidence indicating that they were—then it is not clear how those opinions and conclusions could logically be “in direct contrast” to the opinions and conclusions at issue in this case.

    To the extent Plaintiffs asserted that Defendants should have provided more robust disclosure with respect to Hatzakis’ testimony either before or after his deposition, the Court noted that Plaintiffs had Hatzakis’ list of testimony as early as November 20, 2023, yet waited more than a year—until December 5, 2024, one day after discovery motions were due and just 11 days before Hatzakis’ scheduled deposition on December 16, 2024—to raise the issue of the adequacy of the list of testimony.

    c. Opinions Based on “Erroneous Assumptions”

    Finally, as to Plaintiffs’ third basis for excluding Hatzakis’ testimony, Plaintiffs did not identify any of the purported “erroneous assumptions” not in the record upon which Hatzakis’ opinions are based. As discussed above, it appears that Plaintiffs objected to the size of the body of evidence that Hatzakis reviewed when forming his opinions, not the evidence itself. The Court ruled that such a deficiency can be borne out in cross examination and need not form the basis for exclusion.

    Leah Keylard

    Plaintiffs chose to list Dr. Leah Keylard, an audiologist, as a retained expert witness under Rule 26(a)(2)(B), meaning she was required to provide a written report.

    Defendants sought to exclude the testimony of Keylard. Keylard opined on Plaintiff Allen’s alleged injuries. Unlike Plaintiffs’ other expert reports disclosed under Rule 26(a)(2)(B), Keylard’s report is captioned as a “chart note,” not an expert report, and it is only three pages long.

    Although Keylard’s report refers to a “[r]eview of medical records as well as described history of noise provided by the patient,” the report does not discuss any specific documents or medical records that informed Keylard’s opinion and provides only a cursory summary of the results of three diagnostic tests. Indeed, the “report” reads much like it is labeled: as a healthcare provider’s note prepared subsequent to a patient encounter, not a studied synthesis and analysis of diagnoses and data from multiple sources.
    Defendants argued that the brevity of Keylard’s report, as well as its lack of specific detail, particularly with respect to the sources upon which Keylard has based her conclusions, leaves the report short of the requirements that Rule 26(a)(2)(B) prescribes for an expert report.

    Defendants’ Grounds for Exclusion

    a. Rule 26(a)(2)(B)

    As Defendants pointed out, Keylard’s report is a “‘chart note’ and not a full report.” The Court held that a “chart note” is not a proper expert report under Rule 26(a)(2).

    Indeed, when presented with expert reports similar to that of Keylard, courts have excluded the testimony as having been insufficiently disclosed under Rule 26(a)(2)(B).

    Keylard’s report refers to “records relating to [her] independent medical evaluation but d[oes] not provide records of that evaluation,” leaving Defendants “[without] the necessary records to counter-designate a rebuttal expert.”

    For their part, Plaintiffs argued, inappositely, that Keylard’s Rule 26(a)(2)(B) report was sufficient because “Defendant[s] had an opportunity to depose Keylard and chose not to.” This is beside the point. The relative sufficiency of a Rule 26(a)(2)(B) report is not enhanced by the opposing party’s decision not to depose its author—in fact, the rule contemplates the exact opposite relationship between disclosures and depositions.

    b. Rule 37(c)(1)

    Plaintiffs argued that Keylard’s testimony should not be excluded, because “[e]xclusionary sanction based on discovery violations are [sic] generally improper absent undue prejudice to the opposing side.”

    This misstates the law, which provides that “information may be introduced if the parties’ failure to disclose the required information was substantially justified or harmless.”

    Plaintiffs relied on “Defendant[s’] fail[ure] to depose Keylard” as demonstrative that the deficiencies in Keylard’s report were substantially justified or harmless.

    As discussed above, this is not a germane argument with respect to violations under Rule 26 and exclusion under Rule 37. As the Seventh Circuit has held, “the [expert] report must be complete such that opposing counsel is not forced to depose an expert in order to avoid ambush at trial; and moreover the report must be sufficiently complete so as to shorten or decrease the need for expert depositions and thus to conserve resources.”

    The Court thus found that Plaintiff’s deficient Rule 26(a)(2)(B) disclosure with respect to Keylard was neither substantially justified nor harmless. Moreover, given that discovery is closed, the deadline for dispositive motions has lapsed, and trial begins in approximately two months, the deficiencies cannot be easily remedied without radically reworking this case’s longstanding schedule.

    Held

    1. The Court denied Plaintiff’s motion to exclude defense expert Michael Hatzakis.
    2. The Court granted Defendants’ motion to exclude Dr. Leah Keylard.

    Key Takeaways:

    • Opinions and conclusions are intellectual constructs that are dissimilar from, and incomparable to, scientific principles. In and of itself, an opinion or conclusion cannot contradict a scientific principle, unless it is an opinion or conclusion that specifically addresses the merits of that principle.
    • Plaintiffs had plenty of time between the issuance of the most recent scheduling order and the lapsing of deadline for discovery motions to try to resolve the issue with Defendants and, if necessary, file an appropriate motion with the Court to obtain any needed information prior to Hatzakis’ deposition.

    Case Details:

    Case Caption: Allen V. Barratt Et Al
    Docket Number: 2:23cv474
    Court Name: United States District Court, Washington Western
    Order Date: April 08, 2025
  • Materials Science Expert’s Supplemental Report Excluded Despite a Compelling Explanation for the Tardiness

    Materials Science Expert’s Supplemental Report Excluded Despite a Compelling Explanation for the Tardiness

    This is an insurance coverage dispute. Defendant Church Mutual Insurance Company (“Church Mutual”) insured Plaintiffs’ property. Hail damaged the property’s roof. The parties dispute whether the damage falls within Plaintiffs’ insurance policy, which precludes coverage for cosmetic damage.

    Plaintiffs sought to exclude the expert testimony of Christine Conner, Mark Kubena, and Ronald Dutton on the grounds that they applied an extracontractual definition of “functional damage,” which, according to Plaintiffs, made their opinions unreliable and irrelevant. Plaintiffs also filed a motion to exclude Dutton’s supplemental expert report.

    Forensic Engineering Expert Witness

    Christine E. Conner has 10 years of engineering experience, including design, evaluation, inspection, and repair of residential and commercial buildings and other structures, with over 5 years of engineering training and forensic engineering experience in cause and origin failure analysis for structural damage; structural failures, construction deficiencies, roof damage, wind/hail damage, water intrusion, settlement, flooring failures, construction deficiencies, cladding and window failures, foundation damage, flood, surge and wind damage analysis, and preparation of technical reports with findings.

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

    Civil Engineering Expert Witness

    Mark Kubena is an engineer with expertise in the area of property damage causation and the determination of the appropriate scope of repairs for property damage.

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

    Materials Science Expert Witness

    Ronald J. Dutton has over 40 years of metallic-coated steel experience with which he provides technical services for product development, failure analysis, and product training for the metal construction industry. He has served in various trade organizations, including the National Coil Coating Association (NCCA) and the Zinc Aluminum Coaters Association (ZAC), and holds BS and MS degrees from Drexel University and Lehigh University.

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

    Discussion by the Court

    A. The Expert Reports Are Relevant and Reliable

    The Court found that Conner, Dutton, and Kubena’s expert reports do not rely on extracontractual definitions of functional and cosmetic damage. They instead explained how the roof lacked certain types of functional damage. Thus, the expert reports opined that the roof had not been functionally damaged because its service life had not been reduced.

    Basically, Church Mutual’s expert reports would help the jury determine whether the policy limitation applies. And they do not confuse the trier of fact by applying a different definition of functional/cosmetic damages. The Court declared these reports admissible.

    B. Dutton’s Supplemental Report Is Inadmissible

    Dutton’s supplemental disclosure is a three-page summary of a laboratory report that evaluated the hail damage to the Plaintiffs’ roof. Dutton stated that the lab report supports the conclusions from his original report and demonstrates that there is no evidence that the hail diminished the performance of the roof.

    The Court found that Dutton’s report is not supplemental because it goes beyond filling the “interstices of an incomplete report” and instead introduces new laboratory testing results and new opinions.

    Church Mutual offered a compelling explanation for the tardiness. Dutton did not receive the lab results until after submitting his initial expert report. Moreover, the testimony was important because it provided lab results that helped explain why the roof damage is cosmetic instead of functional.

    Even though there is a compelling reason for the delay and the testimony is important, the Court will not admit it because Plaintiffs did not have time to produce rebuttal reports after Dutton disclosed the samples used in his supplemental report one week before the discovery deadline.

    Held

    The Court granted in part and denied in part the Plaintiffs’ motion.

    Key Takeaways:

    • None of the experts relied on an extracontractual definition of cosmetic or functional damage to reach their conclusions.
    • Even though Dutton states that his supplemental findings support his original conclusions, they still offer new opinions, because they analyze new laboratory test results.

    Case Details:

    Case Caption: Cleburne Training & Fitness Inc Et Al V. Church Mutual Insurance Company
    Docket Number: 3:24cv410
    Court Name: United States District Court, Texas Northern
    Order Date: April 10, 2025
  • Economics Expert Allowed to Testify Despite Lacking Experience in the Pharmaceutical Industry

    Economics Expert Allowed to Testify Despite Lacking Experience in the Pharmaceutical Industry

    Named Plaintiffs Judy Kirkbride and Beeta Lewis are consumers in Ohio and Texas that purchased prescription drugs from The Kroger Company (“Kroger”) in the last several years. They alleged that Kroger, through a deceptive pricing scheme, overcharged them for prescription drugs by misreporting the “usual and customary” (U&C) prices for Plaintiffs’ medications, which resulted in higher copayments. 

    Plaintiffs offered Colin Weir as a damages expert primarily to “explain how classwide damages in this case can be calculated using Kroger’s own records.” After Kroger’s experts opined that, to calculate damages in this action, class members’ claims need to be re-adjudicated over the entirety of a plan year, and that process requires additional data from pharmacy benefit managers (“PBMs”) that may not exist, Plaintiffs proffered the rebuttal expert report of Dr. Susan A. Hayes. 

    Defendant filed Daubert motions to exclude Colin Weir’s expert report, Susan Hayes’ expert report, and Weir’s rebuttal report.

    Economics Expert Witness

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

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

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

    Pharmacy Expert Witness

    Dr. Susan Hayes has over 40 years’ experience in the health care consulting, pharmacy benefit management industry. Hayes is the principal, owner, and founder of Pharmacy Investigators and Consultants.

    In addition to her work at Pharmacy Investigators and Consultants, she is an Assistant Professional Practices Professor and the Director of the Health Informatics Masters Degree Program at Roosevelt University, where she teaches two of the graduate level classes. She is also a Certified Registered Pharmacy Technician in Illinois and has authored research that discusses ethical decision-making in the pharmaceutical industry.

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

    Discussion by the Court

    Motions to Exclude Colin Weir’s Testimony

    Initially, the “price paid by Class Member,” according to Weir, is found in Kroger’s transactional records—a dataset of over 158 million pharmacy transactions of generic prescriptions that occurred between December 1, 2018 and November 30, 2022, in Ohio and Texas, with 38 variables describing each transaction. However, Kroger argued that Weir’s analysis “did not meet the requirements of Rule 702” for several reasons.

    First, Weir allegedly lacked the “specialized knowledge” to answer the specific questions at issue: whether class members can be identified by certain Bank Identification Numbers (“BINs”) and classwide damages determined via a formula using only pricing lists and pharmacy claims data. Second, the formula Weir opines can calculate damages on a classwide basis purportedly comes directly from counsel. Finally, the “simplified methodology” proposed by Weir allegedly “ignores the complex set of payment steps that occur with each pharmacy transaction between third-party payors (“TPPs”), PBMs, pharmacies, and individual customers.”

    Analysis

    Ultimately, Kroger has failed to demonstrate that Weir’s testimony is inadmissible under Rule 702 and Daubert. Specifically, its first argument—that Weir lacks experience in the pharmaceutical industry to offer an admissible expert opinion on damages in this case—is foreclosed by Sixth Circuit precedent because a generally experienced expert’s “unfamiliarity with some specific aspects of the subject at hand merely affect[s] the weight and credibility of [the] testimony, not its admissibility.”

    The Court held that Kroger’s second argument, that Weir’s methodology is unreliable because it relied on assumptions from Plaintiffs’ counsel, likewise missed the mark. Weir explained that his damages framework was based on Plaintiffs’ theory of liability in this case, and “it is entirely appropriate for a damages expert to assume liability for the purposes of his or her opinion.”

    Finally, Defendant attacked Weir’s methodology by questioning his failure to consider certain information regarding class members’ individual drug prescription transactions in making his calculations. The Court held that Kroger’s arguments “go to the factual sufficiency of Weir’s analysis and not to the reliability of his underlying methodology.”

    Motion to Exclude Susan Hayes’ Testimony

    Kroger sought to exclude Hayes’ testimony, arguing that her “experience does not include calculating damages in litigation,” and that “she has no education, training, or experience in economics or accounting, let alone in calculating damages.”

    Analysis

    Kroger does not dispute that Hayes is qualified to opine about PBMs or the PBM industry standards and practices generally.

    This Court likewise found Hayes qualified to offer expert opinions regarding PBM practices. Drawing on her decades-long experience in auditing PBMs, she has provided helpful testimony to this Court that rests on a “reliable foundation” and is “relevant to the task at hand.”

    Held

    The Court found that Plaintiffs have satisfied the requirements of Federal Rule of Evidence 702 to admit the expert testimony of Colin B. Weir and Dr. Susan A. Hayes.

    Key Takeaway:

    • Furthermore, Kroger’s argument that Weir’s methodology “is based solely on assumptions provided by Plaintiffs’ counsel” is unpersuasive, because “experts may permissibly rely on assumptions about underlying facts that are stated to them by the client.”
    • Moreover, Rule 702 only requires that an expert have specialized knowledge that “will help the trier of fact to understand the evidence or to determine a fact in issue,” not all facts at issue.

    Case Details:

    Case Caption: Kirkbride V. The Kroger Co.
    Docket Number: 2:21cv22
    Court Name: United States District Court, Ohio Southern
    Order Date: April 09, 2025
  • Prison Management Expert Allowed to Opine on PREA Compliance

    Prison Management Expert Allowed to Opine on PREA Compliance

    Plaintiff C. Jay Smith is a transgender woman who has been housed in men’s prisons for decades. The facts at issue in this case pertain to Plaintiff’s incarceration at San Quentin State Prison from 2013 to 2019, though she has been housed at the California Medical Facility in Vacaville since June 2019.

    Plaintiff filed a motion to exclude the testimony of Defendants’ expert, Captain Rusty Hickethier.

    Prison Management Expert Witness

    Rusty Hickethier is currently a Captain (A) and PREA Coordinator for California Department of Corrections and Rehabilitation. Prior to this role, he was a Correctional Lieutenant working for the PREA Compliance Unit for CDCR Headquarters, assisting with ensuring the agency maintains compliance with the Federal Standards as well as assisting with DOJ PREA Audits.

    Previously, he was a Correctional Sergeant at CSP-Sacramento which houses primarily Level IV maximum and high security incarcerated person as well as those requiring specialized mental health programming and high-risk medical concerns. Hickethier has over 17 years of service with CDCR.

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

    Discussion by the Court

    Plaintiff stated that Defendants first designated Hickethier as a Federal Rule of Civil Procedure 30(b)(6) deponent, then disclosed him as a non-retained expert, and finally as a retained rebuttal expert. Plaintiffs urged that he is not a proper expert and should not be allowed to testify at trial.

    In response, Defendants have confirmed that they do not oppose Plaintiff’s motion to exclude Hickethier as a non-retained expert witness. The Court therefore granted the motion on this basis. The parties disputed, however, whether to exclude Hickethier as a rebuttal expert witness.

    Plaintiff argued that Hickethier cannot offer an opinion that San Quentin was compliant with Prison Rape Elimination Act (“PREA”) requirements because the evidence in the record—including Captain Hickethier’s 30(b)(6) testimony—establishes that it was not. Plaintiff also urged that, although not prohibited, it would be confusing to the jury to have someone testifying as both a 30(b)(6) witness and an expert.

    Defendants did not address Plaintiff’s arguments directly. Instead, they responded that to the extent Plaintiff’s expert is allowed to testify about PREA, they should be allowed to call Hickethier, a member of CDCR’s PREA Compliance Unit, as a rebuttal expert witness.

    Analysis

    The Court has concerns with the cursory manner in which Defendants have responded to this motion. And it is not clear whether, and to what extent, Captain Hickethier may try to contradict his own prior 30(b)(6) testimony. Nevertheless, the Court is not inclined to fashion an order based on suppositions about what the evidence at trial may show, and how Captain Hickethier may rely on that evidence, in fashioning any rebuttal testimony.

    Plaintiff may of course challenge any of Captain Hickethier’s testimony through vigorous cross-examination if he testifies, and the Court will have the opportunity to evaluate any objections in context. Additionally, if this case proceeds to trial, the Court will consider holding a voir dire hearing outside the presence of the jury to confirm in advance that experts, including Captain Hickethier, will only offer reliable and relevant opinions. 

    Held

    The Court granted the motion to exclude Captain Rusty Hickethier’s testimony as a non-retained expert witness, but denied the motion to exclude his testimony as a rebuttal expert.

    Key Takeaway:

    The Court finds it inappropriate to formulate an order predicated on suppositions regarding the evidence to be presented at trial and Captain Hickethier’s potential reliance on that evidence in his rebuttal testimony.

    Case Details:

    Case Caption: Smith V. Diaz Et Al
    Docket Number: 4:20cv4335
    Court: United States District Court, California Northern
    Order Date: March 31, 2025
  • Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Law And Legal Expert’s Testimony on the Existence of an Attorney-Client Relationship Excluded

    Plaintiff Iron Tax, Accounting & Financial Solutions, LLC (“Iron Tax”) brought this suit against Defendants Story Law Firm, PLLC and Travis W. Story (collectively, “Defendants” or “Story”) for legal malpractice. The claims here arise out of an underlying suit that resulted in a default judgment being entered against Iron Tax for failing to timely file a responsive pleading. 

    Defendants challenged the helpfulness and scope of Plaintiff’s expert Danny Crabtree‘s testimony.

    Law And Legal Expert Witness

    Danny R. Crabtree is an attorney with experience in civil litigation and legal malpractice cases.

    Crabtree began his legal career in 2004 as an associate at the Riable Law Firm and became a partner at Riable & Crabtree, Attorneys at Law in 2006. During this period, his practice included general litigation, domestic relations, debt collection, and the representation of small businesses in both transactional and litigation matters. In 2009, he established his own law office, focusing on professional negligence claims.

    He holds a Juris Doctor degree, magna cum laude, from the William H. Bowen School of Law (2003), and a B.A. in Political Science from the University of Arkansas at Little Rock (2001).

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

    Discussion by the Court

    Crabtree’s primary opinion is that Story’s failure to timely file a responsive pleading breached the standard of care for an attorney in Arkansas. However, the Court is not convinced that Crabtree’s testimony on this is necessary to the jury’s finding because it is common knowledge that failure to comply with statutorily prescribed deadlines in court cases is not in keeping with the standard of care for an attorney.

    Nevertheless, the Court permitted Crabtree to testify that an attorney acting within the standard of care would have timely filed the answer, moved for an extension, or given advance warning to a client that they do not represent them in the matter due to nonpayment.

    Furthermore, Crabtree may explain the effect of failing to answer: that a Defendant is precluded from asserting its defenses and counterclaims. The Court believes such testimony could help the jury to better understand the standard of care. Alternatively, should the parties instead wish to stipulate that failing to answer in thirty days constitutes a breach of the standard of care, they may, of course, do so.

    Additional Opinions by Crabtree

    In addition to the aforementioned opinion, Crabtree presented two additional opinions as to causation and the existence of an attorney-client relationship. Initially, in his report, Crabtree notes it is his “belief that Arkansas law does not permit an attorney-expert in a legal malpractice case to render an opinion as to causation (i.e., to testify as to the outcome of the underlying case).” Nevertheless, he states that to the extent such testimony is permitted, he believes Iron Tax “would have prevailed in the underlying case but for Attorney Story’s failure to timely file a responsive pleading” because Iron Tax had “meritorious affirmative defenses and counterclaims” against the Tripps, including a claim for violation of the noncompete.

    Similarly, in his deposition, Crabtree stated, “While I don’t believe, yet again, that a legal malpractice expert should offer testimony as to whether there is client engagement,” to the extent such testimony is allowed, he opines that Story did have an attorney-client relationship with Iron Tax that was not limited to the demand letter.

    Defendants argued that these two opinions are inadmissible as they stray from the appropriate scope of the testimony, i.e., whether Story acted within the standard of care. The Court agreed with Defendants. The Court is not persuaded by Plaintiff’s arguments that testimony as to causation in this case would help the jury understand “how different legal strategies would have altered the outcome.”

    In other words, Crabtree may testify as to the standard of care in this case
    but may not testify as to causation or the existence of an attorney-client relationship.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude and/or limit the testimony of Danny Crabtree.

    Key Takeaway:

    Crabtree’s testimony regarding causation has nothing to do with different legal strategies and is merely an assessment of whether the non-compete violation and fraudulent misrepresentation defenses/counterclaims would have succeeded. This is a determination fully within the jury’s capability. And, as to whether an attorney-client relationship existed, the jury will have to make that determination by applying the law—as supplied in the jury instructions—to the facts in this case.

    Case Details:

    Case Caption: Iron Tax, Accounting & Financial Solutions, LLC V. Story Law Firm, P.L.L.C. Et Al
    Docket Number: 5:23cv5243
    Court Name: United States District Court, Arkansas Western
    Order Date: April 08, 2025
  • Internal Medicine Expert’s Testimony Partly Excluded Because He Made Credibility Determinations

    Internal Medicine Expert’s Testimony Partly Excluded Because He Made Credibility Determinations

    This is a medical malpractice case arising primarily out of the treatment provided to Plaintiff’s father, Santos González Ponce (“Mr. González”) at co-Defendant Doctors’ Center Hospital and Caribbean Medical Center (“CMC”) by Defendants Dr. Glorimar Santos Llanos, Dr. Glorimar Santos-Rodríguez, and Dr. Iolani García-Rosario  (“Dr. García”) at those medical institutions.

    Plaintiff argued that Dr. Miguel A. Colón-Pérez‘s expert testimony should be excluded since his report, dated August 31, 2024, is not signed.  Second, Plaintiff posits that the expert report “is devoid of references to medical literature to support the opinions contained therein” and is only based on “the expert’s say so, without reference to medical authorities, textbooks or literature.” Third, Plaintiff contended that Pérez-Colón’s report improperly vouches for García’s credibility inasmuch his expert opinion relies on her own statement that she “never saw the blood cultures.”

    Internal Medicine Expert Witness

    Miguel A. Colón-Pérez is board certified in internal medicine since 1989 and in infectious diseases since 1994. He is admitted to practice medicine in Puerto Rico and the states of Florida and Colorado. Colón-Pérez is also a member of various well recognized societies in his fields of practice, such as the “Infectious Diseases Society of America” and the “Socieded Panamericana de Enfermedades Infecciosas.”

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

    Discussion by the Court

    Qualifications

    Plaintiff did not contest Colón-Pérez’s qualifications. Based on the educational background and professional experience outlined in Pérez-Colón’s curriculum vitae, the Court found that they are sufficient to satisfy the requirement that a proposed expert witness be qualified by “knowledge skill, experience, training, or education.”

    Expert Report “Prepared and Signed by the Witness”

    Colón-Pérez’s expert report is not signed. Yet, Plaintiff does not assert how the lack of signature is prejudicial. The absence of an expert’s signature is curable and renders the defect harmless. Consequently, the Court held that the exclusion of Colón-Pérez’s report is not warranted on this basis alone.

    Colón-Pérez was directed to submit a subsequent affidavit adopting the statements in his previously submitted and unsigned expert report or to submit a signed expert report, on or before April 4, 2025.

    Colón-Pérez’s Expert Report

    A thorough reading of the report demonstrates that Colón-Pérez did not directly cite any medical literature. However, throughout the report, Colón-Pérez references data and medical terms that certainly derive from his field of medicine. For instance, he states: “In the USA, lower respiratory tract infections surpass all other infections in terms of morbidity and mortality.” Furthermore, he notes, “In all cases of severe bacterial pneumonia, immediate initiation of empirical therapy is crucial to prevent sepsis. If left untreated, pneumonia can result in an overall mortality of up to 30%.”

    Colón-Pérez concluded that “when the involvement of Iolani Garcia Rosario, in the care of Santos Gonzales Ponce, is evaluated in full detail, it is clear that the patient arrived at the hospital with clinical signs and symptoms of facial cellulitis.” 

    Ultimately, Colón-Pérez concludes that: “there is no deviation of the best practice of medicine by Iolani Garcia Rosario when her clinical analysis of the case, which was supported by the Infectious Diseases and Pneumology service, was that the most likely cause of the poor medical condition of the patient was due to the severe pneumonic process and this source of infection needed the most urgent care.”

    The Court notes that an expert “need not necessarily cite literature or a published standard in demonstrating that he has relevant expertise. . .instead, his personal experience alone may be sufficient.”

    Other than complaining about absence of reference to publications and medical literature, the Court found that Plaintiff did not specifically explain why the testimony in question was insufficient or unreliable as to show what was the national standard of care that applied in this case. Furthermore, the sufficiency of Colón-Pérez’s professional experience has not actually been challenged here.

    Expert Testimony Regarding Witness Credibility

    The Court addressed Plaintiff’s claim that Colón-Pérez opinion improperly vouches for García’s credibility. In his report Colón-Pérez concluded:

    “It is critical in this case that Garcia was never notified of a panic level of positive blood cultures w/ gram positive cocci on 11-24 and neither was notified on 11-27 when the final results of blood cultures showed methicillin-resistant Staphylococcus aureus.”

    In this case, it is a contested issue of fact whether Defendant physicians evaluated certain blood cultures now included in González’s medical record at the CMC, and if those blood culture were available to the physicians, particularly García, at the time.

    Certainly, Colón-Pérez does not directly say that García is truthful. Yet, he is giving weight to her version of events and reaching a concluding based, at least partially, on that version. The Court held that these statements in the expert report are unsubstantiated and speculative at best and would not assist the trier of fact. In other words, García’s expert must assist the trier of fact in determining credibility, not determine credibility for the trier of fact.

    Rule 703 was never intended to allow a witness, “under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion.

    Held

    The Court granted in part and denied in part the Plaintiff Wanda I. González-Villegas’ motion in limine to exclude Defendant Dr. Iolani García-Rosario’s expert witness report prepared by Dr. Miguel A. Colón-Pérez.

    Key Takeaways:

    • Determining the credibility of a witness is a function reserved exclusively for the jury. Regardless of whether an expert possess “medical knowledge and skills that relate directly to credibility,” they are barred from opining as to whether a witness is being truthful. In this case, Colón-Pérez does not directly say that García is truthful. Yet, he is giving weight to her version of events and reaching a concluding based, at least partially, on that version.
    • Colón-Pérez need not necessarily cite literature or a published standard in demonstrating that he has relevant expertise here; instead, his personal experience alone may be sufficient. In sum, the medical records, combined with Colón-Pérez’s own clinical experience, provided a sufficiently reliable basis for his opinions. 
    • The absence of an expert’s signature in a report is curable and renders the defect harmless. 

    Case Details:

    Case Caption: Wanda I. González Villegas V. Doctors’ Center Hospital
    Docket Number: 3:21cv1592
    Court: United States District Court for the District of Puerto Rico
    Order Date: March 27, 2025
  • Credit Reporting Expert May Not Opine as to Whether the Procedures were Reasonable or Unreasonable

    Credit Reporting Expert May Not Opine as to Whether the Procedures were Reasonable or Unreasonable

    Plaintiff Barbara Cooper alleged that Defendant Milliman, Inc. (“Milliman”) violated the Fair Credit Reporting Act in two ways: first, when
    it issued a report about her medical and prescription history that mixed her with another individual; and second, when it issued a second report wherein Milliman reinserted information it had previously deleted after purportedly reinvestigating Plaintiff’s dispute.

    Milliman principally attributes its repeated errors to a “glitch” with the software that matches information about consumer identity with medical
    record information.

    Milliman’s expert Rebecca Kuehn’s report states she will offer the following opinions:

    A. Milliman’s process for matching consumer records is consistent with industry practice and otherwise reasonable.

    B. Milliman’s procedure for blocking information that was previously removed from a consumer report is consistent with industry practice and reasonable.

    Plaintiff argued that Kuehn is unqualified and her proffered testimony is unreliable. “As such,” Plaintiff contended, “her opinions are nothing more than bare legal conclusions that are pasted on to Milliman’s factual theories.”

    Credit Reporting Expert Witness

    Rebecca Kuehn is an attorney focusing on consumer financial services and consumer protection matters in the Washington, D.C. office of Hudson Cook, LLP.

    She is an expert in the policies, procedures, and practices that consumer reporting agencies (“CRAs”) use to ensure compliance with the Fair Credit Reporting Act (FCRA). She developed this expertise through substantial experience in the industry, advising CRAs, lenders, and other users of credit reports on the development of procedures designed to comply with the FCRA.

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

    Discussion by the Court

    Kuehn’s Expert Qualifications

    Kuehn’s resume shows that Kuehn graduated near the top of her class at George Washington Law School. She served five years at the Federal Trade Commission (FTC), as an Assistant Director, where she was “[p]rimarily
    responsible for the [FCRA] program, leading the Commission’s enforcement, policy, outreach, and rulemaking activities in that area.”

    In addition, Kuehn has served as co-chair of the FCRA Litigation Subcommittee in the American Bar Association, given numerous presentations on the FCRA, authored various publications on the FCRA, and “testified before the U.S. House Committee on Financial Services . . . on behalf of the Consumer Data Industry Association, at a hearing on ‘Consumer Credit Reporting: Assessing Accuracy and Compliance.’”

    When Plaintiff argued that Kuehn is unqualified to opine on industry standards because of any lack of experience as to reporting of medical information, she essentially argued that the FCRA requires specificity as to each area it applies. But the FCRA deals with CRAs in general and whether their procedures are reasonable.

    It requires all CRAs, regardless of industry, to follow or maintain reasonable procedures and nothing in the Act provides separate rules based on the type of information collected and reported. Same goes for Plaintiff’s argument that Kuehn must have direct knowledge about Milliman’s identity matching or software.

    As Plaintiff herself admits, Kuehn has “impressive credentials” at first sight. Even Plaintiff’s own expert has recognized Kuehn’s FCRA qualifications.

    The Court held that Plaintiff’s arguments against Kuehn’s qualifications failed because they concerned the weight of Kuehn’s proffered testimony, not its admissibility.

    Reliability of Methodology

    Kuehn has published numerous works on the FCRA. One publication was at the FTC, which can set guidance as to what procedures are or are not reasonable.

    Her knowledge has been tested at various presentations, in Court, and before Congress. As a result, the Court finds Kuehn possesses the required knowledge and experience to provide reliable testimony that is not merely ipse dixit. Other arguments, like that Kuehn’s opinion is unreliable because of her lack of knowledge about identity matching or Milliman’s software and her excessive reliance on information supplied by Milliman’s corporate representative, as discussed earlier, are unpersuasive because they go to the weight of Kuehn’s testimony, not its admissibility.

    However, Kuehn will be able to testify to compliance or non-compliance with industry customs and standards, but not whether Milliman’s procedures were reasonable or unreasonable. The consensus in the Middle District of Florida is that an FCRA expert cannot testify whether procedures were “reasonable” or “unreasonable.”

    Helpfulness

    An average lay person does not know the industry-standard procedures used by CRAs.

    Therefore, the Court ruled that Kuehn’s testimony could help the jury determine whether Defendant’s procedures were reasonable and if any violation was willful.

    Rule 403

    Kuehn satisfies all three prongs of Daubert and except for the exclusion of witness testimony as to “reasonableness” or “unreasonableness”, the Court finds no undue prejudice from the anticipated testimony.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude opinion evidence from Rebecca Kuehn.

    Key Takeaways:

    • The reliability of non-scientific expert opinions depends heavily on the knowledge and experience of the expert, not the exactness of the methodology. Evidence of compliance or non-compliance with a custom within a particular industry, though not conclusive, is a factor the trier of fact may consider.
    • While a witness may testify concerning an ultimate issue of fact, the witness may not “tell the jury what result to reach.”

    Case Details:

    Case Caption: Cooper V. Milliman, Inc.
    Docket Number: 2:23cv28
    Court Name: United States District Court, Florida Middle
    Order Date: April 07, 2025
  • Emergency Medicine Expert Allowed to Testify Because of His Familiarity with Springfield’s Medical Community

    Emergency Medicine Expert Allowed to Testify Because of His Familiarity with Springfield’s Medical Community

    Plaintiff, Ashley Huddleston was born with a genetic condition called muscular dystrophy, which required her to be in a wheelchair and utilize a tracheostomy since age 11.

    On December, 2021, at around 2:36 p.m., Plaintiff presented to the Tristar Northcrest Medical Center ED with low oxygen, shortness of breath, and a history of muscular dystrophy requiring tracheostomy. Approximately an hour later, Plaintiff had a chest x-ray taken, which was normal.

    At some point, Plaintiff complained of low back pain. A physician’s assistant in the emergency room, Defendant Samantha Stephens, ordered and administered 0.5 milligrams of Dilaudid to Plaintiff for her back pain. Five minutes later, Plaintiff was in cardiac arrest and CPR was initiated. Emergency room physician and supervising physician of Stephens, Defendant James Nell, ordered Narcan, and Plaintiff was alert soon thereafter.

    Chest x-rays taken after Plaintiff received CPR showed a pneumothorax (collapsed lung). Plaintiff had a chest tube inserted and was flown by helicopter to St. Thomas Hospital, where she stayed until January 22, 2022. She was transferred to a different hospital, where she stayed until March 3, 2022, after which she received treatment at home until April 4, 2022.

    Plaintiff brought this case against Defendants Samantha Stephens, P.A., and James Nell, M.D. for their alleged negligence in providing her medical care on December 25, 2021.

    Specifically, Plaintiff claimed Defendants negligently ordered and administered Dilaudid, which proximately caused her respiratory arrest, cardiac arrest and subsequent pneumothorax, pain/suffering, and long-term hospitalization.

    Defendants sought to exclude Dr. David Wiggins for failure to comply with the “locality requirement” of subsection (a)(1) of Tennessee Code Annotated Section 29-26-115.

    Emergency Medicine Expert Witness

    David Wiggins is a residency trained, board certified emergency physician with over 31 years of continuous full-time emergency medicine experience.

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

    Discussion by the Court

    Locality Requirement

     To satisfy this “locality requirement,” an expert witness may show either that they are “familiar” with the relevant medical community or that they are familiar with a “similar” medical community:

    “A claimant is required to prove the “[t]he recognized standard of acceptable professional practice … in the community in which the defendant practices or in a similar community.”  The medical expert or experts used by the claimant to satisfy this requirement must demonstrate some familiarity with the medical community in which the defendant practices, or a similar community, in order for the expert’s testimony to be admissible under Rules 702 and 703.

    Generally, a competent expert’s testimony that he or she has reviewed and is familiar with pertinent statistical information such as community size, hospital size, the number and type of medical facilities in the community, and medical services or specialized practices available in the area; has had discussions with other medical providers in the pertinent community or a neighboring one regarding the applicable standard of care relevant to the issues presented; or has visited the community or hospital where the Defendant practices, will be sufficient to establish the expert’s testimony as admissible.”

    Thus, a competent expert may demonstrate familiarity with the medical community in which the Defendant practices – here Springfield, Tennessee – or a similar community by:

    1. testifying that they have reviewed and become familiar with pertinent information, such as the size of Springfield’s community and hospital, the number and type of medical facilities in Springfield, and the medical services available in the Springfield area;

    2. testifying that they have had discussions regarding the applicable standard of care relevant to the issues presented with other medical providers in the Springfield community or a neighboring community; or

    3. testifying that they have visited Springfield, Tennessee or the Hospital.

    Analysis

    Wiggins has: (1) reviewed and become familiar with the size of Springfield’s community and the medical services available there; and (2) had discussions regarding the applicable standard of care relevant to the issues in this case with another medical provider in a neighboring community who also frequently visits the Hospital and Springfield, Tennessee.

    He testified that, in 2021, the Hospital was similar in bed-size and services offered to other medical facilities he had worked in and that he was aware that the Hospital was a 109-bed hospital that offered services such as 24-hour emergency room, cardiac, and orthopedic care.

    Wiggins has also testified that his home practice is in Thomasville, North Carolina, a community with a population of approximately 27,000 people, which is similar in size to Springfield, Tennessee. Additionally, Wiggins has provided sworn testimony that he has had discussions regarding the Springfield, Tennessee medical community and local standard of care with Dr. George Thomas, a medical provider in Bowling Green, Kentucky who has visited the Hospital and is familiar with the Springfield community. 

    The Court found that Wiggins has demonstrated familiarity with the medical community of Springfield, Tennessee and a similar community, such that he satisfies the “locality requirement” of subsection (a) of Section 29-26-115.

    Moreover, Wiggins has not provided contradictory testimony as to his professional experience or the information he has learned about the Springfield, Tennessee medical community and population size. Plaintiff disclosed Dr. Wiggins as an expert who would be offering his opinions on the standard of care, which necessarily includes his opinions on the locality rule under Tennessee law. Thus, this is not a situation where Defendants can claim surprise that Wiggins would be offering such opinions. 

    Held

    The Court denied the Defendants’ motion to exclude testimony of Plaintiff’s expert David Wiggins, M.D. As only standard of care opinions are subject to the locality rule, the Court held that the Defendants’ motion will be denied to the extent they seek to exclude causation opinions based on a failure to comply with subsection (a)(1).

    Key Takeaway:

    Because Wiggins has shown familiarity with the Springfield, Tennessee medical community and a similar one, he fulfills the locality requirement under Section 29-26-115(a). His testimony about his professional background and knowledge of Springfield’s medical environment and demographics has been consistent.

    Case Details:

    Case Caption: Huddleston V. Tristar Northcrest Medical Center Et Al
    Docket Number: 3:22cv718
    Court: United States District Court, Tennessee Middle
    Order Date: April 3, 2025
  • General Surgery Expert Was Barred From Using the Precise Legal Phrase “Deliberately Indifferent”

    General Surgery Expert Was Barred From Using the Precise Legal Phrase “Deliberately Indifferent”

    Dezmen McBride was booked into custody at the W.C. “Dub” Brassell Detention Center on May 21, 2021. McBride died 15 days later on June 5, 2021, at the age of 18 years old.

    Deborah McBride commenced this action alleging that County Defendants and Separate Defendant Lieutenant Samuel Baker, Jr., in his individual capacity: were deliberately indifferent to McBride’s serious medical needs; used excessive force against McBride; were negligent; were liable for McBride’s wrongful death; violated the Equal Protection Clause; and intentionally inflicted emotional distress on McBride. After McBride’s death, Tanaria Heard was substituted as the Special Administrator of the Estate of Dezmen McBride.

    County Defendants requested that the Court exclude the testimony of William Rutledge because, according to County Defendants, Rutledge’s testimony and opinions “would not assist the trier of fact, contain irrelevant opinions and a legal opinion, invade the province of the jury, contain speculation, and would causes [sic] juror confusion in the least.”

    General Surgery Expert Witness

    William L. Rutledge spent four years as the medical director of Forest Park Medical Clinic and Cumberland Park Medical Clinic, besides serving as an adjunct faculty member in the biology department of Arkansas Baptist College. 

    For nearly two years prior, Rutledge was a research assistant professor for University of Arkansas’ Department of Surgery. He spent a handful of years before as a staff physician, educator, and medical director, preceded by 16 years as a general surgeon for Arkansas Surgical Associates/William L. Rutledge M.D., P.A.

    Rutledge also performed duties as a surgeon for Arkansas Trauma Surgeons, LLC from 1997 to 2000, and was the medial director for Meharry Alcohol and Drug Abuse Program in Nashville, Tennessee, from 1982 to 1984.

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

    Discussion by the Court

    The County Defendants argued that Rutledge’s claim that County Defendants’ deliberate indifference was the cause of McBride’s death is a legal conclusion only the Court can make. Conversely, Heard contended that Rutledge’s opinions touching on a jury question shouldn’t lead to his testimony being excluded.

    Rutledge’s report dated June 12, 2024, concerns whether the care that McBride received was proper and within care standards. Additionally, in his report, Rutledge provides his professional opinion in this matter based on a review of the following: the medical examiner’s report; medical records from Jefferson Regional Medical Center; attorney notes of timeline; call log and incident report from Jefferson County Sheriff’s Department; and a summary of the investigation.

    Rutledge offered many opinions in his report, and he stated that he gave those opinions “with a reasonable degree of medical certainty.” Specifically, Rutledge opined, in part, that “although the CT scan showed no intracranial hemorrhage, McBride clearly exhibited multiple signs of increased intracranial pressure.” For example, McBride exhibited nausea, vomiting, headaches, visual changes, changes in behavior, weakness, inability to stand and walk, confusion, and possible seizure activity. Furthermore, Rutledge also opined that the failure to get McBride evaluated and treated between June 2, 2021, and June 5, 2021, “more probably than not caused his demise.” In addition, Rutledge opined that “McBride progressively worsened” on June 2, 3, and 4, 2021, “as personnel were deliberately indifferent.” Ultimately, Rutledge’s report concluded that “[t]he delay in diagnosis and treatment of Dezmen McBride due to deliberate indifference by jail personnel and nursing personnel led to his death on June 5, 2021.”

    Analysis

    County Defendants asserted that Rutledge’s opinion is “unhelpful to the trier of fact considering the prevailing law, and threatens to cause jury confusion—particularly in a case that is not complex .”

    However, the Eighth Circuit Court of Appeals has determined in a series of cases that, when alleging a violation of 42 U.S.C. § 1983 based on an alleged delay in medical treatment, a Plaintiff’s failure to offer such evidence is fatal to his claim.

    Therefore, the Court ruled that Rutledge’s opinions are relevant to the issues in this matter—namely whether County Defendants were deliberately indifferent to McBride’s medical needs and consequently contributed to or caused McBride’s death.

    Moreover, that the state crime lab found McBride’s cause of death to be undetermined does not negate the relevancy of Rutledge’s opinions on McBride’s cause of death.

    Proving deliberate indifference requires that the Plaintiff “prove that officials knew about excessive risks to his health but disregarded them and that their unconstitutional actions in fact caused his injuries.” In this case, what County Defendants knew, what they did or did not do in response to that knowledge, and how quickly they acted or failed to act are all among the many questions of fact for the jury to determine.

    Because Rutledge’s testimony that County Defendants were deliberately indifferent is “not a fact-based opinion, but a statement of legal conclusion,” the Court excluded Rutledge’s testimony using this precise legal phrase.

    Held

    The Court granted, in part, and denied, in part, County Defendants’
    Daubert motion in limine to exclude Dr. William L. Rutledge’s report.

    Key Takeaway:

    While the Court found Rutledge’s medical opinions on the propriety of care, the progression of McBride’s condition, and the potential cause of death to be relevant to the claim of deliberate indifference, it excluded Rutledge’s direct statement that the “personnel were deliberately indifferent” and that the “delay in diagnosis and treatment…due to deliberate indifference…led to his death” because the Court deemed these statements to be legal conclusions, not fact-based opinions, which are reserved for the Court to decide.

    Case Details:

    Case Caption: Heard V. Association Of Arkansas Counties Risk Management Fund Et Al
    Docket Number: 4:24cv325
    Court: United States District Court, Arkansas Eastern
    Order Date: April 04, 2025
  • Law Enforcement Expert May Provide Testimony about the National and SLMPD Standards for the Use of Pepper Spray

    Law Enforcement Expert May Provide Testimony about the National and SLMPD Standards for the Use of Pepper Spray

    Rev. Darryl Gray is suing the City of St. Louis and two St. Louis Metropolitan Police Department (SLMPD) detectives—Ronald Vaughan and Larry Wentzel—for violating his First and Fourth Amendment rights, as well as a variety of state law torts. 

    To support his constitutional claims, Rev. Gray hired Greg Meyer to give his expert opinion on some of the issues in the case. 

    Meyer’s expert report sets out his extensive experience in law enforcement, and Defendants do not challenge his qualifications. Instead, Defendants filed a motion to exclude five opinions in Meyer’s report as unreliable and not helpful to the jury.

    Law Enforcement Expert Witness

    Greg Meyer has 47 years of law enforcement experience, including 33 years as a police tactics and procedures consultant.

    He has been an expert witness in numerous high-profile cases including Rodney King, Oscar Grant (the Oakland BART murder case), and George Floyd. He has been engaged in more than 400 civil and criminal cases as well as conducting outside independent reviews of use of force cases for a federal prosecutor and several district attorneys and police chiefs.

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

    Discussion by the Court

    Opinions 2 and 3 are excluded because the City was granted summary judgment

    Opinions 2 and 3 in Meyer’s report relate to Rev. Gray’s Monell claims against the City of St. Louis.

    After the motion to exclude was filed, the Court granted summary judgment to the City on Rev. Gray’s Monell claim. Opinions 2 and 3 in the report are therefore excluded because they will not “help the trier of fact to understand the evidence or to determine a fact in issue.” 

    Meyer’s Opinions

    Meyer’s first opinion is:

    “If the “Defendants’ actions violated Plaintiff’s First Amendment rights to freedom of speech and freedom of assembly by interfering with Plaintiff’s ability to associate freely in public and express Plaintiff’s views as part of a peaceful demonstration” as described in Para. 89 of the Second Amended Complaint, then the Defendants’ actions did not conform with proper contemporary law enforcement procedures.”

    Meyer’s fourth opinion is:

    “If Plaintiff did not push or otherwise assault or engage in preassault indicators against Defendant Vaughan’s allegedly pushing Plaintiff and using pepper spray on Plaintiff, and Officer Wentzel’s allegedly tackling Plaintiff to the street, did not conform with SLMPD policy or contemporary law enforcement training or procedures, and the resulting arrest and prosecution of the Plaintiff was false and malicious.”

    Meyer’s fifth opinion is:

    “If Plaintiff Gray did not assault Detective Vaughan, then both Detective Vaughan and Officer Wentzel appear to have violated SLMPD use of force policy and generally accepted police procedures when Detective Vaughan pepper sprayed Plaintiff Gray at extreme close range (inches); and Officer Wentzel used unnecessary and unreasonable force on Plaintiff Gray when he took him to the ground.”

    Opinion 1 is Excluded Because it is not Helpful to a Jury

    Defendants argued that his opinion will not be helpful to the jury because it is not based on “any specialized, scientific, or technical knowledge.” They claimed that the opinion says nothing more than “if the officers did it wrong, then they did it wrong.” The Court agrees with the Defendants.

    Meyer’s opinion as formulated in his report tells the jury only that if Defendants’ conduct violated Rev. Gray’s First Amendment rights, then it did not conform with contemporary law enforcement procedures. 

    The Court ruled that Meyer’s first opinion does not provide any additional insight into police practices that might be helpful to the jury. His rationale for Opinion 1 makes that clear. The police procedures and practices he cites are a restatement of First Amendment law. Meyer does not even opine that he thinks Defendants’ conduct violated the First Amendment under the circumstances. He admits that the facts are disputed, and he cannot determine who is correct.

    Opinions 4 and 5 are Excluded to the Extent that they State Legal Conclusions

    In Opinion 4, Meyer’s analysis of law enforcement training is just a description of the Fourth Amendment and Supreme Court precedent. The Court determined that Meyer relied on the Constitution and Supreme Court precedent to form opinions on questions of law that will not “help the trier of fact to understand the evidence or to determine a fact in issue.”

    In his rationale for Opinion 5, Meyer goes into more detail about SLMPD policy and accepted police procedure on the use of pepper spray but provides no analysis for his opinion that “Officer Wentzel used unnecessary and unreasonable force on Plaintiff Gray when he took him to the ground.”

    Plaintiff argued that Meyer’s opinions are not legal conclusions because they provide “the jury with a framework for placing the jury’s own findings in the context of national police standards and SLMPD policies.”

     In his rationale for Opinion 5, Meyer discussed the SLMPD’s and the International Association of Chiefs of Police’s (IACP) standards for pepper spray and opines that Detective Vaughan’s use of pepper spray did not comply with those standards. SLMPD and IACP standards are not common knowledge for jurors, and Meyer’s testimony will help contextualize the evidence the jury will hear about Detective Vaughan’s use of pepper spray.

    Although Meyer’s report also states that Detective Wentzel’s “alleged tackling [of] Plaintiff to the street[] did not conform with SLMPD policy or contemporary law enforcement training or procedures,” the Court held that Meyer does not provide similar insight into accepted police procedure for that kind of force.

    Held

    The Court granted in part the Defendants’ motion to exclude Plaintiff’s expert, Greg Meyer.

    Key Takeaway:

    If Meyer had relied on SLMPD or IACP standards for uses of force like Wentzel’s, or explained why, based on his own extensive law enforcement experience, he believes Wentzel could have used less force to control Rev. Gray, the opinion might be admissible. But without that information, the Court cannot properly assess whether the opinion satisfies Rule 702‘s requirements.

    Case Details:

    Case Caption: Gray V. City Of Saint Louis, Missouri Et Al
    Docket Number: 4:18cv1678
    Court Name: United States District Court, Missouri Eastern
    Order Date: March 31, 2025